Flynn v Woolworths Limited
[2013] VCC 866
•19 June 2013
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-00860
| SHARYN VERONICA FLYNN | Plaintiff |
| v | |
| WOOLWORTHS LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 18 June 2013 | |
DATE OF JUDGMENT: | 19 June 2013 | |
CASE MAY BE CITED AS: | Flynn v Woolworths Limited | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 866 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – pain and suffering only
Legislation Cited: Accident Compensation Act 1985
Judgment:Leave granted to the plaintiff to institute proceedings for the recovery of pain and suffering damages only in respect of injuries sustained in the course of employment with the defendant from 26 November 2002 and including the incident on or about 5 August 2008.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T J Seccull Mr N R Dubrow | Slater & Gordon Ltd |
| For the Defendant | Mr P B Jens | Gadens Lawyers |
HIS HONOUR:
1 In this proceeding the plaintiff seeks leave to commence a proceeding in respect of the pain and suffering consequences of a workplace injury to her lumbar spine which occurred in the course of a period of employment with the defendant.
2 In the proceeding, the plaintiff relies upon two affidavits sworn by her: the first in October 2012; the second in May 2013. Additionally, the plaintiff attended to give viva voce evidence in the course of the proceeding and was cross-examined.
3 It is not necessary in the course of these reasons to set out the content of the plaintiff’s affidavits or her viva voce evidence, which are matters of record. This material has been taken into account by me making my findings. I will refer to such evidence however, in instances where I consider it necessary in order to give context to my findings.
4 In the course of cross-examination, two issues arose which were put as being relevant to the plaintiff’s reliability as a witness.
5 The first issue involved a statement made by the plaintiff in her affidavit of October 2012 at paragraph 25, namely:
“Later, in about May 2010, my employment with the defendant was terminated because I allegedly stole a banana. I denied this allegation but my employment was terminated that day on the spot.”
6 The second issue involved a statement made by the plaintiff at paragraph 13 of her affidavit of May 2013, namely:
“Up to the time that I injured my back at work in August 2008, I enjoyed regularly going to the gym. I went some three to four days a week. I did regular 30-minute circuit workouts using weights with bench press and leg presses utilising arm pulleys and carrying out … exercises."
7 As to the first issue, it is clear that the action by the plaintiff which brought about her dismissal from her employment with the defendant involved the theft, not only of the banana, but of one or perhaps more small items of food, the value of which was insignificant.
8 The difference in the description by the plaintiff of the items involved in this incident is for me of little consequence upon the issue of the plaintiff’s reliability. The fact however that the plaintiff deposed to the circumstances of her dismissal, by making a statement that she denied the allegation of the theft but that her employment was nonetheless terminated, when her employment was terminated following her admission of the theft, is however of more concern to me, as it clearly gave rise to a suggestion that the plaintiff was an innocent victim of a capricious act by her employer.
9 As to the second issue, I accept the defendant’s position that the plaintiff’s statement as to the regularity with which she attended gym sessions is questionable, given the contemporaneous notes and the medical records of the UFS Clinical Centre.
10 For these reasons, I am satisfied that I should apply appropriate scrutiny to the plaintiff’s evidence before accepting it as to the consequences of her injuries upon her.
11 Equally, however, I had the opportunity of observing the plaintiff in the course of her evidence and I am satisfied, given the way she altered her position regularly whilst giving her evidence, that her presentation (in terms of her tolerance for sitting and standing) was consistent with the disability described by her in her affidavits.
12 Further, the plaintiff made admissions in the course of her affidavits as to her recovery from conditions about which she had previously deposed, and I take all these matters into account in assessing the plaintiff’s reliability as a witness in this instance.
13 I am satisfied that the plaintiff’s general practitioner, who has managed the plaintiff’s medical care for the past twenty years, is in a good position (most probably the best position) to opine as to the consequences to the plaintiff of the injury the subject of this application.
14 In the circumstances to which I have referred, I am satisfied that the approach which I should adopt when making findings as to the consequences of the plaintiff’s injury the subject of this application, is to be guided by the opinion expressed by Dr Thomson who has authored no fewer than five reports as to the plaintiff’s presentation, and that this evidence, which is unchallenged opinion, should form the cornerstone for my findings.
15 I am satisfied that I should also act upon the plaintiff’s evidence in circumstances in which I am satisfied that any disability or consequences described by her is consistent with the condition described by Dr Thomson, or where no issue has been raised as to the presence of such disability or consequence.
16 With respect to the medical evidence relied upon by the parties, no issue arises as to whether the plaintiff presented at the time of her injury with a pre-existing degenerative condition in her lumbar spine which was aggravated by the subject employment.
17 Neither is it in issue, given the opinion by the Medical Panel dated 6 March 2012, that the plaintiff has sustained a compensable back injury which gives rise to a permanent impairment to her.
18 Mr Haig and Mr Jones, medical practitioners who have examined the plaintiff on behalf of the defendant, have opined that the plaintiff now presents with no more than symptoms sponsored by her underlying degenerative condition and that the effect of any aggravation of that condition upon her by her work process has ceased. These opinions are, in my view, now overborne by the binding statement by the Medical Panel in this instance.
19 Further and independently of the statement which I have made as to the significance of the Medical Panel’s finding in this instance, I do not find the opinions by Mr Haig or Mr Jens upon the issue to which I have referred to be persuasive, in that neither of these witnesses provides a persuasive analysis which justifies their opinion that the effect of the work-related aggravation of the plaintiff’s underlying condition has ceased, nor indeed, when and how the effect of such an aggravation came to an end.
20 For these reasons I prefer, in this instance, the opinions expressed by the plaintiff’s treating medical practitioner, Mr Thomson, and that expressed by Mr Doig as to the continuing impact of the plaintiff’s workplace injury upon the condition of her spine.
21 I note, in making that statement, that Mr Haig, in his report of 2011, opined:
· that the plaintiff’s symptoms came on whilst at work and commented “Her work may well have aggravated her underlying degenerative change, and I believe that this is likely to have been the case”; and further:
· that he believed that the plaintiff’s prognosis at that time was that she was likely to continue suffering symptoms much as she was claiming.
22 Dr Thomson, in his report dated 10 April 2011, made the following comments:
“Sharon has an injury dating from 12 August 2008 – low back pain developing in her job as a check-out cashier in a supermarket. I diagnosed her as having a low back strain and her pain has persisted since then. Given the fact that she’s limited in her standing to about 20-30 minutes, I do not foresee her being able to return to her modified work duties and I feel that she would struggle with any type of regular paid employment, as she has limited sitting and standing tolerances to 20 minutes, and lifting less than or equal to five kilograms. In view of this, I would assess her as being indefinitely unfit for work.”
23 In a further report dated 27 May 2013, Dr Thomson expressed a similar view, opining:
· that the plaintiff’s lower back pain and reduced range of movement had remained much the same;
· that the plaintiff was limited with respect to sitting tolerances, limited to tolerances of 15 to 20 minutes, and had a lifting tolerance of 5 kilograms;
· that the plaintiff remained permanently unfit for work:
· that the plaintiff’s back condition would “gradually deteriorate with time. She has chronic pain but she has a stoic nature and prefers to avoid the use of drugs much as possible”.
24 In a report dated 23 April 2013, Mr Doig opined that the plaintiff’s mechanism of injury was consistent with the work process described by her to him, and diagnosed the plaintiff as presenting with an aggravation of lumbar spondylosis. He continued:
“She does not have the capacity to perform her pre-injury duties … .
She’s restricted in relation to social, domestic and recreational activities and this is to quite a marked extent … .
The prognosis here is very guarded. She has not had a lot in the way of treatment. It is unlikely that physical treatment at this stage is going to help her, although I would recommend that she, in fact, have a course of physiotherapy … .
She is developing arthritis and, in fact, has had facet joint arthropathy already and that has been noted on the scans so far.”
25 In turn, each of these opinions are consistent with the CT scan finding of the scan undertaken of the plaintiff’s lumbar spine on 13 December 2012 which reported the presence of mild to moderate central canal stenosis at the L4-5 level in association with moderate left lateral recess stenosis and possible impingement of the left L5 nerve root and mild to moderate right lateral recess stenosis, with possible impingement of the right L5 nerve root and severe changes of osteoarthritis in the facet joints of this level.
26 I am satisfied, on the basis of the evidence given by the plaintiff, which is consistent with the opinions expressed by Mr Doig and Dr Thomson, that the plaintiff now presents with a condition which causes her significant symptoms of pain and renders her effectively unemployable.
27 Whilst the plaintiff was working only 10 hours per week at the time at which she ceased her employment with the defendant, I am satisfied that she now presents with a condition which denies her the opportunity to undertake work of a similar nature to that which she was undertaking in employment with the defendant when her employment was terminated, and that she is now precluded from returning to any form of work.
28 Given the period of time during which the plaintiff maintained her employment with the defendant, some eight years, I am satisfied that the plaintiff must have regarded that employment as being important to her, notwithstanding the relatively modest income which it generated for her. In the context of this finding, I am satisfied that the plaintiff’s inability to now engage in any form of employment must constitute to her a loss which is extremely significant.
29 There is no issue as to the fact that the plaintiff’s symptoms significantly interfere with her ability to sleep; limit her activity to stand, or sit or walk for long periods, as described by Dr Thomson in the course of his reports; or require her to manage her symptoms by recourse to the medication set out by her in paragraph 5 of her most recent affidavit.
30 I am satisfied that the plaintiff’s recourse to such medication is occasioned by the fact that her condition is associated with significant levels of pain given the statement made by Dr Thomson that the plaintiff presents as a stoic person.
31 I am further satisfied, taking into account the evidence of Dr Thomson when combined with the plaintiff’s evidence, that the plaintiff’s symptoms and incapacity affect her and limit her in the manner described by her in paragraphs 21 to 27 of her most recent affidavit.
32 In deciding the issue which arises in this case for my determination, namely whether the plaintiff’s pain and suffering consequences, when judged by comparison with other cases in the range of possible impairments or losses of body function, may fairly be described as being more than significant or marked and as being at least very considerable, I am required to assess the consequences in terms of pain and suffering which the plaintiff’s injury has occasioned to her and determine where the facts in this case sit, taking into account the broad spectrum of cases.
33 Adopting the approach which is required of me, namely taking into account not only the plaintiff’s symptoms and what she is precluded from doing, but also what capacities she retains, I am satisfied that the findings which I have made as to the consequences to the plaintiff of her injuries are such that those consequences are appropriately described as being more than significant or marked and as being at least very considerable when judged by comparison with other cases in the broad range of possible impairments or losses.
34 For these reasons I am satisfied that the plaintiff is entitled to the leave which she seeks in this proceeding.
35 I will hear the parties further as to the precise wording of the order which should be made in this proceeding, taking into account that it is an order which will involve leave with respect to a work process and injury occasioned over a period of time, and upon the issue as to costs.
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