Fudim v Monash University
[2016] VCC 1641
•10 November 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-05665
| EMMA FUDIM | Plaintiff |
| v | |
| MONASH UNIVERSITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 October 2016 | |
DATE OF JUDGMENT: | 10 November 2016 | |
CASE MAY BE CITED AS: | Fudim v Monash University | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1641 | |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s134AB – injury to the back – reliance upon paragraph (a) of the definition – concession made by the defendant that the plaintiff is entitled to leave to bring proceedings for pain and suffering damages – plaintiff part-time worker prior to injury – whether the plaintiff had sought increased working hours – The Herald & Weekly Times Limited & Anor v Jessop – credit of the plaintiff – whether statutory test satisfied – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Mr S Jurica | Zaparas Lawyers |
| For the Defendant | Ms M Hartley QC with Ms M Lang | Minter Ellison |
HIS HONOUR:
General background
1 This matter comes before me by way of an application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. The plaintiff seeks leave to bring proceedings in respect of pecuniary loss damages. She was also seeking leave in respect of pain and suffering damages, but the defendant conceded this on the day that the matter was first before me – namely, 19 October 2016. I would refer to Transcript (hereinafter referred to as “T”) 1.
2 The matter was adjourned on 19 October last at the request of the defendant and primarily for the purpose of attempting to interview a potential witness. That witness was a manager of the plaintiff towards the end of her period of employment with the defendant. During the seven days for which the matter was adjourned, the defendant discovered that the manager in question, Mr Georges, unfortunately had died. In essence, his possible evidence would have been in relation to whether the plaintiff, who was a part-time employee, had requested or suggested increased working hours. As shall be discussed, it was made clear on behalf of the plaintiff that she intended to rely upon the decision of the Court of Appeal in The Herald & Weekly Times Limited & Anor v Jessop [2014] VSCA 292. The evidence of the late Mr Georges had the potential to be relevant to issues raised in Jessop.
3 In any event, on 26 October 2016 the defendant conceded that the plaintiff was entitled to leave to bring proceedings for pain and suffering damages. The injury upon which the plaintiff relies in bringing her application is to the back. Reliance was placed solely upon paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act. In particular, it is asserted that the plaintiff suffered the back injury as a result of heavy work when she was working as a technical officer in the physiotherapy department of the defendant and was required to move various objects, this being between October 2012 and September 2013. This shall hereinafter be referred to as “the Monash University work”. As might be expected in a situation where leave has been conceded in relation to pain and suffering, there was no argument as to causation. Indeed, the nature of the injury, being aggravation of a degenerative condition of the spine, was also agreed – see T19.
4 Mr J Mighell QC with Mr S Jurica of counsel appeared on behalf of the plaintiff. Ms M Hartley QC with Ms M Lang of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of two affidavits as being true and correct, and was cross-examined. The balance of the evidence was documentary in nature and was tendered either by consent or without objection.
Factual background
(a)The plaintiff’s background, training and employment prior to the Monash University work
5 The plaintiff is aged 52 years, she having been born on 18 November 1963. She was born in Moscow. She is a married woman with a daughter aged approximately 29 and a son aged approximately 23. She also has a grand-daughter.
6 She immigrated to Australia in 1991. However, prior to that, she had obtained impressive qualifications in Russia. Apart from her secondary schooling, she obtained a Bachelor’s Degree with Honours in Librarianship and Bibliography at the Moscow State University of Culture.
7 After immigrating to Australia, she obtained work in late 1993 as a mineral examiner with De Beers Australia Exploration and worked full-time for that entity for 12 years. Whilst doing that, she also studied some geology subjects at Melbourne University on a part-time basis. She then continued her work as a mineral examiner with Tawana Resources for approximately two years, doing the same sort of work. When that entity closed, she performed some administrative work at a post office and for a dentist.
8 In approximately July 2008 she commenced working with the defendant as an administrative assistant in the Medical Faculty. After some three years, she took a casual position in the Faculty of Education Department working as a placement officer. In approximately July 2012 she obtained the position of a technical officer, working part-time in the physiotherapy department. She worked 18.5 hours per week, being two full days and one half day. It is alleged that this involved a certain amount of physical work and, for approximately 15-20 per cent of the time, administrative work. It was whilst performing this aspect of the Monash University work that she suffered the back injury under consideration.
(b) The plaintiff as a witness
9 Essentially, I find the plaintiff to be a witness of truth. The only subject on which I considered her to be a little less than completely forthcoming related to possible intervention by her daughter, who is a qualified lawyer, as to her choice of treating surgeon. It would appear that the plaintiff’s treating general practitioner, Dr Bella Weissman, had organised referral to a neurosurgeon, namely Professor Gavin Davis. Within a day of this referral, it would seem that the plaintiff expressed a preference for Professor Richard Bittar, who has been known to give evidence in this Court on a medico-legal basis, particularly on behalf of plaintiffs. The suggestion of the defendant is, in effect, that the plaintiff’s daughter intervened and suggested that Professor Bittar was a more appropriate choice for a treating surgeon. It was a topic concerning which the plaintiff seemed uneasy, particularly as to an explanation to the effect that Professor Davis had been unavailable.
10 The plaintiff’s insistence was that she simply wanted the best available treating neurosurgeon. It may be that she became concerned about suggestions that her daughter had intervened. Whatever the explanation, for a short time she was noticeably uncomfortable in relation to this topic. However, in the particular circumstances of this case, I regard it as something of a red herring. Clearly the credit of the plaintiff is important. However, I am not persuaded that it was damaged in any critical way as a result of the exploration of the topic of choice of neurosurgeon.
11 Apart from that uneasiness, which may have related to concern regarding her daughter’s involvement, the plaintiff struck me as a straightforward witness. She made appropriate concessions and gave answers which were not necessarily favouring her cause. It is to be remembered that it has already been conceded that she has a serious injury in relation to pain and suffering.
12 Further, I note that Dr Timothy Entwisle, consultant psychiatrist, who examined the plaintiff at the request of the defendant, regarded her as being pleasant and cooperative. Mr Charles Flanc, vascular and general surgeon, also examining at the request of the plaintiff’s solicitors, referred to her as being a pleasant and cooperative patient. Mr David Brownbill, consultant neurosurgeon, who examined the plaintiff at the request of her solicitors, stated that she was cooperative, without embellishment, and appearing straightforward in her presentation. I agree with the above observations, particularly those of Mr Brownbill. I found the plaintiff to be an intelligent and straightforward witness.
13 In further written submissions forwarded on behalf of the defendant, it was asserted that the plaintiff should not be accepted as a credible witness. In those submissions, quite a lot was made of the possible involvement of the plaintiff’s daughter in relation to her choice of neurosurgeon and, to a lesser extent, the completion of the claim form. These submissions do not adversely affect my impression of the plaintiff as being a straightforward and reliable witness. As stated, I regard the issue as something of a red herring that did no damage of any consequence to the plaintiff’s credit.
(c) The state of the plaintiff’s health prior to injury
14 The plaintiff makes no secret of the fact that she had back pain prior to commencing work with the defendant. However, she has sworn that such pain was mostly in the upper back and with some occasional discomfort in the lower back. She could recall the straining of her lower back when working out at a gymnasium on a date which is uncertain. She could remember having some back pain from time-to-time, along with pain in the upper area of the low back following prolonged sitting at work in early 2012. She had a particular concern in relation to osteoporosis with spinal fractures, as this was a condition from which her mother suffered.
15 As a result of these concerns, she underwent a CT scan and also was referred to Mr Peter Wilde, orthopaedic surgeon. He reported back to Dr Weissman that the CT scan showed degenerative changes in the lower thoracic spine and to a lesser extent in the lumbar spine. He recommended physiotherapy, and was confident that her symptoms would settle with the correct lifestyle approach.
16 In any event, it would seem that the plaintiff had symptoms from time-to-time in her lower back and had degenerative changes in her lumbar spine, but suffered from no pronounced back symptoms of sufficient severity to interfere with her working capacity.
17 Apart from such things as occasional migraines and intermittent pain between the shoulder blades for several years and which required no time off for medical treatment, her medical history otherwise appears to be unexceptional. Whilst she may have had some degenerative changes in her lumbar spine, I accept that she was suffering from only minor symptoms prior to the Monash University work and suffering the injury, and not from symptoms of sufficient severity to interfere with her working capacity.
(d) The injury, its treatment and diagnosis
18 As stated, the injury is to the plaintiff’s low back. The occurrence of it and the fact that work with the defendant was causative of it are accepted. That the consequences of it are of sufficient severity to satisfy the requirements of the Act in relation to pain and suffering is also accepted. Therefore, the discussion of the injury can be abbreviated.
19 In approximately October 2012, the plaintiff commenced experiencing lower back pain at work. She seems to have had some treatment such as massage and physiotherapy. She continued to work. In April 2013, following repositioning some plinths, she suffered from lower back pain radiating to her left buttock and heel. She was absent from employment for approximately one week. The pain settled. It recurred in a work setting in June 2013 and again settled whilst the plaintiff was on holiday in July. On 2 September 2013 she suffered a far more dramatic episode of lower back pain and pain radiating to both legs, this occurring whilst pulling a wheelie bin full of towels and pillowcases.
20 Her pain worsened overnight, causing her to see Dr Weissman. She was given a Tramal injection and certified as being unfit for work. 2 September 2013 was in fact her last working day.
21 On 4 September 2013, the plaintiff underwent an MRI scan of the lower back. This revealed minor broad based disc bulges contacting but not displacing neural structures at L2-3 and L3-4. As earlier discussed, the plaintiff was referred to neurosurgeon and spinal surgeon, Professor Bittar. In his opinion, the MRI demonstrated facet joint arthropathy at L4-5 and L5-S1. He expressed the opinion that the plaintiff’s symptoms most likely emanated from the facet joints. He recommended a short course of physiotherapy and a further review. That review took place on 28 October 2013. The plaintiff’s condition had deteriorated following physiotherapy. A nuclear medicine scan which had been performed did not demonstrate any significant abnormalities, but Professor Bittar continued to diagnose musculoligamentous back pain, as well as facet joint-related pain. In a report to the plaintiff’s solicitors of 1 November 2013, Professor Bittar implicated employment, repeated his earlier diagnoses, and considered the prognosis to be not stabilised, but guarded.
22 Professor Bittar reviewed the plaintiff on 11 December 2013. He expressed the view that surgery would not be in the plaintiff’s best interests and recommended a review by a pain specialist, Dr Richard Sullivan. In the meantime, in November 2013 the plaintiff was still reporting ongoing severe low back pain and spasms. She was having some physiotherapy.
23 Dr Sullivan saw the plaintiff and reported back to Professor Bittar on 17 December 2013. Amongst other things, he noted that she was intolerant of opioids, having tried injectable Tramadol which had resulted in severe nausea. His summary was that she had low back pain and predominantly left sided leg pain following the work activity. This had caused significant functional limitations and impairment in her quality of life.
24 Dr Sullivan reviewed the plaintiff again on 18 February 2014. She was undecided as to whether she wanted to go ahead with diagnostic blocks. Dr Sullivan gave her a prescription for Tapentadol. He believed that she had chronic low back pain and predominantly left side sciatica due to lumbosacral nerve root irritation. As at the date of his report of 18 February 2014, he considered that she virtually had no capacity to return to either her pre-injury duties or modified duties. He considered the prognosis to be guarded.
25 On 2 April 2014 the plaintiff underwent bilateral lumbar 3, 4 and 5 medial branch nerve blocks and a number of injections, these all being performed by Dr Sullivan at Epworth Cliveden Hospital. When reviewed on 1 May 2014, there had been a substantial reduction in pain for approximately four hours following the procedure, but the pain then returned in a graduated fashion. Her intolerance to most analgesic medications continued. Dr Sullivan expressed the view that the plaintiff had ongoing significant low back pain and left sided sciatica and recommended radio frequency neurotomy.
26 Reporting on the same day (1 May 2014) to Professor Bittar, Dr Sullivan also expressed the view that, whilst there had been some improvement following the medial branch blocks, “…in general her symptoms are more or less back to baseline”. Further, the plaintiff’s exercise regime was causing her pain to flare-up and Dr Sullivan considered her a candidate for radio frequency denervation.
27 On 15 September 2014, Dr Sullivan reported to the plaintiff’s solicitors. He considered the plaintiff to be totally and permanently disabled (that observation may well have been for the purposes of an insurance policy). However, he observed that, in his opinion, the plaintiff had “negligible capacity” to return to work in any meaningful way for the foreseeable future. This coincided with the view that had been expressed by Dr Weissman on 21 May 2014 that the plaintiff was totally and permanently incapacitated for work. In a report of 21 May 2014, Dr Weissman also referred to a conclusion of Professor Bittar that the plaintiff was totally and permanently incapacitated for work. Certainly, in a report of 21 September 2016 to the plaintiff’s solicitors, Professor Bittar expressed the opinion that, considering the plaintiff’s ongoing symptoms and associated physical restrictions, she was unfit for all work and that her injuries were permanent.
28 Returning to the plaintiff’s treatment by Dr Sullivan, on 20 November 2015 he performed radio frequency denervation bilaterally. When he reviewed her on 12 January 2016, her pain had improved, although she had an ongoing dull ache in her low back. At this point, he seems to have considered it possible that the plaintiff could return to work in a very sedentary role and thought that assessment by an occupational physician could assist.
29 Dr Sullivan reviewed the plaintiff on 2 May 2016. She had suffered an acute flare-up of her lower back pain. Dr Sullivan observed that “She had lost much of the progress she had made in terms of her functional recovery”. He thought it likely that some of the benefit from the radio frequency procedure had subsided. He expressed the opinion that the plaintiff continued to suffer from chronic low back pain of an organic basis; lumbar spondylosis; and chronic bilateral sciatica. In relation to work capacity, he believed her to be completely precluded from re-entering the workforce in any meaningful capacity and that this state of affairs would continue into the foreseeable future.
30 Professor Bittar reported again on 21 September 2016. He had reviewed the plaintiff that day. He considered that the plaintiff’s response to radio frequency denervation was highly suggestive of the fact that the facet joints were a significant pain generator. He expressed the opinion that she was totally incapacitated for work. He also stated that there was a very significant organic component to her pain. He concluded his report by stating that the plaintiff was unfit for all work and that her prognosis was poor.
31 In March 2015, the plaintiff was seen on one occasion by Dr Paul Verrills, who specialises in pain medicine. His provisional diagnosis was of internal disc disruption. It would seem that the plaintiff received no actual treatment from Dr Verrills.
32 The most recent report from the plaintiff’s treating general practitioner, Dr Weissman, is that of 8 August 2016. Essentially, Dr Weissman stated that there had been no change in the plaintiff’s condition, she was continuing to struggle and had episodes of shooting pain in the lower back. It is to be remembered that Dr Weissman had earlier expressed the view that the plaintiff was totally and permanently incapacitated for work.
33 The plaintiff’s treating physiotherapist on various occasions has been Mr Justin Moar. In his report of 11 March 2016, he expressed the opinion that the plaintiff had no capacity for either her previous duties or alternative work. It is a view that he repeated in a report of 8 October 2016. He also believed that the plaintiff would continue to suffer from activity-limiting lower back pain for the foreseeable future.
34 The plaintiff has also been examined for medico-legal purposes. Given the admission in relation to pain and suffering consequences, the following summaries will relate mainly to earning capacity.
35 Mr Thomas Kossmann, orthopaedic surgeon, examined the plaintiff at the request of her solicitors, reporting on 12 November 2013. He regarded the plaintiff as being incapacitated for her pre-injury employment and thought that alternative employment of a sedentary nature would be difficult because the plaintiff had a limited sitting and standing tolerance.
36 Associate Professor Owen White, who would appear to be a neurologist, reported on 16 January 2014. As was the situation with Mr Kossmann, his report was directed more at causation and the immediate situation in which the plaintiff found herself. At that time, he thought it not appropriate for her to return to heavy physical work.
37 Mr Charles Flanc, general surgeon, saw the plaintiff at the request of her solicitors on 28 January 2014. His report is quite detailed, but he did conclude that, at that time, the plaintiff would have had difficulty coping with even light sedentary duties.
38 Mr David Brownbill, consultant neurosurgeon, examined the plaintiff on 21 May 2014 at the request of her solicitors. The conclusion of Mr Brownbill was that the plaintiff should avoid activities involving heavy lifting, forced spinal mobility, repeated bending and prolonged standing or sitting as at that time.
39 Perhaps of greater relevance are three reports to the plaintiff’s solicitors from Dr Joseph Slesenger, specialist occupational physician. Dr Slesenger assessed the plaintiff on 11 January 2016. A large amount of material was provided to him by the plaintiff’s solicitors. In relation to capacity for employment, Dr Slesenger expressed the view that the plaintiff could not return to her previous duties. In his opinion, she had a theoretical capacity to attend work three hours a day, three days a week. However, this was on the basis that there was no pushing, pulling, carrying or lifting objects weighing more than 5 kilograms; no repetitive bending or twisting; that she could sit or stand as required; and that she had a five minute rest break each hour. He regarded her prognosis as guarded and also expressed the opinion that the plaintiff was unlikely to be able to return to work on a consistent and reliable basis. He thought it unlikely that there would be a significant improvement in her symptoms.
40 Dr Slesenger re-examined the plaintiff on 20 September 2016. On this occasion he was also asked to consider various suggestions of suitable employment emanating from a vocational assessment report obtained by the defendant. He regarded her symptoms as remaining at a moderate to severe level, these being variable and unchanged from what had been documented at the time of the initial assessment. He could not identify any non-organic features or improved range of movements upon distraction. It is of interest that he observed that she provided a clear and consistent account of her injuries.
41 In relation to the plaintiff’s capacity for work, he again placed a number of restrictions upon her. These included the requirement that she could sit or stand as required; alter her posture as required; have rotation of jobs; would not be required to push, pull, carry or lift items over 5 kilograms in weight; that there be no sustained or awkward postures; and that her work be confined to four hours a day, four days per week. Whilst he thought that she did have a capacity for alternative suitable employment, he pointed out that she could not attend work on a consistent and reliable basis. This was an observation that he made in relation to each of the suggested alternative employments. He also recorded that she had good days and bad days on an unpredictable basis. She could have a few bad days a week, and occasionally the bad days could last for a week at a time. Therefore, he was of the opinion that she had an inability to attend work on a consistent and reliable basis due to the unpredictable variation in her symptoms and the functional limitations which resulted.
42 In summary, he thought that she could perform a predominantly clerical role for a maximum of four hours per day, four days per week with a five minute rest break per hour. However, he again stated that she would be unlikely to be able to attend work on a consistent and reliable basis to the point that she would be able to retain employment. He also expressed the view that her symptoms were unlikely to change in the foreseeable future. He regarded her condition as permanent.
43 The defendant also had the plaintiff examined. Dr Malcolm Brown, occupational physician, saw the plaintiff on 20 July 2015. He considered that she had mild, uncomplicated lower back pain and had a work capacity for jobs not involving extended standing in the one position, frequent bending or heavy lifting. He provided a vocational assessment report of 8 April 2015, which listed job options, such as administration officer, research assistant, quality control officer and the like. As none of these involved physically demanding tasks, Dr Brown was of the opinion that the plaintiff had the capacity to do any of them on a full-time basis.
44 Dr Timothy Entwisle, consultant psychiatrist, saw the plaintiff on 13 July 2015. In essence, he found that she had an adjustment disorder with depressed and anxious mood in partial remission. However, she had a current work capacity in relation to her psychiatric condition.
45 Dr Graeme Brazenor, neurosurgeon, saw the plaintiff at the request of the defendant’s solicitors on 1 July 2016. His opinion was that the plaintiff’s lumbar condition had been clearly exacerbated by the physical duties of the Monash University work. He agreed with the diagnosis of Professor Bittar that the plaintiff’s pain generators were the mildly degenerate L5-S1 facet joints. He felt that she was immediately fit to resume working full-time at any job not involving bending at the waist, accessing of levels less than 600 millimetres above the floor or ground, or vigorous pushing and pulling movements.
46 In relation to diagnosis, I accept that advanced by Professor Bittar, and effectively accepted by Dr Brazenor, to the effect that the injury suffered by the plaintiff is the aggravation of lumbar spondylosis. This is also consistent with the diagnosis of Dr Sullivan of a chronic pain condition, chronic low back pain due to spondylosis, and predominantly left-sided sciatica due to lumbosacral nerve root irritation. Perhaps that more detailed diagnosis best summarises the situation. Radiological investigations have revealed evidence of pre-existing degenerative disease of the lumbar spine. It could be considered that there is no major difference between the diagnoses, but on balance I prefer the detailed one provided by Dr Sullivan.
47 As this is a case where the injury is in the nature of an aggravation, only those consequences of such aggravation can be taken into account. Whilst the plaintiff had previously experienced some symptoms, on what would seem to be a temporary basis, in the thoracic spine, she does not appear to have had any notable prior lower back symptoms. She could remember straining her lower back at the gymnasium and taking some painkillers for a couple of days, but it does not seem to me that there were any relevant prior lower back problems of note. It seems to me that the consequences and symptoms from which the plaintiff suffers result directly from the relevant and accepted injury. I note the following observation of Dr Brazenor, examining for the defendant:
“… I consider that if she had not had to do the harder physical aspects of her work at Monash University she would probably not have undergone any exacerbation and be still working full-time, and comfortable at that”.
48 Whilst Dr Entwisle, who also examined on behalf of the defendant, arrived at the conclusion that the plaintiff had an adjustment disorder with depressed and anxious mood, he also found that such condition was in partial remission. He expressed the view that, from a psychiatric viewpoint, the plaintiff has a current work capacity. Accordingly, whilst, in accordance with s134AB(38)(h), the psychological or psychiatric consequences of the physical injury cannot be taken into account, in my view they play little, if any, part in this case. Work capacity is at the centre of this dispute. The defendant’s examining psychiatrist has stated that, effectively, the plaintiff’s psychological or psychiatric condition does not incapacitate her for employment. I might say that the impression created by the plaintiff in the witness box was not that of a person suffering from any mental disorder of note, and I note that her treating neurosurgeon, Professor Bittar, has expressed the view that the core of her disability and symptoms stems from organic/physiological factors.
49 I am also satisfied that the relevant consequences of the injury are permanent within the meaning of the Act, in that they will persist for the foreseeable future. Professor Bittar, in his most recent report of 21 September 2016, has stated that the plaintiff’s functional limitations which impact upon her employment are permanent and that she is unfit for all work. He regards her prognosis as poor. Dr Sullivan’s most recent opinion is that the plaintiff is completely precluded from re-entering the workforce in any meaningful capacity now and into the foreseeable future. He also describes her prognosis as poor and has stated that her chronic low back pain will continue to fluctuate and persist into the future indefinitely. The plaintiff’s treating general practitioner, Dr Weissman, has stated that the plaintiff is totally and permanently incapacitated for work. Whilst Dr Brown, examining on behalf of the defendant, was of the view that the plaintiff did have a work capacity, he stated that that capacity was unlikely to change significantly in the future. When these opinions are considered, it seems to me that the consequences of the plaintiff’s injury are permanent within the meaning of the Act. It is also to be remembered that the defendant has conceded that the plaintiff has satisfied the statutory requirements in relation to pain and suffering and one of those is permanence.
(e) Other developments since the injury
50 The plaintiff has not returned to employment since 2013. She has undertaken a computer course with which she struggled, this being for three and a half hours per day, one day a week for eight weeks. She looks after her five year old granddaughter for a few hours, a couple of days per week. She has also made a small number of what she described as films and which I understood to be, in fact, a collection of slides. There is no suggestion that this was done on a professional basis. It seems to have been more for the family and friends. In any event, the total made is five over a period of 15 years and, since last year, the plaintiff has not been involved in this at all. In this regard, I would refer to the discussion at T55‒56.
Ruling
51 In my opinion, the plaintiff has discharged the burden of proof. She has satisfied the requirements of s134AB(38)(e) and (f). She has also satisfied the requirements of s134AB(38)(c) in that her loss of earning capacity is, when the appropriate comparison is made, fairly described as being more than significant or marked and as being at least very considerable. I have come to this conclusion for the following reasons, which are not set out in order of importance or significance.
(a)The credit of the plaintiff in a case such as this is usually important. As was said by Brooking J in Palmer Tube Mills (Aust) Pty Ltd & Anor v Semi (1998) 4 VR 439 at 448:
“Moreover, in ‘serious injury’ applications the credit of the applicant is of great importance …”.
This observation has been referred to by the Court of Appeal in Papamanos v Commonwealth Bank of Australia [2014] VSCA 167 and, more recently, in Haidar v Transport Accident Commission [2016] VSCA 182. This case is one in which credit and reliability are important. In my opinion, and as earlier stated, the plaintiff impressed me as being essentially an honest and reliable witness. I accept her evidence.
(b)Given that I have accepted that the plaintiff has given honest evidence both to this Court and to medical treaters and examiners, I have reached the conclusion that she has no capacity for employment. In arriving at this conclusion, I am particularly impressed by those who have treated the plaintiff and who seem to me to be best placed to assess her capacity. Each has provided multiple reports, including a current assessment.
The following are the relevant opinions of those who have been most closely involved in the treatment of the plaintiff:
(i) In his most recent report, Dr Weissman stated that the plaintiff “…is definitely not suitable for any job or any alternative duties”.
(ii) In his most recent reports, including that of 21 September 2016, Professor Bittar has stated that the plaintiff is unfit for all work.
(iii) In his most recent report, Dr Sullivan has expressed the view that the plaintiff is completely precluded from re-entering the workforce in any meaningful capacity now and into the foreseeable future.
(iv) Mr Moar has been the plaintiff’s treating physiotherapist over the last 18 months. In his recent report of 8 October 2016, he expressed the view that the plaintiff does not have a reasonable capacity for even light sedentary employment and has no capacity for alternative work.
The above are opinions expressed by practitioners who have seen and treated the plaintiff on multiple occasions. Essentially, they present a unanimous view that the plaintiff has no capacity for employment. I consider them well-placed to make an assessment of the plaintiff’s work capacity and, in the circumstances of this case, I prefer their opinions to those expressed by medico-legal examiners.
(c) The defendant placed some emphasis upon the views of the two occupational physicians who examined the plaintiff for medico-legal purposes. True it is that Dr Brown, who examined the plaintiff at the request of the defendant some 16 months ago, stated that she had a capacity for suitable employment. However, Dr Slesenger, who examined the plaintiff on two occasions this year, the more recent being on 20 September last, also provided a supplementary report dated 11 October 2016. A comparatively constant theme throughout his reports is that he considered it unlikely that the plaintiff is likely to attend work on a consistent and reliable basis to the point that she would be able to retain employment.
This is a similar type of assessment to that of the treating physiotherapist, Mr Moar, who stated that the plaintiff’s chances of being able to consistently present to a workplace with her current condition would be regarded as very poor. As earlier stated, I am satisfied that her current condition is likely to persist for the foreseeable future. I prefer the opinion of Dr Slesenger to that of Dr Brown. He has had the benefit of seeing the plaintiff twice and has provided far more detailed reports. Further, what he has opined seems to me to make sense and to accord more closely with what has been said by those treating the plaintiff.
Even if it is accepted that the plaintiff has a theoretical capacity for work (and the treating medical practitioners do not necessarily go that far), realistically she will be unable to obtain and hold down suitable employment. Thus, it seems to me that on the basis of the view of the occupational physician, Dr Slesenger, which I prefer, the ultimate finding is still that the plaintiff has no capacity for work.
(d) I accept not only the plaintiff’s description of her symptoms and restrictions, but also her evidence in relation to the conversation which she had with her manager, the late Mr Georges. I accept that she was willing and hoping to work one more full day a week and had talked to Mr Georges about increasing her hours and becoming permanent. She wanted to work longer hours in the manner which she had worked for the defendant previously. This is relevant to the argument based upon the decision in Jessop, which argument was advanced on behalf of the plaintiff.
(e) However, in the circumstances, there is no need for me to enter the realm of s134AB(38)(e) and (f) and the argument concerning the application of the decision in Jessop. If I did, the outcome would be the same. I accept the plaintiff as a witness of truth and accept that she had requested from her manager an increase in working hours. The figures put before me would indicate that there were periods in the three years prior to the occurrence of injury in which the plaintiff had demonstrated the capacity to earn $1,000 gross per week.
Even if the hours of work postulated by Dr Slesenger, but ultimately effectively rejected by him by reason of the plaintiff’s inability to attend work on a consistent and reliable basis, were adopted, that would be 16 hours’ work per week. On the basis of the figures for alternative employment supplied by Work Able Consulting for the defendant, the plaintiff would still succeed. The threshold figure of $600 per week (being 60 per cent of $1,000 gross per week) would not be reached.
(f) However, as stated, I am not of the opinion that the above calculations and the application of Jessop need be investigated at any length. I have reached the conclusion that the plaintiff has no capacity for suitable employment.
(g) In addition, I am satisfied that the complete loss of earning capacity for a woman who has worked all her adult life, and bearing in mind her age, is a serious injury for the purposes of s134AB(38)(b). Further, as leave in respect of pain and suffering damages has been conceded, nothing more need be said in relation to that aspect of the case.
Conclusion
52 The plaintiff is successful. She has discharged the burden of proof. Leave is given to her to bring proceedings for pain and suffering damages and for loss of earning capacity damages. I shall hear the parties as to any ancillary orders that are required.
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