Gao v Transport Accident Commission
[2022] VCC 775
•1 June 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| Serious Injury List |
Case No. CI-20-04950
| SHUANG GAO | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE CLARK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 and 30 March 2022 | |
DATE OF JUDGMENT: | 1 June 2022 | |
CASE MAY BE CITED AS: | Gao v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 775 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering – economic loss – spinal impairment – causation – subsequent injury – disentanglement
Legislation Cited: Transport Accident Act 1986, s93(17)
Cases Cited:Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67; Humphries and Anor v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Sejranovic v Berkeley Challenge Pty Ltd (2009) VSCA 108; Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143; Dordev v Cowan & Ors [2006] VSCA 254; Stijepic v Once Force Group Aust Pty Ltd [2009] VSCA 181; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Hooley v Transport Accident Commission [2019] VSCA 263; Watapaldeniya v Transport Accident Commission [2022] VSCA 59; Thapa v Transport Accident Commission [2021] VSCA 239
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R H Stanley with Ms A Smietanka | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr P B Jens QC with Ms A Bannon | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1The plaintiff in the proceeding, Shuang (Sunny) Gao, is now fifty-two years of age. On 12 November 2014, the plaintiff was driving her car along Whitehorse Road, Box Hill, when a vehicle exiting a service station failed to give way and struck her car (“the accident”). The force of the accident pushed the plaintiff’s car across Whitehorse Road and it struck a pole.
2There is no argument that the accident occurred, nor is there argument that the plaintiff suffered injury in the accident.
3At the commencement of the proceeding, Mr Stanley, on behalf of the plaintiff, advised that:
(a) The matter was proceeding as an application pursuant to s93(17)(a) of the Transport Accident Act 1986 (“the Act”) only. The ss(c) application set out in the Particulars of Injury (“the Particulars”) was not being pursued;
(b) The body part being relied upon pursuant to ss(a) was the spine (“the subject injury”). The other body parts referred to in the Particulars were not being pursued;
(c) The matter was “a very multifactorial case”. In particular:
(i)there were issues regarding a prior back injury;
(ii)there had been a supervening event on 11 October 2019 when the plaintiff suffered a back injury at work (“the work incident”);
(d) The matter was a “range case”.
4At the commencement of the proceeding, Mr Jens QC, on behalf of the defendant, advised that:
(a) The case was controversial. The matters in issue included:
(i)the plaintiff’s prior back injury;
(ii)the plaintiff’s psychiatric/psychological condition;
(iii)family law matters;
(iv)the multitude of injuries (particularly to the plaintiff’s knees) which she had suffered in the accident; and
(v)the work incident;
(b) That matters of credit would be raised “head on”;
(c) That the defendant would be relying upon the principles set out in Peak Engineering Pty Ltd & Anor v McKenzie.[1]
[1][2014] VSCA 67 (“Peak Engineering”)
The statutory scheme and legal principles
5The application is brought under the definition of “serious injury” contained in s93(17) of the Act which requires the plaintiff to prove that she has suffered a serious long-term impairment or loss of body function.
6The question of whether an injury is “serious” for the purpose of s93(17) is to be answered according to the narrative test laid down by the Full Court of the Supreme Court of Victoria in Humphries and Anor v Poljak:[2]
“… To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’? … .”[3]
(emphasis added.)
[2][1992] 2 VR 129 (“Poljak”)
[3]Poljak (ibid) at 140 per Crockett and Southwell JJ
7Crockett and Southwell JJ identified, in Poljak,[4] many disturbances are considerable, in the sense that they are “important or substantial” without being “very” considerable.
[4]Supra
8The weight to be attached to the plaintiff’s account of his or her pain and suffering will be affected by an assessment of the plaintiff’s credibility.[5] The plaintiff’s credibility is relevant also to the reliability of the medical evidence. The opinions of doctors depend on the credibility and reliability of the history given to them by a plaintiff.[6] Medical opinions by experts may be of reduced weight if the plaintiff is shown to be an inaccurate historian.
[5]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at 5, paragraph [12], citing Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 (“Dwyer”) at paragraph [8]; Sejranovic v Berkeley Challenge Pty Ltd (2009) VSCA 108 at paragraph [171]; Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143 at paragraphs [142[-[145]
[6]Dordev v Cowan & Ors [2006] VSCA 254 at paragraph [14] per Chernov JA (Maxwell P and Neave JA agreeing)
9As in this case, where the plaintiff, between the time of the subject injury and the Court’s assessment of its consequences, sustains a different or further injury which, itself, has relevant and continuing consequences, the Court must disentangle such consequences. Thus, the Court must decide whether the consequences of the subject injury are at least “very considerable”. For that purpose, it is necessary for the Court, so far as the evidence permits, to identify the consequences properly referrable to the subject injury and to exclude the consequences referrable to the subsequent injury.[7]
[7]Peak Engineering (supra) at paragraphs [1]-[2]
10When undertaking the required assessment, regard must be had to what is retained by the plaintiff as well as what is lost.[8] Where a plaintiff has successfully returned to alternative duties’ work, it will tend, in the absence of other relevant evidence, against the conclusion that the pain and suffering consequences are “serious”; however, a stoical plaintiff who puts up with pain and suffering should not be treated less favourably than another person who, being of less strength of character, simply resigns him or herself to his or her injury.[9] It is the evidence as a whole which must be considered.[10]
[8]Dwyer (supra) at paragraph [27], Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 (“Stijepic”) at paragraph [44]
[9]Dwyer (supra)
[10]Stijepic (supra) at paragraph [47]
Relevant background – pre-accident
11The plaintiff was born in China. After completing her secondary schooling, the plaintiff then completed a Bachelor of Education and additional studies in accounting and logistics. The plaintiff worked for approximately ten years in China, undertaking administrative work.
12In 2000, the plaintiff migrated to Australia with her then husband and daughter. The plaintiff came to Australia as a skilled migrant. The plaintiff’s son was born in Australia in 2002.
13Subsequent to migrating to Australia, the plaintiff completed a Diploma of Early Childhood Education.
14Prior to, at the time of and for a period of time subsequent to the accident:
(a) The plaintiff was in an abusive relationship with her then husband (“the relationship”);
(b) The plaintiff had suffered psychological distress and, at times, severe psychological illness as a consequence of the relationship.
15The plaintiff had suffered from back pain prior to the accident. In particular, the plaintiff had sought medical treatment for back pain in August 2013 and February 2014.
Relevant background – at the time of the accident
16At the time of the accident, the plaintiff:
(a) Was aged forty-four years;
(b) Worked three days per week with Good Start Early Learning Centre (“Good Start”). The plaintiff had commenced this employment in 2005;[11]
(c) Worked two days per week at the New Chinese Language and Culture School (“the language school”). The plaintiff had commenced this employment in 2007;[12]
(d) Did some casual tutoring at home; and
(e) Participated in a range of recreational and social activities which included:
(i)badminton
(ii)gym
(iii)walking the “Thousand Steps” in the Dandenongs.
[11]Defendant’s Court Book (“DCB”) 176
[12]Plaintiff’s Court Book (“PCB”) 18
The evidence
17The plaintiff relied upon three affidavits and gave viva voce evidence. She was cross-examined. The plaintiff also relied upon an affidavit sworn 22 February 2022 by her partner, Jose Todaro. In addition, both parties relied upon medical reports and other materials which were tendered in evidence.
The Plaintiff’s evidence – credit
18Given that the plaintiff’s evidence was put in issue from the outset of the case, it is appropriate that I make some observations and finding in respect to the plaintiff’s presentation and credit.
19It is relevant that the plaintiff had been an inpatient at the Epworth Hospital (September 2013) and the Delmont Hospital (July-August 2015) for management and treatment of acute psychiatric illness. In mid-2015, the plaintiff underwent a program of ten ECT treatments.
20It is noted from the January 2022 entries in the Box Hill Family Clinic (“the Box Hill Clinic”) clinical notes that the plaintiff continues to be “very anxious”[13] and have ongoing general practitioner contact for “[a]nxiety/[d]epression”.[14]
[13]DCB 80
[14]DCB 81
21In the course of giving her evidence, there were times when the plaintiff:
(a) was very teary and distressed;
(b) was very emotional and expansive in her response to questions;
(c) focused on telling her story/explaining her injuries rather than answering the questions put to her; and
(d) struggled with memory.
22Notwithstanding these observations, I conclude the plaintiff gave balanced and appropriate histories and explanations. Indeed, on numerous occasions, the plaintiff made appropriate concessions and gave evidence that was contrary to her own interests. Further, in general terms, the plaintiff’s evidence was consistent with the medical records.
23Overall, I found that the plaintiff was a credible witness.
Prior back injury
24The plaintiff had suffered back pain prior to the accident. That is clear.
25The defendant tendered the medical records the Box Hill Clinic.[15] These date from 26 April 2008 to 13 January 2022. The records show the plaintiff attending at the Box Hill Clinic for back pain on:
(a) 11, 20 and 21 August 2013; and
(b) 13, 14 and 17 February 2014.
[15]DCB 79-174
26The plaintiff, under cross-examination:
(a) conceded that she suffered some back pain prior to the accident;
(b) conceded that she had taken days off work prior to the accident due to back pain. At times, these days off were with medical certification;
(c) conceded that in February 2014, she wanted to swap from the “baby room” at Good Start to other areas because the “baby room” involved a great deal of heavy lifting;
(d) denied suffering from ten years of back pain;
(e) asserted that she would not have been able to undertake the unrestricted work which she was undertaking at the time of the accident if she was suffering ongoing back pain; and
(f) maintained that if she had been suffering long-term ongoing back pain prior to the accident, she would have “definitely quit” the work at Good Start.[16]
[16] T58, L24-25
27It was the plaintiff’s evidence, having acknowledged the attendances at the Box Hill Clinic in August 2013 and February 2014, that:
“Indeed in the years and months preceding the transport accident I was able to fully enjoy my hobbies and continue working my two jobs. I was very fit. I played badminton with a group of girls each fortnight and regularly trekked up the 1000 steps walk in the Dandenongs - often twice in one outing. I was a regular gym goer, lifting weights and undertaking boxing classes. I was a proficient skipper, a pastime I had done since my time in China where I was awarded the prize for the best skipper in my company.”[17]
I accept this evidence.
[17] PCB 119
28I find:
(a) that prior to the accident, the plaintiff had suffered some intermittent lower back pain;
(b) that post February 2014 through to the time of the accident and at the time of the accident, the plaintiff was:
(i)undertaking her normal work at both Good Start and as a language teacher; and
(ii)participating in a range of physically-demanding recreational and day-to-day activities.
The accident
29The accident was a high-impact collision. Indeed, there were two points of contact:
(a) the initial collision between the vehicles; and
(b) as a result of being shunted across the road, the plaintiff’s vehicle then struck a pole.
30The plaintiff was conveyed by ambulance to the Box Hill Hospital Emergency Department. The Emergency Department records note pain in the chest, right upper arm and left knee. The plaintiff, after being referred for x‑ray investigations and being kept for observation, was ultimately discharged home:
“- … with regular analgesia for soft tissue injury from seat belt
- GP review.”[18]
[18]DCB 185
31Following the plaintiff’s discharge from the Box Hill Hospital Emergency Department, she attended Dr Li, general practitioner, at the Box Hill Clinic, and Associate Professor Yang, adult and paediatric spine surgeon, at his clinic in Box Hill.[19]
[19]PCB 9 and DCB 152
32It was the plaintiff’s evidence that subsequent to the accident, she experienced pain in her lower back, neck, left knee, right knee, chest and right shoulder and arm. It was the chest and right shoulder injuries which were the main focus immediately after the accident. While the chest and right arm pain settled, it was the plaintiff’s evidence that she continued to experience pain in her lower back, neck, left knee and right knee.[20]
[20]PCB 9
Ongoing treatment and work
33The Box Hill Clinic medical notes record that in early 2015, the plaintiff was having neck and back problems. For example the consultation with Dr Li on 27 January 2015. Dr Li recorded:
“Nack (scil Neck) and back pain post the car accident.
Needs physiotherapy referral letter.”[21]
[21] DCB 152
34The plaintiff underwent a CT scan of her cervical spine on 14 February 2015. This revealed no relevant abnormality.
35The plaintiff underwent a CT scan of her lumbosacral spine on 17 March 2015. This scan was reported:
“CT LUMBOSACRAL SPINE
Clinical notes: Back pain for assessment.
Technique: Helical multi-slice scanning with multi-planar reformatting through the intervertebral disc spaces.
Findings: L1/2, L2/3 and L3/4 intervertebral discs are all normal in appearance. The L4/5 disc is also normal in appearance. L5/S1 disc does show some limited central disc protrusion with minimal thecal sac displacement. No extruded or sequestered disc fragment is detected at any level.
The vertebral bodies are normal in appearance and show normal alignment on the bone targeted imaging. Only limited degenerative sclerosis is seen in the mid and lower lumbar facet joints.
Conclusion: Disc degeneration at the L5/S1 level with only marginal encroachment upon the caudal thecal sac. No further abnormality is seen.”[22]
(My emphasis.)
[22] PCB 55
36The plaintiff underwent an MRI scan of her cervical spine on 23 March 2015. This was reported as being “unremarkable”.
37Turning to the plaintiff’s work capacity, it is noted that:
(a) the plaintiff returned to work on modified duties at Good Start after “a few months off”;[23] and
(b) did not return to her work at the language school.[24]
[23]PCB 10
[24]PCB 10
38Between March 2015 and March 2016, there were intermittent references to the plaintiff’s neck and back pain in the clinical notes of the Box Hill Clinic. For example:
(a) 31 October 2015 – “… stillhas (sic) neck and back pain”;[25] and
(b) 4 February 2016 – “Lower back pain post the car accident. Pain is worse while bend (sic) over the back. Back exam tender in right side of back.”[26]
[25] DCB 146
[26] DCB 145
39I accept these references as being indicative of the plaintiff having ongoing pain due to the subject injury.
40On 11 February 2016, the plaintiff underwent an MRI scan of her lower back. Under “Findings”, this scan was reported:
“… L5/S1 disc shows a very marginal annular disc bulge without evidence of significant thecal sac displacement … .”[27]
[27]PCB 62
41Under “Conclusion”:
“Very marginal disc degeneration at the L5/S1 level without evidence of thecal sac or nerve root compromise … .”[28]
[28] PCB 62
42On 16 February 2016, the plaintiff consulted Dr Li to discuss the MRI scan results. The records note, inter alia:
“FOr result od MRI Mild degenerative change in the L5 S1.
Result dsicussed.
Back pain management dsicussed.
Reveiw neck pain no much improved. Pain has been worse after work for 3-4 hours.
Have to lying down when at home.
… .”[29]
(sic)
[29] DCB 144
43There were no further entries referencing back or neck pain in the Box Hill Clinic records until early 2019.
44It is appropriate at this stage, to note the defendant’s submission in respect to injury and causation. It was asserted on behalf of the defendant that the lack of entries in the Box Hill Clinic records between February 2016 and early 2019 ought lead me to the conclusion that the subject injury had resolved and this was fatal to the plaintiff’s case. An analysis of what occurred in the period February 2016 through to early 2019 and, indeed, to the time of the work incident, is therefore necessary.
February 2016 to the work incident
45In May 2016, the Transport Accident Commission (“TAC”) organised for a worksite assessment to be undertaken by Rhiannon Tilley of Nabenet. The Nabenet report of 30 May 2016[30] noted, in respect to the barriers to the plaintiff’s return to work:
“Ms Gao reported restricted functional tolerances in standing, walking, negotiating stairs, driving, bending, lifting, carrying, pushing and pulling.”[31]
[30]PCB 105
[31] PCB 105
46At the time of the assessment, Ms Tilley recommended workplace modifications to accommodate the plaintiff’s functional restrictions.[32] These modifications included:
· Frequent communicated rest breaks
· Maximum of 45 minutes at a time working on the changing table
· Avoid lifting/carrying children where possible
· Alternate between sitting and standing on a frequent basis
· Perform regular stretches at work.
[32] PCB 104
47It was also noted in the Nabenet report that the plaintiff was having ongoing massage to help manage her pain.
48I accept, at the time of the Nabenet assessment, the plaintiff continued to suffer lower back pain and restriction. I also accept that the functional restrictions and modifications referred to in the Nabenet report related significantly, if not totally, to the subject injury.
49When challenged in respect to her lack of attendances with her general practitioners in the period between March 2016 and February 2019, it was the plaintiff’s evidence:
“Okay, because I did light duty in my child care centre and then I didn’t do language teacher any more, and then I manage, ah, like, I went to, ah, do the Pilate - the gym centre because doctor always, ah, suggest me to do the exercise for, ah, make my back, yeah, put the - build strength to the muscle, yeah, exercise. I did hydrotherapy. I got - I got a gym member there and also I had - always have a Voltaren at home and I bought many - not many, three or four massage machine at home. I think, yeah, it’s because I did light duty, I think is a better than, ah – than - - - .”[33]
(sic)
[33] T85, L8-19
50The plaintiff went on to depose:
“Yeah, I did light duty in child care, that not that bad, I still pain but I manage at home. I went to do Pilate. I went to do hydrotherapy. I’m a regular gym member and if I got pain, I use the, my son always gave me massage use Voltaren Gel and I’ve got massage machine at home. I bought specially for myself and I also take Voltaren. Why I didn’t see doctor because Voltaren is not prescription. I can go to the pharmacy to buy straight away.”[34]
I accept this evidence.
[34] T85, L23 ꟷ T86, L1
51On 4 March 2019, the plaintiff consulted Dr Huang, general practitioner, at the Box Hill Clinic on two occasions. On the first occasion, Dr Huang recorded:
“worse[n]ing lower back pain,
wors[e] as childcare teacher,
ask bout treatmenet option
Examination:
mild tenderness over the lower back musclesrestricted ROM to flextion
…”[35]
(sic)
[35] DCB 123
52On this occasion, under the heading “Management”, Dr Huang discussed:
· oral analgesic
· CT-guided injection
· Operation.
53Mobic and Endep were prescribed. A CT scan was ordered to investigate “worsening lower back pain”.[36]
[36]DCB 47
54Later, on 4 March 2019, the plaintiff again consulted Dr Huang. She enquired about the medication she had been prescribed. At that time, the plaintiff:
· Indicated a wish to go back to the gym to exercise
· Was advised to do swimming, sauna and spa
· Was told to wait for physiotherapy assessment to instruct on what kind of exercises she could perform.
55On 7 March 2019, the plaintiff consulted Dr Huang. Dr Huang noted the result of the CT scan, which was noted to show:
“At L5-S1, mild circumferential disc bulge with some osteophytosis is seen … .”[37]
[37] DCB 122
56On 14 March 2019, the plaintiff again consulted Dr Huang, who recorded, inter alia:
“lower back pain wish to see physio.”[38]
[38] DCB 122
57The plaintiff had a number of consultations with general practitioners at the Box Hill Clinic in June 2016.[39] Of particular note are:
[39] DCB 118
(a) Dr Chen’s notation of 1 June 2019:
“right back pain, shooting down to right buttock
MVA 2014, x‑ray lumbar no significant change.”
Mobic was prescribed.
(b) Dr Chen’s notation of 16 June 2019:
“Worsening back pian (sic)
CT showed L5-S1 disc bulging
keen to see surgeon
had physio but no improvement
… .”
58On 25 July 2019, the plaintiff consulted Dr Li. The records record:
“Will see spine SP for chronic back pain post a car accident.”[40]
[40] DCB 116
59On this occasion, a referral was made back to Associate Professor Yang, adult and paediatric spine surgeon.
60It was the plaintiff’s evidence that between 2016 and some five to six months prior to the work incident, her then director at Good Start had accommodated her lower back injury and consequential restrictions.[41] However, a new director, Rebekah Gillespie, was appointed some five to six months prior to the work incident.[42]
[41]T108, L6-24
[42]T109, L1-9
61The timing of the appointment of Ms Gillespie and the pressure on the plaintiff to undertake heavier work corresponds with the various entries noted in the Box Hill Clinic notes and referred to in paragraphs 51 to 69 of this judgment.
62Ms Gillespie wrote to the plaintiff’s general practitioner by letter dated 25 September 2019. This letter recorded, inter alia:
“It is our understanding that our employee, Shuang’s current condition impacts, or may impact, on HER ability to perform the inherent requirements of her role as a Floating Educator. Therefore Goodstart requests your further advice with regard to our employee’s condition, prognosis and work capacity, so that safe and suitable work arrangements can be implemented. … .”[43]
(sic)
[43] PCB 107
63The correspondence noted a background of back injury, limited neck movement, dizziness, back pain and knee pain.
64The plaintiff consulted Dr Li on 26 September 2019. Dr Li recorded, inter alia:
“Chronic back, knee and right ankle pain for years post car accident.
She has been treated by analgesia, investigation, rest, phsyo (sic) and see specialist.
Waiting for orthopaedic SP review and knee procedure.… .”[44]
[44] DCB 114
65Dr Li completed the questionnaire forwarded by Ms Gillespie. This report, which is dated 25 September 2019, advised:
“DIAGNOSIS, PROGNOSIS AND TREATMENT:
1. Please provide your diagnosis regarding the employee’s injury/illness/condition:
Both knees osteoarthrosis
Chronic lower back pain. MRI showed disc degeneration L5/S1
Right ankle full thickness tear of right ATFL.
…
4. Please advise of the employee’s prognosis and timeframe for recovery:
She has had chronic condition. Prognosis is unsure. Waiting for specialist review and management.
WORK CAPACITY ASSESSMENT:
…
5. Do you consider that the employee is currently fully fit to safely and capably perform the full inherent requirements of the position?
No.
…
8. Do you consider that the employee requires permanent work restrictions, or modifications to the position? If so please provide details of your recommendations for Goodstart’s consideration, and the reasons for these:
permanent work restrictions.”[45]
(My emphasis.)
[45] PCB 109-110
66As Mr Jens quite rightly submitted, on behalf of the defendant, this report made reference not only to the plaintiff’s back but also to her knees and ankle, and clearly raises issues of disentanglement.
67Importantly, Dr Li, in this 25 September 2019 report (that is, pre the work incident), identified that the plaintiff was suffering from “chronic lower back pain” (my emphasis).[46]
[46]PCB 109
68The report of Dr Li and the notes of the Box Hill Clinic are consistent with the plaintiff’s evidence of suffering ongoing lower back pain dating back to the accident.
69Given the submission made by the defendant in respect to the period between February 2016 and the work incident, it is appropriate for me, at this stage, to set out findings in respect to the state of the subject injury throughout this period. I find:
(a) the plaintiff was suffering from “chronic” lower back pain and restriction, and had been from the date of accident;
(b) that while the lower back pain was not noted in the general practitioner records between March 2016 and February 2019, I accept that the plaintiff was self-managing her condition by way of:
(i)Pilates;
(ii)gym exercises;
(iii)hydrotherapy;
(iv)the use of a massage machine/massages provided by her son;
(v)Voltaren medication; and
(vi)Voltaren Gel;
(c) the plaintiff, by reason of the subject injury, was:
(i)limited to modified duties at Good Start;
(ii)unable to return to her work as a language teacher; and
(d) the plaintiff had sought further treatment and advice from her general practitioners from early 2019 because of worsening back pain.
11 October 2019 – the work incident
70On 11 October 2019, the plaintiff suffered injury at work. This does not appear controversial. What is in issue is the nature and extent of this injury and the impact of this injury (if any) to this application.
71It is common ground that:
(a) the plaintiff lodged a WorkCover claim which was accepted; and
(b) the plaintiff remains in receipt of weekly payments of WorkCover benefits.
72On 15 October 2019, the plaintiff consulted Dr Xiao at the Box Hill Clinic. On this day, the records of the Clinic relevantly record:
“Reason for contact:
Back pain – acute on chronic.”[47]
[47]DCB 113
73Dr Xiao recorded, inter alia:
“She has chronic back pain and on 11/10/2019 4 :40pm
she was pulled by a 3.5 autistic boy after changing nappies and stoop and bended which mark her pain flare up …”[48]
[48] DCB 113
74The plaintiff was assessed by Associate Professor Yi Yang, adult and paediatric spine surgeon, on or about 12 December 2019. It should be noted that the referral for this consultation had been made by Dr Li prior to the work incident (see consultation notes of Dr Li dated 25 July 2019).[49] Associate Professor Yang, in his reporting correspondence to Dr Chen on 12 December 2019, reported:
“Shuang is 49 years old and works in childcare, with her work often involving lifting young children at work. She was involved in a motor vehicle accident a long time ago, and has had ongoing chronic back pain. The pain is usually in the lower lumbar spine and there is some radiation to right leg that seems to fit with the L5 dermatome. Her symptoms wax and wane, and of late they have been relatively mild; although previously it can get to the point that she is significantly affected by pain when she is walking or attending to everyday tasks. She finds bending particularly troublesome, which is a problem for her at work.
Clinically, Shuang had pain inhibition in her right leg secondary to some leg pain when she was doing plantar flexion. Otherwise, she was neurologically intact. I have reviewed her MRI scan, demonstrating disc degeneration at L4/5 and L5/S1 …
…
… I have said that given that there are currently no significant structural pathologies; we should continue with conservative therapy. We had an extensive discussion on how to maintain and protect her back in regards to safe lifting practices, keeping active with low impact aerobic exercises, as well as potentially exploring alternative therapies such as acupuncture or massage. I have provided her with an acupuncturist that I use routinely; who can hopefully provide her with some transient relief. I think she should avoid corticosteroids for now … .”[50]
(My emphasis.)
[49]DCB 116
[50] PCB 41
75The plaintiff subsequently attended Dr Chiang for acupuncture. The plaintiff first saw Dr Chiang on 13 January 2020. Dr Chiang provided two reports to the plaintiff’s solicitors. As submitted by the defendant, Dr Chiang’s reports are not helpful for the plaintiff’s case. In his first report, Dr Chiang advised, inter alia:
“The diagnosis, based on the above-mentioned history and clinical examination as well as the lx result, was thus quite clear, ie that of W/C low back injury with disc bulge. Her employment is the major, if not the sole contributing factor for her predicament.”[51]
[51] PCB 27
76Dr Chiang, in his second report dated 30 January 2022, when specifically asked about the accident-related component of the plaintiff’s back injury, advised:
“2. What is the effect on Ms Gao’s work do the injuries to her Spine and bilateral knees referable to the transport accident which occur[r]ed on 12/11/2014 have on her work capacity?
Again as she sustained an injury at work, which resulted in her low back injury/disc bulges I believe her work would be the primary contributor to her predicament. Her knee problem, resulting from a previous MVA, should probably be considered separately.”[52]
(sic)
[52] PCB 29
77Dr Chiang, in this second report, went on to detail:
“Unfortunately the patient has not been to my clinic since Nov. 2020 and has not even [been] in contact regarding her progress. Hence I am unable to answer any of the above. I am not at all clear what her clinical condition she is in.”[53]
[53] PCB 30
78The plaintiff re-attended Associate Professor Yang on or about 12 November 2020. At the time of this consultation, Associate Professor Yang reported:
“It has been a year since I last saw Shuang for her back pain, and we had decided to pursue conservative therapies with the expectation that she will have symptomatic improvement. Unfortunately, Shuang has had ongoing issues with her back as well as her lower limb, which has partially responded to conservative therapies including acupuncture and massage, as well as analgesics.
She has started to complain of newer right-sided leg pains, primarily affecting her in the L5 and S1 distributions, and there could be an element of mild lateral recess stenosis secondary to the degenerative disc bulge that was seen in her MRIs in November last year.”[54]
[54] PCB 43
79Subsequent to the 12 November 2020 consultation with Associate Professor Yang, the plaintiff continued to attend various doctors at the Box Hill Clinic. The medical notes make intermittent reference to her lower back injury. For example:
(a) 25 January 2021:
“still back pain.”[55]
[55] DCB 91
(b) 7 April 2021:
“steroid injection did help her 10 %.”[56]
[56] DCB 89
(c) 12 August 2021:
“still has chronic back pain.”[57]
[57] DCB 84
(d) 10 September 2021:
“apart chronic back pain hip pain as well.”[58]
(e) 13 January 2022:
“back pain worse
hold ing her back … .”[59]
(sic)
[58]DCB 83
[59] DCB 79
80The notes of the consultations at the Box Hill Clinic are consistent with the plaintiff’s complaint of ongoing lower back pain.
The Plaintiff’s bilateral knee injuries and other medical conditions
81The defendant, in the course of the case, submitted that many of the consequences complained of by the plaintiff were in fact caused by medical conditions other than the subject injury. Indeed, in the course of giving her evidence, the plaintiff did not reconcile from the proposition that other medical conditions did impact upon her level of function.
82Firstly, considering the plaintiff’s bilateral knee injuries. The plaintiff, in her affidavits and viva voce evidence, deposed that she had, and was still suffering, bilateral knee pain and restriction (left worse than right). As noted earlier in this judgment, the plaintiff’s knee injuries do not form part of the plaintiff’s application.
83As a result of the plaintiff’s knee condition, on 7 November 2016, she consulted Mr Chui, orthopaedic surgeon. At that time, the plaintiff was referred for MRI scanning.
84The MRI scan of the plaintiff’s knees revealed a lesion within the plaintiff’s left knee which may have been malignant. The plaintiff was referred to Mr Pang, an orthopaedic surgeon, who had a special interest in such lesions. Fortunately, no malignancy was confirmed.
85The plaintiff was reviewed by Mr Chui on 1 February 2017. At that time, Mr Chui recommended a left knee arthroscopy. The plaintiff has not undergone that procedure. The plaintiff has not consulted Mr Chui since 1 February 2017.[60]
[60]PCB 38
86Mr Jens spent significant time cross-examining the plaintiff in respect to her knee injuries and the consequences. The plaintiff made appropriate concessions in respect to the impact which her knee injuries have had on her and, in particular, her capacity to jog, play badminton or participate in boxing.
87The plaintiff was also cross-examined in respect to pain which she has complained of suffering in her ankle, hip and right wrist. The plaintiff conceded that she had suffered pain in each of her ankle, hip and right wrist and had sought medical advice in respect to these conditions.
88The plaintiff, when asked about which of her various injuries (ankle, right wrist, hip, knee or back) was the most debilitating to her, responded:
“Always back pain, back pain.”[61]
[61]T111, L21-24
89As noted earlier in this judgment, the plaintiff has suffered from psychological distress both before and subsequent to the accident. It was her evidence that since she had been in the relationship with her current partner, her psychological state had improved.[62] This is consistent with the report of Associate Professor Doherty, who assessed her on behalf of the defendant on 24 January 2022. Associate Professor Doherty concluded that whilst there was a pre-existing Depressive Disorder and recurrence of that disorder in 2015 and 2019, the recurrent Major Depressive Disorder had now remitted and was making a small but insignificant interference to the plaintiff’s work capacity. Likewise, Associate Professor Doherty concluded that the pre‑existing Depressive Disorder and aggravation did not represent a significant interference in domestic and leisure activities.
[62]T100, L24-25
90At this stage, before I undertake analysis of disentanglement of the plaintiff’s other medical conditions from the subject injury, it is appropriate that I review the balance of the medical evidence which has not been referred to, thus far, in this judgment.
The balance of the medical reports which have not been referred to thus far in this judgment
Plaintiff’s medico-legal reports
91The plaintiff relied upon medico-legal reports from:
(a) Mr Ash Chehata, orthopaedic surgeon, dated 26 August 2020 and 17 November 2021;[63]
(b) Dr Richard Sullivan, interventional pain specialist and specialist anaesthetist, dated 3 November 2021;[64]
(c) Professor Richard Bittar, neurosurgeon, dated 3 November 2021;[65] and
(d) Dr James Rowe, occupational physician, dated 20 January 2022.[66]
[63]PCB 67-77
[64]PCB 78-83
[65]PCB 84-88
[66]PCB 89-96
92Importantly, each of these experts were asked specifically to disentangle and identify the consequences flowing from the subject injury.
Mr Chehata
93Mr Chehata concluded, that as a result of the accident, the plaintiff suffered soft tissue injury and aggravation of cervical and lumbar spondylosis, as well as suffering interior patellofemoral pain in both the left and right knees. In respect to the plaintiff’s accident-related spinal injury, Mr Chehata noted that the plaintiff was restricted in her ability to twist, turn, bend or lift due to the ongoing neck and back symptoms. Mr Chehata noted that the plaintiff was restricted in her ability to run, stretch or squat due to ongoing anterior knee pain.
Dr Sullivan
94Dr Sullivan concluded that the plaintiff had suffered an aggravation of cervical spondylosis and aggravation of lumbar spondylosis as a result of the accident. Dr Sullivan concluded that these injuries meant that the plaintiff was unable to return to meaningful paid employment and had ongoing restrictions in her ability to engage in a range of domestic activities. Dr Sullivan considered those limitations to be permanent.
Professor Bittar
95Professor Bittar concluded that the plaintiff had, in the accident, suffered aggravation of cervical spondylosis with ongoing neck pain and aggravation of lumbar spondylosis with ongoing back pain. In respect to causation, Professor Bittar concluded that the accident was the cause of the plaintiff’s cervical and lumbar spine conditions and was also the cause of her ongoing pain, disability and treatment requirements. Professor Bittar noted the work incident had caused an aggravation; however, he considered the extent of that aggravation would now be considered “fairly minor”. Professor Bittar noted the injuries to the plaintiff’s spine which were referrable to the accident as being very significant in relation to her work capacity. Professor Bittar considered the plaintiff’s inability to continue working as a Chinese language teacher to be permanent. Professor Bittar noted that the plaintiff had been partially incapacitated for work as a childcare worker until the work incident.
96In respect to functional impairment, Professor Bittar, at page 5 of his report, concluded:
“As a consequence of her transport accident related spinal injuries on their own, and excluding any other physical conditions and/or any psychiatric condition, she is severely restricted in relation to employment or activities involving:
a) Pushing, pulling or lifting.
b) Repetitive pushing, pulling or lifting.
c) Bending, reaching, twisting or stooping.
d) Prolonged sitting, standing or walking.
e) Kneeling, squatting or crouching.
f) Using stairs, steps or ladders.
In my opinion, this incapacity will continue for the foreseeable future.”[67]
(My emphasis.)
[67] PCB 88
97In respect to social, domestic and/or recreational activities, Professor Bittar concluded:[68]
“As a consequence of her injury on its own and excluding any other physical conditions and/or any psychiatric condition, she is likely to remain severely restricted in relation to social, domestic and recreational activities into the foreseeable future … .”
(My emphasis.)
[68]PCB 88
Dr Rowe
98Dr Rowe was asked to assess whether the plaintiff’s spinal injury/lower back injury was referrable to the accident and to assess her accident-related work capacity. In respect to the subject injury, Dr Rowe concluded:
“As a result of the injuries sustained to her neck and lower back, she is not fit to return to her pre-injury employment as a childcare worker.
She is physically incapable of activities involving pushing, pulling, lifting, repetitive pushing, pulling or lifting, prolonged sitting or standing, walking long distances, twisting and stooping and bending.
She would be unable to work with infants and small children who may move and behave erratically and unpredictably. She would be unable to perform her pre-injury duties in a safe, reliable and consistent manner without considerable risk to herself, or the children in her care.
She would also be unable to return to work as a Chinese language teacher. She described this work as being on your feet all day, walking the classroom and attending to the students. She would be unable to manage this.
This is likely to be a permanent situation … .”[69]
[69] PCB 93-94
99Dr Rowe concluded, at the time of his assessment, that by reason of the subject injury, the plaintiff did not have the capacity for suitable or alternative employment, whether on a full-time or part-time basis.[70]
Defendant’s reports
[70]PCB 93 and 94
Dr Mei Xiao, general practitioner
100The defendant relied upon a letter of referral from Dr Xiao to Dr Chiang dated 11 January 2020[71] to support its case that the plaintiff’s current back problems are due to the work incident. This letter from Dr Xiao can be contrasted to:
(a) the report which Dr Xiao prepared dated 9 November 2020.[72]
(b) the various records in the Box Hill Clinic notes which have been referred to already in this judgment.
[71]DCB 5
[72] PCB 25
101There appears to be conflicting opinions expressed by Dr Xiao. I note the letter which the defendant relies upon is a referral for management (acupuncture) post the work incident. The document dated 9 November 2020 which the plaintiff relies upon is a more detailed report which better satisfies the Order 33 obligations.[73] I prefer the opinions set out in the 9 November 2020 report.
[73] County Court Civil Procedure Rules 2018, Order 33 and, in particular, Order 33.11
Dr Richard England, psychiatrist
102The defendant relied upon a letter from Dr England dated, 21 June 2018.[74] Dr England had limited contact with the plaintiff. It would seem that Dr England assessed the plaintiff primarily for the purposes of a report to the Department of Immigration (though there is some reference in his letter to the plaintiff’s ongoing medication regime). I do not find this letter of any particular assistance when contrasted to the balance of the evidence.
[74]DCB 7
Mr Terrence Saxby, orthopaedic surgeon
103The defendant relied upon two reports from Mr Saxby. They are dated 20 February 2020 and 21 May 2020. Both reports:
(a) post-date the work incident.
(b) were addressed to Allianz Australia Workers Compensation (Vic) Ltd, the WorkCover authorised insurer.
104At the time of the first report, Mr Saxby concluded that the plaintiff could return to modified or alternative duties and should be re-assessed in three months if she has not returned to work.
105Subsequently, Mr Saxby re-examined the plaintiff on 15 May 2020. In his second report, Mr Saxby referred to film which he had viewed. That film was not shown in the course of the trial. In this report, Mr Saxby concluded:
“I believe the diagnosis is lumbar spondylosis. This is an underlying pre-existing degenerate condition based on the investigations and the history of problems in 2014. However, I believe there has been one specific event at work which has aggravated the underlying condition.”[75]
(My emphasis.)
[75] DCB 74
106Mr Saxby went on to opine:
(a) “… it would be my opinion that the work related aggravation should be temporary …”; [76] and
(b) “I believe she should be able to return to modified pre-injury duties and hours.”[77]
[76]DCB 74
[77]DCB 75
107Mr Saxby provides support to the proposition put forward by Mr Stanley that the plaintiff’s ongoing impairment due to her spine/back injury is predominantly due to injury suffered prior to the work incident (and due to the accident).
Mr Gary Speck, orthopaedic surgeon
108Mr Speck examined the plaintiff on behalf of the defendant on 18 January 2022 and provided a report dated 14 February 2022.[78] Mr Speck, while accepting that the plaintiff suffered a soft tissue injury to her neck and lower back in the accident, concluded that:
“… She sustained soft tissue injuries to the neck chest left knee and low back at the time of the transport accident but these have resolved within 6 to 12 weeks of the transport accident with ongoing symptoms related to chronic pain syndrome/somatic symptom disorder, combined with avoidance behaviour. … .”[79]
[78]DCB 8-40
[79] DCB 36
109Mr Speck did not accept that the plaintiff had suffered any structural changes to the cervical and lumbar spine. Mr Speck considered the physical injuries sustained in the accident to have resolved. I do not accept that conclusion.
Conclusions – medical evidence
110I accept the opinions of the treating medical practitioners (particularly Dr Xiao and Associate Professor Yang) that the plaintiff has suffered “chronic back pain” since the accident. I do not accept the opinion of Dr Chiang, upon which the defendant relied.
111In respect to the medico-legal opinions, I prefer the opinions of Mr Saxby, Mr Chehata, Dr Sullivan, Dr Rowe and Professor Bittar over the opinion of Mr Speck. In particular, I accept the plaintiff has suffered an aggravation of cervical spondylosis and lumbar spondylosis as a result of the accident. I do not accept Mr Speck’s opinion that the plaintiff’s organic injury consequential to the accident resolved within six to twelve weeks. I find that the plaintiff suffers ongoing pain and restriction by reason of the subject injury.
Disentanglement
112The defendant submitted that it was not the subject injury which caused the plaintiff’s pain and suffering and/or economic loss consequences but rather:
(a) the plaintiff’s pre-existing spinal injuries;
(b) the consequences of the spinal injury suffered in the work incident;
(c) the plaintiff’s bilateral knee injuries, hip injury, ankle injury, wrist injury and/or ongoing psychiatric distress.
113Mr Jens maintained that it was these “other issues at play” which were the true cause of the plaintiff’s various restrictions and consequences.
114As set out by Maxwell J in Peak Engineering:[80] at paragraph [24] page 6:
“In a case of this kind, where two different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of the trial. This would seem to be an essential pre-condition to the task of deciding which of the pain and suffering consequences are attributable to which injury.”
[80] (supra) at 6, paragraph [24]
115This is not a case where the consequences flowing from the accident are such that no disentangling is necessary. There are pain and suffering and economic loss consequences potentially flowing from:
(a) the pre-existing spinal condition;
(b) the work incident;
(c) the plaintiff’s other injuries/illnesses, particularly to her knees.
116Mr Stanley referred me to various authorities which he submitted supported the proposition that the consequences of the work incident and the plaintiff’s other injuries (particularly the bilateral knee injury) do not preclude a finding of serious injury in respect to the subject injury. Particularly, I was referred to Dressing v Porter.[81] In that matter, Ashley JA noted:
“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.”[82]
[81][2006] VSCA 215
[82](Ibid) at 6, paragraph [47]
117Mr Stanley, in submissions, also referred me to AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz[83] in respect to the appropriate steps to be followed when disentangling separate injuries. I note, in particular, the observations made by the Court in that matter at paragraphs [30]-[35].
[83][2012] VSCA 60
118To draw a conclusion about the significance of the subject injury, I must analyse the whole of the evidence and assess the extent to which the work incident and/or the pre-existing back condition and/or the other injuries (particularly the knees) have impacted the plaintiff. This process is applicable to both the pain and suffering and economic loss aspects of the plaintiff’s case.
119Firstly, in respect to the pre-existing back condition, as set out in paragraph 28 of this judgment, I find that the plaintiff, at the time of the accident:
(a) had suffered previous intermittent lower back pain;
(b) was undertaking her normal duties at Good Start without modification and was working as a language teacher;
(c) was engaged in a range of physically demanding recreational activities and day-to-day activities;
120I do not accept that the plaintiff was suffering any relevant impairment to her spine at the time of the accident.
121Secondly, I find that as a result of the accident, the plaintiff suffered an injury to her spine by way of aggravation of lumbar spondylosis and cervical spondylosis. I accept that as a result, since the accident, the plaintiff has suffered chronic back pain and restriction. I also accept that the plaintiff has suffered, and continues, by reason of the subject injury, to have the functional restrictions consistent with the summary provided by Professor Bittar and referred to in paragraphs 96 and 97 of this judgment. I also find that, by reason of the subject injury, the plaintiff has suffered ongoing employment, social, domestic, recreational and day-to-day impairment.
122Thirdly, I accept the plaintiff has suffered some consequences flowing from her knees, hip, ankle, wrist, and psychological conditions. Dealing firstly with the economic loss consequences, I find:
(a) by reason of the subject injury alone, the plaintiff was unable to return to her work as a language teacher from the time of the accident; and
(b) by reason of the subject injury alone, the plaintiff, from the date of the accident through to the time of the work incident, remained restricted to modified/alternate duties at Good Start.
123In respect to the pain and suffering consequences, I acknowledge that subsequent to the accident, and as time progressed, the plaintiff’s other medical conditions (particularly the bilateral knee injuries) have featured in the plaintiff’s presentation and impacted upon her. I note the concessions which the plaintiff made in cross-examination in this regard.[84] These other medical conditions do compound the plaintiff’s restrictions in undertaking a range of activities of daily living (for example playing badminton or climbing stairs). However, I accept the plaintiff’s evidence that it is the subject injury which has caused, and continues to, independently of the other medical conditions, cause the plaintiff to suffer chronic pain and restriction with the consequential impact upon her activities of daily living.
[84]See for example T90, L1-28 and T95, L15-23
124Fourthly, in respect to the work incident, I find the plaintiff did suffer an exacerbation of her spinal injury. That exacerbation put the plaintiff off work. That is, the exacerbation took the plaintiff from working on modified duties at Good Start (as she had for the period 2015 to September 2019) to being certified off work. I note, however:
(a) the plaintiff’s attendances at the Box Hill Clinic from early 2019 to the time of the work incident and the history of worsening lower back pain;
(b) that the plaintiff had been referred to Associate Professor Yang for assessment of her spinal injury prior to the work incident;
(c) the opinion of Mr Saxby, who described the work-related aggravation as “temporary” and who concluded that the plaintiff was able to return to her pre-work incident duties and hours. That is, the plaintiff could return to a work environment similar to that which existed prior to the work incident;
(d) the opinions of Dr Sullivan, Professor Bittar, Mr Chehata and Dr Rowe, who were asked to “disentangle” the subject injury from other contributing factors and to provide an assessment of the consequences flowing from the subject injury alone; and
(e) the plaintiff’s evidence that the back pain has now returned to how it was prior to the work incident.[85]
[85]PCB 120
Conclusions in respect to the subject injury
125As outlined earlier in this judgment, I find the plaintiff has suffered, as a result of the accident, injury by way of aggravation of cervical spondylosis and lumbar spondylosis. I find that the plaintiff suffers, as a result of the subject injury, from the functional consequences, as outlined by Professor Bittar and referred to in paragraphs 97 and 98 of this judgment.[86] I find that the plaintiff suffers these consequences independent and separate from any pre-existing back condition or any exacerbation caused by the work incident. I accept the economic loss consequences set out in the opinions of Professor Bittar and Dr Rowe.
[86]PCB 88
Are the consequences to the Plaintiff of the subject injury “very considerable”?
126The starting point is that it is the plaintiff who has the onus to demonstrate the requisite level of consequence to satisfy the “serious injury” test.
127As noted earlier, in this judgment, I must consider the whole of the evidence in deciding this proceeding. I have had the benefit of all of the evidence on which the parties rely. I have also had the benefit of assessing the evidence of the plaintiff when in the witness box, remembering that the credit of the plaintiff is an important factor in the assessment of the “seriousness” of the consequences to her.
128Firstly, in respect to the pain consequences to the plaintiff resulting from the subject injury, I find:
(a) that the plaintiff has, since the time of the accident, and continues to suffer chronic lower back pain and restriction;
(b) that the plaintiff has used, and continues to use painkillers on a daily basis;
(c) that the plaintiff has, and continues to avail herself of other conservative treatment options.
129At the time of the accident, the plaintiff was aged forty-four years. The plaintiff has suffered chronic low back pain for a period of in excess of eight years. I accept that the plaintiff will continue to suffer ongoing low back pain in the long term.
130Secondly, the plaintiff has been restricted in her capacity to undertake domestic, social, recreational and day-to-day activities. I am conscious of the defendant’s submissions in respect of the impact to the plaintiff of her other injuries (particularly her knees). I accept that there are activities (for example walking the 1000 Steps in the Dandenongs), which the other injuries (particularly the plaintiff’s knees) would impact upon, or indeed, may preclude, the plaintiff from undertaking. However, it was the plaintiff’s evidence, and I accept, that as a result of the subject injury alone:
(a) she is restricted in her capacity to undertake gardening and shopping;[87]
(b) she would be prevented from walking the 1000 Steps in the Dandenongs;[88]
(c) her capacity to undertake housework is impaired;[89]
(d) she is restricted in her capacity to sit or stand for lengthy periods of time;[90] and
(e) she is prevented from playing badminton.[91]
[87]T110, L19-24
[88]T111, L18-20 and PCB 119
[89]T111, L25-31
[90]T112, L1-5
[91]PCB 119
131Thirdly, in respect to the work consequences, I accept that work is important to the plaintiff. Indeed, I find that the plaintiff has a strong work ethic. This is relevant to:
(a) the plaintiff returning to work on modified duties with Good Start; and
(b) her inability to return to work as a language teacher.
132I also accept that education and involvement in teaching is important to the plaintiff. This is apparent from:
(a) the plaintiff’s reference to her children’s educational achievements;[92]
(b) the study which she had undertaken prior to the accident;
(c) her evidence in respect to her work as a language teacher and the joy which it brought her;[93] and
(d) the plaintiff undertaking further study subsequent to the work incident.
[92]T110, L12-16
[93]T78, L5-6; PCB 119-120
133I accept the plaintiff’s evidence that she has been precluded from returning to working as a language teacher by reason of the subject injury.
134The plaintiff, prior to the work incident, had returned to work at Good Life. I accept that the plaintiff, from the time of her return to work after the accident to the time of the work incident, had been restricted to modified/alternative duties at Good Life. As set out by Nettle JA in Dwyer,[94] the fact that the plaintiff is stoic and had returned to work on modified/alternative duties, should not be something for which she is penalised.
[94]Supra
135I accept the plaintiff’s evidence that, by reason of the consequences flowing from the subject injury, she would be restricted to light/modified duties and very simple work in childcare.
136Referring to the plaintiff’s taxation returns for the year ended 30 June 2014, being the last completed financial year prior to the accident, the plaintiff had earned:
(a) Good Start – $28,922 gross; and
(b) Language School – $5,232 gross
137By reason of the plaintiff’s inability to return to work at the language school/tutoring, I accept that she continues to lose at least $100 per week. In addition to the pecuniary loss, as set out in Hooley v Transport Accident Commission,[95] the inability to work in one’s chosen field of employment from a young age is a very significant consequence. The plaintiff was aged forty-four years at the time of the accident. She has not returned to teaching at the language school/tutoring since that time. The plaintiff will have a further twenty to twenty-five years of being restricted in the type of work which she can perform. Particularly, the plaintiff is precluded from working in her favourite job as a language teacher.
[95][2019] VSCA 263 at paragraphs [50]-[51]
138It is well established that I am required to determine whether the pain and suffering consequences, in combination with the pecuniary disadvantage consequences, satisfy the “serious injury” test (see for example Watapaldeniya v Transport Accident Commission[96] and Thapa v Transport Accident Commission.)[97]
[96][2022] VSCA 59 at paragraph [39]
[97][2021] VSCA 239
Conclusion
139As it should be evident from these reasons, this is a complex and complicated case.
140Consideration of the whole of the evidence, in my view, tends to the conclusion that the plaintiff suffers consequences from the subject injury which are “very considerable” in terms of pain and suffering and economic loss.
141Therefore, for the reasons given, leave is granted to the plaintiff to a commence common law proceeding for injury suffered in the accident.
142I shall hear from the parties as to the consequential orders to be made.
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