Graham, Denis Marianne v Specialty Fashion Group Ltd
[2009] VCC 1785
•19 November 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES-COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-05396
| DENISE MARIANNE GRAHAM | Plaintiff |
| v | |
| SPECIALTY FASHION GROUP LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16 November 2009 |
| DATE OF JUDGMENT: | 19 November 2009 |
| CASE MAY BE CITED AS: | Graham, Denis Marianne v Specialty Fashion Group Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1785 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – s.134 AB serious injury – application in respect of pain and suffering consequences of injury.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J A Jordan SC with | Slater & Gordon Ltd |
| Mr M A Nightingale | ||
| For the Defendant | Mr P D Elliott QC with | Herbert Geer |
| Mr I S Gourlay | ||
| HIS HONOUR: |
1 In this proceeding, the plaintiff seeks leave to commence a proceeding claiming damages in respect of the pain and suffering consequences of an injury occasioned to her low-back in the course of her employment with the defendant on 8 March 2004 when she fell from a ladder which I will refer to as “the incident”.
2 The only issue in the proceeding relates to the question as to whether the consequences to the plaintiff of the impairment of the function of her low-back are such that they are, when judged by a comparison with other cases in the range of possible impairments of body function, fairly described as being “more than significant” or “marked”, and as being “at least very considerable”.
3 There is no issue in the proceeding that as the result of the incident, the plaintiff suffered an aggravation of a pre-existing degenerative condition in her lumbar spine which has resulted in a posterio central protrusion of her L5-S1 disc.
4 The injury has been variously described in a number of medical reports tendered by the parties to the proceeding as:
(i) A lumbosacral disc lesion with nerve root involvement;1 (ii) A lumbosacral disc prolapse;2 (iii) A central disc protrusion which extended laterally to involve the left S1 nerve root with mild displacement.3 1
This description was given to the plaintiff’s condition by Dr Andrew Miller who assessed the plaintiff on 15 April 2009 on behalf of the defendant.
This description was given to the plaintiff’s condition by Mr Michael Polke who assessed the plaintiff on 23 June 2009 on behalf of the defendant.
This description is given to the plaintiff’s condition by Mr S Schofield who was retained by the plaintiff’s solicitors to undertake a medico-legal examination of the plaintiff and who assessed the plaintiff on 4 September 2009.
5
There was no issue in the proceedings, that having regard to the persistence of her symptoms following the incident, there is little prospect of the plaintiff recovering from the effect of the injury to her low back and that she faces the possibility of her symptoms increasing with the passage of time. In this regard, I refer to and rely upon the reports of Mr Schofield dated 4 September 2009; Mr Polke dated 23 June 2009; and Mr Neil Phillips, the plaintiff’s general practitioner, dated 13 December 2007.
6
The defendant’s position with respect to the application is that the plaintiff’s impairment of body function does not satisfy the definition of serious pursuant to the provisions of the Accident Compensation Act 1985 for the purpose of establishing the entitlement of the plaintiff to commence a proceedings at common law claiming pain and suffering damages.
7
The plaintiff was born on 18 June 1947 and is presently sixty-two years of age. Before she sustained her injury described herself as being a keen gardener who was interested in interior decorating. She was active in her relationships with her adult children and her grandchildren and enjoyed an active social life
8
In an affidavit sworn 25 July 2008, and in the course of her evidence before me the plaintiff said that her injury has had the following effects upon her life:
•
She continues to suffer from pain and discomfort in her back which is present most of the time and on occasions can be severe and extend to her legs. The plaintiff described this pain as getting worse as time progresses;
•
Her back pain increases if she sits or stands for long periods of time or if she bends or twists her spine;4 Whilst no specific evidence is available
1
In this respect, Mr Miller recommends that the plaintiff should avoid static postures such as sitting or standing in the same position for more than forty-five minutes at a time – Plaintiff’s Court Book (“PCB”) 45.
as to the plaintiff’s tolerance in this regard, the evidence on this issue of Mr Andrew Miller who recommends that the plaintiff should avoid static postures such as sitting or standing in the same position for more than forty-five minutes at a time – in my opinion provides a good indication of the plaintiffs likely tolerance in this respect and is consistent with other evidence as to the impact of the plaintiffs symptoms upon her level of activity .5
•
The plaintiff described activities such as bending or twisting as aggravating the condition in her spine and said that she had suffered many flare-ups of back pain since the incident;
•
The plaintiff deposed that her symptoms prevented her from having a restful sleep pattern and that she was able to sleep only for a few hours at a time, and further that her back pain could wake her and keep her awake;
•
The plaintiff said that her back pain impaired her ability to carry out the duties required of her as a manager of a ladies fashion shop. Whereas she had always been an independent person, she was now required to rely on her staff to help her perform her work duties and this caused her to feel that she was a burden. She described feeling embarrassed and frustrated that she was now dependent upon her work staff to assist her;
•
Whilst the plaintiff was able to maintain her full-time employment until April of this year, she has since that time reduced her working week to four days per week at the suggestion of her doctor. Her working pattern is now to work on Mondays and Tuesdays for 7.5 hours on each day, to take Wednesdays off for the purpose of recuperating, and to work on Thursdays and Fridays. Whilst the plaintiff said that she intended to
1
T 16
continue working to age 65, I am satisfied that the reduction in the ability to work a full time week is a matter of considerable significance to her and that it has had an adverse effect upon her sense of self confidence and independence.
•
The plaintiff said that activities such as gardening were virtually precluded to her,6 It was the plaintiff’s evidence that any activity involving bending exacerbated her symptoms, that her activities in the garden were now restricted to occasional light weeding, and that her garden had been modified so that it required less work;
•
The plaintiff deposed that the injury to her lumbar spine had placed a strain on her relationship with her husband and had affected their sexual relationship. She said that she relied on her husband to do many of the household chores which she undertook before her injury. She described an inability to undertake any activity which involved bending without aggravating her symptoms and that she had particular difficulty with activities such as vacuuming, mopping and cleaning at low levels
•
The plaintiff described her social life as having deteriorated. She said she avoided going out to dinner because of her inability to sit for long periods of time. She said that she had lost contact with many of her friends and had lost confidence in herself;
•
The plaintiff had a particular interest in horse riding. At the time of the incident she owned a horse and rode regularly. The plaintiff said that whilst she continued to own a horse, she had given up horse riding since the accident as horse riding caused her pain while she was involved in the activity and caused an exacerbation of her symptoms in the days
1
It was the plaintiff’s evidence that any activity involving bending exacerbated her symptoms and that her activities in the garden were now restricted to occasional and light weeding.
following her involvement in that activity.7 In considering whether the pain and suffering consequences of the impairment to the plaintiff’s lumbar spine can be judged as being more than “significant” or “marked” and as being “at least very considerable” when judged by a comparison with other cases in the range of possible impairments of body function, it is appropriate that I indicate my impression of the plaintiff as a witness.
9 The plaintiff presented as a truthful and accurate historian. No attack was made upon the plaintiff’s credit or her reliability. It was not suggested that the plaintiff had in any way exaggerated or overstated her disability or the consequences of the accident upon her life and lifestyle. In these circumstances, I accept the totality of the plaintiff’s evidence as set out in her affidavit and her viva voce evidence as presenting a true and accurate picture of the effect of her injury upon her.
10 I am satisfied that the injury has impacted adversely and in a significant way upon many aspects of the plaintiff’s life. Notwithstanding that some five years have passed since the accident, the plaintiff described a continuing need to make use of medication in the form of Tramal, Panadeine Forte and Mobic. Her symptoms have limited her ability to engage in housework and have effectively curtailed any ability to engage in productive gardening. The plaintiff’s personal relationship with her husband has been adversely affected, as has her ability to sleep. The plaintiff’s evidence that her social life had deteriorated by reason of her symptoms of back pain is supported by the medical evidence given by Mr Miller, who assessed the plaintiff on behalf of the defendant, that the plaintiff should avoid sitting or standing in a static posture for more than forty-five minutes at a time. Further the plaintiff’s evidence as to her restrictions in lifting and bending is consistent with the
1
The plaintiff’s evidence, both given viva voce and contained in her affidavit dated 25 July 2008, was not the subject of real challenge in the course of this proceeding.
opinion of Mr Miller that she should avoid lifting weights in excess of 5 kilograms. These restrictions, imposed by Mr Miller upon the plaintiff’s activity levels, which I accept as being appropriate, are such that they preclude the plaintiff from enjoyment of activities many of the activities of daily life including those as simple as attending the cinema or lifting and playing with her grandchildren.
11 The plaintiff was recently referred by her general practitioner to Mr Peter Turner, an orthopaedic surgeon, for the purpose of investigating whether surgery was an option for the management of her symptoms. Whilst in a report dated 9 November 2009 Mr Turner expressed the opinion that surgery was not indicated for the management of her condition, I accept the submission made on behalf of the plaintiff that the referral to Mr Turner by the plaintiff’s general practitioner is a good indication of the continuing and very significant impact which the plaintiff’s symptoms are having upon her life.
12 Although Mr Turner excluded surgery as a treatment option, I note that Mr Michael Polke opined, in June 2009, that should the plaintiff’s symptoms worsen she may require a lumbosacral discectomy and fusion8 and that similar statements were made by Mr Andrew Miller who examined the plaintiff on 21 April 20099 and Mr Schofield who examined the plaintiff on 4 September 2009.10 Whilst I accept that the prospect of the plaintiff undergoing surgery is unlikely in the, these opinions support, in my view, the significance of the condition which is present in the plaintiff’s low-back.
13 In my opinion, having regard to the impact which this injury has had upon the many significant aspects of the plaintiff’s life to which I have previously referred, including
1
PCB 50
PCB 45
PCB 29
•
The fact that she continues to suffer from symptoms of pain sufficient to make use of prescription strength medication
• The adverse impact of her condition upon –
ƒ her relationship with her husband, family and friends, ƒ her ability to engage in the social and recreational activities which
she pursued prior to her accident,ƒ her inability to undertake all of the duties required of her in her
employment and to work on a full-time basis,
I am of the opinion that it is appropriate to describe the pain and suffering consequences of the plaintiff’s impairment of function of her low-back as being more than “significant” or “marked” and as being “at least very considerable” when judged by a comparison with other cases in the range of possible impairments or losses of a body function.
14 In the circumstances, I am satisfied that the plaintiff is entitled to an order granting her leave to commence proceedings claiming pain and suffering damages by reason of the injury suffered by her in the course of her employment with the defendant on 8 March 2004.
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