Hamilton v Sigma Pharmaceuticals Limited
[2015] VCC 432
•17 April 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-05870
| SANDRA HAMILTON | Plaintiff |
| v | |
| SIGMA PHARMACEUTICALS LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 April 2015 | |
DATE OF JUDGMENT: | 17 April 2015 | |
CASE MAY BE CITED AS: | Hamilton v Sigma Pharmaceuticals Limited | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 432 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application/physical injury to the low back – range case – whether statutory definition of “serious injury” has been satisfied
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(a)
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Judgment: Leave granted to the plaintiff to bring common law proceedings for pain and suffering damages only arising from an injury to her back as a result of her employment with the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Chancellor | Slater & Gordon Ltd |
| For the Defendant | Mr C A Miles | Lander & Rogers |
HIS HONOUR:
1 This is an application brought by Originating Motion dated 13 November 2013 by the plaintiff applying for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injury suffered by her arising out of her employment with the defendant and, more particularly, on 7 June 2011.
2 The plaintiff seeks leave to bring proceedings for pain and suffering damages only. The plaintiff claims that she has suffered a low-back injury during the course of her employment with the defendant and seeks to bring proceedings to recover damages for pain and suffering
3 The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined.
· Exhibit P1, the Plaintiff’s Court Book (“PCB”), pages 17–24 inclusive and pages 27–48 inclusive.
· Exhibit D1, the Defendant’s Court Book (“DCB”), pages 7–23 inclusive.
4 This application is brought under the definition of “serious injury” contained in s134AB(37)(a) of the Act which requires the plaintiff to prove that she has suffered a permanent serious impairment or loss of body function. The loss of body function in this case is to the plaintiff’s lower back.
5 Mr Miles, on behalf of the defendant, identified the issue in this application as being a “range case”. To quote Mr Miles, he stated:
“She has some low level of back pain that doesn’t quite get her there.”[1]
[1]Transcript (“T”) 8
6 The credibility of the plaintiff is not an issue in this case.
The statutory scheme
7 The application is brought under the definition of “serious injury” contained in s134AB(37)(a) of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
8 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that she has suffered a compensable injury; that is, an injury which she suffered arising out of or in the course of her employment on or after 20 October 1999.[2]
[2]Section 134AB(1) of the Act, and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[3]
[3]Barwon Spinners, at paragraph 33
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities.
(d) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being “more than significant or marked”, and as being “at least very considerable”.
(e) In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in sub-section (38). I have applied the principles set forth therein in reaching my conclusions in this application.
9 I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and, in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s background
10 The plaintiff was born in 1958 and is currently fifty-six years old. The plaintiff is a married woman and has two children and three grandchildren. The plaintiff currently lives with her husband on a half-acre block in Gippsland.[4]
[4]PCB 17
11 The plaintiff was educated at high school until she was about fifteen years of age. Upon completing school, the plaintiff had worked in and out of data-entry and office-type employment, including some periods of work during the course of her pregnancies with her two children.[5]
[5]PCB 17
12 The plaintiff commenced employment with the defendant in February of 2000 in the role of a pricing clerk.[6]
[6]PCB 17
13 In October 2007, the plaintiff reduced her hours to part-time employment working approximately 32 hours per week as a data-entry clerk.[7]
[7]PCB 17
14 The plaintiff remained in that employment until her injury.
Injury with the Defendant
15 The plaintiff sets out the circumstances of her injury with the defendant in her affidavit dated 10 July 2013 in the following manner:
“I was injured at work on 7 June 2011. I was walking when I tripped on a power cord that was lying on the ground. I fell against the wall and then onto the ground. I felt severe pain in my right hip area and my right shoulder. I was assisted by some co-workers and given some ice to apply to my hip. A coworker then drove me to a doctor who prescribed me Panadeine Forte and Mobic, referred me for an x-ray and certified me unfit for work.
Over the next day or so I began experiencing pain in my lower back and some bruising appeared in that area. The pain in my right hip improved over the next few days but the pain in my lower back became more severe. My mother came and stayed with me and helped me with the house work as I was in too much pain to do it.
I returned to see the GP on 14 June 2011 and was again certified unfit for work. I was referred for an x-ray to my lower back and prescribed Voltaren and Panadeine Forte.”[8]
[8]PCB 18, paragraphs 4, 5 and 6
16 The defendant does not dispute or challenge the description of the work accident given by the plaintiff in this case.
Medical treatment received by the Plaintiff consequent upon her injury
17 The plaintiff was taken from her work to see the defendant’s doctor, Dr Wei Lyn Fah. On her initial attendance on Dr Fah on 7 June 2011, the initial complaint by the plaintiff was in relation to her right shoulder and right hip. The plaintiff’s pelvis and right hip were x-rayed and showed no bony injury. Dr Fah prescribed the plaintiff with Mobic, 15 milligrams, and Panadeine Forte for pain.[9]
[9]PCB 29
18 The plaintiff returned to Dr Fah on 14 June 2011 and was complaining at that time of more localised pain to her lower back. Dr Fah noted muscle spasm to the plaintiff’s back at that time. An x-ray of the plaintiff’s back was performed and showed no acute injury. Dr Fah changed the plaintiff’s medication at this consultation from Mobic to Voltaren, and continued with the medication of Panadeine Forte.[10]
[10]PCB 29
19 The plaintiff continues to receive treatment from her own general practitioner, Dr Ruth Johnston. The plaintiff attended upon Dr Johnston after the initial treatment by Dr Fah. The plaintiff currently is medicated for pain by the intake of Nurofen tablets, twice daily, and Panadol Osteo, six tablets a day. Dr Johnson also prescribes Panadeine Forte for more serious pain symptoms which result from activity by the plaintiff.[11]
[11]PCB 33A
20 The plaintiff received physiotherapy treatment from Mr Daniel Porter. Her original treatment commenced on 17 June 2011 for right-sided lumbar pain. The plaintiff continued with physiotherapy treatment until 1 August 2011.[12]
[12]PCB 34
21 On 2 August 2011, the plaintiff had an MRI scan of her lower back. The MRI scan was performed because of complaints by the plaintiff that she was having pain radiating down into her right buttock and her right leg.[13] Relevantly, the MRI scan was performed, and the conclusion set out in the report of that scan is as follows:
[13]PCB 18
“CONCLUSION:
1. …
2.Small central protrusion at L3/4 results in mild central canal stenosis.
3.Moderate bilateral facet arthropathy at L4/5 results in mild central canal and mild bilateral neural exit foraminal stenosis.”[14]
[14]PCB 28
22 The plaintiff was then referred by her general practitioner to Dr David Vivian, pain medicine specialist. Dr Vivian first examined the plaintiff on 22 September 2011.[15]
[15]PCB 37
23 Dr Vivian performed a right sacroiliac joint and ligament injection on the plaintiff on 13 October 2011. On review of the plaintiff on 3 November 2011, Dr Vivian noted that the injection had eradicated the buttock pain but had only given 50 per cent relief to the plaintiff’s back pain. Dr Vivian encouraged the plaintiff to remain as active as possible.
24 The plaintiff was then prescribed Cymbalta to assist her with her depressive symptoms by her general practitioner in November 2011.[16] The plaintiff no longer takes the Cymbalta medication.
[16]PCB 19
25 On 25 November 2011 and 2 December 2011, the plaintiff was treated by Dr Vivian with medial branch blocks to the right L3-L4-L5-L6 and S1 levels of her lower back. These nerve blocks were performed by Dr Robert Gassin, musculoskeletal physician, under the supervision of Dr Vivian.[17]
[17]PCB 40
26 On 30 January 2012, Dr Vivian performed a radiofrequency neurotomy upon the plaintiff’s lower back.[18]
[18]PCB 40
27 On 17 May 2012, Dr Vivian administered an injection of Xylocaine and Celestone to the plaintiff’s right sacroiliac joint region.[19]
[19]PCB 42 and PCB 19
28 Dr Vivian continued to see the plaintiff until 9 August 2012, when he discharged the plaintiff back to the general practitioner, Dr Johnston’s care, with the advice to the plaintiff to be active and to take pain medication, including Panadeine Forte as was necessary. At that time of referral, the plaintiff was prescribed up to five Panadeine Forte tablets per day.
29 The plaintiff has, since August 2012, been managed by her general practitioner, Dr Johnston, for pain relief and support.
Medical opinions
The Plaintiff’s medical experts
Dr Wei Lyn Fah, General Practitioner
30 Dr Fah prepared a report dated 7 August 2012 in respect of this application. Dr Fah examined and treated the plaintiff on two occasions: 7 and 14 June 2011. I note in his report he refers to the date as 2012. I think that is a typographical error.
31 Dr Fah’s involvement with the plaintiff was over a short period of time. On the first treatment on 7 June 2011, Dr Fah was concentrating on the complaints of the plaintiff relating to her right shoulder and right hip at that time. On the second occasion on 14 June 2011, the plaintiff was complaining of localised lower back pain, particularly over the L4-L5 area on her right side. Dr Fah had x-rays of the lumbosacral spine performed on that day, which did not show any acute injury. He prescribed the plaintiff with Voltaren and Panadeine Forte.
32 In his report, Dr Fah diagnosed the plaintiff as suffering from soft-tissue injury to her right hip and shoulder, and also of low back pain.[20]
[20]PCB 29
Dr Ruth Johnson, General Practitioner
33 Dr Johnson prepared three reports in this proceeding, dated 4 September 2012, 18 June 2012 and 12 April 2015.
34 In the first two reports, Dr Johnson diagnoses the plaintiff as suffering from chronic low-grade back pain as a result of the aggravated underlying lumbar disc degenerative disease. Dr Johnston noted that the plaintiff suffered from unexpected exacerbations of her pain levels in her lower back.
35 In her final report dated 12 April 2015, Dr Johnston states that over the last two-and-a-half years, she has treated the plaintiff. She notes that the plaintiff continues to suffer from chronic daily upper lumbar back pain which radiates to her right sacroiliac joint. Dr Johnston noted that the plaintiff’s back pain varied in intensity from 4 to 5 out of 10 to 8 out of 10. The plaintiff continued to take Nurofen tablets and Panadol Osteo on a daily basis. On occasions when the pain was more severe, the plaintiff was prescribed Panadeine Forte.
36 Dr Johnson concluded:
“… [The plaintiff’s] symptoms have remained unchanged over the last 2 1/2 years. In the future, I would expect a further deterioration in her condition, as her injury in 2011 aggravated underlying lumbar spine degenerative changes.”[21]
[21]PCB 33A
Dr David Vivian, Pain Medicine Specialist
37 I have previously set out the series of treatments given by Dr Vivian to the plaintiff in these Reasons. Dr Vivian prepared a report dated 22 October 2012 for this application.
38 It is clear from Dr Vivian’s letter dated 17 May 2012 to Mr Hooper from the defendant company that he had a very strong view supportive of the plaintiff’s situation.
39 Dr Vivian has treated the plaintiff with radial branch blocks and radiofrequency neurotomy treatment. His conclusion as to the condition of the plaintiff is as follows:
“As a result of a fall at work on 7 June 2011 when she tripped over a cord and fell onto her right posterolateral hip, she has developed chronic pain. It appears from the results of radiofrequency treatment that she has at least pain related to the lower lumbar facet joints and the right sacroiliac joint.
…
These types of injuries often do not recover, and it is likely that she will be left with a permanent incapacity.
…
She has therefore, in my view, sustained a permanent problem as a result of the fall. The injury sustained at the sacroiliac facet joints will cause problems over the years and limit her enjoyment of life. She may need treatment, to a varying extent, over her lifetime.”[22]
[22]PCB 44
Associate Professor Bruce Love, Orthopaedic Surgeon
40 Professor Love examined the plaintiff for medico-legal reporting purposes and prepared a report dated 17 September 2014.
41 Professor Love summarised his opinion as follows:
“I am of the view that this woman has a lumbar disc injury as a consequence of the fall she described on 07.06.2011.
Her prognosis is guarded. It appears that she has had appropriate and reasonable treatment to this point and that there are no other options for treatment open to her in my opinion. I am not of the opinion that there is an operable lesion present. As such, the current condition is likely to continue into the foreseeable future.”[23]
[23]PCB 46
42 Professor Love went on to confirm that the appropriate treatment for the plaintiff was ongoing pain-relief medication combined with intermittent physiotherapy and a home-based self-managed exercise program.[24]
[24]PCB 47
The Defendant’s medical experts
Mr Clive Jones, Orthopaedic Surgeon
43 Mr Clive Jones examined the plaintiff on behalf of the defendant for medico-legal reporting purposes and prepared four reports in total, dated 10 November 2011, 7 December 2011, 8 December 2011 and 28 February 2012.
44 The first report dated 10 November 2011 is the most comprehensive and significant report prepared by Mr Jones. The subsequent reports relate to specific questions and issues about the plaintiff’s capacity to travel and or work.
45 Mr Jones noted that at the time of his examination of the plaintiff, she was regularly taking Panadeine, Panadol Osteo and Endep at night time.
46 Mr Jones described the plaintiff as a pleasant lady who seemed to be, in every way, genuine.
47 Mr Jones noted that the MRI investigation disclosed:
“… There does appear to be early desiccation at the L3-4 and L4-5 levels, consistent with her age. There is no evidence of disc herniation or nerve root compression.”[25]
[25]DCB 8
48 In Mr Jones’ opinion, the plaintiff’s incident at work appears to be an aggravation of the degenerative changes in her lower back.[26]
[26]DCB 8
49 In Mr Jones’ opinion, there was no reason why the plaintiff would be unable to return to work on the basis of a 32-hour week.[27]
[27]DCB 14
Associate Professor Anthony Buzzard, General Surgeon
50 Professor Buzzard examined the plaintiff on behalf of the defendant for medico-legal reporting purposes and prepared a report dated 30 May 2013.
51 Professor Buzzard noted that the plaintiff had been treated by Dr Fah and continued to be treated by Dr Johnson on an average every two to three months. He also had noted the treatments by Dr David Vivian at the Metro Spinal Clinic.
52 At the time of his examination on 15 May 2013, Professor Buzzard noted that the plaintiff continued to take Panadol Osteo at the rate of six per day; Panadeine Forte, averaging four per day, and Nurofen, four per day, to manage her pain. He noted that the plaintiff had no other form of treatment at that time.[28] Professor Buzzard noted that the plaintiff’s pain was in the low back. He stated that at that time, the plaintiff had resumed her work hours of 32 hours per week, spread over five days.
[28]DCB 16
53 Professor Buzzard assessed that the plaintiff had an aggravation of her previous degenerative disease in her low back as a result of the work accident. He noted that the plaintiff had had substantial treatment in respect of her low-back region and that it was currently now in the form of medication for pain relief. He accepted that the plaintiff did not have any pre-existing symptoms arising from her low back and hence the current symptoms suffered by the plaintiff were as a result of the injury at work.[29]
[29]DCB 18-19
Conclusion of the medical evidence
54 Based on all the medical evidence in this case, it is clear that the plaintiff has suffered an aggravation of a pre-existing degenerative condition in her low back. The plaintiff’s symptoms have come on since the incident at work and as a result, the current complaints are attributable wholly to the work accident. Each of the medical practitioners accept that the plaintiff is properly treated by the use of medication to ameliorate the effects of pain that she suffers in her lower back. Each of the medical practitioners have noted that the pain interferes with the plaintiff’s sleep.
Credit of the Plaintiff
55 It was made clear by defendant’s Counsel, Mr Miles, at the commencement of the hearing, that the plaintiff’s credit was not in dispute. Mr Clive Jones, who saw the plaintiff on behalf of the defendant, described the plaintiff as a pleasant lady who seemed to be, in every way, genuine. I accept that Mr Jones has properly assessed the plaintiff and that she is a genuine person.
56 I accept that the plaintiff is a person who is doing the best she can to get on with her life, including enjoying her time with her grandchildren and trying to remain as active as possible for as long as she can. I accept the plaintiff is a person who could be properly described as having a stoical disposition.
Consequences
57 The plaintiff has sworn two affidavits, dated 10 July 2013 and 18 February 2015, in support of her application for serious injury.
58 The plaintiff sets out the consequences of the injury to her, in particular the pain and sleep interruption, as a result of the pain in her low back.
59 In her second affidavit, consistent with my assessment of the plaintiff as being a stoical person, the plaintiff states that the condition of her low back has improved slightly over time.[30] In her evidence, the plaintiff stated that her level of pain and ability to be mobile has now plateaued.[31]
[30]PCB 22
[31]Transcript (“T”) 28
Sleep
60 The plaintiff gave evidence that her sleep has been interrupted as a result of the pain in her back. The plaintiff had been initially prescribed Endep to assist her in getting to sleep, but she ceased taking that medication as it left her “hung over”.[32] In her evidence, the plaintiff was unsure how long she had persisted with the use of Endep but stated that she was, in general, afraid of being addicted to drugs, and did not want to become dependent upon them.[33]
[32]PCB 18
[33]T11
61 The plaintiff gave evidence that she no longer took sleep medication but used aromatherapy to assist her in getting to sleep.[34] She gave evidence that her sleeping pattern was that she would stay up for as late as she could, usually until 11.30pm, to allow her husband to get to sleep and so that she would be tired enough to go to sleep immediately once she went to bed. The plaintiff stated that during the night, she would be awoken by pain, usually around 3.00am, and she would have to get up and walk or stretch herself along the corridor or passage of the house.[35]
[34]T10
[35]T29-30
62 I note that there was no affidavit or evidence from the plaintiff’s husband to corroborate the plaintiff’s statement of her sleeping patterns. I am not surprised at that course, as I understood the plaintiff’s evidence to be that she made every effort to not disturb her husband’s sleeping patterns and engaged in the practice referred to in the previous paragraph.
63 I accept the plaintiff’s evidence that her sleep is considerably disturbed by the pain in her back and that the consequence for her of having disturbed sleep and broken sleep is a very considerable consequence impacting upon her ability to enjoy her life and obtain proper rest each evening.
Pain
64 The plaintiff gave evidence that she continued to have pain in her low back. I accept that she did not over-exaggerate or enhance the level of pain that she suffered. If anything, I accept that the plaintiff, in her stoical disposition, has tended to “grin and bear it” as much as she can. Each of the medical practitioners who have examined the plaintiff accept that she is a person who suffers pain, and variously have assessed the plaintiff’s pain in the range of 4 to 5 out of 10 to 8 out of 10.
65 The fact that the plaintiff suffers pain on a continual basis in her lower back, albeit at varying ranges of severity, is a very considerable consequence for her, and impacts on her ability to enjoy her life. Quite clearly, the plaintiff manages her pain by the continual and consistent use of pain-relief medication.
Medication
66 The plaintiff has been prescribed Panadeine Forte, Mobic, Endep and Nurofen by her treating medical practitioners. Her current regime of medication for pain relief is Nurofen and Panadol Osteo, taken daily, and on days when the pain is more extreme, she takes prescribed Panadeine Forte. The use of Panadeine Forte by the plaintiff at this time is variable but the plaintiff stated that she would take Panadeine Forte. Depending on what activity she had done, she might take Panadeine Forte a couple of times during the week, she might not have to take them for a week, it just depends on what activity she had performed.[36]
[36]T13
67 In this part of the plaintiff’s evidence, it was clear from her response that she had an underlying phobia or fear about becoming dependent on drugs due to a family member’s lapse into drug addiction.
68 The plaintiff was challenged about not seeking payment for the Panadeine Forte from the defendant’s insurers. I accept the plaintiff’s explanation that she ceased attempting to be reimbursed for the prescriptions for pain relief as it had become too difficult for her to pursue those payments.[37]
[37]T14
69 I accept that the need for the plaintiff to constantly take medication to manage her level of pain is a very considerable consequence for her, and it will be like that for the foreseeable future.
Ongoing treatment
70 The plaintiff has received as much physical treatment from Dr David Vivian and physiotherapy treatment as the medical opinions allow. The plaintiff’s ongoing treatment is management by her general practitioner of her pain levels by prescription of pain medication. I accept that the plaintiff visits her general practitioner, Dr Johnston, on a monthly basis, and that she last saw Dr Johnson in March 2015.[38]
[38]T11-12
Activities of daily living
71 The plaintiff has been able to continue with her travel plans. In 2011, the plaintiff travelled with her family by car from Victoria to Perth. She stated that the trip took some four days and that there were frequent stops in the travel. On occasions, she would do some of the driving to give her husband some relief from that task.[39]
[39]T19-20
72 The plaintiff agreed that she had travelled overseas with three of her girlfriends in September of 2013.[40] The plaintiff stated that she described her group as the “walking wounded” on that overseas trip. In the course of her travel overseas, she took her medication of Panadeine Forte and ran out of her prescription, which was some 20 tablets.[41] The plaintiff stated that she obtained stronger medication over the counter in the United Kingdom.
[40]T25
[41]T36
73 The plaintiff stated that she continues to go to the country races with her husband.[42] She also goes to the local “pub”, as she described it, with her husband “for tea”.[43]
[42]T18
[43]T16
74 The plaintiff agreed that she continued to try and play with and engage with her grandchildren as much as she can whilst she can. She stated that as they get older, they will be less inclined to be playing with “nan” and she wants to get and retain as many memories as she can.[44]
[44]T15
75 In terms of the housework, the plaintiff stated that at her new home, she and her husband agreed to take up the carpet so that she would not be required to use a vacuum cleaner on carpet.[45] The plaintiff stated that otherwise, she would do as much of the housework as she could, including taking out the washing, and if it was too much for her, she would wait until the weekend when her husband could assist her.
[45]T31
76 I accept all these activities of travel, going to the races, the local hotel and playing with her children are consistent with the plaintiff’s attitude of trying to do as much as she can within the limits of her pain restrictions. This is a laudable approach by the plaintiff and is consistent with the medical advice she has received from her treating physicians encouraging her to remain as active as possible.
77 The plaintiff gave evidence that as a result of her injury, she and her husband had to sell their property at Menzies Creek. The property at Menzies Creek had sharp inclines in the property and as a result of the injury to her low back, she was unable to walk up inclines. The fact that she was unable to traverse the property at Menzies Creek necessarily meant that it was no longer a property suitable for her and her husband to live at. Initially, the plaintiff and her husband moved to Pakenham. After that, they moved to their current address, which is closer to where the plaintiff’s grandchildren live. The plaintiff gave evidence that this loss of her ability to live at Menzies Creek was of great importance to her. She spoke of the animals that were kept on the property and the close proximity to such things as Puffing Billy and a lake. It was an idyllic setting for her grandchildren to visit and the house was big enough for the grandchildren to stay over the weekend.
78 I accept that this change in address forced upon the plaintiff as a result of her inability to traverse her property and live at Menzies Creek is a very considerable consequence for her. Typically of her approach to life, she has made the best and most of what she can at her new home and to make it interesting and a place that her grandchildren are prepared to visit. I note that the new premises is of smaller dimensions and the grandchildren are unable to stay overnight.
Work
79 The plaintiff managed to return to her place of employment at 32 hours to be performed over four days per week. After her injury, there was conflict between one of her supervisors and the plaintiff. The roster system changed at work so that the plaintiff’s 32 hours per week was to be placed over the five days per week. This change in the roster meant that the plaintiff was unable to have Fridays off every week. The plaintiff’s evidence was that she had enjoyed the Friday off and that she used that day off to do her rehabilitation, in particular swimming. I accept that it was a combination of the dispute with her supervisor and the change in the rostering system that the plaintiff then ceased her employment with the defendant.[46]
[46]T23, T34 and T35
80 The plaintiff has recently obtained casual employment with Bunnings. The plaintiff’s evidence was that she was looking forward to her work with Bunnings but it was in the early stages, as she had just started work there.[47] I accept that the change of employment is a significant consequence for the plaintiff but given the complication of conflict between herself and her supervisor and the change of roster, I do not accept that it is a very considerable consequence attributable to the industrial accident.
[47]T24
Conclusion
81 After a consideration of all of the evidence, and taking into account all the consequences suffered by the plaintiff as a result of her low-back injury, I am satisfied that such consequences, when judged by a comparison with other cases in the range of possible impairments, can be fairly described as being “more than significant or marked” and being “at least very considerable”. The plaintiff has satisfied the statutory test for “serious injury” for pain and suffering damages.
82 The plaintiff’s application in respect of pain and suffering for a physical injury, in particular to the low back, which occurred during the course of her employment with the defendant on or about 7 June 2011, is granted.
83 I will hear the parties on costs.
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