Hancorne v Transport Accident Commission
[2023] VCC 2411
•21 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No.CI-21-00085
| LAURA HANCORNE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 November 2023 | |
DATE OF JUDGMENT: | 21 December 2023 | |
CASE MAY BE CITED AS: | Hancorne v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2411 | |
REASONS FOR JUDGMENT
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Subject:Serious Injury Application
Catchwords: Traffic accident – Serious injury application – Young plaintiff –Consequences of impairment
Legislation Cited: Transport Accident Act 1986
Cases Cited:Dwyer v.Calco timbers (No 2) [2008] VSCA 260
Humphries & Anor v Poljak [1992] 2 VR 129
Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms S Gold | Slater and Gordon |
| For the Defendant | Ms R Kaye KC & Ms E Golshstein | HWL Ebsworth |
HER HONOUR:
1The plaintiff, Laura Hancorne (“Ms Hancorne”), injured her lumbar spine in a car accident on 5 February 2018.
2She seeks leave, pursuant to s93(4)(d) of the Transport Accident Act 1986 to bring a common law claim on the basis of an impairment to her spine, being an aggravation of an underlying spondylosis.
3There is no real debate in this case about the injury she sustained. The issue is whether the pain and suffering consequences that she currently experiences as a result of her injury meet the threshold test of “serious injury”, that is that, when compared with other cases those consequences could be fairly described as at least “very considerable” and certainly more than significant or marked.[1]
[1] Humphries & Anor v Poljak [1992] 2 VR 129
4For the reasons set out below, I am satisfied that Ms Hancorne has suffered a serious injury.
Background
5Ms Hancorne was eighteen at the time of the accident. Ms Hancorne left school after completing year 11 and worked as a retail assistant. At the time of the accident, she was working twenty hours a week at Priceline.
6During her school years she had significant psychiatric issues for which she saw a psychiatrist and for which she was prescribed medication.
7She had no pre-existing medical history of back problems or pain.
8Ms Hancorne says immediately after the accident she thought the only injury she had sustained was a burn on her right arm from the airbag. She did not go to hospital.
9The following day Ms Hancorne says she had severe low back pain. She went to her general practitioner, Dr Eeshara Vithana, who recorded back pain and tenderness over L4/5.[2]
[2] Plaintiffs Amended Court Book (“PACB”) 62
10On 8 February 2018, Dr Vithana noted that her back pain “is a bit better”. However, Ms Hancorne says she continued to be in pain and on 1 March 2018 Ms Hancorne had an MRI scan which showed a diffuse disc bulge at L4-5, and small central disc protrusion with annular fissure at L3-4 and a minor diffuse bulge at L5-S1.[3]
[3] PACB 36
11She was referred to Mr John Choi for orthopaedic assessment who noted on 20 March 2018:
“significant discopathic change at L4/5 with evidence of annular rupture and a bulging disc that is sub-ligamentous.”
12Ms Hancorne says that, due to her back pain, she was unable to continue in her employment at Priceline. She attended physiotherapy but her pain persisted and she re-attended Mr Choi who recommended a CT-guided steroid injection which she underwent on 3 September 2018.[4]
[4] PACB 38
13She says she had some temporary pain relief from that treatment but her pain returned “in full force soon afterward”.[5]
[5] PACB 10
14She had some chiropractic treatment with Stephen McNab but did not find that helpful.
15Ms Hancorne underwent an X-ray on 24 July 2019 of her sacroiliac joint, pelvis and right hip, which showed preserved alignment of the hip and sacroiliac joints, no arthropathy or erosion and no features of femoral acetabular impingement.[6]
[6] PACB 72
16She underwent a pain management course with Dr Murray Taverner in December 2021. She had further pain management programs in March and April 2023 with Dr Bruce Shirazi.
17Dr Taverner noted that after completion of the program her pain was no different, but she was coping with it better.[7]
[7] PACB 74
18By 2020 she was able to return to work and she started a part-time job at St Macartan’s Parish Primary School (“Macartan’s") as a teacher’s aide. Her working hours were 8.45am to 3.15pm five days a week.
19That job finished at the end of 2020 and she started a new role at a local kindergarten in February 2021. She worked four days a week, 8am to 6pm.
20In April 2021 she undertook further study and obtained an Education Support Certificate. She now works as a nanny four days a week, working 8.30am to 5.00pm.
Medical evidence
21Ms Hancorne relies on reports from her treating orthopaedic surgeon, Mr Choi, her general practitioner Dr Vithana, and her pain management specialist, Dr Taverner.
Mr John Choi – spinal & orthopaedic surgeon
22Mr Choi says the changes seen on MRI were:
“relatively acute given the absence of endplate adaptation and osteophytic change and I believe that it is responsible for her back pain.”[8]
[8] PACB 50
23However, he considered that :
“there is no magic cure, as the changes that have occurred are irreversible and with ongoing ageing they can further affect the disc and the prognosis is not great for this young girl.”[9]
[9] PACB 50
24He did not recommend surgery “[u]nless she was desperate”.[10]
[10] PACB 51
25In a subsequent report on 9 May 2019 he noted:
“her prognosis should be relatively good. Often the SIJ can play up in the future, off and on, however as far as any neurological or ongoing structural matters are concerned I do not believe there is significant untoward prognosis or outcome expected.”
26He considered she “should have the capacity for work, at her pre-injury work as a retail assistant” however noted that he had not seen her since August 218 and “therefore it is very difficult for me to assess” her work capacity.[11]
[11] PACB 53
Dr Eeshara Vithana – general practitioner
27Dr Vithana noted that Ms Hancorne had no pre-accident complaints of back pain. In 2019 he thought her capacity to work was difficult to predict and it might take two years before she could return to work. By late 2020 he considered her back pain had substantially stabilised. In July 2023 he noted that Mr Choi had indicated her back pain might worsen during pregnancy and childbirth.[12] It is not clear whether this is a report made to Dr Vithana by Ms Hancorne or to Dr Vithana by Dr Choi. There is nothing in Dr Choi’s reports to Dr Vithana that reflect this. He considered she had capacity to work four days a week.
[12] PACB 68
Dr Taverner – pain management specialist
28Dr Taverner noted her presenting complaints of low-back pain, described as constant aching, throbbing, bruised, stiffness and tightness in the low-back and spreading to the thoracic and cervical regions. She also complained of axial non-radiating neck pain, mostly stiffness.
29Ms Hancorne reported that the pain had reduced her ability to socialise, had made work a struggle and prevented her from undertaking her dream of travelling to Europe with her friends.
30Psychometric evaluation by Dr Taverner revealed mild-severe pain averaging 6/10, pain ranging between 4-7/10 in the preceding 24 hours. He assessed that current treatment was relieving 20% of her pain and that there was moderate pain related interference in daily activities.[13]
[13] PACB 73, - scores of 38/70 on the Brief Pain Inventory; a PainDetect score of 13/37 suggests neuropathic pain as unlikely; and moderate DASS21 scores of 18/42, 20/42 and 22/42 for depression, anxiety and stress respectively.
31He supported her desire to avoid long term use of strong painkillers.
32He considered her pain had stabilised, and she would likely continue to have moderate daily pain and mild pain interference with activity. He noted she could manage most activities, and with proper planning and scheduling it would be possible for her to travel overseas. In the future she may require ketamine infusions and injections but he hoped that a multidisciplinary rehabilitation program would avoid the need for interventional pain procedures.
33Ms Hancorne also relied on the following medico-legal opinions
Mr John O’Brien - orthopaedic surgeon
34Mr O’Brien noted a poor prognosis in that Ms Hancorne will continue to experience chronic ongoing pain and will remain mildly limited in general, social, recreational and domestic activities.
Dr Paul D’Urso – neurosurgeon
35Dr D’Urso considered Ms Hancorne may be prone to a degree of degenerative progression at the L3-4 and L4-5 intervertebral disc levels. She would also be at higher risk than normal of sustaining a rupture of the intervertebral disc and increasing neurological dysfunction.[14]
[14] PACB 107
36Dr D’Urso considered that, on the balance of probabilities, she will experience a degree of deterioration with time which can be difficult to determine and predict.
37He considered she should continue with a conservative strategy at this time but that if there was deterioration, surgical intervention may well be appropriate.
38He considered she was incapacitated from performing unrestricted physical or manual employment activity, more arduous domestic cleaning or gardening activity or vigorous recreational sporting activity.
Professor Richard Bittar – Neurosurgeon
39Professor Bittar considered Ms Hancorne did not have capacity to undertake unrestricted physical work on a full time basis. Professor Bittar considered Ms Hancorne able to work full time in a role where she can minimise or avoid repetitive bending or heavy lifting and noted she is currently employed in such a role. He considered her partial incapacity for work is permanent.
40He opined that she is at increased risk of developing arthritis. Her condition is likely to remain stable in the long term.
Professor Richard Sullivan – Anaesthesiologist & Pain medicine specialist
41Professor Sullivan considered Ms Hancorne’s prognosis was poor, as her chronic pain condition was likely to continue into the foreseeable future and adversely affected her functional capacity. He considered her condition stable with no further improvement or deterioration expected.[15] He had restrictions on bending, twisting, lifting, stooping, pushing, pulling and engaging in repetitive tasks requiring these motions. He did not consider that she could return to her pre-injury employment as a pharmacy assistant.
[15] PACB 127
42The defendant relied on medico-legal opinions from occupational physician Dr Mary Wyatt and orthopaedic surgeon Dr Michael Dooley.
Dr Mary Wyatt – Occupational Physician
43Dr Wyatt considered Ms Hancorne’s condition was unlikely to improve. She considered Ms Hancorne had a capacity for her current work and could continue to work as a nanny or return to work as a teacher’s assistant or integration aide on a fulltime basis.[16]
[16] PACB 137
Dr Dooley – Orthopaedic Surgeon
44Dr Dooley considered Ms Hancorne had capacity for her current employment and required no ongoing intervention or physiotherapy. Acute exacerbation might warrant further physiotherapy but there was no indication that operative intervention would be required.[17]
[17] PACB 140
Analysis of medical material
45There is no real dispute between the experts as to the nature and extent of Ms Hancorne’s injuries. Though there may be an underlying condition or spondylosis, the accident has aggravated her spinal condition, rendering it symptomatic. There is no suggestion that she had any pre-existing pain or spinal restrictions. There is no dispute that the transport accident was the catalyst for any underlying condition becoming symptomatic, or alternatively was the cause of her current back problems.
46Her condition is stable, and permanent. There is no prospect that her condition will resolve or improve. She will have to manage her pain and restrictions for the rest of her life. She may deteriorate in the future and if she does, intervention may be required. Her back may degenerate earlier than would otherwise have occurred.
47I accept that Ms Hancorne has a permanent back condition arising form the transport accident, which causes her daily, moderate pain and which will not improve. There is some expert support for the proposition that her condition will, on the balance of probabilities, deteriorate in the future. I accept that age related degenerative changes usually mean that, as people age, mobility decreases and pain increases. In a person with an injury to their spine causing daily moderate pain and daily mild restrictions, I am persuaded that, on the balance of probabilities, her condition will deteriorate as she ages, and that deterioration might occur sooner than in someone without her injuries.
Consequences
48The real debate on this case is what consequences Ms Hancorne’s injuries have caused.
Plaintiff’s submissions
49Ms Hancorne says she has pain that is “fairly constant at a level of 5/10, but will then be aggravated by various activities. Anything can aggravate it, including walking for too long, or standing or sitting for too long; and daily activities such as mopping and other cleaning tasks, lifting groceries, and bending to pick items up”.[18]
[18] PACB 10 - Affidavit of the Plaintiff 18 November 2019
50She says she is carrying extra weight as a result of inactivity due to pain and was prescribed weight-loss medication in July 2018. In 2018 she was taking temazepam for sleep and occasional panadeine forte for pain.
51By 2021 she said she was finding it difficult to get down to floor level to engage with the children at work and that sitting on the floor and bending down aggravated her pain. At the end of a day’s work her back was tense and sore and she would go to bed to lie down as soon as she got home.[19]
[19] PACB 28 - Affidavit of Abbey Seal 2 May 2021
52In 2021 she estimated that at least once a week her back would flare up and she would be unable to complete her regular 5km walk. She took norgesic about once a week for pain.
53In her October 2023 affidavit Ms Hancorne said she continued to have low back pain which felt like a “constant bruise”. From time to time she would have shooting pain into her right leg and a numb feeling that would resolve after a few minutes. This happened about every few months.
54She said her back pain worsened with prolonged sitting or standing without adequate support. However, she was becoming more social and had accepted that activities will aggravate her pain but she must “deal with it and manage as best I can”[20].
[20] PACB 18 - Affidavit of the Plaintiff 13 October 2023
55She had managed a flight to Queensland which was about two to three hours and her back was extremely sore afterwards.
56She says her chronic pain makes her tired and fatigued, especially at the end of a work day. She can feel exhausted and sore.
57She was able to cope with the work as a teacher’s aide because she was able to move around as she needed, but found that leaning over or squatting to assist pupils aggravated her back. Part of her work at Macartan’s was online due to the COVID 19 pandemic. When she returned to fully on-site work after the lockdown she found it physically taxing and struggled.
58Her role at Macartan’s was not renewed and she commenced at a kindergarten. She found this work was a lot harder on her back. The job involved lifting small children and while she tried to minimise the lifting, it was unavoidable. Getting down on floor level, another unavoidable part of a job in a kindergarten, also aggravated her back.
59Her qualification with an Education Support Certificate would have enabled her to seek work as a teacher’s aide, however she got a job as a nanny instead. She describes this as “much easier” than working in the kindergarten, which was “really too much with my injury”. She says she was so sore every day and there was a “lot of lifting and sitting on the floor for long periods of time.”[21]
[21] PACB 19 para 16
60She works 30 hours a week as a nanny to two children aged 2 and 6 and feels that this is all she can really manage. Before her current job she was working as a nanny for a number of families and taking causal nannying work from time to time. She said she worked less than fulltime but that her workload varied.[22]
[22] Transcript (“T”) 11 Line (“L”)10-14
61In her current role she takes the older child to and from school and entertains the younger child. She acknowledged that her work involves sometimes lifting the younger child as well as nappy changing which she undertakes on the floor. She takes the children to the park and is generally responsible for their welfare and care while she is working. She says she has bene offered, but generally declines, the offer of additional work or afterhours babysitting.[23]
[23] T16 L25 – T16 L2
62She acknowledged that she is close with the children she nannies and really enjoys working with them.
63She says after a day at work her back is more painful and she has to take it easy. Housework and other activities can be difficult and she modifies her activities depending on her pain level. Nevertheless, she has an active social life that is to be expected of a young woman. On weekends she will quite often go out locally to a pub and nightclub, she might go dancing, and she might socialise at friends houses or have friends to her share house. She has undertaken some recreational activities with her boyfriend, including attempting to paddleboard, and tries to walk 5km with her friend Abby each day.
64She has visited her mother in Queensland three or four times.
65She relies on affidavits from her friend Abby Seal, her boyfriend and her father, who generally support her descriptions of her limitations and her physical state after working a full day.
66Ms Hancorne says she is in constant pain and has been since the accident when she was only 18. A woman of her age would not usually be experiencing the pain and aches she experiences on a daily basis.
67She has always dreamed of travelling the world, but this now seems unlikely as her back pain would make long-haul flights too difficult.
68There is no prospect of improvement and to the contrary, some prospect of degeneration.
69She is doing the best she can, and has improved her mindset to cope better with the pain, and this should not be viewed as an absence of the consequences of pain for her.[24] She lives as normal a life as she can manage, and this includes socialising and going out.
[24] Dwyer v.Calco timbers (No 2) [2008] VSCA 260 Para 3
70After a period off work, she has got back to work and has found a job she can manage. However she is not working full time, and is limited in the occupations she can enter. Nannying is suitable for the moment, but her capacity to work fulltime in a kindergarten setting is limited by her pain and the higher demands of lifting and being at floor level.[25] She says she has realised, after her time working in the kindergarten, that she cannot perform that sort of work long-term.
[25] PACB 14
71As a young woman, at the very outset of her career, the plaintiff says this limitation on her working prospects is a serious consequences for her.
Defendants submissions
72Prior to the accident, Ms Hancorne had a psychiatric condition. The defendant says this psychiatric condition, which had required medication and psychiatric treatment, had caused Ms Hancorne to be withdrawn socially[26] and to have difficulty attending school [27]Ms Hancorne gave evidence that throughout her time at school she had difficulty attending and that her mood was low and this impacted on her ability to enjoy her life. During 2015 her depression and anxiety had resulted in an increase in her anti-depressant medication. Over the following two years her condition did not improve. She gained weight due to her sedentary lifestyle. She spent much of the week in bed, though she did go out occasionally on the weekend. In July 2017 she took an overdose resulting in hospitalisation. In October 2017 she was noted to be having panic attacks and depressive episodes. For a period she was diagnosed and prescribed medication for bi-polar disorder. She has subsequently been diagnosed with Attention Deficit Hyperactivity Disorder.
[26] Defendants Court Book (“DCB”) 23
[27] PACB 29.
73After the accident she continued to have significant psychiatric issues and stressors in her life. Her boyfriend was in an induced coma for a while in 2019. He moved in to live with her for a period and she had significant caring responsibilities including giving him his medication, feeding him and washing his clothes.[28]
[28] DCB 66
74The plaintiff’s very real mental health struggles impacted her activity level both before and after the accident. When comparing the before and after picture, this is directly relevant to any assessment of the consequences of the accident.
75The Court cannot be satisfied that any reduction in her capacity to get out and about and engage in social activities is a consequences of the accident.
76The defendant says the evidence shows the plaintiff had already gained weight and had been prescribed weight loss medication prior to the accident. The Court cannot be satisfied that any weight gain was due to inactivity arising from the back injury.
77The defendant submits that prior to the accident the plaintiff was only working 20 hours a week as a retail assistant. Since that time she was able to work for a year as a full-time teacher’s aide and her treating general practitioner at that time considered that suitable employment.
78She then moved on to full time work at a Kindergarten. The defendant submits that there is no evidence that she ceased that work because of issues relating to her back. Instead, the defendant submits the court should be persuaded that she elected to work as a nanny as this is a more lucrative role and she earns a comparatively high wage.
79She is able to do her nannying work which involves many activities including lifting and bending. Although she does not work fulltime, the days she works are consecutive and the evidence is that she does not work Fridays because of the requirements of the family for which she works, not because of her back injury.
80There is no evidence that she is restricted in any way, or that there are any particular accommodations made for her injury in the workplace, and there is no affidavit material from her employer. No reason was given for the absence of such evidence and the court should infer that the evidence would not have assisted the plaintiff.
81The medical evidence does not support the plaintiff’s claim in terms of any work incapacity.
82Mr Choi considered she had capacity to work in her pre-injury duties. Mr D’Urso considered she had “light work back” type restrictions but otherwise had capacity to work as a retail assistant or teacher’s aide. Mr O’Brien considered the plaintiff would be able to continue in full-time employment with mild limitations. Mr Bittar considered the plaintiff had capacity to engage in suitable employment and that her current role was suitable. Dr Sullivan considered the plaintiff would be able to continue in employment indefinitely so long as she was able to maintain the limited hours and modifications necessary. Dr Wyatt considered the plaintiff had capacity for her current work and could work as a teacher’s aide, integration aide or nanny. Mr Dooley also concurs that the plaintiff is fit to continue in her current work as a nanny. He also considered she has capacity to engage in other light physical or clerical work.
83The defendant says there was no evidence that the teacher’s aide work was not feasible for the plaintiff and the Court should conclude that the reason she is working as a nanny is because it is work she enjoys and which is more lucrative than other work with children.
84The defendant says the consequences for the plaintiff simply do not meet the threshold test. She has been able to engage in study, completing an online course while working full time. Aside from a period of unemployment immediately following the accident and at time when she was only working 20 hours a week, she has been able to obtain suitable employment and work within her restrictions.
85She has a substantial social life, lives out of home with friends, has a boyfriend whom she met after the accident, and participates in the usual range of activities, including going out for coffee or brunch, going to the pub, listening to live music and dancing at nightclubs. She is able to complete household chores, attend the gym and Pilates, and goes for regular walks. She has been paddleboarding and ridden a mountain bike. She has responded positively to a pain management program and accepted that she will live with pain. The advice of her pain management specialist is that she should resume usual activities.
86She is not a plaintiff who comes to this court and says she was an extremely sporty person before the accident and now has a lowered level of activity. Prior to the accident she was withdrawn, isolated and sedentary.
87The plaintiff’s supporting affidavits are notable for what they do not say – the plaintiff still goes out and socialises, and there is no evidence of intimacy restrictions. The affidavit from her father was out of date and therefore of limited utility and, notably, no updated affidavit from him was obtained.
88The plaintiff takes no regular medication but manages her pain levels with occasional Panadol or Nurofen.
89The plaintiff raised the issue of whether childbirth might result in a degeneration of her back condition requiring surgery and said she had been told this by Mr Choi. Mr Dooley said he was unable to understand this from a scientific point of view. The defendant said there was no real prospect that the plaintiff would require surgery in the future.
90While the radiology is not in dispute, the description of the plaintiff’s injury varies from doctor to doctor. Dr Choi diagnoses a right side sacroiliac joint dysfunction. Dr Wyatt notes it as chronic lower back pain without radiculopathy, Mr Dooley considers she has a soft tissue injury and aggravation of previously asymptomatic degenerative changes. Mr O’Brian diagnoses “chronic non-specific pain with no diagnostic features indicating a precise pathology underlying the pain generation”.
91The defendant says the plaintiff’s youth is not sufficient to meet the test. She is able to work in her chosen field of employment for which “she clearly has a vocation and real passion”. She is not being shut out of an occupation for which she had ambitions.
Findings on consequences
92This is a case in which it is difficult to accurately assess the consequences of the injury for this plaintiff, precisely because of her young age.
93At the time of her injury she had left school and was working part time. She was yet to embark on a career and had struggled through high school with mental health difficulties. She later was diagnosed with ADHD and her mental health difficulties appear to have improved. Prior to the accident, on her own evidence, she struggled with her home situation and was in conflict with her mother’s boyfriend, as well as having problems with school. Moving out of home and in with her grandmother, leaving school, and getting a diagnosis of ADHD all seem to have helped her mental health.
94This makes a comparison of her life before and since her injury difficult. Her level of social activity may be lower than she would like as a result of her injuries, but it appears to have significantly increased from her pre-injury level. On her evidence I consider she is living a fairly normal life for a young woman, and is not unduly restricted in her activities.
95For this reason, I accept the defendant’s submission that, when looking at what she has lost and what she has retained in terms of activities of daily living and social activities, I could not be satisfied that the consequences for Ms Hancorne meet the required threshold.
96However, the consequences for Ms Hancorne are not a simple equation of balancing what she did before the injury with what she does since the injury. I must consider the implications for such a young person who has a permanent impairment which will not improve. I must consider those implications in light of the fact that her pre-accident life was hampered by mental health issues and external factors (school and her living arrangements) which have subsequently changed and would have changed in any event. A simple analysis of the pre accident and post accident is not a fair assessment of the consequences for Ms Hancorne.
97At the time of her injury Ms Hancorne was too young to have determined a career path. Her adolescence was difficult and as a consequence there is no evidence that she had formulated any particular ambitions for the future, other than to travel the world. She perceives that this ambition, a very significant dream for her, is now unattainable. More importantly, the area in which she has focused her employment, that is, in roles associated with childcare, is now limited by her injury.
98Though she has been able to successfully work as a nanny, on her evidence she would not be able to cope with working in a kindergarten. I accept that evidence. Working in a kindergarten is likely to be particularly demanding in terms of the demands on her lower back, and I accept her evidence that, after her experience she does not consider it would be viable employment long term. For such a young person, having an avenue of employment restricted in this way is significant.
99Further, I accept her evidence that she does not take additional work, such as babysitting, even when offered, because by the end of her working week of 30 hours she has had enough. The lure of additional pay does not outweigh the impacts on her back of working additional hours.
100I consider the fact that she is not currently working fulltime, supports her evidence that 30 hours a week is enough for her, given her pain and the aggravation of that pain caused by her work.
101If her chosen employment remains in childcare, she cannot avoid the sort of lifting, bending and twisting that is part of any role with children. This will continue permanently and will inevitably involve some restriction in the employment opportunities she can pursue. Dr Choi’s sanguine view about her employment prospects is now out of date and, as her pain has not resolved, is of limited utility.
102If she moves outside childcare, she will forever have a back injury that restricts her capacity for employment to roles that fit within her limitations. They include limits on lifting, bending and twisting.
103To have restrictions at such an early stage of life is a greater consequence than for an older plaintiff with similar injuries. Ms Hancorne will have to live with the consequences of her injury for longer.[29]
[29]Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181
104I accept her evidence about her level of pain. Though she takes no regular medication, there is no suggestion in any of the material that she is exaggerating or malingering. The medical material is consistent with her evidence. She made complaints of low back pain the day after the accident, radiological investigation demonstrated a clear pathological basis for her pain and her history to doctors has been consistent since that time.
105The evidence of Dr Taverner provides a plausible explanation for how she is able to undertake the level of activity she sustains with the pain level she describes, she has learned to accept that she will have pain, that pain is not an indication that she is doing harm to her back, and that undertaking usual activities is the best way of managing her pain.
106Living with daily, constant pain of about 5/10 intensity is a significant factor to be considered when assessing the consequences for Ms Hancorne. With constant pain comes increased fatigue, which she describes, as well as self-imposed restrictions and modifications on activities of daily living.
107Having regard to her ongoing, permanent level of pain, the restrictions this places on her employment, the fact that she works less than fulltime hours as a consequence of her pain, and her very young age at the time of her injury, as well as the fact that this injury will continue to impact her employment options into the future, I am satisfied that, when compared with other cases within the range of possible cases, she satisfied the threshold for serious injury.
108Accordingly, the plaintiff has leave to commence common law proceedings for damages.
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