Hanrahan v Recycling Industries Pty Ltd
[2013] VCC 1828
•12 November 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-03991
| SUSAN LEE HANRAHAN | Plaintiff |
| v | |
| RECYCLING INDUSTRIES PTY LTD (ACN 067 043 994) | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 November 2013 | |
DATE OF JUDGMENT: | 12 November 2013 | |
CASE MAY BE CITED AS: | Hanrahan v Recycling Industries Pty Ltd | |
| MEDIUM NEUTRAL CITATION: [First revision 26 November 2013] | [2013] VCC 1828 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury to the lungs – occupational asthma
Legislation Cited: Accident Compensation Act 1985, s134AB(37)(a)
Cases Cited:Transport Accident Commission v Zepic [2013] VSCA 232; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Transport Accident Commission v Kamel [2011] VSCA 110; Sutton v Laminex Group Pty Ltd [2012] 31 VR 100; Aburrow v Network Personnel Pty Ltd [2013] VSCA 46; Turner v Love & Transport Accident Commission (1995) 21 MVR 314
Judgment: Leave granted to the plaintiff to bring proceedings for pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A MacTiernan | Zaparas Lawyers |
| For the Defendant | Mr S Carson | Hall & Wilcox |
HIS HONOUR:
1 Leave to bring proceedings for pain and suffering damages only is sought for an admitted compensable injury, being occupational asthma. The impairment is to the lungs by way of loss of respiratory function. The only issue for determination is whether the consequences of that impairment are “serious” as defined in s134AB(37) of the Accident Compensation Act 1985 (“the Act”).[1]
[1]Transcript (“T”) T15
2 It is a paragraph (a) application. The test is whether, by comparison with other cases in the range of possible impairments or losses of a body function, the pain and suffering consequences can be fairly described as being “at least very considerable”.[2]
[2]Section 134AB(38)(c)
3 I note the recent repeal of s134AE of the Act and the Explanatory Memorandum and Second Reading Speech that accompanied the repeal. Nevertheless, clear, proper and adequate reasons are required. It has been said often that a serious injury application involves a substantial amount of “value judgment” which does not, of itself, admit detailed reasoning that is explicit in certain cases.
4 It has also been stated “… the imprecise and impressionist criteria in the so-called ‘narrative test’ is what a court must deal with in a case such as this”.[3]
[3]Transport Accident Commission v Zepic [2013] VSCA 232 at paragraph 145
5 The plaintiff is aged fifty years and commenced employment with the defendant in August 2001. It runs an industrial waste and rock recycling business. She was exposed to dust working on a weighbridge and contracted the compensable injury, with symptoms becoming such that by February 2002, she required medical treatment.[4] No changes were made to the exposure at the workplace.[5] Partly on medical advice, she sensibly left the company effective from 10 May 2002.[6] In view of what her longstanding general practitioner said some twelve years later about her current vulnerability to a dusty environment and strong smelling chemicals, she made a good decision.[7]
[4]Plaintiff’s Court Book (“PCB”) 15
[5]PCB 9
[6]PCB 92
[7]PCB 54
6 She found other employment and is still in full-time alternative work.[8] Hence, there is no claim for leave to bring proceedings for pecuniary loss damages. A number of consequences are relied on by the plaintiff with respect to loss of enjoyment of life.
[8]PCB 10
7 I found the plaintiff totally genuine and extremely straightforward and stoical in terms of her presentation. She made frank concessions for example about her heel and knee conditions.[9]
[9]T33 and 35
8 A lifelong need for medication is central to an assessment of the consequences in this case. This woman sustained a compensable injury when still in her 30’s and has required medicines of different types over almost twelve years. These medications have been numerous, as is illustrated in the treaters’ medical reports and clinical notes.[10] The medications are designed to control the asthmatic condition, to relieve symptoms and to try and act in a preventive way in warding off severe attacks. If the condition is not kept under control, I accept that it can have very severe and frightening effects. For example, a bad attack can mean as much as a week off work at a time.[11]
[10]PCB 50, 54 and 57, Exhibit 2
[11]PCB 9
9 The very frightening aspect of asthma is clearly spelt out by the evidence in this case.[12] I accept that evidence does not overstate the experience. It would be difficult to imagine experiences that are more frightening than being unable to breathe properly. The plaintiff religiously takes her medication morning and night and during the day in order to try and stave off such frightening experiences.[13]
[12]PCB 20
[13]PCB 20
10 Similarly, when she has a coughing attack, sometimes she finds she cannot stop. In court she coughed on a number of occasions and was in some obvious distress.[14] During submissions, a coughing fit saw her get up and leave the courtroom. I accept that the plaintiff very bravely deals with these frightening experiences in order to get on with her full-time employment and her duties as a mother and domestic partner. It is highly relevant that for one injured at such a young age, that she faces a regime of observing medical advice about medication if she is going to function in anything like a normal way.
[14]T24 and 40
11 The facts of this case are a reminder of the significance of pain and the control of it by being so dependent on daily medication.[15]
[15]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at paragraph 47; Transport Accident Commission v Kamel [2011] VSCA 110 at paragraphs 67-68; Sutton v Laminex Group Pty Ltd [2012] 31 VR 100; Aburrow v Network Personnel Pty Ltd and WorkSafe Victoria [2013] VSCA 46
12 While the plaintiff can usually avoid the worst aspects of the pain and her stress from severe asthma attacks by keeping to her medication program, it needs to be put into perspective. It has been stated, in the context of control of a psychiatric condition, that the relevance of the ongoing and indeed permanent need for treatment, its type and frequency is clear when it comes to evaluating consequences.[16] In this application, it is one of the principal long-term consequences of the plaintiff’s injury. It is a consequence that is very considerable. It is a particularly important impact on her life when one considers the length of time she has been on this treatment merry-go-round, and given her life expectancy, how much of it she has in front of her.
[16]Turner v Love & Transport Accident Commission (1995) 21 MVR 314
13 I accept that for the rest of her life, the plaintiff must vigilantly take the medication in one form or another and the only choice open to her otherwise is to endure the severest form of attacks. Medical evidence on both sides repeats this is a lifelong sentence for her.[17] Her relative youth is important.[18]
[17]PCB 55, 69F, 69O, 69P
[18]Hawkins v DHL Express (Aust) Pty Ltd [2013] VSCA 26 at paragraphs 74-75
14 In fact, looking at her treatment in the context of prognosis, this fifty-year-old plaintiff faces a very gloomy future. For example her general practitioner states in a report only three weeks ago:
“However, there is also concern that her respiratory function has deteriorated, partly due to some long term loss of respiratory function, but also due to loss of cardio, respiratory fitness and weight gain. I am therefore of the opinion that it is likely that Susan would not be able to return to a physically demanding task and indeed would not be able to perform any tasks that required her to walk long distances, stand for long periods of time and she would only be able to perform the most simple of manual tasks. There is also a risk that she would be vulnerable to repeat infections and may require episodes of time off work for acute deterioration in her lung function during respiratory infections (that would otherwise not be the case). I am therefore reminded that Susan’s employability in the long run may be restricted and her employability in the open job market is significantly curtailed.”[19]
[19]PCB 55
15 In spite of this application being for pain and suffering consequences only, I take into account that for such a young woman to impede her ability to present herself in the employment marketplace is relevant to an assessment of pain and suffering consequences in this case overall. I accept the opinion of her longstanding general practitioner in this regard.
16 The same doctor goes on to speak about her requirement for medication in similar terms that are quite gloomy. He says:
“Susan will require ongoing medication on a daily basis to treat her asthma. She will require treatment for exacerbations of her asthma and may even require hospitalisation. She may require preventative strategies to avoid respiratory infections such as annual flu vaccinations and social distancing during the flu season”.[20]
[20]PCB 55
17 I accept that opinion, and it could be hardly more emphatic in indicating very considerable consequences for the plaintiff.
18 Dr Slesenger ends with another very pessimistic comment that the fact that she remained in the defendant’s environment and exposed to these problems for up to ten months is a significant factor and a very poor prognostic indicator. Her cardio-respiratory compromise is already evidenced and it is highly unlikely she will improve, and indeed will probably deteriorate in coming years.[21]
[21]PCB 56
19 Other consequences that are very considerable include the very fear factor that she confronts when her asthma is triggered. Simple things like hot conditions can leave her with a feeling that she cannot breathe. She avoids putting heating on on cold days for that reason. She lives on a daily basis not knowing if she is likely to have an attack, and describes the terror involved in her feeling of not being able to breathe properly.[22]
[22]PCB 11, 20
20 The coughing that she now has constantly is another consequence that she must put up with. Simple things can cause it to become worse, such as encountering some strong smell such as perfume or cut grass or dust from carpet in the home. She has had to alter her home in terms of floor surfaces for this reason.[23] I accept this evidence as indicating a very considerable consequence for her is her exposure to coughing. Indeed, it has even led to a very personal and unfortunate problem by way of stress urinary incontinence.
[23]PCB 11
21 She required referral from her general practitioner to a specialist at the Northern Hospital because she was suffering stress urinary incontinence that her cough could bring on. She saw a Dr Lin Ow, who reported in 2010 to her general practitioner and advised on examination, that the plaintiff had “On examination today, there is very obvious stress urinary incontinence”.[24] The doctor recorded that she needed to wear a pad every day and his advice to her was, “I have encouraged her to use her Seretide regularly and to optimise her asthma so that she would decrease her coughing episodes”.[25] I have already referred to the fact that her cough was apparent in court on a number of occasions.[26]
[24]PCB 57
[25]PCB 57
[26]T24, 40, PCB 20
22 The plaintiff’s evidence is basically unchallenged and there are other consequences of her injury that were not the subject of any cross-examination. Examples are the effects of her asthma and breathlessness on day-to-day activities with her children and her partner. These include recreational activities, walking long distances and generally, her requirement to avoid exertion because it brings on asthma.[27] I accept that such limitations on daily life which have been visited on her since being injured in her late 30s, and that she will have them for the rest of her life, qualify as very considerable indeed.
[27]PCB 11
23 There are other consequences the plaintiff relies on including the fact that she has had a considerable problem with weight gain and also, to a lesser extent, difficulties sleeping. It is unnecessary to go into these consequences in any detail but I accept her asthma condition has at least materially contributed to her weight gain and her difficulties sleeping. There are other causative conditions in relation to both those matters; however, I accept the causative link with the compensable injury on the probabilities has been established. For example, the problems she describes with her feet and knee symptoms I would accept are relevant to her inability to exercise and probably her weight gain.[28] However, there is a sufficient material contribution from her needing to avoid exertion, her breathlessness and the chest pain she suffers as a result of the compensable injury to also find her weight gain and disturbed sleep are very considerable consequences of the compensable injury.
[28]T33-35
24 It is not necessary to go through the medical material in any greater detail save to just point out in terms of the medication that the plaintiff is on and the steps she must take on a daily basis in that regard. She describes that now, almost twelve years since being injured, she is taking glucosamine, magnesium, Prednisolone, steroids, Seretide, Ventolin, Bricanyl and Asmol. I accept that these are preventative or controlling medications for her lung and airways impairment.[29] She uses a nebuliser, an inhaler and this type of daily routine will have to continue when one looks at what the doctors say about the need for medication, even though from time to time the actual variety or type of medication has changed and will change.[30]
[29]T 17-19
[30]T 19-20
25 The amount and types of medication she has required to control this condition extend beyond her current list. It is worth listing some of those. Also the various devices required are informative of the extent of the efforts required to function each day.
26 Since suffering the injury, she has used Bricanyl via a turbuhaler; Ventolin via an inhaler; Seretide via a accuhaler; Atronent, an asthma pump; antibiotics; Prednisolone and other steroid medication.[31] Other drugs are ingested via a plastic cylinder attached to a nebuliser, while others require a facemask or a puffer.[32]
[31]PCB 9-18, Exhibit 2, T 17-18, T 48-49
[32]T 17-19, T 44
27 Some medications she has with her all the time. At work, at home, in the car and in her handbag is the description she gives of the ongoing care she must take to have medication available.[33]
[33]PCB 18
28 This amount of treatment over a period of all these years and the ongoing need for such a regime is a very considerable consequence of the plaintiff’s injury and the resultant impairment of function.
29 The side effects of some of these medications amount to a serious consequence in their own right. She has suffered hives.[34] Sore throat and sore tongue have occurred.[35] A rash over her whole body eventuated.[36] She has suffered thrush.[37]
[34]PCB 11
[35]PCB 12
[36]T48
[37]T48
30 In controlling her condition such that she can work and function normally, she pays the price of enduring very unpleasant side effects.
31 I reject the argument that because the plaintiff has returned to full-time work, it indicates in this case that the pain and suffering consequences are not serious. The evidence as a whole must be considered; in some cases such a return to work might make it difficult to conclude that pain and suffering consequences are at least very considerable. This is not such a case.[38]
[38]Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292 at paragraph 24; Stijepic v One Force Group Australia Pty Ltd & Anor [2009] VSCA 181 at paragraphs 45-47; Sutton v Laminex Group Pty Ltd [2011] VSCA 52 at paragraphs 77-79
32 The plaintiff is highly motivated. Very sensibly, she has found work that accommodates her vulnerabilities to dust and strong chemicals.[39]
[39]PCB 54
33 As with her day-to-day life, she works thus within something of a perimeter fence around the environment that she can safely move in. By doing so she can hopefully avoid severe and frightening asthma attacks. That fence is built on ingesting significant amounts of medication for the rest of her life.
34 For the reasons I have mentioned, it follows that the plaintiff has discharged the onus of proving pain and suffering consequences flowing from the impairment of body function caused by her lung injury meet the test of seriousness.
35 Accordingly, I grant leave for her to bring proceedings for pain and suffering damages.
36 I will hear the parties as to costs.
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