Jessop v The Herald and Weekly Times Limited
[2014] VCC 855
•13 June 2014
| 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-13-02585
| ASHLEIGH JESSOP | Plaintiff |
| v | |
| THE HERALD & WEEKLY TIMES LIMITED | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 and 29 May 2014 | |
DATE OF JUDGMENT: | 13 June 2014 | |
CASE MAY BE CITED AS: | Jessop v The Herald & Weekly Times Limited & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 855 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to lower back – nature of the injury to the plaintiff’s lower back – pain and suffering consequences in a “range case”
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100
Judgment: Leave granted to the plaintiff to bring common-law proceedings for pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M J Ruddle | Slater & Gordon Lawyers |
| For the Defendants | Mr I S Gourlay | Minter Ellison |
HIS HONOUR:
Introduction
1 This is an application brought by Originating Motion dated 22 May 2013 by which the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of and in the course of her employment with the first defendant. The plaintiff alleges that she was originally injured on 3 April 2007 and subsequently, in June of 2009.
2 The plaintiff seeks leave to bring proceedings for pain and suffering damages only. The injury suffered by the plaintiff for which she seeks leave to bring proceedings for damages is an injury to her lower back.
3 The following evidence was adduced during the hearing:
·The plaintiff gave evidence and was cross-examined;
·The plaintiff tendered the following documents:
§Exhibit A – the Plaintiff’s Court Book (“PCB”) pages 7-61, 83-109 and 119-127;
·The defendants tendered the following documents:
§Exhibit 1 – the Defendants’ Court Book (“DCB”) pages 7-10;
§Exhibit 2 – Two DVD-surveillance films for 17, 18 and 19 October 2013;
4 I have read, watched and considered the tendered evidence in the determination of this application.
5 This application is brought under the definition of “serious injury” contained in s134AB(37)(a) of the Act which requires a 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 the plaintiff’s back.
6 Mr I S Gourlay, on behalf of the defendants, identified the issues in this application as follows:
(i) The nature of the injury to the plaintiff’s back; and
(ii) Whether the consequences of the pain and suffering found by the Court amounted to a “permanent serious impairment or loss of body function”. In short, this was a “range case”.
7 The plaintiff was cross-examined in the course of the application. The plaintiff’s credit was not in issue in this application.
The statutory scheme
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.[1]
[1]Section 134AB(1), 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”.[2]
[2]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 and loss of earning capacity 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) Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f) 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 ss(38). I have applied the principles set forth therein in reaching my conclusions in this application.
9 I am required by s134AE 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 1986 and is now twenty-eight years of age. At the time of her original injury, the plaintiff was twenty-one years of age. The plaintiff was born and raised in Australia.[3]
[3]PCB 7
11 The plaintiff is a divorced woman who now lives with her parents and younger sister. The plaintiff currently works as an administrative accounts assistant.[4]
[4]Transcript (“T”) 15
12 The plaintiff completed her secondary education at Heidelberg to Year 12 level. The plaintiff has completed an Advanced Diploma of Financial Services at the Northern Melbourne Institute of TAFE (“NMIT”) in 2009. The plaintiff has subsequently completed a Diploma of International Business in 2013.[5]
[5]T22-23
13 The plaintiff commenced employment with the first defendant as a publishing assistant/labourer in 2005.[6] The plaintiff worked in this capacity whilst she was a student at the NMIT.
[6]PCB 7
14 The plaintiff has subsequently obtained employment as an accounts administrator with Citywide between August 2010 and June 2012. The plaintiff then had a short period of employment with Common Equity Housing.[7] The plaintiff is currently employed with Northern Fire Equipment Services as an administrative assistant.[8]
[7]PCB 14
[8]PCB 14
15 The plaintiff has maintained a consistent and determined approach to remaining in employment and doing study to further her career since she has left school.
Injury with the First Defendant
16 The plaintiff worked at the first defendant’s premises as a publishing assistant or labourer. Her role was to unload a truck by throwing bundles of newspaper and throwing them over a gate on the truck. The bundles of newspaper were thrown into an area known as “the graveyard”.[9]
[9]T17
17 The plaintiff described the initial injury to her in the following terms:
“3. On or about 3 April 2007 I was working in the distribution area. Bundles of paper would come down the conveyor line and onto a tray of a truck. Instead of the bundles of paper being left on the tray of the truck, I had to throw the bundles of paper over a fence which was on the side of the truck. The wire fence was approximately 1½ metres high. The bundles weighed approximately 18 kilograms and I had to pick them up from the tray of the truck and throw them over the high wire fence and as such I suffered injury. When the bundles were thrown over the fence of the truck, they would fall onto the ground and then somebody else would pick them up. The bundles were surplus.
4. After throwing bundles over the high fence, I felt pain in my low back which was like an electric shock. I reported the incident and went to see the nurse. The next day I saw Dr A’Hern. Dr A’Hern put me off work and I was told to rest and to take Panadol. I believe I was off work for approximately four weeks. During the four weeks I saw Dr Sleigh who told me to perform exercises.”[10]
[10]PCB 8
18 In her evidence, the plaintiff was cross-examined about her description of the injury which she signed on a Claim Form for compensation. That Claim Form was said to have been dated 9 April 2007. The plaintiff gave the following evidence:
Q:“Does it say, ‘incident and worker's injury details’? Does it identify how the accident happen?---
A:What happened unexpectedly?
Q:Yes?---
A:Yes. ‘Slipped on large bundles of paper while lifting a large bundle of paper’.
Q:Yes. Does it say that you hurt your lower back?---
A:Back strain, yes.
Q:Yes?---
A:It says ‘Back’.
Q:And is that the claim that you made in relation to the injury that is the subject of this application?---
A:Yes, that was in 2007.
Q:Yes?---
A:Yes.
Q:And that is the injury that we have been talking about?---
A:Yes.
Q:That is the injury that Mr Ruddle has opened the case talking about?---
A:Yes.
Q:The additional material there that you’ve slipped, how did that happen?---
A:There was a lot of papers on the back of the truck.
Q:Yes?---
A:I could have slipped on one. I don’t exactly remember that specific thing. I just remember the pain coming into my back.
Q:Yes. So the slipping while you were lifting?---
A:Yes.
Q:That specific description of how it happened?---
A:Yes.
Q:That is something you have put in the claim form shortly after it happened?---
A:Yes.
Q:Is that true?---
A:Yes.
Q:Yes. But that is not a description that you have included in the circumstances of the accident later on, is it?---
A:No.
Q:It is not something you told His Honour about when I just asked you about it?---
A:Yes.
Q:Why would you leave that out?---
A:To be honest, I didn’t really remember slipping. All I remember is the pain coming on when I was lifting it over the fence.”[11]
[11]T19, L12 – T20, L13
19 The plaintiff states that her injury occurred during the course of unloading the truck. In the process of doing that, she was standing on bundles of paper which she may have slipped on. In her evidence, she stated she could not remember slipping. Her evidence is otherwise consistent with her affidavit and earlier statements of how she injured her back by lifting bundles over a 1.5-metre gate. I do not find any significance in the manner in which the plaintiff injured her back if the difference is that on one occasion she said she slipped whilst lifting or on the other occasion she said she injured her back while she was lifting.
Medical treatment
20 The plaintiff initially attended on Dr Ahern, general practitioner, on 5 April 2007. She complained of lower back pain occurring as a result of sustaining the injury on 3 April 2007 whilst lifting newspapers. Dr Ahern diagnosed the plaintiff with mechanical low-back pain and recommended that the plaintiff rest and take analgesic medication.
21 The plaintiff then returned to work on 17 April 2007 on light duties.[12]
[12]PCB 88
22 The plaintiff’s ongoing treatment and care was then conducted by Dr Kevin S Sleigh. Dr Sleigh is a consultant occupational physician for the first defendant company. Dr Sleigh saw the plaintiff on 18 April 2007 after her initial injury. He continued to see and advise the plaintiff until 20 December 2011. The plaintiff’s employment was terminated on that date. Dr Sleigh referred the plaintiff to Dr Wilk and Dr Vivian.
23 The plaintiff was treated by Dr Victor Wilk, musculoskeletal physician, who first saw her on 10 December 2009. Dr Wilk continued to treat the plaintiff until 11 June 2010. Dr Wilk recommended the plaintiff trial a sacroiliac belt to be worn tight around the hips to ameliorate her pain symptoms. He also recommended that she undergo manual therapy by an osteopath at his clinic. Dr Wilk’s diagnosis was a strain of the left lower lumbar spine involving the left sacroiliac joint.[13] Dr Wilk recommended injections to the sacroiliac joint and long-acting paracetamol for future treatment.[14]
[13]PCB 99
[14]PCB 99-100
24 The plaintiff’s treatment was then taken up by Dr David Vivian, musculoskeletal physician, on the referral of Dr Kevin Sleigh. The plaintiff first attended on Dr Vivian on 30 March 2011.[15]
[15]PCB 83
25 On 23 May 2011, Dr Vivian performed a left L3-4-5 medial branch block on the plaintiff.[16] The plaintiff stated that she felt great relief after that initial injection and went running. In her evidence, she agreed with the proposition that she had “jumped the gun a bit”.[17] The plaintiff went on to say that her pain levels returned to the same level as prior to the initial medial branch blocks.
[16]PCB 84
[17]T31
26 The plaintiff has subsequently had five different injections to the sacroiliac joints since that time:
(i) On 13 July 2011, the plaintiff had injections to the left sacroiliac joint performed by Dr Vivian.[18]
[18]PCB 84
(ii) On 24 August 2011, the plaintiff had a right sacroiliac joint injection performed by Dr Vivian.[19]
[19]PCB 84
(iii) On 20 December 2011, the plaintiff had a left sacroiliac joint injection performed by Dr Vivian.[20] It is to be noted that this is the day on which the plaintiff’s employment with the first defendant was terminated.
[20]PCB 34
(iv) On 31 May 2012, the plaintiff had a further injection to the right sacroiliac joint performed by Dr Mitchell.[21]
(v) On 12 November 2012, the plaintiff had a final procedure where a left sacroiliac joint injection was performed by Dr Vivian.[22]
[21]PCB 84
[22]PCB 85
27 The plaintiff, in her evidence, stated that as a result of each of the injections, she would obtain relief for six months but usually obtained a three-month period of relief.[23]
[23]T32
28 The plaintiff was referred to Dr Tony Kostos, rheumatologist, by Dr David Vivian. Dr Kostos examined the plaintiff on 8 October 2012. Dr Kostos excluded any association with seronegative spondyloarthropathies. At the time the plaintiff was seen by Dr Kostos, she was taking Celebrex 200-milligrams most days. Dr Kostos trialled the plaintiff on a medication of Feldene.[24] The plaintiff stated that the trial of Feldene medication did not improve her condition.[25]
[24]PCB 101A and 101B
[25]PCB 14
29 The plaintiff had ceased work with the first defendant in January 2011. She stated that the reason for stopping at that stage was she was unable to perform two jobs, as she was suffering from pain and fatigue.[26]
[26]PCB 11
30 The plaintiff’s continuing medical treatment is supervised by Dr Matthew Ward, general practitioner. Dr Ward prescribes the medication of Celebrex, Panadol Osteo and Mersyndol to assist the plaintiff with her symptoms.[27]
[27]PCB 24
The medical opinions
Dr Mathew Ward, general practitioner
31 Dr Ward prepared two medical reports dated 1 July 2011 and 22 April 2014. Dr Ward has been treating the plaintiff as his patient in the capacity of general practitioner since January of 2007. In his latest report, Dr Ward noted that the plaintiff had reported a deterioration in her mood and that her back pain had also worsened, disturbing her sleep. At the latest review on 3 April 2014, the plaintiff reported more severe lower back pain, exacerbated by walking, twisting and sitting in a car. She also reported a new type of pain, characterised as electric shocks or tremors in the right sacroiliac area. These symptoms had increasing frequency from once monthly to once or twice daily.[28] Dr Ward diagnosed the plaintiff with the following conditions:
“● Bilateral facet joint arthritis at L45 and L5S1 levels
● Sacroiliac joint dysfunction
● Major Depression.”[29]
(sic)
[28]PCB 22
[29]PCB 23
32 Dr Ward’s prognosis was as follows:
“Bilateral facet joint arthritis at L45 and L5S1 levels: Further improvement is unlikely given the poor response shown multiple treatment modalities, including nerve blocks, anti inflammatory medication, physical therapies and analgesia.
● Sacroiliac joint dysfunction: Further improvement is unlikely given the poor response shown multiple treatment modalities, including nerve blocks, anti inflammatory medication, physical therapies and analgesia.
● Major Depression: uncertain, dependent on outcome of treatment of physical injuries and continuation of psychological therapy including antidepressant medication. Likely to persist with labile mood and recurrent exacerbations of depressive state.”[30]
(sic).
[30]PCB 23-24
33 In Dr Ward’s opinion, there was little prospect of improvement for the plaintiff’s physical condition.[31]
[31]PCB 24
Dr Kevin Sleigh, consultant occupational physician
34 Dr Sleigh prepared one report dated 29 January 2012. Dr Sleigh was in the unusual position of having conducted a pre-employment medical examination on the plaintiff on 9 September 2006. At that examination, Dr Sleigh noted that the plaintiff could touch her toes whilst bending a forward and sideways stretch to the calves.[32]
[32]PCB 87-88
35 Dr Sleigh was the supervising medical practitioner in respect of the ongoing treatment for the plaintiff for all of the time she worked at the first defendant’s premises. Dr Sleigh referred the plaintiff to Dr Wilk and Dr Vivian. I have dealt with this history of treatment earlier in these reasons.
36 Dr Sleigh’s opinion was as follows:
“[The plaintiff] … sustained sacroiliac joint strains bilaterally in the course of her employment as a Publishing Assistant with [the first defendant].”[33]
[33]PCB 95
37 Dr Sleigh noted that the plaintiff’s first injury occurred in April 2007 on the right side and a second injury, which was considered a re-aggravation of the first, occurred in July 2009, which was on the left side.
38 Dr Sleigh noted that the plaintiff’s treatment consisted of:
“She was able to remain at work with the assistance of being provided suitable duties which avoided strain on her lower back, and with the addition of physical therapies and analgesia. However it was not until definitive investigations and treatment targeting the lower lumbar facet joints and the sacroiliac joints bilaterally identified the physical trigger of her pain being her sacroiliac joints bilaterally. Appropriate treatment with sacroiliac joint injections with long acting local anaesthetic and locally acting steroid has been able to significantly reduce her pain.”[34]
[34]PCB 95
Dr Victor Wilk, musculoskeletal physician
39 Dr Wilk prepared a report dated 22 October 2010. Dr Wilk initially saw the plaintiff on 10 December 2009. He last reviewed the plaintiff on 11 June 2010.
40 On examination, Dr Wilk found that the–
“Range of movement of the lower back was moderately restricted for her age. Forward flexion was limited to about 80 degrees, extension 15 degrees and side bending about 20 degrees to each side. Rotation was full range, but painful in both directions. … .”[35]
[35]PCB 98
41 Dr Wilk diagnosed the plaintiff as suffering from a strain of the left lower lumbar spine, possibly involving the left sacroiliac joint.
42 I note that Dr Wilk’s opinion is somewhat dated and of limited assistance to the Court in the determination of this application. Dr Wilk’s opinion and evidence is an integral part of the ongoing history of treatment for the plaintiff between the time of injury and the present time.
Dr David Vivian
43 Dr Vivian prepared a report dated 8 April 2014. Dr Vivian first consulted the plaintiff on 30 March 2011 on the referral of Dr Kevin Sleigh. In his report, he sets out in detail the treatment he provided to the plaintiff. I will not repeat that in this section.
44 Dr Vivian’s opinion was:
“The diagnosis I have made of Ms Jessop’s pain is that it is likely to derive from both sacroiliac joints. It would have been ascertained by now whether or not she has ankylosing spondylitis, or some other form of spondyloarthropathy. If such a diagnosis has not been made and, if it is as Dr Sleigh indicates in his letter that manual handling has been a significant instigator of her pain, then it is likely that she sustained strain, or injury, to sacroiliac ligaments, producing longstanding pain derived from these joints. If she has a spondyloarthropathy, then it is possible that the manual handling has added to the symptoms, but not definite.
I have always found Ms Jessop to be a cooperative patient who has a genuine and severe pain problem associated with her sacroiliac joints. Other treatments that could be directed to these structures, if she has not been diagnosed with spondyloarthropathy, include prolotherapy of the sacroiliac ligaments and radiofrequency neurotomy, associated with an appropriate exercise program. Even with these treatments, she may well have longstanding problems.”[36]
[36]PCB 86
45 Dr Vivian had referred the plaintiff to see Dr Tony Kostos, rheumatologist. Dr Kostos has ruled out any diagnosis of spondyloarthropathy.
Dr Tony Kostos, rheumatologist
46 Dr Kostos prepared a report dated 10 October 2012 in response to the referral from Dr David Vivian. Dr Kostos could find no association with the seronegative spondyloarthropathies.[37] Dr Kostos added Feldene to the medical treatment for the plaintiff. On examination, Dr Kostos had found extensive lumbar and paravertebral tenderness to light touch, extending into the upper sacrum and buttocks.[38]
[37]PCB 101A
[38]PCB 101B
Mr David Brownbill, neurosurgeon
47 Mr Brownbill prepared two reports dated 28 November 2012 and 15 January 2014. In his report, Mr Brownbill stated his opinion as follows:
“On the information provided and noting she did not have any back pain before the 3rd April 2007 with the onset of such pain following the described repeated heavy lifting and throwing activities, the repeated flare ups of such pain following and then with a recurrence of severe low back pain in July 2010 with continuing fluctuating pain since then and the demonstration of lower lumbar facet joint degenerative changes, I consider that on probability this lady has sustained aggravation of those degenerative changes giving rise to pain.
Whilst the exact anatomical structure responsible for her ongoing pain cannot be stated with certainty and the likelihood of pain arising from the facet joints, I consider her described pain is organic in nature.
She should in the future avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting.
Clinical experience shows that once degenerative changes of the lumbar spine have been rendered symptomatic, on occasions pain may continue in a fluctuating manner indefinitely even though the aggravating factors cease.”[39]
[39]PCB 28
48 In his later report, Mr Brownbill stated that active thoracolumbar spinal movements were half of the full in extension and full in all other directions. There was tenderness low to the right of the lumbar spine but without palpable guarding.[40]
[40]PCB 32
49 In conclusion, Mr Brownbill considered the plaintiff’s condition, on the probabilities, was that the work activity sustained aggravation of lumbar spine degenerative changes giving rise to local pain. I note that the pain was much improved for several months at a time when the plaintiff received medial branch blocks but since those treatments have been stopped, her pain has increased further. In Mr Brownbill’s opinion, neurosurgical treatment was not applicable in this case.[41]
[41]PCB 33
Mr John O’Brien, orthopaedic surgeon
50 Mr O’Brien prepared two reports dated 6 February 2012 and 10 September 2013. In his first report, Mr O’Brien accepted that the plaintiff’s employment was a significant contributing factor to her current symptoms. He found that the plaintiff was suffering from non-specific back pain.[42] Mr O’Brien went on to add that he was guarded in relation to the prognosis for the plaintiff, given the extended course of the current symptoms. In Mr O’Brien’s opinion, the plaintiff was not physically capable of undertaking any form of heavy physical duties, thus her work had to be confined to light physical work.[43]
[42]PCB 37
[43]PCB 38
51 In his later report dated 10 September 2013, Mr O’Brien took a history from the plaintiff where she complained of constant pain across her lower back on both sides, the right side being worse than the left. The plaintiff described localised pain as basically the site of the posterosuperior iliac spine.[44]
[44]PCB 41
52 Mr O’Brien gave his opinion as follows:
“I would again conclude that this patient presents with chronic non-specific back pain. I note that some symptomatic relief has been described with varying injections, but I do not consider that this has resulted in defining specific symptomatic pathology underlying the pain generation.
The clinical condition does, in my opinion, remain stable. It does appear that the patient will require ongoing pain management for what is long-term chronic pain, the basis of which will, I am sure, involve the use of medication. It would appear that physical treatment has not resulted in any symptomatic benefit. I would however consider that there is no current indication for further investigations or indeed further invasive treatment.”[45]
[45]PCB 42
Dr Alex Stockman, rheumatologist
53 Dr Stockman prepared a report dated 29 April 2014. This was a medico-legal report requested by the plaintiff’s solicitors. I note that Mr Stockman has not seen the plaintiff for examination or review. The opinion set forth in Mr Stockman’s report is of little assistance to the Court in determining this serious injury application.
Dr Peter Blombery, consultant physician
54 Dr Blombery examined the plaintiff for the purposes of medico-legal reporting. He prepared a report dated 29 April 2014. Mr Blombery set out his opinion as follows:
“It is my opinion that the injury in 2007 caused previously asymptomatic degenerative changes in the lumbar spine to become symptomatic as a consequence of the force of the heavy work that she was doing.
She currently has ongoing pain and it is my opinion that her prognosis now for recovery is relatively poor. It is likely that she is going to be left with her current degree of pain indefinitely
There is no indication for surgical intervention but she is going to require ongoing treatment for chronic pain with multidisciplinary therapy, including the use of analgesic, antidepressant and anticonvulsant drugs, physiotherapy, behavioural therapy, occupational therapy, as well as other techniques such as TENS and acupuncture. She has already had many of these forms of treatment and in particular is going to require the ongoing use of analgesic medications as well as anti-inflammatories and Lyrica if she benefits from the latter.”[46]
[46]PCB 49A
Dr Helen Sutcliffe, occupational physician
55 Dr Sutcliffe saw the plaintiff for medico-legal reporting. She prepared a report dated 24 May 2012. Dr Sutcliffe’s opinion was that the plaintiff had sustained an onset of facet joint degenerative change or aggravation of facet joint degenerative change as a result of the manual handling duties performed by her at the first defendant’s premises.[47]
[47]PCB 57
56 In Dr Sutcliffe’s opinion:
“… a concern is the probability of increasing symptoms relating to the facet joint degenerative change and although it is difficult to predict I believe it is more likely than not Miss Jessop will find she has increasing difficulty with prolonged sitting and standing as a result of increasing pain.”[48]
[48]PCB 59
Professor Paoletti, psychiatrist
57 Professor Paoletti prepared a report dated 26 July 2012 for the purpose of this application. The plaintiff is not claiming any psychiatric injury and I have read Professor Paoletti’s report for background information only. I have not analysed his report in respect of psychiatric injury.
Dr David Weissman, psychiatrist
58 Dr Weissman prepared a psychiatric report dated 10 February 2014. The claim by the plaintiff is not for psychological injury and I have only read his reports for the purpose of background information in respect to the physical injury claimed by the plaintiff.
Dr Sophie Franks, clinical psychologist
59 Dr Franks prepared a report dated 8 March 2013. This report sets out the difficulties of the treatment that the plaintiff has suffered in respect of depression and anger in respect of her back pain. I have read this report and note the detail in the report as background information for the purpose of determining the physical injury in this case.
Mr Peter Battlay, orthopaedic surgeon
60 Mr Battlay reviewed the plaintiff for medico-legal reporting on behalf of the defendants in this matter. He prepared a report dated 22 February 2011.
61 Mr Battlay noted as follows:
“She has mechanical low-back pain most probably related to aggravation of her facet joint degenerative changes.
…
Her clinical presentation is consistent with ongoing symptoms relating to her facet joint condition and these symptoms have now been present for nearly three years.”[49]
[49]PCB 104
Mr Michael Dooley, orthopaedic surgeon
62 Mr Dooley examined the plaintiff for medico-legal purposes on behalf of the defendants. Mr Dooley prepared a report dated 10 December 2013.
63 On examination, Mr Dooley found that there was tenderness of the right low lumbar region. He noted that flexion is to 80 degrees and extension is to 15 degrees. Extension causes low-back pain. Lateral flexion and rotation to the left and to the right are to 20 degrees.[50]
[50]PCB 107
64 Mr Dooley was of the opinion that the plaintiff had aggravated an underlying condition in the course of her employment. He noted that a second episode had more persisting symptoms with ongoing intermittent low-back pain but no sciatica pain.
65 Mr Dooley’s opinion was:
“Miss Jessop’s condition has stabilised. I believe that she will continue to note some intermittent low back pain. I believe that if she continues a regular exercise programme and that if she continues to sensibly modify her activity, then her symptoms will remain under control.”[51]
[51]PCB 108
Mr Clive Jones, orthopaedic surgeon
66 Mr Jones examined and reported on the plaintiff on behalf of the defendants. He prepared a report dated 17 December 2012. In Mr Jones’ opinion, the plaintiff did not disclose any restriction of back function when he examined her. He noted he was unsure as to the source of the pain the plaintiff was complaining of in her back. Mr Jones could not identify the underlying cause of the plaintiff’s chronic back pain.[52]
[52]DCB 9
67 The preponderance of evidence from the medical experts in this case is that the plaintiff suffers from sacroiliac joint pain. She also suffers from low-back facet joint pain. The pain from her lower back is exacerbated by movement and heavy work. The plaintiff is now limited to light duties only.
The credit of the Plaintiff
68 Mr Gourlay fairly stated that the plaintiff’s credit was not in issue.[53]
[53]T53
69 In the course of this application, the plaintiff was shown two separate videos of surveillance film. The surveillance covered the dates of 17, 18 and 19 October 2013. Prior to being shown the surveillance films, the plaintiff made the ready and reasonable concessions that she could walk her dog for approximately 2 kilometres. The plaintiff stated that she would run on some occasions with the dog.[54] When the plaintiff was shown the surveillance film, it had been accurately described by her. The plaintiff was seen to jog in a very funny or awkward manner, but for short distances behind her dog. On the film, the maximum distance she would have jogged at any time would have been approximately 50 metres. On other occasions, the jogging was of a much shorter time. On no interpretation could you describe the movements by the plaintiff as being a run.
[54]T36
70 The uncontested evidence in this case is that the plaintiff played Division 1 women’s basketball. She originally commenced playing basketball with the “Melbourne Tigers” and then moved to the “Whittlesea Pacers”. The plaintiff had also contested in Division 1 of the “Bulleen Boomers”. The plaintiff, prior to her injury, was a competitive basket baller at a very high level. She was clearly an athlete. The movements shown on the video-surveillance films would never be described as an athletic run, jog or any other form. The plaintiff was moving at a pace slightly above walking pace and in an awkward jog – jobble-type style of running.
71 In summary, the plaintiff’s answers in respect of her activities, as filmed on the surveillance films prior to her seeing it, confirmed her accuracy and frankness about her condition.
72 In my view, the plaintiff presents as the quintessential, stoic plaintiff.
Consequences for the Plaintiff
73 The plaintiff swore two affidavits in support of her application dated 17 December 2012 and 30 April 2014. I have read those affidavits and considered her answers in her evidence in determining this application.
Sleep
74 In her second affidavit, the plaintiff states:
“My sleep is satisfactory if I take one of the heavier medications before going to bed. If I do not take them then my sleep tends to be broken, waking once or twice a night.”[55]
[55]PCB 15
75 In her evidence, the plaintiff stated that she was now taking Mersyndol. The evidence was as follows:
Q: “Mersyndol, do you take Mersyndol now?---
A: Yes.
Q:According to the doctor's report that has been added in fairly recently as another medication?---
A:It helps me sleep.
Q:And do you take that every night, or some nights?---
A:Just some nights.
Q:How many times a week approximately?---
A:About two, or three.
Q:And it gets you off to sleep?---
A:Yes.
Q:And keeps you asleep?---
A:It keeps me asleep.”[56]
[56]T29, L31 – T30, L7
76 The plaintiff relies on medication to ensure that she gets a proper night’s rest. In the event she does not take the medication, obviously the plaintiff does not get a good night’s sleep. I find that the need for the plaintiff to take medication to get a proper night’s rest is a very considerable consequence for her, particularly given her youth and the fact that this interruption to her sleep is brought on by pain.
Pain
77 The plaintiff deposes in the course of her evidence, to pain that she suffers in her lower back. The plaintiff does not say that the pain is referred down her legs. It is limited to her lower back region. In the course of her evidence, she demonstrated it as being at the beltline. The doctors that have examined the plaintiff all agree that the area of the plaintiff’s pain appears to be sourced from the sacroiliac joints, both left and right side. The plaintiff has received injections into those joints by Dr Vivian.
78 In her evidence, the plaintiff described the pain as follows:
Q:“Describe the pain to His Honour?---
A:It’s like a constant ache. Sometimes, I get the electric shocks which is - you know how you get the static? The static thing is just constant in my back, like a wriggling. I have to wiggle.
Q:When you say the constant pain, is it there every day?---
A:Yes.
Q:All the day?---
A:Yes.
Q:Yes?---
A:Sometimes increased.
Q:What increases it?---
A:Bend backwards.
Q:Yes?---
A:Sometimes - just sometimes a reaction. You know, you’ll go to - someone drops something, you’ll go to pick - just - and it could just be one of those days where - yeah.
Q:You have said that you have got electric shocks. Whereabouts are the electric shocks?---
A:Where I showed you. On the right-hand side. Only on the right side though.
Q:How often do they come about?---
A:Well, they weren’t really there at the start, but at the moment they’re coming more frequently. At least - well, I’ve had one today, but I hadn’t had one before that for about three or four days. So - yeah, sometimes I get them every day every week and then another time I might not get them for a few days.
Q:What happens when you get this electric shock?---
A:I need - I need to either be sitting down or hold something, because I feel I could collapse.”[57]
[57]T48, L3-26
79 I note in the report of Dr Ward that he had received complaints from the plaintiff in respect of the “electric shocks” experienced by the plaintiff.
80 I accept the plaintiff is suffering from pain in her lower back region in a constant manner. The level of the pain is increased by bending backwards or other activity that brings on the pain. I accept that the pain is constant. I find that the fact that the plaintiff suffers from the level of pain described by her that has required the amount of medication and physical injection intervention in the past is a very significant consequence for her.
Medication
81 The plaintiff stated in her second affidavit that she was taking the following medication:
(a) Panadeine Osteo: six per day;
(b) Celebrex: one per day;
(c) Mersyndol: every two to three days;
(d) Tramal: one per day;
(e) Lyrica: two per day.
82 In the course of her evidence, the plaintiff confirmed that she was taking those medications.[58] I find that the necessity for the plaintiff to take medications for pain relief and to assist her in obtaining sleep is a very considerable consequence for her. It is clear from the evidence of the doctors that the plaintiff will suffer the pain and consequently require the medication for the foreseeable future. I accept that such need for medication is a very considerable consequence for the plaintiff, particularly given her relative youth.
[58]T29-30
Ongoing treatment
83 The plaintiff does not receive any physical ongoing treatment. The only treatment that she now partakes of is exercises to assist with the flexibility and strength of her back.[59] The plaintiff has been unable to fund any further injection treatment to her sacroiliac joints.
[59]T30
Lack of mobility
84 The plaintiff, in her evidence, has clearly stated that she can bend forward without difficulty. The plaintiff is unable to extend – that is, bend in a backward direction – or fully rotate left and right. If she extends or rotates left and right she experiences pain in her lower back. This lack of mobility clearly impacts upon the plaintiff’s ability to play any sport or be involved in any vigorous physical activity.[60]
[60]T33-34
85 The plaintiff stated that she would take her dog for a walk on a regular basis. She stated that when taking the dog for a walk, it would extend for approximately 2 kilometres. It was put, in the course of submissions, that the plaintiff had conceded that she would run the 2 kilometres. I have carefully examined the transcript and it is clear that the plaintiff had stated in her evidence that she would walk the dog for 2 kilometres and may run during the course of that walk. It was not stated by the plaintiff that she could run 2 kilometres.[61]
[61]T36
Activities of daily living
86 The plaintiff stated that she was able to partake in the normal activities at the family home. She has now moved back to live with her parents after divorcing her husband. She gave evidence that she cooked on one evening a week as part of her contribution to the household duties. The plaintiff outlined that she continued to attend at the Portarlington family holidays.[62] It was clear from the plaintiff’s evidence in this regard that her holiday activities were along the same lines as they always had been, with some restriction to the actual physical activities she would involve herself in.
[62]T39
87 The plaintiff stated that she could no longer play basketball. As I have previously outlined in these reasons, the plaintiff was clearly a very good and keen basket baller when she was younger. This injury to her occurred when she was approximately twenty-one years of age. The fact that the plaintiff can no longer partake of sporting activities like basketball at the young age of twenty-eight is a very considerable consequence for her. I note that in the course of her evidence, the plaintiff admitted that on one occasion shortly after her separation from her husband, she attempted to play basketball with her sister. She only lasted five minutes in the game and spent a number of days recovering after that burst of activity. This was a clear and constant reminder to the plaintiff that she is now limited in what sporting activities she can partake. I find this a considerable consequence for her.[63]
[63]T42
Social activities
88 The plaintiff stated that she has reduced her social activities because of her low-back condition. She stated that she was able to go out with her girlfriends but was limited in remaining at a venue unless it has some appropriate seating for her. She stated that she could not stand being on her high-heels for a long period of time. Whilst I accept that this is a setback for the plaintiff, I do not think that the social limits are of any considerable consequence for her. She stated that her last social function was her brother’s engagement party.[64]
[64]T37
Conclusion
89 The consequences to the plaintiff as a result of her low-back injury, when considered separately and in combination and 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 as being “at least very considerable”. I consider that the consequences as described are for the foreseeable future, in the sense that they are permanent.
90 Mr Gourlay, on behalf of the defendants, submitted that the fact that the plaintiff continued to remain in paid employment, albeit alternative employment, was an indicator that the consequences for the plaintiff were not “at least very considerable”. Mr Gourlay relied on the pronouncement of Chernov JA in the case of Sumbul v Melbourne All Toya Wreckers Pty Ltd.[65]
[65][2006] VSCA 292
91 I note that the Court of Appeal also considered that decision in the case of Stijepic v One Force Group Aust Pty Ltd.[66] The Court there noted that it was plain that Sumbul is not authority for the proposition that a return to alternative work is somehow determinative against a worker on the issue of pain and suffering consequences. The most that can be said – and all they took Chernov JA to have been saying – was that if a worker successfully returns to alternative duties it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are “serious”. But, as always, the evidence as a whole must be considered.
[66][2009] VSCA 181
92 I have taken into account all of the evidence as set out in these Reasons for Judgment and find that the plaintiff has suffered a “serious injury” as set out in the statutory test. I find that her condition has stabilised and is now for the foreseeable future.
93 In coming to this conclusion, I also note that the plaintiff is of stoical disposition and tends to underplay her difficulties. Despite her physical difficulties and the pain that she is suffering, she has continued to pursue her studies and attempt to be in employment in a full-time capacity. Her current employment is of an alternative nature and properly described as light duties. It is administrative office work. The fact that a plaintiff is of stoical disposition does not, of itself, mean that the consequences for her are not as serious as someone who is of less fortitude.
94 I grant leave to the plaintiff to bring common-law proceedings for pain and suffering damages arising out of or in the course of her employment with the first defendant.
95 I will hear the parties on costs.
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