Kaylene Price v Leon Rivers

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

AT MELBOURNE
DAMAGES LIST

GENERAL DIVISION

Case No. CI-10-00058

KAYLENE PRICE	Plaintiff
V
LEON RIVERS	Defendant

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JUDGE:	HER HONOUR JUDGE MILLANE
WHERE HELD:	Melbourne
DATE OF HEARING:	16, 17, 18 and 19 August 2011
DATE OF JUDGMENT:	15 September 2011
CASE MAY BE CITED AS:	Kaylene Price v Leon Rivers
MEDIUM NEUTRAL CITATION:	[2011] VCC 1234

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION - s134AB Accident Compensation Act 1985 – claim in relation to pain and suffering – injury-related impairment of the cervical spine – s128 Evidence Act 2008 – extent of certification of evidence given in cross-examination

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms Fiona Ryan	Robinson Gill
For the Defendant	Ms Maria Tsikaris	Lander & Rogers
HER HONOUR:

Introduction
1          The plaintiff is 58 years old. She grew up on a dairy farm in Nar Nar Goon and was schooled to year 11 level. In the mid-1980s the plaintiff separated from her husband. She now lives with her two adult children and two of her grandchildren.
2          The plaintiff was employed from January 1999 at the defendant's vineyard as a vineyard labourer. On 4 January 2001 the plaintiff injured her neck and upper back after foliage wire snapped and she fell backwards.
3 By originating motion filed in the County Court the plaintiff seeks leave under s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) to bring proceedings for the recovery of pain and suffering damages only in respect to injury to her neck, in particular aggravation of pre-existing degenerative changes in her cervical spine causing referred pain and symptoms to her shoulders, arms and left-hand. The application is made under paragraph (a) of the definition of serious injury; that is permanent serious impairment or loss of function of the plaintiff's cervical spine.
4          During the hearing the plaintiff abandoned a further claim for loss of earning capacity damages.
5          The plaintiff did not seek to aggregate any separate shoulder injury, particularly to her left shoulder which she alleged struck a fence post when she fell. Depending on the evidence, injury to more than one body function may contribute to these so long as the evidence demonstrates that injury- related impairment of her cervical spine makes a material contribution to the consequences alleged.
6          Should the Court find ongoing compensable injury to the plaintiff's cervical spine, during the course of the hearing and in its final submissions the defendant argued, as it turned unsuccessfully that, amongst other things, the plaintiff had failed to separate or disentangle symptoms and consequences referable to any ongoing compensable loss of function of her cervical spine from those associated with any other loss of body function.

The Statutory Requirements
7 In accordance with the Act and case law interpreting the relevant provisions, to succeed, the plaintiff must prove a compensable injury and that the pain and suffering consequences of injury-related impairment, when judged by comparison with other cases in the range of possible impairments of the cervical spine are more than "significant" or "marked" and at least "very considerable".
8 In summary, the plaintiff is required to establish a compensable injury which, by definition, includes aggravation, acceleration, exacerbation or deterioration of previous injury or disease; the nature of the injury; the consequences as at the date of hearing, in this case the pain and suffering consequences, to which compensable injury materially contributes and that these consequences are serious in the sense that they are permanent and "very considerable."
9 Any psychological or psychiatric consequences of the plaintiff's physical injury

cannot be taken into account in determining this application for leave under
paragraph (a) of the definition of serious injury.

The Areas of Dispute
10        The defendant conceded compensable injury, particularly the aggravation/exacerbation of asymptomatic degenerative disease of the plaintiff’s cervical spine, a condition from which the defendant alleged she had since recovered. In this regard the defendant sought to rely on reports submitted in July and September 2009 to a treating general practitioner, Dr Tate by treating neurosurgeon, Mr Brazenor. In this correspondence, he described the disc protrusions at the C4/5 and C5/6 levels shown on MRI scans obtained in January 2002 as significant disc injuries which “probably” occurred or were exacerbated by the fall in January 2001. However, having examined the plaintiff and compared these scans with further MRI scans ordered by him in July 2005 Mr Brazenor opined that the disc injuries were "virtually healed."[1] Allowing for the context in which this opinion was given, I did not take this specialist to mean that her injury was no longer symptomatic or that the plaintiff was free from, and would remain free from, any consequences of physical impairment from compensable injury to her cervical spine.
[1]             Plaintiff's Court Book ("PCB"), Exhibit P1, 69 and Defendant’s Court Book ("DCB"), Exhibit D1, 9 to 12B.
11        It is implicit from any fair reading of his reports that Mr Brazenor also thought that the plaintiff would continue to suffer from postural pain in her neck requiring in the future that she select proper seating to maintain an erect posture and that, in addition to precluding a return to her pre-accident employment, her neck condition required her to avoid employment activities which involved dropping her chin to her chest or repeated bending at the waist.
12        Based in the main on the opinion of orthopaedic specialist, Mr Dooley who at the request of the defendant's solicitors examined the plaintiff once on 8 October 2009, the defendant further contended that the pain and restriction of which the plaintiff continued to complain was not organic in its origin. He concluded that:

•

the MRI cervical spine scans obtained in 2002 (that is the earliest imaging to which he referred in his report along with plain x-rays of the plaintiff's cervical spine taken in January 2001) demonstrated naturally occurring degenerative disc disease;
• the plaintiff had originally "sustained a soft tissue injury to the cervical
spine that involved musculoligamentous damage and aggravation of
the underlying degenerative disc disease” and probably a “bruising type injury to the posterior aspect of the left shoulder.” Whilst he appears to have had some doubts concerning this diagnosis, Mr Dooley nevertheless entertained the possibility that in time the shoulder injury had developed into a frozen shoulder with pain and stiffness, which as the plaintiff claimed had responded quickly to hydrodilatation treatment;[2]
[2]             DCB 15.

• there were no "demonstrable so-called non-organic signs on examination";
• the plaintiff had developed a chronic pain syndrome in response to the injury to her cervical spine and left shoulder girdle region with much of her ongoing pain being due to psychological factors;
• the plaintiff would continue to have some neck and left shoulder girdle pain which could be improved by a loss of weight and an exercise and fitness program; and
• from an orthopaedic point of view the plaintiff was capable of carrying out light physical work, clerical duties and administrative work.
13        Notably, Mr Dooley declined to be drawn into any debate about whether the changes observed in the C4/5 and C5/6 discs were traumatic in origin. Rather, Mr Dooley was of the view that these were degenerative changes and therefore any discussion about whether discs heal or do not heal was irrelevant. [3]
[3]             DCB 13 to 17.
14        However, in opining that the constancy and intensity of pain was greater than he expected and that much of this was probably attributable to psychological rather than physical factors, Mr Dooley appears to have concluded that the pathology demonstrated by the only radiology to which he had regard was not significant and that since the fall, with the passage of time, nearly 9 years, symptoms from any work-related aggravation injury should have resolved. Why, individually or collectively, these factors should give rise to a conclusion that the effects of the work-related aggravation injury had been overtaken by psychological factors was not adequately explained by Mr Dooley in this report.
15        Finally, the defendant argued that when compared with other cases in the range of possible impairments, the alleged consequences were not more than significant or marked and at least very considerable.
16        Whilst this was not canvassed in the defendant’s statement of issues or counsel’s summary of the matters in dispute, in response to a question from the Court, prior to embarking on her cross-examination of the plaintiff, the defendant’s counsel stated that the plaintiff’s credit was in issue.
17        As it turned out during cross-examination there was a substantial challenge to the plaintiff's credit, in the main focussed on evidence concerning the receipt of any benefits and her income earning activities in the period between 1985 and the financial year ending 30 June 2000.
18 One consequence of the cross-examination directed to these matters was that, following discussion with her legal representatives and before completion of cross-examination, the plaintiff abandoned her earlier loss of earning capacity claim and, whilst clearly having willingly given evidence, sought the protection of a certificate under section 128 of the Evidence Act 2008 in respect to all evidence given by her during cross examination relating to the receipt of and disclosure to relevant authorities of any income earned by her between 1985 and 30 June 2000. My ruling and the evidence to which subsection 128(7) of that Act applies is explained separately at the conclusion of my judgment on the leave application.
19        In any event for the purpose of the leave application the plaintiff's creditworthiness was challenged on a number of fronts.
20        Most importantly the defendant relied on the admissions made in respect to the particular matter for which the plaintiff's counsel eventually sought protection under section 128 of the Evidence Act as indicative of a general preparedness not to tell the truth in order to obtain financial gain. This submission was made despite the plaintiff's obvious willingness to make admissions concerning both benefits received and her income earning activities well before the commencement of her employment with the defendant in January 1999. Her explanation was to the effect that following their separation she had not received adequate financial assistance from her husband and any dishonesty in this regard arose from her need to pay a mortgage and support herself and her two children and her further evidence that, after she commenced employment with the defendant in 1999, the plaintiff and other employees were paid with cash cheques in order for the defendant to avoid the payment of insurances and superannuation.[4]
[4]             Relevantly, without going into much detail paragraphs 5 to 7 of the plaintiff’s Affidavit sworn on 17 August 2009 (PCB 10) touched on some of these matters.
21        The plaintiff was also taken to medical records commencing from 1988 kept by doctors at the Healesville Medical Centre, particularly a treating general practitioner, Dr Stephens. These entries demonstrated that at various times in association with motor vehicle collisions occurring in 1988 and 1992, after falling off a balcony (in her evidence the plaintiff said that it was in fact a verandah) in 1996 and on other occasions she presented to doctors at this medical centre complaining of either neck and/or backache. Assuming that she was questioned by them about any earlier injury, particularly to her cervical spine, the plaintiff's explanation for any failure to disclose this history either in her evidence in chief or to examining or treating health professionals was that, until she was reminded of these events, she had not remembered suffering any injury to her neck prior to 4 January 2001.
22        The plaintiff is not a sophisticated or highly educated woman who may have, from time to time and for the reasons given, failed, for instance, to declare income received by her from various jobs. This is not to say that the explanations given by her excuse this conduct.
23        Nevertheless for the purpose of this application, I did not form that the view that her application was tainted by deceit or that she was prone to exaggeration. Indeed, none of the health professionals who have treated the plaintiff (or for that matter the examining specialists) and in particular Dr Stephens whose therapeutic relationship with the plaintiff extended from 1988 to the present time, expressed the view that the plaintiff's signs and symptoms were feigned. Similarly, most of these health professionals have not questioned the plaintiff's description of her injury-related symptoms and restrictions. Some may, as Mr Dooley did, ascribe her symptoms to psychological factors. Mr Brazenor, on the other hand, informed Dr Tate without further explanation that the plaintiff reported "a litany of symptoms ... many of which were unfortunately weird."[5] However, it is one thing to attribute symptoms to non-organic causes but quite another to conclude that they are exaggerated or part of a conscious attempt to deceive health professionals for the purpose of obtaining compensation.
[5]             DCB 12.
24        My impression, based on all of the evidence, was that any want of accuracy in the plaintiff's responses at hearing was likely due to both a lack of clarity and precision in many of the questions framed by the defendant in cross- examination and to her difficulty in recalling matters either occurring many years before the fall or in the many years preceding the hearing.
25        Moreover, the plaintiff’s evidence that she was a fit woman involved in physically demanding labouring work at the defendant's vineyard during the two years preceding the injury was uncontested. This evidence is consistent with the earlier clinical records which recorded isolated complaints involving the plaintiff’s neck with no evidence of ongoing treatment.
26        In these circumstances, where all of the earlier complaints of or treatment for neck pain to which the plaintiff was taken during cross examination were made and had likely resolved many years before the fall in 2001, I was not troubled by her evidence that, until reminded of these events, the plaintiff had not recalled them.
27        In all the circumstances I was not persuaded that, due to any earlier dishonesty or failure to recall certain matters and in the absence of specific corroboration of this, I should treat the plaintiff's evidence in this leave application as inherently unreliable or that I should give less weight to particularly the reports of orthopaedic surgeon Mr King who examined the plaintiff at the request of her solicitors in August 2010 and again in July 2011 and who reported that the plaintiff "can never remember any problems of any sort with neck, back or upper limb pains."[6]
[6]             PCB 81.
28        This does not mean that I formed the view that the plaintiff had misunderstood her obligations in respect to the receipt of benefits and/or income in the period from 1985 or that any dishonesty in this regard is in any way condoned by the Court. Obviously all of these factors including any difficulty recalling relevant matters require the Court to take care in assessing and weighing all of the evidence in order to determine the leave application on its merits.

The Evidence Called and Tendered
29        Subject to one minor amendment to the first of these, the plaintiff deposed to the accuracy of her affidavit sworn on 17 August 2009 and her further affidavit sworn on 15 August 2011. She was cross-examined at length.
30        The material tendered by the plaintiff consisted of her Court Book from which a number of documents had been removed and to which, with the leave of the Court, her further affidavit and a letter from specialist anaesthetist, Dr McCarthy to general practitioner, Dr Stephens dated 14 October 2002 were added. The plaintiff also tendered extracts from the clinical records of general practitioner, Dr Tate[7] and extracts from clinical records containing a history of the medication prescribed by practitioners from the Healesville Medical Centre.[8]
[7]             Exhibit P2.
[8]             Exhibit P3.
31        Both Dr Stephens and Kersten Maree Gentle, the plaintiff’s friend who was the Victorian State Manager of Timber Communities Australia (“TCA”) when she employed the plaintiff in 2006, were required for cross-examination. Ms Gentle’s affidavit, sworn on 17 January 2011, was included in the Court Book.
32        The defendant tendered its Court Book from which a number of documents had been removed. In addition, the defendant tendered extracts from the Healesville Medical Centre records, a Certificate of Capacity signed by Dr Stephens on 4 June 2004, a Treating Doctor’s Report signed by Dr Stephens on 5 March 2007 in support of an application for a disability pension and a letter from general and gastroenterological surgeon Mr Richard Cade to Dr Stephens dated 20 May 1996.[9] The defendant failed to explain the relevance of the last-mentioned letter.
[9]             Exhibit D2.
33        The defendant apparently obtained surveillance video material on which it did not rely. In accordance with the plaintiff's submission to this effect the inference I have drawn from the defendant's failure to rely on this film is that it shown the film would not have assisted the defendant in either damaging her credit or contradicting the plaintiff's evidence about her physical activities and limitations.
34        Evidently the plaintiff enjoys a close and supportive relationship with her daughter, Jodie. The plaintiff said that during 2001 her disability due to neck, shoulder and arm pain was such that Jodie (and her young children) moved into the plaintiff's home to assist with tasks such as putting on the plaintiff's shoes and socks and doing up her bra.[10] In cross-examination the plaintiff agreed that on occasions her daughter had accompanied her to appointments with doctors and with the Commonwealth Rehabilitation Service, although as the plaintiff also explained her daughter drove her to these appointments because the plaintiff's symptoms prevented her from driving.
[10]           PCB 12 at paragraph 14 and Transcript (“TN”) 71.
35        When questioned about this the plaintiff told the Court that, whilst she did not know whether it had been used in this proceeding she believed that her daughter had spoken to her solicitors and that she had also sworn an affidavit.
36        Citing Jones v Dunkel[11] the defendant urged the Court to infer that the uncalled evidence of the daughter would not have assisted the plaintiff. However, I was not satisfied that such an inference was warranted on this occasion, particularly in circumstances where, as occurred in this case, Ms Gentle’s evidence, both as a friend and former employer, tended to support the plaintiff's complaint of ongoing and debilitating pain and restrictions due to problems with her neck and where most of the health professionals have accepted that the plaintiff's reported symptoms and restrictions are largely due to ongoing organic impairment of her cervical spine.
[11] 101 CLR 298.

The Plaintiff’s Background
37        In addition to the background matters I have already summarised, amongst other things, the plaintiff's responses during cross examination revealed that, sponsored by Centrelink, she completed a course in hospitality in 1989 and a course leading to a certificate in horticulture in 1992.
38        Having regard to the work to which the plaintiff deposed in her first affidavit and having had her limited recall of these matters tested through cross- examination, I was satisfied that during the early 1980s the plaintiff probably worked intermittently in mainly casual employment as a kindergarten assistant, in a chicken factory, in a milk bar helping out at lunchtimes and she may have commenced performing cleaning work once a week for Overseas Telecommunications ("OTC") before the plaintiff and her husband, whom she married in 1973, separated.
39        Following this the plaintiff appears to have continued working in mainly casual employment and most, but not all, of the jobs performed by the plaintiff were, as she agreed, cash in hand. For instance, the employment she acknowledged included casual work at a chicken farm collecting and sorting eggs, picking strawberries for "perhaps" two seasons and, between 1988 and 1997, apart from six months of full-time work, the plaintiff worked in a car yard on a casual basis detailing cars as well as peforming reception/office duties.
40        The plaintiff also recalled working on call as a waitress and kitchen hand, working casually between 1987 and 1993 at a vineyard for "a day here and a day there"[12], performing some casual work as a personal carer with intellectually and physically impaired adults for about two weeks on a Friday night and working as a kitchen hand for about a week at the RACV Country Club. Whilst she acknowledged that she may have previously performed picking work at the defendant's vineyard, the plaintiff could not recall with any certainty whether, when in 1999 she first commenced her employment with the defendant, she did so in a full-time capacity.
[12]           TN 37.
41        Despite the plaintiff’s belief to the contrary, I considered it unlikely that she submitted tax returns for the years ending 30 June 1999 and 30 June 2000. This was because counsel subsequently informed the Court that correspondence passing between the plaintiff's solicitors and the Australian Tax Office in 2009 indicated to the contrary.
42        At hearing the plaintiff denied knowledge of this correspondence or of the advice received by her solicitors from the Australian Tax Office until these matters were put to her in cross-examination. Based on the material before me I was not able to assess what matters were known to the plaintiff prior to cross-examination. Nevertheless, I note that when these matters were first canvassed during cross-examination the initial failure of both the plaintiff and her counsel to object and seek the protection afforded by s128 of the Evidence Act is consistent with the plaintiff not having at the time understood her potential predicament, at least with regard to the filing of her tax returns.

The injury and treatment received
43 In her first affidavit the plaintiff described her work as a vineyard labourer, the circumstances in which she alleged she was injured and the initial treatment given in the following words:[13]
The work was physically demanding. We had to prune and disbud the vines, pick grapes, fertilise the soil, put netting over the grapes and prune apple and peach trees. The job involved an enormous amount of walking and I was also required to lift heavy buckets. I was very fit.
On Thursday 4 January 2001 a group of us were lifting foliage wires up from the vines. We were stationed at certain points in front of the wire and had to pull the wire back and on this occasion it snapped. The foliage wire often snapped when we did this job; on each occasion we would fall backwards onto the ground. This time I fell backwards and hit my neck on an irrigation pipe and wire in the row of grapes behind us. I also struck my left shoulder against a fence post. When I fell backwards suddenly I jarred my neck and upper back.
I may have lost consciousness for a brief period. I recall that I made a move to try and get up from the ground and another worker told me to stay put. When I did get up I felt very light-headed. I was driven home by a workmate and I recall that when I got home I lay down on the couch and slept for hours. The accident happened on a Thursday so I took the Friday off and expected that I would be back at work on Monday. At that stage I thought I had just bruised myself.
I returned to work on Monday, 8 January 2001 but after about an hour I realised that I could not continue. I had severe pain in my neck, shoulders and upper back. I was also suffering from dizzy spells. I left work and went to see Dr Graham Stephens at the Healesville Medical Centre. He told me that I should rest and he prescribed anti- inflammatory medication and pain relief. He referred me for physiotherapy treatment. I recall that he told me to take about six weeks off work.
[13] Paragraphs 8, 9, 10 and 11.

44        Relevantly, other than the reference to having also struck her left shoulder against a fence post, the plaintiff's account of the circumstances in which the fall occurred, the jarring injury to her neck and upper back and the description of the earliest treatment received generally accord with the Worker's Claim Form submitted by her and the Employer's Claim Report, both made on 20 January 2001, the Healesville Medical Centre records[14], Dr Stephens’ evidence (referring to his clinical notes he said -- “I’ve got hit pole as she landed”[15]), his reports,[16] the Certificate of Capacity issued by him on 4 June 2004 and the first of the letters and reports written by treating physiotherapist, Mr Quittner.[17] For instance, in a letter dated 25 September 2001 addressed to orthopaedic surgeon, Mr Kudelka, a specialist to whom the insurer referred the plaintiff for examination, Mr Quittner described a jarring injury to the plaintiff's neck and upper back after a wire broke causing her to fall backwards onto "the Right shoulder, jarring against the vines."
[14]           DCB 2 and 3 and Exhibit D2.
[15]           TN 137.7.
[16]           PCB 59 to 64.
[17]           PCB 39.
45        As far as I can tell from the material before me, the letter from Mr Quittner contains the first report to the effect that, as a result of the fall, the plaintiff also struck and/or suffered injury to her right shoulder. Subsequent correspondence written by Mr Quittner between September 2002 and September 2003[18] to other specialists, the insurer and to the Australian Compensation Conciliation Service (“ACCS”) also describe wrenching injuries to the plaintiff’s cervical spine and shoulder, each of which he said required physiotherapy treatment. On the other hand, the treating general practitioner, Dr Stephens only mentioned a right shoulder injury many years later in his report dated 5 January 2009, addressed to the plaintiff's solicitors.
[18]           PCB 40 to 50.
46        During cross-examination the plaintiff was adamant that when she fell her left shoulder struck the supporting post holding the dripper line.[19] She denied reporting injury to her right shoulder. Neither the plaintiff nor Dr. Stephens were able to shed further light on this issue.
[19]           TN 97.
47        In all, I was not satisfied that the plaintiff initially presented reporting injury to her right shoulder and/ or that she struck her right shoulder when she fell. For instance, irrespective of whether or not when she fell the plaintiff also struck and/or injured either shoulder, from the time of her first attendance for treatment the medical and radiological evidence, the investigations undertaken and her treatment regime were directed to likely injury to the plaintiff's neck.
48        To start with, plain x-ray film of the cervical and thoracic spine ordered by the general practitioner on 22 January 2001 reported early osteoarthritic change in the cervical spine with a slight narrowing of the disc spaces at the C4/5 and C5/6 levels as well as mild degenerative changes in the plaintiff's thoracic spine.
49        Dr Stephens' clinical notes, confirmed by his evidence, indicate, amongst other things, that on 22 January 2001, in addition to reporting no improvement in her neck and back condition, the plaintiff reported pain radiating to her right arm with occasional paraesthesia in her right hand and that on 15 March 2001 she reported ongoing neck pain radiating to her left shoulder.
50        Moreover, the clinical notes tendered for the year 2001 indicate that, with conservative treatment (time off work, the prescription of anti-inflammatory and pain killing medications – Feldene and panadeine forte – and intermittent physiotherapy) on a number of occasions the plaintiff reported improvement in her condition and she appears to have been motivated to and did return to work, albeit to light duties.
51        As his reports and evidence show, the general practitioner at first diagnosed soft tissue jarring injury to the plaintiff's neck and upper back as well as aggravation of pre-existing degenerative and arthritic changes in her cervical and thoracic spine.
52        This does not mean that the possibility that the plaintiff also injured one or both shoulders was not also considered because by September 2001, her complaints of ongoing symptoms in both shoulders apparently prompted Dr Stephens to arrange for x-ray and ultrasound investigation, neither of which demonstrated any specific shoulder pathology.[20] He next referred the plaintiff to specialist anaesthetist, Dr McCarthy for treatment of what was described as neck and shoulder pain and headaches following the fall.
[20]           PCB 36.

Ongoing treatment and the earliest medico-legal examinations
53        I have already mentioned the treating physiotherapist's letter to Mr Kudelka in September 2001, in which amongst other things he urged MRI investigation of the plaintiff cervical spine and a referral to a pain specialist for investigation of cervical nerve root blocks.
54        As his report demonstrates, Mr Kudelka, who examined the plaintiff on 27 September 2001, was not persuaded by this correspondence or his findings on examination that any further investigation or referral to a specialist was warranted. Based on the results of investigations already undertaken (“there is no abnormality in the enclosed X-ray reports”[21]) and an examination in which he found "normal mobility of the cervical spine, shoulders and thoraco- lumbar spine and no clinical neurological abnormality in the upper limbs"[22] this specialist concluded that the plaintiff was well on the way to complete recovery from a "minor accident" which had aggravated pre-existing degenerative changes in the cervical and dorsal spine causing pain, stiffness and some dizzy spells.
[21]           DCB 8.
[22]           DCB 6 to 8.
55        I am unable to say whether Mr Kudelka would have reached a different conclusion had he subsequently been shown the more sophisticated imaging offered by the MRI scans obtained within months of his examination of the plaintiff. This and the age of his report suggest to me that his conclusions should not be afforded much weight in the final resolution of this application.
56        The plaintiff gave uncontested evidence to the effect that, throughout 2001 she attempted to remain at work. However, in January 2002 the defendant terminated her employment because she was unable to perform the physical work required and her employer could not offer her light duties. It appears that subsequently, throughout 2002 and whilst still undergoing investigations and treatment, the plaintiff nevertheless engaged with the Commonwealth Rehabilitation Service with a view to returning to employment.
57        Dr McCarthy, who first examined the plaintiff on 1 November 2001, arranged for the MRI scans of the plaintiff’s cervical spine undertaken on 11 January 2002. As far as I can tell from the material before me this specialist treated the plaintiff and forwarded reports to various people including the general practitioner, the insurer, the ACCS and to a firm of solicitors. In due course on 16 March 2004 he referred the plaintiff to Consultant in Rehabilitation and Pain Medicine, Dr Clayton Thomas. This was in circumstances where the doctor informed Dr Thomas that his interventions had only provided periods of temporary relief and that he, Dr McCarthy, felt that he had reached, in his words, "a therapeutic dead end."[23] I will say more about this referral and the medico-legal report dated 27 September 2010 submitted by Dr Thomas to the plaintiff's solicitors shortly.
[23]           DCB 17F.
58        Relevantly, from March 2001 a number of entries in the general practitioner's medical notes record, amongst other things, complaints relating specifically to symptoms affecting the plaintiff's left shoulder, arm and/or hand, recorded as "still has neck pain radiating to left shoulder", "ongoing symptoms both shoulders", "still get burning pain and down left arm & cramps in left-hand" and "Still pain & weakness in arms but cramps in left hand have stopped."[24] When Dr McCarthy first examined the plaintiff on 1 November 2001 he also recorded symptoms which included "cramping and paraesthesias" in the plaintiff's left upper limb.[25] Relevantly, the plaintiff has continued to report a similar constellation of symptoms.[26]
[24]           Exhibit D2 and the entries made on 15 March, 4 September and December 2001 and 4 January 2002.
[25]           DCB 17 C.
[26]           See, for example, the reports of medico-legal specialists, in 2002 Mr. Doig, in 2009 Mr. Dooley and in 2010 Dr's Serry, Thomas and Castle whose findings are summarised later in this judgment.
59        As we know from the reported MRI findings the imaging revealed abnormalities at both the C4/5 and C5/6 levels -- "small broad based
discophytic protrusion, slightly more pronounced left paracentral, effaces the anterior thecal sac and mildly flattens the anterior aspect of the spinal cord ...”

and “small broad based discophytic ridge more pronounced right para-centra,
[27]           PCB 37.
indents the central and right lateral aspect of the spinal cord ..."[27]
60        To help locate the source of the pain reported by the plaintiff, on 3 May 2002 Dr McCarthy administered dorsal ramus blocks at the right C4, 5 and 6 levels. A few days later, having been informed by the plaintiff that these blocks provided "definite" relief of neck pain, Dr McCarthy proceeded to perform cervical radiofrequency denervation at the same levels.
61        According to Dr McCarthy within weeks of this treatment the plaintiff reported some improvement[28] and she appeared keen to return to work, an activity the doctor cautioned against for a month. In addition to demonstrating her strong motivation to return to the workforce this account of the plaintiff's response to the treatment administered suggests that injury-related damage to the structures of her cervical spine was a likely cause of the pain of which the plaintiff continued to complain.
[28]           Dr Stephens records a report by the plaintiff to similar effect in his clinical notes made at on 22 May 2002 - Exhibit D2.
62        As it turns out the clinical records, in part explained by Dr Stephens' evidence, show that from 13 May 2002 he commenced prescribing the codeine-based pain killer, Endone because milder analgesics had not been effective. In his evidence in chief Dr Stephens confirmed that, as alleged by the plaintiff, he has continued to prescribe this strong painkilling medication (and currently also prescribes the anti-inflammatory, Mobic which the plaintiff takes occasionally), as he said, to help her manage neck pain and pain radiating to the plaintiff’s shoulders due to degenerative changes rendered symptomatic by the fall.
63        The plaintiff told the Court that the drug, Endone, was prescribed in packets of about 30 tablets. On average, she took Endone 3 times per week, although this could vary depending on her pain levels.[29]
[29]           TN 102.
64        According to the treating general practitioner he prescribes Endone (and Mobic) because the plaintiff had satisfied him that she uses the medication "sparingly and cautiously" and only when she cannot manage the pain.[30] This evidence and the clinical records which indicate ongoing, albeit intermittent, prescription of this drug generally support the plaintiff’s evidence that she has restricted her use of this strong pain killing medication to the times when, as she said, her pain was unbearable.
[30]           TN 128.
65        If the general practitioner's brief records pertaining to each attendance for treatment are read in conjunction with Dr McCarthy's reported treatment of plaintiff's cervical spine injury over a period of some years, notwithstanding the submissions made by the defendant to the contrary, I was satisfied that during at least this period the treatment administered by Dr McCarthy and the prescription by Dr Stephens of Endone, Feldene and on occasions Temaze, the latter for insomnia was probably for the treatment of symptoms relating to her neck injury.
66        It seems that the improvement in the plaintiff's reported pain levels following the denervation procedure in May 2002 was short lived. On 20 June 2002, prompted by further reports of bilateral shoulder and arm pain Dr McCarthy performed a suprascapular nerve block, which apparently led to improvement of the plaintiff's pain levels. After seeking permission from the insurer to do this, on 18 September 2002 the doctor performed a pulsed radiofrequency denervation of the suprascapular nerve with the intention of reducing the plaintiff shoulder pain, improving her overall function and facilitating a return to work.
67        It appears that following the last mentioned procedure the plaintiff reported pain relief ("much less arm pain"[31]) for a limited period, before a return to her previous levels of pain.
[31]           PCB 55(a).
68        During this period of treatment, in October 2002 orthopaedic surgeon, Mr Doig examined the plaintiff at the request of the insurer. As his detailed report demonstrates this specialist accepted as likely that the fall at work aggravated and made symptomatic pre-existing cervical spondylosis in the plaintiff's neck and that the "main trouble" that incapacitated the plaintiff was pain in her neck which radiated down to both shoulders, particularly on the left side. In Mr Doig’s opinion the plaintiff was unfit for all work and he predicted, as it turned out correctly, that she would be left with some permanent impairment.[32]
[32]           PCB 67.
69        According to the plaintiff's first affidavit, despite the interventions intended to reduce her pain levels, and this complaint was also recorded in the clinical notes kept by Dr Stephens, she continued to experience burning pain and restriction of movement in her neck and upper back. The plaintiff also said that she regularly took Feldene and Endone to treat severe pain. Indeed, it appears that this state of affairs persisted throughout 2003.
70        Having regard to the various matters noted in a collection of documents such as Dr Stephens’ clinical records, the additional correspondence written by Dr McCarthy in 2003 and 2004,[33] the physiotherapist's correspondence and the plaintiff's first affidavit, it appears that in addition to her medication the plaintiff probably continued to attend for physiotherapy, she underwent repeat left suprascapular radiofrequency lesion denervation procedures in May and November 2003 [34] and on 1 September 2003 she underwent a left shoulder hydrodilatation, the latter on referral from Dr McCarthy.[35]

[33]           Tendered by the defendant.
[34]           Exhibit D2, entries made on 29 April 2003, 3 November 2003 and 24 December 2003.
[35]           PCB 38.
71        Dr Stephens’ responses in cross-examination indicate that he understood the purpose of the hydrodilatation procedure was to ameliorate particularly symptoms of pain, loss of movement and stiffness in the plaintiff's left shoulder caused by a frozen shoulder, a condition he conceded was unrelated to any symptomatic degenerative disc disease in the plaintiff's cervical spine.[36] In other words, allowing for Dr Stephens' opinion, for the purpose of this application, these symptoms were likely generated by a condition affecting a separate body function, the plaintiff's left shoulder.
[36]           TN 146.
72        Consistent with his evidence and an entry made in Dr Stephens’ notes on 8 September 2003 the probable result of the last mentioned procedure was that, as it was intended to, the hydrodilatation relieved pain in the shoulder joint and increased movement in the plaintiff's left shoulder. However, as the plaintiff explained in her first affidavit, it had not altered the pain she experienced in the rest of her shoulder, back and neck area.[37]
[37]           PCB 13 at paragraph 22.
73        Dr McCarthy's reports, including his final report to the plaintiff's solicitors following a review of the plaintiff on 31 January 2008, establish that, despite uncertainty about the origin of her pain (did it emanate from the discs and/or from the cervical facet joints?), he believed that her complaints of ongoing pain were genuine.[38] For reasons not explained in its submissions, the defendant appeared to view any involvement of the facet joints as evidence that the pain experienced by the plaintiff was no longer caused by work- related injury to her neck.
[38]           PCB 52, and 57 and DCB 17 C to E.
74        In summary, as his report in 2008 demonstrated, Dr McCarthy clearly accepted that the distribution of pain reported by the plaintiff was consistent with and could be caused by the disc protrusions revealed on the MRI scans. Nevertheless, the dorsal ramus blocks he performed in 2002 implicated the cervical facet joints which Dr McCarthy believed were probably also injured during the fall and contributed to the plaintiff's pain levels. On either basis this treating specialist concluded that compensable injury to the structures of the plaintiff's cervical spine made a material contribution to the pain experienced and reported by the plaintiff.
75        Having in 2008 at the request of her solicitors reviewed the plaintiff's condition Dr McCarthy noted, amongst other things, that:

•

the plaintiff complained of pain in her left arm and shoulder but with much less cramping and she complained of left ulnar paraesthesias. On examination he found a good range of neck and shoulder movements, although he also noted decreased sensation to cold and pinprick in the little finger. I took this to be a reference to the plaintiff’s left hand;
• the most recent MRI scans still indicated some degenerative changes;

•

the plaintiff's complaints were essentially similar to those in 2004 with "perhaps some less arm pain";
• the plaintiff's condition had stabilised;

•

if the requirements of any physical labour caused the plaintiff too much pain this accorded with his understanding of her clinical situation.[39]
[39]           PCB 57 to 58.
76        The plaintiff has consistently reported pain travelling from her neck down her left arm and into her hand and sensitivity particularly in the fourth and fifth fingers. Relevantly, Dr McCarthy was not the only doctor whose clinical findings concerning the plaintiff left arm and fingers arguably implicate the ulnar nerve and her cervical spine. For instance, in 2009 Mr Dooley noted altered sensation in the left fourth and fifth fingers and tenderness in the medial aspect of the plaintiff's elbow. In September 2010 Dr Thomas found reduced sensation in the little one and a half fingers of the plaintiff left hand and tenderness at the left elbow, without evidence of weakness or loss of power. Lastly, in November 2010 Occupational Health and Rehabilitation specialist, Dr Castle noted, amongst other things, decreased sensation over the C6/7 distribution of the plaintiff's left arm with decreased power in the left ulnar nerve distribution in association with plaintiff's reports of tingling in her left ring and little fingers.[40]
[40]           DCB 14 and PCB 86 and 91-92.
77        Whether or not the plaintiff failed to pursue any referral fro Dr McCarthy to Dr Thomas either because, as she said in cross-examination, she did not have transport to get to his rooms or, as the doctor wrote to Dr McCarthy on 10 June 2004, because she was undergoing alternative treatment, from early 2004 the plaintiff clearly sought further treatment of her spinal complaints. This time from another general practitioner working from a different clinic, Dr Tate.[41]
[41]           Exhibit P2 and 3.
78        For instance, in view of the entry in Dr Stephens’ clinical notes and his responses during cross-examination it is likely that shortly before 15 March 2004 Dr Tate injected a saline solution into a muscle of the plaintiff's left upper back which gave some temporary relief from muscle spasm, a symptom Dr Stephens confirmed could be referable to the plaintiff's degenerative cervical spine.
79        In cross-examination the plaintiff was challenged about the extent to which from 2005 she received treatment for any ongoing symptomatic neck condition. Based on all the evidence, particularly the clinical records and Dr Stephens’ evidence, I think it clear that throughout 2005, in addition to any injections administered by Dr Tate and the referral to neurosurgeon, Mr Brazenor for treatment of post-injury spinal pain,[42] Endone and Mobic were prescribed for the treatment of neck, shoulder and arm pain, symptoms Dr Stephens continues to attribute to ongoing injury-related impairment of the plaintiff’s neck.[43]
[42]           DCB 17I.
[43]           TN 166, 164.
80        Dr Tate's clinical records confirm that the plaintiff was treated at his clinic until May 2006 when she reported that she was working 4 days per week, 5 hours per day in a "timber shop". This no doubt was a reference to TCA.
81        Over the period the plaintiff attended Dr Tate’s clinic, she apparently received prescriptions for medication which included various sleeping medications, a prescription in April 2005 for Endone relating to her neck injury and prescriptions in May 2005 for Feldene, and for Endep, a tricyclic antidepressant. This represents the first and only reference to the prescription of psychotropic medication prior to the recommendation by consultant psychiatrist, Dr Serry who examined the plaintiff at the request of her solicitors in August 2010, that the plaintiff commence treatment.
82        Based on both the clinical records and Dr Stephens' evidence, it appears that during 2006 the plaintiff was also treated for “cervical disc prolapse” by another doctor working at the Healesville Medical Centre, at which time the medications prescribed relevantly included Endone, Feldene and Temaze, the latter a sleeping medication.
83        In 2006 the plaintiff was employed as a personal assistant to the then Victorian State Manager of TCA, Ms Gentle who was also the Victorian and South Australian Coordinator. During 2006 Ms Gentle was promoted to National Coordinator.
84        TCA is an organisation which, according to Ms Gentle, lobbies governments and councils on behalf of timber communities. In her role the plaintiff was required to help organise conferences and perform administrative work, although by her account she found using computers difficult because this work aggravated pain in her neck, shoulders, upper back and arms. As it turned out, within 10 months the position was declared redundant.
85        Whilst the defendant sought to portray her as a partisan witness, I found Ms Gentle, who was both a friend of 14 or 15 years standing and an employer, to be straightforward in her account of her observations concerning the plaintiff. In all she was an impressive witness.
86        Both through her affidavit evidence and responses given in cross- examination, Ms Gentle explained as follows:

•

the plaintiff had previously worked as a volunteer for TCA, from "probably the early 2000s, maybe";

•

she knew of the plaintiff's difficulties following her injury but she nevertheless felt that when the part-time position for 20 hours per week became available it presented a good opportunity for the plaintiff, whom she understood was living in constant pain and no longer able to perform physical work;

•

she interviewed the plaintiff who was keen to increase her skills and subsequently undertook a computer course at the Swinburne TAFE in Healesville;

•

notwithstanding any work commitments she had away from the office she was present most of the time. Indeed, I was satisfied that apart from their regular contact outside work, Ms Gentle had, as she said she did, a good opportunity to observe the plaintiff at work;

•

even in a supportive environment where Ms Gentle had already arranged for the provision of ergonomically correct office equipment, allowed flexibility in the hours worked and at a later stage installed a bench to allow the plaintiff to stand to perform some tasks, it was clear to her that the plaintiff was in pain, that this prevented her from performing work at the computer for more than about one hour at a time or engaging in repetitive administrative tasks such as doing large newsletter mail outs and that the plaintiff’s work tasks aggravated her pain levels and caused headaches;

•

to assist the plaintiff she took on tasks expected of the plaintiff such as doing her own typing and publications. However, when her husband, whose computer skills were poor, assumed her role as State Manager this put pressure on the plaintiff to do more computer work which caused her “considerable pain”;

•

whilst she acknowledged that the plaintiff’s position was made redundant she also blamed the redundancy on the restrictions on the plaintiff’s ability to perform the computer work required. In other words, Ms Gentle had formed the view that due to her disability the plaintiff did not have the physical capacity to meet the basic requirements of the position.
87        The extracts tendered from the clinical records suggest that in 2006, coinciding with the period of her employment, the plaintiff attended less frequently for renewal of her prescription medication. However, based on all the evidence, including Ms Gentle’s evidence that she had observed the plaintiff taking painkilling medication such as Panadol, I was satisfied that throughout this period the plaintiff probably continued to require painkilling medication for relief of neck-related pain.
88        Following the redundancy the plaintiff next attended the Healesville Medical Centre in February 2007. Initially the plaintiff was treated for right foot pain and she was again prescribed Mobic and Endone. That this medication may have also aided in the treatment of right foot pain does not exclude the likelihood that throughout this period the strong painkilling medication was, as Dr. Stephens' evidence confirmed, probably prescribed for treatment of neck pain.
89        In this regard, I note that in March 2007 Dr Stephens completed a Treating Doctor’s Report in support of the plaintiff's application for a disability pension. The disabling conditions nominated by him included an osteoarthritic condition in the plaintiff's right foot for which the doctor said she was prescribed Mobic and the work-related injury to her neck and upper back for which the plaintiff was at the time prescribed Mobic. Nevertheless, according to this report, past treatments of the work-related injury included Endone, physiotherapy and nerve blocks.[44] We now know that Endone was again prescribed for treatment of the plaintiff’s neck condition after the submission of this report.
[44]           Exhibit D2.
90        Between 2007 and 3 September 2010, the last of the dates to which the subpoenaed clinical records refer, the plaintiff appears to have been prescribed medication by doctors at the Healesville Medical Centre, although as I have already noted in accordance with a recommendation made by the psychiatrist, Dr Serry, in September 2010 Dr Stephens also prescribed Endep. However, there was no evidence to indicate that this or any other antidepressant medication is currently prescribed. This notwithstanding, Dr Stephens said that consistent with the pattern of attendance already established the plaintiff has continued to attend for treatment of her neck condition, that is to say, infrequently.
91        The most recent report tendered from the physiotherapist was addressed to the insurer in September 2003. Nevertheless, I note that at the time he recommended, amongst other things, ongoing twice-weekly physiotherapy. This and various entries in the clinical records indicate that the plaintiff probably continued to receive physiotherapy treatment at least until the end of May 2005. In her first affidavit the plaintiff swore that this treatment continued until 2007, although through the answers given during re-examination, other than claiming that the physiotherapist had been her "lifeline", the plaintiff was not able to say with any certainty that she continued to receive physiotherapy treatment during 2005, 2006 and 2007.[45]
[45]           TN 187.

The Medico-Legal Evidence after 2002
92 The reported result of the MRI scan undertaken on 22 July 2005 which Mr Brazenor apparently felt supported a conclusion that the injured discs had “healed” was as follows:
“ ...
C4/5
There is mild right, and moderate left posterolateral degenerative osteochondral spurring. There is contact to both the nerve roots, and slight rotation of the cord. The central canal is of adequate dimension. There is moderate right posterolateral osteochondral spur, with impingement on the nerve root, and very slight rotation to the cord. Left exit clear.
C6/7
There is a small left paracentral spur, with early attenuation of the left nerve. Central canal and right exit are adequate. Normal findings shows at C7/T1. There is no sign of upper thoracic disc prolapse. Normal signal demonstrated from maro. There is no sign of bone destruction, and para-spinal soft tissues and lung apices normal.
CONCLUSION
Left posterolateral degenerative spurring present, and is of moderate degree at C4/5, with nerve root impingement and mild degree at C6/7, with early attenuation of the exiting nerve roots. Right sided osteochondral spurring is shown, of moderate degree at C5/6 with nerve root impingement, and mild degree at C4/5 with early nerve root attenuation."[46]
[46] DCB 12A –B.

93        I have already discussed the reports submitted by Mr Dooley to the defendant in 2009 following an examination in 2009. The report submitted in 2011 relied on material provided by the defendant's solicitors. Allowing for Ms Gentle’s evidence and in the absence of up-to-date examination of the plaintiff, I have attributed less weight to Mr Dooley's recent advice that the plaintiff remained capable of undertaking various employments including receptionist and administrative type work.
94        In August 2010 Dr Serry obtained a history in which the plaintiff reported "a quite marked psychological impact.”[47] Dr Serry appears to have read numerous reports including those submitted by Mr Kudelka, Mr Doig, Mr Sherburn (whose report was not included in the materials tendered but apparently indicated this specialist’s view that the plaintiff had suffered an aggravation injury of pre-existing degenerative pathology as well as possible cervical disc pathology), the Medical Panel (which had apparently found that the plaintiff was suffering from an aggravation of cervical spondylosis with referred symptoms to the arms but without radiculopathy or long-tracked signs) and a report or reports from Dr Stephens in which he commented on the plaintiff's physical injury and "noted chronic pain with compromised personal pursuits."
[47]           PCB 71.
95        Dr Serry assessed the plaintiff to be of a stoic disposition and someone who appeared reluctant to admit to distress. He diagnosed “a pain disorder
associated with psychological factors and a general medical condition and a
chronic adjustment disorder with anxious and depressed mood.” Relevantly, in Dr Serry's opinion the incapacitating factors affecting the plaintiff were due to her persistent injury-related physical symptoms, not her ongoing psychological symptoms. Nevertheless the psychiatrist described the latter as being of "at least moderate intensity" for which, as I have already noted, he recommended treatment.[48]
[48]           PCB 74 to 75.
96        Mr King examined the plaintiff twice at the request of her solicitors. He provided three reports. The first of these is dated 18 August 2010. In addition to the background material supplied to him, Mr King obtained a detailed history from the plaintiff, he examined her and he viewed radiological material, the most recent being the MRI scans from 2005. As Mr Brazenor did, Mr King appears to have believed that the disc bulge shown in the earliest MRI scans at the C5/6 could have been caused by trauma to the plaintiff's neck when she fell, superimposed on pre-existing degenerative changes.[49]
[49]           PCB 81 to 82.
97        He also appears to have had access to x-rays taken of the plaintiff’s left shoulder, firstly in July 2001 (no significant abnormality) and the x-rays taken in association with the hydrodilatation procedure performed in September 2003. I note that Mr King made no mention of the x-rays and ultrasound investigations of both shoulders undertaken on 17 September 2001. I cannot say from the material before me whether access to these earlier investigations would have made any difference to his diagnosis of mild residual rotator cuff lesions in the plaintiff's right and left shoulders.
98        Nevertheless, whilst not excluding the effects of contemporaneous trauma to the plaintiff's shoulders, based on the account he received Mr King clearly accepted that the main trauma experienced by the plaintiff was to her spine, particularly in the region of her cervical spine.
99        On the two occasions he examined the plaintiff Mr King recorded complaints involving "constant pain in the back of her neck and in the upper thoracic
spinal region, the pain being always present, fluctuating in intensity, being always of at least moderate severity day and night with periodic severe
flareups with exertion and fatigue."[50] In 2011 the plaintiff also reported constant aching pain in her left shoulder of moderate severity which had improved following the original hydrodilatation procedure, although there had been some "mild relapse" over the last year.
[50]           PCB 81 and 84d.
100       Mr King's findings on examination relevantly included "quite marked limitation
of all neck movement by pain and spasm-approximately half of the normal
range of all movements are present."[51]
[51]           PCB 79 and 84e.
101       In summary, with respect to the plaintiff's neck and upper back, Mr King concluded that the damage caused by the fall provided an adequate explanation for her complaints of "persistent nagging cervical and upper
thoracic pain (of) moderate severity, representing a chronic overall impairment of cervicothoracic spinal function of moderate severity, severe enough to prevent her, in its own right, from returning to the sort of heavy manual work

she had done throughout most of her adult life."[52]
[52]           PCB 84e.
102       Whether Mr King was correct in also opining that the plaintiff suffered from much milder injuries to the rotator cuff tendons and ligaments around her left shoulder and an even milder rotator cuff injury to the right shoulder which he felt explained the residual symptoms in her shoulders, as his reports show Mr King attributed the plaintiff's chronic and permanent disability to work-related permanent impairment of her cervical and thoracic spine.
103       The report of Dr Thomas, following his examination on 16 September 2010, also provides clear and unequivocal support for the plaintiff's application vis- a-vis the ongoing consequences of work-related injury to her cervical spine. Consistent with the complaints made by her to other specialists, the plaintiff reported "constant" pain ("the neck was never not aching" and "the pain was like a toothache"),[53] problems with her neck that varied from day to day and at times she experienced sharp pain underneath her left shoulder blade, tingling in her left hand and sensitivities to the left middle and ring fingers, varying sensation through both arms and down the back of her left arm in particular and at times she experienced sharp pain and cramping of the left hand which she then had to force open with her right-hand.
[53]           PCB 86.
104       On examination Dr. Thomas relevantly found that the plaintiff's neck movements were about 65% of normal, that her left shoulder movement was mildly limited lacking full flexion and abduction (without loss of power) and, as already noted, the plaintiff had reduced sensation in the little one and a half fingers of her left hand and tenderness at the left elbow without evidence of loss of power or weakness of the left hand.
105       Dr. Thomas also reviewed the MRI scans. He too noted the disc bulges at the C4/5 and C5/6 levels and, more recently, the presence of osteochondral bar at the C4/5 level, degenerative changes at the C5/6 level and cervical kyphosis.
106       Without differentiating between the various symptoms reported or commenting on the individual clinical findings Dr Thomas concluded that:

•

the nature of the plaintiff's problem was an organic one, with persistent pain and disability caused by the neck injury;
• the pain arose "from the C4/5 and C5/6 disc levels”;

•

the plaintiff “had initially disc bulges and although these seemed to be better on the subsequent MRI" the changes evident in later scans indicated a worsening of the degenerative changes;

•

the plaintiff has a permanent and significantly incapacitating impairment, rendering her unfit to perform her pre-accident duties and it also compromises her ability to perform heavy domestic chores.
107       The most recent medico-legal report was submitted by occupational health and rehabilitation specialist, Dr Castle to the plaintiff's solicitors on 4 November 2010. Generally speaking his report supports the plaintiff's claim in that Dr. Castle was satisfied that the plaintiff suffered moderately severe neck pain caused and "aggravated" by the fall at work.
108       Relevantly during his examination Dr Castle found tenderness over the C/7 intervertebral segment without muscle spasm and, as I have already mentioned, he also found decreased sensation over the C6/7 distribution of the plaintiff's left arm.
109       Dr. Castle concluded that the plaintiff was unfit to return to her pre-injury employment due to the severity of the neck pain, the restricted movement of the cervical spine and what he described as her left ulnar nerve weakness.[54] In all whilst Dr. Castle did not appear to have access to the most recent MRI scans or their results I was satisfied that his report and findings generally accord with the conclusions offered by the majority of the other specialists.
[54]           PCB 88 to 94.
110       To summarise then, whilst some of these specialists thought it possible that the trauma to the plaintiff's neck, as a result of the fall caused the disc protrusions evidenced in the scans obtained in January 2002, the medical evidence largely favours a finding that the plaintiff suffered compensable aggravation injury in the context of pre-existing degenerative changes to her cervical spine.

The Pain and Suffering Consequences Alleged
111       These were generally set out in paragraphs 27 to 43 inclusive of the plaintiff's affidavit and paragraphs 1 to 7 inclusive of her further affidavit[55] with some explanation provided through cross-examination and re-examination. I do not propose to repeat these matters at length.
[55]           PCB 14 to 17b.
112       Suffice to say that in keeping with the accounts summarised by most of the health professionals to whose reports and evidence I have referred, the plaintiff said that she experiences constant neck pain of varying intensity which, when it increases, radiates to both shoulders (worse in the left shoulder). During re-examination the plaintiff described pain over the last 10 years travelling from the nape of her neck into her left upper back and shoulder, down her left arm ("more the back"[56]) through the inside of her left arm and wrist affecting her little finger and ring finger. She said that the pain is always present, although it fluctuates between being "like a dull toothache" and being really severe. As I have already mentioned the plaintiff regularly (and if Dr Stephens' evidence is afforded full weight) responsibly uses Endone to manage severe pain and Mobic when required.
[56]           TN 183.
113       The pain described by the plaintiff interferes with her capacity to work in a range of occupations including office and administrative work and to sleep (despite the use of sleeping tablets she only averages three hours of proper sleep each night).
114       The impairment of her cervical spine restricts the plaintiff's mobility. For instance, whilst she has progressed past the stage where she could not do up her own bra, the plaintiff said that to this day she can only do up her bra at the front of her body and spin the bra around. This is because when she tries to use her left arm and twists to do up her bra these movements generate pain radiating from the back of her neck.
115       The plaintiff also said that restriction in the movement of her cervical spine impacted on her ability to drive. In its final submissions the defendant sought to rely on what it perceived to be an inconsistency between the evidence contained in the plaintiff's first affidavit sworn in August 2009 and one of her responses to cross-examination on this issue.
116       In paragraph 30 of her first affidavit the plaintiff deposed to the following:
"My movement is very restricted. I cannot drive on roads with dual lane carriages because I cannot move my neck around to check my blind spot. I am able to drive to my sister's place in Pakenham because that is a single lane the whole way. Otherwise I only drive locally. It is only recently that I have become more confident with driving. For the first four years after the accident I hardly drove at all because I was so concerned about not being able to check over my shoulder and dizzy spells."

117       In cross-examination the plaintiff conceded that prior to her injury she visited her sister and, when she was alive, her mother in Pakenham frequently -- "most Friday nights". When it was put to her that she had continued to drive to Pakenham from Healesville and back again the transcript indicates that the plaintiff said: "I didn't do the driving. Jodie did the driving. Until -- until most
probably the last two years, I haven't driven -- and I still don't drive much. Everybody else does the driving but I do -- do a little bit more now than I ever
have."[57] Once allowance is made for the two years which have elapsed between the plaintiff swearing her affidavit and the hearing, the assertion made by the defendant is unsustainable.
[57]           TN 74.
118       Reduced mobility has also led to significant weight gain.
119       Domestically the plaintiff spoke of restrictions in her ability to perform the more strenuous tasks which she said she left to her daughter. However, the plaintiff said that she does do most of the cooking at home and she is now able to do most of the household shopping because, as the plaintiff deposed in her further affidavit, she uses the shopping trolley to reduce the strain on her arms and neck and she ensures that only a few items are placed in each shopping bag. Moreover, because she finds stretching out her arms painful, the plaintiff only hangs out washing in “small bursts."
120       It appears that the plaintiff's pain and her impairment also impact on her social and recreational activities. For instance, the plaintiff said that she is restricted in her ability to play with her grandchildren and, as she had done in the past, go camping most weekends. According to the plaintiff last Christmas pain caused her to leave a camping holiday (driven by her grandson who was driving on L plates) ahead of other members of her family.
121       Even accepting for the moment that injury to one or both of the plaintiff's shoulders also contributes to any of the consequences to which the plaintiff refers, having regard to all of the evidence I was satisfied that injury-related impairment of the plaintiff's neck is probably the main contributor to the range of consequences mentioned.

Findings
122 In this application there is evidence of pre-existing degenerative changes in the plaintiff's cervical spine. To the extent that this is directly addressed, or can be inferred from the reports made, the evidence of the treating and medico-legal specialists (including the general practitioner) has satisfied me that the plaintiff suffered compensable injury as a result of the incident on 4 January 2001, that is aggravation of pre-existing asymptomatic degenerative changes in her cervical spine. Her employment with the defendant was a significant contributing factor to this injury and injury-related impairment continues to make a material contribution to the pain and suffering consequence I have already summarised. This consequence is serious because it is permanent (that is it is likely to last into the foreseeable future) and because, if one takes time to reflect on the extent to which ongoing pain and limitation impact on the plaintiff’s enjoyment of life, on her activities and on her capacity to return to employment of the kind performed by the plaintiff prior to the fall, when judged by comparison with other cases in the range of possible impairments, the pain and suffering consequences of the injury to the plaintiff’s neck are fairly described as “being more than significant or marked, and as being at least very considerable.”
Orders
123 Accordingly, I propose to make an order granting leave to the plaintiff to commence proceedings against the defendant in respect of pain and suffering damages only for impairment and loss of function of her cervical spine. I will hear from the parties as to the making of appropriate orders.

Certification under section 128 of the Evidence Act 2008
124 Section 128 of the Evidence Act 2008 relevantly provides:
128 Privilege in respect of self-incrimination in other
proceedings

(1)

This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness—

(a)

has committed an offence against or arising under an Australian law or a law of a foreign country; or
(b) is liable to a civil penalty.

(2) The court must determine whether or not there are
reasonable grounds for the objection.

(3)

If the court determines that there are reasonable grounds for the objection, the court is to inform the witness—

(a)

that the witness need not give the evidence unless required by the court to do so under subsection (4); and

(b)

that the court will give a certificate under this section if—

(i)

the witness willingly gives the evidence without being required to do so under subsection (4); or

(ii)

the witness gives the evidence after being required to do so under subsection (4); and
(c) of the effect of such a certificate.

(4) The court may require the witness to give the
evidence if the court is satisfied that—
(a) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and

(b)

the interests of justice require that the witness give the evidence.

(5)

If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must cause the witness to be given a certificate under this section in respect of the evidence.
(6) The court is also to cause a witness to be given a
certificate under this section if—

(a) the objection has been overruled; and

(b)

after the evidence has been given, the court finds that there were reasonable grounds for the objection.

(7)

In any proceeding in a Victorian court or before any person or body authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence—

(a) evidence given by a person in respect of which a certificate under this section has been given; and
(b) any information, document or thing obtained as a direct or indirect consequence of the person having given evidence—

cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.
Note
This subsection differs from section 128(7) of the Commonwealth Act. The Commonwealth provision refers to an "Australian Court" instead of a "Victorian court".

(8)

Subsection (7) has effect despite any challenge, review, quashing or calling into question on any ground of the decision to give, or the validity of, the certificate concerned.
----------------------------------------------

125       This provision commenced operation on 1 January 2010. It gives statutory form, albeit in a modified way, to the common-law privilege against self- incrimination.
126       In summary then, under section 128 a witness may give (as the plaintiff did in cross-examination) or be compelled to give self-incriminating evidence and obtain a certificate from the court which excludes the use of that evidence against the witness as well as of any information, document or thing obtained as a direct or indirect consequence of the witness having given evidence.
127       As I have already mentioned in my reasons for judgment in this application, the plaintiff at first sought leave in respect to both pain and suffering and pecuniary loss damages. Her first affidavit sworn on 17 August 2009 set out the plaintiff's evidence in chief, including her evidence relating to her income earning activities prior to commencing employment as a labourer in the defendant’s vineyard. At hearing, subject to one minor amendment, the content of this affidavit and of her further affidavit sworn on 15 August 2011 was adopted by the plaintiff as true and correct.
128       The plaintiff was cross-examined at length. During the course of this cross- examination the plaintiff was questioned about the receipt of various benefits and allowances paid and about her declaration of any income received from any income earning activities during the period between 1985 (following separation from her husband) and 30 June 2000.
129       Pursuant to section 128 the plaintiff sought certification of all evidence given by her in cross-examination in this leave application relating to the receipt of and disclosure to relevant authorities of any income earned by her between 1985 and 30 June 2000.[58] The evidence for which she sought certification included the evidence given in cross-examination by the plaintiff prior to the plaintiff (initially through her counsel) objecting to giving evidence on this particular matter.
[58]           TN295.
130       I think it self-evident in this particular case that had her counsel objected immediately or had the Court intervened before it did to ensure that the plaintiff knew of her right to decline to answer on the grounds of self- incrimination, despite her apparent willingness to give the evidence the plaintiff would have had an opportunity to object and thereby enliven the section.
131       Importantly, once the objection was made the defendant accepted, in all the circumstances as it should have, that in accordance with the provision the Court could be satisfied (as I was) that there were reasonable grounds for the objection made. Subsequently, having had the effect of section 128 explained to her, the plaintiff willingly gave evidence without being required to do so under subsection (4).
132       The question of whether the certificate granted should also extend to the evidence given in cross-examination on the particular matter prior to the objection by the plaintiff was argued in final submissions.
133       In the course of these submissions there was discussion of the proper construction to be given to section 128 of the Evidence Act, the defendant arguing that the protection envisaged by the section could only apply to evidence given after an objection to giving the evidence is made by the witness.
134       In the absence of Victorian authorities, for guidance on this point I was taken to the unreported decision of Einstein J in Meiko Australia Pacific Pty Ltd v Adam Samuel Hinchliffe.[59] Section 128 of the Evidence Act 1995 (NSW) with which His Honour was concerned is expressed in similar terms to the Victorian provision.
[59]           2009 NSWSC 354.
135       In the Meiko case His Honour was obliged to determine an application by a party who had been granted a certificate for evidence to be given, to extend the certificate to affidavit evidence, that is evidence in chief, which had by then been filed, served and read in the proceeding without objection.
136       His Honour rejected the application made because he construed the terms of the provision to "clearly contemplate that a certificate, if granted, is granted
prior to the giving of evidence not to evidence which has already been given,
particularly where no objection was taken."[60]
[60]           At paragraph 184.
137       His Honour took the view that to accede to what in that case would have amounted to a retroactive application of the provision of the New South Wales legislation, was not in keeping with the language of that section and it would undermine the purpose of the section, which was, he said, to prevent witnesses from being coerced into giving evidence which tends to incriminate them.[61]
[61]           At paragraph 186.
138       In her submission the plaintiff's counsel placed particular reliance on His Honour's observations at paragraph 188 of the decision where he said:
Accordingly, it appears that a certificate should extend only to questions to which objection might be taken, that is, to questions put in cross-examination. Although no objection to any questions was in fact made on behalf of the first defendant, that an objection in reliance (on) the privilege against self-incrimination would be made to the entirety of the cross-examination is implied from the making of the application.

139 Based on the circumstances of her case on behalf of the plaintiff it was submitted that by making the objection as she did during the course of cross- examination the plaintiff should be taken to have impliedly objected to the entirety of the evidence on the particular matter with which we are here concerned.

140       In my view the construction of section 128 of the Evidence Act urged by the defendant is too narrow. It ignores the practical realities of conducting hearings where at times the response or responses of a witness or party to cross-examination is given before it has been ascertained that the witness or party is aware of their right to object.
141 Section 128 of the Victorian Evidence Act should be construed with due regard to the purpose and language of the section and its function within Chapter 3 of this Act which generally deals with the admissibility of relevant evidence. Through the provision of limited immunity the section facilitates the giving of admissible evidence and therefore the interests of justice, irrespective of whether that evidence is given willingly or because the court has required the witness to give the evidence.
142       The section does not operate in isolation. For instance, where it appears to a court that a witness or party may have grounds for making an objection under Part 3.10, which deals with privileges including the privilege in respect of self- incrimination in other proceedings, the court is obliged to satisfy itself that the witness or party is aware of the effect of the provision which grants them the right to make an objection.[62]
[62]           Section 132.
143       The plaintiff's credit was the subject of a significant challenge. During cross- examination the plaintiff responded to a series of questions the answers to which were no doubt relevant to both an assessment of her credit and, had she not abandoned this, to her pecuniary loss claim.
144       As it turned out on this occasion where neither counsel nor the Court intervened at an earlier stage, I could not be and I was not satisfied that the plaintiff was aware of the right to object until after her legal representatives were given an opportunity to explain this to her and I too had explained these matters to her. Based on its circumstances this is clearly a case where as a matter of logic and fairness the certificate should, as was submitted by the plaintiff's counsel incorporate all of the cross-examination on the particular subject matter.
145       Accordingly, the certificate granted extends to all of the cross-examination on the particular subject matter.

•	the MRI cervical spine scans obtained in 2002 (that is the earliest imaging to which he referred in his report along with plain x-rays of the plaintiff's cervical spine taken in January 2001) demonstrated naturally occurring degenerative disc disease;
•	the plaintiff had originally "sustained a soft tissue injury to the cervical

•	there were no "demonstrable so-called non-organic signs on examination";
•	the plaintiff had developed a chronic pain syndrome in response to the injury to her cervical spine and left shoulder girdle region with much of her ongoing pain being due to psychological factors;
•	the plaintiff would continue to have some neck and left shoulder girdle pain which could be improved by a loss of weight and an exercise and fitness program; and
•	from an orthopaedic point of view the plaintiff was capable of carrying out light physical work, clerical duties and administrative work.

•	the plaintiff complained of pain in her left arm and shoulder but with much less cramping and she complained of left ulnar paraesthesias. On examination he found a good range of neck and shoulder movements, although he also noted decreased sensation to cold and pinprick in the little finger. I took this to be a reference to the plaintiff’s left hand;
•	the most recent MRI scans still indicated some degenerative changes;
•	the plaintiff's complaints were essentially similar to those in 2004 with "perhaps some less arm pain";
•	the plaintiff's condition had stabilised;
•	if the requirements of any physical labour caused the plaintiff too much pain this accorded with his understanding of her clinical situation.[39]

•	the plaintiff had previously worked as a volunteer for TCA, from "probably the early 2000s, maybe";
•	she knew of the plaintiff's difficulties following her injury but she nevertheless felt that when the part-time position for 20 hours per week became available it presented a good opportunity for the plaintiff, whom she understood was living in constant pain and no longer able to perform physical work;
•	she interviewed the plaintiff who was keen to increase her skills and subsequently undertook a computer course at the Swinburne TAFE in Healesville;
•	notwithstanding any work commitments she had away from the office she was present most of the time. Indeed, I was satisfied that apart from their regular contact outside work, Ms Gentle had, as she said she did, a good opportunity to observe the plaintiff at work;
•	even in a supportive environment where Ms Gentle had already arranged for the provision of ergonomically correct office equipment, allowed flexibility in the hours worked and at a later stage installed a bench to allow the plaintiff to stand to perform some tasks, it was clear to her that the plaintiff was in pain, that this prevented her from performing work at the computer for more than about one hour at a time or engaging in repetitive administrative tasks such as doing large newsletter mail outs and that the plaintiff’s work tasks aggravated her pain levels and caused headaches;
•	to assist the plaintiff she took on tasks expected of the plaintiff such as doing her own typing and publications. However, when her husband, whose computer skills were poor, assumed her role as State Manager this put pressure on the plaintiff to do more computer work which caused her “considerable pain”;
•	whilst she acknowledged that the plaintiff’s position was made redundant she also blamed the redundancy on the restrictions on the plaintiff’s ability to perform the computer work required. In other words, Ms Gentle had formed the view that due to her disability the plaintiff did not have the physical capacity to meet the basic requirements of the position.

•	the nature of the plaintiff's problem was an organic one, with persistent pain and disability caused by the neck injury;
•	the pain arose "from the C4/5 and C5/6 disc levels”;
•	the plaintiff “had initially disc bulges and although these seemed to be better on the subsequent MRI" the changes evident in later scans indicated a worsening of the degenerative changes;
•	the plaintiff has a permanent and significantly incapacitating impairment, rendering her unfit to perform her pre-accident duties and it also compromises her ability to perform heavy domestic chores.

(a)	has committed an offence against or arising under an Australian law or a law of a foreign country; or
(b)	is liable to a civil penalty.

(2)	The court must determine whether or not there are reasonable grounds for the objection.
(3)	If the court determines that there are reasonable grounds for the objection, the court is to inform the witness—

(5)	If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must cause the witness to be given a certificate under this section in respect of the evidence.
(6)	The court is also to cause a witness to be given a certificate under this section if—

(a)	the objection has been overruled; and
(b)	after the evidence has been given, the court finds that there were reasonable grounds for the objection.

(a)	evidence given by a person in respect of which a certificate under this section has been given; and
(b)	any information, document or thing obtained as a direct or indirect consequence of the person having given evidence—

[2011] VCC 1234

15 September 2011