Kinder v Alpine Way Supermarket Pty Ltd
[2011] VCC 1224
•22 August 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT WANGARATTA
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-05088
| TRUDI JOY KINDER | Plaintiff |
| v | |
| ALPINE WAY SUPERMARKET PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE KINGS |
| WHERE HELD: | Wangaratta |
| DATE OF HEARING: | 28 and 29 July 2011 |
| DATE OF JUDGMENT: | 22 August 2011 |
| CASE MAY BE CITED AS: | Kinder v Alpine Way Supermarket Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1224 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.134AB – pain and suffering only – injury to the hip – application granted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti | Nevin Lenne & Gross |
| with Mr G Pierorazio | ||
| For the Defendant | Mr R Middleton SC | Wisewould Mahony |
| with Ms J Forbes | ||
| HER HONOUR: |
1 This is an application brought by the plaintiff for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by her in the course of her employment with the defendant on 25 June 2007.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is injury to the left hip.
6 The plaintiff relied upon two affidavits, sworn 18 May 2010 and 24 June 2011. The plaintiff was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant Legal Principles
7 The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act.[1]
[1] S.134AB(19)(a) of the Act
8 In order to succeed, the plaintiff must prove, on the balance of probabilities
that:
(a)
“the injury” suffered by her arose out of, or in the course of, or due to the nature of, her employment with the defendant on 25 June 2007.[2]
(b)
the impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.[3]
(c) under s.134AB(38)(b) of the Act, the term “serious” is to be: [2] S.134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
[3] Barwon Spinners (ibid) at paragraph [33]
“… satisfied by reference to the consequences to the worker of
any impairment or loss of a body function … with respect to—
(i) pain and suffering;
…
when judged by comparison with other cases in the range of
possible impairments or losses of a body function … .”
(d) under s.134AB(38)(c) of the Act: an impairment or loss of body function, in this case, the pain and suffering, shall not be held to be serious unless the consequences, when judged by comparison with other cases, is: “… is, when judged by comparison with other cases … fairly described as being more than significant or marked, and as being at least very considerable.”
9 The Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
10 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[4]
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[5]
[4] [2009] VSCA 181
[5] ibid at [42]
11 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent,
by what has been retained.”[6]
[6] Stijepic v One Force Group Aust Pty Ltd (ibid) at paragraph [44]
12 The test for “serious”, as set out in paragraphs (b) and (c) of s.134AB(38) of the Act, is sometimes referred to as the “narrative test”.
13 In determining the application, the Court:
(a)
must make the assessment of “serious injury” at the time the application is heard.[7]
(b)
notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[8]
[7] S.134AB(38)(j) of the Act
[8] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]
The Issue
14 Counsel for the defendant informed the Court that this is a “range case”; namely, that the consequences of the plaintiff’s injury do not meet the test of seriousness for pain and suffering, in that they could not be considered “as being more than significant or marked and as being at least very considerable” when compared to other cases in the range.
15 Further, when the Court considers the pain and suffering consequences that have been retained as opposed to what has been lost, the plaintiff is engaging in activities that militate against a finding of serious injury.
The Plaintiff’s Evidence
In her affidavits sworn on 18 May 2010 and 24 June 2011 the plaintiff deposed that:
• She commenced employed with the defendant in October 2006. •
On or about 26 June 2007 she injured her left shoulder, left hip and back when she fell from a step ladder.
•
She consulted her general practitioner the next day, who certified her fit to perform light duties. She continued to work for the defendant.
•
In October 2010 she resigned from the defendant and now works 20 to 25 hours per week in customer service at the post office in Bright.
•
The pain in her left shoulder has improved and she has a reasonable range of movement, but it still aches on cold days. She continues to suffer significant pain in her left hip, left buttock and low back. She also suffers weakness in her left leg. The pain is aggravated by sitting, standing, walking or driving for more than 20 minutes and bending, stooping or lifting. The pain makes it difficult to sleep. She has suffered depression since the injury and has taken anti-depressant medication.
•
She continues to see Dr O’Brien, general practitioner, every three months. She takes Panadeine Forte, Panadol Osteo and Naprosyn.
•
She is restricted in her social, domestic and recreational activities. She no longer does the vacuuming or changing the sheets. She struggles with the cooking, washing and ironing. She is limited in what she does in the garden. She is no longer able to water ski, snow ski or ride a bike. She continues to ride her horse, but finds it difficult and painful. She no longer enjoys going to the movies or out for dinner. Her intimate relations have suffered.
The Plaintiff’s Evidence in Cross-Examination
16 The plaintiff was cross-examined and gave the following pertinent evidence:
•
She agreed that she does not walk with a limp all the time, but for a lot of the time.
• Before she goes for a walk she takes Panadeine Forte. • She agreed she had not taken time off work because of the hip. •
She said she was unaware that she had to return to Dr Vivian for radio- frequency treatments.
• She agreed she had four CT scan-controlled facet joint injections. •
She agreed she rides her horse but is limited in dressage competitions as she does not have the requisite strength in her legs. She takes medication before riding.
• At work she sits at lunchtime. • The children assist with household duties. • She has driven long distances but with a number of breaks. 17 In re-examination, the plaintiff said:
• The pain she has is constant, 24 hours a day, 7 days a week. • She has interrupted sleep and takes painkillers during the night. • She said she walks with a limp because walking hurts.
Investigations
18 On 16 October 2007, an x-ray of the left hip-pelvis reported:
“Both hip joints and both proximal femora appear normal. No fracture. No abnormality in the visualised pelvis. There may be very subtle enthesopathic changes at the left greater tuberosity, which may reflect underlying gluteus minimus or medius tendinopathy.”
19 On 12 May 2008, a bone scan of the whole body showed mild facet joint arthropathy in the lumbar lower spine.
20 On 30 October 2007, an MRI scan of the left hip showed normal appearance of the left hip and proximal femur. Tendinosis and partial-thickness insertional tears of gluteus minimus and, to a lesser extent, the anterior lateral fibres of gluteus medius.
21 On 19 March 2009, under a septic technique, and ultrasound guidance, a mixture of steroid and Marcain was injected into the left trochanteric bursa and at the insertion of the gluteus medius tendon. No immediate complications were noted.
The Plaintiff’s Medical Evidence
22 In a letter dated 26 July 2007, Dr Russell Richardson of the Bright Medical Centre wrote to Ms Holt in respect to the plaintiff, referring the plaintiff for assessment. He noted that the plaintiff had injured her left shoulder and hip at work three weeks previously.
23 On 18 September 2007, Dr Frawley, orthopaedic surgeon, saw the plaintiff on referral from her general practitioner. He recorded that the plaintiff was standing on a ladder attending to the shelves when she fell off and landed on her hip and outstretched arm. On that occasion, Dr Frawley was reporting on the pain in the shoulder. In a report to her general practitioner in October 2007, Dr Frawley referred to the hip pain, which upon examination demonstrated normal movements and strength. He said he had organised an x-ray of the hip, which revealed slight irregularity of the greater tuberosity. He thought she would benefit from an MRI scan, which he organised.
24 In November 2007, in a referral letter to Dr David Kirwan, orthopaedic surgeon, Dr Frawley reported that the MRI scan of the left hip revealed partial tear of some of the abductor tendons.
25 In November 2007, Dr Kirwan reported to Dr Frawley that he had seen the plaintiff in respect to the left posterior trochanteric pain, which started with the fall off a ladder at work. He noted the plaintiff limped and could walk for one kilometre without pain. On examination, she had a very tender trochanter and mild pain on the Trendelenburg Test, which was negative. He had asked her to lose weight and would review her in three months.
26 In February 2008, Dr Frawley reported to the general practitioner that the plaintiff’s left hip continued to bother her and that she was to see Dr Kirwan for review in two weeks. In March 2008, Dr Kirwan reviewed the plaintiff and said the trochanter remained very tender, and he recommended an injection.
27 In April and May 2008, Dr Marinis Pirpiris, orthopaedic surgeon, examined the plaintiff at the request of the plaintiff’s general practitioner. He noted that the steroid injection into the trochanter bursa resulted in no significant improvement. He suggested an MRI scan of the area to try and delineate as to whether to exclude significant facet joint issues relating to the pain. He reported that the MRI scan of her lumbar spine and bone scan demonstrated mild facet joint arthropathy in the lower lumbar spine. There was minor increase in uptake in the bilateral facet joints at L5-S1 and there was also minor increased uptake in relationship to the bilateral facet joints of L4-5. As a result, he thought a CT-guided facet joint injection to both the L5-S1 and L4-5 facets on the left side was appropriate. He provided the plaintiff with a request for this and was hopeful it would alleviate her pain, along with continued physiotherapy and massage.
28 Dr David Vivian, pain management specialist, saw the plaintiff at the request of Dr Marinis Pirpiris. He noted the plaintiff complained of persistent pain in the left hip region. On examination, he noted the left hip was irritable. He diagnosed a left hip joint origin pain, probably extraarticular (gluteal muscle insertion problem – gluteus medius or minimus tendinopathy or tear). He thought there was an unlikely contribution from the back and thought the backache itself was not worth investigating at that stage. He thought the iliac area pain was referred from the hip.
29 In June 2009, Mr Clive Jones, orthopaedic surgeon, saw the plaintiff at the request of the defendant’s insurer. He noted that the MRI scan of the hip showed normal appearance in the joint itself, with some possible fraying of the gluteus medius tendon close to the greater trochanter. It was his view the plaintiff presented in a genuine manner and there was no suggestion of functional illness. He thought her current condition related to the fall and that her prognosis was good.
30 Dr Richardson, in 2009, reported to the defendant’s insurer. It was his view that the injury to the hip was solely related to her fall, that she had significant incapacity in her activities of daily living which prevented her from riding her horse, walking any distance and gardening. The plaintiff said she was unable to sit for long periods of time without getting quite restless and fidgety due to the pain and discomfort. He said that given the fact that it had been two years post-injury, it would be reasonable to presume that she was going to have a permanent impairment.
31 In October 2009, the plaintiff presented to her general practitioner in a distressed emotional state due to the chronic pain and to obtain Panadeine Forte. She was diagnosed with depression and started on a course of anti- depressants, and provided with a referral to the live-in Chronic Pain Clinic in Albury.
32 In March 2011, the plaintiff’s general practitioner provided a report at the request of her solicitors. Her general practitioner said that her current pain and impairment limited her in many ways. She was an avid horse rider, is still able to ride, but to a limited degree and she is unable to perform any jumps or riding that may more commonly lead to or have potential risks of falls. She is limited in duties around the house in the amounts and lengths of time she can perform cleaning duties, especially those involving lifting and bending. She is severely limited around the garden, especially if she tries to squat or kneel.
33 He noted that the plaintiff currently worked twenty hours per week, but required the use of painkillers for routine activities, both socially and in the course of her employment. She was able to stand and walk, but had difficulty bending and twisting without experiencing an exacerbation of her background pain. He noted that she had been assessed by a pain management service as having a moderate degree of impairment in her activities of daily living. He said the plaintiff believed her overall restrictions in social, domestic and work activities are limited by thirty per cent.
34 He accepted that twenty hours per week was the maximum she could work in the environment that is non-physical and does not involve a lot of lifting, bending and stooping. He hoped that the limits were for the medium term. He noted that she had developed a Chronic Pain Syndrome.
35 Mr Barclay Reid, surgeon, examined the plaintiff at the request of her solicitors in March 2011. On examination, he noted there were no deformities in the left hip, but there was tenderness in the region of the gluteal muscles. There was pain in the left buttock on external rotation of the hip and the pain was close to the ischial tuberosity. He described the injury to the left hip suffered at work as a musculo tendinous injury of the gluteal muscles. It was his view that the left hip injury restricted the plaintiff in relation to her social, domestic and recreational activities to the extent she was unable to do her gardening and unable to ride horses in her specialised field of dressage. She could ride with pain, but the finer movements and strength required to guard the horse in dressage was deficient. He could not say that this incapacity will continue for the foreseeable future. However, what he could say was he found evidence of mild weakness still persistent four years after her injury and it is likely that she will continue with buttock pain and weakness in her left hip movements for at least a few more years.
36 It was his view that the physical left hip injury was likely to restrict her in relation to employment and activities involving prolonged sitting, standing, walking, driving, repetitive bending and twisting, and also lifting from ground level with weights beyond about five kilograms. He thought that her incapacity would continue for a few more years, but he could not say it would continue for the foreseeable future. He also took the view the plaintiff was capable of undertaking suitable employment part-time, twenty to thirty hours per week. His prognosis was that the hip injury will ultimately recover. He expected symptoms to continue for another three years.
37 In March 2011, Mr John F O’Brien, surgeon, examined the plaintiff at the request of the plaintiff’s solicitors. It was his view that the plaintiff was moderately disabled and definitely restricted in her physical activities. He thought the chronic nature of the problem meant that it was likely to be permanent and that the plaintiff would remain restricted in her general, social, domestic and recreational activities, which will be a permanent situation.
38 In May 2011, Mr John Henderson, orthopaedic surgeon, saw the plaintiff at the request of her solicitors. It was his view that the plaintiff had suffered a very severe injury because of the importance of the two gluteal muscles which help stabilise the body in the upright position. He said the integrity of the gluteus medius and gluteus minimus muscle functions have been compromised. It was his view that all of her social, domestic and recreational activities were compromised by the nature of the injury and that this would continue for the foreseeable future. It was his view that the plaintiff’s prognosis in relation to her hip injury was not good.
The Defendant’s Medical Evidence
39 Mr Stephen Leitl, orthopaedic surgeon, in November 2009, saw the plaintiff at the request of the defendant’s insurer. It was his view that the plaintiff had a chronic left lumbar back pain with referred symptoms to the left hip and left buttock and mild left trochanteric bursitis. It was his view that the injury to the left lower back with referred symptoms to the left groin and left buttock were unresolved.
40 Mr Shannon, orthopaedic surgeon, in September 2010, saw the plaintiff at the request of the defendant’s solicitors. It was his opinion that the plaintiff had a soft-tissue injury around the left buttock/hip/low-back region. He described it as bruising or damage to the soft tissues attaching to the ischial tuberosity. He said there was no evidence of functional component or psychological reaction and thought she was best to avoid prolonged or repetitive bending or heavy lifting.
41 In July 2011, Dr Lesley J Roberts, neurologist, saw the plaintiff at the request of the defendant’s solicitors. He said that the plaintiff’s persistent symptoms were all related to the back, left buttock and hip, with some tightness in the left thigh. He noted that her treatment involved medication and that in the past she had massage and physiotherapy with minimal benefit.
42 He noted that she had a fairly active lifestyle in the past which included bicycle riding into the town and back (a total of 7 kilometres), running, and she would also walk into town and back easily. She had been a keen horse rider for most of her life. He noted that she still rode her horse but suffered a lot of pain. She took Panadeine Forte and anti-inflammatory medication prior to riding her horse. He noted that she had been very involved in her garden prior to the injury and was restricted in her activities such that her husband trimmed the fruit trees and she relied upon her son for mowing the lawns. She used to water ski but did not do that anymore. She and her husband had a 5-metre boat and she only went in the boat when the sea was calm. She had abandoned snow skiing.
43 In relation to the hip pain, it was his view that it was localised to the region of the greater trochanter and he noted tenderness. His clinical findings were different to those recorded by Mr Shannon. He considered the pain appeared to be related to a trochanteric syndrome with involvement of the gluteus minimus and gluteus medius tendons.
44 It was his view that it had been caused by or substantially contributed to by the injury at work. He said his findings correlate with the MRI investigation, which demonstrated a partial thickness tear of the left gluteus minimus and medius tendons. He would have expected the pain to have eased by this time; however, he noted the plaintiff performed a lot of other activities that were likely to exacerbate her pain, such as horse riding, walking, cycling and boating. It was his view that these activities were likely to be exacerbating her symptoms. He thought a pain management assessment was likely to result in a recommendation to curtail some of her activities.
Video Surveillance
45 I was shown a video of the plaintiff. I accept that a video is a snapshot in time and that a plaintiff with injuries as the plaintiff described may have days when she is able to do more activities than on other days. The video was taken on 19 September 2010 at the Bright Pony Club. At the beginning the plaintiff was shown bending into a galvanised tin box. She said it was where the water main was to turn the water on and she turned the tap on. She agreed that there was no inhibition in her ability to bend and turn the tap on. The plaintiff said that she always takes Panadeine Forte or Panadol before she goes to any activities such as she did on that day. The film showed the plaintiff limping on occasion and it showed her talking to a lady with her left leg on a chair. She said she did that regularly; that is elevate her leg, as it relieves it. She said she did this because she had been standing at the arena and walking in the sand and she needed a rest. The film showed the plaintiff leaning on the rail and kicking a sole. It also showed her walking and using her arms for balance.
46 There was nothing in the film that was inconsistent with the evidence of the plaintiff. In fact, the film tended to support the evidence of the plaintiff.
Credit of the Plaintiff
47 The plaintiff struggled to explain the deficiencies in her evidence in respect to competing in the dressage competitions. Given the fact that she admitted to entering two or three dressage competitions, the fact that she did not explain the other competitions does not affect her evidence in any material way.
48 Counsel for the defendant submitted that the plaintiff’s failure to attend the Pain Management Clinic at Wodonga was an indicator that her level of pain was not that bad. I accept her evidence that she had obtained new employment and the treatment would interfere with that employment as being an indicator of her stoicism and her keenness to return to a lifestyle but with limitations.
49 The plaintiff impressed me as a straightforward person. She was articulate. She answered questions directly. She was consistent in reporting the injury and its causes to the doctors whom she saw. The plaintiff answered all questions put to her in a direct and frank manner and made appropriate concessions about the hours she worked. She wanted the Court to understand how the injury had changed her lifestyle. I accept she is a witness of truth. Overall, the plaintiff impressed me as a credible witness.
Analysis of the Evidence
50 Based on the medical evidence, I am satisfied that the plaintiff suffered a compensable injury arising out of, or in the course of, her employment with the defendant. All of the medical witnesses accept the injury is work-related.
51 Under s.134AB(38)(h) of the Act, the Court, in assessing pain and suffering consequences of a physical injury, must exclude the psychological or psychiatric consequences of the injury.[9]
[9] S.134AB(38)(h)
52 Counsel for the defendant said the plaintiff had difficulty in identifying the injury she suffered, in that she referred to pain in the hip, back and buttock and it is not permissible to aggregate a number of body parts, in this case, the left hip. I accept that the impairment is in respect to the hip and was so referred to in a number of the medical reports.
53 Where, such as in this case, a plaintiff makes a claim based upon a physical injury (a serious injury application under paragraph (a) of the definition of s.134AB(37), a court is required to separate the psychiatric or psychological consequences of an impairment from those that are organically-based: see Barwon Spinners Pty Ltd & Ors v Podolak.[10]
[10] (ibid) at paragraph [70]
54 The Court must examine the consequences of a physical impairment in the separate context of:
(a) pain and suffering. 55 The provisions of s.134AB(38) provide a narrative test for determining whether a worker may make a claim for damages for pain and suffering.
56 Section 134AB(38)(b) of the Act requires the term “serious”:
“… to be satisfied by reference to the consequences to the worker of any
impairment or loss of a body function … with respect to-
(i) pain and suffering
... when judged by comparison with other cases in the range of possible
impairments or losses of a body function ….”
57 Section 134AB(38)(c) then provides:
“An impairment or loss of a body function … shall not be held to be serious for the purposes of subsection (16) unless … the pain and suffering consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function … as the case may be, fairly described as being more than significant or marked, and as being at least very considerable.”
58 The Court of Appeal has emphasised that the task of a Judge in making a serious injury determination involves a “fact, degree and value judgment”.[11] In determining whether the narrative test is met, a court is required to evaluate the consequences of the impairment not the injury itself. A court must evaluate the consequences of the particular impairment and then make an objective determination, by comparing the consequences with other cases in the range of possible impairments. In addition, the court must be satisfied that the consequences are “more than significant or marked”.
[11] Humphries v Poljak (1992) 2 VR 129, 167; Dwyer v Calco Timbers Pty Ltd (2006) VSCA 187 ([41]
59 The plaintiff has been consistent with her complaint of pain in the left hip region, reporting it to all doctors whom she has seen and consistently explaining the effects of the pain upon her day-to-day life, including her social, recreational and employment activities. The plaintiff is described by doctors as genuine and possessing none of the usual features of a functional illness (Mr Clive Jones), a pleasant, co-operative woman who gave her history in a straightforward manner (Mr Stephen Leitl). In September 2010, Mr Michael Shannon said there was no evidence of functional component or psychological reaction. In July 2011, Mr Roberts said there were features to indicate the presence of some depression. He referred to her flat presentation.
60 The defendant’s medical evidence is that her injury will improve with time (Mr Clive Jones). Mr Shannon says she has a normal hip joint and has some bruising or damage to the soft tissues attaching to the ischial tuberosity, which is directly related to the work injury. He thinks she is best to avoid prolonged or repetitive bending or heavy lifting. Dr Roberts says, of the hip pain, that his clinical findings are different from those recorded by Mr Shannon. Dr Roberts says the pain appears to be related to the trochanteric syndrome with involvement of the gluteus minimus and gluteus medius tendons, which has been caused by or substantially contributed to by the injury at work. He says he would have expected that the pain would have eased substantially after the injury but notes that the plaintiff does perform activities that are likely to exacerbate her pain, such as horse riding, walking, cycling and boating. It is his opinion that these activities are likely to exacerbate her symptoms; however, he is aware that she had received medical advice that she could perform these activities. He thinks there are some features to indicate the presence of some depression and he recommends she receive treatment for that.
61 The plaintiff’s general practitioner reports that her current pain and impairment limits her in many ways; namely, she was an avid horse rider and whilst riding to a limited degree, she is unable to perform jumps or riding that would have potential risks of falls. Her house duties are limited, in particular, lifting and bending. She is severely limited around the garden, particularly if she tries to squat or kneel. He notes that she requires the use of painkillers for routine activities, both socially and in the course of her employment. He notes that a pain management service assessed her as having a moderate degree of impairment in her activities of daily living and the plaintiff said her restrictions were limited by thirty per cent. He says currently she is working at the maximum but is doing a job that does not involve a lot of lifting, bending or stooping. He describes her problems as long-term background discomfort. Mr O’Brien accepts that she remains moderately disabled and restricted in her physical activities, which he considers is likely to be a permanent situation. Mr Henderson considers that her social, domestic and recreational activities will be affected for the foreseeable future.
62 The level of medical treatment the plaintiff is receiving consists of attending her general practitioner on a three-monthly basis and taking Panadeine Forte and Panadol Osteo up to six per day for routine activities, both socially and to assist her with her employment.
63 The plaintiff said she was unable to return to her pre-injury level of activity, for example:
•
she no longer rides to and from work – she can now walk to work but requires her husband to drive her home;
•
she was a keen horse rider – she can no longer participate to the level she was participating in prior to the injury; namely dressage and jumping competitions.
•
she owned a garden which was open for inspection – she can no longer maintain the garden to the level required;
• she was unable to continue snow skiing; • she found riding in the motorboat difficult; • she is reliant on her husband and children to assist in household duties. 64 All doctors accept the plaintiff has an injury. The plaintiff’s doctors accept that it will continue indefinitely. Her general practitioner says it will be long-term discomfort. Mr Henderson says it is for the foreseeable future and Mr O’Brien considers that her restrictions in relation to her general, social, domestic and recreational activities are permanent. The defendant’s evidence is that her injury will improve with time. Given the fact that the plaintiff has suffered for four years, I am satisfied that the overall medical evidence is that the impairment is permanent.
65 What is in issue is the consequences of the plaintiff’s injuries and whether they meet the test of seriousness for pain and suffering, in that they can be considered to be more than significant or marked, and as being at least very considerable when compared with other cases in the range.
66 Counsel for the defendant submitted that the pain and suffering consequences of the plaintiff’s injury are not significant or marked and fall well short of at least “very considerable”. Counsel relied on the fact that the plaintiff has retained capacities: she can ride a horse; she is in employment; she can maintain a garden, albeit limited.
67 In relation to the capacities retained, the plaintiff’s evidence is that she can undertake all activities, but with limitations. I consider these limitations are significant, particularly given the plaintiff’s age, the fact that she has young children and the fact that the activities that she does do are undertaken when she has taken medication and are limited significantly to what she was doing previously. I refer in particular to the horse riding and gardening.
68 Whilst I accept the plaintiff has returned to employment, the evidence is that she is working part-time and that currently she cannot increase her hours because of her injury. Her evidence is that she would like to work longer hours, if offered. I accept that her return to work is an example of her stoicism and emphasises her genuineness. Further, she says that she has to rest during lunch breaks.
69 I accept the plaintiff’s evidence that she complains on a regular basis to her general practitioner about her condition. This is confirmed in the medical reports provided by her general practitioner. She says she has difficulty with sleeping although that was not referred to in the medical reports.
70 I accept that the plaintiff was a high achieving and industrious person who led an extremely active life prior to the injury. She has attempted to maintain that lifestyle but with severe restrictions. I rely upon what was said by Nettle JA in Dwyer v Calco Timbers Pty Ltd No 2,[12] that such a plaintiff should not be treated less favourably than another who, being of less strength of character, simply resigned herself to her injury.
[12] [2008] VSCA 240 at [3}
71 Taking all of the evidence into account, I am satisfied on the balance of probabilities and in light of the evidence as a whole that the consequences to the plaintiff satisfy the test. I am satisfied that when judged by a comparison with other cases in the range of possible impairments, the injury can be fairly described as being “more than significant or marked and as being at least very considerable”.
72 The above position is reached purely by reference to the plaintiff’s physical condition. No element of the mental component is taken into account in this assessment. Indeed, the mental element is required to be excluded by s.134AB(38)(h) of the Act.
73 Accordingly, the plaintiff’s application to bring proceedings for damages for pain and suffering is successful.
Findings
74 Finally, I am satisfied that it is appropriate to make an order granting the plaintiff leave to commence a proceeding at common law against the defendant seeking damages for pain and suffering only as a result of her employment with the defendant.
75 I will hear the parties as to the precise form of orders sought and on the issue of costs.
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