Knez v Wiltari Pty Limited

[2010] VCC 875

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST

SERIOUS INJURY DIVISION

Case No. CI-09-05114

KATA KNEZ	Plaintiff
v
WILTARI PTY LIMITED	Defendant

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JUDGE:	HIS HONOUR JUDGE MISSO
WHERE HELD:	Melbourne
DATE OF HEARING:	23, 24 and 25 June 2010
DATE OF JUDGMENT:	29 June 2010
CASE MAY BE CITED AS:	Knez v Wiltari Pty Limited
MEDIUM NEUTRAL CITATION:	[2010] VCC 0875

REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – whether the plaintiff suffered an aggravation of pre-existing underlying degenerative changes in her lower back – whether the plaintiff suffered a compensable injury – whether the compensable injury resolved – whether the symptoms arising from her lower back were unrelated to her employment – whether a finding that the plaintiff suffered the relevant loss of earning capacity consequences requires a separate finding relevant to pain and suffering consequences – leave granted for both pain and suffering and loss of earning capacity: section 134AB (37)(a) and (38)(c).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Mighell with	Opie & Co
Mr J Goldberg
For the Defendant	Mr M Titshall with	Hall & Wilcox
Ms M Taaffe
HIS HONOUR:

Introduction

1 Before the Court is an application brought by Originating Motion filed on 28 October 2009 by which the plaintiff applies for leave, pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of the course of her employment with the defendant.

2          The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.

3          Mr J Mighell SC appeared with Mr J Goldberg of Counsel for the plaintiff, and Mr M Titshall QC appeared with Ms M Taaffe of Counsel for the defendant.

4          The body function which the plaintiff says has been lost or impaired is the lower back.

5          The following evidence was adduced during the hearing:

• The plaintiff gave evidence and was cross-examined;

• Dr Sulava, general practitioner, gave evidence and was cross-examined;

• Dr Middleton, occupational health and rehabilitation consultant, gave evidence and was cross-examined;

• Mr King, orthopaedic surgeon, gave evidence and was cross-examined;

• The plaintiff tendered her Court Book ("PCB"), pages 13-76, and from the defendant’s Court Book ("DCB"), pages 27-30: Exhibit A;

• The clinical records of the MD Clinic: Exhibit B;

• The defendant tendered its Court Book pages 8-26 and 31-55: Exhibit 1.

The Statutory Scheme

6          The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.

7          The relevant considerations which apply to such an application are as follows:

(a)	The plaintiff must prove that she has suffered a compensable injury, that is, an injury which she suffered arising out of or in the course of her employment on or after 20 October 1999.[1]
(b)	The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)	The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a), subsection (19)(b) and subsection (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)	Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)	Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)	Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(g)	Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(h)	Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(i)	Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity, it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event;[3] an approach which I intend to follow in the appropriate case.
(j)	In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(k)	In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[4]

[1]             S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11

[2]             Barwon Spinners, at paragraph 33

[3]             Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170

[4] (1994) 1 VR 436

8          I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.

The Plaintiff's Background

9          The plaintiff was born in Croatia on 23 November 1947. She is now sixty-two years of age. She is a married woman with two adult children.

10        The plaintiff obtained modest education in Croatia. She completed eight years of formal education, leaving school when she was fourteen or fifteen years of age. She subsequently worked on the family farm before marrying at eighteen years of age. She migrated to Australia in 1968.

11        The plaintiff's employment since arriving in Australia has essentially been in manual work. She commenced employment with a cleaning firm in 1994. The cleaning firm had the contract to clean the buildings occupied by RMIT.

12        Over the years, the plaintiff worked with a number of cleaning firms who obtained the contract to clean the buildings occupied by RMIT. At the time when the plaintiff suffered injury she was employed by the defendant.

13        The plaintiff worked a night shift from 3.00 am until 8.00 am, five days per week. The plaintiff worked a second job for about four years, ceasing it in about 1998 or 1999. She gave the job away because it was too much for her physically.[5]

[5]             Transcript 20

The Incident Causing Injury

14        On 9 January 2003, the plaintiff was instructed to strip the floors of a classroom.

15        In the course of doing so, she was using a buffer to dry a wet floor. She was holding the handles of the buffer with both hands. She suddenly slipped on the wet floor and fell backwards onto her buttocks and right elbow. She said it was a heavy fall.[6]

[6]             PCB 16

16        As a result of the fall, the plaintiff alleges that she aggravated pre-existing degenerative changes in her lower back.

The Plaintiff's Prior Lower Back Problems

17        A significant part of the hearing before me was occupied by cross-examination of the plaintiff regarding her prior lower back problems and radiology and imaging which both pre and post dated the incident.

18        The pre-existing condition of the plaintiff’s lower back was central to the submissions made by Mr Titshall, that whatever injury the plaintiff might have suffered when the incident occurred, it was insignificant.

19        In about September 1998, the plaintiff developed pain in her left leg. She saw Dr Sulava. He referred her to have a CT scan which was taken on 24 September 1998.

20        The appearances on the CT scan which are relevant to this proceeding are:

" LUMBO-SACRAL SPINE - 24/9/1998

Alignment is normal. Mild to moderate relative narrowing of the L5/S1 disc space with early spondylotic lipping indicate degenerative disc disease. Further spondylotic lipping at L1/2 through to L4/5 without disc space narrowing indicates further mild degenerative change."

…

CT SCAN OF THE LUMBAR SPINE

…

L5/S1 Disc

Disc bulging demonstrated with the left postero-lateral disc protrusion causing posterior displacement and compression of the exiting left S1 nerve root. This has been arrowed."

21        The radiologist concluded that there was a moderate size left postero-lateral disc protrusion demonstrated at L5-S1.[7]

[7]             PCB 35

22        The plaintiff attended The Royal Melbourne Hospital for treatment. She was seen by a Dr Morokoff, neurosurgical registrar, who referred her to have a CT myelogram. It confirmed the presence of a left-sided posterolateral disc prolapse at L5-S1.

23        Dr Morokoff discussed surgery with the plaintiff, as did Dr Walker, neurosurgical registrar.[8] The surgery was recommended to relieve her left-sided sciatic pain. The plaintiff declined surgery. She was not seen again at The Royal Melbourne Hospital.

[8]             PCB 71 and 75

24        The plaintiff said that her left leg pain settled over three or four weeks. She had three days off work, and continued working full-time.[9] At that stage, the plaintiff was working two jobs.

[9]             PCB 15-16

25        The plaintiff admitted suffering lower back problems over the years. In between the serious episode of lower back pain which saw her seek treatment at The Royal Melbourne Hospital, she saw Dr Sulava for treatment intermittently.

26        Dr Sulava's clinical records[10] disclose that the occasions when the plaintiff saw him between 1998 and the incident were relatively infrequent. His clinical notes disclose the following:

[10]           Exhibit A

• 15 February 1999 – sore back for which she was prescribed Feldene.

• 25 October 1999 – aching all over.

• 13 July 2000 – right leg pain coming from her back for which she was prescribed Celebrex.

• Undated entry post 13 July 2000 and pre 6 October 2000 – pain extending into the right lateral calf with a suggestion of sciatica, for which she was prescribed Feldene. The balance of the entry is difficult to read, but there is reference to surgery, but it is difficult to determine in what context it is referred to in that entry.

• 12 December 2001 – sore back, for which she was prescribed Celebrex. The same entry refers to a CT scan of 1998 and the L5-S1 posterolateral disc protrusion, but it is difficult to determine in what context it is referred to in that entry.

• [?] August 2002 - fatigue and backache.

27        The next entry is dated 9 January 2003. It is the same date as the date of the incident. The entry undoubtedly refers to the incident. The plaintiff was prescribed Vioxx and Panadeine Forte.

28        Mr Titshall cross-examined the plaintiff at some length for the purpose of demonstrating that the plaintiff had a longstanding lower back problem, and in particular, after 1998.

29        The plaintiff said that she remembered having medical treatment in September 1998. She experienced pain when mopping. She suffered pain in her lower back and her left leg.[11] It was not my impression that the plaintiff admitted having any particular problems with her lower back from 1998.

[11]           Transcript 15

30        Similarly, it was not my impression that the plaintiff admitted having any particular problems with her lower back between 1994 and 1998. Mr Titshall cross-examined the plaintiff and Dr Sulava relevant to that period from entries from Dr Sulava's clinical notes. They disclose:

ƒ	1 March 1994 – lumbosacral spine.
ƒ	16 March 1994 – soft tissue rheumatism, for which she was prescribed Orudis.
ƒ	28 April 1994 – backache, for which she was prescribed Naprosyn.
ƒ	17 October 1995 – left lumbar ache.
ƒ	[?] November 1995 – right flank ache.

ƒ 10 January 1996 – backache, for which she was prescribed Feldene,

Panadeine Forte and Naprosyn.

ƒ	29 April 1996 – backache over the sacroiliac joint.
ƒ	9 December 1996 – backache. It was suggested she use Feldene gel.

ƒ 8 January 1997 – dorsal spine ache, for which she was prescribed

Panadeine Forte.

ƒ 22 April 1997 – backache.

31        The next entry is 14 September 1997 which is relevant to the plaintiff's attendance at The Royal Melbourne Hospital where she was treated for a left-sided posterolateral disc prolapse at L5-S1.

32        The plaintiff said that she could not remember the complaints she made of pain in her lower back nor the treatment she received between 1994 and 1998.[12] However, there is no doubt that the plaintiff had some trouble with her lower back between 1994 and 1998, as evidenced by the entries which I have referred to, and the prescription for medication which she was provided. The medication was both painkilling and anti-inflammatory medication.

[12]           Transcript 12-14

33        Mr Titshall cross-examined Dr Sulava at length from his clinical notes, also for the purpose of demonstrating that the plaintiff had a longstanding lower back problem.

34        It was not my impression that Dr Sulava agreed that the plaintiff had a particularly significant lower back problem between 1994 and 1998, and from 1998 up until the incident.

35        Mr Mighell re-examined Dr Sulava, particularly regarding the plaintiff's attendances upon him after 1998. It seemed to me that the answers he gave put the plaintiff's position regarding her lower back problems in their proper context:

"Q:	You were taken through the clinical notes of yours before 2003 and I just want to ask you to have another quick look at those, please. Specifically, I'm concerned with pages 8, 9 through to 12. So looking at page 8, she sees you on24 February?---
A:	That's right.
Q:	She has got, ‘sore’, can you read that out?---
A:	‘Sore both ankles and feet.’ It is 5 February.
Q:	Then 24 February?---
A:	‘Aches feet, ankles, back.’
Q:	Now, between then and January 2003 is a period of four years?---
A:	That's right.
Q:	During that period, you saw her complaining of back pain on three occasions in four years. I'll just ask you to look through your notes. The first is 13 July 2000. Can you see that?---
A:	Yes.
Q:	So we've got, ‘Right leg from back’?
A:	That's right. During this period, I mean that back issue was one of multiple presentations. She didn't present specifically for her back. There was really not, except on a few occasions, a few presentations specifically for the back. It was one of the many symptoms the patient would come and complain of. In respect of February ‘99, according to the notes, it would seem that pain would actually stem more from the feet and then radiated upwards to the back, biomechanical. So I don't think the primary problem here was the back, but the feet.
Q:	So the primary problem in February ‘99 wasn't the back. In July 2000, we've just gone to that reference to, ‘right leg from back’. But then the next attendance where there is any mention at all of back is at page12 of your clinical notes?---
A:	That's right.
Q:	On 12 December 2001, ‘complained of sore back’. Now, you gave her a day off work at that time, is that right? You'll see there is a medical certificate. Actually, it wasn't at that time. On 12 December 2001, did you give her any time off work?---
A:	It's not noted, I don't think. It was in August, given in August. No, that was a year later.
Q:	In August she tells you of fatigue and backache. Is that right?---
A:	That's right. That was third in the list.
Q:	Are we able to interpret from that that the primary complaint was fatigue or the primary complaint was backache or we can't interpret one way or the other?---
A:	Usually when I do notes, usually the first note that I do is the main complaint.
Q:	Which was fatigue?---
A:	And as we go we underline sometimes just things that are mentioned. As I said, these notes are basically made to help me manage the patient, not for other purposes really.
Q:	So of all of those attendances over that four-year period, there is three attendances for back and one, the primary complaint is fatigue. Did you see that as being, through this four-year period, a significant issue for the plaintiff, her back condition?---
A:	No, I haven't.
Q:	What about since January 2003?---
A:	Yes, she had no complaints in respect of her back, and even according to the notes there is significantly more writing and comments in respect to her state overall."[13]

[13]           Transcript 67-68

36        There is no doubt that the plaintiff suffered intermittent lower back problems from 1994, that she suffered a significant lower back problem in September 1998, for which she was offered surgical treatment, and that after 1998, she suffered further intermittent lower back problems.

37        However, the last entry in Dr Sulava's clinical notes prior to the incident which is of any significance is the entry dated 12 December 2001. There does not appear to be an entry after that date relevant to any lower back problem.

38        The problems which the plaintiff encountered must be seen in the context of the consequences to her. In the four-year period prior to 1998-1999, the plaintiff was not only working as a cleaner for the defendant, or one of the other cleaning firms with the contract to clean the buildings at RMIT, but she was also working a second job in that four-year period.

39        The fact that the plaintiff was having those problems with her lower back cannot be looked at in isolation in determining the consequences to her between 1994 and the time when the incident occurred. It is necessary to look at what the plaintiff was doing in order to determine how she was coping with her lower back problems and the extent to which they were interfering with her capacity to function overall.

40        I do not accept that the intermittent incidents of lower back pain are as significant as contended for by Mr Titshall. Nor do I accept that the treatment which the plaintiff received at The Royal Melbourne Hospital suggests that the plaintiff had a more significant lower back problem thereafter. What occurred at that time must be seen in the context of the evidence which I accept, which is that the plaintiff had three days off work and then continued working without taking any more time off work until the incident of 9 January 2003.

The Incident of 9 January 2003

41        After the incident of 9 January 2003, the plaintiff saw Dr Sulava that day. Dr Sulava's clinical notes thereafter are replete with attendances by the plaintiff for her lower back injury. Indeed, the subsequent 13 pages of notes to the last entry on 30 October 2008 contain mostly entries relevant to treatment for her lower back injury.

42        The plaintiff attended Cedar Court for an assessment on 19 February 2003. She was referred to Cedar Court by a WorkCover agent. She commenced a six-week program on 27 February 2003. She attended the program for one day. She telephoned and said that her pain had increased and she would not attend again.

43        Mr Titshall referred me to a lengthy report from Cedar Court[14] which described the plaintiff's behaviour during physical examination as evidencing abnormal illness behaviour, and pain behaviours such as grimacing and clutching her back, which did not impress the multidisciplinary team which was assigned to provide her with rehabilitation.[15]

[14]           DCB 35-49

[15]           DCB 36

44        Dr Sulava referred the plaintiff to Mr de la Harpe, orthopaedic surgeon. It is not clear when he first saw the plaintiff, however, he reviewed her on 20 June 2003, and again on 3 July 2003.[16]

[16]           PCB 72-73

45 Mr de la Harpe referred the plaintiff to have an MRI scan,[17] and then reviewed her on 3 July 2003. He considered that she showed evidence of some age- related changes in her lumbar discs with increased degenerative changes at the L5-S1 disc. He was of the opinion that the incident had aggravated the pre-existing osteoarthritic condition of her lower back.[18]

[17]           PCB 69

[18]           PCB 72

46 It would appear that the plaintiff did not have any other medical treatment save for that provided by Dr Sulava. He referred the plaintiff to have an x-ray, which was taken on 14 January 2003,[19] and a bone study, which was taken on 27 February 2003.[20]

[19]           PCB 28

[20]           PCB 68

47        Dr Sulava considered that the plaintiff had widespread degenerative changes in her lower back. He considered that the bone study most probably showed a stress fracture at the left neural arch or at the apophyseal joint of the L5 vertebra. His conclusion appears to be consistent with the conclusions reached by the radiologist.[21]

[21]           However, Dr Wilkie, a specialist radiologist, disagreed - at DCB 14-18

48        Mr Titshall cross-examined Dr Sulava regarding his opinion that the appearances on the bone study are of any significance. Dr Sulava said that what he saw on the bone scan at least suggested that the black region on the bone study was indicative of inflammation and swelling consistent with trauma.[22]

[22]           Transcript 52-54

49        Dr Sulava also referred to the plaintiff’s CT scan which was taken on 21 March 2003.[23]

[23]           It is not reproduced in the Court Books

50        Dr Sulava was of the opinion that the plaintiff had suffered an injury as a consequence of the incident comprising of an aggravation of pre-existing degenerative changes in her lower back. He was of the opinion that the plaintiff was totally and permanently incapacitated for employment.[24]

[24]           Particularly at PCB 39-40

51        Dr Sulava prescribed the plaintiff painkilling and anti-inflammatory medication. At present the plaintiff takes up to six Panadeine Forte and two Anaprox tablets per day. He considered that to be a significant dosage which he later described as moderate to severe in quantity.[25]

[25]           Transcript 68

The Issues

52        Mr Titshall informed me that the issues which he intended to raise in answer to the plaintiff's application were:

• The plaintiff had not suffered a compensable injury.

• If the plaintiff suffered a compensable injury, then the work component had long ceased.

• If the plaintiff suffered consequences of a compensable injury, then they were not serious for the pain and suffering or loss of earning capacity.

The Other Medical Evidence

53        The preponderance of the medical evidence favours the conclusion that the plaintiff did suffer a compensable injury which persists.

54        The medical practitioners who favour that view are Dr Sulava; Mr de la Harpe;[26] Mr O'Brien, orthopaedic surgeon;[27] Dr Middleton, occupational health and rehabilitation consultant;[28] Mr King, orthopaedic surgeon,[29] and Mr Shannon, orthopaedic surgeon.[30]

[26]           PCB 42 and 73

[27]           At PCB 45-46. Mr O'Brien examined the plaintiff for the defendant on 23 January 2009

[28]           PCB 57

[29]           PCB 64-65

[30]           DCB 29-30

55        Dr McGivern, surgeon, examined the plaintiff some time around July 2003. She was of the opinion that the plaintiff showed evidence of left L5 facet joint arthropathy which was possibly related to the fall, and that the plaintiff had stirred up a previously quiescent degenerative disease.[31] Dr McGivern did not examine the plaintiff again.

[31]           DCB 33

56        However, Dr McGivern recommended that the plaintiff have an image-guided injection of corticosteroid and local anaesthetic to her left L5 facet joint arthropathy which she considered might reduce the left leg pain that the plaintiff was experiencing. She added that such treatment should be considered treatment for a compensable injury.[32]

[32]           DCB 34

57        Dr Fraser, rheumatologist, examined the plaintiff on 19 August 2010 and again on 29 March 2010. He was of the opinion that the plaintiff might have sustained a musculoligamentous strain and/or aggravation of pre-existing degenerative changes in her lumbar spine. He was of the opinion that any work-related injury the plaintiff suffered had long resolved and that she was suffering from the effect of underlying degenerative changes.[33]

[33]           DCB 11-10 and 12-13

58        Dr Stevenson, consultant physician, examined the plaintiff on 1 March 2010. He was of the opinion that the plaintiff had suffered a soft tissue injury which had resolved. He considered that it was possible that the plaintiff suffered an aggravation of degenerative changes in her lumbar spine, however, that the aggravation was temporarily symptomatic.

59        Dr Stevenson was convinced that the plaintiff was presenting as an invalid. He was of the opinion that her invalid state was determined by social factors, and not by her injury.[34]

[34]           DCB 24-25

60        Dr Wilkie, consultant radiologist, did not examine the plaintiff. He was asked to review a body radiology and imaging of the plaintiff’s spine. He was asked to consider all of the radiology and imaging to determine whether the incident had influenced the state of the plaintiff’s lower back as it existed prior to the occurrence of the incident.

61        Dr Wilkie was of the opinion that the radiological changes were consistent with the plaintiff's age, that the incident had not altered the radiological changes that pre-existed, and that the incident may have provoked an aggravation of symptoms, but did not alter the underlying abnormality in her lower back.[35]

[35]           DCB 17-18

A Persisting Compensable Injury?

62        Mr Titshall emphasised the fact that there were no radiological changes which supported the conclusion that the plaintiff had suffered an injury as a result of the incident, nor did Mr Mighell.

63        Mr Mighell submitted that the plaintiff's case rested firmly on medical evidence which supported the conclusion that the plaintiff showed evidence of pre- existing degenerative changes in her lower back which were aggravated as a result of the incident.

64        Despite what appeared to be a gulf between the case put by the plaintiff and the answer to it made by the defendant relevant to what the radiology and the imaging showed, there did not seem to be any such gulf. None of the medical practitioners who examined the plaintiff necessarily concluded that in the absence of radiological changes, that therefore the plaintiff had not suffered an injury.

65        Mr King put the use of radiology and imaging in their correct context by an examining medical practitioner. Mr King described the purpose of plain x-rays, CT scans and MRI scans. Plain x-rays show the bones and joints. CT scans and MRI scans give more detail of soft tissues. They are not designed to show degeneration or abnormality. It is the combination of use of plain x-rays, CT scans and MRI scans in conjunction which are useful, but they are not replacements for one another.[36]

[36]           Transcript 93-94

66        Mr King was of the opinion that a comparison of the radiology and imaging did not suggest any significant change when a comparison was made between what the plaintiff’s lower back was like before the incident and after the incident.[37] Dr Middleton was of the same opinion.[38]

[37]           Transcript 95

[38]           Transcript 81

67        Neither Mr King nor Dr Middleton were of the opinion that the absence of radiological changes meant that the plaintiff had not suffered an injury. Nor did Dr Wilkie, whose expertise was acquired by the defendant for the express purpose of providing an opinion of the appearances on the radiology and imaging. Mr King and Dr Middleton were of the opinion that the radiology and imaging were part of the assessment of whether the plaintiff had suffered an injury, and not a factor which was of greater significance to the history given by the plaintiff and their clinical examination of her.

68        Each of the medical practitioners who examined the plaintiff concluded that the plaintiff suffered an injury of some kind. Dr McGivern, Dr Fraser and Dr Stevenson have given opinions which are in significant contrast to those of the other medical practitioners.

69        Dr McGivern's opinion is very stale. She was not asked to re-examine the plaintiff. I am very disinclined to put much weight on her opinion for that reason.

70        Dr Fraser and Dr Stevenson are physicians whose opinions must be accorded due respect. They are in dramatic contrast to the opinions of Mr King, Mr O'Brien and Mr Shannon, all of whom are orthopaedic surgeons and whose specialty is the treatment of conditions affecting bones and joints. I prefer their opinions.

71        It is not just the fact that Mr King, Mr O'Brien and Mr Shannon are orthopaedic surgeons that leads me to conclude that their opinions should be preferred.

72        Dr Fraser does not explain how it is that there was an aggravation of underlying degenerative changes, but at some unstated time and for some unstated reason, the aggravation was temporary and the plaintiff is now suffering from symptoms arising from age-related degenerative changes.

73        It is clear that Dr Stevenson did not believe the plaintiff. However, a large part of his opinion seems to have been influenced by studies rather than the clinical approach taken by the likes of Dr Sulava, Mr de la Harpe, Mr King, Dr Middleton, Mr O'Brien and Mr Shannon.

74        The plaintiff behaved in an unusual manner when she was examined by the clinical team at Cedar Court.[39] She behaved in a similar way when examined by Dr McGivern,[40] Dr Fraser[41] and Dr Stevenson.[42]

[39]           DCB 36-37

[40]           DCB 32

[41]           DCB 9

[42]           DCB 21

75        The other medical practitioners did not voice any significant concern about the plaintiff's behaviour and whether what the plaintiff did or did not do when being examined impaired their capacity to express an opinion.

76        Furthermore, despite the way the plaintiff behaved when being examined by Dr McGivern, Dr Fraser and Dr Stevenson, they were able to express an opinion. Each arrived at a diagnosis, and was able to answer questions put to them regarding the plaintiff's overall capacity to function.

77        I am not persuaded that the plaintiff's behaviour when they examined her was of such magnitude that I should ignore the opinions of Dr Sulava, Mr de la Harpe, Mr King, Dr Middleton, Mr O'Brien and Mr Shannon.

78        I am inclined to that view also because Dr Middleton gave evidence of a style of examination which elicited the best movements the plaintiff was capable of undertaking at the time when he examined her. In his examination of patients he encourages them to move as far as they can, and he undertakes the movements with them, no doubt to demonstrate what type of movements he wants them to undertake.

79        Dr Middleton was of the opinion that his examination results are rather more objective and subjective, and for that reason more reliable in his overall assessment of a patient. This evidence was given in the context of the way in which the plaintiff behaved when he examined her.[43]

[43]           Transcript 91-92

80        I find that the plaintiff suffered a dramatic fall on 9 January 2003. I find that she aggravated pre-existing underlying degenerative changes in her lower back. I prefer the evidence of Dr Sulava, Mr de la Harpe, Mr King, Dr Middleton, Mr O'Brien and Mr Shannon regarding the occurrence of injury and its persistence.

81        Furthermore, I find that the injuries suffered by the plaintiff are permanent. The evidence of the medical practitioners just mentioned, when considered as a body of evidence, supports the conclusion that the impairment of function of the plaintiff’s lower back is permanent.

Serious Injury

82        I propose to deal with the plaintiff's application for loss of earning capacity first. I repeat, if the plaintiff is successful in proving loss of earning capacity, it follows, without the necessity to determine the consequences to the plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event.[44]

[44]           Advanced Wire & Cable Pty Ltd v Abdulle (supra)

83        The plaintiff is now sixty-two years of age. There is no doubt that she is a woman with modest education, and a modest level of facility with the English language.

84        Almost the whole of her working life in Australia has been in labouring work. She has never undertaken alternative work which required clerical or administrative skills.

85        It was my overall impression of the plaintiff that if she has any capacity for suitable employment it lies in labouring work. I do not accept, although it was not submitted by Mr Titshall, that the plaintiff is fit for rehabilitation and retraining to outfit her with clerical and administrative skills which she could then exercise in suitable employment.

86        The plaintiff's credit was attacked on the basis that her behaviour, when examined by the team at Cedar Court, Dr McGivern, Dr Fraser and Dr Stevenson, points to her exaggerating her disabilities, and as a result rendering her evidence unreliable on the question of whether she has a residual capacity for suitable employment.

87        It is difficult for me to determine why it is that the plaintiff behaved in that way. However, I accept that she did and that it is inconsistent with the ultimate conclusion reached by those medical examiners of the plaintiff’s true overall capacity to function, or at least, it made it difficult for them to reach any satisfactory conclusion concerning her overall capacity to function.

88        I would have been far more influenced to consider that evidence if it had not been for the evidence of Dr Sulava, Mr de la Harpe, Mr King, Dr Middleton, Mr O'Brien and Mr Shannon who were able to examine the plaintiff without incident or reason to doubt her. Furthermore, I think the examination conducted by Dr Middleton was detailed, and very specific in determining whether the plaintiff was doing her best or not. I consider his evidence on that account to be very impressive and persuasive.

89        In the end, I am not persuaded that the way the plaintiff behaved should see me ignore or have doubt about the evidence of Dr Sulava, Mr de la Harpe, Mr King, Dr Middleton, Mr O'Brien and Mr Shannon regarding the plaintiff's overall capacity to function.

90        Dr Sulava,[45] Mr King,[46] Dr Middleton[47] and Mr O'Brien[48] were of the opinion that the plaintiff has no capacity for suitable employment.

[45]           PCB 40

[46]           PCB 64-65

[47]           PCB 57

[48]           PCB 46

91        Mr Shannon did not consider that the plaintiff was totally incapacitated, however, he added that, in his opinion, the plaintiff appeared to have few alternative skills or qualifications. I do not think there is any doubt about that. He also added that it was his opinion that without analgesics, the plaintiff would have difficulty in undertaking activities of daily living.[49]

[49]           DCB 29-30

92        It occurs to me that all of the medical practitioners who I have just referred to are in effect expressing the opinion that the plaintiff has no effective capacity to undertake suitable employment.

93        I find that the plaintiff was no longer capable of working as a cleaner or in general factory or labouring work even light, part-time work of that kind.

94        I find that the plaintiff is a person with modest education, modest facility with the English language and no capacity to be rehabilitated and retrained into clerical or administrative work.

95        I accept the plaintiff’s evidence that she is suffering the consequences of her injury to the extent described by her in her affidavits.

96        For these reasons, I find that the plaintiff suffered an aggravation of pre- existing underlying degenerative changes in her lower back. I find that the function of her lower back has been impaired. I find that the impairment is permanent.

97        I find that the loss of earning capacity consequences are such that the plaintiff is effectively totally and permanently unfit for suitable employment, and I lastly find that those consequences which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.

Conclusion

98 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB(16)(b) of the Act to recover damages for bodily injuries for pain and suffering and loss of earning capacity arising out of her employment with the defendant.

99        After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.

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