Kurti v Berkeley Challenge Pty Ltd and VWA

[2009] VCC 291

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE

CIVIL DIVISION

Case No. CI-08-02321

NEDZMIJA KURTI	Plaintiff
v
BERKELEY CHALLENGE PTY LTD	First Defendant
and
VICTORIAN WORKCOVER AUTHORITY	Second Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	10 and 11 March 2009
DATE OF JUDGMENT:	24 March 2009
CASE MAY BE CITED AS:	Kurti v Berkeley Challenge Pty Ltd & VWA
MEDIUM NEUTRAL CITATION:	[2009] VCC 0291

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the lumbar spine – pain and suffering only – whether consequences to the plaintiff are

serious.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Mighell SC and	Nowicki Carbone & Co.
Mr R H Stanley
For the Defendants	Mr R Meldrum QC and	Hall & Wilcox
Ms M Britbart
HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the first defendant, in particular on 21 January 2000 (“the said date”).

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. There, “serious” is defined relevantly as meaning:

“(a) permanent serious impairment or loss of a body function.”

4          The impairment of body function relied upon in this case is the low back and consequently the left leg.

5          The plaintiff relied upon two affidavits and she was cross-examined. The plaintiff’s husband, Isat Kurti, was required for cross-examination. In addition, both parties relied on medical reports and other medical material which was tendered in evidence. I have read all the tendered material.

The Plaintiff’s Evidence

6          The plaintiff is aged fifty-six, having been born in Montenegro on 6 July 1952.

7          She migrated to Australia at the age of eighteen with her husband in 1970. She has three adult children aged thirty-seven, thirty-three and twenty-nine.

8          The plaintiff commenced employment as a production line worker for Red Tulip in 1972, where she worked for five years. She then worked at Atlas Plastics as a machine operator for fifteen years. In the early 1990s the plaintiff and her husband ran a supermarket. Both this job and her work as a machine operator was physical in nature and involved prolonged bending, standing and lifting.

9          The plaintiff and her husband were declared bankrupt in 1994.

10        On 21 March 1994, the plaintiff commenced employment with the first defendant as a cleaner.

11        The plaintiff suffered a carpal tunnel injury to her left wrist in 1997, in relation to which she submitted a WorkCover claim.

12        In early 2000, the plaintiff’s job with the first defendant involved working at the Queen Victoria Market (“the Market”) and the Japanese Consulate (“the Consulate”). She worked at the Market on Tuesday, Thursday and Friday between 10.00 am and 2.00 pm, and on Saturday and Sunday from 10.00 am to 3.00 pm. This job was the heaviest cleaning work the plaintiff has done.

13        The plaintiff worked at the Consulate from Monday to Friday between 2.00 pm and 10.00 pm. Some of the work at the Consulate was quite heavy.

14        On 17 January 2000, the plaintiff commenced a further job with Ikon Cleaning, (“Ikon”) working two and a half hours a day, five days a week at Swinburne Technical College (“Swinburne”). Some of her duties were heavy. Initially she said she worked alone but later gave evidence that she worked at Swinburne with four other cleaners, including her husband.

15        On the said date the plaintiff suffered injury to her back whilst working at the Market. The plaintiff was required to carry a plastic tub and collect dishes from tables in the Food Court. When she turned to put a tub of dishes on the sink she felt pain in her middle lower back (“the incident”). The plaintiff stopped working for a couple of minutes. She reported the incident to her supervisor but continued working.

16        The plaintiff also alleges she injured her lower back as a result of the heavy and repetitive nature of her work with the first defendant.

17        The plaintiff deposed she was in considerable pain following the incident but tried to do her normal work, taking analgesic medication and resting when possible. She continued working at Ikon but she only did the lighter work. She avoided particularly heavy work if her symptoms persisted. In cross- examination, the plaintiff agreed that she has never done modified or light duties since the incident.

18        The plaintiff deposed she continued to work despite the pain because she had three children who were going into higher education to support, a mortgage to pay and she was worried she would be sacked if she lodged a WorkCover claim. She thought the pain may go away and she continued to take Panadol.

19        There was no change to any of the plaintiff’s duties after the incident nor was she given any extra help with her work. She continued to work 74 hours per week in her normal pre injury duties.

20        As her condition did not improve the plaintiff first attended her general practitioner, Dr Sheriff, on 15 May 2000, nearly four months after the incident. She was prescribed Voltaren and an x-ray and CT scan was arranged, the latter being carried out on 19 July 2000.

21        The plaintiff received chiropractic treatment from Dr Sarafian for nine months between October 2000 and 12 June 2001. She ceased that treatment because Dr Sarafian encouraged her to exercise herself.

22        The plaintiff deposed that in May 2000 the first defendant lost the contract at the Market. When she was told she would not be re-employed she formally reported her injury and lodged a WorkCover claim in July 2000.

23        After ceasing work at the Market, the plaintiff continued working for Ikon and she also worked for the first defendant at the Optus building for approximately two and a half hours a day, five days a week.

24        The plaintiff deposed that in August 2000, her employment with the first defendant was terminated for alleged misconduct and she lodged an unfair dismissal claim that was later settled.

25        The plaintiff’s later evidence, however, was that she continued to work for the first defendant at the Optus building until her employment with the first defendant was terminated about six or seven months after the incident. In cross-examination, she agreed that the Optus job involved heavy cleaning and she cleaned that site with her husband.

26        In October 2000, the plaintiff commenced employment with Consolidated Cleaning Services, working 4 hours a day, five days a week at Crown Casino. In May 2001, the plaintiff ceased work with Ikon. In June 2001, she commenced part time employment at Melbourne High School (“MHS”) working 4 hours a day, five days a week.

27        In about May 2001, the plaintiff suffered injuries to her upper arm, knee and head when hit by a pushbike at work. She submitted a WorkCover claim but did not require any time off work.

28        In October 2003, the plaintiff commenced full time duties at MHS, working 8 hours per day, five days per week.

29        In about 2006, the plaintiff fell down some stairs whilst at work and twisted her ankle. She submitted a WorkCover claim and had two weeks off work.

30        The plaintiff underwent a CT scan of her lumbar spine on 31 October 2007. She recommenced chiropractic treatment in July 2008 with Dr Haddad.

31        The plaintiff presently takes two to four Panadol per day, depending on her level of pain. If she has a lot of pain she takes one or two Panamax. She uses Deep Heat and takes fish oil. Previously she was prescribed Mersyndol Forte and Tramadol.

32        The plaintiff frequently takes Temazepan sleeping tablets because of lower back and left hip pain. She also uses a hot water bottle, does exercises at home and uses a treadmill. She goes swimming and uses a sauna and spa which she has found helpful.

33        The plaintiff starts work at MHS at 5.30 am and gets up at about 4.00 to 4.30 am. She gets home from work by 1.00 pm. She deposed her duties at MHS are lighter than those she had had with earlier employers and there is no heavy lifting involved. She continues to struggle at work and at the end of a shift she is generally exhausted and in increased pain and she often has to lie down when she gets home. She can currently only work 7.6 hours a day, five days a week and she regularly requires assistance with her work compared to her previously excessive workload. She wears a back brace at work.

34        The plaintiff has great difficulty doing her current duties and is concerned about her ability to maintain employment. She deposed her husband, who is her supervisor at work, is frequently required to cover for her and assist her.

35        The plaintiff deposed that she will have to restrict her hours in the near future because of her back pain. She does not believe she could cope with her pre- injury level of work or duties.

36        In cross-examination, the plaintiff initially said she had missed no time from work because of her back but later said she took a day off sometimes at MHS if she “did not feel good”.

37        Her work at MHS includes mopping the tile floors. She is required to move a bucket full of water sometimes on wheels and sometimes she carried it. She agreed this was heavy work but then said it was the lightest work she had ever had. She has to clean two different sports pavilions and also the staff centre. That cleaning work requires a lot of going up and down stairs. She is also required to move wheelie bins and rubbish but does not remove them if they are too heavy. She does work which requires her to squat. She agreed that she is still a quick worker. Pain is there but she tries to do everything. She tries to do all her work including heavy work.

38        The plaintiff deposed she had found housework so difficult that she and her husband have had to put their house on the market to get a smaller place that is easier to manage. This was not mentioned in her viva voce evidence.

39        The plaintiff deposed that she is less active now because of her pain and finds herself regularly worrying about her future. Her husband assists her with housework and she struggles with manual handling of kitchen utensils.

40        In cross-examination, the plaintiff explained that her son and daughter-in-law lived with her. The plaintiff did about half the cooking and shopping. She was assisted in these tasks by both her husband and daughter-in-law. The plaintiff did the vacuuming, cleaned the floors and made the beds, including, at times, her son’s bed, and sometimes she hung out the washing

41        The plaintiff was cross-examined extensively about her involvement in the Albanian community and dancing. She had deposed that she can no longer dance as a result of pain. However, in cross-examination, she agreed that she continues to attend functions and she does dance. She controls her dancing and if the pain becomes too unbearable she sits down. Previously she attended functions perhaps every week or month. She now attends every two to three months or six months. She agreed that she could dance at less formal family functions.

42        The plaintiff potters around a bit in the garden and can do so for maybe up to half an hour.

43        The plaintiff deposed that she experiences pain, stiffness and restriction of movement in her lower back and the pain radiates down her left hip into her left leg. Sometimes she has difficulty sleeping. Her pain is worse at the end of the day and she tries to minimise it through exercise and medication but whatever she does the pain remains. The pain is increased by prolonged sitting, standing and lying.

44        The plaintiff continues to experience constant pain that fluctuates in intensity in her left hip and left leg and also numbness in her third toe. She is restricted in back bending, lifting, pushing, pulling and regular climbing.

45        In re-examination, the plaintiff said she has never been free of back and leg pain since the incident. If she stands for too long her left leg and her toe in particular goes numb. She sometimes walks with a limp if she has sharp pain.

Lay Evidence

46        The plaintiff’s husband, Isat Kurti, swore an affidavit on 30 January 2009 and was cross-examined.

47        Mr Kurti deposed that since her back injury, the plaintiff tends to avoid cleaning and does very little around the house. He does the vacuuming. When cross-examined, Mr Kurti agreed the plaintiff did the ironing and made the beds. She puts the washing in the machine and sometimes she hangs it out when she feels alright and at other times she gets help. The plaintiff does most of the housework herself but from time to time she asks for help. She does about a third of the cooking and the shopping. She tries to look after the flowers in the garden.

48        Mr Kurti deposed that the plaintiff can no longer dance as a result of her back pain. In cross-examination, he agreed this was incorrect and that the plaintiff continues to dance at community functions depending on how she feels. He agreed she could probably dance for fifteen to twenty minutes if she felt good. On other occasions he has seen her get up to dance and then just sit down. Her problems with dancing have been worse in the last year or so. She is now “carrying more pain” than previously.

49        Mr Kurti deposed that since the incident the plaintiff’s sleep had worsened considerably and she has to get up during the night and take tablets to alleviate her lower back pain. Socially the plaintiff had lost a lot of friends and he felt she had lost confidence.

50        Mr Kurti supervises the plaintiff at work. He deposed she manages the “lighter” tasks at work although at times she tried to perform the same duties and activities as other cleaners. He deposed the plaintiff regularly requires assistance with the heavier aspects of work. At the end of a shift at work the plaintiff generally experiences great pain in her lower back and she finds it difficult to take off her clothes after work.

51        In cross-examination, Mr Kurti agreed that all the cleaners at MHS get help if they need it. The plaintiff does not have help every day. She requests help only from time to time when she is not feeling well. The plaintiff could be restricted in her duties because of back pain twice a week, once a fortnight or twice a month. At those times she simply has a rest.

52        Mr Kurti confirmed that the plaintiff is entitled to fifteen sick days per year and that she took 36 days’ leave when she went overseas in 2007.

The Plaintiff’s Medical Evidence

53        The plaintiff first presented to Dr Sarafian, chiropractor, on 9 October 2000 complaining of chronic left hip and lateral leg pain following the incident when she lifted a heavy box and twisted. As of 2 May 2001, he noted that the plaintiff had undergone twenty-six manipulative adjustments to her spine and had responded well.

54        Dr Sarafian diagnosed chronic mild L5-S1 posterior lateral disc bulge.

55        The plaintiff first attended her general practitioner, Dr Sheriff, in relation to the incident on 15 May 2000, complaining of radiating pain in her left leg and left foot. Dr Sheriff noted that the plaintiff’s pain had a typical radicular quality.

56        The plaintiff told Dr Sheriff that at work she carried weights of about 5 to 10 kilograms repetitively. Dr Sheriff initially advised rest, prescribed Voltaren and advised the plaintiff to have an x-ray of the lumbosacral spine. He noted her pain did not really abate and a CT scan was ordered. By July 2000 he had established that the plaintiff was suffering from left-sided sciatica and referred her for physiotherapy.

57        Dr Sheriff reported in February 2009 that the plaintiff had periodic aggravation of a spinal pain with radiating left leg pain. He noted she had coped with cleaning duties over the years with assistance.

58        Dr Sheriff mentioned that in 2007 the plaintiff had a further exacerbation of spinal pain. He suggested that she undergo a spinal injection into her facet joints. It is not apparent why this procedure was not carried out.

59        In Dr Sheriff’s view, although degenerative disease was seen in her spine, the incident appeared to be a precipitating factor in the plaintiff having continuing symptoms. He considered the plaintiff to be a genuine lady who had continued to remain in the workforce, albeit with significant spinal pain. In his view the plaintiff certainly could not cope with increased demand of her cleaning duties. He thought her prognosis was poor and that she had a chronically painful, dysfunctional back.

60        Dr Sheriff’s notes relating to treatment between 1998 until 2008 were tendered.

61        After the initial attendances in May and July 2000, and again in May 2001 where back complaints were noted, in numerous attendances thereafter with Dr Sheriff there were references to back pain or left leg on three other occasions, once in 2004 and in October and November 2007.

62        The plaintiff first attended Dr Haddad, chiropractor, on 29 July 2008. He noted, with results of her management, it seemed the plaintiff’s condition at that time was stabilised and that she would be able to continue work as a cleaner for MHS, avoiding all aggravating factors, such as heavy lifting, bending or stooping. He thought, from a purely physical point of view, the plaintiff should be working part time.

63        Dr Haddad diagnosed L4, L5 and L5-S1 central canal stenosis secondary to disc prolapse and impingement at those levels.

64        Clinical notes from both chiropractors were tendered.

65        Mr Davie, orthopaedic surgeon, examined the plaintiff on two occasions on behalf of the defendants. When he first saw the plaintiff on 30 April 2008, she continued to complain of pain in the left leg with back pain gradually improving. He noted that due to persistent pain in her left leg the plaintiff continued to have treatment, attending her doctor and taking medication. She reported to him that she had no back pain and her symptoms of pain in the left leg extend down the leg to the ankle although there were no symptoms of tingling or numbness.

66        The plaintiff told Mr Davie that she cooks, shops and drives a car but she does not do much gardening or dancing now.

67        Mr Davie diagnosed a L5-S1 disc injury with left-sided sciatica. He described the plaintiff’s injury as being mild to moderate. He did not advise any surgical intervention or further treatment. He thought the plaintiff should be able to continue working full time at MHS. He thought the plaintiff’s mild to moderate back problem was the responsibility of the original employer but only to a moderate degree.

68        Mr Davie reviewed the plaintiff on 3 December 2008. On examination, the plaintiff told him she continued to experience symptoms of low back pain extending into her left buttock and down the outer side of the left thigh to the left lower leg but not into the foot. She confirmed her main area of concern was her leg rather than her back.

69        Mr Davie considered the plaintiff’s prognosis was somewhat guarded. He thought she required an epidural injection and did not think chiropractic treatment would help her with her symptoms. If the plaintiff’s symptoms worsened, he believed she needed to be seen by an orthopaedic surgeon as surgery may be of assistance.

70        Mr Davie did not consider the plaintiff incapacitated for all employment. However, he thought her unable to perform heavy lifting, bending and twisting activities but noted she had shown considerable fortitude in continuing to work as a cleaner. He thought she would really benefit from performing lighter duties if possible as the risk of a disc problem worsening was quite likely. He thought her symptoms were slightly worse than when originally seen and thought she would be best served by ceasing her current heavy cleaning duties at MHS.

71        Mr Davie based his opinion on a history of full time work with the first defendant and a part time job with Ikon. He was also told that the plaintiff was out of work when the first defendant’s contract was not renewed and that she worked part time for Ikon until the MHS job.

72        Mr Kenneth Brearley, orthopaedic surgeon, examined the plaintiff on 28 August 2008. The plaintiff told him of continuing pain in the left buttock and down the outer side of her left thigh to the foot. She had some discomfort in the lower back when sitting and when lying down, however, she told him her main problem was leg pain.

73        The plaintiff told Mr Brearley she was unable to do heavier aspects of housework and her husband helped her. She avoided gardening, and all lifting and work above her shoulder. She told him she rarely goes dancing now.

74        Mr Brearley was not aware of the hours the plaintiff continued to work after the incident nor did he know of the plaintiff’s job with Ikon. He based his opinion on a history that the plaintiff had suffered constant back pain since the incident.

75        On examination, movements of the plaintiff’s back showed a severe restriction. Having examined the plaintiff and reviewed the available investigations, Mr Brearley diagnosed mechanical lumbar back pain secondary to L5-S1 and L4-5 internal disc disruption with disc prolapse at those levels and left L5 radiculopathy secondary to the left exit foraminal stenosis.

76        Mr Brearley considered the plaintiff’s pain and suffering appeared to be entirely organic and noted she was remarkably stoical in fact and had great fortitude in continuing to work on in her normal duties despite ongoing pain.

77        In his view, the plaintiff continued to require conservative treatment with exercises and analgesics, and physiotherapy on an “as needs” basis. He considered her condition was stable.

78        Mr Brearley thought the L5-S1 disc disruption actually occurred in the incident and from that time the plaintiff had had constant low-back pain and left leg discomfort or pain. He noted the CT scan showed quite severe degenerative changes throughout the lumbar spine. He considered the plaintiff’s condition was permanent.

79        In his view, whilst the plaintiff can do her usual work as a cleaner, she needed to avoid very heavy lifting and, where possible, repeated bending and stooping. He considered the plaintiff fit for full hours of work and noted she had had a good deal of pain while doing this, however, it was to her credit that she was continuing.

80        In terms of her daily activities, he noted the plaintiff avoided gardening and she no longer goes dancing and that she tended to avoid parties and social activities.

81        Mr Brearley was subsequently provided with Mr Davies’ report and also the vocational assessment of Ms Green. Mr Brearley noted Mr Davies’ view was basically in accord with his own but he did not agree that when the plaintiff retired she would have improvement in her symptoms. He thought there was no guarantee that the plaintiff’s employment as a commercial cleaner could be sustained in the long term.

82        Mr Peter Mangos, general surgeon, examined the plaintiff on 17 December 2008. The plaintiff told him she was performing alternative light work and was barely coping. She tended to do normal chores but was constantly in pain, especially at night and early morning.

83        Mr Mangos was not aware of the plaintiff’s workload at the time of the incident and thereafter. He believed that the plaintiff was retrenched in December 2000 and that she then worked part time at Swinburne and at Crown until she commenced work at MHS.

84        The plaintiff told him that in her current job she apparently avoided heavy bending and lifting, polishing, buffing and general heavy lifting and she confined her duties mainly to dusting, light rubbish and cleaning the kitchen.

85        Mr Mangos noted, to the plaintiff’s credit, that she had continued to work and he was convinced that she had been working since the original injury with chronic pain and discomfort. He was of the view that it was most likely the plaintiff’s future work ability was in jeopardy, especially if she was doing heavy work.

86        Mr Mangos considered the plaintiff was suffering from a severe aggravation of degenerative disc disease in the lumbar spine with rupture of L5-S1 and L4-5 lumbar discs with left-sided sciatica. He thought her injuries were almost totally organic. He thought the plaintiff should continue conservative treatment.

87        Mr Mangos concluded that the plaintiff was incapacitated for her pre-injury or similar suitable employment by virtue of her lower back injury from a purely physical perspective. He noted she was working 8 hours a day but it was most likely, in his view, that she would have to reduce her hours in the near future.

Vocational evidence

88        A vocational assessment carried out by Katrine Green Consulting Pty Ltd dated 5 August 2008 was tendered.

Investigations

89        A CT scan of the lumbar spine carried out on 19 July 2000 at the request of Dr Sheriff showed there was a slight L5-S1 left posterolateral disc bulge.

90        An x-ray of the cervical spine taken on 10 October 2000 showed slight upper cervical scoliosis with tilting of the head to the left. It was otherwise normal.

91        An x-ray of the thoraco-lumbar spine and pelvis taken on the same date showed slight mild lumbar right scoliosis measuring approximately 5 degrees. There was minor narrowing of the L4-5 and L5-S1 disc spaces with small marginal osteophytes, particularly at L4-5.

92        A CT scan of the lumbar spine taken on 31 October 2007 showed mild L4-5 lumbar canal stenosis secondary to a central L4-5 disc prolapse. Left L5 nerve root impingement was queried. An MRI of the lumbar spine was recommended. There was a mild L5-S1 canal stenosis secondary to a central L5-S1 disc prolapse. Left S1 nerve root impingement was queried. There was marked left L4-5 and marked bilateral L5-S1 facet joint osteoarthritis. It was suggested that CT guided facet joint steroid injections may be of some therapeutic benefit.

The Defendants’ Medical Evidence

93        The defendants tendered a WorkCover Certificate of Capacity dated 21 July 2000 where Dr Sheriff certified the plaintiff fit for normal duties.

94        In a further certificate dated 10 May 2001 Dr Sheriff certified the plaintiff fit for alternative duties from 21 July 2000 to 20 May 2001. He noted on the certificate that it was backdated and that the plaintiff had consulted him in between those dates with a history consistent with an illness of back pain. In a further certificate dated 21 May 2001, Dr Sheriff certified the plaintiff unfit for any work from 17 to 20 May 2001.

95        Dr Peter Stevenson, consultant physician, examined the plaintiff on 1 December 2008. The plaintiff reported to him fluctuating back pain up and down in the lower back and on the left side.

96        On examination, Dr Stevenson noted physical findings were really quite modest. He diagnosed non-specific back pain which he described as a common human predicament, especially in the middle-aged population. He found no neurological compromise and thought the underlying degenerative change was simply age-related and was known to be strongly genetic. He did not consider there was any radiological evidence to support the plaintiff’s injury.

97        In Dr Stevenson’s view, the plaintiff was not incapacitated. She had intermittent, non-specific back pain but would be, like most people, able to maintain normal activity and she required no specific treatment. He considered the plaintiff could work full time as a cleaner and noted she continued to do so.

98        A psychological report from Mr Karamanos dated 13 August 2008 was relied upon for matters of history.

Findings

99        Whilst the question of whether there was a compensable injury on the said date was raised initially, and there was cross-examination of the plaintiff in this regard, this issue was conceded by counsel for the defendants.

100       Further, there was no real dispute that as a result of her work, the plaintiff has suffered or aggravated a disc injury, including L5-S1 disc prolapse with nerve root compression/left sciatica. There was no argument that the plaintiff’s condition was not organically based.

101       The issue, therefore, is whether the plaintiff’s impairment from the incident is serious; namely, whether the consequences to the plaintiff of her lower back injury when judged by comparison with other cases in the range of possible impairments or losses of body function may be fairly described as being more than “significant” or “marked” and at least as being “very considerable” – s.134AB(38)(c).

102       The term “serious” requires the impairment and its consequences to be viewed objectively and also judged on an external comparative basis against other possible impairments not necessarily in the same category: see Humphries v Poljak (1992) 2 VR 129, at 170, accepted by the Court of Appeal in Barlow v Hollis (2000) VSCA: see in particular Chernov JA at para 29.

103       The impairment must be permanent, in the sense that it is likely to last into the foreseeable future.

104       Counsel for the defendants relied to a large extent upon the plaintiff’s work history since the incident as the basis for submitting the plaintiff’s impairment was not serious.

105       As Chernov JA observed in Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292, it would ordinarily be difficult to conclude that the pain and suffering consequences were serious in circumstances where it is accepted that a plaintiff is physically capable of alternative employment unless there was some other evidence that showed she experienced significant pain or she otherwise suffered significantly from the injury.

106       Whilst I accept that each case must be looked at on its facts and that the observations of Chernov JA in Sumbul should not be treated as a general proposition that the ability to engage in full time work precludes a finding of serious injury, such observations should be given due weight.

107       Whilst doctors mention her stoicism, I do not accept the plaintiff could work the hours she has for the last nine years with the level of pain she describes. Her requirement for treatment since the incident has been minimal. I do not accept that the plaintiff is “barely coping” – a description she gave of her situation to Mr Mangos on examination in December 2008.

108       In particular, I take into account that until the first defendant’s contract ceased at the Market in about July 2000, the plaintiff continued to work 74 hours per week in her various jobs which she agreed as “heavy”. She had no time off nor were her duties modified in any way.

109       When the plaintiff finally sought medical treatment for her back injury on 15 May 2000, Dr Sheriff certified her fit for normal duties.

110       When the Market work ceased, the plaintiff continued to work 52 hours per week, including working at Swinburne, in what she agreed was a heavy job.

111       There is no evidence that any subsequent reduction in the number of hours worked by the plaintiff after the incident was in any way related to her physical capacity. Her work hours since that time have been determined by the work available.

112       Save for the backdated alternate duties certificate from Dr Sheriff dated May 2001 covering the previous year, and the certificate dated 21 May 2001 covering the preceding three days, there have been no medical restrictions on the plaintiff’s duties in terms of hours worked or duties performed. The reason why these certificates were provided is unclear.

113       Whilst her work at MHS may be lighter compared to her earlier cleaning jobs, it is still relatively heavy work. The plaintiff’s evidence is that her duties have never been modified nor has she done lighter duties as such since the incident some nine years ago.

114       On Mr Kurti’s evidence, the plaintiff’s need for assistance at work at MHS is not great, nor are her complaints of problems with her work. Maybe twice a week and sometimes twice a month the plaintiff complains to him that her ability to do her work is restricted by her back pain and on those occasions she simply has a rest from her duties.

115       Whilst reliance was placed by counsel for the plaintiff on the views of Mr Davie, a medico-legal orthopaedic surgeon who more frequently is relied upon by the defendants, Mr Davie, like other medico-legal examiners relied upon by the plaintiff, did not have a full history of the nature and extent of the cleaning work that the plaintiff has performed since the incident to the present time. Further the plaintiff somewhat understated the relatively heavy nature of the duties she presently performs full time at MHS when she described her workload to Mr Mangos.

116       The plaintiff deposed that she made a claim for compensation in July 2000 upon being told she was not being re employed. I do not accept that the plaintiff did not make a claim earlier because she was scared she would lose her job as she had earlier made a claim in 1997 for an unrelated condition.

117       As the plaintiff has continued to work in a relatively heavy job as a commercial cleaner, at times working very long hours without the need for time off since the incident, I am not satisfied that the consequences of her impairment are serious in relation to her work situation.

118       The plaintiff’s complaints of pain vary from time to time. At times her left leg is her main concern and her back is not really a problem. She has told other doctors that she has had constant back pain since the incident.

119       Whilst the plaintiff says she has never been pain-free and her pain is constant, the treatment undertaken by her has been minimal.

120       Since 2001, the plaintiff’s general practitioner has noted complaints of back pain on only a handful of occasions despite regular attendances by the plaintiff in relation to other health problems.

121       The plaintiff has never been referred for specialist orthopaedic treatment or opinion. Whilst Dr Sheriff mentioned he suggested the plaintiff undergo a facet joint injection after an exacerbation of her condition in 2007, there is no explanation as to why this procedure was not carried out.

122       The plaintiff takes ‘over the counter’ medication in the form of Panadol and Panamax when required. No medication is presently being prescribed for the plaintiff’s back condition save for the sleeping tablet Temazepan.

123       The plaintiff has only recently recommenced chiropractic treatment in July 2008, having ceased treatment with Dr Sarafian in 2001 when he noted she had responded well to treatment.

124       Whilst it is not determinative of serious injury, lack of treatment is a matter to be taken into account when assessing the consequences of an injury to the plaintiff: see Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260, at paragraph 24.

125       I find that in addition to her work duties the plaintiff is able to engage in a wide range of activities.

126       The plaintiff is able to do manual work around the house – sometimes with assistance. She does the cleaning and she continues to share the cooking with her daughter-in-law. She gets assistance shopping and with heavier household tasks but she continues to do most of the tasks as her husband agreed. This is not a surprising situation when one considers her ability to work full time as a cleaner. The plaintiff is able to potter around the garden. She is able to drive.

127       The plaintiff socialises and attends community and family functions. Whilst her ability to dance is reduced, she can still participate in dancing at formal and casual functions.

128       Taking into account the plaintiff’s present level of activity, both in the workplace and domestically, and the limited treatment she has required and is having at present, I do not accept that her impairment is serious.

129       Whilst the plaintiff experiences some back pain and discomfort which is not trivial and which results in some restriction of her activities, I do not accept that the consequences to this plaintiff of her low back injury, when judged by comparison with other cases in the range of possible impairments or losses of body function, may be fairly described as being more than significant or marked and at least being very considerable.

130       Accordingly, I dismiss the plaintiff’s application to bring proceedings for damages for pain and suffering.

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