Langdon v Austin Health

[2011] VCC 405

IN THE COUNTY COURT OF VICTORIA Unrevised

Not Restricted

AT MELBOURNE
CIVIL DIVISION

SERIOUS INJURY

Case No. CI-10-01758

NARELLE VIDA LANGDON	Plaintiff
v
AUSTIN HEALTH	Defendant

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JUDGE:	HIS HONOUR JUDGE BOWMAN
WHERE HELD:	Melbourne
DATE OF HEARING:	19 and 20 January 2011
DATE OF JUDGMENT:	15 April 2011
CASE MAY BE CITED AS:	Langdon v Austin Health
MEDIUM NEUTRAL CITATION:	[2011] VCC 405

REASONS FOR JUDGMENT

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Catchwords: Accident Compensation Act 1985 – s.134AB – application in respect of pain and suffering damages only – relies upon paragraph (a) of the definition of “serious injury”, assault during the course of employment – injury to the left upper limb with development of some psychological or psychiatric consequences – plaintiff found to be genuine and accurate – consideration of physical injury and physical consequences – acceptance by defendant of substantial physical impairment in s.98C claim – whether burden of proof discharged.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C. Harrison SC	Ryan Carlisle Thomas
with Mr S. Wubbeling
For the Defendant	Ms K. Galpin	Hall & Wilcox
HIS HONOUR:

1 This matter comes before me by way of an application pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. The plaintiff seeks leave to bring proceedings in relation to pain and suffering damages only. Further, whilst the initial application referred to relies upon paragraphs (a) and (c) of the definition of serious injury contained in s.134AB(37) of the Act, it was made clear by counsel for the plaintiff at the outset that the application was confined to reliance upon paragraph (a) only. Of course, by reason of s.134AB(38)(h) of the Act, the psychological or psychiatric consequences of the physical injury are not to be taken into account, and they shall not be. Similarly, by reason of paragraph (i), the physical consequences of any mental or behavioural disturbance or disorder can only be taken into account for the purposes of paragraph (c) of the definition. In essence, the injury under consideration is one to the left upper limb which occurred on or about 11 October 2005 when the plaintiff was assaulted by a patient whilst in the course of her employment as an associate nursing manager. The occurrence of the assault is not disputed by the defendant. Statutory benefits have been paid.

2          Mr C. Harrison SC with Mr S. Wubbeling of counsel appeared on behalf of the plaintiff. Ms K. Galpin appeared on behalf of the defendant. The plaintiff was called to give evidence and was cross-examined. The balance of the evidence was documentary in nature, including surveillance videos, and was tendered by consent, which was a sensible and efficient manner in which to conduct an application such as this.

3          I am familiar with the numerous decisions of the Court of Appeal which bear upon applications such as this and shall endeavour to apply the principles set out in them in coming to a decision in this case. I shall not list such cases here but shall refer to any cases which I consider to be specifically relevant in the course of this judgment. It was not argued but that the plaintiff bears the burden of proof.

Factual background

4          The following findings of fact are made for the purposes of this application and are not intended to be findings which are in any way determinative in relation to issues such as negligence, the quantum of damages, entitlement to statutory benefits and the like.

(i) The plaintiff

5          I found the plaintiff to be a reliable witness who did her best to answer questions truthfully and accurately. As pointed out by Mr Harrison on her behalf, many of those who have either treated the plaintiff or examined her for medico-legal purposes have commented favourably upon her presentation and the approach which she has adopted towards her injury.

6          For example, Dr Timothy Woods, sports and musculoskeletal physician, examined the plaintiff on 1 March 2007 at the request of the defendant. He found the plaintiff to be “a genuine and honest individual who is struggling to cope with her situation”.

7          Dr Peter Stevenson, consultant physician, examining the plaintiff on 9 March 2010 at the request of the defendant’s solicitors, stated as follows:

“Ms Langdon was a very pleasant straightforward rather unhappy lady in her 50s. Her presentation appeared straightforward. She was intermittently tearful.”

8          Dr Simon Kennedy, clinical and forensic psychologist, also examined the plaintiff at the request of the defendant. He described the plaintiff as stoic, robust, genuine and pro-active. Dr Chris Baker, specialist in occupational medicine, also examining on behalf of the defendant on 18 December 2007, referred to the plaintiff as being pleasant and co-operative. Dr Norman Rose, consultant psychiatrist, expressed the view that the plaintiff was co-operative, warm and responsive. Thus, many of the doctors examining her on behalf of the defendant have reported favourably about the plaintiff. Mr T.J. Russell, trauma and general surgeon, also examining on behalf of the defendant, expressed no view as to the plaintiff’s nature or credibility, but, as shall be discussed, assessed her as having a substantial impairment of the left upper limb. The only other examiner on behalf of the defendant, Dr Michael Silverstone, examined the plaintiff in relation to a jaw complaint, and his brief report contains nothing to her detriment. The overwhelming view of those examining on behalf of the defendant is that the plaintiff is a genuine, straightforward, pleasant and cooperative person. I agree.

9          In those circumstances, it is perhaps not surprising that the Plaintiff’s Court Book contains reports in which the plaintiff is spoken of highly. Dr Sally Manuell, who first saw the plaintiff at the defendant’s staff clinic, in a report of 19 June 2008 described the plaintiff as being “very motivated”. In a subsequent report of 4 January 2010, Dr Manuell commented upon the plaintiff’s attitude towards treatment approaches and rehabilitation recommendations as being “very diligent in following these through, although unfortunately with minimal effect”. The plaintiff’s treating psychologist, Ms Carmen Steger, reporting on 29 January 2010 having seen the plaintiff on some 14 occasions before then, described the plaintiff in very favourable terms. The plaintiff impressed Ms Steger as being “a resourceful, capable woman, practical, determined, industrious and kind hearted…”. Ms Steger went on to say that “…it is to her credit that she has worked hard to remain active and employed in alternative duties as well as independent in her personal care”. Dr Pam Dagley is a general practitioner who first saw the plaintiff as a patient in October 2007. In a report of 5 August 2008, she described the plaintiff as “highly motivated”.

10        Dr Bruce Kinloch, consultant physician in pain medicine and rehabilitation, treated the plaintiff in early 2007 and saw her again on 7 December 2010 for the purposes of preparing a current medical report. Dr Kinloch obviously was also very impressed by the plaintiff, stating as follows:

“This lady had a poor prognosis. It is a measure of her indomitable spirit that she has successfully returned to work and still has a marriage.”

11        Dr Terence Lim, who oversaw some treatment of the plaintiff in relation to her condition of pain, found her to be “a pleasant and cooperative woman”.

12        At the request of her solicitors, the plaintiff has also been seen for medico- legal purposes. Mr Iain Kelman, consulting orthopaedic surgeon, saw the plaintiff on 20 September 2010. He described her as being of pleasant personality, co-operative, and exhibiting no evidence of illness behaviour. Dr David Weissman, consultant psychiatrist, who saw the plaintiff on 11 November 2010, described the plaintiff as being pleasant, polite, very determined, stoical and resilient.

13        From my experience, it is quite uncommon to find such almost complete and favourable unanimity from treaters and examiners on both sides in relation to their impression of a plaintiff. Eleven of the treating and examining doctors and specialists to whom I have referred above basically speak as one and in all the medical material I am unable to find a dissenting voice. I agree with the opinions set out above. The impression which I formed of the plaintiff is identical to that expressed by those doctors.

14        Surveillance videos were shown. In my opinion these did not damage the credit of the plaintiff. The surveillance showed the plaintiff performing some duties at a nursery which she and her husband ran, having acquired it prior to the injury. The plaintiff had done a horticulture course, and continued performing some duties, although on a reduced basis, after the assault. The business has since been sold, this taking place at the beginning of 2010. The tasks shown on the surveillance appeared to be light in nature, and include the plaintiff demonstrating to one of the purchasers of the business the method of pruning a fruit tree. The surveillance material had no adverse impact upon my impression of the plaintiff’s honesty and reliability. Despite Mr Galpin’s best efforts, the plaintiff emerged from cross-examination with her credit intact.

(ii) The plaintiff’s education, background and training prior to the injury

15        As the plaintiff is seeking leave in relation to pain and suffering damages only, the amount of detail required under this heading is less than might otherwise be the case. Suffice to say that she is a married woman aged 53 years, having been born on 20 August 1957. Whilst she writes with her right hand, she is essentially left hand dominant. She has four adult children. She completed her primary and secondary education, obtaining her VCE. Between 1990 and 1992 she studied nursing, obtained the appropriate qualifications, and then commenced work as a Registered Nurse Division 1 in March 1993. That was with the defendant. Subsequently she undertook further studies in 1999, and became Assistant Nursing Unit Manager in the Cardiology Department of the defendant. She had obtained a Graduate Certificate in Critical Care. Thus, from the time of being a student nurse in approximately 1990, she has worked continuously at the Austin Hospital operated by the defendant. As stated, she also obtained a Certificate IV in Horticulture.

(iii)	The injury
(a)	The state of the plaintiff’s health prior to the injury

16        Prior to suffering the relevant injury the plaintiff had undergone gall bladder surgery many years before but after she had commenced work with the defendant. She had also had her tonsils removed as a child and a ganglion removed from her right wrist in approximately 2003. In 1997 she fractured a bone in her left wrist, this occurring at work when she fell on her left hand. I gather that, while she was certified to be off work for approximately six weeks and received some statutory benefits, she in fact returned to work during that time with her arm in plaster. In 2004 she underwent surgery to the stomach muscles, this being related to a back problem which she had. She was uncertain but believed that she was off work for approximately two weeks. She has also had some sleeping problems over the years.

17        Further, in approximately August 2005 (the plaintiff believed it was at about the same time as the assault, but it appears that it was marginally earlier) the plaintiff severed a tendon on her left little finger when lifting an A frame. As a result she wore splints on her left little finger and also saw a hand therapist. She was having some pain in the forearm, thumb and arm muscles, and massage was recommended. The plaintiff agreed that she may have had some problem with her left elbow after the injury to the left little finger. In any event, the plaintiff gave evidence that she was back at work with no problems prior to the assault. She also gave evidence that the only extended time she had away from work was following the stomach surgery, as a wound infection subsequently developed.

18        Whilst the plaintiff had a number of health issues prior to the injury, I am not of the view that any of these had any major impact upon her activities and enjoyment of life as at the time of the assault. I accept her evidence that she had returned to work by then and was performing her normal duties with no problems. Certainly, the injury to the left little finger and pain resulting from it has the potential to be a complicating factor, and the precise timing of it and the symptoms flowing from it are not entirely clear. However, essentially the plaintiff did not dispute the fact that the little finger injury occurred in approximately August 2005, although her recollection as to precisely what happened and the sequence of events is far from perfect. One matter concerning which she was definite was that she had returned to work and was having no problems as at the date of assault. I accept this. Certainly there was no challenge to the proposition that the assault occurred when she was at work and performing her normal duties.

19        In summary, I am not of the opinion that, prior to the assault, the plaintiff was suffering from any injury or condition which had any lasting impact upon her capacity to engage in the employment which she enjoyed or upon her daily activities. I am not of the opinion that the relevant injury was in the nature of an aggravation. Of course, if it were, it is only the consequences of the aggravated injury which should be considered. However, and bearing in mind the nature of the injury sustained by the plaintiff, which shall now be discussed, the injury does not seem to me to be one by way of aggravation. Further, the relevant symptoms and consequences commenced after the assault.

(b) The injury of 11 October 2005

20        The occurrence of the assault on 11 October 2005 is not disputed. I accept that the plaintiff was assaulted by an elderly patient who had undergone a heart bypass operation, but who, in his younger days, had been a boxer. He grabbed the plaintiff and tried to punch her in the face. She raised her left arm in order to protect herself, and her left arm was then punched continuously and in a forceful fashion. When another nurse came to her assistance, she too was punched, and ultimately it required two male security staff to subdue the patient involved. The plaintiff has sworn that the patient concerned was, at the time, in an agitated and disorientated state, and there seems no reason to doubt this. The plaintiff alleges that she filled in an Incident Report Form at the time.

21        The plaintiff then had some five rostered days off, and attempted to rest. She has sworn that her arm was swollen and became bruised, in addition to being painful. The course of her medical treatment immediately thereafter is somewhat confusing. The plaintiff’s recollection is far from perfect, and she stated in evidence that it did not bother her for a while but began to worsen, and “ … like most stupid people, I didn’t do anything about it”. She states that she tried alternative therapies because she was scared, and it was when she saw the staff clinic doctor, Dr Manuell, that “everything came into perspective”.

22        The history taken by Dr Manuell, upon first seeing the plaintiff on 17 January 2007, largely confirms the plaintiff’s oral evidence. The plaintiff described her symptoms as commencing following an assault at work in October 2007 by a patient with acute confusion post-operatively. Dr Manuell has also recorded the following:

“Between the time of the injury and her first visit to me 15 months later, Ms Langdon had tried multiple treatments to the left arm involving physiotherapy, acupuncture, cupping (a complementary therapy), herbal therapy, several medications and a steroid injection to the elbow. Despite the treatment the pain was ongoing.”

23        The clinical records of the Summerhill Medical Centre, at which the plaintiff attended from time to time, would indicate that the injection to the elbow was either organised or performed on 15 November 2006. An earlier entry of 13 November 2006 refers to “assault by a client 12 months ago” and to paresthesia and pain in the left hand and forearm, together with some (what appears to be) right elbow complaint. True it is that the plaintiff, in her affidavit of 13 December 2010, swore that she had attended at the Summerhill Medical Clinic approximately one week after the assault, and had then received the injection. The plaintiff admitted to some confusion in this regard, initially stating that she believed that she had gone to the clinic comparatively soon after the assault, but later recalling the period during which she did not seek medical advice as such but tried alternative therapies.

24        In any event, upon first seeing Dr Manuell, the plaintiff’s complaints were of constant burning and pain around the left elbow with some referral into the thumb and index finger of the left hand. There were occasions of sharp pain and at times some loss of power and grip, with the symptoms being worse at night and at times of rest. The plaintiff also complained of coldness in the left arm, and temperature changes. It is of interest that, upon examination, Dr Manuell not only found marked tenderness over the extensor region of the elbow and dorsal wrist, but noted the objective sign of swelling in the general region. Dr Manuell formed the view that speedy intervention was required due to the chronicity and severity of the symptoms, referred the plaintiff to a rheumatologist (Professor Buchanan), organised medication and requested an x-ray and ultrasound of the left elbow. It is apparent from the report of Dr Manuell of 19 June 2008 that Professor Buchanan suggested a diagnosis of fibromyalgia and advised a continuation of the current medication along with physiotherapy. Nerve conduction studies of the left arm proved to be normal, and, whilst multiple minor disc prolapses in the cervical spine were detected on MRI, these being most prominent at C5/6, no nerve root impingement was noted. It is apparent that the plaintiff had undergone earlier radiological examination of the left elbow on 17 and 23 January 2007 when a possible diagnosis of extensor tendonitis was apparently being considered. No findings of any magnitude were reported, although there is a reference to low grade tendinopathy.

25        At that time, the plaintiff was assessed by a physiotherapist, Ms Brentnall, who also seems to have been in employment with the defendant. Ms Brentnall’s diagnosis was of myofascial syndrome of the left arm. Following a discussion between Ms Brentnall and a specialist, the plaintiff was referred to Dr Terry Lim, a rehabilitation specialist, at Olympia Private Hospital. Dr Manuell records that, at about this time, a diagnosis of chronic regional pain syndrome of the left arm emerged. This seemed to Dr Manuell to be an appropriate diagnosis. Further medication was trialled without there being any noticeable improvement in symptoms.

26        The plaintiff was assessed at the Epworth Rehabilitation Centre by Dr Lim and those working with him. A ketamine infusion was administered at Epworth Hospital (this being funded by the defendant’s insurer), but there were some unfortunate side effects and no improvement in symptoms. Drug treatment was then ceased because of side effects and simple analgesics were prescribed. Physiotherapy and hydrotherapy under Dr Lim’s general supervision were commenced. Attendance upon a psychologist was also occurring.

27        Dr Manuell noted that by January 2008 the plaintiff, whilst undergoing a decreasing number of physiotherapy and hydrotherapy treatments, had become despondent at her minimal progress and her inability to return to normal work. The plaintiff continued to take medications, especially to assist sleep.

28        Dr Manuell then reported:

“However more recently Ms Langdon has been able to return to work in an altered capacity performing administrative tasks for reduced hours. She has also just recommenced her Rehabilitation program again under Dr Lim’s direction. Her pain and level of disability involving the left arm continue more or less unchanged. She instead works through the pain and tries to manage as best as possible.”

29        Dr Manuell went on to state that the plaintiff’s capacity for employment was highly limited, that she was presently unable to return to nursing on the cardiology ward, and that she found this reality “highly distressing”. The plaintiff’s high degree of motivation was noted by Dr Manuell. I might add that a possible diagnosis of Q fever, a disease normally associated with workers in abattoirs, was apparently rejected by Dr Manuell as being highly unlikely.

30        It is apparent that the plaintiff was treated by Dr Bruce Kinloch in early 2007. It was he who organised the intravenous ketamine infusion in July 2007. He has reported that she had a severe abnormal reaction to this drug, including the temporary loss of sight in the left eye. His diagnosis was of complex regional pain syndrome type – 1. He noted that she was left hand dominant and made no spontaneous use of that arm. He implicated the assault and considered her prognosis to be poor.

31        In May 2007 the plaintiff was referred by Dr Lim to Ms Carmen Steger, psychologist, and had a number of treatment sessions with her. Ms Steger also referred to the plaintiff developing a chronic pain disorder associated with psychological factors and a general medical condition, whilst referring to the plaintiff’s “strong, intractable chronic pain” and the existence of emotional factors adversely impacting her coping ability.

32        On 3 October 2007 the plaintiff first consulted Dr Dagley. Dr Dagley took a history of the incident of injury and subsequent medical treatment, including the fact that chronic regional pain syndrome had been diagnosed. It was a diagnosis which Dr Dagley repeated. She implicated employment as being the only factor contributing to the chronic regional pain syndrome.

33        A report from the defendant of 29 January 2010 in relation to subsequent attendances by the plaintiff at the staff clinic refers to her attending because of early osteoarthritis in her fingers on 23 June 2008, but attending on 8 January 2009 in a distressed state with debilitating pain. There is reference to her attendance at rehabilitation, and it would appear that this reference is to the chronic regional pain syndrome. The plaintiff attended on 20 August 2009 complaining of stress and poor sleeping. The reasons for these complaints are not spelt out.

34        Dr Manuell has supplied a further report of 4 January 2010 in which she refers to the plaintiff as having suffered a chronic and severe injury, and to the fact that the diagnosis is one of chronic regional pain syndrome involving the left arm, and especially the upper arm. There is reference to the treatment which the plaintiff has had, and to the fact that, as at that date, the plaintiff’s current approach involved regular attendances to a physiotherapist and the taking of medications which ameliorate pain and assist in relation to disturbed sleep. Dr Manuell concluded that the plaintiff had a chronic and severe condition which was stabilised and which was poorly amendable to therapeutic interventions.

35        As is apparent, the plaintiff has also been examined by a number of doctors and specialists for medico-legal purposes. Mr Iain Kelman, orthopaedic surgeon, had access to an MRI scan of the cervical spine of 17 February 2007 which demonstrated some pathology in the form of small multi-level disc bulges, the largest being at C5/6. Mr Kelman was of the view that such pathology was not of significance in relation to the plaintiff’s condition. He found areas of hypersensitivity over various parts of the left upper limb and limited rotation of the shoulder girdle. His diagnosis was of complex regional pain syndrome which was widespread and chronic. He commented that the most effective way of managing complex regional pain syndrome was through physical treatment and therapy. He implicated the assault as the cause of her condition.

36        Dr David Weissman, psychiatrist, also saw the plaintiff at the request of her solicitors. Whilst reliance is not placed upon paragraph (c) of the definition of serious injury, the report of Dr Weissman is of relevance for the purposes of s.134AB(38)(h) and (i). His ultimate conclusion was that the plaintiff had sustained at least a mild to moderate work-related psychiatric condition which interfered with her capacity for employment, and particularly for her pre-injury duties.

37        On behalf of the defendant, Dr Timothy Wood examined the plaintiff in March 2007. He found general hypersensitivity throughout the whole of the left arm along with mild brush allodynia and hyperalgesia. Grip strength testing was significantly reduced. He felt that the plaintiff’s arm had never recovered from the assault and that she had gone on to develop a chronic regional pain syndrome. Dr Chris Baker saw the plaintiff in December 2007. He diagnosed a variant complex pain syndrome type 1 with a psychosocial element impacting upon her physical state. Dr Simon Kennedy, clinical and forensic psychologist, noted that the plaintiff’s symptoms had primarily been physical, and commented that the plaintiff’s psychological state was both primary and secondary to the incident in the workplace. He observed that some of the plaintiff’s psychological difficulties related to her physical problems.

38        Dr Peter Stevenson, consultant physician, whilst impressed by the plaintiff, he saw her condition as being more psychological in nature and felt that it was relatively unlikely that the plaintiff had a true neurovascular complex regional pain syndrome. Having originally examined the plaintiff on 22 February 2010, Dr Stevenson saw her again on 20 September 2010. Whilst essentially he did not change his view that the plaintiff did not have objective signs of complex regional pain syndrome, he did make the following interesting comments:

“She appears to have a genuine pain illness. She did have a documented injury. There appears no overt evidence of unusual amplification; she is clearly trying to work. Her condition is more likely to be psychological and physical but she certainly does not appear to be amplifying disability … I think she is working with genuine difficulty due to pain … She presents as a very credible witness …”

39        Despite the opinion of Dr Stevenson (and the observations referred to above do seem to raise some question marks as to the firmness of his opinion), I am of the opinion that the injury sustained by the plaintiff is in fact complex regional pain syndrome involving the left arm and involving physical injury to that limb. This has been the diagnosis of Dr Manuell, who has seen the plaintiff over a number of years. It is the diagnosis of Dr Dagley. It is the diagnosis of Mr Kelman. Dr Kinloch diagnosed complex regional syndrome type 1. Mr T.J. Russell, general and trauma surgeon, who examined the plaintiff on behalf of the defendant in September 2008, expressed the view that she had complex regional pain syndrome which is sometimes called sympathetic dystrophy. Further, I note that the defendant, via its insurer, accepted liability for injuries to the left shoulder, elbow, wrist and fingers and for her psychological condition and accepted that the plaintiff had a whole person physical impairment of 25 per cent. That seems to have been a totally separate assessment to any carried out in relation to psychiatric impairment (which was in fact found to be zero per cent). The significance of the defendant accepting that the plaintiff had a physical impairment of no small magnitude of the left upper limb is something to which I shall return.

40        Dr Timothy Wood, examining on behalf of the defendant, diagnosed a chronic regional pain syndrome affecting the left arm through to the hand, also referring to some vascular changes described by the plaintiff which may have indicated some partial overactivity of her sympathetic nervous system. Dr Chris Baker, similarly examining, diagnosed a variant complex pain syndrome type 1, referring to her condition as being complex “where there is a psychosocial element impacting on her physical state”. He did not consider that she could undertake patient care tasks because of her limited use of and ongoing problems with the left arm. In his supplementary report of 25 January 2008, he noted that the plaintiff had ongoing symptoms with restriction of use of the left arm “and also suffering psychological problems”. Dr Baker seemed to be drawing a distinction between the left arm problems and the psychological problems.

41        Thus, to a considerable extent, Dr Stevenson seems to be “one out”. I prefer the majority view that the plaintiff suffers from complex regional pain syndrome. I accept that there was and is some physical basis for the plaintiff’s symptoms and that she experiences genuine pain and genuine restrictions and consequences of injury.

42        In the present case, the plaintiff suffered physical injury to the left arm in the assault and suffers physical consequences. She has also suffered some psychological or psychiatric consequences in the form of post-traumatic stress and anxiety symptoms together with mild and moderate mixed reactive depressive and anxiety symptoms (see Dr Weissman) or a depressive reaction, otherwise described as an adjustment disorder with depressed mood of no great magnitude (see Dr Rose). As reliance is placed solely upon paragraph (a) of the definition, these shall not be taken into account. What shall be taken into account is that the plaintiff suffered a physical injury with physical consequences. As shall be discussed in my ruling, the defendant has admitted that physical impairment, as opposed to psychiatric impairment, of a considerable magnitude exists. The approach adopted by Ashley JA in Ansett Australia Ltd v Taylor [2006] VSCA 171 shall also be discussed.

43        The physical consequences of that impairment have manifested themselves upon medical examinations. Such examinations have revealed marked tenderness over the extensor region of the elbow and dorsal wrists and swelling in the general region (Dr Manuell, who also noted loss of power at the left elbow and left wrist), restricted flexion, extension and lateral rotation of the head and neck, together with hypersensitivity over the left upper limb and restricted abduction, flexion and rotation of the shoulder girdle, alteration in contour of the thumbnail also being noted (Mr Kelman); bearing in mind that the plaintiff is essentially left handed, markedly diminished circumference of the left upper arm compared with that of the right compatible with use of the right arm in preference to the left, along with significant restrictions of motions of the left shoulder, elbow and wrist and of the cervical spine (Dr Kinloch); exquisitely tender muscular trigger points (Dr Lim); hypersensitivity through the whole arm with multiple tender points and significantly reduced grip strength testing (Dr Wood); and tenderness together with general and quite marked restriction of movement of the left upper limbs (Mr Russell).

44        I would again point out that the overwhelming majority of the abovenamed medical examiners have commented favourably about the plaintiff and the genuine nature of her symptoms and consequences of injury. Mr Russell, who made no specific comment in this regard, was prepared to make quite a substantial assessment pursuant to the American Medical Association Guides to the Evaluation of Permanent Impairment. One would scarcely expect this on the part of a doctor examining on behalf of a defendant were a plaintiff not considered to be genuine.

45        Of course, the whole of the evidence in relation to impairment, symptoms and consequences is to be considered, including that of the plaintiff, a reliable witness. In this regard, and indeed generally, I would refer to the judgment of Ashley JA in Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167. The plaintiff has given considerable evidence, particularly by way of her affidavits, as to the pain and other restrictions of a physical nature from which she suffers. I have no reason to doubt the accuracy of her evidence.

46        As required by s.134AB(38)(i), the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purpose of paragraph (c) of the definition of serious injury and not otherwise. As stated, it is the physical consequences of the physical injury which I am considering.

47        I am not of the view that the injury under consideration is in the nature of an aggravation or the like. In a case where there is a considerable amount of medical evidence, I find no suggestion to this effect. I do not consider the injury to the left little finger to be relevant in this regard. Of course, if the injury were in the nature of an aggravation, it would be the consequences of the injury as aggravated which I would consider, and, in the circumstances of the present case, that would lead to a similar result.

48        I am also of the view that the plaintiff has established permanence within the meaning of the Act. I have previously noted Mr Russell, examining on behalf of the defendant, was prepared to make an assessment pursuant to the AMA guides, a prerequisite for which is permanence. Mr Kelman has expressed the opinion that the plaintiff’s state is permanent and unlikely to alter. Dr Manuell has commented as follows:

“At this time, greater that (sic) 5 years since the initial injury, I believe the prognosis for cure of Mrs Langdon’s injury is very poor. It has become clear over time and after many attempts at treatment, that Mrs Langdon has a chronic and severe condition which appears for some time now to have stabilised into a fixed condition, poorly amenable to therapeutic interventions.”

49        Dr Baker, examining on behalf of the defendant, expressed the view that the prognosis for the plaintiff returning to her pre-injury duties was “negligible”, and, whilst this is primarily a comment upon capacity, it also reflects a view concerning permanence of restrictions. In summary, I am of the view that the plaintiff’s symptoms, restrictions and consequences of injury will persist for the foreseeable future and are permanent within the meaning of the Act.

(iv) The plaintiff’s employment and other development since the injury

50        I have already dealt with the history of the plaintiff’s medical treatment since the injury. As the present application is one solely in respect of pain and suffering damages, a particularly close scrutiny of the plaintiff’s post-injury employment is not required. The plaintiff continued with her pre-injury duties for a period, but was then absent from her employment from December 2006 until January 2008. She participated in and cooperated with a return to work program organised by Dr Baker and resumed work on lighter duties of a more administrative nature in January 2008. Her high level of motivation and stoical approach to her injuries has been commented upon by medical examiners, and seems to me to be appropriate.

Ruling
51	I am of the opinion that the plaintiff has discharged the burden of proof in this matter. I am satisfied that the pain and suffering consequence of the impairment or loss of a body function which the plaintiff has suffered is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked, and as being at least very considerable.
52	I have arrived at this conclusion for the following reasons:
(i) The plaintiff suffered a physical injury from which physical impairment and consequences have resulted. In a letter of 6 April 2009 the defendant, via its insurer, accepted the plaintiff’s claim pursuant to s.98C of the Act and determined that she had a whole person physical impairment of 25 per cent. It would seem obvious that this was based upon the assessment of Mr Russell of 3 February 2009, who carried out an assessment of the plaintiff’s left upper limb including the shoulder pursuant to the AMA guides, and arrived at the conclusion that the total impairment of that limb was 41 per cent. This converted into a whole person impairment of 25 per cent, and it was this level of physical impairment of the plaintiff which the defendant accepted. There is reference to the reports of Mr Russell in the letter of 6 April 2009. Further, it is stated that the purpose of the assessment was not just to determine entitlement to impairment benefits, but also for the purposes of s.134AB(3) and (15) of the Act. Psychiatric impairment was separately assessed following examinations by and reports from Dr Rose, he having assessed psychiatric impairment at two per cent which converted into a whole person impairment of zero per cent. Thus, the total assessment fell short of the 30 per cent required in s.134AB(15). However, the fact remains that the defendant accepted that the plaintiff had a physical impairment of her left upper limb of very considerable magnitude. Further, one of the purposes of the assessment which produced the accepted level of impairment related to s.134AB. I see no reason why the approach adopted by Ashley JA in Ansett Australia Ltd v Taylor should not be applied to the present case – that is, that such an admission should ordinarily be regarded as very significant, albeit it not conclusive, because a defendant, in a particular case, might be able to satisfactorily explain its conduct. No such explanation has occurred in the present case, and we are left in a situation where the defendant effectively has accepted that the plaintiff suffers a considerable degree of physical impairment but negligible psychiatric impairment. I see no reason why the admission made by the defendant in the present case should not be regarded in accordance with what was stated by Ashey JA. Indeed, given the observations of Ashley JA in Ansett Australia Ltd v Taylor that such an admission is very significant, would appear to be particularly so when there has been no explanation of the defendant’s conduct in relation to such an acceptance. The occurrence of a physical injury has been accepted. The existence of physical impairment of a considerable magnitude has been accepted. The defendant has also adopted an opinion that psychiatric impairment is minimal.

In addition, it is clear from s.104B(2A) of the Act that the Victorian WorkCover Authority is not bound by assessments obtained under s.104B(2)(b) in determining the degree of permanent impairment, if any. In other words, not only have the assessments in the present case been made and accepted for the purposes of s.98 and s.134AB, but additionally there was no obligation to accept them. Nevertheless, the defendant opted so to do and, as stated, there has been no explanation forthcoming which might satisfactorily explain its conduct in so doing.

(ii)        As stated many times, the plaintiff impressed me as a most reliable witness. Accordingly, I have no hesitation in accepting the description of the pain, symptoms, restrictions and consequences of injury which she has described in her evidence and particularly in her affidavits. Equally, I have no hesitation in accepting her description of the sequence of events and of her treatment.

(iii)       The plaintiff suffers from constant pain, lack of strength and sensitivity in her left arm. Essentially, whilst she writes with her right hand, she is left hand dominant. She has difficulty in lifting and holding on to even relatively light objects. There are difficulties associated with some household tasks. The plaintiff’s left arm is sensitive to light touch or pressure and she has to take care to avoid that arm being accidentally knocked.

(iv)       The pain from which the plaintiff suffers interferes with her sleep. Indeed, in bed she has a pillow on her left hand side to ensure that her left arm is not accidentally knocked. The potential significance of interference with the ability to enjoy uninterrupted sleep was emphasised by Maxwell P in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69.

(v)        There has been interference to the plaintiff’s sexual relationship with her husband, and indeed he has left her on a couple of occasions. She told Dr Weissman that her sex drive is effectively non-existent. Again, this is a consequence of considerable importance.

(vi)       The plaintiff can no longer engage in nursing at the high level that she had achieved. I accept the evidence in her affidavit that she particularly enjoyed working in the cardiothoracic unit and felt a sense of loss in that regard. She now works in a light duties/administrative role and “dearly misses” her previous work. I also accept that her injury played a role in the failure of her nursery because she could no longer provide as much assistance as had previously been the case.

(vii)      I accept the general proposition as recorded in various of the medical reports that there has been very considerable interference with the plaintiff’s capacity to perform the personal activities of daily living. Her pain is aggravated by extremes of weather and at times the skin has a mottled appearance. In short, I accept that the plaintiff’s injury impacts adversely upon her life and lifestyle in a multitude of ways and on a daily basis.

(viii)     When it is borne in mind that the plaintiff has been suffering in the manner described above for at least four years and that this will continue to be the situation for the foreseeable future (and, given her age, there is no reason to suspect that this will not be the situation for decades) it seems to me that the plaintiff has discharged the burden in relation to pain and suffering damages.

Conclusion

53        The plaintiff is successful. She has discharged the burden of proof. Leave is granted to her to bring proceedings in respect of pain and suffering damages. I shall hear the parties as to any ancillary orders that are required.

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