Llewellyn v One Mile Motors Pty Ltd
[2013] VCC 989
•9 August 2013 (at Melbourne)
| IN THE COUNTY COURT OF VICTORIA AT WANGARATTA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-06392
| WENDY CECILIA LLEWELLYN | Plaintiff |
| v | |
| ONE MILE MOTORS PTY LTD | Defendant |
---
JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Wangaratta | |
DATE OF HEARING: | 22, 23, 24 July 2013 | |
DATE OF JUDGMENT: | 9 August 2013 (at Melbourne) | |
CASE MAY BE CITED AS: | Llewellyn v One Mile Motors Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 989 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – part (c) application – both consequences – injury to the cervical spine
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Cases Cited: Humphries v Poljak [1992] 2 VR 129; Cropp v Transport Accident Commission & Beglehole [1998] 3 VR 357; Richards v Wylie (2000) 1 VR 79; Nichols v Robinson [2001] VSCA 11; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Acir v Frosster Pty Ltd [2009] VSC 454
Judgment:Application granted.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P A Jewell SC Mr G Pierorazio | Nevin Lenne & Gross |
| For the Defendant | Mr P B Jens Mr M K Clarke | Wisewould Mahony Lawyers |
HIS HONOUR:
1 In the matter of Llewellyn v One Mile Motors Pty Ltd, matter number CI‑12‑06392, on 17 December 2012, Mrs Llewellyn received advice that her application for a serious injury certificate had been refused from the insurer’s solicitors – see exhibit A. On 21 December 2012, an Originating Motion was issued seeking leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to recover damages at common law.
2 Mr Jewell, Senior Counsel, appeared with Mr Pierorazio for the plaintiff, and Mr Jens with Mr M Clarke, appeared for the defendant. In opening, Mr Jewell indicated that the applicant was now sixty-three, having been born in 1950; that the injury of which was being put forward to the Court as a serious injury was a part (a) injury pursuant to the definition of “serious injury” in ss(37); that the application was based upon both consequences and that the impaired body part was the cervical spine and consequent interference with pain pathways.
3 The injuries had been occasioned to the plaintiff over time in her employment with the defendant. The plaintiff’s counsel tendered a chronology, exhibit X, for which I thank them, and also tendered exhibits A1 through to exhibit Y. The plaintiff was called and her two affidavits were tendered and she was cross-examined, as was her general practitioner, Dr Caroline Hawkins. The defendant tendered exhibits 1A to 1C.
4 After Mr Jewell’s opening, Mr Jens identified the issues as a consideration for the Court as to the disablement of the plaintiff’s working capacity coming about by way of injuries which were unrelated to the neck, and further, the major issue identified by Mr Jens for the Court was that the injury to the neck and the consequences thereof were not, he submitted, sufficient to satisfy the narrative test.[1]
[1]Transcript (“T”) 32
5 As to the law relevant to these determinations in regard to an alleged part (a) injury, the Court is now assisted by the application of ss(38)(b), being the statutory recognition of the principles expounded by the Supreme Court, as it then was, in the Appeal Division in Humphries v Poljak[2] and generally by ss(19)(a) and (b) and by the determination of the Court of Appeal in Barwon Spinners & Ors v Podolak.[3]
[2][1992] 2 VR 129 at 140
[3](2005) 14 VR 622
6 The Court continues, of course, to be assisted in such determinations by the general principles expounded in Humphries v Poljak and in Cropp v Transport Accident Commission and Beglehole.[4] Section 38(h) has amended the common law as expounded in Richards v Wylie.[5] However, textual division is important to consider, as expounded in that case.
[4][1998] 3 VR 357
[5](2000) 1 VR 79
7 While I assume it is not necessary to state, one, of course, understands the definition of injury relevant to the cases to which I have referred, does not include the word “permanent” which has now been substituted, it previously being in the definition of the words “long term”.
8 This Court must look at the totality of consequences of alleged injuries and apply a value judgment as explained by the then Winneke P in Nichols v Robinson,[6] such approach being further endorsed by the Court of Appeal in Sumbul v Melbourne All Toya Wreckers Pty Ltd.[7]
[6][2001] VSCA 11 at paragraphs [14] to [19]
[7][2006] VSCA 292
9 The plaintiff, in her affidavit, exhibit B1, sworn 8 December 2012,[8] said that she commenced employment with the defendant as a clerk/receptionist in August 1989. She worked on the keyboard and carried out computer work throughout the period of her employment. The symptoms in regard to her arms and neck, she said, began in mid 2002. Thereafter, she saw her general practitioner, Dr Hawkins.
[8]Court Book (“CB”) 15
10 In exhibit D1,[9] a report dated December 2004, Dr Hawkins refers to neck pain as being related to the employment and developing in mid 2002. In cross-examination, it was put to the plaintiff by Mr Jens that her real problems initially were in relation to her arms, elbows and wrists, not to her neck. The plaintiff maintained however, that the neck was always involved.[10] Mr Jens further put to the plaintiff that both arms were the problems initially when she saw Dr Hawkins. Again, the plaintiff replied to such question “No, the neck and shoulders as well”. It was further put by Mr Jens to the plaintiff that the state of her arms would have stopped her working on their own. She replied “No, the arms and the neck”.[11] She further replied, insofar as what was the ultimate reason for her stopping work, that she was unsure but that “It’s all connected”.[12]
[9]CB 36
[10]T50
[11]T42
[12]T47
11 In re-examination, the plaintiff said that when she stopped work in 2012, it was for pain to the neck, shoulders, headaches and arms. She said “It was so bad I could not carry on”.[13]
[13]T151
12 In cross-examination, Dr Hawkins was asked that, if the neck pain had originally been reported and observed by her in 2002, then how was it that in the three letters to the insurer, Exhibits 1A, B and C, that is two letters dated 16 January 2003, and the third letter dated June of 2004, that in the first two letters there was reference only to wrists and elbows and in the second letter to the insurer, there was reference only to the forearm, wrists and elbows. The question to the doctor from Mr Jens was, why was it that the neck was not mentioned at that time. In this regard, Mr Jens contrasted the failure to mention the neck with exhibit D1, a report of the doctor of December 2004,[14] exhibit D2, a report of February of 2006,[15] and the report, exhibit D3, a report of August of 2006[16] where the neck was mentioned.
[14]CB 36
[15]CB 38
[16]CB 40
13 Dr Hawkins explained that such reports and the alleged discrepancies as put by Mr Jens were simply as a result of the particular requests and the way the insurance company ask for answers, and such reports needed to be read accordingly. Having gone over such evidence and all of the materials referred to by Mr Jens, I find that I accept the doctor’s evidence and that it has always been her opinion that the neck injury to the plaintiff emanated from the plaintiff’s work, and that it was reported at the time the plaintiff has sworn to. As the doctor explained in cross-examination, the neck was one of the factors involved in the diagnosis of Complex Pain Syndrome, a diagnosis whereby, according to the general practitioner, the neck pain impacts upon the lower arm, elbows and hands.
14 During cross-examination of the doctor, Mr Jens put to Dr Hawkins a medical report of Mr Brownbill. That report was exhibit N[17] and is dated 13 November 2012. The neurosurgeon noted[18] the plaintiff's history of neck pain beginning in 2003, that she had injections thereafter for the neck and that the neck pain by way of history had continued; that is, from the period 2003 through to 2012 with fluctuations.
[17]CB 105
[18]CB 106
15 Upon examination of the plaintiff 8 November 2012, Mr Brownbill noted a number of specific symptoms reported by the plaintiff; that is, pain at the back of the neck, pain at the top of each shoulder and headaches. On examination, Mr Brownbill noted a 50 per cent reduction in neck movement. He also reviewed the radiology. He then opined[19] that the plaintiff had longstanding degenerative changes of the cervical spine which had been asymptomatic, and said such “… were aggravated by her described repeated neck twisting and flexion at the computer station for full shift times”.
[19]CB 109
16 It is to be noted that he made such diagnosis, albeit that he noted there was no neurological deficit or radiculopathy. Mr Brownbill further opined in such report that such injury will produce a moderate degree of incapacity in social, domestic and recreational activities, and further, a moderate to marked employment incapacity restricting the types of employment open to the plaintiff.
17 This opinion of Mr Brownbill, in my opinion, confirms that of the general practitioner expressed in exhibit D5,[20] a report dated 6 September 2012. In that report, the general practitioner diagnosed that the plaintiff was suffering from a bilateral C5-6 foraminal degeneration; that such had been caused by her employment; that such injury restricted the plaintiff to short-term computer work, to a maximum of 20 hours per week.
[20]CB 44
18 The doctor also, in her oral evidence before the Court, described further the pain to the neck experienced by the plaintiff and how such pain is referred from the neck through into the shoulders[21] and the debilitating nature of such neck pain and referred pain from the neck and its effect on the function of the plaintiff.[22]
[21]T137
[22]T139
19 Tendered as exhibit R1 was a report of a neurosurgeon, Mr McMahon. This was a letter to the general practitioner dated 2 November 2012.[23] Mr McMahon confirmed that it was his opinion that the plaintiff was suffering from chronic bilateral neck pain with radiation to the suprascapular area and the upper limbs. He also noted that there was no nerve root compression.
[23]CB 60A
20 Such diagnosis is also confirmed in the medico-legal report of 23 May 2013 of orthopaedic surgeon, Mr Dooley, to the defendants, exhibit P.[24] Mr Dooley’s diagnosis was of a work-related aggravation condition of the neck with the effect of restricting the plaintiff to suitable duties only and to part-time employment. The diagnosis, in my view, was also confirmed by the orthopaedic surgeon, Mr Leitl, in exhibits L1 and L2.[25]
[24]CB 121
[25]Respectively at CB 67 and CB 72
21 As pointed out in final address by Mr Jewell, the physiotherapist, Martin Hogan, in exhibit F, being a report of 18 December 2002,[26] confirmed the plaintiff’s evidence of her complaint as to cervical spine pain in December of 2002, with a history given at that time of the gradual development of such injury over a period of two to three years. The physiotherapist, Martin Hogan, noted on examination at that date, a major restriction in the neck, and diagnosed a chronic cervical dysfunction, secondary to her work.
[26]CB 47
22 I find on the above medical evidence, to which I have referred, that the plaintiff’s evidence is overwhelming as to its consistency, as to the development of the neck injury and pain therefrom and persistence from 2002, as she has detailed to the Court. I find no inconsistency in the evidence of the plaintiff, nor do I find any evidence of inconsistency in that of the general practitioner, and I make that finding in regard to the plaintiff despite the submission to the opposite effect based upon the claim forms set out in exhibit Q1 and Q2, and as I said the cross-examination of the doctor by Mr Jens. I accept the evidence of the plaintiff that the neck has remained in such a state until today, as was confirmed by the general practitioner.
23 I found the plaintiff consistent in her evidence and genuine, and the symptomology as to her neck as described in her affidavits, in particular exhibit B1, her affidavit of August 2012;[27] exhibit B2, her affidavit of May 2013,[28] and in regard to her medication which she confirmed orally.[29]
[27]CB 18 at paragraphs [14] to [30] and paragraphs [33] to [44]
[28]CB 27 at paragraphs [3] to [9]
[29]At paragraphs [16] to 17 and further, at paragraphs [21] to [33]
24 The plaintiff’s description of such symptomology and the effects upon her life as detailed in those paragraphs I found to be convincing and realistic, and indeed I found the plaintiff to be a stoic.
25 While the plaintiff has other regional pain issues with the lower limbs, I find that such do not restrict the Court from a comprehension of the impairment relevant to the neck.
26 I find such impairment to the neck caused by the injury at work to be permanent and such which will impact upon the plaintiff for the foreseeable future.
27 I find on the evidence of the plaintiff and the medical evidence, within which I include the physiotherapist, that the work injury or aggravation injury to the asymptomatic cervical spine of the plaintiff has had a particularly deleterious impact on the plaintiff, causing her pain and suffering, loss of enjoyment of life, in particular in the way the injury to her neck has impacted upon her ability to utilise her bodily functions and carry out her normal daily activities in her employment, social pursuits and tasks around the home.
28 In assessing such impairment objectively and in accordance with s134AB(38)(b) and (c) of the Act, I find the consequences of the pain and suffering and impairment upon the plaintiff’s enjoyment of life are certainly more than significant and marked and are very considerable. I therefore find that the impairment of body function to the plaintiff’s neck to be a permanent serious impairment.
29 As to the claim for loss of earning capacity consequences, there can be no doubt that when assessed in total, the ultimate reasons for the plaintiff being unable to work, or being restricted in her work in the future, must be seen as multi causational. Clearly, Mrs Llewellyn has had, in addition to her neck injury, despite her stoic nature and expressed desire to continue part-time work, to deal with the impact of a severe lumbar spine injury and also regional pain issues in regard to the lower part of both arms, which have persisted as long as her neck issues have, and it would appear at a similar pain level.
30 I find however, that the plaintiff has established upon her evidence and the medical evidence that the injury to the neck has restricted her capacity to engage in full-time employment, as assessed by her general practitioner as being to a maximum of 20 hours a week, and such is supported by the medical reports that I have already referred to. I note that to date since ceasing work with the defendant, and thereafter working with her husband, she has stoically maintained her employment at a level of 15 hours per week; that is, since April of 2012.
31 I find that the loss of earnings analysis tendered by the plaintiff, being exhibit Y, establishes, on the basis of either the actual 15 hours worked or the 20 hours assessed capacity by her general practitioner, a loss of earning capacity such that the hurdles established by ss(38)((e) and (f) have been overcome.
32 It is not to the point that other ailments in the plaintiff’s life may have actively contributed to the plaintiff suffering a loss of earnings or a loss of earning capacity. Indeed, an apportionment in that regard may ultimately be a question for a jury to determine, I make that comment upon the principles set out in Acir v Frosster Pty Ltd.[30]
[30][2009] VSC 454 at paragraphs [170] to [175]
33 I find on the evidence, and in assessing such impairment caused by the neck objectively and in accordance with s134AB(38)(b), (c), (e), (f) and (g) of the Act, that the loss of earning capacity consequences and the impairment upon the plaintiff’s earning capacity is certainly more than significant or marked, and indeed very considerable. I therefore find the impairment of earning capacity caused by the neck to be a permanent serious impairment.
34 As to orders, I find as a result of the injury to the neck incurred by the plaintiff when working for the defendant, that the plaintiff has suffered a “serious injury” as defined by s134AB(37) of the Act and I grant leave pursuant to s134AB(16) of the Act for the plaintiff to commence proceedings to recover damages for pain and suffering and loss of earning capacity.
- - -
0
4
0