Longin v Statewide Autistic Services Inc
[2012] VCC 873
•29 June 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-11-01933
| MOIYA LONGIN | Plaintiff |
| v | |
| STATEWIDE AUTISTIC SERVICES INC | Defendant |
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JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 June 2012 | |
DATE OF JUDGMENT: | 29 June 2012 | |
CASE MAY BE CITED AS: | Longin v Statewide Autistic Services Inc | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 873 | |
REASONS FOR JUDGMENT
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Catchwords: Section 134AB(16)(b) of the Accident Compensation Act1985 (Vic) – Pain and suffering only – Injury to the lower back and spine – Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N. D. Horner | Maurice Blackburn |
| For the Defendant | Mr P.R. Trigar | Minter Ellison |
HER HONOUR:
Introduction
1 This is an application pursuant to s.134AB of the Accident Compensation Act 1985 (“the Act”). The injury that is relied upon is an injury to the lower back sustained by the plaintiff in a lifting incident in or about October 2005, namely, a disc prolapse at L5-S1 impinging on the S1 nerve root. The body function claimed to be impaired is that of the spine.
2 The application is in respect of pain and suffering only. The main area of dispute is whether the consequences of the compensable injury are serious in terms of pain and suffering. Evidence was given by the plaintiff and otherwise the parties relied on the material contained in their respective court books.
Plaintiff’s background
3 The plaintiff’s background history is contained in her two affidavits, sworn on 11 October 2010 and 23 May 2012. She was born in Australia on 25 December 1959 and is currently 52 years of age. She left school at the end of Year 9. In 2005, she obtained a Certificate IV in Disability Services after completing approximately 18 months part-time study at TAFE. She also holds a gaming licence.
4 The plaintiff was involved in home duties for about 20 years before obtaining casual work in 2001 as a waitress and bar attendant at the Maffra Sporting Club. At the end of 2002, she decided to move into the field of disability services and commenced volunteer work with Statewide Autistic Services Incorporated (SASI). This turned into a paid casual position. Later in 2003, she obtained another casual job with a disability services business known as “Stoke” in Morwell.
5 After about six months, the plaintiff accepted the offer of a full-time paid position as a disability worker with SASI. SASI was in the business of providing day placement services to adults with a range of physical and mental disabilities. She worked at SASI’s premises at Morwell called “The Alfred Murphy Centre” and at the Sales premises known as “The Sale Education Lifeskills Facility”.
6 The plaintiff’s normal duties involved her assisting clients with walking and all aspects of personal care including toileting and showering. She had to push clients in wheelchairs over carpeted areas and used a hoist to transfer clients to and from bed, wheelchairs and toilets. Some clients were heavy, awkward or resistant to being helped. For example, when transferring clients in and out of buses, some clients could get aggressive and hit or punch you.
7 The plaintiff’s work at Morwell was generally more physically stressful than at Sale. Her job involved a lot of lifting, bending and twisting activities as well as quick movements, such as when clients became aggressive and she had to get out of the way in a hurry or she had to get other clients to a safer place. The job required the full and free use of her back.
The first incident
8 In September 2005, the plaintiff had to load a heavy Esky holding meals on wheels onto a work bus in Morwell. She struggled with the Esky as there was no one around to help her. The metal step at the doorway of the bus was wet as it had been raining. The plaintiff slipped on the metal step and lost her balance. In order to regain her balance, she fell and landed heavily on her other foot, jarring her back. When she was cross-examined about the fall, the plaintiff’s evidence was that when she slipped on the bus it gave her “back a slight jar” (transcript p. 5).
9 The plaintiff’s ribs and low back were sore after this incident and on 19 September 2005, she saw her local GP, Dr Lynden Derrick. The plaintiff agreed that when she saw Dr Derrick with respect to this incident, she had complained to him about her ribs and that the X-ray he had arranged for her was of her ribs (transcript p. 6). While she denied that she “made no reference whatsoever to her back,” Dr Derrick took down a history that “last Monday 19 September 2005 fall at work onto bus with blunt trauma to right low anterior ribs” (transcript p. 6).
The second incident
10 After the first incident, the plaintiff continued her normal duties. The second incident of back pain occurred in about mid to late October 2005, at Sale, when she was assisting a client from her wheelchair to a toilet. The client was physically disabled and could only stand with assistance. The plaintiff recalled that there was no lifting equipment available and she had to make the transfer on her own. When the plaintiff was getting the client to her feet, she felt a sharp twinge of pain in her lower back.
11 When the plaintiff was cross-examined about the severity of her back pain at the time, she described it as being “quite severe”. It was severe enough that it was giving her “a lot of pain at night and during the day”. While she did not go to the Heyfield Clinic (“the Clinic”) about her back pain until 8 November 2005, the plaintiff’s explanation was that it was “because I continued to work until it got to the point where I could not move, I could not walk, I could not do much at all” (transcript p. 6).
12 The history, as recorded by Dr Peter Stevens at the Clinic on this occasion, was “has hurt back, did some lifting two week ago, has progressively been more uncomfortable. Friday developed acute pain some paresthesia. Saw MC yesterday for massage” (clinic notes p. 1).
13 The plaintiff continued with her normal duties after the second incident despite ongoing low back pain. Her claim that she was experiencing ongoing back pain is supported by the history from the Clinic that she attended on Monday 14 November 2005, complaining of back pain, and then on Monday 5 December 2005, she attended again and gave Dr Stevens a history of “low back pains for 5 weeks settled initially but has flared again with some r sided lateral thigh pain” (clinic notes p. 2).
14 The clinic notes reveal that on 7 December 2005, the plaintiff stopped work due to her back pain pain. On her return to SASI in early 2006, she was assigned modified duties on graduated hours. There were also restrictions on bending, lifting and twisting. Initially, she performed office duties before eventually going back to part-time and then full-time duties.
15 Despite ongoing back and leg pain and undergoing continuing treatment, she struggled with her work. The back and leg symptoms caused her to take hours or days off work now and then. Eventually, the back and leg conditions became too much for her and after seeing her local doctor she started taking Wednesdays off.
16 However, SASI pressured her to return to full-time work and she reluctantly agreed to do so as she was under considerable financial pressure. The back and leg conditions were still causing her a lot of problems and deteriorated as she struggled to remain at work full-time. During this time, she continued to receive treatment.
17 By February 2008, her back condition had worsened to such an extent that it was difficult to stand and carry out her work duties. She returned to her GP and took three days off work. On review, the doctor said that she needed more time off work. She relayed this advice to SASI but they told her she needed a full medical clearance before returning to work. She has not worked for SASI since this time.
18 The plaintiff received workers compensation in respect of the back injury. She received weekly payments of compensation and also lump sum compensation. She has undergone treatment for the back injury including physiotherapy, massage, Pilates, wearing a back support, heat packs, acupuncture, hydrotherapy, painkillers and anti-inflammatories.
19 The plaintiff has been treated by doctors at the Hayfield Medical Centre and was referred to Mr Tieu Han an orthopaedic surgeon , whom she first saw in February 2006. She has also attended Doctors Prasannan and Rose. She has received treatment for her mental state from Mr John Redman.
Work after SASI
20 After leaving SASI with the assistance of a company called “Ayres Management”, the plaintiff completed a photoshop course as well as a two day first aid course. On 30 June 2008, she started full-time work in a picture framing shop in Sale as a shop assistant through the WISE scheme. Her employer expected her to do tasks which she felt were not safe for her back, including climbing ladders and hanging pictures on the wall. She was there for about three months before the employer “put her off”.
21 The plaintiff was off work until she commenced a casual part-time position with an out of home care service provider, Vista and EW Tipping. In addition, from January 2012 she has worked for the George Grey Centre in Sale. She works there Mondays and Tuesdays and, if required, for three hours on Thursdays.
22 This job involves teaching clients independent living skills, shopping, cooking, general housework. The clients are aged at least 18. Although most have intellectual disabilities they are low need clients in that all but one are independently mobile. The work involves no heavy lifting and none of the clients exhibit behavioural issues .
23 An Ayres Management NES report, dated 29 April 2009, recorded that on 29 April 2009, they were successful in placing the plaintiff as a personal carer with Vista. It confirmed that in this job the plaintiff provided services to clients who were not highly dependent. In addition, that she was working with children under the control of the Department of Human Services.
24 Medical opinion relied on by plaintiff
i) Dr Lyndon Derrick (Hayfield Medical Centre)
25 Dr Derrick first saw the plaintiff on 27 September 2005 when she stated that she had suffered a fall at work on 19 September 2005 landing on her hand or arm. An X-ray revealed no rib fracture and she was managed conservatively.
26 The plaintiff then saw (Mr Derrick’s) a colleague at this clinic on 8 November 2005, two weeks after lifting at work helping with a client transfer and feeling sudden low back pain which she stated was a “worsening of a less severe pain in the same region since her 19 September 2005 fall” .
27 The plaintiff was diagnosed as having strained her right L4/5 fact joint. She was seen again on 14 November 2005 and 8 December 2005 when she was referred for a CT scan of her lumbosacral spine which revealed a L5-S1 disc bulge compressing the right S1 nerve root.
28 Dr Derrick saw the plaintiff in January 2006 when there was an exacerbation in her low back pain when she was mowing her lawn. He saw her again in February when she stated that the pain was still worsening and radiating into her left buttock and left ankle. On this occasion he referred her to Dr Tieu Han.
29 By late March she had turned the corner again and was improving, although she was still in significant pain and had to limit her work duties to be able to cope. He expected her to continue her gradual improvement (report of 21 April 2006).
30 However, on 4 July 2008, Dr Derrick reported that:
“The plaintiff is definitely suffering complications from her work-related injury to her low back. These are reactive depression anxiety disorder and musculoskeletal pain in her neck and right shoulder” (PCB p. 33).
31 On 5 June 2012, he reported that the plaintiff had gradually deteriorated in relation to her back and depression. She had self-medicated with alcohol at times to excess which had exacerbated this. They had tried multiple attempts from different angles to help her pain and depression (PCB p. 34a).
ii) Mr Tieu Han
32 In his report of 20 February 2006 (PCB p. 27), Mr Han consultant neurosurgeon reported that he had examined the CT of the plaintiffs abdomen performed in 2005. It revealed a mild disc protrusion at L4/5 and L5/S1 levels with was no evidence of nerve root impingement or cauda equine compression.
33 When he reviewed her on 5 August 2006 (report of 23 February 2009, PCB p. 28), he had the results of a CT of the lumbar spine and an MRI of the lumbar spine which had been performed on 30 June 2006 plaintiff.
34 The conclusion of the CT was:
“relatively minor posterior disc protrusion posterioriorly and laterally to the right at L5/S1. This is causing very mild compression of the right S1 nerve root. Nil else”.
35 The conclusion of the MRI was:
“Multi-level degenerative disc disease. Right posterolateral disc protrusion at L5/S1. Contact of the traversing nerve root likely accounts for the patient’s symptoms”.
36 Mr Han believed that there was a high probability of plaintiff’s pain improving and a likely potential that she could return to work. Her prognosis was favourable as she had shown improvement of pain with conservative treatment and it was likely that she would continue to improve with time.
iii) Dr P Prasannan
37 Dr Prasannan, a senior registrar in Rehabilitation Medicine, saw the plaintiff on 22 February 2007. She told him told him about the incident with the wheelchair in 2005 and that she had been suffering from low back pain for one and a half years. In his opinion:
“her condition can be concluded as chronic pain syndrome. The chronity of pain may be due to premature return to strenuous work, which demands a lot from lumbosacral spine fitness.” (PCB p. 35)
iv) John Redman
38 In his report, dated 23 August 2007, John Redman, clinical psychologist, advised that the plaintiff was severely anxious and depressed. She was helped to utilise mental methods to reduce pressure on herself. The plaintiff had learned to manage her pain but she required further assistance to consolidate her gains. In the last paragraph of his report, Mr Redman said inter alia:
“This 47 year old lady has maintained her commitment to work despite constant debilitating pain. She is severely anxious and stressed at times but is able to manage in her job as best she can. She requires further assistance especially on a fortnightly basis and several months to consolidate her situation”. (PCB p. 39)
v) Mr Michael Khan
39 On 27 December 2011, Mr Khan took a history from the plaintiff of the two incidents at work. His diagnosis was that she had developed:
“a disc prolapse in the lower part of the back at L5/S1 level and flared-up degenerative changes in her lower lumbar two disc levels with flare-up pre-existing asymptomatic facet joint arthropathy in the lower part of the back.”
40 In his opinion, she remained partially disabled but had recovered sufficiently to be able to cope with sedentary alternative duties avoiding heavy lifting, excessive bending, twisting and turning of her spine. Her partial incapacity for work was permanent. Given that she had returned to work performing suitable alternative duties within her limitations and restrictions the long term prognosis was favourable.
41 However, Mr Khan also considered that she would continue to require care by her general practitioner as necessary and that she may need to see a specialist if the condition became worst (PCB p. 42).
The defendant’s medical reports
i) Mr Clive Jones
42 Mr Jones, an orthopaedic surgeon, provided several reports, dated 24 November 2008, 30 July 2009, 4 August 2009, 5 April 2011 and 17 May 2012. His opinion in the first four reports may be summarised as follows:
- The MRI, dated 30 June 2005, revealed that the L4-5 disc was abnormal with some lost hydration. Mr Jones observed some swelling, particularly on the left side, which he thought may be involved in adjacent nerve root (report of 24 November 2008).
- The plaintiff suffered from fluctuating levels of backache with some leg referral. The underlying cause was lumbar disc degeneration (report of 24 November 2008, 4 August 2008, 30 July 2009 and 4 August 2009);
- The medical condition arose out of the course of her employment probably by way of aggravation (reports of 24 November 2008,4 August 2009 , July 2009).
- The plaintiff is not fit for her previous duties but has a capacity for more sedentary employment (report of 4 August 2009).
- While it is difficult to say which of the two incidents contributed to her current condition, the second event where she was lifting a patient unassisted was probably the main contributor (report of 5 April 2011).
- The prognosis was thought to be good. Mr Jones suspected that the changes seen on the MRI were the results of normal aging rather than trauma, but he would not expect her disability to increase dramatically over time and there was certainly no indication for surgical management (report of 5 April 2005).
43 In his final report, of 17 May 2012, Mr Jones’ opinion was that the plaintiff’s present physical restriction was of a minor nature. Examination showed satisfactory range of movement and virtually normal back function for her age. There is no evidence of neurological compression.
44 With respect to her work capacity, he considered that “from a physical perspective, she would struggle to perform her pre-injury employment”, but at this stage, she “was in suitable employment which does not involve the handling of heavy individuals”.
45 While he suspected that the plaintiff would continue to experience symptoms of back pain, there is no serious underlying condition and “certainly no need for surgical address of this problem”.
ii) Dr Alan Jaeger
46 In his report dated 16 February 2009, forensic psychiatrist Dr Jaeger diagnosed the plaintiff as having a major depressive disorder in partial remission. She was left with impaired energy and reduced enjoyment. Her psychiatric condition did not affect her activities of daily living, her capacity for work or her ability to travel by public transport or private motor vehicle to and from the workplace or appointments. However, her ability to drive was impaired due to concentration difficulties.
47 From the psychiatric perspective, the plaintiff could undertake full-time pre-injury duties or alternative duties. Her condition arose as a consequence of medical problems, relationship problems and injury at work. Her condition was not stable and she had a reasonable response to treatment. The prognosis was favourable and she could still enter a full remission.
iii) Dr Norman Rose
48 In his report, dated 17 September 2006, Dr Rose was of the opinion that the plaintiff had a psychiatric injury which was secondary to the physical injury sustained at work in 2005. When she lost her job due to her back injury, she became devastated, anxious and depressed. She had developed a psychiatric reaction to her physical injury being an adjustment disorder with mixed anxiety and depressed mood.
iv) Mr Peter Battlay
49 Mr Battlay diagnosed the plaintiff as having sustained a disc stain to her lumbosacral spine in the incident at work in early October 2005. In addition, she had developed an L4-5 disc derangement which “seems to radiate into her left leg”. There was no evidence of an objective neurologic loss and she had a stabilised permanent impairment of the back (report of 5 May 2008, DCB p. 154).
v) Dr James Rowe
50 Dr James Rowe, a specialist occupational physician, diagnosed a disc protrusion at L5-S1, stating:
“The contributing factor to her condition is a general nature of work and the lifting required. This has resulted in disc protrusion at L5-S1 which is resolving naturally as is the usual case”…”Currently she is working part-time and has reduced her hours of work and there is some modification of her work and she is able to cope with a 5 kg lifting limit. She has the capacity for employment and is working within her capacity at the moment” … “Her prognosis is good. She will eventually be able to return to her pre-injury work but it might not be for another two or three months.” (report of 16 May 2006 DCB pp. 160-161).
vi) Dr Richard Prytula
51 In his report dated 18 April 2011, Dr Prytula, psychiatrist, thought that the plaintiff might have developed an adjustment disorder with depressed mood related to workplace conditions. This condition was resolving, although she still had some residual symptoms.
Causation
52 The CT scan of the lumbar spine and the MRI support a finding on the balance of probabilities that in the course of her work with the defendant the plaintiff suffered a disc protrusions at L5/S1. In addition, that the disc prolapse at this level was causing mild compression of the right S1 nerve root.
53 While there were two incidents at work which could have caused or contributed to this injury, I find that it was the second incident at work in October 2005 that was the major cause of the plaintiff’s back injury. In doing so, I have taken into account that:
- the plaintiff described her pain from the first incident as being “a slight jar”;
- Dr Derrick took no history of the plaintiff complaining of back pain when he saw her on 19 September 2005, following the first incident;
- the plaintiff’s evidence of her pain after the second incident was that it was “severe enough” to give her “a lot of pain at night and during the day”;
- when she saw Dr Derrick’s colleague at the Clinic on 8 November 2005, she described the pain after the second incident as a worsening of less severe pain in the same region since the first fall;
- after the first incident, the plaintiff was continuing to work her normal duties with SASI;
- Mr Jones (only expert who dealt with the issue of which incident at work was the main contributor to her condition) was of the opinion that her medical condition arose out of the course of employment, probably by way of aggravation and that the second incident where she was lifting a patient unassisted was probably the major contributor to her current condition (DCB p. 137);
- the plaintiff ceased working with the defendant shortly after the second incident and never achieved normal duties again;
- the defendant’s medical experts (Mr Battlay, DCB p. 155, and Mr Rowe, DCB p. 160), who were only informed about the second incident and accepted that the lumbar disc injury at L5-S1 was caused by this incident.
Serious injury
54 The real issue in this case is whether the test of “serious injury” is made out in terms of pain and suffering.
55 In submitting that the plaintiff’s impairment did not satisfy the test for being a “serious injury”, the defendant relied, in particular, on the following matters:
- the fact that the CT scan of referred to the protrusion at L5-S1 as being a “relatively minor one”;
- that although the plaintiff initially complained of leg symptoms in 2005 there had been no reference her complaining of any leg symptoms for some time;
- the reference in a number of reports to the disc protrusions being mild that there were complications concerning the psychiatric or psychological aspects of her claim;
- that when she saw Dr Jaeger on 6 February 2009 she did not refer to difficulties she was having in her current employment;
- that when she saw Dr Prytula in March 2011 (with respect to a WorkCover stress claim) she told him that “she had a back injury in 2005 whilst at work which involved prolapse of two discs in her back. She did not have an operation and still had some “occasional pain and discomfort from that”.
- that she has anxiety and depression related to the back injury;
- that on his physical examination in December last year, Mr Khan’s findings were normal and his prognosis for the plaintiff long term were favourable;
- Mr Jones’ most recent report of 17 May 2012 where he described the plaintiff’s physical restriction as being of “a minor nature” and reported that examination showed a “satisfactory range of movement and virtually no evidence of neurological compression. His examination had shown a satisfactory range of movement”;
- that the plaintiff had been to the doctor in the last 12 months and not mentioned her back. She said that she had. It was not recorded in the notes (transcript p. 14).
56 In his closing address, counsel for the defendant submitted that the plaintiff had described her condition most accurately to Dr Prytula in March 2011 and that “Her back was occasionally troublesome, otherwise it is minor, at the minor end of the spectrum in terms of back injuries with some pathology. It rumbles along. She avoids things. Occasionally comes along but nothing like the level of pain disability impairment that she claims. It does not qualify as a serious injury”(T25)
The plaintiff’s case
57 In submitting that the injury to her back met the definition of being a serious injury, the plaintiff relied, in particular, on the following matters:
- The radiology CT scan and the MRI of 30 June 2006, which revealed pathology consistent with her claims of back pain.
- Dr Rowe’s examination on 16 May 2006, where he reported finding weakness of movement of the right foot and the ankle and that the right calf was two centimetres smaller than the left one.
- The clinical notes of Dr Derrick on 21 July 2006, where he noted “R foot drop and R lower limb weakness”.
- With respect to the plaintiff’s description of her back pain to Dr Prytula as being “occasional” in March 2011 the clinical notes of Dr Derrick of 17 January 2011, where the history recorded was: “back, lot worse lately”. On the same occasion, the plaintiff was prescribed Panadeine Forte (500mg) and Panamax (500mg).
- The plaintiff also relied on the medical notes of Dr Derrick of 17 June 2011 which stated “back a lot worse lately” as well as the fact that he prescribed Panadeine Forte.
58 In his closing address, counsel for the plaintiff submitted that the plaintiff had ongoing back pain which worsened with the activities of daily living. She suffered disturbed sleep, restrictions on driving, restrictions on performing household tasks, and restrictions on her ability to care for her elderly parents.
59 In her affidavit, the plaintiff had highlighted the enjoyment she received from doing the challenging work she was performing at SASI (PCB p. 24, at paragraph 17). Counsel submitted that it was significant that the majority medical opinion was that due to her injury the plaintiff was excluded from this pre-injury work. (T27)
Finding
60 I am satisfied that when judged by comparison with other cases in the range of possible impairments, the consequences of the injury to the plaintiff’s spine and the resulting impairment may be fairly described as more than significant or marked and as being at least very considerable. While there was some optimism about the plaintiff’s prognosis early on, I accept that she continues to suffer from constant low back pain which is worse sometimes more than others. In particular, I accept that:
- The level of pain usually increases when sitting or standing, bending, twisting and lifting.
- Sometimes she experiences pain, pins and needles and a cramping sensation in the legs.
- Walking can be a problem, especially when using stairs or walking on uneven surfaces.
- She has suffered many flare-ups of back pain since the first incident.
- Her sleep is disturbed by the back and leg symptoms.
- The way that she copes with the pain is a combination of medication and using the distraction techniques she was taught by the psychologist.
- The level of pain also increases if her back is exposed to jolting or jarring and the jolting and jarring caused by waves limits her ability to go boating whereas prior to her injury she went every weekend in summer.
- The pain affects her ability to go on walks, work in the garden, carry out household chores (now she has to do just a little at a time) and assist her elderly parents who live nearby (I note that WorkCover continues to pay the someone to do the lawns and clean the windows of her house).
- She has lost energy since the back injury and generally feels tired.
- It has taken a lot of her independence away from her.
- Although she can drive a car, she cannot drive for long distances because it causes too much trouble on her back. She has to stop and have frequent breaks.
- She continues to take Panadeine Forte and Panamax for her back pain and she occasionally takes Feldene.
- She has suffered from many flare ups over the years.
- The plaintiff’s quality of life has decreased.
61 There was no video surveillance relied upon by the defendant which was inconsistent with the plaintiff’s claims referred to above. In addition, while early medical prognosis was favourable and in some medical reports the injury was referred to as being “relatively mild” I consider that the plaintiff’s claims of continuing pain and disability are supported by the medical notes from the Clinic. It was apparent on perusing these notes that the plaintiff has been experiencing significant issues with back pain from late 2005 onwards.
62 While her complaints about back pain were not as frequent in 2011 and 2012, it is apparent from the notes that she had other issues, including work stress that were pre-occupying her. Even so, the clinic notes (referred to below) reveal that back pain, remained an issue:
- On 17 January 2011, her back pain lot worse (of late), due to no massage or gym for a while.
- On 28 February 2011, the plaintiff reported that her back pain had been severe lately.
- On 19 April 2011, the plaintiff reported “returning back and leg pain“ including on “back tightening up and pains returning around low abdomen and sciatica also returning”.
- In June 2011, the plaintiff reported back pain and Panadeine Forte was prescribed.
- On 3 April 2012 she reported “back pain, limited movement and increased pain since cessation of massages”.
63 In evaluating the pain and suffering consequences of the injury to the plaintiff’s lower back, I have taken into account the matters set out by Maxwell P in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 . The plaintiff’s domestic and recreational life has been significantly affected by her back injury and I accept that the impairment is permanent. While she has been able to return to work in other employment, the plaintiff’s job with SASI gave her enormous satisfaction and enjoyment and it is significant that she can no longer return to this work.
64 On the basis of the findings and conclusions set out above, I grant leave for the plaintiff to bring proceedings at common law for pain and suffering.
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