Lurati v Australia Wide Personnel Pty Ltd
[2013] VCC 1030
•27 August 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-03708
| JOANNE LURATI | Plaintiff |
| v | |
| AUSTRALIA WIDE PERSONNEL PTY LTD | Defendant |
---
JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19, 20, 21 and 22 August 2013 | |
DATE OF JUDGMENT: | 27 August 2013 | |
CASE MAY BE CITED AS: | Lurati v Australia Wide Personnel Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1030 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the lumbar spine – pain and suffering damages only
Legislation Cited: Accident Compensation Act 1985, s134AB(37)(a)
Cases Cited:Elias v Transport Accident Commission [2013] VSCA 123; Ansett Australia Ltd v Taylor [2006] VSCA 171; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Aburrow v Network Personnel Pty Ltd [2013] VSCA 46
Judgment: Leave granted to the plaintiff to bring proceedings for the recovery of pain and suffering damages.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Wicks | Maurice Blackburn Pty Ltd |
| For the Defendant | Ms M Tsikaris | Lander & Rogers |
HIS HONOUR:
1 This is an application for leave to commence proceedings for the recovery of pain and suffering damages only. The plaintiff relies on s134AB(37)(a) of the Accident Compensation Act 1985 (“the Act”).
2 The injury relied on is an injury to the lumbar spine involving disc pathology at L4-5 and L5-S1. The body function of the back is the relevant function said to be impaired.
3 The plaintiff relies on a fall at work on 30 March 2005. It was a heavy fall that involved a slipping and twisting motion in which various parts of her body were injured.[1]
[1]Plaintiff’s Court Book (“PCB”) 8, Transcript (“T”) 58-59
4 The plaintiff was unable to walk following the fall and after being iced in the first-aid section at work, she was taken by ambulance to the Maroondah Hospital and was conveyed by wheelchair into the hospital. It is clear from the evidence that the major focus was on her right ankle injury initially but the fall was such as to clearly involve other parts of her body in the trauma.
5 There are only two issues that require determination. They are whether or not the impairment of the body function of the back is as a result of the fall. If so, whether the consequences of the impairment of her back meet the test of being “at least very considerable”.[2]
[2]T43 and T164
6 I note the recent repeal of s134AE of the Act and the Explanatory Memorandum and Second Reading speech that accompanied the repeal. Nevertheless, clear, proper and adequate reasons are required. It has been said often that a serious injury application necessarily involves a substantial amount of “value judgment” which does not, of itself, admit detailed reasoning as explicit.
7 In large part these pain and suffering applications involve matters of value judgment, opinion or impression.[3]
[3]Elias v Transport Accident Commission [2013] VSCA 123 at paragraphs [61] and [99]
The Plaintiff’s evidence
8 The plaintiff is aged 57 years and works three days a week, although sometimes more than that, doing general office duties.
9 The plaintiff describes the main problem was to her right ankle initially and with the lower back symptoms being noticed some time after the fall. There are different histories as to the precise time that these symptoms became apparent and casting her mind back now many years it has been the subject of various descriptions by her. In her oral evidence, the main thrust of cross-examination was directed to the commencement of these symptoms. She said she thought she first experienced back pain two to three weeks after the fall[4] and in her initial affidavit, which was some six years after the fall, she described late May or early June as the commencement time.[5] Differing references appear in the medical reports as to when she could recall these symptoms commencing.[6]
[4]T48-49
[5]PCB 8
[6]PCB 35, 42A, 44, 53; DCB 105, 112, 116, 122
10 It is unnecessary to relate in detail each of the histories given by the plaintiff in relation to precisely when these symptoms commenced. From the outset, a good deal of time in this application was taken up in trying to decipher barely legible handwritten clinical notes of doctors and physiotherapists.[7] This matter was left in a somewhat unsatisfactory state in relation to the attempt to reach conclusions based on notes in the absence of the witnesses being called to give oral evidence. Accordingly, it is difficult to draw any positive conclusions from the handwritten notes that have been tendered as to when the back was first mentioned.
[7]T5-8, 26, 34, 36-41
11 The difficulties in reading what the notes recorded were many, and counsel could not agree amongst themselves what was recorded.[8] The notes were so unclear at times that suggestions as varied as “read a book” and “ride a bike” were the subject of counsels’ attempts to decipher what was really indecipherable, in my opinion, on a number of occasions. I alluded specifically to the difficulty if the authors of these notes were not called.[9]
[8]T54-55, 60-62, 80-82
[9]T61-62
12 On the whole of the evidence, two conclusions at least can be drawn from the handwritten clinical notes. Firstly, the notes do not record anything like the complete conversations between the plaintiff and practitioner. The shorthand notes at times were so brief that they could not be said on any view to fully record what was told to the doctor. Secondly, it is clear that from what can be read with some confidence, that the plaintiff gave a reasonable description of the onset of lower back problems to her doctor at least by 27 June 2005. That note, as agreed between counsel, was “lower back has been increasingly sore last four to five weeks”. I also accept that note indicates that the plaintiff recorded that she had had some lumbar back pain after driving before this date but that it would go away the next day. Also on that date there is a reference to pain radiating down her leg that went away after physiotherapy so a course of physiotherapy had already started. Her back was better on some days and sore on others.[10]
[10]Defendant’s Court Book (“DCB”) 133-134
13 I found the plaintiff a credible witness who had difficulty remembering details about the precise onset of her back symptoms, casting her mind back now many years. She was doing her best and was a reliable witness. While there is very limited assistance from a perusal of the contemporaneous practitioners’ notes, I accept as a matter of probability that there were low-back symptoms sufficient to complain to her general practitioner that were manifest by late May at least. I accept as probable that when the trauma involved insult to more than one body part, the focus of the plaintiff and her practitioners, not surprisingly, would be on the most immediate injury to her ankle. The lower grade symptoms in her back became more in focus as time went on and the ankle increasingly recovered.
14 The evidence of the plaintiff’s workmate, Sherrill Dickinson, is that the plaintiff initially complained about right ankle pain but within a few months was complaining of pain in her back as well.[11] What is more to the point is that the witness states further, that after the plaintiff initially returned to work, which was only after a three-day absence, her workstation was adjusted so that she could stand up and use a laptop on a bench. The witness observed the plaintiff doing much of the work standing up which I find supports the plaintiff’s evidence about back pain and difficulty sitting.[12]
[11]PCB 21C
[12]PCB 21D
15 The other lay witnesses who have provided affidavits on behalf of the plaintiff are Karen Henchley and Margaret Trudgen. Neither of these witnesses put any time on when they first noticed the plaintiff suffering back pain or heard her complain of back pain, they just corroborate that these observations and complaints followed the 2005 incident.
16 The defendant’s affidavits from Stephen Noble and from Stephen Noble Junior, do not assist on the question of causation. The first deponent really only alludes to a conversation and observations that took place at work on 3 March 2011, some six years after the fall. The second deponent states that he was not aware that the plaintiff was experiencing any discomfort or was limping towards the end of her employment. It is an equivocal statement, although it appears he did work with her during the entire time of her employment.
17 Neither of these affidavits indicate to me that either man worked in proximity to the plaintiff who was mainly assisting consultants. One deponent is the managing director and the other chairman of the company.
18 The evidence of the first aid lady, Ms Dickinson, with her observations of the plaintiff at the relevant workstation, carries more weight than the two managers’ very brief and more general statements.
19 The task for the Court is really to determine whether or not a compensable injury to the plaintiff’s low back was suffered. I accept that it was suffered as a result of the fall on 30 March 2005. I note that the defendant has accepted liability for the low-back claim, both in relation to weekly benefits/medical expenses as well as the s98C permanent impairment claim.
20 There is evidence from the defendant to explain the circumstances of acceptance of these claims.[13] That affidavit from Lisa Gulikers essentially deposes to the acceptance of the claims because the insurer did not have certain materials, such as clinical notes, available to it at the relevant time. However, the s98C claim for impairment was approved by CGU on 28 February 2008. By that time it is worth noting that it had the report of Dr Michael Baynes of 1 June 2006 in which he takes a history:
“Ms Lurati advises however that six to seven weeks later she began developing back pain.”[14]
[13]DCB 5-7
[14]DCB 105
21 A report from Dr David Barton dated 3 July 2007 was also with the insurer and it gives a history that can be fairly read as recording a later onset of back problems following the ankle injury:
“She began attending physiotherapy and said that the right ankle came good. However, because she was favouring one leg she said that she developed back problems.”[15]
[15]DCB 111
22 Mr Dooley reported to the insurer on 25 February 2008 and I would infer that the acceptance of the claim on 28 February 2008 followed the receipt of that medical opinion. Mr Dooley records:
“At first her right ankle ligament injury appeared to be the major damage but that recovered fairly quickly and within a month she had noted that her lower back pain was getting progressively worse.”[16]
[16]DCB 116
23 Mr Dooley reported to the insurer that he felt she had suffered an injury to her lumbosacral spine with aggravation of disc degenerative changes in the lower lumbar spine as a result of the injury on 30 March 2005.
24 Accordingly, I reject the suggestion that CGU has accepted liability for the lower back, at least in relation to the later s98C claim, because it was under some misapprehension about the history of onset of symptoms.
25 The acceptance of liability has the evidentiary effect of supporting the plaintiff’s case on causation in circumstances such as this.[17]
[17]Ansett Australia Ltd v Taylor [2006] VSCA 171 at paragraph [3]
26 I accept the plaintiff’s evidence that probably by mid to late April and certainly in May, she was aware of back symptoms. Essentially I accept the evidence she gave when she was asked about there being no reference in her note on 31 May 2005 that “it was troubling me, but probably not frequently enough to mention it”.[18]
[18]T58
27 Dealing with the doctors and the opinions they express on causation, the following passages are worth mention. The plaintiff’s general practitioner, Dr Boudeville, who was treating her for this fall, has no hesitation in accepting the causative connection.[19] Mr Han, the treating neurosurgeon, does not take any detailed history about the onset of the back symptoms; however, he saw the plaintiff at the referral of Dr Boudeville and presumably had reference to information on referral from that doctor. Mr Han notes a history of the right ankle being the major problem initially.[20] He felt the back injury was consistent with the stated cause.[21] He also noted that over time, the back pain developed and persisted. After the retirement of Dr Boudeville, Dr Poon took over as the treating general practitioner and I infer had access to the previous general practitioner’s materials. Dr Poon clearly saw a causal connection with employment, given that she has issued WorkCover certificates for the lower back over the last three or so years.[22]
[19]PCB 35, 38
[20]PCB 41
[21]PCB 42, 42A
[22]PCB 50-51
28 Turning to the medico-legal experts, Mr Justin Hunt did not record specifically when the low back commenced. However, he clearly had a history that the right ankle problem was the major injury but as it settled the plaintiff experienced increasing back pain.[23] His opinion was that the back injury was consistent with the fall.
[23]PCB 44
29 Mr John O’Brien recorded a history that the lower back symptoms started a few weeks following the fall and he also thought there was a causative link.[24]
[24]PCB 53-55
30 I have already alluded briefly to several of the defendant’s medical experts. Mr Baynes, who took a history of a six to seven-week delay or for the development delay in the development of back pain,[25] nevertheless thought that her fall caused the back symptoms.[26] Dr Barton records a history of the right ankle coming good and that because she was favouring one leg, she recorded the development of back symptoms. While he considers the plaintiff has now adopted a sick role and illness behaviour, and casts some doubt on the question of causation, it is unclear whether or not he thought there was a back injury that is now more psychological or there was no back injury at all.[27] Mr Dooley takes the history of a later onset of back symptoms following the major damage to the right ankle. He then gives a 5 per cent AMA impairment assessment in relation to the lower back. So it is clear he sees the causal link. Mr Clive Jones is of the view that the March 2005 incident did not appear to be “a matter of significance” in relation to the back complaint. He thought that if the fall was significant, pain should be immediate, however, he does note that the original focus was on the ankle and knee.[28]
[25]DCB 105, 107
[26]DCB 107
[27]DCB 26
[28]DCB 124
31 Without hearing from any of these doctors and doing the best one can in an application of this type with medical reports and notes that are defective in not giving full opinions on the causation issue, I accept the majority view that the impairment of the function of the back is a result of the fall. I am helped particularly by the evidence of the general practitioners who have dealt with this lady over many years and many consultations. Neither the current general practitioner, nor her predecessor, are troubled by any causation issue. I accept their evidence in preference to the defendant’s doctors who have seen the plaintiff on one occasion each and in some cases many years after the incident. It is worth noting also, that the treating physiotherapist, who first saw the plaintiff within a week of the fall for treatment of the right ankle problem, records a later conversation about the back becoming more of a concern to the plaintiff. This physiotherapist did not actually treat the plaintiff for the back condition but she certainly saw it as a direct result of the leg problem and a limp that were caused by the fall.[29]
[29]PCB 55A
32 On the balance of probabilities the fall the plaintiff suffered was a heavy fall. It involved twisting of the spine. The major injury initially was the ankle injury and it occupied the immediate concern of the plaintiff, ambulance and hospital people and her own practitioners for a period of a number of weeks. As that ankle injury recovered, the back symptoms became more in focus. The plaintiff noticed, even when just getting out of a car on a trip to Rye and carrying some litres of milk, that these minor activities were sufficient to bring her attention to the back problem.
33 I accept on all the evidence that the subject fall caused or materially contributed to the impairment of function of the back.
34 Turning to the second issue as to whether or not the consequences satisfy the test of being “very considerable” in the range of impairments, it is worth noting there were three videos tendered by the defendant. None of the activities shown impacted upon the plaintiff’s credit or reliability as a witness. She freely admitted that she still undertook gardening, regularly walked considerable distances and did her shopping, as well as driving. Essentially, these activities were the subject of the films.
35 The only heavy activity in the garden that was shown was a segment when her husband was really doing the bulk of the physical work. The film was consistent with her description “I was the run-around and get the – the tools and things like that”.[30]
[30]T114
36 It should be noted that there were unexplained gaps in the films when the plaintiff was clearly in view but the video stopped midstream.[31] There were also occasions where the plaintiff moved rather more slowly than one would normally expect and even gingerly.
[31]T121
37 I reject the defendant’s submission that the failure to undergo pain management is a matter that is relevant in this case. It is clear that there was a discussion with Mr Han about referral to Dr Clayton Thomas, pain management specialist. It seems it was by telephone as it followed the epidural injection by Dr Cormack on 10 April 2006 and Mr Han last saw the plaintiff on 4 March 2006.[32] There is no evidence that this referral went anywhere insofar as the plaintiff was concerned. She indicated that she thought it was something to do with CGU and while this was not developed in evidence, the referral would, as a matter of probability, have been the subject of approval or otherwise from CGU given that liability had been accepted for medical treatment, including that of Mr Han and Dr Boudeville.[33]
[32]PCB 40-41
[33]T128-129, 143-144
38 I accept it is likely that the plaintiff, consistent with her following all the other treatment recommendations, would have gone to Dr Thomas if she had been so advised and a referral approved.[34]
[34]T143-144
39 The plaintiff has had extensive conservative treatment for a condition that does not offer any surgical solution. She has had some eight-and-a-half years of prescriptions for at least three types of medication, including anti-inflammatories and painkillers. She has taken ‘over-the-counter’ painkillers and still does. She has undergone physiotherapy and hydrotherapy. She has had Pilates treatment and gymnasium workouts on advice.[35] She has followed exercise routines advised by her treaters and continues this. She has attended a neurosurgeon when referred. She underwent an epidural injection from a Dr Cormack after Mr Han referred her for same. She has continued to follow advice to walk considerable distances in order to keep fit since her fall. She has purchased a back brace recently.
[35]T152
40 I find on the evidence that the plaintiff has been a compliant patient and has followed all of the medical advice that has been offered to her and has done so very diligently over the last eight-and-a-half years.
41 There has been no change in her condition. It is chronic and stable. Accordingly, it is relevant to recall that the plaintiff has over thirty years life expectancy in considering “seriousness”.[36]
[36]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at paragraph 17
42 I accept the plaintiff has sustained constant back pain of varying severity over the last eight-and-a-half years. At times it has been significant, and with flare-ups it can be severe, depending on activity.[37]
[37]PCB 9-10, 14-15 and 17
43 It has been said of pain that has proved to be permanent, such as in this case:
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”[38]
[38]Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at paragraph [199]
44 After hearing the plaintiff in evidence over two days, I find that she has been stoical about her pain and if anything understates it. She does not give up on activity because of pain, but endures it. She has returned to work, made adjustments there, but needs a day off to rest.[39] Also, she keeps up her activities as best she can, but with real restrictions on them, such as with her gardening[40] and the adjustments made in order to travel.[41]
[39]PCB 9, 13 and 17
[40]PCB 11 and 18; T106
[41]PCB 21D; T105 and T153-155
45 In my view, she accurately described her attitude to her pain and impairment:
“I’m not somebody who makes a big fuss, you know, of things.”[42]
[42]T79
46 It is appropriate to recall comments about a plaintiff such as I find here:
“The respondent’s stoicism cannot hide the fact that pain is a major component in the respondent’s life.”[43]
Appellate comments made in relation to plaintiffs such as her are apposite.[44]
[43]Haden Engineering Pty Ltd v McKinnon (supra) at paragraph [47]
[44]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [3]; Aburrow v Network Personnel Pty Ltd [2013] VSCA 46 at paragraph [11]
47 The fact that the plaintiff is still receiving prescriptions for at least three medications for her impaired back is relevant after all these years.[45] It indicates serious pain in this case.
[45]PCB 11, 15-16 and 18
48 It is worth noting that over some four days in court the plaintiff needed to alter her posture constantly. She was not able to sit for very long before needing to stand. Her problems with sitting have been set out and I accept that evidence.[46]
[46]PCB 10 and 14
49 I accept that her pain impacts very considerably on her ability to work unrestricted as she could do before the fall, on her sleep, hobbies and recreational activities. Considering all the evidence, I accept her enjoyment of life is seriously limited in a number of areas of daily activity.
50 In addition, there are several aspects of her constant pain that of themselves satisfy the test of “serious” in regard to consequences of her impaired spine. Her inability to have a full night’s sleep is a very considerable consequence.[47] I accept this evidence. Comments on the potential significance of this aspect of pain include:
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep.”[48]
[47]PCB 11 and 15, T 88-89
[48]Haden Engineering Pty Ltd v McKinnon (supra) at paragraph [45]
51 The effects of pain on her capacity to sleep for over eight years now is alone a very considerable consequence of the impairment of her low back.
52 Similarly, the inability to sit for any length of time is a very considerable consequence of itself. Whether it be at work, at home, at the cinema, or in a restaurant or travelling, the ability to sit uninterrupted can be something that is taken for granted. Her ability to do so is very considerably limited. I note the videos showed no sitting, even though there was extensive surveillance.[49]
[49]Exhibit B
53 The supporting affidavits of the three lay witnesses with respect to complaints and observations of pain are not challenged. These witnesses specifically refer to the problems the plaintiff has with sitting.[50] I accept this consequence of the spinal impairment. It is very considerable for this plaintiff.
[50]PCB 21, 21B and 21D-E
54 There is no necessity to deal and quote from the doctors’ reports in much more detail in view of the two discrete issues required for determination. However, mention needs to be made of the defendant’s doctors, who it should be noted each only saw the plaintiff on one occasion.
55 Dr Baynes in 2006 was not concerned about causation and felt that she was likely to have ongoing lower back pain which would wax and wane in the future.[51] His prognosis has proved to be largely accurate over the ensuing seven years.
[51]DCB 107
56 Dr Barton, who saw the plaintiff in 2007, is alone in concluding that the plaintiff has demonstrated “abnormal illness behaviour”.[52] He is alone in that view. He does not explain in any satisfactory way why a woman who has barely missed any work, adjusted her workplace in order to keep going, kept up her gardening with limitations, maintained her walking and travelling with appropriate adjustments, can be said to have adopted some illness behaviour role. How his answer to question two[53] that she has a strong belief in maintaining her fitness as a way of controlling her pain is acting in an abnormal illness role is not clear. I reject his view of the plaintiff. He only saw her once as opposed to the large number of visits to the treating doctors.
[52]DCB 112
[53]DCB 113
57 Mr Dooley examined the plaintiff in 2008 and thought she had a stabilised lumbosacral spinal injury and assessed a 5 per cent whole person permanent impairment pursuant to the AMA Guides.[54]
[54]DCB 119
58 The last doctor to see the plaintiff was Mr Clive Jones, in 2012, and he does not accept causation it seems. However, he is somewhat equivocal when he says:
“Were the March injury the significant one, pain should have been immediate.”[55]
[55]DCB 124
59 By “significant”, does he mean it is still a cause? He does not seem to be in any doubt about the plaintiff’s genuineness or her credibility as I read his report. Having seemingly accepted what she says he does not explore what other cause there could be for the symptoms. He refers to asymptomatic degenerative change prior to the fall but how the symptoms then spontaneously arose so close to the subject incident is not explained. Having seen her on one visit only after some seven-and-a-half years since the fall, I do not accept his opinion that the back symptoms she suffers from are not causatively related to the fall at work. He notes that she does not suffer any major psychological overlay and it can be inferred from that that he accepted the plaintiff at her word in relation to genuine symptoms and problems in her back.[56] His reasoning is not clear.
[56]DCB 125
60 Taking the medical evidence overall and in view of the findings I have made about the plaintiff’s credibility, I reject the defendant’s arguments that the impairment of her low back was not caused by her employment. Furthermore, I find that the impairment of the function of the low back has led to consequences that could be fairly described as “very considerable” for the plaintiff in the circumstances of this case.
61 For the above reasons, I grant the plaintiff’s application for leave to bring proceedings for the recovery of pain and suffering damages.
62 I will hear the parties as to costs.
- - -
0
6
0