Marouthas v Doutta Galla Aged Services Ltd
[2011] VCC 952
•23 July 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-02588
| JOANNE MAROUTHAS | Plaintiff |
| v | |
| DOUTTA GALLA AGED SERVICES LIMITED | Defendant |
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| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 22 and 23 June 2011 |
| DATE OF JUDGMENT: | 23 July 2011 |
| CASE MAY BE CITED AS: | Marouthas v Doutta Galla Aged Services Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 952 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – whether the consequences of an injury to the lower back in terms of pain and suffering were very considerable – loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Hore-Lacy SC and | Maurice Blackburn |
| Mr G Chancellor | ||
| For the Defendant | Ms H Donmez | Hall & Wilcox |
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed on 17 June 2010 by which the plaintiff applies for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of or in the course of her employment in or about mid-September 2003 with the defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr D Hore-Lacy SC appeared with Mr G Chancellor of counsel for the plaintiff and Ms H Donmez of counsel appeared for the defendant.
4 The body function which the plaintiff says has been lost or impaired is the lower back.
5 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined; • The plaintiff tendered Exhibits A to L. A copy of the list of exhibits is attached to these reasons; • The defendant tendered films taken of the plaintiff: Exhibits D1, D2 and D3. The defendant also tendered documents from the Defendant’s Court Book (“DC”) and the Plaintiff’s Court Book (“PCB”): Exhibits D5, D6, D7, D8, D9, D10 and D11. A copy of the list of exhibits is attached to these reasons. 6 At the commencement of the application, Mr Hore-Lacy, on behalf of the plaintiff, announced that the application for serious injury was brought under both paragraphs (a) and (c) of the definition set out for serious injury in s.134AB(37).
7 In the closing submissions, Mr Hore-Lacy abandoned the application for serious injury under part (c) of the definition; that is, “permanent severe mental or permanent severe behavioural disturbance or disorder”. The decision for serious injury for me to make is whether or not the plaintiff has satisfied the serious injury test for permanent serious impairment or loss of a body function; in this case, the lower back.
8 At the commencement of the application, Ms Donmez, on behalf of the defendant, conceded that causation was not an issue in the application.
The Statutory Scheme
9 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
10 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that she has suffered a compensable injury; that is, an injury which she suffered arising out of the course of her employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities.
(d)
Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)
Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently.
(g)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in sub-section (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
11 I am required by s.134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background
12 The plaintiff was born in Greece on 18 February 1966 and is now aged forty- five years. She is a married woman with two adult sons. She formerly worked with the defendant in the capacity as a personal care attendant. She now works with a different employer, Bakers Delight, and I will refer to the situation with her work later in these reasons.
The Injury with the Defendant
13 The plaintiff sets out the circumstances in which she was injured in her first affidavit, stating that she was bending down to pick up a bundle of papers at the veranda of the work premises when she felt a sudden pulling sensation in her back and developed right leg pain which ran from her buttocks down to her toes.[3] The plaintiff stated that she reported the incident to her employer. A document entitled “Doutta Galla Incident and Injury Report Form” dated 15 September 2003 sets out the incident occurring on 13 September 2003 in the same manner described by the plaintiff in her evidence and affidavit.[4] As I have previously noted, Ms Donmez, on behalf of the defendant, stated that causation was not an issue in this application.
[3] PCB 12, paragraph 7 of Exhibit B
[4] Exhibit D9
The Plaintiff’s Medical Treatment
14 The plaintiff saw Dr Skehan, her general practitioner, on 29 September 2003, advising him that she had low-back pain with buttock pain radiating down the right leg. The plaintiff was given a certificate for a couple of days off work but she believed that she took a couple of weeks off work which included some of her annual leave.
15 The plaintiff continued to work but with difficulties. Sometimes her back would seize up and she would have to lie down. She was taking, at that time, Panadol and Voltaren tablets.
16 On 1 December 2003, she returned to Dr Skehan complaining of ongoing right sciatic pain. Dr Skehan then referred her for a CT scan, which was performed on 2 December 2003. The report of the CT scan for 2 December 2003 appears at PCB 52 and the conclusion reached in that report is that the plaintiff suffered from an L5-S1 moderate right posterolateral disc protrusion.
17 The plaintiff had a further CT scan on 19 September 2008.[5]
[5] PCB 53, Exhibit G
18 The plaintiff was then referred to Mr Kavar, neurosurgeon. The plaintiff saw Mr Kavar on 18 December 2008 and 22 January 2009. Mr Kavar ordered an MRI scan and x-rays of the lumbar spine, and also a whole-body bone scan which were performed on 5 January 2009. Mr Kavar’s opinion, based on her imaging, was that he was reluctant to consider surgery as a tool to help alleviate the pain suffered by the plaintiff.[6]
[6] PCB 37
19 The plaintiff had received treatment in the form of acupuncture and also from an osteopath in the period between the injury and seeing Mr Kavar. She had been prescribed Nurofen and Voltaren to assist with her symptoms. The plaintiff was also referred for chiropractic treatment on a weekly basis in mid- 2004 and was having massage treatment at the same time.
20 In February 2005, there was an incident at work which caused the plaintiff a great deal of stress. She gave evidence of feeling unsupported and, as a result, had an increase in psychological upset and was treated for it. This incident in February 2005 and the psychological sequelae forms no part of the application before me.
21 The plaintiff continued with heat and cold packs on her back and the use of Voltaren Gel and Panamax tablets to maintain and alleviate the pain in her back over the period of time she continued working.
22 In 2006, the plaintiff’s medication levels had increased to taking six to eight Panamax a day and Panadeine Forte tablets which were prescribed for her as required.
23 The plaintiff’s current position is that she takes Panamax tablets, four to eight a day, which, in her evidence she described as taking four times a day. She also states that approximately once per week she takes a Panadeine Forte tablet. The other medication that she takes is an Endep tablet every night before she goes to sleep.
24 In summary, the plaintiff has not had surgery as part of her treatment and has been advised on that course by neurosurgeon, Mr Kavar. The plaintiff continues to take painkillers in the form of Panamax and Panadeine Forte, and a muscle relaxant of Endep on a regular basis to manage her pain levels and to allow her to continue working and with her normal daily life.
The Medical Opinions
25 I think it is unnecessary to review the medical evidence in any significant detail because there appears to be a level of agreement amongst the medical practitioners concerning the actual injury suffered by the plaintiff. However, I will, in these reasons, refer to various parts of the medical opinions tendered in evidence in this case.
26 The plaintiff’s general practitioner, Dr Skehan, has been treating her for all of the time from the day of injury until the current time. Dr Skeehan reports that she continues to have low-back pain with right buttock and lower limb referral and right lower limb paresthesia. He notes she is frustrated with her inability to work as she would like and the inability to do domestic duties. This opinion is consistent with the evidence of the plaintiff in the hearing.[7]
[7] PCB 32a
27 The plaintiff was referred by Dr Skehan to Mr Kavar, neurosurgeon. In his report dated 23 February 2009, Mr Kavar notes that the CT examination conducted on 19 September 2008 showed minor disc bulges at L4-L5 and L5-S1. Mr Kavar describes the radiology as:
“She had a diffuse disc bulge at L5-S1 that abuts on the S1 nerve root and potentially the L5 nerve root though certainly no compression of these nerve roots.”[8]
[8] PCB 36
28 Mr Kavar diagnosed the plaintiff with back pain from lumbar spondylitic disease. She has evidence of severe degeneration at L5-S1. Mr Kavar was of the opinion that she is having increased back pain which is certainly going to limit her ability to be involved in manually intensive work. He went on to say that the prognosis is guarded and she has had ongoing pain without adequate control. She may require surgical intervention in the future. Mr Kavar expressed the opinion that he was reluctant to consider surgery as a tool to alleviate the pain suffered by the plaintiff.[9]
[9] PCB 37
29 Dr Horsley, occupational physician, examined the plaintiff on 31 March 2011. Dr Horsley notes that the plaintiff suffers from chronic back pain. During the examination, Dr Horsley noticed that the plaintiff’s gait was mildly antalgic when she first got off the couch, and then settled to a stable gait. Dr Horsley described the CT scan results of 2 December 2003 as displaying a moderate sized right posterolateral disc protrusion at L5-S1 extending to the exit foramina. Dr Horsley diagnosed the plaintiff as suffering from mechanical back pain with referred pain. She noted loss of muscle bulk on clinical assessment and a reduction in light touch sensation down to the lateral aspects of the right thigh. Dr Horsley is of the opinion that the plaintiff is not fit to return to her previous role on a permanent basis as a personal carer due to the physical demands and her incapacities.[10]
[10] PCB 42-44
30 Mr Peter Wilde, orthopaedic surgeon, examined the plaintiff on 4 May 2011. His diagnosis of the plaintiff’s condition was an aggravation of lumbar spondylosis without radiculopathy. He was of the opinion the prognosis is guarded and expected that she will always suffer from low-grade symptoms of chronic lumbar pain and stiffness.[11]
[11] PCB 50
31 Mr Brian Davey, orthopaedic surgeon, examined the plaintiff on behalf of the defendant on 6 May 2010. In his report dated 6 May 2010, Mr Davey stated:
“I have indicated the findings on examination and I consider the diagnosis to be that of an L5-S1 disc protrusion with right-sided sciatica. The diagnosis is somewhat guarded as in my experience there is always a risk of recurrent sciatica, in which case an epidural or surgical intervention may need to be considered. However, I did not consider these measures to be necessary at the moment.”[12]
[12] PCB 61
32 Mr Wilde goes on to say that the disc degeneration demonstrated at L5-S1 is a result of wear and tear over a long period of time. However, in his opinion, the specific incident described as occurring in September 2003 would be a disc prolapse at that level.[13]
[13] PCB 61
33 Dr Michael Baynes, occupational physician, examined the plaintiff on behalf of the defendant on 22 November 2005. In his report he states that there is:
“… evidence on radiology of an L5-S1 moderate right posterolateral disc prolapse. It is likely that the disc damage pre-existed the reported injury but based on history, I believe work was a contributing factor to the aggravation of a pre-existing injury.”[14]
[14] DCB 48
34 An examination of all the other medical opinions in this case do not support this view expressed by Mr Baynes. There is no evidence that the plaintiff suffered from a previous discal injury at L5-S1.
35 Mr Edward Schutz, consultant surgeon, examined the plaintiff on behalf of the defendant on 16 April 2007. He diagnosed the plaintiff with low-back pain with presumed right sciatica due to an L5-S1 disc prolapse in 2003. Mr Schutz goes on to give an opinion that the current diagnosis – that is in 2007 – is that the plaintiff suffered from low-back discomfort over the right and left L5-S1 facet joints. A plain reading of his opinion would result in a conclusion that the plaintiff’s low-back problems commenced with her injury in 2003 and have continued through to the time of his examination.
36 Dr Malcolm Brown, occupational physician, examined the plaintiff on behalf of the defendant on 26 May 2010. Mr Brown notes that the plaintiff walked normally with no limp and appeared in general good health. On examination, she complained of back pain on testing the sacroiliac joint integrity. He noted that the plaintiff complained of pain after the examination, and some back stiffness. Dr Brown’s conclusion was that the she still had some positive signs on a physical examination consistent with the most recent radiological findings of disc degeneration at L5-S1. He opines:[15]
“Mrs Marouthas has low back pain with degenerative changes in her spine. She had an acute exacerbation of this condition in September 2003.”
[15] DCB 77
37 In his later report dated 12 April 2011, Dr Brown states that he thought it was unlikely that the employment had caused a compensable injury. It is clear from an examination of the other medical practitioners that Dr Brown is on his own in this opinion. Dr Brown agrees with the other medical practitioners that the plaintiff does not have a capacity to return to her pre-injury duties as a personal care worker. He thinks that she could manage a few four-hour shifts per week at most.[16]
[16] DCB 82
38 Dr Tony Kostos, rheumatologist, examined the plaintiff on 27 April 2011. In his report dated 2 May 2011, Dr Kostos gave the following opinion after accepting the history given by the plaintiff about the incident in 2003. He said:
“It could be speculated that she did have sciatica at the time and certainly
had a right-sided disc prolapse at L5-S1 level.”[17]
[17] DCB 86
39 Dr Kostos goes on to criticise the plaintiff on the basis that she complained of widespread pain response and with a number of discrepancies and inconsistencies in the manner of her complaint.
40 Dr Mary Wyatt, occupational physician, examined the plaintiff on 10 June 2011. This examination was conducted on behalf of the defendant’s solicitors.
41 Dr Wyatt noted on examination that the plaintiff demonstrated restricted spinal movements with approximately half the normal forward flexion and half the normal extension. Pain was indicated with movement of forward bending and extending her back. There was a moderate restriction of lateral flexion and rotation bilaterally. Dr Wyatt reviewed the radiological investigations and noted that the CT scan of the lumbar spine on 19 September 2008 showed a posterior impingement of the traversing S1 nerve roots. Dr Wyatt was of the view that the plaintiff had moderately restricted spinal movements and ongoing evidence of nerve root irritation with a positive straight leg raise on the right. Her diagnosis was one of chronic low-back pain with right leg sciatica. Dr Wyatt accepts that the incident described in 2003 is the instigating factor for the persistent back complaints made by the plaintiff. She describes the plaintiff’s difficulties as long-term back problems that are likely to persist for the foreseeable future.[18]
[18] DCB 86F
42 The defendant relied upon a number of reports from psychiatrists in this matter.
43 The report of Dr Phillip Cohen, psychiatrist, dated 13 April 2005 refers to and deals with the issues arising out of the incident that occurred on 23 February 2005. This incident is not part of this application and I did not find this report helpful.
44 Dr Victor Botvinik, psychiatrist, examined the plaintiff and reported on 3 August 2005. Dr Botvinik was reporting on the incident that occurred in February 2005 and I do not find this report helpful in determining the issues on this application.
45 The plaintiff was examined by Associate Professor George Mendelson, psychiatrist, on behalf of the defendant on 28 September 2005. Professor Mendelson was examining the plaintiff in respect of the alleged incident on 23 February 2005. He refers to a history given by the plaintiff of the accident the subject of this application. Professor Mendelson does not ascribe any psychiatric injury or difficulties to the incident which occurred in September 2003.
46 The final psychiatric report relied upon by the defendant is dated 24 April 2007 prepared by Dr David Weissman, consultant psychiatrist. Dr Weissman notes the history of the physical events arising from the September 2003 injury and the course of medication and treatment that the plaintiff had received. This history is consistent with the evidence given by the plaintiff in this case. Dr Weissman also took a history from the plaintiff which included the fact that she does not drive a car nowadays because of her physical pain. He also noted that she continued to socialise with friends but was not able to go dancing. He noted that she suffered from middle insomnia due to pain and cramps in her legs.[19] Dr Weissman stated that some of her current depression is related to this injury in a secondary and reactive or consequential manner. Therefore, there is some pre-existing psychiatric impairment that exists in this case. In giving that opinion, he was referring to the accident which occurred in September 2003.
[19] DCB 59
47 I have listened carefully to what the plaintiff had to say in respect of what was causing her mental upset and anguish which resulted in her crying and being frustrated that she described in her evidence. I accept that she is frustrated by the fact that she cannot continue in her chosen line of work as a personal carer and the ongoing pain that she suffers on a daily basis and as she describes it, “all the time”.
The Consequences
48 I have read the affidavits of the plaintiff sworn on 15 February 2010 and 16 June 2011.
49 I have carefully considered the evidence of the plaintiff and also her oral evidence given and tested by Ms Donmez during her cross-examination of the plaintiff.
50 The plaintiff struck me as a straightforward woman who gave a good account of the consequences to her of the injury which I have described. I accept her evidence in respect of the consequences and the effect the injury to her lower back has had on her.
51 I find that the consequences which I am satisfied the plaintiff has suffered as a result of the injury to her lower back are as follows:
•
The plaintiff has persistent pain in her lower back requiring the use of painkilling medication; namely, Panamax and Panadeine Forte. The plaintiff takes Panamax four times per day. She takes Panadeine Forte as and when the pain is more serious. She gave evidence that the use of Panadeine Forte upset her stomach and the side-effects of constipation made her limit the use of Panadeine Forte. The plaintiff also takes Endep at night prior to going to bed. This is considerable use of painkilling medication and it is a persisting factor in her life.
•
I find the plaintiff has restrictions in her movements to the extent described by the examining medical practitioners which has deprived her of the full and free and unrestricted movement of her lower back. Whilst some medical examiners mention abnormal illness behaviour, the preponderance of medical practitioners accept the limitations that the plaintiff describes and have found those limitations during the course of their examinations of the plaintiff.
•
I find that the plaintiff was unable to continue her work with the defendant as a result of the combination of the pain to her lower back and the incident which occurred in February 2005. After her initial injury in September 2003, she returned to work and continued to work with the defendant up until February 2005. Her evidence is that she worked with the pain to her lower back and continued in the job because she liked the nature of the work. The exchange between Ms Donmez, on behalf of the defendant, and the plaintiff[20] is a good example of the approach that the plaintiff took. The plaintiff has returned to work, first of all at Bakers Parlour and subsequently, at Bakers Delight. Both of these employments are in retail bakeries and the duties are, generally speaking, of a lighter nature than the arduous work of a personal carer. I accept that the plaintiff currently works eight hours per week in total. I also accept the plaintiff’s evidence that the eight hours of work that she performs now is the limit of her tolerance due to the pain to her lower back. The plaintiff, consistent with her eagerness to work, volunteered in evidence that she could possibly do an extra shift which would mean a total of twelve hours per week. The consequence for her is that, in effect, her working time has been reduced by at least half of her pre- injury hours.
•
I accept that the plaintiff has missed and continues to miss the opportunity to work in aged care as an aged care personal carer. The plaintiff said that she likes her job at Bakers Delight but her first choice for employment would be as a personal carer, and I accept that is a significant consequence for her.
•
I accept what the plaintiff has deposed in her affidavits as constituting the consequences which presently impact upon her social, domestic and recreational routine. In her first affidavit,[21] the plaintiff sets out the extent of the consequences to her in that regard.
•
I accept the plaintiff’s evidence that her sleep is disturbed as a result of the pain from her lower back and that she is awoken during the course of an evening’s sleep by back pain or cramping in her legs as described in her affidavit. She has also given that history to medical examiners. The lack of sleep would be a significant consequence to her. Dr Wyatt, Mr Wilde and Dr Weissman all note the impact of lack of sleep to her.
•
The plaintiff gave evidence that she has stopped driving as a result of the injury to her lower back. The explanation she gives is that the pain in her back precludes her from driving. In evidence, the plaintiff set out the reason why she does not drive any more.[22] This also limits her enjoyment of life.
•
The plaintiff gave evidence that in terms of her domestic duties, she is affected in her ability to perform them. An example she gave was that now she has to kneel in order to make the beds. She gave evidence she needs to rest between domestic duties so that she can continue performing further domestic duties. She gave evidence that she had removed the carpets and mats in the house so that it was easier for her to vacuum a hard-surfaced floor, as I understood her evidence to be. Whilst the plaintiff has made adjustments so that she can continue to perform domestic duties, the impact on her due to her lower back injury and the pain resulting from it are significant for her in this regard.
•
The plaintiff also has been unable to fully participate in recreational activities, in particular, dancing. In examination, she said:
[20] Transcript (“T”) 16
[21] PCB 18 at paragraphs 28 and 29
[22] T 75, L25-29
“I wasn’t a ballroom dancer. I wasn’t a ballerina dancer but if I
went out to a celebration I would dance and I enjoyed it.”[23]
I accept her evidence that she can no longer dance and does not dance, and that that is a loss to her in the social setting of going to friends’ places as she deposed in her evidence.
[23] T 76
•
The plaintiff also deposed in her affidavit[24] that sexual relations with her husband had been adversely affected. The plaintiff was not challenged about that aspect during the course of her cross-examination, and I accept that an impact in this regard has occurred to her as a result of the lower back injury.
[24] PCB 18 at paragraph 29
52 The central challenge to the plaintiff’s case would appear to me to be made on two-fold footing. Firstly, the fact that the plaintiff is presently working, which demonstrates a capacity to function at a particular level, and secondly, what is shown in films taken of the plaintiff and exhibited at D1, D2 and D3 in this hearing.
53 The challenge about the plaintiff’s work and work capacity was based on the fact that she continued to work immediately in the period between September 2003 to 2005 when she resigned because of a dispute with a patient. It was also based on the fact that she had continued most of the time to work in some capacity or other right up until the date of the hearing. The plaintiff had a consistent work history prior to the injury in September 2003 of working twenty-three to twenty-five hours a week as a personal carer. The plaintiff’s current work capacity due to her low-back injury and the pain resulting from it is now reduced to eight to twelve hours per week. I accept her evidence about that. In that regard, I consider the impact of a low-back injury to the plaintiff to be very considerable.
54 The plaintiff was also attacked or challenged on the basis of displaying abnormal illness behaviour. The defendant, through Ms Donmez, relied on the opinions of Dr Baynes,[25] Mr Davie[26] and Dr Kostos[27] to submit that the plaintiff showed signs of abnormal illness behaviour. This was directly put to the plaintiff and she denied that she was exaggerating her injury or pain levels, or the presentation of her ability to move and bend normally. I note that other medical practitioners and examiners of the plaintiff made no such observation or comment in respect of abnormal illness behaviour and I do not accept that the plaintiff in this case has displayed or behaved in a manner which is consistent with abnormal illness behaviour.
[25] at DCB 48
[26] at DCB 72
[27] at DCB 86
55 A further challenge to the plaintiff’s credit was mounted on the basis of the films which were shown during the course of the hearing. It seems to me that what the films demonstrated is that the plaintiff has the capacity to walk, to shop and to otherwise move with some degree of freedom. That is to be compared with what is stated by the plaintiff in her affidavits and the evidence that she has given, together with the histories to medical practitioners, that now she can no longer drive; no longer dance; no longer work as she was able to in the past; suffers from interrupted sleep due to pain to her back and has to modify the manner in which she performs her domestic duties which, in my view, display a large change to her life. On viewing the actual films, it is a matter of judgment by myself that I observed that the plaintiff was slightly limping at the end of her walk on 25 October 2010 when she arrived at what appears to be her home. Her manner of checking the mailbox displayed a stiffness of the back prior to her going further into the driveway of her home. I do not consider that the film, or what was shown on the film of the plaintiff’s ability to walk challenged her credit in any way. Dr Horsley,[28] after she had examined the plaintiff, made this statement:
“Her gait was mildly antalgic when she first got off the couch, and then
settled to a stable gait.”
[28] at PCB 42
56 In evidence,[29] the plaintiff stated:
“I limp a little bit only due to the pain and the leg pain that I’m experiencing but when I go home I need to rest. I need to lie on my back.”
[29] T 80
57 She went on to say she got leg pain when she walked. I accept the plaintiff on that statement.
Conclusion
58 I consider in the present case that the plaintiff has proved to the requisite degree that she has the presence of persistent pain in her lower back;[30] the necessity to resort to painkilling medication; the reduction in her ability to work the previous number of hours of paid employment; the inability to undertake simple social, domestic and recreational activities which were once part of her life; and the interference to her sleep due to pain from her lower back.[31] I consider that when gathered together, these consequences amount to what can be fairly described as being more than significant or marked and being at least very considerable pain and suffering consequences for her.
[30] see Sutton v Laminex Group Pty Ltd [2011] VSCA 52
[31] See Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69
Loss of Earning Capacity
59 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing she has a loss of earning capacity of 40 per cent or more pursuant to s.134AB(38)(e)(i); and also (b) after the date of hearing, the relevant loss of earning capacity will continue permanently: s.134AB(38)(e)(ii). 60 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and (ii) “after injury” earnings. 61 The former must be calculated by reference to the six-year period specified in s.134AB(38)(f).
62 “Without injury” earnings consist of the gross income “expressed at an annual rate” that the worker was earning or was capable of earning from person exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
63 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
64 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.
65 I am therefore required to determine a “without injury” earnings figure, and submissions were made by counsel in this respect.
66 I was assisted by counsel in the preparation of a statement of loss of earnings which was handed up during the course of the application. The starting point was a “without injury” earnings figure submitted as $28,400 by the plaintiff, or $27,900 by the defendant. By reference to comparable earnings, it was submitted that the “without injury” earnings after the injury range from $35,204 to $36,917 gross per year. The “after injury” earnings of the plaintiff were deposed to at PCB 21 for the year ending 1 June 2011 in the sum of $7,238 gross. At PCB 57, a summary of the gross earnings for the years subsequent to the injury were set out. The earnings ranged from $28,334 in 2004 down to $13,076 in 2010.
67 I accept that the plaintiff is currently working at eight hours per week. Her hourly rate is $22.00. She has given evidence that she is anxious to work and eager to work and her only limitation is really the pain levels from her lower back. In the course of her evidence, she volunteered that she could do perhaps an extra shift of four hours. Her general practitioner, Dr Skehan, in his report,[32] says that the plaintiff could work a maximum of five hours per day and not more than twelve hours per week. I accept that evidence and that the plaintiff’s current capacity to work is limited to twelve hours per week at $22.00 per hour. The gross figure for her income on those calculations would be $13,728 per annum. I conclude that she has suffered a loss of earning capacity which is productive of a financial loss of more than 40 per cent per annum.
[32] PCB 32b
68 The loss of earning capacity of the plaintiff is permanent. The complaints of pain and the consequences for the plaintiff have persisted for eight years since the injury. Dr Wyatt is of the opinion that the back problem will persist for the foreseeable future.[33] Dr Horsley assessed the plaintiff’s level of incapacity as permanent and will continue into the longer term.[34] Mr Peter Wilde stated the plaintiff will be subject to restrictions for employment into the foreseeable future as a result of her back, right and left leg injury only (excluding psychological consequences).[35] I accept these medical opinions and find the plaintiff’s earning capacity has been affected permanently.
[33] DCB 86F
[34] PCB 45
[35] PCB 51
Conclusion
69 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s.134AB(16)(b) of the Act to recover damages for bodily injuries for pain and suffering and loss of earning capacity which have arisen out of her employment with the defendant.
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