Martin v Victorian WorkCover Authority
[2015] VCC 1870
•17 December 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-04510
| LAURA JANE MARTIN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23, 24 and 25 November 2015 | |
DATE OF JUDGMENT: | 17 December 2015 | |
CASE MAY BE CITED AS: | Martin v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1870 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the right upper limb – pain and suffering – credit- loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited:Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Woolworths Ltd v Warfe [2013] VSCA 22; Dordev v Cowan & Ors [2006] VSCA 254; Richards v Wylie (2000) 1 VR 79; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227; Papamanos v Commonwealth Bank of Australia [2013] VCC 1491
Judgment: Applications dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Hore Lacy SC with Mr S Carson | Maurice Blackburn |
| For the Defendant | Ms R Annesley QC with Ms K Gladman | Russell Kennedy |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of her employment with Leader Associated Newspapers Pty Ltd (“the employer”) on 28 July 2008 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38) of the Act.
3 The plaintiff principally brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function;
…
4 The body function relied upon in this application is right upper limb.[1]
[1]Transcript “T”1
5 The application for psychiatric impairment under clause (c) was “left in as a back-up”. Counsel for the plaintiff conceded, from a psychiatric point, the plaintiff’s Adjustment Disorder was very mild,[2] but if it was going to be suggested the plaintiff was suffering from a Chronic Pain Syndrome which was non-organically based, then it was submitted the application was properly brought pursuant to clause (c).[3]
[2]T3
[3]T4
6 The judgment of the Court of Appeal in Mobilio v Balliotis[4] resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[5] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.
[4][1998] 3 VR 833
[5](1995) 21 MVR 314
7 Winneke P, in Mobilio,[6] agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)
[6]Mobilio v Balliotis (supra)
8 I accept that a Chronic Pain Syndrome can result in an impairment under ss(c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a Chronic Pain Disorder which meets the “severe” criteria of a claim under definition (c) – per Ashley JA in Veljanovska v Socobell Oem Pty Ltd.[7]
[7][2005] VSCA 227
9 Apart from being a serious injury, the injury must have arisen on or after the said date before the plaintiff is entitled to recover damages.
10 The impairment of the body function must be permanent.
11 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and (38)(e) of s134AB of the Act impose specific burdens in relation to a claim for loss of earning capacity.
12 By ss(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
13 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
14 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
15 As the plaintiff was under twenty-six years of age at the date of injury, pursuant to s134AB(38)(e)(i) of the Act, she must establish that at the date of the hearing, she has a loss of earning capacity of 40 per cent or more.
16 Further, the plaintiff must establish, pursuant to ss(e)(ii) of the Act, that she will, after the date of the hearing, continue to have a permanent loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
17 Subsection (f), which relates to older workers and requires consideration of income from personal exertion in the three years before and three years after the injury, does not apply.
18 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
19 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
20 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[8] and Grech v Orica[9] in reaching my conclusions.
[8](2005) 14 VR 622
[9](2006) 14 VR 602
21 The plaintiff relied upon two affidavits and gave viva voce evidence. In addition, her husband, Nicholas, and her father Greg Carroll, both provided affidavits. Nicholas was also cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
22 As the plaintiff’s credit was a major issue in this application, with cross examination over more than a day, I propose to deal in detail with the plaintiff’s affidavit and viva voce evidence.[10]
[10]Woolworths Ltd v Warfe [2013] VSCA 22 at paragraph [139]
The Plaintiff’s evidence
23 The plaintiff is presently aged twenty-eight, having been born in March 1987. She is left hand dominant.
24 The plaintiff commenced employment with the employer in March 2008, in the Classifieds Section. She generally worked a 32-hour week. She was also completing a Bachelor of Film and Television at Swinburne.
25 The plaintiff’s job required typing pretty much continuously for eight hours, with a 45-minute lunchbreak and two further 10 to 15-minute breaks during the day.
26 The plaintiff took the details of funeral notices over the phone and then typed them up in the form they were then put in the paper. At times, the notices were quite long.[11]
[11]T24
27 The plaintiff agreed an average phone call would be about 6 minutes. The calls were not non stop. She was allowed to look at the internet, read the paper, stand up and walk around to a certain extent, and she had breaks. She was able to achieve her targets and she was a very proficient typist.[12]
[12]T25
28 Whilst working with the employer, the plaintiff was playing one A Grade and one social game of netball per week. She was going to an occasional dance class, Jazz Broadway, with friends.[13]
[13]T26
29 The plaintiff deposed that, within a couple of months of commencing the job, she started having pain, tightness and soreness in her shoulders which would build up during the day. She started to come home from work with significant pain.
30 By 28 July 2008 (“the said date”), the plaintiff was in a lot of pain. In particular, she recalled waking that morning with severe pain. She reported the injury at that time.
31 The plaintiff did not make any complaints about difficulties at her workstation or ask for any changes before the said date. She did not seek any medical attention before the said date.[14]
[14]T26
32 The plaintiff had not been taught correct posture for sitting at a computer. She supposed she could have raised any issues with her supervisor and “buddy” on the floor.[15]
[15]T23
33 The plaintiff could not remember telling her team leader Camilla Irwin that her pain was caused by a combination of three activities in one day – netball, theatre rehearsals (Calamity Jane) and work. The plaintiff thought she had tried to brush off her injury and not complain because it was her first real job and she wanted to go into the media industry. Working in the call centre was a step in this direction.[16]
[16]T29
34 The plaintiff agreed she was not sure what caused her neck injury when she first reported it. She could not remember having difficulties sleeping in a Ballarat motel; it was a long time ago.[17] She must have mentioned this to her doctor because he had asked her what she had done in the previous week.[18]
[17]T27
[18]T28
35 The plaintiff had a couple of weeks off work and she commenced physiotherapy treatment with Mr Wigg on 18 August 2008.
36 The plaintiff was taken to her Claim Form which set out the onset of pain occurred on the said date. She did have pain prior to that date. She did not realise she was supposed to write that on the form. She was only asked what happened on that date.[19]
[19]T32
37 The plaintiff did not mention pain over a protracted period because she did not realise how serious it was. She was not sure why she did not put it in the Form, but she definitely had pain for a couple of weeks.[20] It was not serious enough to warrant radical attention. She had not seen the physiotherapist or complained to work about it.[21]
[20]T32
[21]T33
38 A fortnight later, the plaintiff returned to work for two half days. She suffered from such overwhelming symptoms that she could not continue working.
39 An ergonomic assessment of the plaintiff’s desk configuration was undertaken. When she returned to work in January for 9 hours a week, the recommendations had not been adopted. The plaintiff’s symptoms returned. She had almost complete numbness in her right thumb and fingers and could not type or drive home. After nine weeks, her symptoms were so severe she had to catch a taxi home and she ceased work at that time.
40 The rehearsals noted by Ms Irwin were for a production of Calamity Jane in October, run by Babirra Theatre Company. In that show, the plaintiff had mostly a singing role.
41 The plaintiff thought she had two weeks off rehearsals for physiotherapy. On her return, there were some modifications made to her role in the chorus because of her pain.
42 The plaintiff’s role in Calamity Jane involved singing and moving, not dancing. It was choreographed movement, mostly walking around the stage emotively, dramatically singing, and using her arms a little bit. She may have raised her arms at some point, but any movements that were hurting her were modified. Amateur theatre is very good at catering for people’s various levels of ability. The plaintiff did not remember totally, but quite a bit of Calamity Jane was modified for her.[22]
[22]T30
43 The plaintiff deposed that she started a significant regime of treatments and investigations in late 2008. In September 2008, she was referred to a neurologist, Dr Heywood. The plaintiff agreed, at that time, she still was not sure whether her condition was work-related.[23]
[23]T33
44 The plaintiff came under Dr Blombery’s care in March 2009. He treated her with intravenous lignocaine ketamine infusions. These gave her some relief but wore off within a couple of months. He then commenced her on Norspan Patches and also medication known as Amantadine. When she swore her first affidavit in April 2014, the plaintiff still used that medication with varying levels of relief.
Current treatment
45 The plaintiff is currently under the care of Dr Krigsman, general practitioner, and Dr Blombery, specialist. She tells her doctor about her pain levels.[24] The plaintiff is not presently having any psychological treatment.
[24]T176
46 The plaintiff takes Neurontin, 300 milligrams three times a day, Lovan, 20 milligrams a day. She was taking Tramal for breakthrough pain; however, due to side effects, she is now prescribed Endone at 5 milligrams as needed and Durogesic Patches. These medications generally take away the sharpest edges of her pain. Often she has no option but to lie in bed and wait for the worst pain to pass.
Pain
47 As of April 2014, the plaintiff was left with very significant symptoms in the right shoulder and down her right arm and in her neck. There was constant pain between her shoulder blades up in to her neck, which frequently built up to a severe level. This occurred numerous times daily.
48 There was no escape from the pain and even the plaintiff’s sleep was compromised as a result. She found it hard to get to sleep, and was generally woken up by pain at least a couple of times every night.
49 The injury had changed the plaintiff’s life dramatically.
50 In her recent affidavit sworn 11 November 2015 (“her recent affidavit”), the plaintiff deposed that, unfortunately, things had not improved.
51 The plaintiff lives with her husband Nicholas in her parents’ house. He has become her carer for the purposes of Centrelink.
52 Nicholas is currently looking for an apprenticeship and if he finds one, the plaintiff’s mother will take over as carer. He resigned his job in March and did a three-month pre-apprenticeship course, and he has been looking for work since. He was on Job Seeker payments. The plaintiff was not sure whether he received more money as her carer.[25] He probably did.[26]
[25]T90
[26]T91
53 The plaintiff deposed that currently, the main areas of pain that she suffers are pain in the right side of her neck and into the shoulder; frequent very sharp or stabbing pain in the neck and right shoulder; pain in the right shoulder blade and spreading into the back; pain in the right upper arm and numbness and pins and needles extending down the right arm to the fingers of the right hand.
54 In the witness box, the plaintiff described pain in the right neck/shoulder area, with throbbing pain down between the spine and shoulder blade and pain in her upper arm as well, in the back of her right shoulder. She occasionally gets tightness across the top of her right shoulder. The pain in her head goes up to about chin level and down to the bottom of her right shoulder blade.[27]
[27]T13
55 The plaintiff’s arm pain is actually on the inside of her upper arm. It is a different sort of pain. She has that pain when she holds her right arm out straight. She gets tingling below her elbow, but not pain. The tingling goes all the way through to her fingers and it is intermittent and activity related. It is caused by raising her arm above shoulder level, trying to grip and carry things. She really does not have a strong grip anymore. She is not able to carry her handbag.[28] She would not be able to carry a basket in her right hand.[29]
[28]T14
[29]T15
56 The plaintiff has tingling in her right hand, generally three times a week, and tries to avoid activities that will cause it, such as gripping, lifting or repetitive movements or trying to type or play the piano.[30]
[30]T16
57 The plaintiff’s pain has got worse.[31] With her current medication regime, her pain is still 9 out of 10. She is in the middle of a reappraisal of her medication regime.[32]
[31]T18
[32]T87
58 Over the last six weeks, the plaintiff’s pain has worsened. She was managing in August 2015. She slept a lot during the day. She had extreme difficulty sleeping at night. A couple of times she tried to play netball having been driven there by her husband. She had been missing about 50 per cent of games on short notice.[33]
[33]T20
59 On the morning of the hearing, the plaintiff felt horrible and was in extreme pain sitting in the courtroom. She sat on her own chair whilst at court. She used ice packs all day and had taken painkillers, but they were not helping her very much.[34]
[34]T178
Mood
60 As of April 2014, the plaintiff’s pain and fatigue kept her at home most days and she then spent a lot of days in bed, especially when she had been busy the previous day. She found it difficult to go on public transport because of the jerkiness of the ride. Her mood was very low most of the time and it was difficult to feel a genuine sense of happiness. Rather, she felt a sense of being utterly overwhelmed by her pain and its consequences on almost every facet of her life.
61 The plaintiff first realised she had become significantly depressed in the latter months of 2008 when she was crying a lot of time. She was treated with antidepressant medication, which she felt helped to some extent.
62 Despite that medication, it was hard to remain positive. The plaintiff feared her intended career in film and television had effectively disappeared and she could not see herself coping with that sort of work on any regular or reliable basis.
63 The plaintiff lives in an independent flat downstairs in her parents’ home.
64 The plaintiff recently deposed that she struggles with pain and tiredness all of the time and often spends up to 20 hours a day, or thereabouts, in bed. . Doing so does not aggravate the pain and gives her support.[35] She sleeps for about 12 hours and usually significantly longer. For the rest of the time, she reads on her Kindle or iPad.[36]
[35]T17
[36]T21
65 The plaintiff tends to get up and do one particular thing and then pay for that activity with pain and tiredness. She can play some of a netball game but then has to rest for the next day or so. Sometimes, it is just a chore to get out of bed and shower.
66 The plaintiff lives in an independent flat downstairs in her parents’ home. She quite often, on average, spends 20 hours a day in bed. The plaintiff does not necessarily get up and get dressed every day, but she does her best. About half the time she does not get up. This has probably been happening for at least four years, even before she was married.[37]
[37]T17
67 Since 2011, about three days a week, the plaintiff does not get dressed. At times, she needs help dressing. She has a lot of clothes she can put on herself as she has learnt to adapt.[38]
[38]T19
68 Having a shower is one of the things that aggravates the plaintiff’s condition. Drying her hair can also be a problem and she avoids doing so on a bad day.[39]
[39]T18
69 At the moment, the plaintiff is having a bad day every day, and has had very bad pain for several months. In the last seven years, on average, probably one or two days a week could be quite bad.[40]
[40]T18
70 Normal seating is painful for the plaintiff and she needs a seat that comes up to a higher level than her shoulders to be comfortable. For many years she has used a portable seat with a high extended back. The plaintiff usually took it when she went out.
71 The plaintiff bought the chair quite early on, quite a long time, probably about five years ago. It was not suggested by a doctor, but the plaintiff discussed it with her doctors, who thought it would be helpful. Sitting on it relieves her shoulder pain.[41]
[41]T13
Work post injury
72 The plaintiff deposed that she attempted to return to part-time work in January 2009, but that was not successful, as her pain and symptoms very quickly flared up again and she lasted only for a couple of months. She last worked in about March 2009.
73 The plaintiff worries a lot about the future. Almost all of her plans and hopes had been sidelined by her injuries. She does not know what sort of employment she could realistically hold down, bearing in mind her pain levels and her inability to cope with it.
74 The plaintiff did however attempt work after that date. She tried to sell Tupperware. She did not mention that in her affidavit because she did not make any money.
75 Whilst employed by Tupperware, the plaintiff tried to host five or so Tupperware parties in 2013. She had to take plastic containers out on a table and talk for two hours or so.[42] Her family did most of the deliveries for her. She did not do any cooking in that job.[43]
[42]T90
[43]T95
76 The plaintiff was not able to keep up with the minimum requirements of this job and run a $500-party a week. She had to pay $1,000 for the materials. Her attempts to do the parties were unsuccessful because of her pain.[44]
[44]T96
77 The plaintiff did not include this work in her affidavit as she did not count it as paid employment as she did not get money. She was not aware she had to mention it. She was hoping to make money but was unsuccessful. She was hoping to get back to starting her life.[45]
[45]T97
78 The plaintiff also did not mention in her affidavit voluntary work at Theatre People in 2010 to 2011. She worked for a couple of months, probably a couple of hours a week at home.
79 The Theatre People job in digital media involved coordinating and organising people to shoot videos and items for the theatre website. She was sacked from her voluntary role because she could not fulfil the requirements.[46] She did six of seven promotional videos in the couple of months she was there. This was at a time when she was spending 20 hours a day in bed on a bad day, up to two or three days per week.[47]
[46]T34
[47]T35
80 The plaintiff was unable to do this job in a timely fashion and she had trouble keeping up at times, as the department grew and it became too big a job for her. She was not doing the job well enough and they thought they could find someone who could a better job.[48]
[48]T36
81 The plaintiff received an email from the editor-in-chief of Theatre People advising her she was not meeting his expectations. He wanted her to be doing film and stepping in at the last minute, and she was not able to do this. The plaintiff thought she worked for Theatre People in 2010.
82 The plaintiff interviewed and videotaped some of the participants in a Theatre Aid production in February 2011.[49] The plaintiff was photographed doing this filming. She was sitting upright in a normal chair without any support.
[49]T39
83 The interview probably lasted half an hour. The plaintiff just had to press the recorder and left the camera going. [50]
[50]T41
84 The plaintiff believed she paid dearly for this filming activity and had to rest for some weeks. She would not necessarily tell a doctor about this type of flare up because she had learned how to them and she had specific medication for this purpose.[51] She had regular appointments, so there was no need for special ones. She thought her doctor knew she worked with Theatre People.[52]
[51]T51
[52]T52
85 The plaintiff conceded she might have been at Theatre People up until July 2011. She did not remember when she had finished. She might have worked there six months, “time is a blur”.[53]
[53]T43
86 The plaintiff attended a party at the Waiting Room for the launch of the new Theatre People website in August 2011 for a “little bit”. Photographs were tendered showing the plaintiff enjoying herself at that party. The review by David Hughes set out - “The Theatre People gang partied into the wee small hours on Saturday night at the Waiting Room to celebrate the launch of the new site.”[54]
[54]T46
87 The plaintiff agreed she had continued, on occasion, to put together or improvise costumes since her injury. She put photographs of such clothing on the Theatre People website in September 2011.[55] She might then have been still part of the Theatre People team as the photographs suggested.[56]
[55]T46
[56]T50
88 The plaintiff could not remember discussing with her doctor that she was doing voluntary work.[57] She applied for a parking permit and spoke to her general practitioner about it. She told him most of the things that were going on in her life.[58]
[57]T54
[58]T55
89 The plaintiff is presently in receipt of a Disability Support Pension. There are restrictions on what she could earn.[59] She denied she avoided work, explaining that she tried to work with Tupperware.[60]
[59]T98
[60]T148
Voluntary work – the church
90 As of April 2014, the plaintiff had tried to edit a time-stop video for her church, Hill’s Church, but found this too difficult because of her high pain levels, resultant inability to concentrate and a general feeling of tiredness while trying to do the task. That had been a massive blow to her and she felt a sense of utter despair about the loss of what she had expected to be an exciting and fulfilling vocation.[61]
[61]T57
91 The plaintiff has been attending 13/30 Apostolic Church for over two years. She probably attends her home group through that church more regularly than she goes to meetings. Home group is probably once a fortnight, and she has been three or four times this year.[62]
[62]T58
Housework
92 As of April 2014, the plaintiff hardly did anything around the house. Cooking, meal preparation and laundry all exacerbated her symptoms.
93 Whilst attending Caulfield Pain Management in 2012, the plaintiff was cooking dinner a few times a week but that was really only putting frozen food in the oven.[63]
[63]T170
Netball
94 In her April 2014 affidavit, the plaintiff deposed that she was previously a very keen netballer, playing at a high level three or four times a week. She had returned to netball but only played socially and sporadically, now in Division Six, having previously played Division One. She rarely played a full game without pain, and on the days she played, she rarely did anything else.
95 The plaintiff recently deposed that she had kept up limited involvement with netball, playing in very low social grades, with shorter quarters of 9 rather than 15 minutes. Netball is one of the ways she tries to keep up a level of connection with the outside world.
96 The plaintiff tends not to play defence, as that requires more elevation of her arms. She also uses her left arm more when playing, due to pain that quickly builds up in the right arm. Her husband drives her to and from games, as she struggles with pain driving. Once they get home, she is in a lot of pain and goes straight to bed. Nevertheless, she is still prepared to get involved because she does not wish to entirely vegetate at home.
97 The plaintiff also thought she might try some netball umpiring rather than playing, as she thought it might be physically less stressful and give her some social outlet. Unfortunately, this did not happen and she found the required arm movements were painful, and she was not able to do the various hand signals properly. This was disappointing, as another door had closed to her.
98 The plaintiff plays in a mothers’ club netball association once or twice a week in a number of different teams.[64]
[64]T20
99 The plaintiff attempted umpiring after April 2014. She was paid less than the minimum wage. She was trying to see if she could still do it. She passed the two-and-a-half-hour written test at the bottom level. She did not do the practical test because her supervisor had seen her umpiring previously.[65]
[65]T61
100 The plaintiff filled in when the league was desperate. There was a weekly roster for which she would sign up.[66]
[66]T60
101 The plaintiff did a bit of umpiring at the end of 2014 and at the start of 2015. She asked another umpire’s advice on Facebook on 22 June 2015.[67]
[67]T63
102 The plaintiff is not fit enough to keep up with the game properly. She has been told her hand signals are not good enough. The repetitive motion of it was her problem; the more she did the more it aggravated her pain. She could run up and down the court for a period of time. [68]
[68]T65
103 There is less running in umpiring than there is in playing. At the level that the plaintiff umpired, she often walked. She can move her arms. She could throw a ball up to do a contested pass with her left hand.[69]
[69]T65
104 The plaintiff maintained she could not do further umpiring because she only had a beginner badge and she could not keep up with high-level games. She then agreed, unless she wanted to do much higher level umpiring, she did not need to progress further and her C-Badge was enough. The plaintiff called in sick multiple times for umpiring.[70]
[70]T66
105 The plaintiff is able to play netball on a good day, as recommended by her physiotherapist. She disagreed playing was much more physical than umpiring. Both activities are about the same for her but she agreed she did not have to catch the ball, run two-thirds of the whole of the court or defendant when umpiring.[71]
[71]T67
106 The plaintiff defends occasionally, but does not have to put her arms up very often. She is a much lazier player than she used to be. She usually plays wing attack, occasionally, goal attack and sometimes centre.
107 When playing centre, the plaintiff is probably walking most of the court and running half of it. She can run two-thirds when playing wing attack, and tends to play in front. She does not turn her neck to see whether a player is behind her because her neck hurts. She sort of dodges around on her feet a bit. She might occasionally turn her head to the side but she tends to try not to because it aggravates her problem.
108 Occasionally, the plaintiff might put her right hand up, but she would not be signalling to her right very often because she has trouble catching the ball on that side.[72] She might raise her right hand for about a second. She denied she did it continuously through the game. She only threw with her left hand. She has developed a coping mechanism over the years, catching the ball with her left hand.[73]
[72]T67
[73]T60
109 The plaintiff very rarely shoots goals. She probably goes for rebounds with her left hand.[74] She agreed netball could occasionally be physical and she can be bumped around. She generally stepped out of those situations. She had managed to do pretty well to avoid contact so far.[75]
[74]T60
[75]T69
110 The plaintiff is enrolled in three netball teams and, on average, she plays half of the games in a group league, playing once a week since 2009. She has not given it up, she was recommended to continue the game for her general health and wellbeing.[76]
[76]T60
111 Exhibit 1 was 19 minutes of film of the plaintiff playing netball taken on 16 July 2014. The game comprised 9-minute quarters. The plaintiff was shown playing wing attack for “Storm”. She preferred this position, as it was the easiest.
112 The team was made up of mothers aged up to forty with small children. The plaintiff was the youngest player.[77] She found the team on the internet. She started playing on the recommendation of her physiotherapist, Angelo Ratachandra, at Genesis Gym in Richmond. He also developed an exercise and stretching program for the plaintiff.
[77]T70
113 Exhibit 2 was 23 minutes of film taken on 9 September 2015. Initially, the plaintiff was shown walking into the Knox netball stadium and then playing netball. For a short time, she played goal keeper and then changed to wing attack.
114 Whilst this film was being shown, the plaintiff asked to take her medication, as she needed to take it at 4 o’clock.[78]
[78]T74
115 Exhibit 3 was 12 minutes of film taken on 3 September 2014.[79]
[79]T76
116 The plaintiff was shown playing netball in a higher division, which included teams who were training to be professionals. In that particular game, she was playing against the Rowville Sports Academy.
117 The plaintiff had driven herself to the game. After the match, the plaintiff returned to her car and put on her jumper whilst sitting in the driver’s seat. The plaintiff was then shown reversing her car, moving her neck with no apparent difficulty. The plaintiff agreed she was able to move her neck from side to side to a certain extent.[80]
[80]T92
118 The plaintiff’s team had raised concerns with the league about playing at this standard because the younger teams were very aggressive and some of the plaintiff’s team mates got serious injuries playing against them.[81]
[81]T76
119 The plaintiff supposed she tried to lift to the standard, depending on what level she was playing. She played centre very rarely and, in that particular film, she had had most of previous quarter off and she had not been running a full game. She then agreed that when she was sitting on the sidelines, she was having a rest because she had hurt her finger and she then went back onto the court.[82]
[82]T77
120 The plaintiff agreed that in that film, she ran when playing centre, both in defence and in attack. She had never suggested she could not elevate both arms, but doing so aggravated her injury.[83] When suggested she was not grimacing, she said she had learnt to conceal that over the years. She had been told by her physiotherapist to use her arms as much, as she could to stop them “atrophying.”[84]
[83]T77
[84]T78
121 The plaintiff was not sure, but she thought she had possibly gone back to netball in early 2009. She agreed she enjoyed it and it helped her fitness.[85] She disputed whether she looked agile and fit compared to what she used to be. She could jog, but disagreed she was running quite quickly. She could turn her head to a certain extent and she used her peripheral vision mostly.[86]
[85]T78
[86]T79
122 The plaintiff disagreed she turned her neck without restriction. She agreed she dodged back and forth between players. She denied she had no restriction playing netball. While ultimately conceding playing caused jarring, she was not moving fast enough for that to be a problem.[87]
[87]T79
123 The plaintiff agreed that in the 2014 film, there was a collision between her and another player. The other players back collided with the plaintiff’s front. This incident did not seem a big deal to the plaintiff.[88]
[88]T92
124 The plaintiff disagreed she threw a ball with both hands, and described her particular throwing mechanism as only pushing the ball with her left hand and guiding it with her right hand.[89] She has developed grabbing mechanisms to catch a ball. She disagreed she was shown doing a routine netball throw using both hands.[90]
[89]T92
[90]T93
125 In re-examination, it was suggested to the plaintiff that she seemed to be on video just walking around standing there doing nothing. She explained that was not unusual for her.[91]
[91]T177
126 The plaintiff had not said she could not put her arm up. It is the upper arm that is the problem; when she lifts it above her shoulder the pain kicks in. High levels of pain make it difficult to concentrate, as do the side effects of medication. [92]
[92]T178
127 The plaintiff agreed she told Ms Angel in September 2015 that she had a 30-minute slow pace walking capacity on a flat surface, usually supporting her arm in a sling. She used a sling because it took the pressure off her neck. She thought she probably got the sling in 2008 when she was first injured.[93] She could walk unassisted but she was more comfortable wearing it. She did not use the sling all that often. She had maybe used it about ten times.[94]
[93]T81
[94]T82
128 The plaintiff preferred to play netball rather than go walking for exercise because netball was “sort of stop and start.” She does not go for a walk because she gets enough exercise playing netball.[95] It was good to be in a team because she had to commit herself to go and get out of the house and turn up. If she went for a walk as well as play netball, it would probably be too much for her. She is very careful with the way she schedules her time.[96]
[95]T83
[96]T84
129 Some days, the plaintiff has dizzy spells related to her medication. Her health is not reliable enough for her to take herself places so if she needs to go anywhere, her husband drives her. She would not choose to go for a walk with him as she hates going for walks.[97] The plaintiff had not been out of the house without her husband for a couple of months – probably since he became her carer.[98]
[97]T88
[98]T89
Travel
130 The plaintiff had also intended to travel extensively once she was a wage earner, but now felt that had opportunity had also been taken away. She was not earning what she expected to and did not believe she would be able to cope with or enjoy the whole experience of travel due to her pain and physical limitations. That situation upset her greatly.
131 The plaintiff went on her honeymoon to Fiji. She went to New Caledonia with her sister for ten days. The plaintiff could not have gone on this trip without her sister to help her.[99]
[99]T172
132 The plaintiff married two years ago.
133 The plaintiff is concerned about her ability to have children. She is now twenty-eight and it is something she expected would happen in her life but she fears she would not be able to hold a baby or take care of it. This was something she is yet to come to terms with and it upsets her greatly.
134 The plaintiff is also worried about the effect of her medications on an unborn child. Further, life without painkilling medication did not seem possible.
135 As of April 2014, the plaintiff was no longer the sociable person she had been before injury and she tended to stay at home a lot more most days. The pain had affected her mood and she did not often feel like socialising.
136 Now, the plaintiff has almost no social life. She recently went to a niece’s birthday party but had to leave after half-an-hour to go home and lie down because of increasing pain. Going out for a meal is difficult. She has to rely on others to cut her food due to her pain and restriction in the right arm. This situation was very embarrassing.
137 The plaintiff tried to go to a friend’s wedding on Saturday, but did not make it to the reception because she was in terrible pain.[100]
[100]T15
Study
138 The plaintiff had been enrolled in a Master of Arts Degree and a Graduate Certificate in Theology online. She had to abandon those courses. Apart from being unable to type due to her injury, and relying on voice recognition, she did not have the stamina to cope with study pressures. She was also unable to concentrate when in pain. She sought extensions, and missed deadlines, and failed a number of units. That situation was difficult to come to terms with.
139 The plaintiff enrolled in a Master of Arts at Deakin in 2010. That year, she completed four subjects, receiving three distinctions and one high distinction.[101]
[101]T159
140 When she was not doing musicals, the plaintiff was able to study, and did very well. Most of the work was completed late at night when she was most alert.[102] It was very difficult for her to complete those subjects, but she did.
[102]T159
141 In 2011, the plaintiff withdrew from some subjects and failed the rest. That year she was involved in Seven Brides.
142 In 2012, the plaintiff withdrew from two subjects and in 2014, she got a distinction in Criticism of Literature for Children and failed two other subjects. She then withdrew from the course because she had a lot of trouble meeting deadlines and concentrating on her studies.[103]
[103]T160
Piano
143 The plaintiff was previously quite an accomplished pianist and generally practised seven or eight hours a week to keep up her skills. She now rarely played the piano, as it was too painful and she did not have enough function in the fingers of her right hand. That had been extremely upsetting for her. On a more practical level, that was something that previously supplemented her income which had now been lost.
144 The plaintiff recently deposed that she still has not been able to get back to playing the piano, as she lacks dexterity in her hands, particularly her right. This upsets her greatly, because it was something she was good at and proud of. She had fully expected to improve her skills over the rest of her life and potentially teach piano and play accompanying parts.
145 The plaintiff’s bio in the Boy from Oz program set out she had studied piano for seventeen years. She taught piano during high school but stopped during university to study and work.[104]
[104]T108
Musical theatre
146 In her second affidavit, the plaintiff deposed that earlier this year, she became involved with a musical group, thinking singing might be an outlet for her, as she was unable to play the piano. She was part of a chorus and she was driven by her husband to and from rehearsals and shows. The shows ran for two weeks and the rehearsals ran for a few weeks before that. She enjoyed this activity, although she found that simply being active and travelling to the venues was painful. After rehearsals and netball games, the plaintiff went straight home to bed.
147 In cross-examination, the full extent of the plaintiff’s participation in musicals became apparent. The plaintiff explained there was so little detail in her second affidavit about her musical theatre participation because she thought she had mentioned it in her first affidavit and her second affidavit was an update.[105]
[105]T101
148 The plaintiff had in fact been in the chorus in musicals with the same group, Barbirra, performing in Calamity Jane in 2008, Oklahoma, Carousel in 2013, Seven Brides for Seven Brothers, Witches of Eastwick in 2009, Crazy for You and in the Boy from Oz this year. The plaintiff had been in other musicals with Players and Mount District Musical Society.[106]
[106]T99
149 The plaintiff had been roughly doing one musical a year for five or six years. There would usually be a rehearsal period for two and a half months and then performances over two weeks, on Thursday, Friday and Saturday.[107]
[107]T100
150 The plaintiff apologised for not having mentioned the musicals in her first affidavit.[108] Dr Blombery was aware of her involvement, although he had not noted it. The plaintiff is usually in and out of appointments with Dr Blombery in five minutes, seeing him mostly for medication.[109]
[108]T101
[109]T150
151 The plaintiff could not recall much of the appointment with Dr Serry in October 2015. She did not know whether she told him about her involvement in musicals.[110]
[110]T159; appointment 5 October. No mention of musical theatre involvement. Boy from Oz opened four days later.
152 When it was suggested to the plaintiff that her involvement in musicals had been extensive, she said she supposed more than the average person, “but compared to most people she knew, no.”[111]
[111]T103
153 The plaintiff agreed she had to be relied upon by the rest of the cast, but with rehearsals, they understood why she was unwell and unable to turn up.[112]
[112]T104
154 The plaintiff had also been on the Barbirra Committee in 2014 and 2015. It met once a month, and the plaintiff did some Facebook marketing on its behalf. She has only been to about five meetings this year and about the same number last year. She is just a general member of the Committee.[113]
[113]T105
155 The plaintiff did Facebook headshots of the Committee, helping to plan, and also helped to plan for the sixtieth anniversary.[114]
[114]T106
156 The plaintiff agreed she could not umpire netball on a Monday night when there were rehearsals.[115]
[115]T106
157 The plaintiff’s bio in the Boy from Oz program set out she was the associate musical director for The Pajama Game. That must have been in 2010 or 2011. This was a “nice title” but it was not assistant music director. The plaintiff just helped out because the assistant was pregnant.
158 A photograph of the plaintiff performing in Oklahoma in June 2009 showed the plaintiff with her arms up over her head holding onto another performer. The plaintiff explained that she was in fact jumping in the air with her arms above her head. The other girl was helping by supporting her arm at that point. A lot of the plaintiff’s movements were modified during shows, with the choreographer changing the plaintiff’s movements for her.[116]
[116]T130
159 The plaintiff agreed she was performing in Oklahoma in June 2009, when she was being certified as unfit for work.[117] She assumed she told her general practitioner that she was in the performance.[118] His note of 19 June 2009 that with folding clothes for 25 minutes would lead to the plaintiff experiencing pain for a day and a half was correct.[119]
[117]T135
[118]T136
[119]T139
160 The plaintiff explained she always talked to her doctor about anything she had done that caused above normal pain. She did not know whether she told him about things she was able to do.[120]
[120]T142
161 The plaintiff agreed she probably went from that performance straight to the Witches of Eastwick in August 2009. Photographs from that production showed the plaintiff helping a fellow performer with her hair and also the plaintiff holding a camera in her right hand.
162 The plaintiff agreed there was choreographed movement in that production.[121]
[121]T144
163 There were a number of photographs of the plaintiff attending a birthday party on her Facebook page in September 2009.[122]
[122]T145
164 Whilst the plaintiff was shown in one photograph with her right arm raised above shoulder height, she never said she could not lift it. Doing so caused her pain. She asked whether she is not allowed to have a life. If she chooses not to do anything, it causes her pain and she sits around at home in bed.[123] She spends most of the night on the couch and she stayed overnight at that party so she would be able to attend. She denied she was lifting her arm above shoulder height.[124]
[123]T146
[124]T147
165 When it was suggested these activities did not cause her any pain at all, the plaintiff disagreed. She tries to avoid a lot of things that cause her pain. When she does so, she spends a lot of time in bed which she does not enjoy. She would try to do things that get her out and active and she only does one thing a day, and if that causes her pain, she stops. [125]
[125]T148
166 On multiple occasions, the plaintiff could not attend the musicals because she was in too much pain. This month alone she cancelled three auditions because of the pain she suffered in Boy from Oz. These included productions of Little Mermaid and Mary Poppins. The plaintiff agreed musicals interested her and were good for her health.[126]
[126]T149
167 A number of photographs of the plaintiff in Seven Brides for Seven Brothers taken in December 2010 were tendered.[127]
[127]T150
168 In one photograph, the plaintiff was shown holding a basket in her right hand. Whilst she could not hold a basket now, she must have been able to do so then.[128] She also pictured clapping her hands doing folk-dancing.[129]
[128]T150
[129]T153
169 The plaintiff had forgotten she was the musical director for Identity Players Theatre Company, receiving a nomination for a Lyrebird Award in 2012. Winning that award was not really a major event.[130]
[130]T110
170 The production of “Identity” was a concert made up of songs played from various musicals. It ran for twelve nights. The plaintiff took part in the auditioning process. She had some input in the casting. She counted in the musicians and did a bit of conducting with her left hand.[131]
[131]T144
171 The awards were basically a way to make people feel appreciated for their involvement in amateur theatre. The plaintiff was nominated by default as there were only three variety shows that year.[132]
[132]T114
172 In 2013, the plaintiff was in Carousel. There were moments she did not make it on stage because she was in too much pain. There was a big break over Christmas and she recovered. The next show the plaintiff did was two years later.[133]
[133]T150
173 Barbirra put on a production of Boy from Oz from 9 to 17 October this year.[134] The plaintiff was listed in the program as being in the ensemble and also carrying out a marketing role.
[134]T107
174 The auditions must have been in about July or June, and the plaintiff went for a chorus part. She probably would have attended her first rehearsal for that production in about July or August 2015.[135] There were an increasing number of rehearsals held by the end of October. Sometimes, the plaintiff was required for two hours, and at other times, three.[136]
[135]T123
[136]T126
175 The plaintiff was participating in rehearsals in August 2015 when her husband applied to be her carer. At that time, the plaintiff basically went to rehearsals and then went to bed. That was usually the only thing she did that day. She missed a lot of netball during that period. She did play some games. She was spending up to 20 hours a day in bed.[137]
[137]T127
176 The plaintiff did some movement in the Boy from Oz. She definitely was not one of the dancers. She did some back-up singing. She thought she did about 30 seconds of tap as a “Rockette” in the opening of Act Two, and she “screwed it up most nights”. [138]
[138]T116
177 There were some other songs where the cast stood around and sang, and there was a bit of really slow movements and a bit of stylised movement. The plaintiff would not count that as dancing. It was step together backup singing, literally stepping from side to side.[139]
[139]T117
178 A YouTube clip was shown in Court of this performance.[140] The plaintiff was shown at various times on the stage standing, singing and moving her arms.[141]
[140]Exhibit 4
[141]T120
179 Later in the film, the plaintiff was shown again clapping and stamping and then she walked off the stage. For a short time, in one scene, she was pretending to be a dancer and doing warm-ups lying on the ground.[142]
[142]T124
180 When it was suggested to the plaintiff that it was unlikely she would be spending 20 hours in bed whilst doing rehearsals and playing netball, the plaintiff stressed she spent up to 20 hours in bed. [143]
[143]T127
181 The plaintiff agreed it was a bad idea for her to be in the production and she put her body through more than she should have. She was not auditioning for anything in the future unless there was a choir role. It was a huge strain on her body. She kept attending Boy from Oz because she was committed to it. She was finding it very difficult. She did not pull out because she did not want to let people down and she enjoyed it.[144]
[144]T128
182 Whilst there was a social aspect to these productions, the plaintiff did not attend cast parties and went straight home to bed.[145]
[145]T130
Dance lessons
183 The plaintiff did tap, jazz and contemporary for Creation School of Dance for about six to twelve months, when trying the rehabilitation program with the physiotherapist at Genesis. It was extremely painful and she did not really get very far with it and stuck with netball. She missed more than half the classes suggested by her physiotherapist. The classes were of entry level and she was not a good dancer.[146]
[146]T109
Teaching
184 The plaintiff probably started teaching singing to a little girl from the church earlier this year, at the end of first term. There have probably been about 15 lessons but the plaintiff has had to cancel quite a lot. The plaintiff is paid $15 per lesson. She also helps a little girl who is very ill with her homework but does not get paid.[147]
[147]T156
185 The plaintiff struggles with the singing tutoring, it makes her tired and sitting is a problem.[148]
[148]T165
Singing lessons
186 The plaintiff has been having singing lessons over the last seven or eight years with the same teacher.[149]
[149]T103
187 The plaintiff has these lessons for a personal sense of satisfaction. It does not actually count towards anything, it will not get her into a degree.[150] She did not really practise very much, and tried to go to her lessons once a week.
[150]T161
188 The plaintiff started singing at AMEB Grade 4 level. She obtained B for Grade 7, but the majority of the people did.[151] She should have practised more for her exams to feel like she had accomplished something in life.[152] She was undecided, at the moment, whether she was going to do Grade 8.[153]
[151]T163
[152]T164
[153]T165
A music career
189 If the plaintiff was well enough, it would be wonderful to have a career in music. She can still sing and it does not affect her pain level. Being in musicals gives her a level of feeling that she can accomplish something rather than sitting around in a dark room doing nothing. However, it not a career goal. It took her a long time to concentrate and learn lines but she fudged them.[154]
[154]T166
190 The plaintiff disagreed she had a greater level of function than she had told doctors. She disagreed that she could work. She would love to. Being a music teacher or a tutor is something she would be interested in. She had attempted to build up an ability to do this but was having a lot of trouble. If she continues the way she currently is, she would not be able to do it in the future, it is a real struggle for her.
191 The plaintiff aims to get out of bed to be active. There are a lot of things she misses out on, such as the wedding last weekend. She does not do singing and dancing all the time.[155] She does all those things periodically over the time since she has been injured. She was extremely careful how she scheduled her time not to exert herself.[156]
[155]T175
[156]T176
Lay evidence
192 The plaintiff’s husband, Nicholas, swore an affidavit on 11 November 2015. He and the plaintiff reside together at her parents’ home. They have known each other since childhood and married in 2012. He has noted quite drastic changes in the plaintiff since her injury in 2008.
193 The plaintiff was previously energetic and intellectually engaged, was an accomplished pianist and top level netballer, and she had great expectations about the future, which was likely to be in the television or film industry.
194 Since the injury, the plaintiff is very dependant and he is now her carer. He sees her struggle daily with pain, how she pays for doing any activity and is largely confined to bed. He drives her to netball so she does not have to move her neck and shoulders while driving. He then drives her home. After a game, she is clearly in pain and goes straight to bed.
195 The plaintiff tends to stay in bed for a large part of each day, up to twenty hours each day. Her sleep is quite disturbed, only getting short periods of sustained sleep.
196 Their social life is extremely limited. The plaintiff generally only lasts an hour or so at a social event and has to go home.
197 The plaintiff’s uses the high chair, which gives her support. They take it with them most places they go. He sees the plaintiff struggle using her right hand to cut up food. As a result, he or another family member usually cut it for her. She finds this particularly embarrassing in public. He also has to help her with dressing, as well as drying and brushing her hair.
198 The plaintiff has tried to complete her studies online but had to give them away this year. Even with a dictation program, she was missing deadlines to hand in work, as she could not apply herself to study due to her lack of concentration and tiredness. Having to pull out of her course has been a massive blow to her.
199 The plaintiff looked for other interests in an effort to have some life outside the house. She became involved with a musical group for a number of weeks. They discussed that might be a good outlet for her, given she could not play the piano. He drove her to and from rehearsals and performances so she could participate without added pain and stress from driving. She has often had to cancel plans they made, often at the last minute, because she looks physically tired and she is in pain.
200 Intimate relations has been very much compromised by the plaintiff’s pain, which has been upsetting for them. They are also worried about the plaintiff’s ability to cope with raising children and the effect of her medications on an unborn child.
201 The plaintiff’s injuries have certainly utterly changed the course of her life and his. They are now both very worried about the future. As matters stand, both he and the plaintiff try to keep up some, albeit minimal, activity or interests in an effort to have some form of normality.
202 Nicholas was required for cross-examination. He confirmed that he worked in sales until April this year, when he ceased work to do a three-month electrical pre‑apprenticeship. He is presently looking for an apprenticeship.
203 Nicholas applied for Newstart as he was looking for work. He then changed to a carer’s allowance because of the increase in money.[157]
[157]T182
204 Nicholas has known the plaintiff since childhood. They were family friends through the Church. They started seeing each other romantically five years ago, having fallen out of touch for a few years. They had not seen each other very much between 2006 and 2010.
205 When they were courting, most of their social life was spent at the plaintiff’s house. They enjoyed each other’s company and got along well. They did not go out and do things very often, and spent a lot of time watching television.
206 Nicholas first saw the plaintiff in a show when they were dating. He thought it was Seven Brides. He was not great with shows or a huge fan of theatre, but was aware she was involved. In the early days, he did not drive her to rehearsals.
207 Nicholas denied he was trying to minimise the plaintiff’s involvement in musical theatre in his affidavit. He should have corrected that mistake.[158]
[158]T186
208 The plaintiff is capable of being alone at home by herself. Family members are available, a phone call away.[159] The plaintiff can spend up to 20 hours a day in bed, and did so the majority of the time. She had a few good hours a day.
[159]T186
209 The plaintiff’s sleep is intermittent. She passes in and out. She is in pain all the time, and she wakes up frequently. She probably spends about half that time sleeping, but that is intermittent. Her four hours of activity are not consecutive.[160]
[160]T187
210 The plaintiff has lost confidence, and was having a lot of trouble driving in the last six months. She had trouble moving her head when parking. Nicholas now drives her around. Things have been tiring her out more than usual. The furthest the plaintiff would have driven would have been 20 minutes.
211 Nicholas drives the plaintiff to netball and rehearsals if she is up to it but often she has to cancel.[161] He denied the plaintiff did what she wanted to do. She did what her body allowed her to do.[162]
[161]T188
[162]T189
212 The plaintiff can move her neck from the middle to one side, but could not move to the other side as it caused her pain.
213 Nicholas had watched the plaintiff play netball. He drove her there because he was trying to minimise the strain she put on her body. He did not stop her playing netball. When he watched her play netball, the plaintiff barely used her right arm at all, and instead of turning her neck, she turned her whole body. The plaintiff plays a very low-grade, casual game. She actually does not move very fast at all. She is very careful about her movements.[163]
[163]T190
214 The plaintiff can elevate her arms up but she cannot sustain it. She usually leads with the left arm. She often drops the ball if it goes to her right side. She drops it a lot. The level of skill required is very low. The plaintiff plays centre but she is a terrible defender.[164]
[164]T190
215 The plaintiff’s attendance at games depends on her other activities. He would actually have to look at the calendar. When a performance was on, she cancelled absolutely everything else for those two weeks.[165]
[165]T192
216 Nicholas disagreed that netball involved considerable jarring to the body. He knew it did not have a lot of effect on his upper body, because he played netball himself. He played with the plaintiff in a mixed netball team. They stopped playing because they found the boys were too rough and they did not want the plaintiff to get hurt.
217 The mixed netball was probably the year they got married, or maybe the year before. They played for one season, ten games or so.[166] Mixed netball was faster, the ball was thrown harder, and overall, the boys were more aggressive.[167]
[166]T192
[167]T193
218 They played mixed netball because they did not realise at the time it would be a problem, as the plaintiff had played girls’ netball. The plaintiff’s physiotherapist had encouraged her to try to play netball.
219 They rarely go for a walk, because it is better for the plaintiff to play netball, and they have it scheduled. Netball is better for the plaintiff because it involves little bits of running on and off, and the plaintiff is not going constantly. It is her choice not to go for a walk.[168]
[168]T194
220 Nicholas disagreed with Dr Blombery’s view that in the last couple of months the plaintiff could maybe work a couple of hours a week. Whilst commenting that Dr Blombery is a doctor, the plaintiff’s appointments with him are very short.[169]
[169]T194
221 Nicholas was aware of the plaintiff’s involvement in Theatre People in 2010 and 2011. As far as he could tell, he did not think that involved much. She had some people film some things for her, and she might have edited a video.[170] He was aware that she did Tupperware work for a few months – it would be six or seven at most – doing demonstrations. He took her and carried everything in for her.[171]
[170]T195
[171]T195
222 The plaintiff also had tried netball umpiring. She started a couple of years ago, maybe two years ago, until a few months ago.[172] She umpired mainly once a week, sometimes twice if asked. She was paid for umpiring.
[172]T196
223 The plaintiff has a singing student at the moment, and a second one possibly starting up who has been referred by the plaintiff’s own singing teacher.[173] The situation for the plaintiff is pretty much get up, get dressed, do the lesson, and go back to bed afterwards.
[173]T196
224 The plaintiff also helps tutoring a special-needs child. The tutoring is only once a week due to the plaintiff’s health, although two sessions had been originally planned.[174]
[174]T197
225 Nicholas did not mention Tupperware, tutoring or Theatre People in his affidavit because he only answered the questions he was asked. He spoke to the barrister only for a short time.[175] When it was suggested he did not mention any work, voluntary or otherwise, he explained that he did not think the plaintiff should be doing as much as she has at times. He was new to the legal process and did not really know what he was supposed to say.[176]
[175]T198
[176]T198
226 The conference with the barrister lasted for fifteen minutes. It was the first time in his life that Nicholas had sworn an affidavit.[177]
[177]T203
227 The plaintiff would like to continue performance in musical theatre, but at this stage, she is not feeling like she can. It is not something she is looking to do as a career. It is an outlet for her. She did tap dancing for a short time, maybe a year at the most.[178]
[178]T198
228 Nicholas drives the plaintiff to singing lessons. He thought she was quite a good singer.[179] He thought she still wanted to continue doing AMEB singing examinations.[180]
[179]T199
[180]T200
229 Following their wedding, they stayed at a bed and breakfast before the honeymoon in Fiji so the plaintiff could recover before they got on the plane.
230 A lot of the time, Nicholas ends up helping the plaintiff get dressed, particularly with any zips or clothing that has to go over her head. He has helped her dress ever since they have been married.[181]
[181]T201
231 Their social life is very boring. They do not go out a whole lot. They used to go to a movie. He agreed they never had a great social life, and nothing had really changed.[182]
[182]T202
232 In re‑examination, Nicholas described how the plaintiff was “managed carefully”. When she has rehearsals she is probably not going to play netball, so netball is limited. When she plays netball, they make sure she gets at least a quarter off, or half a game. If there is church on Sunday, they make sure there is absolutely nothing on Saturday. Often they have to cancel church if they do something on Saturday. They just try and make the most of the opportunities to get the plaintiff out and have some sort of normality in her life.
233 If the plaintiff does too much it just causes pain. If she does something one day, she needs time to recover. When doing a performance, there is nothing else. If there are four performances, the plaintiff often takes about two weeks to recover.[183]
[183]T203
234 The plaintiff’s father, Greg Carroll, swore an affidavit on 11 November 2015.
235 Mr Carroll confirmed the plaintiff’s outgoing and happy nature prior to the injury, enjoying a wide range of interests including church, netball, short films, practising piano up to two hours a day, a busy social life, working as a waitress and then later at the Herald Sun.
236 Mr Carroll witnessed quite a rapid decline in the plaintiff’s health in 2008 after her injury. She was clearly struggling with pain despite taking painkillers. She saw various medical specialists and then went off work. She made an attempt on a graduated return to work program which was not a success, and her return to work was abandoned.
237 Since ceasing work, the plaintiff’s condition has not improved. It saddens him to see her in that condition daily. She lacks fine motor skills with her right hand, being unable to cut her own food and prepare meals, or do other household activities.
238 The plaintiff has lost contact with most of her friends and rarely socialises. When she does go out on that rare occasion, she and her husband come back an hour later with her in pain and she goes straight to bed.
239 Mr Carroll has watched the plaintiff lose her piano playing skills, being a particularly good pianist before injury. She does not even try to play now because of her limited use of her right hand and arm. This upsets her greatly. She has tried to fill the void by participating in some singing as part of a music group, but even that had limited success due to her inability to travel to and from the venue easily. If she does that activity, she then comes home and goes straight to bed.
240 The plaintiff was also a very proficient netballer before injury. She now plays only in a low grade, which is really a social outlet more than anything else. After a game she is invariably in bed asleep, or in bed awake and complaining of pain.
241 Mr Carroll has also watched the plaintiff become enthusiastic about online study. While she was not able to type assignments, she used Dragon but, unfortunately, she was not able to devote the time or concentration to those studies and has let them go. This is upsetting for her.
242 As a parent, to witness what has happened to the plaintiff has been heartbreaking. He worries about her future and, as matters stand, he fears she will never get back to the paid workforce. As she has been so unwell for so long, he does not see much prospect of things changing for the better.
Treaters
243 The plaintiff had physiotherapy treatment from Simon Wigg in 2008, following what he described as insidious onset while working with the computer.
244 Mr Wigg placed emphasis on posture re-education and avoidance of strained head/chin postures. He noted in August 2008, the plaintiff was, overall, improving slowly, doing some quite gentle hydrotherapy.
245 The plaintiff’s general practitioner, Dr Krigsman, from Greater Knox Family Practice (“the Practice”), has treated the plaintiff since 5 August 2009.
246 In his most recent report of June 2015, Dr Krigsman diagnosed cervical radiculopathy, especially at C6-7 on the right, Thoracic Outlet or Brachial Plexus Syndrome, Reactive Depression by 13 March 2009, diagnosed clinically, and Complex and Chronic Regional Pain Syndrome by 5 September 2008.
247 Dr Krigsman noted the following investigations – 2008 CT and MRI scan of cervical spine, 2009 nerve conduction studies, 2010 MRI scan of the cervical spine and thoracic outlet, 2014 nerve conduction studies and a right shoulder ultrasound in February 2015.
248 Dr Krigsman thought the plaintiff’s injuries were consistent with the stated cause of increased VDU typing in a role the plaintiff had only worked in for four months. It came on after a very demanding and long day of typing at work and she woke in pain the next morning.
249 Dr Krigsman thought the plaintiff’s present capacity for work was minimal. He considered, in the future, she may be able to undertake casual or part-time work if the pain and any side effects of her treatment did not hamper her work ability. He noted she had attempted voluntary employment and had to cease within three weeks. She was becoming more dependent and her husband was her carer. He thought she had a lifelong condition of a serious nature.
250 The plaintiff’s clinical file from the Practice contains numerous complaints of neck and right-sided arm pain, the first attendance in relation thereto being on 5 August 2008.
251 There have been consistent complaints since then of significant pain, restricted movement, difficulty sleeping, problems with grooming and other daily activities.
252 The file includes reference to numerous referrals and prescription of medication at different times. The current medication regime includes Lovan, and Neurontin,
253 In particular, counsel for the plaintiff replied on a number of entries in his final address.
254 On 4 August 2010, it was noted the plaintiff had been in severe pain since Sunday and later that month she was being prescribed Neurontin and weaned off Lyrica. The plaintiff’s difficulties coping with her studies were noted in June 2011 and in October that year, it was noted Lovan was not working well.
255 On 14 October 2011, it was noted “rarely playing the piano left hand, netball weekly, filming etc … studying this year, withdrawn from course as unable to complete a unit due to infusion then depression”.
256 On 3 January 2012, the plaintiff’s attendance at the Caulfield Pain Management Clinic was noted.
257 On 3 April 2014, Dr Krigsman noted: “Pain control coping, limiting her lifestyle, has rest days.” On 9 January 2015, he noted: “feeling very dizzy the last 2 days, sleeping a lot last week, heart fluttery.”
258 The last entry on 27 August 2015 set out Lyrica was gradually being withdrawn with side effects. Neurontin had been increased. “Helped nausea almost gone and headaches less, still sleepless and still pain.” Dr Krigsman also noted “husband Nicholas is her carer. Needs present for showering, walking outside.”
259 Dr John Heywood, neurologist, saw the plaintiff four times between September 2008 and November 2010.
260 The plaintiff told him of the onset of neck, shoulder and right arm pain in late 2008, recalling being at work and developing soreness in those areas.
261 Dr Heywood’s initial diagnosis was a cervical root compression, with the combination of neck pain, weakness and tingling in the right arm. The symptoms, namely the distribution of tingling, suggested C7 root involvement but the signs did not confirm this diagnosis. He thought an alternative would be a brachial plexus lesion. He recommended an MRI scan.
262 At that stage, the plaintiff’s symptoms were slowly improving, and the likely diagnosis was brachial neuritis based on the severity of her pain, with subsequent gradual improvement. Dr Heywood considered there would be a further improvement over time and did not recommend additional treatment.
263 However, the plaintiff’s symptoms did not continue to improve as Dr Heywood initially expected.
264 On re-examination in December 2008, there was no change to the plaintiff’s neurological signs. Dr Heywood thought there might have been some vascular compression of the brachial artery, although the plaintiff did not have significant vascular symptoms. He requested studies but they showed no evidence of an injury to the peripheral nerve brachial plexus or cervical root. His working diagnosis then was Thoracic Outlet Syndrome or Myofascial Pain Syndrome. He noted investigations did not support the diagnosis of Thoracic Outlet Syndrome.
265 Dr Heywood referred the plaintiff to Dr Blombery for his opinion about the cause of her symptoms and whether he felt there was any clinical evidence to suggest Thoracic Outlet Syndrome.
266 Dr Heywood last saw the plaintiff in November 2010. She was then frustrated by the lack of improvement and told him her insurers had rejected paying for some of her treatment. He considered the diagnosis remained uncertain but may be a Myofascial Pain Syndrome, for which treatment options were limited. He was unsure of the plaintiff’s long term prognosis from either a medical or work viewpoint.
267 The plaintiff first saw vascular surgeon, Dr Blombery, in March 2009.
268 On initial examination, there was pain in the right arm and tingling all the way down it, particularly into the index, middle and ring fingers, and some slight numbness of the arm.
269 Dr Blombery thought the plaintiff developed pain in her right shoulder and arm in the course of her employment where she was doing a lot of data entry.
270 Dr Blombery organised investigations which showed no evidence of Thoracic Outlet Syndrome. He gave the plaintiff a trial of Baclofen to reduce muscle spasm, which she found was of some benefit in reducing pain.
271 Dr Blombery gave the plaintiff a course of prednisolone, which gave some minor reduction in pain at its highest level but thereafter no improvement. Baclofen had resulted in dizzy spells. The plaintiff also had a trial of acupuncture. She was given Lyrica by her local doctor in July 2009. On 18 January 2010, she was given 30 milligrams of Phentolamine (“the infusion”).
272 When seen in March 2010, there had been improvement for a few days after the infusion.
273 Worsening pain was described on 16 September 2010. Dr Blombery requested a Ketamine Infusion but funding was refused.
274 As of October 2010, Dr Blombery thought the plaintiff had features of a non-specific Pain Syndrome, a Myofascial Pain Syndrome affecting the right shoulder and arms as a consequence of work. He did not think she had Thoracic Outlet Syndrome and she did not have Complex Regional Pain Syndrome Type 1.
275 Dr Blombery thought management should be with multidisciplinary therapy for chronic pain, best provided at a pain management clinic. He considered the plaintiff was then unable to work because of the severity of the pain but, hopefully, if she could have appropriate treatment and the pain was reduced, she may be able to return to work at least on a part-time basis. He then thought the prognosis was moderate to poor.
276 The plaintiff had a Ketamine Infusion in October 2012. On review by Dr Blombery in December 2012, the plaintiff rated her pain as 6 out of 10 and she was coping better.
277 In February 2013, the pain had increased to 9 out of 10, and, as of 22 March 2013, reduced to 3 out of 10 with medication.
278 When seen on 1 May 2013, the plaintiff rated the pain as 5 out of 10 and she remained on Norspan Patches.
279 Dr Blombery then thought the plaintiff had ongoing features of a non-specific Pain Syndrome affecting the right shoulder and arm as a consequence of her work. She required intermittent Ketamine Infusions and opiate drugs to control her pain. He thought her prognosis for overall recovery was very poor.
Video surveillance
419 Exhibits 1 to 3 were films of the plaintiff playing netball on three different days: 16 July 2014, 9 September 2015 and 3 September 2014.
420 Exhibit 4 was the YouTube footage of the plaintiff performing in the Boy from Oz on 10 October this year.
Facebook and photographs
421 There were a number of pages/photographs from the plaintiff’s Facebook page and other photographs which were relied upon by the defendant and put to the plaintiff in cross-examination as summarised earlier in this judgment.
Claim documents
422 In an Occupational Health and Safety Incident and Injury Hazard Report dated 4 September 2008, Camilla Irwin, team leader, noted the incident in relation to the plaintiff. The plaintiff complained of dizziness and headache, and also mentioned side-effects of medication (Steroid) for neck/arm injury. The injury was described as strain pulled muscled.
423 In terms of the event, the plaintiff mentioned her neck injury may have been caused by a combination of netball, theatre rehearsal and work (three activities in one day). The plaintiff complained of headache and dizziness. Prior to her complaint, the plaintiff had come to work wearing a neck brace.
424 Ms Irwin confirmed the plaintiff said the injury may have been caused by a combination of three factors.
425 On 22 October 2010, Allianz wrote to the plaintiff advising that she was no longer entitled to weekly payments for medical and like expenses because her incapacity was no longer work related. That decision was based on the report of Dr Mary Wyatt and Dr Alan Jager, psychiatrist.
Overview
426 The first issue for determination is whether the plaintiff’s keyboarding duties with the employer were a cause of her right upper limb injury.
427 Counsel for the defendant submitted that I could not be satisfied as to causation given the plaintiff’s uncertainty as to the circumstances of her injury and also medical opinion that an injury of the nature suffered by the plaintiff could not be related to her work duties.[186]
[186]T8, T214
428 Although she initially was unsure as to the exact cause of her injury and gave a two other possible causes when she first reported it to the employer in September 2008, the plaintiff did mention work to her Team leader when describing the event that caused her injury.
429 Further, earlier when the plaintiff attended Dr Krigsman on 5 August 2008, in addition to his note “slept in motel two weeks ago”, he also noted “changing job where more keyboard work.”
430 It is unclear whether the plaintiff suffered injury on the said date or by a gradual process leading up to that date. The details in the claim form signed by her on 29 August 2008 suggest that the injury was of sudden onset on the said date, whereas subsequent histories to doctors have been of the progressive development of pain over a period of time.[187]
[187]T215
431 Whatever be the true situation, I accept that the plaintiff’s keyboarding duties were a cause of her injury.
432 In terms of the second limb of the causation issue, whilst there is a difference of opinion medically, I accept the plaintiff’s right upper limb injury resulted from her keyboarding duties. The preponderance of medical opinion is largely to this effect, with Dr Wyatt and Dr Baker having a different view.
433 I accept the plaintiff suffered a compensable injury to her upper right limb/shoulder as a result of her work duties with the employer over a four-month period.[188]
[188]T233
434 The role employment plays in the plaintiff’s present condition some seven years after injury is in dispute.
435 It was conceded there was certainly support for the view the plaintiff’s condition originally had an organic basis but it was submitted by counsel for the defendant that was no longer the situation. Whilst it was not submitted the plaintiff’s condition lacked a substantial organic basis at the present time, counsel for the defendant submitted that those doctors upon whom the plaintiff relied have based their opinions on inaccurate histories from her as to her true level of activity.[189]
[189]T9
436 I am mindful of what was said by the Court of Appeal in Dordev v Cowan[190] in relation to the plaintiff’s credit in this type of case. As Chernov JA said at paragraph 14 of his judgment, a plaintiff’s credibility is relevant not only to whether his evidence should be accepted but it is also relevant to the reliability of the medical evidence because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.
[190][2006] VSCA 254
437 Accordingly, in this case what appear on their face to be medico-legal opinions supportive of the plaintiff’s claim must be looked at in the light of my views as to the plaintiff’s credit.
438 I agree with a number of medical practitioners who have commented that this is an extraordinarily difficult case. Investigations have not demonstrated any specific pathological process.[191]
[191]T217
439 The consensus of medical opinion to the extent the medical practitioners have been able to make a diagnosis, suggests there is some physical component to the plaintiff’s right upper limb condition but most doctors are unsure of the diagnosis.
440 There are a range of views in this regard including soft tissue injury, acute wry neck, Thoracic Outlet Syndrome, pain sensitisation, a Myofascial Pain Syndrome, a Chronic Pain Disorder and the two other diagnoses described by Mr Hjorth.
441 Whatever be the correct diagnosis, the injury which gives rise to the impairment is not itself the subject of evaluation. It is the impairment which is to be assessed as being or not being serious.[192]
[192]Richards v Wylie (2000) 1 VR 79 at 86 per Winneke P
Pain
442 As Maxwell P said in Haden Engineering v McKinnon:[193]
“The evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain (both in court and to doctors). “
[193](2010) 31 VR 1 at paragraph [11]
443 In the witness box, the plaintiff described her pain had recently worsened, rating it at 9 out of 10, despite medication. She has pain in the right neck/shoulder area, with throbbing pain down between the spine and shoulder blade and pain on the inside of her upper arm. She occasionally experiences tightness across the top of her right shoulder. She also experiences tingling down her right arm to her fingers.
444 The plaintiff described the nature of her pain in similar terms to Dr Sillcock in May this year, although then rating it at 6 out of 10 and 9 out of 10 on bad days.
Treatment
445 The plaintiff has been under the care of the Practice for her work injury since August 2008. Dr Krigsman has been her principal treater.
446 In 2010, the plaintiff was referred to neurologist, Dr Heywood, who suggested conservative treatment. He had difficulty diagnosing her condition and referred her to Dr Blombery.
447 Dr Blombery has continued to treat the plaintiff over the last five years, carrying out infusions at various stages with limited success. He also now prescribes Durogesic patches.
448 In late 2008, the plaintiff had some physiotherapy with Simon Wigg. She next had physiotherapy from Angelo Ratachandra at Genesis in 2010. There is no report from that practitioner. He apparently advised the plaintiff to undertake activities such as netball.
449 The plaintiff also attended a pain management program in Caulfield over a number of months in 2012.[194] There is no report available from that organisation.
[194]T84
450 The plaintiff’s treatment has been largely medication based, being prescribed a range of significant medication over the years.
451 Whilst counsel for the plaintiff relied on this intake as indicating seriousness,[195] counsel for the defendant submitted the taking of medication did not necessarily found a serious injury. It was submitted that the plaintiff’s intake seems to have had no effects and, if anything, her condition is worsening. Further, the plaintiff’s medication is prescribed on the basis of subjective pain reporting and what her doctors understand to be the extent of her disability based on her history.[196]
[195]T242, Kelso v Tatiara Meat Company Pty Ltd (2007) VSCA 267 at 199 per Dodds-Streeton JA
[196]T222
452 In addition to pain and the need for treatment, the plaintiff claims her injury has resulted in significant restrictions in all facets of her life.
453 The reliability of the plaintiff’s evidence in this regard is obviously an important consideration when determining whether the claimed consequences are serious and long term.
454 In my view, the plaintiff’s demonstrated capacity is at odds with her complaint of almost disabling pain, requiring her to frequently spend 20 hours a day in bed.
Credit
455 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[197]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[197](2010) 31 VR 1 at paragraph [12]
456 Counsel for the defendant submitted the plaintiff was an intelligent young lady who presented confidently and understood questions and gave her answers accordingly. However, it was submitted the plaintiff gave many of her answers in a manner which was not candid or frank. She was cagey with a lot of answers, not wanting to commit to times and places or her involvement in various activities unless pressed to do so. It was submitted some of the plaintiff’s evidence was “like drawing teeth”. She was very reluctant to make concessions about her involvement in a number of activities.[198]
[198]T208
457 Counsel for the plaintiff submitted the plaintiff should be accepted as a truthful and reliable witness in all material respects. Any lack of disclosure as to her involvement in musical theatre was not relevant. Her earning capacity was not in live theatre – “she is not Julie Andrews”. It was submitted the plaintiff’s involvement in theatre was far from professional.[199]
[199]T230
458 It was submitted it could not be suggested that the plaintiff, her father, and husband, have “concocted some sort of story to live a lie for seven years” at a time which would be regarded as the most exciting time of the plaintiff’s life.[200]
[200]T231
459 Whilst the plaintiff might play netball or be involved in theatre productions, she later pays for it with increased pain. It was submitted the clinical records speak for themselves. The plaintiff’s general practitioner relies on not only what she tells him, but clinical examination.[201]
[201]T233
460 This is a very unusual case where the issue of the plaintiff’s credit plays a major role.
461 As I indicated during the hearing, I find it impossible to reconcile the plaintiff’s claimed level of disability (supported by her family members on affidavit) having to spend 20 hours a day in bed, requiring a special chair and strong medication with her ability to play netball and engage in musical theatre and related activities ever since her injury.
462 The following are my reasons for reaching this conclusion.[202]
[202]Woolworths Ltd v Warfe (2013) VSCA 22 at paragraph [139]
The Plaintiff’s affidavits
463 There was no mention of the plaintiff’s significant involvement in musical theatre in her first affidavit. In her second affidavit, there was one paragraph in which she gave the impression she had returned to musical theatre only this year and on a very limited basis.
464 I do not accept the plaintiff’s explanation that there was little detail in her recent affidavit in this regard as she was updating her earlier affidavit. Lack of mention by the plaintiff of her activities in this area is also a constant theme that flows through numerous histories to doctors.
465 The plaintiff has attended various doctors whilst engaged in theatre productions. The most recent examination by Dr Serry in October 2015 was only days before the commencement of the Boy from Oz and the plaintiff had been attending rehearsals for some months. There was no mention in his report of this activity.
466 I do not accept that the plaintiff has told doctors, such as Dr Blombery, of her involvement in musical theatre and that they had simply failed to note it in their reports.
467 The plaintiff totally played down her involvement in musical theatre.[203] Clearly, her affidavit is not an accurate representation of what have in fact been ongoing, regular performances since her injury. Further, that involvement extends beyond standing singing in a chorus, as her affidavit suggests. In addition to singing, her performances have at times involved choreographed movement and limited dancing – such as 30 seconds of tap dancing in the recent production of Boy from Oz.
[203]T211
468 The plaintiff gave the impression that she did not do any physical activity or dancing in the various productions. In my view, that evidence is simply not consistent with the level of activity shown on film and in the various photographs which were tendered.[204]
[204]T212
469 The plaintiff also did not disclose her role as either the associate music director or musical director, the latter, which I accept, would be a task requiring real organisational skills and effort.[205] Further, she has not disclosed her membership of the Barbirra Committee, a role she has held for the last two years.
[205]T212
470 Obviously there was no mention in the plaintiff’s affidavit of her nomination for a Lyrebird award for one production. When issue was raised, the plaintiff attempted to minimise the significance of the nomination, stating that it was by default and not of any real significance.
471 Even when faced with the full details of her musical theatre involvement, the plaintiff did not accept that such involvement was extensive stating – maybe it was for some people, but not for her.[206]
[206]T103
472 Whilst counsel for the plaintiff agreed with the different picture painted by the affidavit,[207]it was submitted this situation could be explained by the fact the plaintiffs do not draw their own affidavits. It depended often what questions they were asked.[208]
[207]T243
[208]T244
473 Whilst lawyers may make errors at times in a plaintiff’s affidavit, that is not the situation in the present case, where there is clearly non disclosure by the plaintiff of a number of significant, relevant matters.
474 I accept the plaintiff has retained the ability to rehearse and perform and commit herself to musical theatre and that this situation will continue, the plaintiff having recently auditioned for two further productions. Her involvement in musical theatre since her injury demonstrates a considerable ability to concentrate, to work with others, and be reliable and attend rehearsals.[209]
[209]T226
475 When the extent of her theatre involvement was put to the plaintiff, she repeatedly attempted to play down her role.
476 I do not accept productions were in any way modified to cater for any physical disability on the plaintiff’s part. There is no evidence from fellow cast members to this effect.
477 I do not accept the plaintiff was able to lift her arm as shown in the 2009 production of Oklahoma because a fellow chorus member was supporting it.[210]
[210]T132
478 Although not a major point, in cross-examination, the plaintiff denied she would be able to carry a basket in her right hand. When shown doing so in a production in July 2011, she maintained she could hold a basket then but not now.
479 Whilst the plaintiff suggested she could not do some of the routines required in the recent production of the Boy from Oz held in October 2015, she was shown to move without any restriction in the film, shown at one time lying on the floor kicking up her legs. Further, she conceded she did a tap sequence for 30 seconds in that production.
Singing lessons
480 The plaintiff’s affidavits make no mention of her having singing lessons. Whilst she told some doctors of the lessons, the plaintiff totally understated the high standard she has achieved to date and her intention to do further study.[211]
[211]T213
481 In cross-examination, and in answer to my question, the plaintiff suggested she undertook lessons for her enjoyment and was not formally assessed. The true situation was however that the plaintiff had obtained a “B” in Grade 7 of the Australian Music Examination Board (AMEB), a good result at a relatively high standard.
482 The plaintiff then played down the significance of that grade, suggesting everyone gets a “B”. I do not accept this is the case.
483 I am not satisfied, in the absence of supporting investigations or medical explanation, why the plaintiff lacks the dexterity to play the piano and do other activities such as cutting her food when she can play netball and dance without any apparent restriction.[212]
[212]T223
484 Nerve-conduction studies were equivocal, and Dr Wodak thought there was no organic basis to explain the lack of dexterity.
485 I do not accept the plaintiff has the level of difficulty dressing which she describes. She had no problem putting on her jumper in the confined space of her driver’s seat as shown on the video of September 2014.
Teaching
486 There is no mention in the plaintiff’s second affidavit of her doing any singing teaching herself when this has been the case since earlier this year.
487 The plaintiff has been teaching one young child singing. Lessons are weekly and the plaintiff is paid $15 per hour. There are plans for her to take on another singing student. The plaintiff also tutors a special needs child in her school work.[213]
[213]T225
488 With this level of activity and the apparent ability to move without restriction playing netball, I do not accept the plaintiff has to spend 20 hours a day in bed because of pain.
489 This situation was first mentioned by the plaintiff in her second affidavit, although she maintains this has been the case for some years.
490 Whilst Dr Krigsman noted at various times that the plaintiff had difficulty sleeping and at other times she was sleeping a lot, he did not note problems of the magnitude now described by the plaintiff in this regard.
Work
491 The plaintiff deposed that she had last worked in March 2010.
492 However, the plaintiff did some work for Tupperware, although only for a short time and with difficulty.
493 The plaintiff has also done voluntary work for Theatre People and other organisations, setting up websites and taking photographs for various productions and publications. Whilst the plaintiff stated she had done this voluntary work for a couple of months, it seems she was involved with Theatre Works from late 2010 to perhaps September 2011.[214]
[214]T34
494 The plaintiff was photographed doing some filming for Theatre People in February 2011. She was shown sitting on a normal chair whilst doing so – a totally different presentation to the young woman in a special chair in Court.[215]
[215]T209
Netball
495 The plaintiff mentioned netball in her two affidavits. She described her pre-injury level as Division One and post-injury, Division Six. She described being rarely able to play a full game without pain and using her left arm more when playing.
496 There was lengthy cross-examination about netball, during which the plaintiff gave the impression she had difficulty moving her head, using her arms to throw and catch and she generally played in a very restricted fashion.
497 The plaintiff was not shown in the videos having any of these difficulties she described.[216] As I indicated during the hearing, the plaintiff appeared to play normally, in a manner similar to other players on the court. She used both hands to catch and throw the ball. She raised her arms to signal to teammates at various times and she could run up and down the court freely.
[216]T223
498 It was not apparent that the plaintiff required any special breaks because of her right upper limb condition. She participated in the games like every other player. At times, the plaintiff contacted other players.
499 Further, I do not accept that the plaintiff stood back in games, save for a couple of instances where she was playing in attack and the ball was down the other end of the court.
500 I do not accept the submission by counsel for the plaintiff that the films were taken of the plaintiff on a good day and she “paid for it afterwards”.[217] Netball is an activity the plaintiff enjoys and participates in regularly. She could not play at all if she had the level of disability she describes.
[217]T236
501 The failure to show the film to the defendant’s doctors for comment does not weaken the defendant’s case in these circumstances.[218]
[218]Church v Echuca Regional Health (2008) VR 566 at 100
502 The description of netballing in the plaintiff’s viva voce evidence was totally inconsistent with the film. I accept that the plaintiff appeared to be sociable with her teammates, smiling and enjoying the game. She was not sitting there grimacing.
503 The plaintiff did not disclose at any time that she played mixed netball. That evidence came from her husband in cross-examination.
504 I find it quite extraordinary that with her claimed level of disability, the plaintiff would even attempt the more physical game of mixed netball, let alone play for a season of ten games as her husband described. [219]
[219]T214
505 The plaintiff’s involvement in netball seems to be on the advice of her physiotherapist at Genesis. There is no report from him explaining the basis of this advice.
506 As Dr Blombery said, it is illogical the plaintiff can play netball and not be able to work. Dr Sillcock had concerns about the plaintiff’s ability to play netball given her described extremely high level of pain and restriction. Mr Klug also commented that he found it a little hard to understand how, if her symptoms were as severe as she alleged, the plaintiff was able to participate in activities such as playing netball on what appeared to be a fairly regular basis.
507 The plaintiff also claims she no longer umpires because of her arm injury. Umpiring was not mentioned in her affidavits.
508 The plaintiff obtained her umpire’s badge last year. It is unclear when she ceased umpiring but it appears she was still involved in June this year.
509 I do not accept the plaintiff’s evidence that it is as difficult umpiring as it is playing. Clearly, with umpiring, there is not the throwing and catching required, or the contact with other players as when playing.
510 I cannot understand the plaintiff’s evidence that she has more difficulty walking than she does playing netball. The need for a sling when walking when the plaintiff is able to play netball is also nonsensical.
511 In my view, the plaintiff’s arm injury has not significantly affected her ability to socialise. She still enjoys the company of others at netball and theatre-related activities and she has been able to form a relationship with her husband.
512 The plaintiff would not be able to engage in the range of activities set out above if her pain was at the level she describes. It Is not just a matter of her trying to get on with her life and forcing herself to get out of the house as she described.[220] It is not a case of good days and bad days as the plaintiff’s counsel submitted.[221]
[220]T147
[221]T233
513 I do not accept that the plaintiff simply gets out of bed four hours a day, does one activity and goes straight back to bed. That is totally implausible.
514 Whilst both the plaintiff’s husband and her father support the plaintiff’s claim, both significantly understated her involvement in musical theatre and other musical-related activities that the plaintiff also did not mention in her affidavits.
Loss of earning capacity
515 The plaintiff deposed that she intended to have a career in film and television. Earnings in this type of employment range from $62,000 to $80,000.[222]
[222]Kaye Angel, report dated 7 September 2015
516 When interviewed by Work Focus in 2010, the plaintiff indicated her long-term goal was to work as a secondary school student specifically teaching media, music or drama.
517 The primary submission by counsel for the plaintiff was the plaintiff had no realistic work capacity at all, given her problems with reliability and attendance due to pain that she had therefore suffered the requisite loss of 40 per cent on a permanent basis.
518 Given the level of activity engaged in by the plaintiff and also my findings as to her credit, I do not accept this is the case.
519 Medical practitioners who have found the plaintiff has no work capacity or capacity for light work on reduced hours do not have the full picture of the plaintiff’s lifestyle.
520 Whilst the plaintiff was certified unfit for all work in 2008, she continued her involvement in Calamity Jane, having only two weeks off for physiotherapy. The following year, when under the same certification, she performed in the production of Oklahoma.
521 Performances have continued at other times when Dr Krigsman has certified the plaintiff unfit for all work and when the plaintiff has seen other practitioners and not advised them of this activity.
522 Musicals involve physical movement, concentration, memory and performance. Lines and lyrics need to be learned. Commitment is required to other cast members to attend for rehearsals and performances. The plaintiff has been able to continue her involvement with these demands and enjoy the activity.
523 During this time, the plaintiff has also been playing netball.
524 In all the circumstances, I am not satisfied that the plaintiff has a loss of earning capacity of 40 per cent on a permanent basis.
525 The plaintiff has demonstrated an ability to study at a high level and achieve excellent results in 2010 when not involved in theatre. I can see no reason if she chose to study full time, taking time off theatre if necessary, she could not complete her Masters degree and obtain employment in teaching or a related field.
526 Accordingly, I am not satisfied the plaintiff has discharged the onus in terms of rehabilitation and retraining pursuant to ss(g) of the Act.
527 Taking into account all the evidence, I am not satisfied the plaintiff has a “serious injury” in relation to either pain and suffering or loss of earning capacity.
528 There was an application in the alternative pursuant to clause (c) for a psychiatric impairment.
529 As counsel for the plaintiff conceded in opening, from a psychiatric point, the plaintiff’s Adjustment Disorder was very mild,[223] but if it was going to be suggested the plaintiff was suffering from a Chronic Pain Syndrome which was non-organically based, then it was submitted the application was properly brought pursuant to clause (c).[224]
[223]T3
[224]T4
530 The defendant did not seek to say the plaintiff had a psychiatric component to her condition. It was submitted that it seemed clear she really had no psychiatric condition at all. She had no support from an independent medical examiner for any significant psychiatric condition, and she had not had any psychiatric treatment.[225]
[225]T221
531 Whilst there has been a diagnosis of a Chronic Pain Syndrome by some practitioners, in my view, any consequences thereof are not severe.[226]
[226]Veljanovska v Socobell Oem Pty Ltd (supra)
532 The plaintiff has only had limited counselling in 2011 and she has not been referred to a psychiatrist.
533 As was stated in Papamanos v Commonwealth Bank of Australia:[227]
“… There have been no symptoms and consequences seen in psychological disorders at the more severe end of the spectrum, including hospitalisation, significant psychiatric treatment and medication, and the more serious symptoms including suicidal ideation or attempts, and psychotic symptoms. The word ‘severe’ in the definition of the Act has been held to be a word of stronger force than ‘serious’.”[228]
[227][2013] VCC 1491
[228]at paragraph [68] per Judge O’Neill
534 Accordingly, that application is also dismissed.
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