Martins v Linfox Armaguard Pty Ltd

[2011] VCC 1363

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE

CIVIL DIVISION

Case No. CI-10-01453

LINDA MARTINS	Plaintiff
v
LINFOX ARMAGUARD PTY LTD	Defendant

---

JUDGE:	HER HONOUR JUDGE HOGAN
WHERE HELD:	Melbourne
DATE OF HEARING:	31 March and 1 April 2011
DATE OF JUDGMENT:	17 October 2011
CASE MAY BE CITED AS:	Martins v Linfox Armaguard Pty Ltd
MEDIUM NEUTRAL CITATION:	[2011] VCC 1363

REASONS FOR JUDGMENT

---

Catchwords: Application pursuant to s.134AB of the Accident Compensation Act 1985 for leave to bring proceedings for damages for pain and suffering and loss of earning capacity – issue as to the extent to which plaintiff’s symptoms of injury were psychologically, as distinct from physically based – issue as to severity of consequences of impairment of injury.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A J Keogh SC	Slater & Gordon
with Mr J. Valiotis
For the Defendant	Mr S A Smith	Wisewould Mahony
HER HONOUR:

1 The plaintiff, Mrs Linda Martins, applies pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for leave to bring proceedings for the recovery of damages. She claims that on 18 January 2006 she suffered an injury arising out of or in the course of or due to the nature of her employment with the defendant and that this has given rise to a permanent impairment or loss of function to her back which is a “serious injury” within the meaning of paragraph (a) of the definition in s.134AB(37) of the Act. The plaintiff claims that the physical impairment has given rise to consequences which are serious with respect to pain and suffering and also with respect to loss of earning capacity.

BACKGROUND

2          The plaintiff is presently aged 59 years. She was born in Portugal on 26 April 1952 where she had worked in a factory as a sales assistant, and also assisted her husband to run a restaurant/café/gift shop business. She and her husband migrated to Australia in 1988 and they have two adult sons and two grandchildren.

3          After her arrival in Australia, the plaintiff worked at Myer for six or seven years. In the early 90s she suffered an injury to her middle back area causing her to have a period of some months off work and then returned to work on light duties. However, she ultimately ceased work at Myer because of her middle back pain. She was out of the workforce for about three years during which time her pain gradually resolved. In the late 1990s she commenced attending TAFE to study English and computing, but in 1996 was diagnosed with Meniere’s disease. This, according to her affidavit sworn on 1 December 2009, affected her balance and concentration, and she did not feel able to pursue her study.

4          On 13 January 1999 the plaintiff commenced work with the defendant as a cash processor on a casual basis. This apparently involved her counting, loading and unloading bags of cash which could weigh up to 20 kilograms. In 2002 she suffered a mild heart attack which apparently necessitated her being in hospital for one week, but did not require any ongoing medication. She returned to work sometime later in 2002 but was left with some angina, so in 2003 decided that she would work three days per week only on Monday, Tuesday and Wednesday. This was to involve a total of 23 hours per week. However, an examination of the records of her hours worked between February 2003 and February 2005[1] reveals that, more often than not, she worked in excess of 23 hours per week. Based on her hourly rate of pay of $14.16, it appears that, quite often, she worked another seven hours or 12 hours per week and, on some occasions, up to a total of 40 or even 50 hours per week.

[1]             PCB 131-2

5          On 18 January 2006 it was the birthday of the plaintiff’s supervisor at work. Some of the staff had brought in a cake for him and sang “Happy Birthday”. The supervisor went around to each of the staff in turn to thank them and give them a hug and a kiss. He approached the plaintiff and grabbed her under the arms and lifted her off the floor, apparently to hug her. He then tripped on his kit bag and dropped her so she fell onto the concrete floor landing on her lower back and buttocks. She rested for a short time, but then went on to work for approximately one and half hours. She took some Panadol, but despite doing so, vomited because of the pain. That day, she went to Altona Meadows Family Medical Clinic. Her usual general practitioner, Dr Hampton, was not present and she saw Dr Chan who found mild tenderness of the mid lumbar extensors and made a diagnosis of soft tissue injury and prescribed Panadeine Forte.

6          The plaintiff rested over the following days, but her back pain did not improve. On 23 January 2006 she saw Dr Hampton complaining of pain in her coccygeal area. An x-ray was taken, the report of which stated, “There is a

irregularity at the distal sacrum and sacro-coccygeal junction but I see no

definite fracture line and this may simply represent a normal variant.” She continued to be prescribed Panadeine Forte. She returned to work on light duties and reduced hours some weeks later. She was on and off work until mid-August 2006, when she ultimately ceased work because of the back pain she was suffering.

7          In February 2006 the plaintiff was referred to Mr Doig, orthopaedic surgeon, who thought that, despite the radiological evidence, she may, in fact, have suffered a fracture at S4. He arranged for some cortisone injections into the spine, but these did not help. She was later referred to Mr Kavar, neurosurgeon, for an opinion in November 2006. He thought her pattern of pain was more in keeping with sacroilitis-type pain, rather than pain from nerve root entrapment or a fracture, and thought that she may benefit from a pain management program.

8          In 2007 the plaintiff was referred to a rehabilitation and pain specialist, Dr Courtney, who thought that a bone scan possibly showed some increased uptake in the sacro-iliac joints bilaterally. He thought that at least some of her pain was coming from these joints and it would be appropriate to inject them to assess their overall contribution to her pain, but thought that she had also developed a chronic pain syndrome. He also noted that she was known to have an annular tear in her L5/S1 disc so it might be reasonable for her to consider a caudal epidural injection to see whether this would help with her leg pain. It is unclear from the material before me whether the plaintiff ever underwent the injections proposed by Dr Courtney in 2007. However, in her oral evidence the plaintiff stated that in 2008 she did undergo an epidural injection which gave her some temporary relief.[2]

[2]             T 47

9          Unfortunately, due to migraine headaches with nausea and vomiting and vision disturbance, which were associated with her Meniere’s disease, she was unable to continue with the pain management program.[3] However, later, in 2009 she did engage with a multidisciplinary program, including exercise, physiotherapy and hydrotherapy under Dr Courtney’s direction. Meanwhile, in April 2009 she was referred to Dr de la Harpe, orthopaedic surgeon, who thought that she was suffering from mechanical back pain, but was not a candidate for surgery. Her poor response to conservative management made him think that she was going to be limited in her capacity for employment in the future.

[3]             T 26-27

10        The plaintiff has continued to see her general practitioner, Dr Hampton, on a regular basis for low back pain and pain referred into both legs, particularly her left leg. Over the years, she has had trials of different medication which currently includes 10mg of Endep at night, and six to eight Panadeine Forte during the day. This medication has resulted in gastro-intestinal symptoms requiring a prescription of 40mg of Nexium per day. She suffered a flare-up of pain which resulted in her being referred to Dr de Graaff, rehabilitation physician, in August 2010. He tried increasing her dose of Endep to 50mg at night, but this had the effect of her becoming either agitated or too drowsy. He then trialled her on Norspan transdermal patches, but these made her dizzy and weak. He then trialled her on Fentanyl transdermal patches, but these gave her side effects of headaches and nausea, so she reverted to utilising the Endep at night with the option of increasing it from 10 to 25mg if her pain was severe. Dr de Graaff thought that she showed features consistent with chronic regional pain syndrome type 1 with sympathetic overactivity which flowed on from intradiscal injuries, sustained during the fall on 18 January 2006, and mechanical back pain. He thought she would continue to require some form of analgesia, some neuro-modulation with medications and intermittent physiotherapy and massage to keep her as active as possible. He believed that she had a guarded prognosis and a permanent incapacity.

11        The plaintiff continues to take Panadeine Forte and Endep as previously described. In February 2011 she underwent a further epidural injection. Save that this was recommended by her general practitioner, Dr Hampton, it is unclear who administered the injection. The plaintiff, in paragraph 4 of her affidavit sworn on 17 March 2011, stated that the injection caused her to faint and she was ill for two weeks afterwards and, hence, did not attend Dr de Graaff for review. The plaintiff’s evidence is that she continues to suffer pain in her lower back which is constant but varies in intensity, and pain in her legs, particularly her left leg. Up until recently she had seen a physiotherapist regularly, but could not afford to keep up such attendances, so now does home exercises taught to her by the physiotherapist. She states that the pain causes her difficulty in sleeping and restricts her capacity to stand, sit or walk for any substantial period of time.

THE ISSUES BETWEEN THE PARTIES

12        The defendant does not dispute that the plaintiff sustained an injury to her lower back in the fall on 18 January 2006 and has apparently continued to pay weekly payments of compensation and medical expenses. However, the defendant says that the diagnosis of the plaintiff’s injury has never been clear and she has now apparently developed a chronic pain syndrome such that she cannot satisfy the Court that the symptoms with which she presents are physically as distinct from psychologically based. Moreover, the defendant submits that, even if the plaintiff can demonstrate that her current symptoms have a sufficient physical cause, she has not suffered consequences of impairment which are serious, particularly having regard to surveillance film which shows her walking normally, and in the company of one of her grandchildren.

13        The plaintiff asserts a total incapacity resulting from the injury and that, although there are non-organic features present, such as depression, the plaintiff’s total incapacity is the result of a physical injury which gives rise to psychological sequelae.

THE MEDICAL EVIDENCE

Dr Hampton, treating general practitioner

14        In his first report, dated 13 September 2006, Dr Hampton noted that the plaintiff’s presentation to Dr Chan on 18 January 2006, previously referred to, the complaint of pain in her coccygeal area to himself on 23 January 2006, and the x-ray, also previously referred to in paragraph 6 above. He noted minimal improvement over the first half of 2006, an increase in pain following attendance at a rehabilitation program on 31 May 2006, and that, in the week leading up to 7 August 2006, she had worked 18 hours and was barely surviving. She had difficulty walking and was carrying her left leg and sitting only on her right buttock and he certified her as unfit for work on 18 August 2006. He ordered a CT scan which showed that there was a small left paracentral disc protrusion at L5/S1 producing mild compression of the traversing left S1 nerve root and also mild compression of the left anterolateral theca. Degenerative gas was also noted within the L3/4 disc consistent with internal degeneration. Dr Hampton thought, at that stage, that the diagnosis was unclear, but most likely was a prolapsed lumbar-sacral disc. He thought that her prognosis was unclear.

15        In his report dated 27 September 2008, Dr Hampton noted that MRI scans taken on 13 October 2006 and 22 September 2008 showed a shallow left paracentral posterior disc protrusion at L5/S1 abutting the ventral aspect of the thecal sac and the origin of the S1 nerve root without obvious nerve root compression or displacement. Also at L4/5 there was a small left paracentral posterior annulus tear but no disc protrusion or neural compression.

16        He noted varying opinions from specialists as to the cause of the plaintiff’s pain but said that her symptoms and disabilities had remained remarkably constant, albeit that there had been a small improvement in her sitting and standing tolerance. Dr Hampton said the main finding was of buttock tenderness and there were no objective findings to explain this. However, he remained of the opinion that her distress was real and that she was unfit for work. He continued to prescribe Endep 10mg nocte, Nexium 40 mg bd and Panadeine Forte 2 quid prn.

17        In his final report dated 27 September 2010, Dr Hampton said that he still had no diagnosis for the plaintiff’s back injury but considered all back movements would be restricted in the future. He did not expect the plaintiff to resume her pre-injury duties and thought that, because of pain, it was unlikely that she would be able to perform any duties in the foreseeable future. He stated that, as a result of pain, she is also severely restricted in social, domestic and recreational activities.

Mr Doig, treating orthopaedic surgeon

18        In brief reports dated 16 February 2006 and 10 April 2006 Mr Doig stated that although the MRI scan did not confirm any fractures in the sacrum, clinically he felt that that was the most likely diagnosis. In February he had expressed concern that she was still very sore some four weeks after the injury, although he did not think that tingling and numbness down the leg was of great concern. By April 2006 he noted that she was a lot better but had still not completely settled down. Apparently he has not seen the plaintiff since this time.

Mr Kavar, treating neurosurgeon

19        Mr Kavar saw the plaintiff on one occasion only, on 16 November 2006. He noted that, since the accident at work, she had continued to be troubled by lumbosacral pain radiating into both buttocks and had pins and needles, numbness and tingling down her left leg, which went primarily to the dorsum of her left foot, and this was present to a lesser degree in her right leg. On examination he noted a normal gait with straight leg raising of 90 degrees and global altered sensation in her left leg, for which he could not find an explanation. Thus, he concluded that there was no obvious permanent neurological impairment, but felt that her pattern of pain was much more in keeping with sacroilitis-type pain rather than pain from nerve root entrapment or a fracture.

20        In a later report, dated 30 June 2009, to the plaintiff’s solicitors, Mr Kavar noted that although he had not seen the plaintiff again, her MRI revealed a minor disc bulge, and a bone scan revealed increased uptake in both her sacro-iliac joints. The latter suggested that a significant component of her pain was from inflammation of the sacro-iliac joints and he felt that her main injury was secondary to the sacroilitis. He noted that the pain management specialist, Dr Courtney, had suggested that she was suffering from a chronic pain syndrome over and above the pain from her sacroilitis and, hence, he thought her prognosis was guarded and she was likely to have long-term pain issues but was not a candidate for surgery.

Dr Courtney, treating pain management specialist

21        The plaintiff was referred by her general practitioner to Dr Courtney in or about February 2007. As previously mentioned, he considered that an MRI scan showed a small left paracentral bulge at L5/S1 which did not appear to be contacting the nerve roots. However, he thought that the bone scan showed some increased uptake in the sacro-iliac joints bilaterally.

22        On examination, he noted that the plaintiff could not stand on heels and toes and had markedly reduced range of lumbar spinal movement, particularly flexion. She had an equivocal slump test on the left which produced some anterior thigh pain and back pain. Straight leg raising was 90 degrees bilaterally when sitting but 80 degrees on the right and 60 degrees on the left when lying. She had a collapsing weakness in all muscle groups in the lower limb and produced global sensation in the left leg in the L2-/S1 dermatomes. She had a positive “Faber” bilaterally more pronounced on the left than right, a positive “pump” (sic) test bilaterally, more pronounced on the left than the right, and a positive shear test bilaterally, more pronounced on the left than the right. Her back was generally sensitive with static allodynia extending from the neck to the sacrum, although her sensitivity was greatest over the sacro-iliac joint on the left and less so on the right.

23        His opinion was that at least some of her pain was coming from her sacro-iliac joints and he thought that it would be appropriate to perform sacro-iliac injections to assess their contribution to her overall pain. However, he thought that she had developed a chronic pain syndrome with increased pain and sensitivity well outside the original area of injury. He sought WorkCover’s approval for sacro-iliac joint injections. As previously mentioned, it is unclear whether the plaintiff underwent any such injections in 2007.

24        The most recent report from Dr Courtney is dated 6 November 2008. He notes that, although the plaintiff was due to participate in a pain management program at the Royal Melbourne Hospital Clinic, her Meniere’s disease prevented this, and it was planned that she should take part the next year. As previously mentioned, Dr Courtney did say that she was known to have an annular tear in her L5/S1 disc and it may well be reasonable to consider her for a caudal epidural injection to see whether this helps with her leg pain. He indicated that he would write to the insurer to request approval for this. There is no further report from Dr Courtney.[4]

Mr de la Harpe, treating orthopaedic surgeon

[4]             As previously mentioned, the plaintiff herself gave evidence of having had an epidural injection in 2008, which provided temporary relief. Also in her affidavit sworn on 17 March 2011 she stated that she had had a further epidural injection in February 2011, which caused her to be ill for two weeks. It seems that she also did attend a multidisciplinary pain management program at some stage in 2009 but there is no report of how she fared.

25        The plaintiff was referred to Dr de la Harpe by her general practitioner Dr Hampton and it appears that he reviewed her on 28 January 2009, having apparently previously seen her on one occasion in September 2008.

26        In his report dated 8 April 2009, he noted that the plaintiff found her back pain and buttock pain was aggravated by sitting and walking and that she also complained of some non-dermatomal leg pain, numbness and tingling. She had started seeing Dr Courtney and was in the early stages of a pain management course and had had an injection into the S1 joint and an epidural which had not helped. He thought that her gait, stance and neurology in her lower limbs were normal on the day of review and MRI, CT and bone scans were normal for her age. He thought there was no indication for surgery and did not feel that further injection procedures would be of any benefit. He diagnosed her as suffering mechanical back pain which seemed to be linked to when she was dropped to the floor at work. He thought that her capacity for manual work was extremely limited and her capacity for work in general was limited by her capacity to sit for any length of time. He thought she may have some capacity for work in an extremely sedentary role.

Dr de Graaff, treating rehabilitation physician

27        The plaintiff was referred to Dr de Graaff by her general practitioner and first saw him on 5 August 2010. She has seen him on a number of occasions since then. He noted a range of motion of 60 degrees flexion, 10 per cent extension and 20 degrees lateral flexion with straight leg raising bilaterally at 60 degrees. He also noted tenderness at trigger points in the lower lumbar region at L4 and L5/S1 levels and over the sacro-illiac joints, gluteal muscles and trochanteric bursi and iliotibial bands bilaterally. He considered that her pelvic pain was likely to be triggered from her gluteal muscles. He noted that she tended to lean on her arms when standing for protracted periods of time and her gait pattern was a little more antalgic on the left than right.

28        He noted that the plaintiff had not been able to cope with the formal rehabilitation program, and in his report, detailed various trials of medication which he had initiated to try to control her pain and sleep disruption. He had also suggested that she commence a walking program, increasing slowly. He noted that as at 30 December 2010 her walking tolerance was almost 20 minutes at a slow pace and her sitting and standing tolerances were around 15 minutes. She was taking six to eight Panadeine Forte per day, but was suffering gastrointestinal upset and was requiring Somac to settle her symptoms. She was also on 10mg of Endep at night, which she was to increase to 25mg if her pain was severe.

29        Dr de Graaff’s opinion was that it was likely that the plaintiff had sustained intradiscal injuries as a result of her fall at work on 18 January 2006. However, with time, she had developed mechanical back pain along with a chronic regional pain syndrome type 1 with sympathetic overactivity. He said that she had a fulminant pain profile which involved both physical and psychological limitations. He found evidence of some myofascial trigger points on examination. He stated that she has difficulty bending and moving and her exercise tolerance is extremely low and her sitting tolerance is poor. He thought it unlikely that her function would improve beyond this point and that her incapacity would continue for the foreseeable future. His opinion is that she is totally and permanently incapacitated. She is limited to very low level personal activities of daily living and domestic activities and has no capacity to perform suitable employment. He thought that situation was permanent.

30        Dr de Graaff was the only medical witness required by the defendant to attend court for cross-examination. In his oral evidence he stated that he believed that, when the plaintiff had the fall at work, she landed on her coccyx. This can cause vertical or torsional forces to go through the lumbar disc, which can cause damage to the discs above the coccyx. This would be consistent with the findings and diagnosis of sacro-coccygitis by Dr Middleton in October 2006, as the sacrum is just above the coccyx and may well have been injured in the fall as well. He thought that in the fall she had suffered an injury to the L4/5 and L5/S1 discs and that the findings of Dr Rowe reported in March 2007, particularly of weakness of movement of the left big toe and a change in sensation in the distribution of the L5 nerve root, were indicative of this. He said that there were other features noted by Dr Rowe that were consistent with the lower back sacro-coccygeal injury. However, with the passage of time, he thought that the prolapsed discs had probably resorbed, as there was now no neural compromise.[5]

[5]             T 98-100

31        Dr de Graaff stated that, following on from the intradiscal injury, the plaintiff had subsequently developed a chronic regional pain syndrome type 1, which is categorised by sympathetic overactivity. He said that persistent pain caused the pain receptors in the spinal cord to become oversensitive or “hyped up”, so that they interpret any sensation coming in as pain. Where there is no longer any direct nerve injury, the brain has difficulty in interpreting the stimulus from the pain receptors and gets confused as to where, exactly, the pain is coming from. Thus, the brain tends to assume a global picture, rather than a specific picture, so it is that processing of information from the limb through the spinal cord to the brain that leads to the response of a complaint of global sensory change. He thought that this was part of the explanation for the plaintiff’s problem.[6] He expressed the view that it was a physical evolution and that his view was supported by the research that had been done at Westmead in Sydney where there is a major pain service. The research has shown that this is a process which involves a neural receptor resetting.[7]

[6]             T 96-97

[7]             T 101-102

32        He said that the plaintiff also had myofascial syndrome, which was demonstrable by him having repeatedly put pressure on certain spots of the plaintiff, usually within muscle valleys, which triggers symptoms in an area distant from where he was putting the pressure. She had been consistent in her responses over the times that he had tested her since August 2010 and these trigger points are a classic feature of myofascial syndrome.

33        He said the chronic regional pain syndrome diagnosis is made by an accumulation of findings. He agreed with the proposition put by Mr Smith in cross-examination that there is always a psychological component to chronic pain syndrome and that the plaintiff had a form of pain profile which involved both physical and psychological limitations. He said there was a primary physical problem with psychological sequelae. You could not say that the psychological component was aggravating it or making it more severe, that is, you could not say that it was a cause, but it could be a result. At one stage in his oral evidence, he said that it was not possible five years down the track to delineate where the physical component of the chronic pain syndrome ends and where the psychological component begins, but there was no doubt that she had a genuine, organic basis for her complaint of pain. He said that there were physical limitations associated with her injury and these resulted in psychological consequences. Her limited tolerances, including sitting, standing and walking, are still the result of pain and the primary reason is physical but there is psychological distress associated with that. The symptomatology of chronic regional pain syndrome type 1 goes beyond the regional injury. He said that, often, patients have biomechanical issues following injury and other tissues get involved.

Mr Brearley, specialist surgeon

34        The plaintiff’s solicitors asked Mr Brearley to assess the plaintiff on two occasions. He saw her first on 27 August 2010 and embodied his opinion in a report of the same day. The date of his second examination is unclear, but it is most likely on or about the date of his second report, 28 January 2011.

35        He took a history of the accident on 18 January 2006, resulting in quite severe low back pain immediately, some loss of consciousness for a short period and feeling ill and vomiting, and subsequent pain in her left leg. He noted ongoing pain in the lower lumbar area on both sides and pain in the back of the thigh and calf and, sometimes, a sensation of numbness in the toes of the left foot and, occasionally, a feeling of numbness in the whole left leg. On examination, movement showed moderate restriction and straight leg raising was 60 degrees on both sides. He noted the reports of MRI scans taken on 20 February 2006, 13 October 2006 and 22 September 2008 and also a CT scan taken on 17 August 2006.

36        His diagnosis was of “mechanical lumbar back pain due to intradisc injury of the L4/5 and L5/S1 intervertebral discs with consequent protrusion of the L5/S1 disc and resultant low back pain and left sided leg pain.” He stated that the clinical history of left sided S1 radiculopathy was not confirmed on physical examination but, nevertheless, there probably was some nerve root irritation responsible for her pain. He thought there was no obvious psychological reaction to the injury and believed her symptoms to be organic in nature and due to the physical injury. He considered she was quite incapable of carrying out her pre-injury duties at that stage and for the foreseeable future. In particular, he noted that she was no longer able to sit or stand for more than short periods and he did not regard her as having a current work capacity. He also considered she was limited in carrying out such household activities as vacuuming, sweeping, taking out the washing, stacking the dishwasher and preparing food and cooking and that her recreational activities, such as rollerblading with her son, playing with her grandchildren and socialising in a way where she could sit or stand were no longer possible and that all of these limitations would persist for the foreseeable future.

37        When he reviewed her in 2011, he noted that there had been no improvement in the previous six months and that she was still taking six or seven Panadeine Forte a day and was due to shortly have an epidural injection. Her capacity to walk was confined to 10 to 15 minutes a day on three or four days a week, and she was paying for her own physiotherapy and undertook a home exercise program. His opinion was unchanged. He thought her symptoms were basically physical in nature and that there was no significant functional component of which he was aware. He confirmed his view that, as a consequence of the physical injury to her back, she is incapable of carrying out her pre-injury duties now and in the foreseeable future and has no current work capacity. He considered that her domestic and recreational limitations, as mentioned in his earlier report, would persist for the foreseeable future. He stated that no operative treatment was envisaged and her prognosis is poor. He considered that she would suffer further deterioration and increased symptoms in the future.

Ms Green, psychologist

38        In a vocational assessment report dated 15 July 2009 provided to the plaintiff’s solicitors, Ms Green determined that, taking into account the plaintiff’s injuries and restrictions, and having regard to her education, work history and transferrable skills, the plaintiff would not be able to undertake work for which she otherwise had the capacity.

Dr Middleton, occupational health and rehabilitation consultant

39        A report dated 2 October 2006 from Dr Middleton was tendered as part Plaintiff’s Court Book. He had been asked by the Accident Compensation Conciliation Service to provide a report regarding the plaintiff. He first saw her on 30 May 2006 when he performed a medical assessment under the “Strains and Sprains Program” run by the Victorian WorkCover Authority.

40        He took a history that on 18 January 2006, following the fall, the plaintiff’s pain was so severe that she lost consciousness and, when she recovered, she was assisted back to her desk and took Panadol for relief. However, her pain became so bad that it caused nausea and vomiting and, after three hours work, she had to cease and be driven home. She sought medical attention, but could not sleep properly. Two weeks later she developed pins and needles, initially in her right leg and subsequently in both legs, which would tend to come and go in proportion to the level of her lower back pain. He noted that Mr Doig had instigated further investigations, a CT scan and MRI scan, but these did not identify a fracture. Mr Doig had injected the area with cortico-steroid and local anaesthetic without improvement.

41        Dr Middleton identified the main pain as a constant sharp pain at the bottom of the coccyx, varying in intensity, and pins and needles in both legs in proportion to that intensity. He noted that she was unable to sit comfortably and had exquisite tenderness at L5/S1. Straight leg raising was restricted to 20 degrees, lumbosacral flexion was restricted to 40 degrees, extension zero degrees, right lateral flexion 5 degrees, left 15 degrees and right and left rotation 20 degrees, or significantly reduced.

42        He noted that a return to work in August had resulted in an increase in her level of back pain and symptoms and he sought approval for a spine management rehabilitation program, but this was not forthcoming.

43        Dr Middleton’s diagnosis was that, as a result of the fall at work, the plaintiff had suffered an acute injury to the sacro-coccygeal region, acute sacro- coccygitis, resulting in an L5/S1 central disc protrusion and lumbar instability. He thought she had mechanical-type pain in keeping with his diagnosis of lumbar instability and at that stage was totally incapacitated for work and in need of an interdisciplinary rehabilitation program.

Dr Barton, occupational physician

44        Dr Barton saw the plaintiff on behalf of the defendant’s insurer on two occasions, 15 June and 14 September 2006.

45        On 15 June 2006, Dr Barton took a history from the plaintiff that she had ongoing constant and severe lower back pain around the middle part of the sacrum extending into both buttocks, and also pain in the coccyx area. She also had cramps in the left leg which increased with walking. More recently, she had started to develop pins and needles down the lateral aspect of the right calf and, subsequently, developed more significant pain in the buttocks and down the left leg. However, he recorded that the plaintiff believed that she was about 40-50 per cent better.

46        Dr Barton noted that a number of investigations had failed to identify any significant pathology in the lower back area. He thought there were a number of features of her presentation that pointed towards a significant functional component. These were a long history of dramatically described symptoms typical of abnormal illness behaviour, the lack of any clear objective evidence of any particular physical problem that would account for her symptoms, the increase in symptoms with axial loading, the discrepancy between her limited leg raising and postures noted at other times, the generalised weakness in the left leg which does not fit with any muscular or neurological problem, the non- anatomical sensory changes in the left leg and the exquisite tenderness in the lumbosacral spine with pressures applied being clearly insufficient to have any impact on the underlying physical structures.

47        He thought she had sustained a mild soft tissue injury and bruising of the lower back and coccyx area as a result of the episode at work. However, even if she had a fracture of the coccyx, this should have resolved within four to six weeks. He did not believe she had any convincing evidence of ongoing disability and was fit to undertake normal office-type work. He was opposed to her going to a rehabilitation clinic as this would reinforce her “illness belief” and encourage her to “stay disabled”.

48        In a brief supplementary report dated 7 July 2006, Dr Barton said that, from a physical point of view, the plaintiff’s condition could be considered to have fully resolved and she had a capacity to undertake normal work consistent with her age and vocational experience.

49        He saw the plaintiff again on 14 September 2006 (although his report is dated the previous day). He noted that the plaintiff had ceased work on 14 August 2006 when she suffered a severe flare-up of her symptoms and she thought that a CT scan had shown that there was a disc problem. He said that she did not present with symptoms or signs to suggest a disc problem with nerve involvement. He said that on the CT scan the disc prolapse is quite small and there is no evidence that it is causing any compressive effects on the existing nerve roots. She had global weakness and numbness which was not consistent with radiculopathy from a disc injury. Again, he noted a number of features during examination that point towards some functional overlay. He did not believe that she presented with a physical problem that incapacitated her for her normal work. He thought any minor soft tissue injury from the fall in January 2006 had long since ceased to be relevant. Apparently he has not seen the plaintiff again.

Dr Rowe, specialist occupational physician

50        Dr Rowe examined the plaintiff at the request of the defendant’s insurer on 6 March 2007.

51        Mr Rowe noted that the plaintiff still complained of pain in the low back, mostly on the left side, and it radiated to the left leg and, sometimes, she has tingling and numbness about the left leg, not the whole of the leg, mostly about the big toe of the foot. He noted that there was weakness of movement of the left big toe and a change in sensation in the distribution of the L5 nerve root on the left, that is, involving the left great toe.

52        He said that, based on his examination, the plaintiff had clinical signs and symptoms of a disc protrusion in the lumbosacral spine, more than likely at L4/5 and affecting the fifth lumbar nerve root on the left. She had a limited straight leg raise, a wasted calf, weakness of the left foot, and a change in sensation about the big toe, all consistent with radiculopathy in the left leg. He thought she might respond to an epidural injection. He did not think she was fit to go back to work at that stage, but that could change in the future. He thought that she should be encouraged to exercise and walk. Apparently he has not seen the plaintiff again.

Mr Moran, orthopaedic surgeon

53        On 1 November 2007, Mr Moran examined the plaintiff at the request of the defendant’s insurer. He took a history that the plaintiff had had constant low back pain and restriction of movement since the incident in January 2006, together with intermittent pain in both legs, the pain in the right going down to the foot and in the left going to the calf. He noted that she had more pain in the right than the left leg. She also had pins and needles and numbness in both legs down to the toes, with more pins and needles and numbness in her left leg than in her right. She was taking four to five Panadeine Forte per day at that stage.

54        On physical examination he noted, in particular, that there was decreased sensation to light touch over the right big toe (L5 dermatome) and the outer border of the right foot (S1 dermatome). He concluded that she had an L5/S1 prolapse and did not, at that stage, have any current work capacity and would never be fit for her pre-injury work as a cash processor, as this involved heavy lifting of weights up to 20 kilograms. He thought that she might benefit from an epidural and physiotherapy and hydrotherapy and, ultimately, vocational rehabilitation and retraining. He has not seen the plaintiff since.

Mr John O’Brien, orthopaedic surgeon

55        Mr O’Brien examined the plaintiff at the request of the defendant’s insurer on two occasions, namely 17 February 2009 and 1 March 2010.

56        When he first saw the plaintiff he took a history of constant back pain since the fall which had become associated with bilateral leg pain. He noted that this had not been significantly affected by extensive conservative treatment, including multiple sites of injections. He said that the plaintiff presented with basically subjective signs, mainly confined to restriction of lumbar movement. He noted some variability of signs, particularly relating to straight leg movement and hip flexion. He thought there was no clinical evidence to suggest nerve root compromise, even though some investigations describe loss of disc signal in the lower two lumbar discs, suggesting some degenerative change. He did not think he could precisely define the origin of the plaintiff’s symptoms. He suggested that the appropriate diagnosis was one of non-specific back pain, which, in the light of the variable nature of subjective signs, was somewhat influenced by non-organic factors. He thought that there was no need for further investigations or surgical intervention, but it would be appropriate for the plaintiff be referred to a multiple discipline pain management program.

57        He said the prognosis for chronic pain was relatively poor and, as the plaintiff now presents with a significant disability, he thought she would be completely unable to return to her pre-injury occupation. He suggested that the clinical course and signs were such that she would not be capable of returning to gainful employment. He thought that she was now totally and permanently incapacitated, and she reported substantial restriction in her general, social, domestic and recreational activities.

58        When Mr O’Brien re-examined the plaintiff on 1 March 2010 he noted that she had had some engagement in a pain management program at the Royal Melbourne Hospital, which had ceased as she had no reasonable response. He noted that she had recently had some more physiotherapy to which she had had a reasonable response, but thought it was not justified to continue unlimited physiotherapy. His opinion was basically unchanged and he noted that the plaintiff did indicate some alteration to sensation over the entire right leg. Again, he noted somewhat variable subjective signs which did not allow a clear definition of specific pathology. He noted that investigations showed the presence of lumbar spondylosis, but considered the presentation was of non- specific back pain, and that there was no doubt that psycho/social factors were affecting the plaintiff’s ongoing symptoms. In his opinion, the plaintiff, by then, had well-established chronic pain accompanied by bilateral leg pain and he considered that this would remain unchanged. He concluded that the plaintiff would not return to her pre-injury employment or any form of gainful employment given the described nature and severity of her current chronic back pain.

59        Mr O’Brien produced a supplementary report dated 10 November 2010 commenting upon Dr de Graaff’s opinion that the plaintiff was suffering from chronic regional pain syndrome type 1 with sympathetic overactivity. He stated that, at the time of his examination, he did not find any signs demonstrating the presence of sympathetic overactivity. He stated that, as non-organic factors were influencing the clinical picture, he would prefer to give a diagnosis of chronic pain syndrome in preference to chronic regional pain syndrome type 1. He thought that the plaintiff’s signs were very subjective and that her symptoms of chronic pain cannot be precisely explained on the basis of an objective pain generator, i.e. pathology. He thought perhaps defuse tenderness could be described as an excessive hypersensitivity to even light touch, but the signs and symptoms do not demonstrate clear localised specific pathology. He concluded that, regardless of the wording of the diagnosis, the plaintiff had a complex clinical problem with a now well-established poor prognosis. He thought the trial of drugs suggested by Dr de Graaff would be appropriate pain management.

SURVEILLANCE FILM OF THE PLAINTIFF

60        There were four films tendered by the defendant: the first taken on 29 April 2008 and 5 May 2008; the second taken on 7 and 11 January 2010; the third taken on 14, 16 and 24 April 2010 and the last taken on 21, 26 and 27 July 2010.

61        The plaintiff is depicted often only for a number of seconds, but on, at least one occasion, for a period of some minutes walking and, on another occasion, as a passenger travelling in a car. The periods of walking included a short walk across a road with one of her grandchildren and at, another time, carrying a rug. She was also seen walking whilst shopping with her husband. Scenes in the supermarket show the plaintiff walking slowly then stopping, then walking slowly again. Her husband is seen to reach up to obtain an item which is high up in the supermarket above head height, whereas she reaches for a lower item. Her husband is also seen to unload the trolley at the end of the supermarket shopping. In none of the films is the plaintiff depicted doing anything of a robust nature. She admitted in her evidence[8] that, on some days, she can walk about quite freely, but said that the walking depicted in the surveillance film is for lesser distances and slower than she used to walk. She stated that, before the accident, she regularly enjoyed power walking for five kilometres, which would take her 35 to 40 minutes. My impression was that the film was not inconsistent with a physical impairment to the low back area.

[8]             T 17

62        However, the use made of the film in cross-examination was really to contest the plaintiff’s claim that she had difficulties walking. In paragraph 10 of her affidavit sworn on 30 September 2010, the plaintiff stated, “Dr de Graaff has

advised me to try and walk for five minutes a day and my husband tries to encourage me. I put it off, always waiting for a better day where my pain isn’t

as bad, to go for a walk. That better day hasn’t come yet.” I think that this paragraph is an exaggeration, but this needs to be read in the context of the plaintiff having been a regular power walker of five kilometres prior to the injury.

63        Mr Smith did not assert that the plaintiff had not told doctors when giving histories that she did not engage in ordinary activities of daily living such as shopping and the like. Indeed, Mr Smith in his final address did not suggest that the plaintiff’s credit was under attack in this case. The central attack by the defendant was that it was not possible to discern the limits of the plaintiff’s impairment dictated by her physical injury in contradistinction to her psychological reaction.

THE ISSUE OF WHETHER A JONES v DUNKEL INFERENCE SHOULD BE DRAWN AGAINST THE PLAINTIFF FOR FAILING TO CALL DOCTORS IN THE PLAINTIFF’S CAMP

64        In his closing address, Mr Smith suggested that I should draw an inference adverse to the plaintiff because of the absence of reports from Mr de la Harpe, Mr Doig, Dr Courtney and a Dr Jensen. However, there was evidence from all these doctors apart from Dr Jensen. The evidence was that the plaintiff did see Dr Jensen, but only on one occasion.

65        Mr Keogh’s response to Mr Smith’s submission was that it was not sensible to draw a strong adverse inference against the plaintiff where only one of many treating doctors is not called or whose reports are placed in evidence. I would add to Mr Keogh’s submission that the mode of running these cases has, for many years, involved defendant employers/the Victorian WorkCover Authority issuing subpoenas for treating doctors’ records. It has become established practice that those representing both the plaintiff and the defendant carefully read through those records and extract letters or reports or case notes which they consider to be relevant, and to tender them into evidence. There is no evidence that the defendant or the Victorian WorkCover Authority in this case was prevented from doing this or that the plaintiff’s solicitors claimed any privilege over Dr Jensen’s records. In these circumstances, I am perhaps able to draw some adverse inference to the effect that Dr Jensen’s evidence would not have assisted the plaintiff’s case but, at best, it is a very weak one.

THE ISSUE OF WHETHER IT IS POSSIBLE TO STRIP AWAY THE
PSYCHOLOGICAL EFFECTS OF THE INJURY

66 Mr Smith argued for the defendant that the central problem with the plaintiff’s case was her failure to take account of the requirement of s.134AB(38)(h), namely, the need to ignore psychological overlay or reaction: Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649. He emphasised the references in the medical material to “chronic pain syndrome”, “chronic regional pain syndrome type 1”, “myofascial syndrome”, “psychological components”, “significant functional component”, “functional overlay” and “non-organic factors”. He argued, that if the court could not identify the extent of the consequences generated solely by the physical injury, then the court could not be satisfied that the injury met the high test of “serious”.

67        Mr Keogh countered that, although the plaintiff suffered emotional and psychological distress, such distress flowed from the physical injury, the pain caused by that injury and the restrictions, particularly employment restrictions, flowing from that pain.

68        Hence, on the one hand the defendant argues a blurred picture that requires disentangling, which has not been accomplished and, on the other, the plaintiff says the physical or organic injury is clearly serious and, for that reason, a cause of the mental distress.

69        There was some common ground as follows:

• That prior to the plaintiff sustaining her back injury she had suffered Meniere’s disease, which was diagnosed in at least 1997.[9] She also suffered a myocardial infarction in 2002. Following the myocardial infarction the plaintiff had reduced her hours to a part-time level of 23 hours per week, although, as noted earlier, she continued to work in excess of these hours on a frequent basis. There is no evidence before me that either of those conditions caused or, in the absence of the subject back injury, would have caused the plaintiff to be totally incapacitated for work.

• It is not contested that the plaintiff fell heavily onto her buttocks and lower back on a concrete floor and sustained physical injury on18 January 2006.

• It is not contested that the pain felt by the plaintiff at the time of the fall caused her to vomit, despite taking analgesia, or that she sought medical attention on the same day.

• It is agreed that the plaintiff has suffered a permanent impairment resulting from the physical injury and that she has received an award of compensation for non-economic loss pursuant to s.98C of the Act.

• It is not contested that the plaintiff is totally incapacitated and continues to receive weekly payments of compensation under the Act and has had no work capacity since August 2006 (the date when she last worked). This means that the plaintiff is not only totally incapacitated but that she will continue to have no current work capacity for the indefinite future (s.93C(1)(a) of the Act).

[9]             See the report of Dr Z Matkovic, neurologist, dated 3 June 1997 at pages 66-67 of DCB.

70 The plaintiff may, of course, be viewed as totally incapacitated as a result of a combination of physical and psychological conditions so that the continued receipt of weekly payments does not, by itself, represent a concession by the defendant that the plaintiff also meets the definition of serious injury under paragraph (a) of the definition in s.134AB(37). There is a reference to a Medical Panel determination in the report dated 15 July 2009 by Ms Green, vocational rehabilitation consultant, but neither party sought to rely on either the determination itself or the reasons for that determination.

71        The plaintiff’s evidence under cross-examination was not always easy to follow. For example, at one stage, she seemed to be saying that her overall condition was worsening as time went on, but on other occasions she seemed to be asserting that her condition was either static or improving.

72        Under cross-examination the following exchanges occurred:[10]

[10]           T 20-22

Mr Smith: … As at 30 September 2010 you’ve never had one of those better days where you felt capable of walking for five minutes? --- Maybe not.

The pain has got worse since then? --- Sometimes it got worse, depend what I do.

Sorry, as I understood your evidence it was over time the condition has – I asked you whether it got better, got worse or stayed the same and you said that it got worse? --- Got worse, yes.

So generally your condition is worse now than it was in September

2010 when you swore this affidavit? --- Mostly – not all the time.

Sometimes better? --- Sometimes, yes.

So would a fair estimate be that it’s basically stayed the same? ---
Maybe.

You’re now walking the five to seven minutes or 10 to 15 minutes on a better day? --- That’s correct.

…

Mr Smith: In fact, would it be fairer to say, given that as at September 2010 you’d never felt capable of walking for five minutes and you can now walk for 15 minutes or so on a good day (there) has in fact been an improvement in your condition? --- You say so.

No, I’m asking you, madam, do you accept that, is that correct? ---

Yes.

…

But now your tolerance has improved so that you can walk about

15 minutes of that gentle walking? --- Yes, I’m increasing.

Does that help with your back pain? --- I think it does.

Does it help with your leg pain? --- I’m not sure.

Help with your ability to move your back/ --- I try to.

But as you experience it, has it helped with that? --- Not yet, I’m still taking the same amount of painkillers.”

73        It is the very nature of a chronically painful condition that probably gives rise to these difficulties in descriptions as to its progress and whether any significant change is occurring. Apart from the difficulty in describing pain to others, there is also the remitting and relapsing nature of pain and the emotional toll it causes. It was my impression that the plaintiff was a dignified person who did her best to give accurate answers. Indeed, as I have already commented, Mr Smith in his closing address made no attack on her credit. Further, it was conceded by the defendant that there is no doubt that a component of the plaintiff’s pain and symptoms is organically based. The real issue is whether that organically mediated component can be disentangled from any psychological contribution to her current presentation and whether that organically mediated component is serious.[11]

[11]           T 146

74        Mr Smith points to the difficulties or variations in the doctors’ diagnoses of the organic cause of pain. As a matter of principle it must be difficult to conclude that an injury is serious if there is doubt about what the injury is. On the other hand, this is not trial by doctors’ opinion and it is not necessary for the court to medically diagnose the injury. What must be done is to determine whether there is a physical injury.

75        The CT scan of 17 August 2006 and the MRI scan of 13 October 2006 suggest injury to the lower lumbar spine, especially at L4/5 and L5/S1. Dr Rowe’s examination on 6 March 2007 found clinical signs of disc disruption causing wasting and weakness and radiculopathy; Dr Middleton also examined the plaintiff for the defendant and, in his report dated 2 October 2006, found her totally incapacitated as a consequence of an acute injury to the sacro-coccygeal region resulting in an L5/S1 disc protrusion and lumbar instability; Dr Barton examined the plaintiff for the defendant on 7 July 2006 and 13 September 2006 and, on both occasions, thought any injury had completely resolved. This view is at odds with the other doctors treating or examining the plaintiff then or since and is at odds with the concessions of the defendant that the plaintiff has suffered an injury that gives rise to a permanent impairment and that she continues to suffer some form of organic injury now.

76        Mr Doig saw the plaintiff in 2006 and diagnosed a physical injury (fractures in the sacrum) but has not seen the plaintiff since; Mr Kavar has seen the plaintiff once, on 16 November 2006. His report of 7 March 2007 stated that he felt she had sacroiliitis-type pain and he recommended a bone scan. His second report of 30 January 2009 refers to the report of a bone scan undertaken or organised by Dr Courtney, which confirmed increased uptake in both the sacro-iliac joints. Mr Kavar mentions Dr Courtney’s view of a chronic pain syndrome, but I note that, at the time Mr Kavar saw her on 16 November 2006, he described the plaintiff’s pain as “fairly severe” such that he referred her to a pain management program. Although in his first report he had stated that he could not find an explanation for globally altered sensation in her left leg, he did say that she certainly had pain and, in his second report, he did not suggest that the pain was other than physically based. Indeed, he thought that the results of the bone scan suggested that a significant component of her pain was from inflammation in the sacro-iliac joints and that she would benefit from injections into this region and stated; “I thus feel that her main

injury is secondary to the sacroiliitis. This unfortunately occurred as a result of
the fall.”

77        Dr Courtney, in a letter to Mr Kavar dated 8 February 2007, stated that the plaintiff had a chronic pain syndrome “with increased pain and sensitivity well- outside the area of the original injury” (my emphasis). He suggested sacro- iliac injections by way of treatment. Dr Courtney was not required for cross- examination. I find it difficult to determine what he precisely meant by the words which I have emphasised above. On their face they suggest pain extending beyond the sacro-iliac joints themselves. This, one might think, is unsurprising if the pain is severe. It does not assist on the question of whether the pain is organically, in contradistinction to psychologically, based. I would tentatively infer that Dr Courtney believed the severe pain being treated by him and Mr Kavar was organically based.

78        Mr Moran saw the plaintiff for the defendant on 1 November 2007 and found decreased sensation over the L5 and S1 dermatomes. He diagnosed discal prolapse and considered the plaintiff was totally incapacitated when he saw her. He thought she was permanently unfit for her pre-injury duties, but might regain her ability for light work.

79        Mr de la Harpe saw the plaintiff only once in September 2008 and diagnosed mechanical back pain. He thought her work capacity was “extremely limited” and was confined to work in an extremely sedentary role. He made no mention of the pain being other than physically caused.

80        Mr John O’Brien saw the plaintiff twice for the defendant, on 17 February 2009 and 11 March 2010. He thought that the plaintiff was totally and permanently incapacitated but he had no doubt that psycho-social factors were affecting her ongoing symptoms. In an addendum of 10 November 2010 he commented on Dr de Graaff’s diagnosis of chronic regional pain syndrome type 1 with sympathetic overactivity as follows:

“At the time of my examination, however, I did not find any signs which I would regard as demonstrating the presence of sympathetic overactivity. The patient, however, indicated constant pain, however, in my opinion, did demonstrate non-organic factors, which I believe are influencing the clinical course. I would therefore prefer to give a diagnosis of a chronic pain syndrome in preference to chronic regional pain syndrome type 1.”

81        As mentioned, Dr de Graaff was the only doctor required for cross- examination and, hence, the only doctor who gave oral evidence before me. His diagnosis of chronic regional pain syndrome type 1 is a diagnosis of physical injury. In oral evidence Dr de Graaff stated as follows:[12]

Mr Smith: Now, Doctor, in response to Her Honour’s question I think you indicated you believed Ms Martins had a genuine organic basis for her condition? --- I do.

You believe she has got a genuine psychological basis for her condition as well? --- I believe there is a psychological ramification of her condition, yes.

…

I thought your evidence was at this stage, five years post injury, it’s impossible to differentiate what the physical basis – what is the physical basis and what is the psychological basis of her claim? --- In – the response to that will be there will be physical limitations associated with her injury and there will be psychological consequences of those.”

[12]           T 81

82        Mr O’Brien did not agree with Dr de Graaff’s diagnosis, which he (that is Mr O’Brien), clearly regarded as a diagnosis of a physical injury. If one were to prefer the evidence of Mr O’Brien over that of Dr de Graaff then Mr Smith’s submissions would have great force.

83        Mr Brearley examined the plaintiff for medico-legal purposes on 27 August 2010 and again on or about 28 January 2011. He diagnosed discal injuries, thought that the condition was entirely physically based and considered that the plaintiff had no work capacity.

84        Finally, in the vocational analysis conducted by Ms Green, as detailed in her report dated 15 July 2009, she canvassed a series of occupations that match the plaintiff’s education, work history and transferrable skills. Ms Green determined that they were all beyond the plaintiff’s physical capabilities. This consideration, of course, begs the question because it is argued by the defendant that the pain and restrictions which lead to total incapacity are, at least in part, psychologically generated.

85        There is no argument but that the plaintiff sustained a heavy fall giving rise to a great deal of pain on 18 January 2006 and has experienced fluctuating but serious levels of pain ever since. This pain has required her to take high dosages of analgesic medication and undergo at least two (but possibly more) spinal injections. The pain that the plaintiff has experienced since the fall may well have arisen from a number of discrete sites in the lumbosacral region damaged in that fall, namely, the L4/5 disc, the L5/S1 disc, the sacrum and/or the coccyx and/or nerve roots at various sites. The plaintiff has been extensively treated by many doctors and has presented to her treating doctors with consistent signs and symptoms. She appears genuine to both treating doctors and medico-legal examiners and this was also my impression from seeing her give evidence in the witness box.

86        The initial insult was likely, by its nature, to cause physical injury. The bulk of the doctors canvassed above diagnose a physical injury. On balance, I accept that there was a physical injury and it is likely that its pain and restrictions have rendered the plaintiff unfit for pre-injury duties and also unfit for any other employment for which she would otherwise have been qualified. In such circumstances, it is not surprising that the pain and restrictions and difficulties caused by this physical injury have led to depression and perhaps a magnification of her physical symptoms.

87        If total incapacity results from physical injury rendering the plaintiff unfit for any work for the last five years and unfit for the indefinite future, it follows that the plaintiff has suffered a serious injury not only in terms of loss of earning capacity but also for the purposes of pain and suffering.[13]

[13]           Cropp v Transport Accident Commission & Anor. [1998] 3 VR 357; Edwards v McSaveney & Anor. [2005] VSCA 252 (19 October 2005); Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292 (19 December 2006); Advance Wire and Cable Pty Ltd v Abdullah [2009] VSCA 170 (28 July 2009); Wachter v Lafarge Plasterboard Pty Ltd [2009] VCC 1491 (13 October 2009); Tatiara Meat Co. Pty Ltd v Kelso [2010] VSCA 12 (16 February 2010); and Savic v Salmat Targeted Services Pty Ltd [2010] VSCA 303 (18 November 2010).

88        On the question of pain and suffering I should add for completeness that, although the plaintiff does not drive a car because of her Meniere’s disease and had given away rollerblading prior to the accident, I accept that her back injury has greatly restricted her capacity to walk in the way that she did prior to the accident, namely, five kilometres most days. Further, apart from losing the self-esteem of working, she misses socialising with the people with whom she worked, as well as going to movies, concerts and the theatre, which she is now unable to sit through because of her pain. I also accept that she is not able to play with her grandchildren in any very active way and also misses her capacity to cook traditional Portuguese meals at family get-togethers which occurred on a regular basis prior to the accident as she is no longer able to stand for lengthy periods, to lean forward over the stove or to crouch and bend and carry heavy pots. Moreover, the plaintiff has endured and continues to endure daily pain requiring strong analgesics. In this regard Dodds- Streeton JA stated in Kelso v Tatiara Meat Co Pty Ltd that: “The endurance of

permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”[14]

[14] [2007] 17 VR 592, 629 (199)

89        Accordingly, I grant leave to the plaintiff to commence proceedings claiming damages for both pain and suffering and loss of earning capacity.