McCormack v Macedon Ranges Shire Council
[2012] VCC 2004
•14 December 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-03177
| ELIZABETH McCORMACK | Plaintiff |
| v | |
| MACEDON RANGES SHIRE COUNCIL | First Defendant |
| and | |
| WORKSAFE VICTORIA | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 September 2012 | |
DATE OF JUDGMENT: | 14 December 2012 | |
CASE MAY BE CITED AS: | McCormack v Macedon Ranges Shire Council & Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2004 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – pain and suffering – identity of injury
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Barwon Spinners Pty Ltd v Podolak & Ors [2005] VSCA 33; Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167; Shock Records Pty Ltd v Jones [2006] VSCA 180; Zivolic v Hella Australia Pty Ltd [2007] VSCA 142; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69.
Judgment: Leave granted to bring proceedings for pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Walsh | Nowicki Carbone |
| For the Defendants | Mr N Rattray | Hall & Wilcox |
HIS 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 in the course of her employment with the defendant between June 2006 and May 2009 due to the nature of her employment; alternatively, discrete injuries suffered on or about 2 April 2008 and 10 May 2009 (“the injury”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only. She brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There “serious” is defined relevantly as meaning “(a) permanent or loss of a body function”.
3 The body function relied upon in this application is the lumbar spine.
4 The plaintiff relied on two affidavits and gave viva voce evidence. She was cross-examined. In addition she tendered the evidence of her partner, John Beesley, who was not 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.
Outline of Section 134AB
5 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
6 The plaintiff bears an overall burden of proof upon the balance of probabilities.
7 By sub-section (38)(c) of the Act, the impairment must have consequences in relation to each of 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 more than “significant” or “marked” and as being “at least very considerable”.
8 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.
9 Sub-section (38)(h) provides consequences which are psychologically-based are to be wholly disregarded in paragraph (a) cases.
10 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 in reaching my conclusions.
11 The defendants concede that it accepted liability for organic injuries suffered in the course of employment on 2 April 2008 and 10 May 2009 but does not concede that such injury meets the requirements of sub-paragraph (a) of the definition of “serious injury” referred to above.
12 Perhaps the most significant area of dispute between the parties is whether or not the plaintiff has sufficiently identified the physical injury which is said to cause consequences which are “serious” in terms of the legislation.
Compensable Physical Injuries
13 It is common ground that a compensable injury occurred in the course of the plaintiff’s employment as a cleaner, and in particular in April 2008 and May 2009, when separate incidents were recorded.
14 The defendants’ counsel urges that the injury has not been sufficiently identified as being more than a simple musculoligamentous strain, the consequences of which are unlikely to be permanent, and, in any event, are complicated by the emergence of an Adjustment Disorder.
15 The plaintiff’s counsel relies on the diagnosis of Mr Michael Shannon, general surgeon, retained on behalf of the defendants, in his report dated 21 October 2010. Although no investigations were available to him, he noted information to the effect that x-rays taken in April 2008 were said to show a “unilateral L5 pars defect on the left side”. His diagnosis was that the plaintiff was suffering from “mechanical back pain, possibly associated with a pre-existing pars interarticularis defect and probable degenerative change in the lumbar spine”. Significantly, he further stated: “The diagnosis is based essentially on history and examination and there is limited information about radiculopathy.”[1]
[1]Exhibit H page 3
16 Tendered in evidence were three radiological reports, being a lumbar spine x‑ray dated 15 April 2008; a CT scan of the lumbar spine dated 8 November 2011; and an MRI scan of the lumbar spine dated 20 July 2012.[2] Apart from Mr Shannon seeing a report of the first x‑ray, not one expert medical practitioner has viewed any of the three investigations. This is a most unusual course. Accordingly, it seems to me, the only way in which the plaintiff can establish an injury that goes beyond a musculoligamentous strain, is via the method adopted by Mr Shannon, referred to above.
[2]Exhibit G
17 At the outset, it should be recorded that it is common ground that the plaintiff’s credit remains intact. Further, it is common ground that following cessation of work in May 2009, the plaintiff has subjected herself to hundreds of consultations with her general practitioner for treatment of, inter alia, low-back pain which has subsisted uninterrupted since that latter date. It is also common ground that the plaintiff has suffered from an Adjustment Disorder which may be compounding her symptoms. This aspect is not the subject of an application pursuant to paragraph (3) of the definition of “serious injury”.
18 Against this background, the first question which arises is whether, notwithstanding the presence of non-organic symptoms and signs at the time when the s134AB(16)(b) application is heard, the plaintiff was still suffering from a compensable physical injury.[3]
[3][2008] VSCA 167 at paragraph [141]
19 The second question which arises, if the answer to the first question is “yes”, is whether such injury is, at the time of hearing, serious in its pain and suffering consequences. Clearly, the plaintiff carries the burden of proof with respect to both matters.[4]
[4](ibid) paragraph [142]
20 The answer to the first question depends, in the view of Ashley JA in Jayatilake v Toyota Motor Corporation (Aust) Ltd,[5] upon the nature of the compensable low-back injury which the plaintiff suffered. His Honour stated:
“The possibilities really reduce to three: simple musculo-ligamentous strain; aggravation of pre-existing lumbar spinal degenerative disease …; and lumbar intervertebral disc damage — either internal derangement or prolapse — in the setting of pre-existing lumbar degeneration. In general terms, if the first situation was the case, continuance of physical symptoms over a seven year period would be at least improbable. If the second situation was the case, whether continuance of physical symptoms was probable would sensibly depend upon the extent of the aggravation which was established. If the third situation was the case, it could most readily be concluded that physical symptoms continued.”
[5](ibid) paragraph [143]
21 Where his Honour uses the phrase “in general terms”, it must mean that every case will, of course, turn on its own facts.
22 Although the MRI scan report acknowledges some degree of degenerative change at L3-4 and L5-S1, the fact that no doctor has been asked to report on same leads me to the conclusion that support for Mr Shannon’s opinion must be found elsewhere, if at all. The plaintiff’s symptoms have now remained unabated for some three-and-a-half years and it seems to me a reasonable proposition that if the disability and consequences are to be explicable only in terms of compensable physical injury, then Mr Shannon’s opinion must hold sway over any alternative opinion that the physical injury is a musculoligamentous strain only.
23 Given that Mr Shannon’s opinion is based essentially on history and examination, the fact that he has award a permanent impairment with respect to the physical injury is consistent with a corroborative examination.
24 Dr Malcolm Brown, occupational physician, saw the plaintiff on behalf of the defendants on 23 June 2009. His examination findings included:
(a)no overt evidence of anxiety;
(b)there was tenderness to palpation across the lower back;
(c)he was unable to elicit knee reflexes; straight leg raising causes low-back pain at 50 degrees on the right;
(d)testing of sacroiliac joint integrity caused pain on the right.
25 His diagnosis, however, seems to be one of “uncomplicated low-back pain”, features of which include employment contribution and lack of ability to perform heavier tasks, such as operating scrubbing and buffing machines at least for the first few weeks. When Mr Brown saw the plaintiff again in August 2010, he noted that she continued to have low-back pain with occasional groin and right leg pain; she was not sleeping well and complained of back stiffness in the morning, and she was taking Voltaren on a daily basis and attended a physiotherapist once a week. His examination findings on this occasion included:
(a)she was significantly overweight at 136 kilograms clothed;
(b)she complained of significant tenderness to palpation across the low back;
(c)he was unable to elicit reflexes in the lower legs;
(d)in the supine position, straight leg raising was restricted to 35 degrees on the right by complaint of low-back pain.
26 The diagnosis remained as above but, significantly, he did not believe that the work component had resolved, she continued to have an incapacity for work and she needed treatment services. He did not think that she would be fit for pre-injury duties in the future.
27 I consider that the examination findings, and the prognosis, are consistent with the diagnosis postulated by Mr Shannon.
28 The plaintiff was examined, on her behalf, by general surgeon, Professor Kenneth Myers, on 5 September 2012. Apart from a finding of morbid obesity, his findings on examination appear to be normal. His diagnosis was one of “organic low-back injury arising out of the course of her employment”. He thought this organic low-back injury prevented her from returning to pre-injury employment and the only employment she may be fit for was her present farm management work.
29 Once again, he was not provided with any of the three radiological investigations, but noted Mr Shannon’s report to the effect that there was evidence of spondylosis and degenerative intervertebral disc disease at L5‑S1. On the basis that he does not identify any other source of organic low-back injury, such as a musculoligamentous strain, I am prepared to draw the inference that he agrees with Mr Shannon’s diagnosis, based on the history and examination.
30 I have already stated that the defendants concede that the plaintiff is a witness of truth and that her credit is unimpeached.[6] This is a concession which is fairly made by a model litigant and by experienced counsel. Accordingly, I am prepared to find that there is an underlying organic low-back injury which has arisen out of, or in the course of, the plaintiff’s employment, and which is likely to render her permanently unfit for her pre-injury duties. Further, I consider that the examination findings of the various doctors referred to above and the consistent histories provided by the plaintiff to all doctors, together with her creditworthiness, all corroborate the diagnosis proffered by Mr Shannon.
[6]T50, L24-25 and T51, L7-10
31 This diagnosis, I consider, “is to be resolved upon all the evidence before the Court. It is not meant to be a trial by doctors’ opinions; nor a trial in which relevant questions were to be decided on the footing, in effect, that medical opinion did not provide answers to those questions”.[7]
[7]Jayatilake (ibid) at paragraph [17]
32 Further, I am satisfied that once this diagnosis, findings and prognoses are established, the consequential physically-based impairment can be considered at face value, even though identification of a precise quantum of a supervening psychological overlay has not been established.[8]
[8]Jayatilake (ibid) at paragraph [19]. See also Shock Records Pty Ltd v Jones [2006] VSCA 180; and see Zivolic v Hella Australia Pty Ltd [2007] VSCA 142 at paragraphs [19] to [20]
Pain and Suffering Consequences – Principles
33 As has been set out on a number of occasions, but particular in the Court of Appeal decision of Sutton v Laminex Group Pty Ltd[9] at paragraph 46:
“The pain and suffering consequences of a compensable injury extend beyond the physical experience of pain to include the debilitating effect on a person’s life.”
[9][2011] VSCA 52
34 The Court of Appeal recited with approval the dicta of President Maxwell in Haden Engineering Pty Ltd v McKinnon,[10] where his Honour recorded:[11]
[10][2010] VSCA 69
[11](ibid) paragraphs [9] to [11]
“[T]he ‘pain and suffering consequence’ of an injury encompasses both the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life …
The experience of pain
As to the experience of pain as such, the Court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale “mild/moderate/severe”. Unless the pain is constant, the Court will need also to assess the frequency and duration of the pain episodes.
The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
(b) what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c) what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d) what the objective evidence shows about the disabling effect of the pain.
[47] Relevantly to the issues on this appeal, Maxwell P pointed out that the first evidentiary basis will turn on an assessment of a plaintiff’s credit. He said:
As to (a), 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. The Court will make its own assessment of the plaintiff’s credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.
[48] An assessment of the fourth evidentiary basis must be tempered by an understanding of the effect of stoicism. Approving what was said in Dwyer v Calco Timbers Pty Ltd (No 2) by Nettle JA, Maxwell P observed:
As to (d), the cases recognise that some plaintiffs may be more “stoical” than others. This means that such a plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injury suffered by the “stoical” plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain. In such a case, the “objective” evidence of the disabling effect may be of less significance than usual.
[49] To identify the disabling effect of pain requires an understanding both of a plaintiff’s pre-injury and post-injury employment and activities, although this does not amount to a simple comparison. As Maxwell P explained:
The disabling effect of pain
As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this Court (per Ashley JA) said in Dwyer (No 2): ‘ … [I]mpairment is concerned with what has been lost. But the significance of what has been lost … may be informed, to an extent, by what is retained.’
As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is to the extent to which ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her].’
[50] Assessing loss of enjoyment of life, in a broad sense, requires an understanding of the effect of the impairment upon numerous aspects of a plaintiff’s daily life and activities. In this respect, Maxwell P said:
Capacity for work aside, assessing the extent to which the pain interferes with the ordinary activities of life will typically involve consideration of its effect on the plaintiff’s:
• sleep;
• mobility;
• cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
• capacity for self-care and self-management;
• performance of household and family duties;
• recreational activities;
• social activities;
• sexual life; and
• enjoyment of life.
Whether and to what extent the matters listed are relevant to the court’s task in a particular case will, naturally, depend on the circumstances of the case.”
Pain and Suffering Consequences of Compensable Physical Injury
35 Mr Michael Shannon, on behalf of the defendants, considered that he did not think the plaintiff fit for heavy physical work and although she had resumed some part-time work as a supervisor on a farm, she was not really doing any labouring work.[12] Further, Dr Malcolm Brown considered that she would have trouble returning to pre-injury duties and hours, as these involved regular bending and constant manual work. He thought that she would be unlikely to be able to return to such duties in the future.[13]
[12]Exhibit H
[13]Exhibit J
36 This opinion was echoed by Professor Myers on behalf of the plaintiff, in that he considered her organic low-back injury would prevent her from returning to pre-injury employment.[14]
[14]Exhibit E
37 In her affidavit sworn 31 August 2012, the plaintiff swore that she continued to suffer from low-back pain on a regular basis and the pain was constant. She was continuing to consult her general practitioner for pain management, as well as seeing her physiotherapist, Mr Andrew Hall, on a weekly basis. She was also attending hydrotherapy weekly. She was taking anti-inflammatory medication, such as Heron Back Pain, Panadol Back and Neck Pain, daily. She has currently been prescribed Voltaren tablets and Naprosyn, and Panadeine Forte from time to time when the other pain-relief medication fails. She swore that her sleep patterns are now more interrupted. She often wakes in the middle of the night because of low-back pain and finds it difficult to get back to sleep. She has gained approximately 30 kilograms in weight because of inactivity due to back pain.
38 Significantly, she swears that prior to sustaining her lower back injury, horse riding was her “real passion”. She finds it exceptionally difficult to mount any horse now because of lack of core strength and the flexion and strain on her lower back which causes her great pain. She is deeply upset at this loss.[15] Once again, fairly conceded by counsel for the defendants, this consequence alone would render a finding of serious injury “very, very close”.[16]
[15]Exhibit A, paragraph 9
[16]T58, L11
39 Further, since sustaining the low-back injury, she swears that she struggles “to engage in sexual intercourse”. She states that she subconsciously tries to avoid this activity because of her lower back condition and of her depression. She states this causes great tension and is often a source of frustration between her partner and herself.[17]
[17]Exhibit A, paragraph 10
40 Further, she swore that a position as supervisor on a farm was no longer available to her on the basis that she was not physically capable of her duties, due to the low-back pain. She had worked on this farm on a seasonal basis since the age of thirteen. She found this loss “deeply upsetting as it was a reminder of [her] physical restrictions and limitations with respect to [her] lower back injury”.[18]
[18]Exhibit A, paragraph 12
Findings
41 Taking into account the plaintiff’s experience of pain and disabilities and her honest presentation, it is my opinion that the pain and suffering consequences to which the physical compensable injury materially contributes are “very considerable” and more than “significant” or “marked”. I consider that her injury to the lumbar spine has met the threshold test for leave to bring proceedings for damages under s134AB(19)(a) of the Act.
42 I will hear the parties as to consequential orders.
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