McGlinchey v Credit Union Australia and Victorian
[2010] VCC 43
•19 February 2010
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-09-00443
| JANICE McGLINCHEY | Plaintiff |
| v | |
| CREDIT UNION AUSTRALIA LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
| JUDGE: | HIS HONOUR JUDGE BOWMAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23 & 24 November 2009 |
| DATE OF JUDGMENT: | 19 February 2010 |
| CASE MAY BE CITED AS: | McGlinchey v Credit Union Australia & Victorian WorkCover Authority |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0043 |
REASONS FOR JUDGMENT
Catchwords: Accident Compensation Act 1985 – s.134AB(38) – application in respect of pecuniary loss damages and pain and suffering damages based upon incident of injury to back – state of plaintiff’s health prior to recurrence of relevant injury – clerical worker – the plaintiff’s activities since – failure to disclose in full some aspects of business conducted by plaintiff and work-related activities – capacity for employment – pain and suffering restrictions suffered by the plaintiff – whether burden of proof discharged in either regard.
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Ruddle with | Kenyons Lawyers |
| Ms G Hedberg | ||
| For the Defendants | Mr R Smith SC | Lander & Rogers |
| with Mr P Montgomery | ||
| HIS HONOUR: |
General Background
1 This matter comes before me by way of an application pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”.
2 The plaintiff seeks leave to bring proceedings in respect of both pain and suffering damages and pecuniary loss damages. In so doing, she relies upon paragraphs (a) and (c) of the definition of “serious injury” contained in s.134AB(37) of the Act. At the outset, counsel for the plaintiff indicated that, whilst reliance upon paragraph (c) was not being completely abandoned, very little would be said about it, and that the application was in reality based upon paragraph (a) – in other words, upon a physical injury. I might say at the outset that the interests of the defendants coincide, and I shall hereafter refer to them as “the defendant”, meaning, unless otherwise stated, the first defendant or employer.
3 The plaintiff relies upon injury to the lower back. This, in essence, is said to have occurred in the course of the plaintiff’s employment with the defendant on 16 November 2006 in the context of her stepping out of a lift.
4 Mr Ruddle and Ms G. Hedberg, both of counsel, appeared on behalf of the plaintiff. Mr R. Smith SC with Mr P. Montgomery of counsel appeared on behalf of the defendant. The plaintiff gave evidence and was cross-examined. The balance of the evidence was documentary in nature and was tendered by consent, which was a most sensible and cost-effective manner in which to run an application such as this. In addition, counsel made thorough and very helpful submissions.
Factual background
5 The following findings of fact are made for the purposes of this application and are not intended to be findings which are in any way determinative in relation to issues of negligence, the quantum of damages, entitlement to statutory benefits and the like.
(i) The plaintiff 6 I found the plaintiff to be a somewhat unusual witness. She was quite forthcoming in her evidence concerning some aspects of her claim, but was not quite so readily open in her evidence in relation to other aspects. For instance, and as shall be discussed, she now carries on a business as a hypnotherapist (concerning which there has been no secret), but it was not apparent until well into cross-examination that she operates this business from premises which she shares with her treating chiropractor of many years (if not decades), Mr Seddon. I might add this is also not readily apparent from the reports of Mr Seddon. Given that Mr Seddon, or those associated with his practice, have treated the plaintiff for many years and well prior to the subject accident, the fact that post-accident she has commenced to carry on a business from premises which she shared with or leased from him is something which one might have expected to be disclosed. It may not be an absolutely crucial factor, but, given that reports from Mr Seddon were relied upon and had been exchanged, and that the plaintiff’s affidavits made no reference to such an arrangement, it certainly could not be said that these omissions are entirely without significance.
7 As shall be discussed, it was only at the very end of the case and after the plaintiff was recalled following the production of certain financial records that it was revealed that the plaintiff was doing some part-time clerical work, however limited, and some training in this regard at Mr Seddon’s premises. This emerged in cross examination by Mr Smith following her recall and inspection of her diaries. Given that the plaintiff’s pre-injury occupation had been clerical in nature, and that her capacity to perform pre-injury duties was an issue in the case, one might have expected that such information might have been volunteered earlier. But for the recalling of the plaintiff following the belated production of the financial documents, the court would have been left in ignorance of what had recently occurred.
8 There will be further discussion of these matters when the question of capacity is under consideration. However, the plaintiff’s failure to be forthcoming about these matters (and whether it be deliberate, due to forgetfulness or nerves, or for whatever reason) creates a large question mark over the reliability and accuracy of her evidence in relation to the employment situation. Given the important role which Mr Seddon has played in her treatment and certification of incapacity, doubts are also raised in relation to the independence of his thinking and the reliability of his reports and certificates. At least as at the time of his most recent report of 15 May 2009 he was not only her treating chiropractor but her landlord in respect of a business being carried on from his premises. This does not rate a mention in his report.
9 As shall be discussed, the history given by the plaintiff to some medical examiners as to her history prior to the relevant accident does not seem to reflect the complete picture. The magnitude of the problems from which she had suffered seem to me, in some cases, to have been downplayed. I appreciate that histories taken by medical practitioners are not always complete or completely accurate, and on occasions it depends upon the nature of the question asked. However, it does seem to me that some medical examiners have not had the benefit of a full or accurate history of the plaintiff’s pre-injury problems. However, I do not regard her credit or accuracy as being damaged to any great extent in this regard.
10 In summary, to my mind it could not be said that the plaintiff emerged from cross examination without damage to her reliability, particularly in relation to her earning capacity.
(ii) The plaintiff’s background, training and employment prior to injury 11 The plaintiff is aged 52 years, having been born on 4 September 1957. She is a single woman.
12 The plaintiff was educated at Glenroy High School until completion of Form 2, and then continued her studies at the Bradshaw Business School until the age of 15 years. Thereafter she worked as a receptionist, in a furniture store, and again briefly as a receptionist before commencing work with AGC Finance as a lending officer. She was then employed as a finance officer at Custom Credit, and then at CityCorp, followed by periods of employment with the Piccol Credit Union and then eight years with Transcom Credit Union. She apparently commenced employment with the defendant (or a predecessor in title) in approximately 1996. The plaintiff’s work with the defendant was that of a credit and loan officer.
13 The plaintiff continued in that employment and performing such duties prior to the accident in question. The duties were essentially clerical and were performed in an open plan office. Much of her work was done on a computer. The plaintiff agreed that she was not “anchored to her desk” in such employment. Comparatively contemporaneous histories would also indicate that the reason for the plaintiff ultimately ceasing employment with the defendant related more to psychological or psychiatric factors than to symptoms from an organic injury.
The injury
(a) The state of the plaintiff’s health prior to 16 November 2006 14 The state of the plaintiff’s health prior to the accident in question, and particularly any symptoms which she may have had emanating from her lower back and histories given in this regard, was the subject of considerable attention.
15 It is apparent that the plaintiff was involved in a motor vehicle accident in approximately 1978. Whilst this may have involved a neck injury, the plaintiff agreed in cross-examination that she had treatment for back-related symptoms on and off thereafter. I would refer to the following extracts from cross-examination to be found at transcript p.16:
“That is the truth, isn’t it. You would say it came and went but it was – you had a crook back and you’d been treated for your crook back?---That’s right.
For more than 30 years before November 2006?---In different periods of time, yes.”
16 The plaintiff also agreed that she had been seeing Mr Seddon, the chiropractor, or a Ms Kondikas, who worked from the same practice, since 1979.
17 It is also apparent that, on 23 August 1997, the plaintiff’s thoraco-lumbar spine was x-rayed at the Glenroy Diagnostic Centre. The report of the radiologist indicates that there was no significant narrowing of disc spaces; the lumbar vertebrae showed early marginal osteophytic lipping; and the sacroiliac joints appeared normal. It is of interest that this report was addressed to Mr Seddon, and I shall comment more upon certain aspects of his reports and the general arrangement between himself and the plaintiff subsequently.
18 The plaintiff suffered further back symptoms following a bending incident in 2001. She was again sent for x-rays, the radiologist on this occasion reporting to Ms Kondikas at the same address as Mr Seddon. The conclusion of the report was that the plaintiff had early diffuse lumbar spondylosis.
19 Further x-rays were performed on 21 January 2003, the radiologist again reporting to Ms Kondikas and again at the same address as Mr Seddon. The relevant findings were that there were osteophytes around L3/4 and L4/5 and slight narrowing of the discs between L5/S1. The conclusion was of a mild spondylosis, mainly at L3/4.
20 In relation to her treatment at this time, I would refer to the following extract from cross-examination to be found at transcript p15:
“Certainly through the 2000’s you were seeing one or other of those chiropractors at least monthly before the accident?---As it averaged out it probably would be correct, yes, yes.”
21 The plaintiff’s general practitioner for some 25 years, and certainly in the 2000s, was Dr A.H. Macindoe. That doctor has provided reports, the earliest of which, dated 18 August 2007, refers to the plaintiff having a past history of spinal pain dating back to 2001 “at least”. It is recorded that in March 2001 she had low back pain and was attending a chiropractor. In January 2003 she was attending a chiropractor and a masseur for lower back pain. Mobic was prescribed. In May 2004 she apparently told Dr Macindoe that she was not coping with her lower back pain and he organised a CT scan in addition to prescribing Feldene. He added that she was then attending a chiropractor and had attended the Glenroy Chiropractic Clinic on many occasions. The Glenroy Chiropractic Clinic is the establishment operated by Mr Seddon.
22 In any event, the CT scan requested by Dr Macindoe was carried out on 31 May 2004. The radiologist’s report contains the following conclusion:
“L5-S1: Moderately severe spondylosis and a significant calcified
posterior central focal disc protrusion.”
23 The plaintiff agreed in cross-examination that she needed special help for the mowing of her lawns before the accident of November 2006, and she needed such help because that particular activity caused exacerbation of her back pain. There was also placed in evidence a document headed “Multidisciplinary Care Plan”, this, whilst unsigned, being dated 25 August 2004. It refers to Dr Macindoe as being the plaintiff’s general practitioner providing general medical care and back pain control. The plaintiff’s current medical status is referred to as being “Chronic back pain. Obesity”. Ms Kondikas at the Glenroy Chiropractic Clinic is described as providing chiropractic care for the back pain, and a Ms Mitchell, apparently a masseur, and also from the Glenroy Chiropractic Clinic, is described as providing clinical massage for back pain. The document also refers to medications being taken by the plaintiff at the time. The plaintiff agreed that Dr Macindoe was prescribing her Mersyndol Forte. She also agreed that, in 2004, she was seeing Ms Mitchell “at least weekly for a period of time”, and subsequently agreed that such visits could have been on a weekly basis for some years leading up to November 2006. The plaintiff did not take issue with the description of her condition in August 2004 as being one of chronic back pain. The plaintiff further agreed that, prior to November 2006, she had used a walking stick on odd occasions for a few days at a time, although initially there had been one period of three months during which she used it continually. She stated that she would use a walking stick when she had a flare-up of her back condition and found it difficult to keep going. It would not appear that she was using a walking stick on a regular basis during the period immediately prior to sustaining the injury in question.
24 I am satisfied that the plaintiff had back problems and suffered back symptoms for many years prior to November 2006, and that these were greater between 2001 and 2004. A CT scan of 31 May 2004 revealed problems of quite some significance at L5/S1. I consider the observations of Mr Seddon in his report of 19 September 2007, and subsequently repeated, in relation to the plaintiff’s prior history to represent a gross understatement of the situation almost to the point of being disingenuous. Mr Seddon and his associates at the Glenroy Chiropractic Clinic should have been well aware of the plaintiff’s history. She has been a patient of that clinic for decades. In addition, Mr Seddon is her landlord. In more recent times he has become her occasional part-time employer, although this apparently post-dates his last report of 15 May 2009. Nevertheless, it is some indication of his familiarity with her. Bearing all of this in mind, I can only repeat that the following account of her history represents a gross understatement:
“PAST HISTORY
Patient has attended this clinic several times in the past for treatment of lower back pain. She was attending approximately once monthly for maintenance care and was pain-free at the time of the injury on 16 November 2006.”
25 To put it mildly, this scarcely fits with someone having the history of treatment at Mr Seddon’s own clinic, apart from elsewhere, as has been described, and who, in 2004, was describing herself as being unable to cope with her lower back pain, was using a walking stick on occasions, and was having ongoing weekly massages at Mr Seddon’s own clinic. It may be that she was pain free at the time of the injury on 16 November 2006, but the brief reference to previous treatment is scarcely accurate or adequate.
26 In addition, some of the histories given by the plaintiff to examining medical practitioners are far from comprehensive. The history given to Mr Patrick Chan, her treating neurosurgeon, is as follows:
“About 7-8 years ago, she developed a transient lower back pain after bending over. This gradually resolved with massage and chiropractic manoeuvre.”
27 To Dr Helen Sutcliffe, examining her on behalf of her solicitors, the plaintiff said that she had been involved in a motor vehicle accident 30 years ago when she was aged 12 or 13 years but she had no problems with her health until two to three years later when she developed lower back ache which eventually settled. Interestingly, and by way of contrast, in January 2007 the plaintiff told Mr Peter Kudelka, orthopaedic surgeon examining on behalf of the defendant, the following:
“The patient has always had back pain since being involved in a motor car accident at the age of 13. Her chiropractor told her this required regular adjustment.”
By way of contrast, I again refer to Mr Seddon’s history.
28 Dr Susanne Homolka, occupational physician, assessed the plaintiff for the defendant on 12 September 2008. The pre-injury history given to that doctor was one of six years of chronic recurrent back pain developing after a fall at home, resulting in a CT scan being performed and treatment by way of massage and chiropractic. She stated that the injury took two years to heal, and that even thereafter she has been unable to run and continued to experience intermittent episodes of non-radiating lower back pain. Her reference to the earlier motor vehicle accident was that it occurred many years previously, and as a result of which she suffered whiplash. The plaintiff’s history as given to Dr John Douglas, a consultant psychiatrist, also examining on behalf of the defendant, was that in 2002 she had a backache but that after about two years she was pain-free. However, she kept in touch with the chiropractor whom she saw from time to time.
29 More recently, the plaintiff has been examined by Mr Michael Dooley, orthopaedic surgeon, at the request of the defendant. This examination took place on 17 August 2009. The pre-injury history given to him was as follows:
“In 1978 Ms McGlinchey said that she was involved in a rear end motor vehicle collision. She sustained a soft tissue cervical spine injury that caused neck pain but she said that her symptoms settled in time. She said that around 2001 she sustained a low lumbar injury over a bending episode. She noted back pain but she said that this settled in time.”
30 I have set out the plaintiff’s prior problems and the histories given at some length because they are relevant not only to an assessment of the consequences suffered by the plaintiff as a result of the injury of 16 November 2006, but they also have some bearing upon the weight which I should attach to the reports and opinions of Mr Seddon.
31 In summary, I am satisfied that the plaintiff had quite marked and troublesome back symptoms prior to the injury on 16 November 2006, these apparently last being notable in 2004. She had notable pathology, confirmed by radiology, at the L5/S1 level. There had been signs of early diffuse lumbar spondylosis. Certainly I am satisfied that her pre-injury condition was such that the incident on 16 November 2006 should be seen as an aggravation.
(b) The injury suffered on 16 November 2006 32 On 16 November 2006 at the defendant’s premises the plaintiff was involved in a fall when alighting from a lift which allegedly bounced whilst she was stepping from it. She fell onto a marble floor and skidded forwards to a wall. The occurrence of this incident of injury, and the manner in which it occurred, was not the subject of any substantial challenge in this application.
33 She ceased work. She attended a Dr Wilson who gave her a certificate for absence from work. She attended upon Mr Seddon on the following day. To Mr Seddon she complained of pain in the lower back and hips. She received chiropractic treatment. She was placed off work. On 23 November 2006 she attended upon Dr Macindoe. In his report of 18 August 2007 he noted that, since November 2006, she had suffered from severe low back pain radiating to both hips and sometimes down the front of the thighs with the pain being worse on the left side. Dr Macindoe arranged for a CT scan of the lumbosacral spine to be carried out on 28 November 2006. The conclusion of the radiologist is as follows:
“No acute traumatic lesion.
Severely degenerative vacuum disc at L5/S1 with osteophytic encroachment of the spinal canal not compressing the spinal theca. Severe bilateral L5/S1 neural canal stenoses compressing the exist nerve roots.”
34 Dr Macindoe expressed the view that those findings were somewhat worse than those shown on the CT scan in 2004, but also expressed the opinion that the change was probably due to aging and not the injury of November 2006. He felt that the fall had aggravated her back problems. He diagnosed an anti- inflammatory medication and Panadol Osteo as required. The plaintiff declined referral to an orthopaedic surgeon or a neurosurgeon.
35 As shall be discussed, the plaintiff returned to work on a limited basis on approximately 11 December 2006. She gradually increased her working hours to 18 hours per week before ceasing altogether in approximately July 2008.
36 Her ongoing treatment has largely been at the hands of Mr Seddon. In March 2008 Dr Macindoe was reporting that he considered that the plaintiff would be able to return to normal hours of work within four months of that date, particularly bearing in mind the fact that her work was of a very sedentary nature. He was also expressing the view as of then that the chiropractic treatment was not, in his opinion, achieving anything, and that there had been no progress “under the hands of Dr Seddon”.
37 As at about June 2008 the plaintiff changed general practitioners and commenced to attend upon Dr Chris Towie, who was tragically killed in the Victorian bushfires in 2009 and from whom no report had been obtained prior to his death. However, he did refer the plaintiff to Mr Patrick Chan, neurosurgeon, who reported back to Dr Towie on 23 October 2008. Mr Chan diagnosed discogenic back pain secondary to degenerative lumbar disease, and encouraged the plaintiff to continue an exercise program and to lose weight. He also stated that she could continue her chiropractic manoeuvre and remedial massage which she found helpful. In a subsequent report of 13 May 2009 to the plaintiff’s solicitors he expressed much the same views (not having seen her again). He also stated that her injuries were substantially stable and permanent. He did not feel that she was totally incapacitated, but might require lesser hours of work with modified activity. He also referred to her described inability to use public transport. He referred to the possibility of her being reviewed by a pain rehabilitation physician.
38 It should be added that, whilst Dr Macindoe ceased being the plaintiff’s general practitioner, he did provide two more reports to the plaintiff’s solicitors, these being dated 12 May 2009 and 29 May 2009. Those reports did not support the plaintiff’s position. He expected her degenerative changes to gradually worsen, but did not think they would be made worse or more dramatic by her workplace injury. He also expressed the opinion that: “Eleven months ago I considered Ms McGlinchey to be fit for pre-injury work. I have not seen her since.” He further opined that no improvement could be expected in her condition until after the finalisation of her WorkCover proceedings. In a later report of 29 April 2009 he was asked to comment upon the views of Dr Richard Bittar, consultant neurosurgeon, whose report was forwarded to Dr Macindoe. Whilst he found that Dr Bittar’s conclusions were reasonable, he was not convinced by them. He stood by his earlier report, and referred to the fact that, in Dr Bittar’s report, there was little mention of psychological factors which Dr Macindoe considered to be crucial. It should also be pointed out that Dr Macindoe organised an MRI of the plaintiff’s lumbar spine which was carried out on 25 January 2008. The conclusion of the radiologist was that there was an L4/5 disc bulge causing mild central canal narrowing. There was an L5/S1 left paracentral and foraminal protrusion causing mild compression of both the left S1 and L5 nerves and slight posterior displacement of the right S1 nerve.
39 The plaintiff has been reviewed by various examiners for medico-legal purposes. Dr Bittar diagnosed that the plaintiff was suffering from lower back pain and leg pain as a result of intervertebral disc injuries at L4/5 and L5/S1. He acknowledged that there was definitely evidence of a pre-existing condition, which he described as having been minimally symptomatic prior to November 2006. Interestingly, he expressed the view that she required ongoing medical treatment in the form of chiropractic treatment on a fortnightly basis indefinitely, and stated that this requirement was a direct result of the physical injury to her lower back which occurred in November 2006. Whether or not he was fully aware of the plaintiff’s pre-injury chiropractic treatment seems doubtful. In any event, he did not consider her to be fit for her previous employment, but stated that she did have some current work capacity and could work 15-20 hours per week as a hypnotherapist if such work was available. He considered her restrictions to be permanent.
40 Dr Helen Sutcliffe, occupational physician, examined the plaintiff at the request of her solicitors on 13 May 2009, and had considerable material available to her. She expressed the view that the plaintiff suffered disc derangement and aggravation of lumbar spondylosis as a result of the fall in question. She was of the view that the plaintiff suffered persisting impairment disability as a result of such fall. She also considered that there had been acceleration of the degenerative changes in the plaintiff’s lumbar spine and that her injuries were permanent. Dr Sutcliffe also, surprisingly, expressed the opinion that the plaintiff has no capacity for any work. She is the only medical examiner to express that view. Given that the plaintiff registered her hypnotherapy business in May 2008 and had previously worked as a hypnotherapist, conducting her clinical practice at home before moving into Mr Seddon’s premises towards the end of 2008, the opinion of Dr Sutcliffe has either been overtaken by events or, given its date, she was not fully aware of the circumstances prevailing. She is also “one out” in saying that the plaintiff has no capacity for work. In any event I do not accept her opinion in this regard.
41 Mr Russell Miller, orthopaedic surgeon, saw the plaintiff at the request of her solicitors on 24 August 2009. He diagnosed a significant aggravation of pre- existing degenerative disease, expressing the belief that her condition had previously only been causing her mild symptoms. He also stated that she had moderate obesity which would complicate management of her condition, and that she had an adverse mental state reaction requiring separate assessment. He regarded the necessity for surgery as being unlikely, but recommended psychiatric review. He considered her not suitable for work involving repetitive bending or lifting, but thought she could work on a part-time basis limited to approximately 18 hours per week. He regarded the restrictions upon her as being permanent and relating predominantly to the aggravation suffered in November 2006.
42 Mr Peter Kudelka, orthopaedic surgeon, examined the plaintiff at the request of the defendant three times in 2007. He was not in favour of the chiropractic adjustments which, on the history obtained by him, she was undertaking three times a week, and also pointed out that she had had regular treatment for pain for 30 years without any cure in her symptoms. His diagnosis was one of aggravation of pre-existing degenerative changes in the lumbosacral disc due to the injury of 16 November 2006. As at the date of his last report of 23 August 2007 he believed that the plaintiff had a reduced capacity for work (she was currently working 18 hours per week) but was hopeful that over the next few months she would be able to increase the number of hours worked. He was also hopeful that she would be able to resume her pre-injury duties.
43 Dr Susanne Homolka, occupational physician, examined the plaintiff at the request of the defendant on 12 September 2008. She diagnosed that the plaintiff suffered from multi-level degenerative disc disease of the lumbar spine which was constitutional, which pre-existed the work injury, and which had been exacerbated by that injury. From a purely physical perspective, she considered the plaintiff to be fit for full pre-injury duties and hours. She advised a loss of weight and exercise. She disapproved of ongoing chiropractic and massage. She felt that the work component of the plaintiff’s condition had, as at that date, not yet resolved but no longer materially contributed to any incapacity for work (conclusions which I find somewhat confusing).
44 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff at the request of the defendant on 17 August 2009. He diagnosed degenerative disc disease of the lumbar spine affecting mainly the L4/5 and L5/S1 levels which he believed was being aggravated by the incident in question (it is also to be remembered that, on the basis of the history obtained by him, he believed that the plaintiff’s condition had only been mildly symptomatic in the past). He was of the view that it was imperative that the plaintiff lose weight and increase her fitness. He did not believe that there was any clinical or radiological evidence of nerve root entrapment. He also believed that, from an orthopaedic viewpoint, the plaintiff would be capable of working as a clerical officer in the finance industry at least on a part-time basis, and was capable of working in her current capacity as a hypnotherapist.
45 Whilst not all medical examiners have had the benefit of a complete history, there is a certain similarity in at least some of the diagnoses. Having considered these, I find that the plaintiff, on 16 November 2006, suffered an injury by way of an aggravation and/or exacerbation of pre-existing degenerative changes of the lumbar spine. I note that, prior to the occurrence of such aggravation, the CT scan of 31 May 2004 had revealed moderately severe spondylosis and a significant calcified posterior central focal disc protrusion. I also note the conclusion of the radiologist in relation to the MRI carried out on 25 January 2008 to the effect that there was an L4/5 disc bulge causing mild central canal narrowing, and an L5/S1 left paracentral and foraminal protrusion causing mild compression to both the L5 and S1 nerves and slight posterior displacement of the right S1 nerve. When the radiological material and the opinions expressed in relation to it are considered, it seems to me to be likely that the injury in question aggravated the pre-existing condition. I accept that there has been an increase in the plaintiff’s symptomatology since November 2006.
46 In relation to these findings, and based as they are upon an aggravation of a pre-existing condition, I am taking into account only those consequences which flow from the subject incident. I do so in accordance with the authorities. As shall be discussed, it is the plaintiff’s condition as aggravated by the injury which is to be considered
47 On balance, I also accept that there will be permanent effects from the incident of aggravation. I refer to the opinions of Dr Bittar, Mr Chan and Mr Miller.
(c) The plaintiff’s rehabilitation, retraining, employment and other developments since the injury 48 Following 16 November 2006, the plaintiff was absent from her employment for approximately one month. She then returned to work on a part-time basis, commencing on two hours per day three days per week. These hours were gradually increased, until, by August 2008, she was working six hours per day three days per week. Her work involved accessing paper files, computer work and the like. In other words, she returned to performing clerical duties of the type with which she was familiar, and seems to have had the ability to work at her own pace and take breaks as recommended. By 16 March 2008 Dr Macindoe was reporting that the plaintiff continued to have daily back pain and that her range of movement was about half of normal and that this condition still related to her work. She had been offered a proposed return to work plan, which he considered to be too aggressive. He suggested an alternative which had her returning to full-time work within four months. He considered her duties to be suitable, they being of a very sedentary nature, and that her work station was also suitable. He expressed the view that her absence from work on Tuesdays and Thursdays was not worthwhile, as her work was so light that being present at it would not harm her condition. He acknowledged that she may suffer aggravation of her back pain because of extra travel by train and that this represented a problem. In a report of 12 May 2009, he expressed the view that he had considered her some 11 months previously to be fit for her pre-injury work.
49 In cross examination the plaintiff agreed that work which she had been doing on reduced hours was much the same sort of work that she had done for many years, and that she was entitled to get up and move around when she thought it was necessary.
50 On 25 June 2008 Laura Cropley, a rehabilitation consultant from WorkFocus Australia, advised the plaintiff that an offer of suitable employment had been approved by Mr Seddon and Dr Macindoe, and that the plaintiff was expected to perform 30 hours per week between 30 June 2008 and 21 July 2008.
51 At that time the plaintiff was working 18 hours per week and had taken short absences by way of leave and the like. The plaintiff did not increase her hours of work. In her affidavit of 3 October 2008, she refers to the fact that she had not been able to return to work since July 2008. Dr Douglas saw the plaintiff on 10 September 2008 and took a history that she had stopped work two weeks previously because “things were getting to her emotionally” and she had become distressed. It is not suggested in that history that the cessation of work was directly related to her back pain.
52 Dr Homolka examined the plaintiff on 12 September 2008. The history given to her was that, by mid to late August 2008, the plaintiff was working six hours per day, three days per week, when she became mentally and emotionally unable to cope and “collapsed in a screaming heap”. Again, that history does not suggest that the immediate reason for cessation of work related directly to increasing back symptoms and the like. It is to be noted that the plaintiff told Dr Homolka that, essentially she was taking no medication for pain control and told Dr Douglas that Dr Macindoe had prescribed Mersyndol Forte, but she had taken none for the last month.
53 A progress report of WorkFocus of 13 October 2008 noted that Dr Macindoe had previously indicated that he was supportive of the return to work plan, and also refers to the fact that Mr Seddon had approved it with the recommendation that “we’ll see how she goes”, but certified the plaintiff as being unfit for any duties from 3 October 2008 until 27 October 2008. Subsequent return to work plans involving the plaintiff’s usual duties, working at her own pace and increasing the hours to be worked on a gradual basis, do not seem to have been productive of an actual return. The plaintiff’s employment with the defendant appears to have been formally terminated on approximately 3 July 2009.
54 Towards the end of 2003, the plaintiff had qualified as a hypnotherapist, receiving a diploma from the Academy of Hypnotic Science. She also obtained a certificate in relation to counselling and conflict resolution. She commenced working as a hypnotherapist early in 2004. This appears to have been, very much, on a part-time basis and was work which she performed from home. However, in approximately March 2008 the plaintiff decided that she wished to conduct her hypnotherapist practice from professional rooms because, operating from home, she was unable to expand her business. She also had some thoughts of upgrading her professional status. The end result was that she took a room or rooms at the Glenroy Chiropractic Clinic at 96 Plumpton Avenue, Glenroy – in other words, the rooms used by Mr Seddon. As far as the plaintiff knows, the premises are owned by Mr Seddon and she pays rent to the Glenroy Chiropractic Clinic. Thus, as stated, Mr Seddon, in addition to being the long-standing treating chiropractor, is in fact the plaintiff’s landlord in relation to her business. Mr Seddon has reported four times since July 2008, his most recent report being 15 May 2009. Thus, some, if not all, of his reports post-date the plaintiff commencing her self-employment from his premises. Nevertheless, whilst there are comments concerning capacity, there is not one word in the reports about this arrangement or about the plaintiff working as a hypnotherapist.
55 On 2 May 2008 the plaintiff registered the business name of Newglen Hypnosis. Evidence was tendered of the sign which she has placed outside Mr Seddon’s premises and of the quite extensive advertising material which is available on the internet. Mr Seddon only attends the rooms on a part-time basis, and the plaintiff gave evidence that she uses them when he is not there. The advertising material available on the internet indicates that appointments may be made at various times, the total available time being some 21½ hours per week. Treatment is charged at the rate of $100 per hour.
56 The plaintiff also indicated that she had signed up for a 12 month Yellow Pages entry in relation to the hypnotherapy business, this costing her some $2,000. In addition she has recently acquired an approved clinical device which is apparently known as virtual reality therapy and which is an approved treatment in the counselling and hypnotherapy environment. There is a usage fee of $22 associated with this, and the plaintiff may have to increase her standard fee to $110 per hour. In re-examination she indicated that she could probably cope with an average of 12 clients per week, although it later became apparent that so far she was not achieving anything like this number. She also agreed in further cross examination that she was hoping for 15 clients a week. In relation to the expenses of the business, she indicated that $1,000 per annum was payable in respect of memberships and the like and that she paid Mr Seddon $50 per day rental, at the moment this being confined to payment for one day per week. A written arrangement with Mr Seddon was entered into in July 2009.
57 The plaintiff had been requested to bring to court her financial records, including tax returns and diaries in relation to the hypnotherapy business. Initially she did not bring all of these with her, so that this request was again made when her evidence had virtually been completed. Arrangements were then made for the relevant records to be brought to court. The plaintiff was then recalled, and gave some further evidence including by way of cross examination. The 2007/08 tax return indicated that income from the hypnotherapy business was $2,745, with expenses of $6,474. The 2008/09 tax return, which had not been signed, indicated a business income of $2,620 and expenses of $7,833. Her records indicated that, from 1 July 2009 to 24 November 2009, the business income had been $1,850 with expenses of $2,657. The plaintiff was only doing a little over one session per week. Of course, as shall be discussed, what has to be considered is a capacity to earn in suitable employment, and not just actual earnings.
58 Further cross examination of the plaintiff on the basis of material brought to court indicated that the plaintiff in fact paid $51 per week to Mr Seddon whether the room was used or not but, if, for example, it was used two days in the week she would pay $102.
59 The plaintiff, although she had been requested to bring with her her diaries relating to her business and financial affairs, again had not in fact done so, saying that they were too heavy. Accordingly, further arrangements had to be made for them to be produced, and she was then recalled for a second time and further cross examined. The diaries having been produced and certain entries obviously noted, Mr Smith engaged in further cross examination. This centred on the discovery that, on 2 November 2009 (only three weeks before the commencement of the hearing) there was a diary entry which read: “Training GCC – possible work”. The plaintiff agreed that GCC stood for Glenroy Chiropractic Clinic, and stated that there was a recent occasion when one of the staff was going on annual leave for a number of weeks and extra help was needed. She had been advised previously that there was a possibility that someone may be required to do “a bit of clerical work to help out” so she had made diaries entries. She admitted that she had done clerical work on a few occasions including a block of two hours on one day and four hours on another, these being during the month of November 2009. Another entry of 4 November 2009 read: “Avail for training GCC, any typing?”. This, the plaintiff agreed, related to the same thing. She also said that the training referred to was basic training in relation to the use of equipment and the answering of telephones. She agreed that she was being taught how to operate the systems with a view to doing work for Mr Seddon’s chiropractic centre. I would also refer to the following questions and answers:
“What hours might you have worked there? --- It might be a block of time, it might be a couple of hours to cover a lunch period, or a few hours in the afternoon if someone has to leave early and they’re busy.
What do you mean by a few hours? --- Three or four.”
60 Further, the plaintiff said that any amounts she had received by way of income were in a folder which was put before the court. The figures in that folder would seem to indicate that, for the days 4, 10 and 18 November 2009, the plaintiff received from Glenroy Chiropractic Clinic a total of $250.29. The number of hours for which she worked is not indicated.
61 The actual figures themselves are not of particular importance. However, I agree with the submission of Mr Smith that the lack of any earlier reference to this situation was “a pretty staggering omission”. Whilst these events post- dated the plaintiff’s second affidavit of 19 October 2009, no attempt was made by her, when adopting her affidavits as being true and correct, to volunteer this additional piece of information. Nor was such volunteering done during evidence-in-chief, cross examination or re-examination. It was only when the diaries were obtained at the second attempt that this aspect of the situation came to light.
62 Furthermore, at pages 63 and 64 of the transcript, Mr Smith had cross examined the plaintiff as follows:
“What about a position such as a receptionist, just putting aside that you might consider it beneath you to do that sort of work but a receptionist, say, with someone like Mr Seddon who has a part- time receptionist because he doesn’t actually work full-time himself? --- I don’t actually ---
That would suit you? --- I don’t actually consider it beneath me, believe me, I don’t.
Alright, well, I’ll – what about something like that as a receptionist there? Would that sort of job suit, firstly, if ---? --- It is something that I could do.
…
Certainly you could work the 18 hours a week there, couldn’t you? --- 18 hours in that nature of job, so very locally, is something that I could cope with, yes.
Right, ride your scooter, I’m sorry, up there? --- Yes.
And he operates, is it four days a week? --- No, it’s ---
Is it five days a week, mid-week? --- Three.
What hours is he open between? --- That varies of, well, let me see, I think Monday is nine till five, Wednesday is two till 8 p.m. and Friday is, I think, ten till six or something along those lines. It’s different.
Well, it mightn’t be Mr Seddon but it might be a chiropractor or a doctor or an accountant. It might be anyone of a number of people who need a receptionist. So long as you could sort of get up out of your chair and stretch a bit, go for short walks, not too far from a phone and like, you don’t have to be seated all the time for a job like that. You’d give that sort of thing a try would you not? --- I could – yes.”
63 The surprising thing is that, whilst the plaintiff was admitting a capacity, when specifically asked about whether she could do some work for Mr Seddon she did not state that she had actually been doing this and receiving some training in this regard. We are all well aware that witnesses are often advised, prior to giving evidence, only to answer the questions that have been put to them, but nevertheless the failure to mention this arrangement with Mr Seddon seems to me to place a substantial question mark over the issue of the plaintiff’s reliability. As earlier indicated, it is a further matter of interest and relevance in relation to Mr Seddon’s familiarity with the plaintiff and as to whether his reports are objective and complete.
64 Two other aspects of developments since the injury probably require comment. They are related. Firstly, whilst the plaintiff still on occasions uses a walking stick, and has engaged in walking as an exercise, she also uses a small three wheel motorised scooter in order to get around. Secondly, she alleges difficulties in using public transport and this presented another area of debate in relation to the return to work plans.
65 The plaintiff lives in Glenroy, a distance of just over one kilometre from the railway station. The defendant’s place of employment was, at the relevant time, in Bourke Street, Melbourne and quite close to Southern Cross Station. The hours of work, at least initially, would be outside the normal peak hours. The plaintiff claimed that she would need to use a walking stick and was apparently advised by Dr Towie (as the defendant may also have been) that she would require the use of taxis to convey her back and forth from Glenroy Railway Station. These events occurred in approximately November and December 2008. Apparently Dr Towie also advised Ms Phillips, the defendant’s health and safety adviser, that he would approve the actual work to be performed by the plaintiff in a return to work plan of 12 November 2009, which plan involved a gradual increase to full-time work, but regarded the use of public transport as being a barrier. In any event, the defendant, via Ms Phillips, agreed to provide the plaintiff with Cabcharge vouchers for two weeks in order to facilitate her return to work. I accept that the plaintiff stated that she would not be returning to work because this was an ongoing issue. Accordingly, the plaintiff did not take up the offer to use Cabcharge vouchers for a fortnight. The plaintiff also stated that she used her scooter in order to travel the few blocks from her home to the Glenroy Chiropractic Clinic where she performs her hypnotherapy duties.
66 In cross examination the plaintiff agreed that, upon initially resuming work on a part-time basis, she travelled back and forth by train. She had used a walking stick intermittently over the five or six years prior to suffering injury.
67 In cross examination the plaintiff was asked why she did not at least take up the offer of Cabcharge vouchers for a fortnight and attempt to return on a part- time basis. Her answers to this were somewhat confusing, but ultimately she said that it was likely that the Cabcharge vouchers never arrived because she said she was not interested unless the arrangement was going to be permanent. She was also asked questions about why she could not use her scooter. Her answers referred to a lack of confidence at the time, but she agreed that she used the scooter to go to the supermarket which is just near the Glenroy Railway Station and that she was familiar with the arrangements on trains for people using wheelchairs and the like. She also agreed that, in September 2008, she was trying to walk for 30 minutes per day. I cannot say that I found the plaintiff’s answers in relation to the use of public transport in the context of the return to work situation as being particularly persuasive.
68 Finally, there is the question of the plaintiff’s ongoing treatment. Following the death of Dr Towie, the plaintiff’s treating general practitioner has been Dr Jacob Miller. However, he has specifically certified that he is not the plaintiff’s treating practitioner in her compensation case and is unable to further assess her on a medico-legal basis. The plaintiff said that she has no other treating general practitioner, but that Dr Miller has given her a prescription in relation to painkillers for her back problem. Her affidavit of 19 October 2009 refers to the fact that she had recently commenced attending upon Dr Miller who provides continued support and treatment in relation to her work injury, but no material from him was put in evidence other than his certificate that he is not the treating practitioner in her compensation case. The situation in relation to any ongoing treatment from Mr Seddon is not altogether clear.
Ruling
(a) Pecuniary loss damages 69
In respect of the plaintiff’s application for leave to bring proceedings for pecuniary loss damages, I am of the opinion that she has failed to discharge the burden of proof in this regard.
70
Section 134AB(38)(e) and (f) require a comparison to be made between the plaintiff’s “without injury” earnings and her “after injury” earnings and the application of a formula. I shall deal with each concept separately.
(i) Without injury earnings 71
There was minimal evidence or argument concerning this feature of the claim. Mr Ruddle effectively presented his argument on the basis that the plaintiff, who previously worked 37.5 or 38 hours per week, could now only work a maximum of 18 hours a week, assuming that she has a work capacity. Therefore, he argued that, on a straight “hours worked” basis, the plaintiff has demonstrated a loss of earning capacity which clearly exceeds 40 per cent. Whether such a simple approach can be applied in a case such as this seems to me to be highly doubtful. There may be circumstances where this method might represent a shortcut (and even then the requirements of the Act seem to necessitate the calculation of gross annual incomes) but this case does not seem to me to be one of them. The plaintiff has demonstrated a capacity to earn income at a rate per hour which does not necessarily coincide with the rate to which she was entitled when working for the defendant. An attempt to take the shortcut by making a simple comparison on an “hours worked” basis does not seem to me to be appropriate.
72
The affidavit of Ms Phillips of 19 November 2009 indicates that, the plaintiff’s current base salary would be $61,107 per annum were she still working for the defendant. Very little information was otherwise available concerning earnings. If one assumes that the figure of $61,107 represents the annualised gross earnings for the financial year commencing 1 July 2009 (the affidavit of Ms Phillips is sworn three days outside the six year “window”) I find that such figure represents the plaintiff’s “without injury” earnings. There is little or no evidence to any other effect.
(ii) After injury earnings 73
Considerable argument and cross examination was centred upon this aspect of the application.
74
Firstly, the plaintiff has not satisfied me that her post-injury earning capacity is limited to a maximum of 18 hours per week. I might add that I am quite satisfied that she has an earning capacity as has been demonstrated, and I do not accept the opinion of Dr Sutcliffe. I would point out that the return to work plan specifically supported by Dr Mcindoe, the plaintiff’s general practitioner for a period in excess of 25 years, involved a gradual return to full working hours. Dr Mcindoe saw her return as being on a graduated basis but culminating in employment seven and a half hours per day, five days per week. In his report of 16 March 2008, when commenting upon the return to work plan of 11 December 2007, he observed that “her work is so light that being at work won’t harm her condition”. He pointed out that extra travel by train from Glenroy did represent a problem because it aggravated her back pain, but somewhat surprisingly added that it did not aggravate her medical condition. In his subsequent report of 12 May 2009, he observed that: “Eleven months ago I considered Ms McGlinchey to be fit for pre-injury work. I have not seen her since.” It is to be remembered that the plaintiff commenced using Dr Towie as her treating general practitioner not long after Dr Macindoe essentially endorsed and suggested a program of her returning to work on a full-time basis.
75
It is also apparent from material placed in evidence that Dr Towie supported the later return to work plan which also involved a return to work on a full-time basis by February 2009. From the material before me, it seems that Dr Towie approved the plan insofar as it related to the actual work to be performed, but considered the use of public transport to be a barrier. As indicated, I am not persuaded that the use of public transport by the plaintiff is precluded. Having resumed work on a part-time basis, she continued to travel by train until she ceased work, and it is also to be remembered that such cessation of work occurred for reasons which, as described comparatively contemporaneously by the plaintiff to doctors, related more to psychological factors than to physical injury. The work which she was performing was not physically demanding, and she agreed that she was not “anchored to her desk” and so could move as required. Her scooter has given her greater mobility and ultimately she effectively conceded that she was aware that it could be used on a train. With both treating general practitioners endorsing return to work plans involving full-time work insofar as the work itself was concerned, and given my failure to be satisfied that the use of public transport is a barrier which prevents co-operation with a return to work plan culminating in full-time employment, the plaintiff has not satisfied me that she is limited to a maximum of 18 hours work per week and has not discharged the burden accordingly. Indeed, it seems to me that the better view is that she is fit to perform clerical and like duties for considerably more than 18 hours per week, and may well be fit to perform such duties on a full-time basis.
76
Next, I am also of the view that s.134AB(38)(g) acts to the detriment of the plaintiff. In my opinion her attempts to participate in rehabilitation or retraining have not been reasonable. It would have been reasonable to at least accept the Cabcharge voucher offer and see what developed. It also seems to me that it would have been reasonable for her to attempt to participate in the return to work plan by using her scooter, assuming that she could not walk from her home to the Glenroy Station. It seems to me probable that, had she co-operated with the plan, this would have resulted in her earning more than 60 per centum of her previous gross income. It is also to be remembered that, shortly after Dr Mcindoe effectively endorsed the plan, she changed medical practitioners.
77
Further, there is the evidence relating to the hypnotherapy business and the unsatisfactory evidence concerning the recent clerical work done for Mr Seddon. I have set this out in some detail. Aspects of it do have a detrimental effect upon the plaintiff’s credibility. Even apart from that, it is to be remembered that it is her capacity to earn, and not her actual earnings, that must ultimately be considered. She freely admits that she is aiming to see 12, or possibly 15, clients per week at her business, although why she could not do a greater figure, such as 18, is far from clear. She currently charges $100 per hour, even at 12 clients per week, this would convert into a gross figure of $1,200 per week, which, for a 48 week year, would be $57,600. If one allowed, say, $20,000 per annum for expenses (and this seems a very generous allowance), and without entering into arguments as to the calculation or inclusion of this figure, the plaintiff would still fall short of establishing a 40 per cent loss in income.
78
True it is that currently she is not earning anything like this. However, she is clearly intent on expanding her business, and, as stated, it is capacity to earn rather than actual earnings that are to be taken into account.
79
Whether or not she will supplement her earnings in the hypnotherapy business with additional earnings from clerical work is another issue. She has already demonstrated the capacity to do this, even if it be to only a small extent to date. Receptionist or clerical work in the Glenroy area – and she is only approximately one kilometre from the railway station, supermarket and the like – is clearly a possibility (leaving to one side the work which she is actually performing). Indeed, she gave evidence that she had, somewhat tentatively, been “keeping an eye out” for work of this nature. She has the capacity to perform it, and, even if the use of public transport does represent some form of barrier, this would not be required.
(iii) Conclusion 80
In summary, bearing in mind the above, including the unsatisfactory nature of the evidence in relation to the work at Mr Seddon’s establishment, the burden has not been discharged.
81
My opinion is that the plaintiff’s capacity in relation to “after injury” earnings is identical to the amount of “without injury” earnings in that she could perform her previous duties on a full-time basis. Alternatively her capacity to work as a hypnotherapist, whether or not this is combined with her additional capacity to work in a clerical position or is an alternative thereto, could be productive of income which falls short of demonstrating a 40 per cent loss.
82
I might add that I am far from satisfied that the impairment or loss of a body function from which the plaintiff suffers, insofar as it relates to earning capacity, is likely to be permanent. The scope for improvement and a return to full-time duties, or at least duties capable of earning 60 per cent or more of the plaintiff’s “without injury” earnings, certainly exists.
83
As, in my view, the plaintiff has failed to discharge the burden in respect of s.134AB(38)(e) and (f), apart from such failure in relation to (g), there is no need for me to consider the operation of the “very considerable” test insofar as it applies to her application for leave in respect of pecuniary loss damages.
(b) Pain and suffering damages 84
I am of the opinion that the plaintiff has discharged the burden of proof in this regard. I am satisfied that she has impairment or loss of a body function, namely of the low back, the pain and suffering consequences of which is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked and as being at least very considerable.
85
In coming to this conclusion, I am conscious of the fact that I have found that the injury suffered by the plaintiff is in the nature of an aggravation. Accordingly, whilst of necessity I must have regard to the plaintiff’s pre-injury condition, it is the pain and suffering consequence of the relevant incident which I must consider. In other words, it is the pre-existing condition as aggravated by the injury that must be assessed in terms of the statutory test – see the decision of the Court of the Appeal in Grech v Orica Australia & Anor [2006] VSCA 172.
86
I am also conscious of the observations contained in the judgment of Chernov JA in Sumbul v All Toya Wreckers Pty Ltd [2005] VSCA 292, and the very recent remarks of Ross AJA in Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12, in which there is also reference to the judgment of Ashley JA in Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 and that of Neave and Mandie JJA in Sabo v George Weston Foods [2009] VSCA 242. That I have not been satisfied as to the plaintiff’s required loss of earning capacity, and in particular the doubts raised in relation to her alleged inability to engage in full- time employment of a clerical nature, are factors relevant to the assessment of pain and suffering. However, as stated in Kelso, it is necessary to consider the evidence as a whole. Thus, employment capacity is but one of the matters to be taken into account. In my opinion, it is outweighed by other factors in the present case.
87
I should add that, whilst leave in relation to pain and suffering damages was by no means conceded by the defendant, it would be fair to say that by far the bulk of attention in this case was directed to the issue of pecuniary loss.
88
I find in favour of the plaintiff for the following reasons, which are not listed in order of importance:
(a)
Whilst the plaintiff had used a walking stick on occasions prior to 16 November 2006, it is not suggested that she was so doing in the period immediately prior to the occurrence of the relevant incident, and it would seem that she had not been so doing for many months. It is not challenged that since the relevant incident she has been using a walking stick, and, significantly, now uses a motorised scooter in order to get around. That she needs such a scooter was not the subject of any direct challenge. That she could use it as a means of travelling to her former place of employment was suggested. The fact that someone needs no particular assistance in relation to mobility immediately prior to an accident and thereafter is reduced to using a motorised scooter could well be seen as a barometer of the magnitude of, and restrictions flowing from, such accident. I would refer to paragraphs 12, 13 and 16 of the plaintiff’s affidavit of 3 October 2008 and to paragraph 8 of her affidavit of 19 October 2009.
(b)
In relation to the plaintiff’s affidavits, a considerable number of the matters relating to pain and suffering to which she has deposed were not the subject of any great attack, or her credit was not damaged in relation to them. She did admit quite freely that the reference in paragraph 18 of her affidavit of 3 October 2008 to her previously enjoying a good sporting life was erroneous and should not have been in the affidavit. She stated in evidence that she did not even realise that such a reference was in her affidavit and that she was not, and had not been, a sports player. Whilst it may have been careless on her part not to have observed this in the affidavit, she freely admitted the error and I do not consider that her credit was damaged by it. She was also cross examined concerning any deterioration in her social life. That she still does some socialising is apparent, although this may now be on a reduced scale. However, there are other aspects of her affidavits, and particularly that of 3 October 2008, which were not the subject of serious and sustained challenge and which I accept. I accept, for example, that she is unable to go to the movies because she cannot sit for long; that she has difficulty in walking substantial distances; that there are problems in relation to her making her beds, grooming her dogs, vacuuming, mopping, cleaning the shower and the like; and that she has very considerable difficulties in doing any gardening. She has also found it difficult to do such things as sit at a desk. I accept her evidence in relation to these limitations, and I am also of the view, whilst obviously she had experienced some difficulties prior to 16 November 2006 as described above, the particular matters referred to in her affidavit of 3 October 2008 represent consequences which have either commenced, or increased in severity and continuity, since the relevant incident of injury. I also accept her assertions in her affidavit of 19 October 2009 in relation to the difficulties that she has sitting, walking, performing home duties and the like, and concerning the loss of enjoyment of life which she has suffered. When viewed in toto, and whilst they may not be sufficient to prevent the plaintiff from engaging in clerical duties, these difficulties and restrictions are nevertheless of very considerable magnitude.
(c)
The expert medical opinion must also be considered. I appreciate the views of Dr Macindoe, but the opinions of the expert surgeons also require consideration. That is particularly so in relation to those who have seen her in more recent times.
Mr Chan, neurosurgeon, has been the plaintiff’s only treating specialist, although he seems to have seen her on one occasion only. In his report of 13 May 2009, he has referred to the deterioration in the plaintiff’s condition since the accident of November 2006, and described her injuries as stable and permanent. He has also expressed the view that the injury has had significant effect on the plaintiff’s social, domestic and recreational activities.
Mr Michael Dooley saw the plaintiff on behalf of the defendant on 25 September 2009, and apparently without the benefit of all radiological investigations. He diagnosed aggravation of underlying degenerative disc disease and referred to the plaintiff continuing to suffer from intermittent low back pain and intermittent buttock and thigh pain.
Mr Russell Miller, reporting on 25 August 2009 and having reviewed what appeared to be all relevant radiological files, has stated that the plaintiff suffered a significant injury to her lumbar spine; that she had significant aggravation of pre-existing degenerative disease; and that her symptoms were currently at a severe level. He considered her long-term prognosis to be “fair/poor”. He regarded her injuries as being substantially stabilised, and reported that her injuries would impact on her domestic, recreational and employment activities on a permanent basis.
Dr Richard Bittar, consultant neurosurgeon, reported on 9 April 2009 to the plaintiff’s solicitors. He expressed the opinion that the work-related injury of 16 November 2006 has been a significant contributing factor to the plaintiff’s condition, and that she suffers from lower back pain and leg pain as a result of intervertebral disc injuries at L4/5 and L5/S1. He considered that her prognosis was guarded, and that she was likely to suffer from significant pain and disability into the foreseeable future. He has also described the restrictions and limitations from which she suffers on a permanent basis, and expressed the view that the injury has had “a significant adverse effect in terms of restricting her social, domestic, recreational and employment activities”.
Ms Helen Sutcliffe, whilst not a specialist surgeon, is an occupational physician. She diagnosed disc derangement and aggravation of lumbar spondylosis as a result of the relevant incident. She has referred to the plaintiff suffering persistent pain and the fact that the plaintiff has sustained “very substantial adverse impact” on her capacity for domestic, social and leisure activity. She considered the prognosis to be poor with no likelihood of resolution.
When these opinions, expressed comparatively currently, are borne in mind, it seems to me that the plaintiff comfortably satisfies the “very considerable” test.
(d)
Whilst I have found that the plaintiff’s reliability is suspect in relation to the issue of employment, as stated, I accept much of her evidence concerning the symptoms and restrictions from which she now suffers. It is to be remembered that it has been demonstrated that she has significant pathology in her lumbar spine and I would refer in particular to the findings apparent on the CT scan of 28 November 2006 and the MRI of 25 January 2008. Thus, this is not one of those cases where there is little or no obvious organic injury to account for the complaints of an injured person. I have previously stated that I accept that, in the relevant incident of injury, there occurred aggravation of the plaintiff’s pre-existing condition, and I accept that the pain and suffering consequences of such aggravation meet the “very considerable” test and are permanent within the meaning of the Act.
89 In summary, the plaintiff has discharged the burden of proof in relation to leave in respect of pain and suffering damages, and has satisfied the requirements of the Act and the “very considerable” test.
Conclusion
90 The plaintiff has failed to discharge the burden of proof in her application for leave to bring proceedings for pecuniary loss damages. She has discharged the burden of proof in relation to pain and suffering damages, and leave is given to her to bring proceedings in that regard. I shall hear the parties as to any ancillary orders that are required.
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