Mengot v The Mussel Pot Pty Ltd
[2024] VCC 85
•16 February 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-22-04238
| Vedrana Mengot | Plaintiff |
| v | |
| The Mussel Pot Pty Ltd | Defendant |
---
JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 February 2024 | |
DATE OF JUDGMENT: | 16 February 2024 | |
CASE MAY BE CITED AS: | Mengot v The Mussel Pot Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 85 | |
REASONS FOR JUDGMENT
---
Subject:ACCIDENT COMPENSATION -
Catchwords: Serious Injury Application – lumbar spine – pain and suffering
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Barwon Spinners Pty Ltd & OrsvPodolak (2005) 14 VR 622; Dwyerv Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Ellis Management Services Pty Ltd v Eric Taylor [2013] VSCA 326; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Humphries v Poljak [1992] 2 VR 199; HuntervTransport Accident Commission & Avalanche [2005] VSCA 1; Jiwani v 7 Chefs Pty Ltd [2023] VCC 1127; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181; Tatiara Wheat Co Pty Ltd v Kelso [2010] VSCA 12; TTB SMS Pty Ltd v Reading [2020] VSCA 203
Judgment: Application granted
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C. Harrison KC Ms S. Bailey | L.N Christie & Co |
| For the Defendant | Ms V. Katotas | Lander & Rogers |
HIS HONOUR:
Introduction
1The plaintiff seeks the grant of a serious injury certificate for pain and suffering. The case calls to be determined based on assessment of what is often enough referred to as “range”. The plaintiff suffered an accepted injury. No question of causation was raised by the defendant. There was not, for example, surveillance of the plaintiff that suggested that her account of limited activities since injury is other than she has deposed.
2The plaintiff was represented by Mr Harrison of Kings Counsel together with Ms Bailey of counsel. The defendant was represented by Ms Katotas of counsel.
The documentary evidence
3The plaintiff tendered the following evidence in support of her application:
(a) Three affidavits of the plaintiff dated 9 June 2022, 26 June 2023 and 18 December 2023;[1]
(b) Affidavit of Kristina Kernjak dated 27 June 2023;[2]
(c) Affidavit of Vanessa Terzievski dated 30 June 2023;[3]
(d) Report of Mr Ash Chehata dated 29 May 2023;[4]
(e) Five reports of Dr Ahmad Al-Sharifi dated 8 October 2019 (two reports), 13 October 2019, 8 October 2021 and 30 August 2023;[5]
(f) Report of Soaring Health physiotherapist Nav Ahmad Khan, dated 23 August 2023;[6]
(g) CT scan of the lumbar spine dated 7 October 2019;[7]
(h) MRI of the lumbosacral spine 27 September 2023;[8] and
(i) Clinical records of Lorne Street Medical Centre.[9]
[1]Exhibit P1, Plaintiff’s Court Book (“PCB”) 6-21.
[2]Exhibit P2, PCB 22-24.
[3]Exhibit P3, PCB 25-27.
[4]Exhibit P4, PCB 29-35.
[5]Exhibit P5, PCB 36-55.
[6]Exhibit P6, PCB 61-62.
[7]Exhibit P7, PCB 83-84.
[8]Exhibit P8, PCB 89.
[9]Exhibit P9, PCB 105-142.
4The defendant tendered the following evidence:
(a) Report of Dr Hazem Akil dated 6 January 2020;[10]
(b) Report of Dr Graeme Doig dated 14 December 2021;[11]
(c) Report of Dr Catherine Bones dated 19 January 2022;[12]
(d) Report of Dr Francis Ghan dated 18 December 2023;[13]
(e) Soaring Health Sports & Wellness Centre physiotherapy questionnaires;[14] and
(f) Screenshots of the plaintiff’s social media.[15]
[10] Exhibit D1, Defendant’s Court Book (“DCB”) 9-10.
[11] Exhibit D2, DCB 11-15.
[12] Exhibit D3, DCB 16-22.
[13] Exhibit D4, DCB 23-28.
[14] Exhibit D5, DCB 29-50 & 53-61.
[15] Exhibit D6, DCB 62-66.
5In determining the outcome of the application, I have read and had regard to the exhibits, the plaintiff’s affidavit evidence, her cross-examination and re-examination, the evidence of two of the plaintiff’s friends who made affidavits on her behalf and the final addresses of counsel.
The plaintiff’s affidavits
The work injury
6In 2013, the plaintiff commenced working for the defendant on a casual basis, between two and three days per week, eventually being made fulltime in April 2017. When she commenced working for the defendant, it was from its food truck based at the Victoria Market. The plaintiff also worked for the defendant out of the Prahran Market for a couple of years, before returning to Victoria Market when the food truck started operating on more of the market’s trading days. The plaintiff performed most of the duties involved with taking delivery of mussels, cleaning mussels, cooking mussels, managing orders and banking, and also filling in for workers when they called in sick.
7The plaintiff described work that was repetitive, awkward and heavy. On three days a week, a delivery of up to 100 kgs of mussels from the mussel farm in Geelong would arrive at the food van and be dropped off in polystyrene boxes weighing approximately 10 kgs, and would be placed on the floor. Part of the plaintiff’s job required her to transfer the mussels from the boxes, into plastic boxes supplied by the defendant that weighed up to 20 kgs when full, and then lift these plastic boxes and place them either into a fridge which was outside the food van, or when the fridge was full, transfer them directly into the food van where they would be stored under a bench space next to the sink, or under a bench space next to a stove. When lifting the boxes into the food van, the plaintiff explained that she would have to climb up a step in order to get into the food van. She said she often worked on her own, which meant she had to perform the lifting of the boxes of mussels alone. Once inside the food van, the plaintiff was involved in the cleaning and the cooking of the mussels. When cleaned, the mussels would be placed into boxes that weighed about 10 kgs, and stored under a bench inside the food van.
8None of the account of the activities performed in her employment and deposed to by the plaintiff was contested by the defendant.
The incident of injury
9On the morning of Saturday 4 October 2019, while lifting a box of mussels from under a bench, the plaintiff felt a pop in her back. On the way home she tried to access a doctor at the Royal Melbourne Hospital, but the wait was too great and she went home. She saw her general practitioner (“GP”) Dr Al-Sharifi at the Lorne Street Medical Practice in Lalor on Monday, 6 October 2019. Dr Al-Sharifi organised a CT-scan of the plaintiff’s back on 7 October 2019. It identified a bulge at L3/4, a herniation at L4/5 encroaching on the left L5 nerve root, and a herniation at L5/S1 also encroaching on the left L5 nerve root. Approximately two weeks later the plaintiff returned to work, although she found it difficult because of back pain.
10At the end of that year, and after a period of annual leave, and having returned to work, the plaintiff again experiencing difficulties because of her back. The plaintiff said that on 6 January 2020, Mr Akil informed her that she should not be back at work performing her typical duties. She was subsequently classified as a casual employee, and on or about 31 March 2020, the plaintiff was, as she characterised it, “effectively let go when Covid hit”.[16]
[16] Exhibit P1, PCB 8, paragraph 20.
Post injury
11The plaintiff said that she studied health administration,[17] and then obtained employment with Amplifon Medical Centre with whom she commenced on 9 August 2021. There she remains employed. She is employed fulltime and her employer is aware of her back injury. She performs audiological testing. Her job does not involve any heavy lifting, but if she is required to sit for too long, she will stand and stretch because of back pain. The job allows the plaintiff to alternate between sitting and standing. The plaintiff earns approximately $1,800 gross per fortnight. In dollar terms, the plaintiff is now earning more than in her pre injury employment with the defendant.
[17]It was not explained in the evidence what the course involved in terms of duration or commitment and whether or not if it was an online course or how the plaintiff coped with the study involved.
Pain and suffering consequences
12The plaintiff’s account of the many consequences suffered by the plaintiff as a result of her injury is distilled from her affidavit evidence.
13The plaintiff deposed that back pain can on occasion, affect her ability to sleep.
14The plaintiff believes that because of her relative inactivity since injury, she has gained approximately 10 kgs and has increased to a size 12 form a size 10, which she finds upsetting.
15The plaintiff deposed that driving for a long time, invariably requires her to stop and stretch her back.[18]
[18] A long time was not better explained.
16The plaintiff said she is unable to perform any heavy lifting because of her back pain.
17Prior to her back injury, the plaintiff described being very active with her son who is now in his early teens. She and he would walk a good deal and take photographs. Sometimes she would run with him. Sometimes while he was riding his bike, she would accompany him on roller blades. Sometimes she would play soccer with him in the park. All of these actives are now “very difficult” for her because of her back pain.[19] She said she used to swim without any difficulty, but has not swum for two years.
[19] Exhibit P1, PCB 10, paragraph 34.
18The plaintiff deposed that around the home she needs to pace herself with chores and generally only performs harder tasks such as scrubbing the shower, or attending to the garden which consists of mowing the lawn, trimming trees and clearing leaves, when her back is feeling a bit better but that there are days when her back is such that she is unable to perform these tasks.[20]
[20]Of course these are not daily demands and what I take from the plaintiff’s account is that there are days she can perform these tasks.
The second affidavit
19In her second affidavit dated 26 June 2023,[21] the plaintiff deposed that her back had worsened. In particular, she said that the pain went down her back and radiated into both legs, but especially the right leg, and she can often experience spasm. She said that she also suffers a sensation of numbness in her groin region and down her legs.
[21]Exhibit P1, PCB 11-15.
20She deposed that sitting for prolonged periods of time aggravates her symptoms, and also said her symptoms can be bad when simply lying down on the couch at home. She said that often when seated on the couch, she places a pillow behind her back for support. In bed she places a pillow higher up her back such that she is half lying and half sitting, a position the plaintiff said helps relieve some of her symptoms. On waking of a day, her back is stiff and sore. Moreover, if she sleeps on her stomach, she finds it hard to get moving in the morning.
21The plaintiff deposed that she continues to suffer from interrupted sleep because of back pain, with the result that she often feels tired during the day.
22She said that when her pain is particularly bad, she will take over-the-counter painkillers such as Panadol.[22]
[22]The extent of the plaintiff’s evidence is that she takes such pain relief four to five days per week.
23The plaintiff said she had not returned to her physiotherapist since making her first affidavit in June 2022, as it was difficult to schedule appointments due to her work commitments.
24The plaintiff’s work duties with Amplifon include advising clients, performing receptionist work and undertaking hearing tests. There is a lot of sedentary work, sitting in front of a computer and keyboard and the prolonged sitting aggravates her back pain, and so she says that she often needs to get up and stretch. The plaintiff is provided with an ergonomic chair by her employer, that she finds is of assistance.
25To ease her pain and discomfort, and for the relief of symptoms, the plaintiff also makes use of heat bags and ice packs to her back.
26The plaintiff deposed that her injury has affected her in a significant way in terms of her relationship with her son Alex. He is very active and there are many activities that she cannot do with him. For example, he plays tennis competitively, but she struggles to hit a ball with him. On one occasion they went to Gumbaya World and he wanted her to accompany him on rides, but she was unable to do so because of her back and she was also fearful of suffering further injury.
27The plaintiff deposed that her son enjoys bike riding and before her injury she would often accompany him on roller blades. She says that she has tried twice to do this since her injury, but on both occasions, she was extremely fearful of reinjuring herself.[23] She says that generally, she is restricted to short walks with Alex, about around the block and not much more.
[23] The plaintiff did not say she suffered pain when doing so.
28The plaintiff said that she has been unable to lose any of the weight she has gained, of approximately 10 kgs, since suffering her injury.
29The plaintiff deposed that she shops with her son on occasion and has a stroll around with him. She said he helps out a lot with household duties, and assists her with heavy bags when grocery shopping. If she goes shopping alone, she will use multiple shopping bags to make them more manageable.
30The plaintiff deposed that her son does the vacuuming, makes his own bed and assists her with her bed making.
31The plaintiff said that standing in the kitchen cooking after a day at work can be difficult, and so she will often cook on a Sunday so as to have meals prepared for the week ahead but otherwise, will, when pain dictates, resort to buying takeaway.
The third affidavit
32In her third affidavit dated 18 December 2023,[24] the plaintiff deposed that she continues to suffer from constant pain in her lower back. She situated the pain as mostly in the right side of her lower back. In addition to the symptoms described in her second affidavit, the plaintiff said she has experienced altered sensations down both legs, with the right side worse than the left. She has pins and needles down to her toes. She continues to suffer from numbness and cramping in her back.
[24]Exhibit P1, PCB 16-21.
33The plaintiff deposed that the following activities aggravate her lower back pain:
(a) prolonged walking and standing;
(b) prolonged sitting or even sitting for short periods on chairs with no support;
(c) driving;
(d) squatting and kneeling;
(e) reaching, bending and lifting;
(f) turning and twisting; and
(g) pushing and pulling.
34The plaintiff deposed that her back pain continues to affect her sleep. She uses extra pillows to help her get comfortable when she goes to bed and continues to sleep propped up by pillows. She said that her back pain continues to wake her up in the night.
Croatia trip
35The plaintiff deposed that from October 2022 to mid-November 2022 she was in Croatia with her son, as her father had passed away, and her mother was unwell. She found the plane trip very hard on her back. She said that it was extremely uncomfortable and painful, and she resorted to the use of Panadol. The plaintiff said she does not rely on anything stronger, as it upsets her stomach.
36The plaintiff deposed that during the flight, she tried to get up and stretch where possible, but this was difficult as the plane was full. She asked for assistance where possible, and when she had to lift luggage. Whilst in Croatia, she said that she spent most of the time with her family and did not get up to anything active.
Recent treatment
37The plaintiff deposed that she last saw her Dr Al-Sharifi on about 7 June 2023, but because he decided to travel overseas indefinitely, she had to find another doctor which was an undertaking she found difficult as a Workcover patient.
38The plaintiff was referred to Dr Baglar who sent her for a further MRI of her lower back on 27 September 2023. Dr Baglar subsequently suffered an interruption to his practice and, after a lengthy search, the plaintiff secured an appointment with Dr Luka, of the Coburg Family Practice, whom she initially saw on 20 December 2023.
39The plaintiff deposed that since the date of swearing her second affidavit she has returned to regular physiotherapy because the clinic started offering late appointments, which she is able to attend after work and so she attends on Tuesday’s. Otherwise, she continues to take over the counter medication for her back pain usually four to five times a week.
40The plaintiff said that her employment options have been significantly limited because of her back injury. She deposed that she had planned to look into something of her own, either taking over the mussel business or getting into photography professionally once her son was older and she had some savings. However, she does not think that she could perform physical work on a regular basis, or pursue her “dream job of working in photography.”[25]
[25] Exhibit P1, PCB 20, paragraph 21.
The plaintiff’s medical evidence
Mr Ash Chehata
41Mr Chehata in his report to the plaintiff’s solicitors dated 29 May 2023, addressed the plaintiff’s current function writing that:
·She is suffering from ongoing intermittent back spasms and radiating pain, particularly on the right and left buttocks.
·She has struggled to return back to any gym, swimming or cycling.
·She also is now unable to run or rollerblade.
·She is able to perform all of her activities of daily living
·At the end of the day she is very slow and things are very painful.
·She is able to drive and shop but carries the shopping in small bags and she has no family help.
·She has tried acupuncture, which has actually worsened her pain.
·She has now weaned herself off all medications and takes no pain relief.
·She ultimately has been able to return back to full-time employment working in a hearing clinic, but she still has ongoing issues with sitting more than 10 to 15 minutes, standing for more than 10 to 15 minutes, and she needs to rotate herself during the day when she is working at the clinic.[26]
[26] Exhibit P4, PCB 31-32.
42Mr Chehata reported:
On examination, she has a mildly restricted range of movement with a flexion to approximately 70 degrees.
The sciatic nerves are intact bilaterally and she is able to flex past 90 degrees at the level of the hip.
She is able to heel raise and toe raise and the common peroneal nerves are intact.
There is no wasting of the quadriceps, hamstring or calf musculature.
She has no walking aides.
She has no antalgic gait and is Trendelenburg negative.[27]
[27] Exhibit P4, PCB 32.
43Mr Chehata diagnosed “a discogenic soft tissue injury in the lumbar spine secondary to repetitive lifting.”[28] He said that the injury had affected the plaintiff’s capacity to return back to her pre-injury employment as a cook, as such type of work required her to put herself into awkward positions beyond bending and stretching. He noted that the plaintiff had transitioned into full-time employment working in administration in a hearing clinic, and at this stage there was no likelihood she would need surgery. He considered that the plaintiff’s injuries appeared to be permanent and long term. He noted that she could perform all of her social and domestic activities, however, her recreational pursuits such as swimming, going to the gym and cycling had become impossible. He wrote that the plaintiff was fearful of recurrent bouts of muscle spasms and was careful with her ongoing activity levels.
[28]Exhibit P4, PCB 33.
Dr Al-Sharifi
44The plaintiff’s former GP Dr Al-Sharifi provided a number of reports but there is no need to refer to them all, save for his report dated 30 August 2023.[29] In which he noted that the plaintiff had been his patient from 2017 until June 2023, when she transferred to another GP due to his departure overseas.
[29]Exhibit P5, PCB 53-55.
45Dr Al-Sharifi considered that the plaintiff had suffered multiple lower lumbar spine disc prolapses caused by the work-related injury on 4 October 2019. He observed that on 19 September 2022 she had attended for her WorkCover review and certificate and she was stressed regarding her planned travel overseas and how it may affect her lower back injury. She said that she needed to travel because her father had passed away and her mother was quite unwell. Dr Al-Sharifi advised the plaintiff to walk while on the plane, take pain relieving medication if needed, and to avoid lifting heavy bags and to ask for assistance.
46The plaintiff saw Dr Al-Sharifi following her return from Croatia on 21 November 2022. He recorded that she looked anxious and was stressed about her back pain, and that jet lag was affecting her sleep. The plaintiff was taking simple analgesia and using heat packs. Dr Al-Sharifi recommended rest.
47Dr Al-Sharifi wrote that the plaintiff had “lost her capability to do any kind of job involve heavy lifting, long standing long sitting and repetitive pending as that can aggravate her back injury, she has lost her enjoyment, with restriction in normal daily activity like housework and garden work as prior to her injury.”[30]
[30] Exhibit P5, PCB 55.
Soaring Health Physiotherapy Report
48The plaintiff’s tendered a report from treating physiotherapist Mr Nav Ahmad-Khan dated 30 August 2023.[31] In answer to whether he expected the plaintiff’s capacity for work to change in the foreseeable future, Mr Ahmad-Khan said:
I believe that she has capacity to improve her function, if she is provided with the support and time to follow these through. Between working full time and being a single mother she has limited availability to follow an intensive therapy program. If she has allied health support from her physios and is allowed to train in the local gym she has potential to get stronger, improve her capacity and manage her injury.[32]
[31]Exhibit P6, PCB 61-62.
[32]Exhibit P6, PCB 62.
49Regarding, the plaintiff’s prognosis Mr Ahmad-Khan said:
…Her injury is worsening and will continue to do so if she does not have support and access to the proper supports and therapies. She needs regular physiotherapy input and with that she needs time to build her strength and manage her symptoms from her injury. As she strengthens her body, depending on how she tolerates it she may improve. This will be hindered by the fact that her injury is in the chronic stage and will also need to keep working full time to support herself. There is also a note made that she would need follow up diagnostics to ascertain if her initial injury has worsened and this will also impact her long term prognosis.[33]
[33]Exhibit P6, PCB 62.
Radiology
50At CT scan of the plaintiff’s lumbar spine conducted on 7 October 2019 reported:
There is mild disc bulging at the L3/4 level.
At the L4/5 level there is a moderate sized central and left paracentral disc herniation mildly encroaching on the thecal sac and more markedly encroaching on the left L5 nerve root lateral recess.
At the L5/S1 level there is a small central and left sided posterior disc herniation not likely to significantly compromise the thecal sac and minimally encroaching on the left L5 nerve root exit foramen.
No other abnormality of the lumbar spine is seen.[34]
[34]Exhibit P7, PCB 83.
51An MRI of the lumbosacral spine dated 27 September 2023 reported:
Mild disc bulges L3/4 and L4/5 with small annular tears but no high degree of canal stenosis. The disc bulge at L4/5 does contact the L5 nerve roots bilaterally.[35]
[35]Exhibit P8, PCB 89.
Lay affidavits in support
52The plaintiff relied on affidavits of Ms Kristina Kernjak dated 27 June 2023,[36] and Ms Vanessa Terzievski dated 30 June 2023.[37] Neither deponent was required for cross-examination and the affidavits were received without objection. In short, both deponents explained that they are friends of the plaintiff and have noticed changes in her demeanour since the injury.
[36]Exhibit P2, PCB 22-24.
[37]Exhibit P3, PCB 25-27.
53Ms Kernjak deposed that prior to the injury, she and the plaintiff would often dine together and attend bars, but since the injury they do not venture out as much because the plaintiff cannot be out on her feet for long periods of time due to pain. She says that she has noticed the plaintiff in pain and experiencing cramps on a number of occasions when at her home.
54In the same vein, Ms Terzievksi deposed that since the injury she does not go out with the plaintiff as much as they once did, and they now tend to visit at each other’s homes. She has also observed the plaintiff to be in pain on a number of occasions but added that plaintiff is not one to complain.
The defendant’s medical reporting
Dr Hazem Akil
55In a report date 6 January 2020, Dr Hazem Akil, neurosurgeon reported to Dr Al-Sharifi that he had examined the plaintiff on referral.[38] He recited the circumstances of her work and injury. He said that when he examined the plaintiff, her straight leg bilateral leg raise had a normal range. She had no sensory deficit, or bilateral motor deficit.
[38]Exhibit D1, DCB 9-10.
56Dr Akil noted that he had reviewed the CT scan of the plaintiff’s lumbar spine. He reported that the plaintiff had good lumbar lordosis, with a small disc bulge particularly at the level of L4/L5.
57Dr Akil commented that although he would usually request a further MRI scan to investigate the plaintiff’s condition, she had “had improved significantly” and he did not see that there was any purpose to be gained from a further scan.[39] He said that he had advised the plaintiff “to continue working with her physiotherapist particularly on strengthening her core muscles.”[40] He went onto say that he had “assured her that this should improve with time and physio.”[41] He added that he told the plaintiff that should “she have any recurrence of the pain that she can contact me at any time.”[42]
[39]Exhibit D1, DCB 9.
[40] Exhibit D1, DCB 9.
[41] Exhibit D1, DCB 9.
[42] Exhibit D1, DCB 9.
Dr Graeme Doig
58Dr Doig examined the plaintiff at the request of the defendant insurer on 7 December 2021 and provided a report dated 14 December 2021 for the purposes of an impairment assessment evaluation.[43] After reciting the plaintiff’s work and the incident of injury, Mr Doig reported that a CT scan was undertaken three days after the incident, which revealed a moderate inter-vertebral-disc herniation on the left side with possible impingement of the L5 nerve-root, and a smaller protrusion at L5/S1. He noted that the plaintiff had been treated with conservative management and reviewed by a neurosurgeon.
[43]Exhibit D2, DCB 11-15.
59Dr Doig recited that the plaintiff related constant lower-back pain and stiffness. She described a heavy sensation in her left arm and leg, which he considered unrelated to her lower-back condition. He noted that occasionally the plaintiff suffered discomfort in her left buttock and thigh.
60Dr Doig described the plaintiff as a slim lady who walked comfortably into his consulting rooms, in no distress and with no evidence of a limp. He said that she remained tender in the lumbo-sacral region with no deformity. She could carefully forward flex to her lower shins, with reduced lateral flexion to the left and only 15 degrees of spinal extension, exhibiting guarding and dysmetria. Thoracic rotation was preserved.
61He noted that hip examination was satisfactory. Straight leg raising was full, with negative nerve-root-tension signs and there was no focal neurological deficit of the lower limbs. She was able to walk on her heels and toes satisfactorily.
62Dr Doig diagnosed an L4/5 inter-vertebral-disc protrusion on the left side with possible nerve-root entrapment. He found no evidence of radiculopathy and noted that the plaintiff continued to suffer from lower-back pain and restrictions.
63Dr Doig considered that the plaintiff’s prognosis was guarded with respect to returning to physically demanding employment.
Dr Catherine Bones
64Occupational physician Dr Bones examined the plaintiff at the request of the defendant on 12 January 2022, and provided a report dated 19 January 2022.[44] The plaintiff reported to Dr Bones numbness in her left arm, and that she had undergone an MRI of her cervical spine, which she was told was normal.
[44]Exhibit D3, DCB 16-22.
65The plaintiff explained to Dr Bones that she experiences intermittent low back pain associated with certain movements such as reaching up to a shelf. She said she can experience intermittent pins and needles in the left leg, and on the right.
66Dr Bones said she had not been provided with any diagnostic imaging, but she noted a certificate of capacity dated 13 October 2019, which advised that a CT scan showed:
mild disc bulging at the L3/4 level, moderate-sized central and left paracentral disc herniation at the L4/5 level mildly encroaching on the thecal sac and more markedly encroaching on the left L5 nerve root lateral recess, and an L5/S1 small central and left-sided posterior disc herniation not likely to significantly compromise the thecal sac and minimally encroaching on the left L5 nerve root exit foramen.[45]
[45] Exhibit D3, DCB 18.
67Dr Bones said that the plaintiff “is off regular medication and takes Panadol as required only.”[46] She reported that the plaintiff’s hobbies were rollerblading and photography.
[46] Exhibit D3, DCB 18.
68Dr Bones said that the plaintiff undertakes household tasks and gardening, but experiences discomfort in their execution.
69Dr Bones wrote that the plaintiff appeared positive in her approach, particularly in regard to her new employment.
70Dr Bones recorded that the plaintiff walked with a normal gait and appeared to sit comfortably during the initial assessment. She stood 174 cm tall and she told Dr Bones that she weighed 76 kg, her weight having increased by 10 kgs since her injury.
71Dr Bones recorded that examination of the plaintiff’s lumbar spine revealed a normal lumbar lordosis, and her active range of movement of the lumbar spine was not significantly restricted. There was no neurology in either lower limb.
72In summary, Dr Bones considered that the plaintiff’s condition had significantly resolved with conservative management and over time, and that having secured alternative employment she was “greatly enjoying her new role.”[47]
[47] Exhibit D3, DCB 19.
73Dr Bones believed that the plaintiff had sustained a strain-type injury to the lumbar spine, but that it had significantly resolved.
74Dr Bones said that because the plaintiff had experienced one significant back episode and imaging reported degenerative changes of the lumbar spine, she ought not to return her pre-injury duties given the risk of significant reaggravation or recurrence of low back pain.
Dr Francis Ghan
75Dr Ghan is an orthopaedic surgeon who provided a written report to the defendant’s solicitors dated 18 December 2023, following an examination conducted on 4 December 2023.[48]
[48] Exhibit D4, DCB 23-28.
76Dr Ghan reported the plaintiff’s symptom as one of “ongoing back pain.”[49] He reported that the plaintiff was still receiving physiotherapy once a week, and acupuncture intermittently. The plaintiff told Dr Ghan that her back pain was at a level of 9/10. She was taking Panadol for pain and had consulted Dr Akil, who had not recommended surgery.
[49] Exhibit D4, DCB 25.
77Dr Ghan said the plaintiff stood 173 cms tall and weighed 83 kgs. She walked normally with no limp. Her general body demeanour indicated no pain. She was able to stand on her toes and on her heels. She was able to squat.
78Dr Ghan referred to the MRI scan of 27 September 2023 that reported disc bulging at L3/4 and L4/5 and the absence of stenosis and no facet joint arthrosis. He noted that a CT scan of the lumbar spine of 7 October 2019 identified a small central L5-S1 disc protrusion, and at the L4-5 a moderate L4-5 disc protrusion.
79In summary, Dr Ghan reported that examination of the plaintiff demonstrated no evidence of sciatica or discogenic mechanical instability. The lumbar spine examination was normal.
80In Dr Ghan’s opinion, the nature of the plaintiff’s injury was unclear but likely to be a non-specific muscular back strain, that he assessed as resolved. He said that the MRI of the lumbar spine was “completely normal. It only demonstrated mild disc bulging at L3/4 and L4/5.”[50] He considered that there was no evidence of any residual effect to the lumbar spine from injury on 4 October 2019. He considered the plaintiff would be able to return to normal duties and hours, with no treatment required. He said that the plaintiff had an excellent prognosis.
[50] Exhibit D4, DCB 27.
81Dr Ghan wrote that the plaintiff’s, “activities of daily living, domestic, leisure and recreational activities have not been impacted.”[51]
[51] Exhibit D4, DCB 27.
Soaring Health Sports & Wellness Centre Physiotherapy Questionnaires
82The defendant tendered “Orebro Musculoskeletal Pain Screening” Questionnaires (“the first questionnaire”) and “Modified Oswestry Low Back Pain Disability Questionnaires” (“the second questionnaire”) which the plaintiff had completed when she attended her physiotherapist for treatment over around eight sessions.[52] The questionnaires appeared to cover sessions in June 2020, October 2020, December 2020.
[52] Exhibit D5, DCB 29-50 & 53-61.
83The first questionnaire posed various questions and provided a scale from zero to ten for responses. The questions seeking a rated response included:
(a) “How would you rate the pain that you have had during the past week” and the plaintiff’s response was to circle the number five on a range where zero represented “no pain” and ten meant “pain as bad as it could be”; and
(b) “I can sleep at night” where zero on the answer scale meant “can’t do it because of pain problem” and ten indicated “can do it without pain being a problem.” The numbers that the plaintiff circled on the scale in response varied from number five to number nine over the sessions.
84Other questions included, “how tense or anxious have you been in the past week?” and “in your view, how large is the risk that your current pain may become persistent?”
85The second questionnaire addressed pain intensity and various aspects of everyday life such as sitting, standing, lifting, walking, social life and sleeping and posed various statements on a scale that ranged from “I can do that without increased pain” to “I cannot do that at all because of the pain it causes.” The plaintiff was asked to tick the statement that most closely described her current condition. For example:
(a) Regarding pain intensity, the plaintiff on each questionnaire ticked the statement at the lowest end of the scale, “I can tolerate the pain I have without having to use pain medication.”
(b) As to personal care, the plaintiff on each questionnaire ticked “I can take care of myself normally without causing increased pain.”
(c) On lifting, the plaintiff’s answers varied from a high-range answer of “I can lift only very light weights” to a lower-range answer which indicated that she could manage to lift weights that were conveniently positioned.
(d) On social life, the plaintiff ticked on each questionnaire a mid-range statement that “pain prevents me from participating in more energetic activities (e.g., sports, dancing).”
(e) As to sleeping, the plaintiff ticked on each questionnaire the low range answer “pain does not prevent me from sleeping well.”
The plaintiff’s social media
86The defendant tendered various screenshots of posts on the plaintiff’s Facebook account obtained on 24 August 2022.[53] There were also screenshots of the plaintiff’s Facebook profile taken on 14 June 2023, at which time the plaintiff’s account had been made private and was not accessible.[54]
[53] Exhibit D6, DCB 62-65.
[54] Exhibit D6, DCB 66.
87There was a picture of the plaintiff taken on a beach with her son. They were both captured mid-air having jumped from the sand. There was a picture of the plaintiff sitting on a Harley Davison motorbike. She explained in cross-examination that she entered into a discussion with the owner, and had simply posed on the bike for a photo. There were other images of the plaintiff posing for photos with her son and pictures of them at the snow, jumping in the air for photos. The plaintiff explained that they were at the snow for a day trip as her lad had not previously seen snow.[55]
[55] Transcript (“T”) 34, Line (“L”) 13-15.
88In short, the screenshots were of limited probative worth. They did little to contradict the plaintiff’s account of her pain and functional restrictions or advance the defendant’s case. They struck me, however, as corroborating the plaintiff’s contention expressed in her affidavit evidence that she spends any spare time she has with her son.[56] She seems to be a dutiful parent.
[56] Exhibit P1, PCB 12, paragraph 9.
Cross-examination
89The plaintiff explained why she had not returned to see her neurosurgeon since 2020, despite suffering ongoing pain since that time, and despite her neurosurgeon’s advice that she should feel free to see him again if she had any recurrence of pain. The plaintiff said her nonattendance was not because she was not in pain but because “everything happened during Covid, so actually to be able to see a doctor was really hard. And also, I’m petrified to go back to him because if he does say that I do need the operation. I’m scared he was going to look after my child.”[57] Ultimately the plaintiff refined her evidence to be that she had not returned to see Dr Akil because she felt “scared.”[58]
[57]T 14, L 13-18.
[58]T 14, L 30.
90The plaintiff said that she had been told “by several doctors if it comes to the point that I can’t bear anymore the pain, that surgery will be the only thing where I’m going to end up and I’m quite scared. I know that that is not in the report, but I’ve been told that, so-yeah.”[59] Although the plaintiff understood that her evidence about surgery are not corroborated in any of the medical reporting adduced in the hearing, she maintained this is what she had been told.
[59]T 15, L 16-22.
91The plaintiff said she has now recently obtained an appointment to see Dr Akil in three months’ time.
92The plaintiff was directed to the contents of Dr Doig’s report of December 2021, in which he said that the plaintiff enjoys walking to keep fit, but that most of her spare time is taken up by her son and that she is able to drive a car.[60] The plaintiff accepted that she sometimes takes “small walks”.[61]
[60]Exhibit D2, DCB 11-15.
[61]T16, L15.
93The plaintiff was directed to the contents of the report by Dr Bones who, among other matters, referred to the plaintiff having experienced numbness in her left arm. Dr Bones wrote that:
Ms Mengot’s condition has significantly resolved with conservative management and time. Ms Mengot has now sourced alternative employment and is greatly enjoying her new role.[62]
[62] Exhibit D3, DCB 19.
94The plaintiff agreed that she enjoyed her new job.
95The plaintiff was asked about the comment by Dr Bones that “she experiences intermittent low back pain associated with certain movements such as reaching up to a shelf” and that she can experience intermittent pins and needles in the left leg, and that on the night preceding her attendance on Dr Bones she experienced pins and needles in her right leg.[63]
[63]Exhibit D3, DCB 18.
96The plaintiff disagreed having told Dr Bones that her back pain was “intermittent”, but instead she said that she told Dr Bones her back hurts all the time. When it was suggested to her that she told Dr Bones that she experiences low back pain every now and then, the plaintiff said, “I can’t remember.”[64] When pressed, the plaintiff said, “I’m pretty sure I said that my back hurts all the time.”[65] She added, “sometimes, I said, it’s worse and sometimes it’s better. So I would think that means intermittent, if somebody can say it like in that way, that sometimes better, sometimes worse.”[66]
[64] T 18, L 17.
[65] T 18, L 23-24.
[66] T 18, L 26-29.
97As to the comment by Dr Bones that she was positive about her new employment, she said she was positive in the sense that she had been able to obtain a job, for which she is “very happy and thankful.”[67]
[67] T 19, L 12.
98The plaintiff was next directed to the report by Mr Chehata dated 29 May 2023.[68] In addressing the plaintiff’s current functioning, Mr Chehata reported that the plaintiff is suffering from “ongoing intermittent back spasms and radiating pain, particularly on the right and left buttocks”[69] with which the plaintiff agreed.
[68] Exhibit P4, PCB 29-35.
[69] Exhibit P4, PCB 31.
99As to the statement attributed to the plaintiff by Mr Chehata, that she had weaned herself off all medications and took no pain relief,[70] the plaintiff replied that she was “pretty sure that I always said that I have some painkillers here…”[71]
[70] Exhibit P4, PCB 31.
[71] T 20, L 14-15.
100Dr Ghan who examined the plaintiff on behalf of the defendant on 4 December 2023 said that:
She is still having physiotherapy once a week and also acupuncture intermittently. She reports her back pain at 9/10. She takes Panadol for pain. She has consulted Dr Akil, who recommended no surgery.[72]
[72] Exhibit D4, DCB 25.
101The plaintiff said she could not remember if she told Dr Ghan that her pain was 9 out of 10, but that “sometimes it is nine and 10; correct.”[73] She agreed that she takes Panadol for pain relief.
[73]T 21, L 3.
102As to Dr Ghan’s comment that Dr Akil, had not recommended surgery, the plaintiff said that in the course of the appointment Dr Akil, did refer to surgery.
103The plaintiff was asked about her weight. Dr Ghan had recorded in December 2023, a weight of 83 kgs with which the plaintiff agreed.
104The plaintiff said she could not remember if Dr Ghan told her that no further treatment was required, and she could also not recall if Dr Ghan told her that her prognosis was excellent. The plaintiff insisted that Dr Ghan said, “that he has to go through all the paperwork to decide what he will write in the report.”[74]
[74]T 21, L 15-16.
105Similarly, in relation to that part of his report in which Dr Ghan wrote that his physical examination of the plaintiff demonstrated “no evidence of sciatica nor any evidence of reversal of rhythm”[75] the plaintiff insisted that she told Dr Ghan that she did have pain, and she was critical of the extent of his examination of her and said, “he hardly look at me or even touch me.”[76] The plaintiff repeated that Dr Ghan did not discuss with her, at all, the contents of what came to find its way into his report.
[75]Exhibit D4, DCB 26.
[76]T 21, L 25.
106The plaintiff was questioned about her evidence of pain. The plaintiff was directed to the contents of her first affidavit of June 2022 in which she deposed:
To this day I continue to suffer from ongoing pain in my low back which radiates down into my left buttock and thigh. I also suffer from a sensation of pins and needles in the left leg and on occasion experience similar symptoms in my right leg.[77]
[77] Exhibit P1, PCB 9, paragraph 25.
107The plaintiff was asked about her later affidavit of June 2023, which included:
My back injury has not improved since swearing that affidavit, and, if anything, has worsened. In particular, the pain going down my back, now radiating down both legs but especially down the right leg, is worse than before and often goes into spasm.[78]
[78] Exhibit P1, PCB 11, paragraph 2.
108The plaintiff was directed to her third affidavit of December 2023, in which she said that “the symptoms in her back remained largely unchanged” from her description in her second affidavit, and that she continues to suffer from “constant pain” in her lower back with the “pain mostly in the right side” of her lower back.[79] She deposed to also experiencing “altered sensations down both legs - with the right worse than the left” and experiencing pins and needles all the way into her toes, and numbness and cramping in her back.[80]
[79] Exhibit P1, PCB 16, paragraphs 1-2.
[80] Exhibit P1, PCB 16, paragraphs 5-6.
109The plaintiff adopted these accounts of pain that she had expressed in her affidavits.
110Concerning sleep, the plaintiff was questioned about her description contained in her affidavit of June 2022 that back pain can occasionally affect her ability to sleep,[81] and her subsequent affidavit in which she deposed that she suffers from interrupted sleep from back pain.[82] The plaintiff said her sleep is interrupted “pretty much every night.”[83]
[81] Exhibit P1, PCB 10, paragraph 30.
[82] Exhibit P1, PCB 12, paragraph 7.
[83] T 23, L 19.
111A good deal of cross examination was directed to responses given to questionnaires that the plaintiff completed on attending her physiotherapist. I have summarised the questionnaires earlier in these reasons but it is relevant to refer again to some of them.
(a) in answer to the proposition “I can sleep at night” the plaintiff had circled an answer of number eight, where zero on the scale indicated that she was unable to sleep due to pain and ten indicated that she could sleep without pain being a problem.[84]
(b) the plaintiff had indicated in relation to the intensity of her pain that the statement which most closely described her condition was “I can tolerate the pain I have without medication being a problem.”[85]
(c) she had indicated also in relation to sleep that the statement which most closely described her condition was “pain does not prevent me from sleeping well.”[86]
[84]Exhibit D5, DCB 29.
[85]Exhibit D5, DCB 30.
[86]Exhibit D5, DCB 30.
112When asked to explain the relatively benign responses in regard to her sleep, and the apparent inconsistency with her affidavit and oral evidence, the plaintiff said of the questionnaires, “maybe I didn't understand the question. I'm sorry.”[87] On further questioning by Ms Katotas about the answers the plaintiff had provided in relation to her sleep, and a pain intensity on the scale of zero to ten, the plaintiff expressed some confusion. She said “I'm sorry? ---I sleep only couple hours. I try not to sleep very long time because I see when I sleep for a long time that in the morning it's really hard to get - back, like it's very stiff and very sore.”[88]
[87]T 24, L 25-26.
[88] T 25, L 2-5.
113The plaintiff was asked if the answers she provided to the questionnaires were correct, and therefore, that her pain level was a six out of ten and that she had mild trouble sleeping, indicating an eight out of ten on a scale where ten indicated no trouble sleeping due to pain. She was asked whether she had understood the questions and she said, “I think I always put the same answer.”[89] She further offered by way of explanation “I'm sorry, I'm just - I was scared if I put anything else, that I will not be able to return to work, that they will stop me from working.”[90]
[89]T 26, L 12-13.
[90]T 26, L 15-17.
114The plaintiff maintained that she had complained to her GP about her weight. However, Ms Katotas put to the plaintiff that at various times clinical attendances had recorded her weight, but without complaint. For example, on 5 March 2018 the plaintiff’s weight was recorded by her GP as 74 kgs.[91] The plaintiff said she had gained about 10 kgs or a bit more, and before the injury she was under 70 kgs, although no date for this was identified. On 30 November 2019, the plaintiff’s weight was recorded by her GP as 71 kgs.[92] On 5 August 2021, the plaintiff’s weight was recorded to be 75 kgs.[93]Ms Katotas put to the plaintiff that the clinical notes are silent of a complaint to her GP of weight gain.
[91]Exhibit P9, PCB 141.
[92]Exhibit P9, PCB 134.
[93]Exhibit P9, PCB 122..
115The plaintiff was questioned about her anticipated work trajectory but for the injury. She said she thought herself continuing with her former employment.
116The plaintiff was asked about her evidence that she enjoyed interacting with people, enjoyed a lively environment and had been ambitious for a future in which she could undertake a pursuit in which she could have been physically active. She deposed that she planned to look into starting up a business of her own, either taking over the mussel business or getting into photography professionally once her son was a bit older and her savings had improved. However, she no longer felt that she would be able to start up or run her own business and, in particular, be involved in the fitting out of a business or, as far as professional photography is concerned, stand for long periods of time or unpack stock, or in the pursuit of photography be able to get into or sustain awkward postures.
Re-examination
117In re-examination the plaintiff said that she would be unable to undertake the work she did before her injury.
118The plaintiff said she is not and has not been prescribed any medication for her disturbed sleep.
119The plaintiff was directed to a clinical note of attendance dated 21 November 2022, where it was recorded that she had returned from Croatia on 17 November 2022 and was presenting with severe back pain, and a flareup of pain when she was overseas. The plaintiff presented as very anxious, stressed, feeling very fatigued and jetlagged and that she was barely sleeping due to time difference and severe pain. The entry read:
recently came back from Croatia last Thursday 17/11/2022
Severe back pain
flare up of pain when she was overseas
father passed away - heart attack
very anxious
stressed
feeling very fatigued
jet lagged
barely sleeping due to time difference and severe pain
mild disc bulging at the L3/4 level.[94]
[94]Exhibit P9, PCB 112.
120The plaintiff said she was “in a lot of pain after the plane flight, yes; correct.”[95] The plaintiff said that her jetlag had improved within a couple of weeks and her sleep returned to what it had been prior to her trip after “maybe a month.”[96]
[95]T 42, L 2-3.
[96]T 42, L14.
121Mr Harrison directed the plaintiff to a note of clinical attendance dated 8 April 2023 described as a “VERY LONG CONSULTATION”, and although the plaintiff could not recall the context of the consultation, the following was recorded:
WORKING FULL TIME
NO PAYMENT FROM WORK
STILL
PAIN DAILY BASE, EFFECTING HOME WORK
WORKING IN OFFICE
PHYSICAL WORK PAIN AFTER PAIN NEXT DAY
STAND 2 HOURS
HAS TO MOVE
LOST SPORT ACTIVITY
LESS ACTIVE
PAIN KILLER ONLY IN SEVERE, PANADOL / NUROFEN[97]
[97]Exhibit P9, PCB 107-108.
122Mr Harrison asked the plaintiff questions about the context in which she had discussed with her GP that she was less active. He asked her why she thought that she had put on weight and she said, “because I’m not active.”[98]
[98]T 39, L 22.
123As regards the physiotherapy questionnaires, Mr Harrison asked the plaintiff what she had meant when she had circled an answer of seven on the scale of zero to ten, in answer to the question “I can sleep at night” where ten on the scale indicated that the plaintiff could sleep without pain being a problem and zero meant that she could not sleep because of pain.[99] The plaintiff said that her answer had meant “somewhere in between.”[100]
[99]Exhibit D5, DCB 41.
[100] T 40, L 5.
124As to her response to a later questionnaire in which she had circled a number five on the scale in answer to the same question whether “I can sleep at night”[101] the plaintiff answered, “I didn’t sleep well that night.”[102]
[101] Exhibit D5, DCB 47.
[102] T 40, L 15-16.
General legal principles
125The following statements represent settled law. The Court must not grant leave to commence common law proceedings unless it is satisfied, on the balance of probabilities, that the “injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in section 325(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).[103]
[103] Section 335(5) of the Act.
126The definition of “serious injury” contained in section 325(1) of the Act and on which the plaintiff relies reads:
“‘Serious injury’ means –
(a) Permanent serious impairment or loss of a body function ….”
127To establish serious injury, the plaintiff must prove, on the balance of probabilities, that:
“the injury” suffered by him arose out of, or in the course of, or due to the nature of employment;[104]
[104] Section 327 of the Act; see also Barwon Spinners Pty Ltd & OrsvPodolak (2005) 14 VR 622 (“Barwon”).
“the injury” and resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[105]
the “consequences” of the impairment in relation to “pain and suffering” must be “serious” – that is, the impairment or loss of body function “when judged by comparison with other cases in the range of possible impairments … may be fairly described as being more than significant or marked, and as being at least very considerable”.[106]
[105] Barwon (2005) 14 VR 622, 638 [33].
[106] Section 325(2)(c) of the Act.
128The requirement to satisfy these elements is sometimes referred to as the “narrative test.”
129The question of whether an injury satisfies the narrative test is largely one of impression or value judgment.[107]
[107]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592, 628; see also Sabo v George Weston Foods [2009] VSCA 242, [67].
130In determining the “consequences” of the injury, the Court is required to consider the consequences to this plaintiff, viewed objectively, arising from the injury.
131In determining the application, the Court:
must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[108]
must assess whether “the injury” is a “serious injury” as at the time the application is heard;[109]
must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application;[110]
[108] Section 325(2)(h) of the Act.
[109] Section 325(2)(j) of the Act.
[110] See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1, [23]-[26].
132In TTB SMS Pty Ltd v Reading,[111] Tate and T Forrest JJA had occasion to emphasise the essential aspects to which consideration is to be given on a serious injury application in a pain and suffering case, and these are:
(a) serious injury means permanent serious impairment or loss of a body function;[112]
(b) an impairment shall not be held to be serious unless the pain and suffering consequence 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;[113]
(c) in assessing the seriousness of the claimed impairment consequences, a Court is required to consider both the effects of the impairment and those aspects of the affected body function which remain unaffected.[114]
[111] [2020] VSCA 203.
[112] Section 325 of the Act.
[113]Section 325 of the Act. This formulation picked up the language in Humphries, which concerned similar provisions in the Transport Accident Act 1986.
[114]Dwyerv Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 (“Dwyer”), [27] per Ashley JA; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181, [44] per Ashley JA and Beach AJA; Tatiara Wheat Co Pty Ltd v Kelso [2010] VSCA 12, [77] per Ross AJA, quoting Dwyer [2008] VSCA 260, [27]).
Defendant’s submissions
133Ms Katotas submitted that the plaintiff had not discharged her burden of proof and established that the consequences of her impairment meet the statutory threshold of being more than significant or marked and at least very considerable and relied on Humphries v Poljak.[115]
[115][1992] 2 VR 129.
134The defendant placed much reliance on the report of Dr Ghan who saw the plaintiff for examination in December 2023 and had the benefit of being in receipt of relevant and previous medical reporting and who, despite some history of radiology, reported a lack of findings of spinal instability, and the plaintiff’s paucity of treatment regime, was consistent with a resolved or very largely resolved injury stemming from the work incident.
135Ms Katotas said that the work injury and its consequences by way of a reduction in leisure and sporting activities as the cause of the plaintiff’s weight gain, was anecdotal, with no complaint having been made to the plaintiff’s doctors. Ms Katotas submitted that the plaintiff had exaggerated the extent of her weight gain.
136Ms Katotas submitted the plaintiff’s consequences by way of sleep problems amounted to exaggeration.
137Ms Katotas developed a subordinate submission which was that in the event I did not assess the plaintiff as having exaggerated her symptoms, and that if the other matters deposed to by her, and about which she was not challenged, were accepted, nonetheless, they do not satisfy the narrative test for the grant of a certificate for pain and suffering.
138Ms Katotas contended that although the plaintiff “was a credible witness in how she gave her evidence. There were times it was hard – it is, in our submission, hard to believe her evidence when she says about her sleep.”[116]
[116]T 50, L 1-4.
139Ms Katotas disputed that the plaintiff’s employment circumstances were of that order that invited a consideration of Ellis Management Services Pty Ltd v Eric Taylor.[117]
[117][2013] VSCA 326.
Plaintiff’s submissions
140Mr Harrison commenced his address by tackling the report of Dr Ghan which he argued was inconsistent and lacked expert exposition to support his findings. Mr Harrison focussed attention to the fact that Dr Ghan had referred to the plaintiff’s account of her activities, and of them having been affected because of the consequences of her injury, and referred to the MRI scan dated 27 September 2023 as “normal” despite acknowledging evidence of pathology and of potential nerve root impingement.
141Mr Harrison addressed the opinion of Dr Bones who despite a finding of injury, concluded that the injury had “substantially resolved” but who recommended against the plaintiff returning to the work she performed when injured.
142Mr Harrison submitted that it is relevant that the plaintiff has been obliged to decline her employer’s overtures to take on working more at its request, because she finds herself extremely tired at the end of the day. Mr Harrison submitted that before her injury, the plaintiff possessed a credible pathway to pursue her love of photography on a professional basis, having been a photographer in Croatia before arriving in Australia but is now consigned to audiometry testing or similar sedentary work for the balance of her working life.
143Mr Harrison submitted that the clinical notes bear out the plaintiff’s affidavit evidence. They are supportive of the plaintiff’s fluctuating pain levels and the ongoing nature of her presentation and the consistency of her complaints.
Discussion and analysis
144The plaintiff presents with an accepted work injury. The defendant did not challenge causation or mechanism of injury, nor that the symptomology about which the plaintiff complains could not be consistent with her work injury. Instead the defendant’s argument was distilled to a contention that the plaintiff’s injury was no greater than a soft tissue injury which has resolved or largely resolved, and that if it continues to present with consequences of pain and suffering, they are not such that satisfy the statutory threshold.
145I am not prepared to adopt and prefer the analysis by Dr Ghan for the reasons relied on by Mr Harrison. I find the plaintiff has identifiable pathology that is consistent with the mechanism of injury and with plaintiff’s presentation of pain and restriction. Therefore, the matter is less about injury, than it is about consequences wrought by the injury.
146I think the plaintiff did likely overstate the frequency of her pain, and I also think the suggestion of surgery she said doctors told her she might require is not likely. It is possible that there were some comments made at an abstract level, but not as the plaintiff testified that she was told this during the examinations by doctors. Had this been said, then I am satisfied that would have been recorded in their respective reports and it is not.
147The plaintiff’s weight gain has likely been contributed to by the inactivity resulting from the loss of physical exertions she previously enjoyed, notably swimming and rollerblading. Despite her previous job being fulltime, as is also the case today, she previously managed to maintain her desired weight.
148I am satisfied the plaintiff’s sleep is interrupted on occasions by pain, but I think the questionnaires reflect more probably the true state of affairs. As to the suggestion that the plaintiff may not have appreciated the purport of the questions posed, as I pointed out to Mr Harrison, the plaintiff is an intelligent person who is undertaking employment that requires record keeping and manual entry of information from patients, and I am not inclined to think the plaintiff was confused by what was asked or that her answers to matters asked cannot be relied on as reliable.
149However, I do not think these criticisms of the plaintiff fatally undermined her overall credibility. I accept that for someone of 43, the very likely prospect of ongoing interferences of the nature she has described as likely permanent impositions in the sense of extending for the foreseeable future is more than significant or marked. I am satisfied they are permanent as understood in these applications, bearing in mind ongoing presentation with pain and limitations have continued in the years since injury.
150Reference is often made to certain of the indicia expressed in Haden Engineering Pty Ltd v McKinnon,[118] and while helpful, such guidance is not prescriptive and nor is the assessment of seriousness in a given case to be assessed according to a static checklist and a totting up of a ledger, but rather an overall assessment and analysis of the evidence is required having regard to the consequences to a plaintiff and a judgment of where the same falls in comparison with like impairments.
[118] (“Haden”) (2010) 31 VR 1, [9]-[17].
151In Haden, and in addressing the effects of impairment to work, the learned President said:
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 the extent to which ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her].’[119]
[119]Ibid [15] (citations omitted).
152To this I would add, that the extent to which an area of pursuit such as a career in photography that the plaintiff had expressed a desire to pursue and that based on her past experience was a feasible aspiration, but no longer can, is a matter I have taken into account as well. While I accept the fact that the plaintiff enjoys her current employment and, she said so, she also explained that her enjoyment is predicated on her sense that she was fortunate to obtain the job. Certainly her current employment is far less physically demanding of her. But it was not contested that the plaintiff had the potential of one day taking over the business in which she had been employed, or establishing her own, or the pursuit of professional photography, but that these streams have been forestalled and she is now restricted to predominantly sedentary office based employment. Moreover, the plaintiff deposed that she is unable to work more as had been requested by her employer.
153I accept that the plaintiff’s clinical attendances provided corroboration for her pain and restrictions on occasions since injury, even if they do not represent a continuum of attendances. The clinical consultation of 8 April 2023 is corroborative.[120]
[120]Exhibit P9, PCB 110.
154In Haden, Maxwell P, identified a non-exhaustive and non-prescriptive list of ordinary activities which may be affected by a “very considerable” injury and they included interference to:
· 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.[121]
[121]Haden (2010) 31 VR 1, [16].
155In addressing the indicia discussed in Haden, the plaintiff relies on some of them and these include effects to her mobility, by way of restrictions on walking times and driving. The loss of recreational interests includes swimming, rollerblading and spending time with her son in these pursuits. The performance of household duties appears to have been moderately affected as evidenced for example, by the plaintiff’s account that her son assists in making her bed and with shopping. The plaintiff can manage all aspects of her self-care. As to cooking, there has been a number of adjustments required, including pain dictating strategic meal planning or otherwise recourse to take away meals.
156I referred earlier that I did not regard the extracts of social media as disturbing the findings I have reached.
157The plaintiff’s recourse to medication and the extent of it, is a relevant consideration in assessing seriousness, both as it applies to her, and as it falls to be considered in line with the effects of like impairments. The plaintiff uses over the counter pain relief and adopts therapies such as physiotherapy and use of ice and heat packs as required. Recourse to large amounts of medication as with treatment, may obviate against a finding of seriousness but not always. This is one such case where it does not.
158I have said that I do not regard the interference to sleep as great. That is not to suggest that a chronic disturbed sleeping regime cannot wreak significant adverse effects on a person; indeed, it is quite often the case that it can. But I do note that the plaintiff has never been prescribed medication to assist her sleeping, but she says she uses a pillow to prop her up and she sleeps in a half raised position often enough and also uses a pillow to help relieve pain when lying on a couch at home.
159The effects on the plaintiff’s capacity to participate in activities pursued by her son, but also enjoyed by her, is understandably enough a matter that has caused her some upset and it is entirely understandable.
160In Jiwani v 7 Chefs Pty Ltd, his Honour Judge Purcell said that “there are some cases that are clearly serious, and there are some that are clearly not. There are some that fall somewhere in the middle of the range of possible impairments and impairment consequences, and the proceeding before me is one such example.”[122] In this case, and on balance, I am satisfied that the plaintiff falls somewhere beyond the middle range.
[122] [2023] VCC 1127, [53].
161The plaintiff suffers bad pain that is chronic in its nature but is not constant or unremitting, but it need not be. I am satisfied that it is at least very considerable. Her previously unencumbered employment prospects have been cumbered. Her physical injury has resulted in pathology that is consistent with her presentation. She is not on prescribed pain relief, but is likely to be on analgesics and require ongoing physiotherapy and will be restricted in the extent of and duration of many activities that she was able to undertake without concern before the injury. Her employment prospects have been reduced in the sense that their scope is limited in a manner that was not the case before the injury. The plaintiff’s weight although presently greater than before the injury has arguably been contributed to by her restricted physical vigour, as well as other likely restrictions unrelated to her injury and her sleep and need for caution and adaptation when needing to sleep or relax lying down, is a regular imposition to her. There are activities of shopping and meal preparation and bed making, that without the help of her son whom she still has at home, she would be inhibited in being able to perform.
162On balance, I am satisfied the plaintiff is entitled to the grant of certificate for pain and suffering when her impairment is assessed by its effects on her and when judged according to range.
163I will hear the parties on the form of final orders required to give effect to these reasons.
0
11
0