Milosevic v Bradmill Textiles Pty Ltd

[2012] VCC 982

120

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION

Case No. CI-07-04135

MILKA MILOSEVIC	Plaintiff
v
BRADMILL TEXTILES PTY LTD	First Defendant
and
VICTORIAN WORKCOVER AUTHORITY	Second Defendant

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JUDGE:	HIS HONOUR JUDGE PARRISH
WHERE HELD:	Melbourne
DATE OF HEARING:	15, 16, 17 and 21 June 2011
DATE OF JUDGMENT:	13 July 2012
CASE MAY BE CITED AS:	Milosevic v Bradmill Textiles Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2012] VCC 982

REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury – neck injury – aggravation of cervical spine – pain and suffering and loss of earning capacity – relevant principles – whether injury on or after 20 October 1999 – whether injury “serious”
LEGISLATION CITED – Accident Compensation Act 1985, as amended, s134AB(38)(a)
CASES CITED – Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622; Church v Echuca Regional Health (2008) 20 VR 566; Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Petkovski v Galletti [1994] 1 VR 436; De Agostino v Leatch & Anor [2011] VSCA 249; Ansett Australia Ltd v Taylor [2006] VSCA 171.

JUDGMENT – Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G A Lewis SC with Mr N D Horner	Arnold Thomas & Becker Pty Ltd
For the Defendants	Dr I RL Freckelton SC with Ms M Tsikaris	Herbert Geer

HIS HONOUR:

Introduction

1 By way of Originating Motion issued on 18 October 2007, Milka Milosevic (“the plaintiff”) seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985, as amended (“the Act”) to bring common law proceedings to recover damages for an injury to her neck suffered by her during the course of her employment from 20 October 1999 to September 2001 (and in particular, during February/March/April 2001) with Bradmill Textiles Pty Ltd (“the first defendant”).

2       The plaintiff seeks such leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages” within the meaning of s134AB(37) of the Act. 

3       The plaintiff and Dr C Castle gave evidence and were cross-examined.  Both parties tendered various documents.[1]

[1]See Annexure A

Relevant Legal Principles

4       The Court must not give leave 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 s134AB(37) of the Act.[2]

[2]See s134AB(19)(a) of the Act

5       The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act, which reads:

“serious injury means—

(a)   permanent serious impairment or loss of a body function”

6       The part of the body said to be impaired for the purposes of paragraph (a) is the neck.

7       In order to succeed, the plaintiff must prove, on the balance of probabilities, that:

(a)“the injury” suffered by her arose out of or in the course of or due to the nature of her employment with the first defendant on or after 20 October 1999;[3]

(b)“the injury” and the resulting impairment must be “permanent”, that is, permanent in the sense that it is “likely to last for the foreseeable future”;[4]

(c)the “consequences” of the neck injury in relation to “pain and suffering” or “loss of earning capacity” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … is fairly described as more than significant or marked, and as being at least very considerable”.[5]

This test is sometimes referred to as “narrative test”.

[3]See s134AB(1) of the Act and Barwon Spinners Pty Ltd  v Podolak (2005) 14 VR 622 at [11]

[4]See Barwon Spinners Pty Ltd v Podolak (op cit) at [33]

[5]See s134AB(38)(b) and (c) of the Act

8       In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden[6] to establish:

(a)that as at the date of hearing she has a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;[7]

(b)that after the date of hearing she will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.[8]

[6]See s134AB(19)(b) and (38)(e) of the Act

[7]See s134AB(38)(e)(i) of the Act

[8]See s134AB(38)(e)(ii) of the Act

9       In determining the application, the Court:

(a)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”;[9]

(b)must make the assessment of “serious injury” at the time the application is heard;[10]

(c)must give reasons which are as extensive and complete as the Court would give on the trial of an action, and, in so doing, disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application;[11]

(d)notes that s134AB(38)(b) provides that the consequences of an injury and impairment in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately. 

In the event that a worker satisfies sub-paragraph (i) but not sub-paragraph (ii) of s134AB(38)(b) of the Act, the worker is entitled to have leave to bring proceedings for the recovery of “pain and suffering” damages only.  A worker who satisfies the loss of earning capacity requirements of s134AB of the Act is entitled, as a “matter of statutory construction” to have leave to bring proceedings for both “pain and suffering damages” and “pecuniary loss damages”.[12]

(e)notes that it has been asserted that the question of whether an injury satisfies the narrative test is largely a question of impression or value judgment.[13]

[9]See s134AB(38)(h) of the Act

[10]See s134AB(38)(j) of the Act

[11]See s134AE of the Act and Church v Echuca Regional Health (2008) 20 VR 566 at [89]–[92]

[12]Advanced Wire & Cable Pty Ltd  v Abdulle [2009] VSCA 170 at [60]–[64]

[13]Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 and 628; Sabo v George Weston Foods [2009] VSCA 242 at [67]

The Issues

10      Essentially, the position of the first defendant was that any neck “injury” suffered by the plaintiff was caused by events prior to 20 October 1999, with the plaintiff suffering symptoms in her neck from as early as 1985.  Furthermore, the first defendant asserts that there may be issues of credit.

The Evidence of the Plaintiff

11      The plaintiff gave evidence that she swore her first affidavit on 22 May 2007,[14] her second affidavit on 19 October 2009[15] and her third affidavit at some time in 2010,[16] and that she had recently read such affidavits. Other than the second affidavit correcting some matters in the first affidavit, the contents of the affidavits were “correct”.[17]

[14]See Exhibit B at page 18 Plaintiff’s Amended Court Book (“PCB”)

[15]See Exhibit B at page 21a PCB

[16]See Exhibit B at page 21f PCB

[17]T26, L12-19

12      The plaintiff also gave evidence that she was currently taking OxyContin, Nexium and Oxynorm.  The Nexium was for her stomach because of the administration of the other two tablets.  She was presently undergoing physiotherapy treatment and had done so for a long period of time, save for a recent three-month break.  Such physiotherapy is being paid for by the plaintiff. 

13      By way of her first affidavit, the plaintiff gave the following evidence:

·        She is sixty-one years old, having been born on 13 May 1951.

·She commenced employment with the first defendant in 1971 on the night shift as a weaver.

·In 1999, she suffered a back injury during the course of her employment, which caused her to take three weeks off work, after which she returned on restricted duties.

·Such restricted duties required her to stand on a platform to perform the work.  The platform was not suitable for her, as her height was 175 centimetres and she was required to lean forward to perform her work.  In particular, she states:

“This put considerable strain on my neck and caused painful symptoms in the neck and right arm particularly in about February 2001.  I reported these problems to my general practitioner.”[18]

[18]See Exhibit B page 19 PCB

·When receiving physiotherapy for her back condition she considered that her neck symptoms were to some extent aggravated.

·She continued to work on the modified duties until the beginning of May 2001 when she was certified unfit for all duties.

·She was made redundant in September 2001.

·She has been treated by her general practitioner, Dr Charles Castle, who referred her to the neurosurgeon, Mr Daryl Nye, in May 2001.

·She has undergone a CT scan and an MRI scan of her cervical spine and has been treated with medication, which has caused gastric complications.

·Since being made redundant, she has continued to have symptoms in her neck, extending into her right arm, which interfere with her ability to sleep normally. 

·Although she has not been able to perform normal duties because of her back condition, she believes that has also been prevented doing such duties because of the condition of her neck.

·She claimed compensation pursuant to s98C of the Act for impairment to her neck and was referred to the Medical Panel for assessment, which ultimately assessed her impairment to be 15 per cent, resulting from the “accepted” neck injury.

14      By way of her second affidavit, the plaintiff gave the following further evidence:

·Her first affidavit is not accurate in certain respects.

·She was born in Bosnia, married in 1969 and migrated to Australia in 1970 with her husband and baby son.  She has four children, of whom three daughters still live in Australia, and she separated from her husband and divorced in 1993.

·Her employment with the first defendant has been her only employment in Australia.

·Prior to the “subject injury”, she was involved in the following car accidents:

(a)On 25 January 1986, she was in a vehicle which was struck in the rear by another car, causing her to be injured, including a neck injury which gave trouble for “a year or so”.  To the best of her recollection, she was only treated with physiotherapy and lost no time off work.  After a year or so, she made a “full recovery”.

(b)On 6 January 1992, she was a passenger in a motor vehicle when another car ran into the passenger-side of her car, causing her to suffer fractured ribs and a punctured lung.  Also, in that car accident, she injured her “neck and lower back” and had trouble with the whole of her left side for some considerable time thereafter.  She was off work for nearly three months, but when she returned to work, she continued to have symptoms.  However, she notes that the pain in the neck from that car accident was on the left side of her neck and “all my symptoms were on the left side”.  She did not have any trouble with the right arm as she does now.

·In relation to not referring to these matters generally in dealing with doctors, she states:

“I have not referred to these matters generally in dealing with doctors as the neck pain that I have now was quite different to what I had previously.  I further say that, in medico-legal assessment, Mr Michael Shannon said that I specifically told him that I had ‘never had the slightest trouble with [my] neck in the past’.  I deny saying that to him.  I also deny that I said that I had not injured my neck and back in the 1992 transport accident.  I remember telling him that, after the motor vehicle accident, I had continuing trouble and that in order to look to the side I would have to turn my whole body because I was too stiff.”[19]

[19]See Exhibit B at pages 21b – 21c PCB

·In about September 1999, she suffered a back injury at work, causing her to be placed on light duties.  Again, she says, the history regarding this in her first affidavit is not correct, as she was only on light duties for a relatively short time and they did not cause her injury.  In particular, she states: 

“My injuries occurred after I had returned to full duties on the weaving machines.  I remember the first real neck pain of this type I had was when I was attempting to start a Sulzer Ruti machine.  I had to pull a handle hard to start the motor wheel, and then pull the handle down.  It was while I doing that I felt very severe pain in my neck.  It was so severe that I started to sweat.  I could not lift my right arm.  The pain was in the middle of the base of my neck.”[20]

[20]See Exhibit B at page 21c PCB

·She believes that such activity occurred in the first half of 2001 and then notes that for some time prior to that she was generally involved in a lot of leaning forward, standing on a platform, bending forward and holding her neck stiff.  Further, she had to bend very awkwardly to thread the needles of the machine and there were other tasks which required her to stand on her toes for lengthy periods, which would cause her to hold herself tensely and uncomfortably which she believes put a strain on her neck.

·When she hurt her neck she did not report it because she believed that she had been “treated poorly” when she had previously injured her back.

·After she hurt her neck, she went home and consulted Dr Castle about her back and also told him about the pain in her neck. 

·In April 2001, Dr Castle sent her for a CT scan and referred her to the neurosurgeon, Mr D Nye.  He prescribed medication and also she had physiotherapy.  She cannot remember having time off work but was put on light, easy duties which she did until she was made redundant in September 2001.

·Since then, she has consulted with the neurosurgeons, Mr Dohrmann and Mr Timms.

·She continues to have very severe problems in her neck and right arm involving numbness of the fingers of her right arm and right upper arm. 

·On 2 July 2009, she had a very severe attack of pain which caused her to be conveyed by ambulance to the Western General Hospital, where she received heavy painkillers.

·She continues to have physiotherapy (as at the date of this affidavit) which was initially paid for by WorkCover but after cessation of such payment, she has continued to pay for physiotherapy.

·She takes OxyContin which only partially affects her pain and she feels that her arm is becoming “useless”.

·She has problems with her back but this is not the subject of her claim. 

·At home, she unable to do much and relies on one of her daughters for cooking, washing, cleaning and other housework.  Sometimes she shops for small items and she has a lot of trouble sleeping.

·Since ceasing work with the first defendant, she has not worked at all and now receives an invalid pension.

15      By way of her third affidavit, the plaintiff gave the following evidence:

·        She continues to have pain in her neck which is centrally located and is “always present”.  She also has pain between the shoulder blades and she has to be careful about turning her head, as if she does this “without thinking” she can suffer severe pain in the neck which goes into her right arm.  She also has numbness in the fingers of the right hand.

·        She is dominantly right handed but because of her ongoing symptoms she tries to use her left hand more.  She drops things in her right hand such as a cup of coffee and if she tries to pick up, for example, a knife from a bench, she may have difficulty with this.

·        She continues to see the general practitioner, Dr Charles Castle, who prescribes Nexium which she takes twice a day, OxyContin and Oxynorm as required when the pain is bad.

·        She continues to have physiotherapy with Mr Max Neufeld which she pays for.  She sees him once a week and is treated with massage which gives her temporary relief for three or four days.

·        Around the house, she is not able to do much and her daughter continues to do most of the cleaning, cooking and housework.  She tries to do what she can but is “very limited because reaching, stretching and twisting cause increased pain”.[21]

[21]See Exhibit B at page 29g PCB

·        She has interrupted sleep because of her pain and because of this she feels tired all the time, cannot concentrate or think and cannot remember things as well as she was able to before her injury.

·        She continues to receive the invalid pension.

·        She is frustrated and depressed by the persistence of her symptoms which are not improving.

The Cross-examination of the Plaintiff

16      Under cross-examination, the plaintiff gave the following salient evidence:

·She was involved in a car accident in 1986 whilst she was a passenger in a van driven by her ex-husband, sitting at lights, when another car ran into the back of the van.

·She suffered “only whiplash” as a result of that car accident and did not stop working.

·She thinks that the neck injury gave her trouble for “a year or so”.

·She recalls seeing Loft & Associates who assisted her with legal action in relation to the 1986 car accident.

·She suffered pain in her neck most of the time during 1986 after the car accident and also suffered headaches “for a while”.

·She also suffered pins and needles down her left arm and had some problems sleeping at night.

·She could not remember whether she suffered pain in her left shoulder in 1986 after the car accident.

·She could not remember whether she was dizzy after the car accident in 1986.

·She denied suffering depression after the 1986 car accident or if she may have told her doctor that her “nerves weren’t too good” – she does not know.

·She could not remember whether she had physiotherapy treatment after the 1986 car accident.

·She could not remember how long she suffered symptoms after the 1986 car accident as she “didn’t stop working. I was working continuously …”[22]

[22]See T31, L28-29

·She could not remember whether her sleep was affected after the 1986 car accident or whether she was experiencing numbness in her fingers.  She now has numbness and pins and needles in her right hand.  In particular, she gave the following evidence:

Q:“In all the fingers of the right hand or just some?---

A:No, three fingers.

Q:You’ve just pointed to your thumb, your index - - -?---

A:Yes.

Q:- - - and your middle finger - - -?---

A:Yes, yes.

Q:Thank you.  Can you say to his Honour when you first experienced numbness in your fingers?---

A:When I experience pain in – a sharp pain in the neck in 2001, that’s when all I’m affected and fingers was affected.

Q:Had you experienced numbness in any of your fingers at any time before 2001, Mrs Milosevic …?---

A:Not in – no.”[23]

[23]See T32, L22 – T33, L6

·She had difficulties with her housework after the car accident in 1986 “for a while”, but could not say what period of time.

·By June 1987 (about eighteen months after the 1986 car accident), she considered that she was doing her housework “maybe sometimes” under difficulty.

·She could not remember when she “recovered” from any symptoms from the 1986 car accident.

·She had a legal claim in relation to the 1986 car accident, which was settled, but she does not remember what year.

·In 1992, she had another car accident, as a result of which she fractured ribs and punctured her lung and re-injured her neck.

·After the car accident on 6 January 1992, she received medical treatment and attended a Dr Kohn.

·As a result of the 1992 car accident, she had difficulties with her left shoulder moving freely, although she could not remember how long this problem lasted.

·After the 1992 car accident, she suffered pain in her left arm, but could not remember being sent for nerve conduction studies or x-rays on her left shoulder.

·After the 1992 car accident, she had pain in her low back, and her low back and her ribs were worse than her neck.  She did experience pain in the left side of her body after such car accident.

·She explained that the left side of her body included her ribs and her left shoulder and down the left leg, including her left hip.

·She told Dr Kohn about headaches after the 1992 car accident and either he or Dr Castle referred her for a scan of her brain.

·She was referred to Mr King in 1997 by one of her doctors, who, she believes, may have been Dr Kohn.

·She accepted that she told Mr King at that time she had constant aching pain in her neck, both day and night, associated with that pain in her neck were bad headaches and that she experienced such bad headaches every day.

·She also told Mr King that she had a constant ache in her left upper limb and that she had a constant aching pain in her back, as well as her neck, and in her left buttock and left thigh.

·She asserted that she moved her neck freely in 1997 because she had to “run the machines and I have to turn my head everywhere”.[24]

[24]See T40, L23-25

·She experienced tightening of her muscles in her neck after she finished a shift during this time.

·She denied that in 1998 she was getting pain “all the time” in her neck and left shoulder, but did experience some pain.  When queried how often, she stated:

“I can’t tell you how often, because it all depends how busy I was at work and how machines is running and if I starting too much machines, running round the machines and pushing the machines starting and that’s when there was more pain.  If is machines is running reasonably well, that’s less pain.”[25]

[25]See T42, L18-23

(sic)

·She denied that in 1998 she was getting pain “all the time” in her back and left hip.  She accepted that she had some pain in her left hip, but “not all the time”, and was getting headaches which were frequent.

·Such headaches could be very severe and that was migraine headache.

·In 1998, she was experiencing pins and needles in her left arm and pain coming from the shoulder down, although she was able to use her left arm normally. 

·In 1998, she was managing her housework “all right” and would do vacuuming and mopping when she felt that she could do it.

·In 1998, she was able to perform gardening work, but was unable to perform gardening work from 1999 because of her “back problem”.

·In 1998, she was able to weed flower beds and sometimes mowed her lawn.

·She did tapestries in the past, but she had stopped doing tapestries after the 1992 car accident.

·In 1997–1998, she had problems with nausea.  Over the years, she has taken Dymadon Forte, Panadeine Forte and has been on Celebrex.

·Since the 1992 car accident, she has only taken tablets when she needs them and does not take them regularly every day.

·She was off work for about three months after the 1992 car accident.

·She accepted that in 1997, she lost between fifty and sixty days from work because she had headaches, including severe migraine headaches.

·The migraine headaches commenced after the car accident in 1992.

·On being shown her statement dated 13 March 1998, she accepted that her signature was on such statement and she remembered the statement was made for litigation arising out of the 1992 car accident.  Further, she accepted that the statement was “true and correct”.[26]

[26]See T47, L24 – T48, L9.  See Exhibit 1

·She saw the rheumatologist, Dr Stockman, in relation to the litigation arising from the 1992 car accident.

·In 1998 (six years after the 1992 car accident), she accepted that she was having trouble feeling her small finger on the left hand, trouble moving her neck and trouble moving her low back and her left shoulder.

·Over the period from 1992 until 1997 (or 1998), she had pain which fluctuated and over that period of time she got “better and worse”, depending on the workload.

·Between 1997 and 2001, she had pain in her neck “coming and going”, depending on how hard the work was.

·Over the period between 1997 and 2001, she gave the following evidence:

Q:“Was that way in which it was between 1997 and 2001 in relation to your neck?  Was it still coming and going depending on how hard the work was?---

A:     Yes.

Q:     So sometimes when the work was hard your neck would be very painful between 1997 and 2001?---

A:     Was painful but not like I experienced 2001 pain.  Was painful when I keep working, but when I experience 2001 that I couldn’t lift my head and lift up my arm when I saw Dr Castle, that was painful.

Q.     What about your back?  How was your back between 1997 and 2001?---

A:     My back is all right because don’t do heavy work and I work slowly and – but neck is the more problem now and - - -

Q:     I’m asking you about the period between 1997 and 2001.  I’ll ask you about now soon?---

A:     Back is, is all right now.

Q:     Between 1997 and 2001?---

A:     I still have – 1997?

Q:     Yes.  I’m asking you about that period between 1997 and 2001?---

A.     No, my back was very bad in 1999.

Q:     All right.  Is that because you say something happened to your back in 1999?---

A:     In September 99 when I go to work and 1 o’clock when I start machine my back snapped and I couldn’t walk.  Two people take me, put me in the car instead take me to hospital.  They put me in the car and dropped in front of my house and left me on the front of the house and if my daughter wasn’t home that night I couldn’t get inside in the house because I couldn’t straighten up and walk to unlock the door.  When she hear that something is on the door she opened the door and she said, ‘What’s happened to you?’  The following morning she took me to Dr Shen.  When he put the acupunctures and was three times a week was physiotherapy at that time.  After thirteen sessions of acupunctures I straighten up myself.  I couldn’t stand straight, I couldn’t walk.  I was sleeping on the floor for three weeks.”[27]

[27]See T50, L23 – T51, L25

·She was off work for about four weeks and thereafter had a graduated return to work, doing lighter work which involved walking around and checking and also performing “droving” work.

·After a period of time, she built up to eight hours and ultimately went back to her normal job on the machines which she performed for about twelve months before ceasing work.  When it was put to her that she was off work from 1 September 1999 until 19 September 1999, she accepted it was “something like that”.

·It was suggested to her that she started off at four hours a day on her light duties and then proceeded to five hours a day, and then up to eight hours a day.  In response, the following evidence was given:

A:     “No, what I remember that was two hours a day for two weeks.  That’s what I think, and then after it was three hours or four hours and slowly until I was fit for work.

Q:     Were you on these lighter duties until September 2001?---

A:     No.  I was – I go back to work on my machines after a few months light duties.  Then I was working full-time normal duties until April.  My neck and arm was sore – cut me.  That’s when I was – from April 2001 till September 2001 I was on light duties.”[28]

[28]See T53, L19-28

·She was shown a letter from Bradmill dated 21 January 2003.[29]  She disagreed with such letter, asserting that when she resumed eight hours a day, five days a week on 21 February 2000, such work involved her in “normal duties” rather than “alternative duties”.

[29]See Exhibit 12

·She asserted that when she came back to work eight hours a day, five days a week from 21 February 2000, she was employed in the weaving department, but rather than working on the manual machines, she was working only on the automatic machines.  In particular, she gave this evidence:

Q:     “But what’s the difference?  The weaving machines you’re working on then are different in what way, if any way?---

A:     Weaving machines is different.  They have two different type of machines, Sulzer Ruti and they have Sulzer.  The Sulzer Ruti was manual machines what you have to turn the wheels and pull the handle very hard, then smash the handle down to start the machine.

Q:     Yes?---

A:     After, when I have injury on the back, when I got to work five – normal duty, they didn’t send me on the manual machines, I was working on the automatic machines.

Q:     You said you pressed buttons?---

A:     Yes.

Q:     From that point on when you were working on the weaving

area - - -?---

A:     Yes.

Q:     - - - that was on the press-button machines?---

A:     Yes.

Q:     I understand?---

A:     Yes.

Q:     Did you ever go back to the other machine, the manual machine?---

A:     Not - - -

Q:     Not after that?---

A:     Not after back injury.”[30]

[30]See T56, L25 – T57, L11

·For the period from 26 February 2001 until 17 March 2001, during which time Exhibit 12 describes her as being “unfit”, she asserted that she took long service leave and went to Moree and the spa baths to try to see if her neck will get better. 

·In relation to the period from 4 May 2001 until 26 May 2001, she was unfit because she had the neck problem.

·From 15 March 2001 until 20 September 2001 (save for the period from 4 May 2001 until 26 May 2001), she was working five days a week, four hours a day on the push-button machine.  When asked why the change from five days, eight hours to five days, four hours, she stated:

A:     “Because when I push with the fingers buttons, buttons wasn’t properly set and that’s when I pushing hard and that’s when my arm starts sore and my neck.

Q:     You’ve been pointing to your right arm.  It’s the right arm?---

A:     Yes, right arm, right arm.”[31]

[31]See T58, L18-23

·Dr Castle was the doctor who reduced her hours to half-time.

·Although she was having some problems with her low back “not much”, she has “big pain” in the neck and the shoulder.

·The neck pain she was suffering was not the same problem as she had after the car accident in 1992.

·She accepted that she consulted a Mr Pianta in or about April 1999 and he sent her for a CT scan of her low back.

·On 1 September 1999, she was starting a Sulzer Ruti machine and experienced pain – that is, when her back “cracked”.  She never worked on that machine again but, rather, worked on the button pushing machines in the weaving area.

·When referred to paragraph 6 in her second affidavit,[32] which suggested that she went back to the Sulzer Ruti machine after incurring her back episode in September 1999, the following evidence was given:

[32]See Exhibit B, page 21c PCB

Q:     “I might be mistaken and it’s late in the afternoon, but when you went back to work after September 2001, when you went back to the weaving department - - -?---

A:     Yes.

Q:     - - - what work did you go back to when you did that?---

A:     I go back to the automatic machine, the push buttons.

Q:     What do you mean in paragraph 6?  It seems to be inconsistent.  Because the Sulzer Ruti machine is not the automatic machine, it’s the machine where you pull the levers, isn’t it, or the handles?---

A:     You know what is the different here, I tell you.  We have Sulzer machine.  This was a push-button machine – not a push-button, a manual machine.  Sulzer Ruti was automatic machines, but that was mistake here when they say that I have to pull handle.  That was before, before on the pull-handle machine.

Q:     You had to pull a handle before September - - -?---

A:     Yes.

Q:     - - - September 1999?---

A:     Yes.  But Sulzer Ruti does the machines automatic and only Sulzers – that’s Sulzers was from – I start working on them from 1971.”[33]

[33]See T68, L11-29

·At the time of her back injury in September 1999, she was still experiencing some symptoms in her back from the1992 car accident.

·When asked about pain in her neck leading up to 2001, the following evidence was given:

Q:     “Were you suffering any pain that troubled you in your neck from the car accident in 1992 by 1994 or 1995?---

A:     Yes.

Q:     Were you suffering that kind of pain in 1999 from the car accident?---

A:     Yes.

Q:     In fact by April 1999 you were having time off work for neck pain, were you not?---

A:     Yes.

Q:     That was the same kind of pain that you had suffered for the previous seven years after the car accident?---

A:     No.

Q:     So you say you got some new kind of neck pain in 1999, do you?---

A:     I have pain in April, very strong pain that’s - I couldn’t move my arm and my shoulder.  That was pain like stabbing in the neck.

HIS HONOUR: 

Q:     That’s in April - - -?---

A:     Yes.

Q:     - - - 1999?---

A:     No, that was in April 2001.”[34]

[34]See T73, L16-29

·She accepted that as at 1999 she still experienced some neck pain from the car accident in 1992 which caused her to have periods off work from time to time.

·When queried as to whether or not she had lodged a claim for compensation after hurting her neck and right shoulder in April 2001, she initially answered “yes” and then the following evidence was given:

Q:     “You sure you didn’t wait until 2004 to lodge it?---

A:     Your Honour, can I explain that lodgment?

Q:     Well, let me just ask you, if I might, Your Honour.  Did you lodge a claim in 2004?---

A:     Yes.

Q:     Did you lodge any claim in relation to this injury before 2004?---

A:     Yes.

Q:     When did you do that, Mrs Milosevic?---

A:     When I have problem with the neck, I saw Dr Castle and he tell to the medical nurse that, ‘She have to fill a new claim’.  She ring up Christine, what was personnel officer.  She tell to her what’s happen and she said, ‘Put that on old claim,’ and that’s how they in 2001 end up on the old claim with my back.  When I went to the solicitor they have to separate claim.  That’s when the solicitor fill another form for claim and put for the neck.  That’s probably in 2004.”[35]

[35]See T75, L22 – T76, L5

·She identified the Claim for Compensation dated 7 April 2004.[36]

[36]See Exhibit 6 at page 1 Defendants’ Amended Court Book (“DCB”)

·Although accepting she signed such claim form, she believed the solicitors filled in the form.

·In particular, the reference to injury on 3 April 2001 to her neck, left shoulder and right arm is wrong, to the extent that her left shoulder was not injured.  When referred to Item 17 in the claim form which queries what she was doing at the time of the injury, and to which she has answered, “Pushing and pulling the handle on a textile machine”, she gave evidence that she did not think she was doing that activity or went back to those sorts of machines after her back problem.

·After having the matter stood down to allow the plaintiff to re-read her affidavits, she gave evidence that there were “mistakes” in the affidavit and thereafter she pointed out such mistakes.[37]

[37]See T83, L12 – T87, L10

·She attended Dr Castle after the day that she experienced her severe neck pain and right arm pain.  She believed she told Dr Castle how that neck pain occurred.

·Again, when queried about the circumstances leading to her “severe” pain in the neck and right arm, the following evidence was given:

Q:     “So you’ve got a clear memory, have you, that when you look back about this, in April 2001 or thereabouts, although you’d had neck pain on the left-hand side in the past, when you went to the push‑button machines – the weaving machines on one particular morning, you pressed buttons and got this bad pain going on the right-hand side?---

A:     That’s how they was, but prior to that I had pain neck and when I go home, and relax and have shower, and relax and sleep and go back to work that’s how the pain starts slowly until April when there was severe pain.

Q:     What you’ve just described, is that pain on the right-hand side too?---

A:     Yes, on the right hand side.

Q:     So when do you actually say the pain in the right-hand side started then?  When do you say it started?---

A:     Started in April 2001 but I have pain in the neck.  But right arm – right side started when I push that buttons on the machine, I have to push hard and that’s when the pain coming and strong pain come to my neck like somebody stab me in the neck.

Q:     The stabbing like pain, when that came on – and tell me if I'm right, so I want to understand what you’re saying – are you saying that that came on on one particular morning when you had to push the button?---

A:     Yes.[38]

[38]T95, L16 – T96, L7

·The neck and right arm pain got worse, causing her to take ultimately opiate drugs which were initially administered in about the middle of 2009.  Such drugs were prescribed by the Western General Hospital and later by Dr Castle.

·She has not driven a car since 1992 after the second car accident because she is “scared”.  Sometimes her daughter takes her in her car to doctors or physiotherapists et cetera.

·She told Mr Kudelka in 2004 that she no longer enjoyed gardening and by 1999 she had stopped digging the garden and working the garden because of her ongoing back problems.

·When queried whether she informed Mr Nye, who examined her on 14 May 2001, about the incident in April 2001 when she suffered the severe neck pain and right arm pain, she commented that Mr Nye did not ask her any questions about what happened.

·She denied giving any false histories to a variety of medico-legal examiners.

·She presently has difficulties in performing vacuuming and housework, although she does not sweep anything, although on occasions she might sweep leaves outside.

·Before September 1999 (when she injured her low back), she was doing pretty well everything herself – cutting the grass; maintaining the garden; doing the washing; doing the ironing – but since the back problem she tries to do it but cannot do everything.

·Her back problem makes it difficult to walk too far, and to sit in the same place for a long time.

·She has pain down the back of her legs and sometimes gets cramps in the feet.

·Although her left arm is not as bad as it was, she cannot rely on the left arm to lift up a saucepan and she has to use both of her arms.

·She can carry shopping in her left arm but could not carry a 5-kilogram bag of potatoes.

·She is able to carry light things in her right hand but could not carry a 2-litre milk container.

·She experiences pain in her right shoulder, down her right arm with numbness into the thumb, forefinger and middle fingers.

·She is right handed.

·Raising her right arm above shoulder level causes pain.

·She can use a knife in her right hand so long as she does not have to “chop hard”.

·She denied that she could dig a flower bed with her right hand; carry things in her right hand when she goes to the shops; carry a handbag in her right hand.

·If she does not take medication or have physiotherapy, she suffers constant pain in her neck.

·She has restricted movement in her neck and when she moves to the right side, it is painful. 

·She continues to get headaches and sometimes has migraine headaches (about once very one or two months).

·Most of the time she is “housebound”, in that she does not want to go anywhere or see anyone.

·When queried as to how often she goes out or mixes with people, she gave the following evidence:

“I walk to the shop most of – I mean, most of the time when I walk, I walk just to talk with the people, because I know that woman who own the shop.  But for me to travel to go somewhere, no, I don’t go.  I wasn’t in the city only years ago when I come to see the solicitor.  That’s when I coming and I go home straight away and I don’t go nowhere.  I was always – I mean, happy person.  I talk with the people at work, because I love my work and I like people to talk.  I like jokes and everything so when I stop working that’s everything start to die in slowly.  When I come to that point that I close my door, I don’t open the door for friends, for nobody, I no want to see nobody, that’s when I start to getting more and more inside – stay inside, inside.”[39]

[39]T139, L30 – T140, L12

17      The plaintiff was shown some video material consisting of the following:

(a)Video of approximately 25 minutes’ duration taken on 6 November 2008.  The plaintiff accepted that she was shown in the video performing gardening work outside and inside her front garden including sweeping, all such activity over a two and a half hour period.

The plaintiff, although accepting such activity, asserted that if she did not have a problem with her right arm, this activity would only take fifteen to twenty minutes.

She also accepted that the video revealed her using a knife between concrete to remove flowers which were coming up between the concrete slabs.

She also accepted that the video showed her stretching forward to perform the knife activity with her right hand, pulling a wheelie bin out with both her left and right hands, undertaking watering including using her right hand and reaching forward with the waterer in a stretched out way. 

She accepted that she crossed the road at a pace between “a walk and a run” and that she walked for ten to fifteen minutes. 

She accepted that what was depicted in the video in November 2008 was similar to her now condition.

She also agreed that she can bend and stretch from the waist to the extent that she “can” and does not force herself; can squat for extended periods at times; has some movement of her neck to the left and right, but she noted that the movements were not fast.

(b)Video surveillance taken on 4 January 2009.  The plaintiff accepted that she was shown pruning roses, squatting down at times, leaning over the front fence, stepping over it on one occasion, dragging hoses with both hands, moving her right arm up to shoulder level on occasions and watering her garden.

When it was suggested to her that such movements appeared to be natural and normal, the plaintiff gave evidence that, “at that time” she was on Oxynorm, OxyContin and did not feel the pain when using such painkillers.

(c)Video surveillance of approximately eight minutes’ duration taken on 14 March 2009.  The plaintiff accepted that she was shown standing at the front door of her house scattering weedkiller on her garden at the front and then on the footpath and outside her neighbours.  After such video, the following evidence was given:

Q:     “If I suggest to you that you appeared to be making ordinary, flexible and pain-free movements with your right arm, what would you say?---

A:     That looks like it.

HIS HONOUR: 

Q:     What do you mean by that?---

A:     Your Honour, when I move my arm – or when I take medication, I can move my arm.  But when I'm without medication I'm in the pain, but I take medication that was why, to go out, to be out as I can’t do nothing much inside and I was around the garden.”[40]

[40]T195, L24 – T196, L1

18      During re-examination, the plaintiff gave the following pertinent evidence:

·She identified the photograph tendered for identification purposes[41] to be the back of an automatic machine – that is the buttons’ machine.  She further identified the platforms which were shorter and narrow around the machine.  The plaintiff confirmed that she was working on such a machine from approximately February 2000 to approximately February 2001. 

·If she had not had problems with her neck and right arm from 2001, she intended to continue working with the first defendant for another three or four years and if the defendant closed, she would seek alternative employment.

·Since September 2001, she has not looked for work because she was “completely sick when I finished work and all papers, what the Social Security have my scans report … .”

·She was taken by ambulance to the Western General Hospital in July 2009 because of the pain in her neck, after which she was prescribed OxyContin.

·Although she had some difficulty sleeping prior to February 2001 because of her back and some neck pain, she had great difficulty sleeping at all after she commenced to experience pain in her right arm and severe pain in neck.

·She confirmed that she used secateurs in her right hand to cut roses in one of the videos.

[41]See A1

The Medical Treatment of the Plaintiff

19      In order to obtain a context as to whether or not the plaintiff suffered any injury to her neck arising out of or in the course of her employment with the first defendant on or after 20 October 1999, it is convenient to examine the various histories given by the plaintiff to doctors, the examination findings of such doctors and any radiological material up to late 1999.  I refer to the following material:

(a)   The report of Dr S K Wong dated 25 May 1986.[42]

[42]See Exhibit 7 at page 75 DCB

Dr Wong consulted with the plaintiff on 26 January 1986, at which time the plaintiff gave a history of being involved in a motorcar accident on 25 January 1986.  At the time of examination she was complaining of mild headache and pain in the neck.  Dr Wong notes that on examination there was nothing abnormal except for some tenderness at the base of the neck.  She was later seen on 2 and 7 February 1986 complaining of some pain in the neck. 

Dr Wong notes that a cervical spine x-ray was undertaken which was “normal”.  Dr Wong was of the opinion that the plaintiff was suffering muscular pain in the neck as a result of the motorcar accident.

(b)   The reports of the general surgeon, Mr J L Swan, dated 15 July 1986 and 11 June 1987.[43]

[43]See Exhibit 7 at pages 71-74 DCB

Mr Swan initially medico-legally examined the plaintiff on 11 July 1986, at which time she complained of pain in the neck and left shoulder most of the time, as well as headache.  Furthermore, she complained of getting pins and needles down the left arm particularly when sleeping at night.  She sometimes felt dizzy and a severe headache could persist for two or three days.

When later seen on 10 June 1987, the plaintiff complained of ongoing neck, left shoulder and arm pain, together with numbness of the inner two fingers of her left hand.

Initially, Mr Swan considered that the plaintiff had suffered a soft-tissue injury to her neck as a result of the motorcar accident in January 1986 but as at the time of his second examination, he considered that there had been significant improvement, although there were still some persisting symptoms.

(c)   The report of the general surgeon, Mr D Conroy, dated 8 September 1986.[44]

[44]See Exhibit 7 at page 22 DCB

Mr Conroy examined the plaintiff on behalf of the State Insurance Office on 5 September 1986 and obtained a history that, after the transport accident on 25 January 1986, the plaintiff had pains and stiffness in her neck, headaches and aching in her left shoulder and arm.  The plaintiff claimed some slow improvement but continued to have pain and stiffness in her neck, together with aching, numbness and weakness affecting the whole of the left arm and hand.  On examination she demonstrated an almost normal range of movement in her cervical spine.  Mr Conroy considered that she had suffered a soft-tissue injury to her cervical spine as a result of that transport accident.

(d)   The medical reports of the general practitioner, Dr M Kohn, dated 30 March 1992, 10 February 1994 and 27 September 1996.[45]

[45]See Exhibit 7 at pages 31-36 DCB

Dr Kohn first consulted with the plaintiff on 11 February 1992, at which time the plaintiff alleged that she had been involved in a motorcar accident on 6 February 1992 and had been admitted to the Western General Hospital for twelve days.

She had suffered fractured ribs and a pneumothorax and had required epidural medication for pain relief when in hospital.  When seen by Dr Kohn, she complained of ongoing pains all over her back, headaches, left chest pains and left shoulder pains.  Dr Kohn notes that she had x‑rays of her ribs which had healed and x-rays of her left shoulder, and these were normal.

Dr Kohn arranged for x-rays of her cervical, thoracic and lumbar spines which revealed the vertebrae to be in normal alignment and no evidence of spondylosis.

Dr Kohn treated the plaintiff with anti-inflammatory agents and by 2 March 1992, she had improved sufficiently to be able to resume work on a graduated basis.

In his last report (September 1996), Dr Kohn notes that the plaintiff has continued to complain of pains in her chest, left shoulder and all over the left side of her body.  She was treated with various anti-inflammatory analgesics and was referred to the rheumatologist, Dr R Travers, who considered that she had musculoskeletal tenderness with some joint stiffness and recommended hydrotherapy.

In June 1996, she complained of increasing headaches and was sent for a CT brain scan which was normal.  Throughout this period of time she lost little time off work.

(e)   The report of the orthopaedic surgeon, Mr K King, dated 14 August 1998.[46]

[46]See Exhibit 7 at page 27 DCB

Mr King consulted with the plaintiff on 11 February 1997 and obtained a history of the motorcar accident on 6 January 1992.  At the date of the examination, the plaintiff was complaining of symptoms which had remained unchanged for the last four to five years:

-    constant aching pain in the thoracic spine radiating to the left side of her chest and into the left shoulder blade

-    constant aching pain in the neck, present day and night, fluctuating in intensity and associated with occipital headaches every day

-    constant ache in the left upper limb

-    constant ache in the left buttock and thigh.

Examination of her cervical spine showed quite marked limitation of all neck movements.  Mr King was of the opinion that the generalised trauma as a result of the motorcar accident caused damage to the cervical, thoracic and lumbar discs and associated ligamentous structures, together with rib fractures.

(f)   The report of the rheumatologist, Dr Alex Stockman, dated 27 July 1998.[47]

[47]See Exhibit 7 at page 69 DCB

Dr Stockman initially consulted with the plaintiff on 18 December 1997 on referral from Dr Kohn.  At that examination, the plaintiff asserted that since the motorcar accident on 6 January 1992, she had experienced neck pain, pain in the left arm, low-back pain and pain in the left leg.  Furthermore, she asserted that some two years after the motorcar accident she had experienced recurrent pins and needles in the left hand, aggravated by movement of the arm and relieved when she rested the arm.

Examination of her neck and lumbar spine revealed limitation of movement.  Dr Stockman either arranged or had available x-rays of the affected areas and in particular, the x-ray of her cervical spine, which, according to Dr Stockman, revealed narrowing of the C5-6 disc space and of the right C5-6 intervertebral foramina.  X-rays of the left shoulder were normal and x-rays of the lumbar spine showed some minimal anterior marginal bony lipping in the upper lumbar region consistent with early spondylosis.

Dr Stockman last saw the plaintiff on 29 January 1998 and because of ongoing complaints, it was suggested that she undergo cortico-steroid injections but no further appointments were made.

Dr Stockman considered that she was suffering from, amongst other things, cervical spondylosis which was still related to the motorcar accident in 1992.

(g)   The report of the general surgeon, Mr J L Sinha, dated 19 October 1999.[48]

[48]See Exhibit 7 at page 66 DCB

Mr Sinha consulted with the plaintiff on 13 October 1999 in respect to a claimed low-back injury suffered by her during the course of her employment with the first defendant on 1 September 1999.

The plaintiff gave a history that although there was no particular incident, she found that she suffered “much pain” in the low part of her back as a result of starting a machine by turning the handle in a bent position.  She had received treatment from her local medical practitioner and acupuncture treatment and had been off work from 1 to 20 September 1999, after which she returned to work on light duties four hours a day, five days a week.

Mr Sinha had available to him a CT scan of the lumbar spine taken on 9 April 1999.[49]  The conclusion of such scan was:

[49]See Exhibit 7 at page 76-77 DCB

“Multilevel degenerative changes as outlined above.  L4-5 disc protrusion more marked paracentrally to the left which is in conjunction with facet joint degenerative hypertrophy, results in effacement of the rostral aspect of the left L5 lateral recess and compression of the left L5 nerve root at this level.  Mild central canal stenosis at this level.”

Mr Sinha was of the opinion, after examination and access to the CT scan, that the plaintiff suffered from disc degenerative disease of the lumbar spine associated with facet joint arthritis at the lower lumbar level which was age-related and that the employment of the plaintiff had had no significant influence on the progress of such pathology.  Although he considered the plaintiff to be suffering from partial incapacity, such incapacity did not result from or be materially contributed to by any work injury.

(h)   The report of the orthopaedic surgeon, Mr I McNicol Smith, dated 13 June 2000.[50]

[50]See Exhibit 7 at page 40 DCB

Mr McNicol Smith consulted with the plaintiff on 13 June 2000, at which time she gave a history of the motorcar accident on 6 January 1992 and that from about 1997 she began to have pain in her lower back, the symptoms of which became “worse” in April 1999.

Mr McNicol Smith considered that the nature of her work was such that he considered the back pain was employment-related.  Considering that she had to lean over machines to tie broken yarn, such stooping is not an “ideal occupation”.

(i)    The report of the orthopaedic surgeon, Mr Hugh Hadley, dated 17 July 2000.[51]

[51]See Exhibit 7 at pages 23-25 DCB

Mr Hadley consulted with the plaintiff on 11 July 2000, at which time she gave a history that she was involved in a motorcar accident on 6 January 1992 and that she had three broken left ribs as a result of such accident.  Furthermore, she gave a history that in late 1998 she began to have attacks of pain in her low back which became more frequent and more severe.  After about six months of the increased pain, the pain also spread to the back of her right thigh and leg and underneath her foot, and since April 1999, the pain has also spread down the back of her left thigh below the knee.  Mr Hadley had available the CT scan of the lumbar spine undertaken on 8 April 1999.  He considered, on the basis of his examination and the CT scan, the plaintiff was suffering from a chronic strain in the attachment of muscles to her lumbar region, with injury to her lumbar discs and in particular, a prolapse at L4-5 and bulging at L2-3, L3-4 and L5-S1 discs.

(j)    The reports of the physiotherapist, Mr M Neufeld, dated 5 January 2007,[52] 1 September 2009[53] and report dated 16 March 2001.[54]

[52]See Exhibit B at pages 56-60 PCB

[53]See Exhibit B at pages 78-82 PCB

[54]See Exhibit 7 at page 43 DCB

Mr Neufeld initially treated the plaintiff in late 2000 when he was working as a consultant physiotherapist at the premises of the first defendant.  At that time, the plaintiff complained of persistent low-back ache with referred leg symptoms.  Mr Neufeld obtained a history that the plaintiff had injured her low back in early 1999 when working with the first defendant and that in September 1999 there had been a significant increase in her low-back pain together with a further flare-up of back pain in April 2000.

She was referred by Dr Charles Castle to Mr Neufeld again in March 2001 and at that time was complaining of ongoing low-back pain.  In particular, Mr Neufeld states:

“It should be noted that in 2001, Mrs Milosevic also complained of persistent neck and referred right arm symptoms, which her employer accepted responsibility as being work-related.  In particular, it was thought the neck condition directly related to repetitive lifting and stretching to place large cotton spools on the machine with her arm stretched above head height and her head and neck in extension. … I bring up the issue of the co-existing neck problem, as for several years I have also treated the chronic neck problem as [I] always assumed that her WorkCover claim had accepted both injuries under the one claim number, however it turns out that the neck problem has been accepted on a separate WorkCover claim with a separate claim number.  … .”[55]

[55]See Exhibit B at pages 57-58 PCB

(k)   Dr Charles Castle was called on behalf of the plaintiff and described himself as an occupational physician, dealing particularly with occupational health and vocational rehabilitation.  Furthermore, he gave evidence that he was, for some thirteen years, a physician regularly attending the premises of the first defendant, over which time he acquired knowledge of the type of machinery on which weavers were employed.

He adopted his reports dated 9 March 2004,[56] 29 October 2004,[57] 27 September 2005,[58] 12 March 2006,[59] 22 February 2007,[60] 9 September 2008,[61] 15 July 2009,[62] 12 August 2010[63] and 24 May 2011.[64]

[56]See Exhibit B at pages 22-28 PCB

[57]See Exhibit B at pages 29-33 PCB

[58]See Exhibit B at pages 37-42 PCB

[59]See Exhibit B at pages 43-44 PCB

[60]See Exhibit B at pages 62-63 PCB

[61]See Exhibit B at pages 45-48 PCB

[62]See Exhibit B at pages 73-77 PCB

[63]See Exhibit B at pages 105-106 PCB

[64]See Exhibit B at pages 105-106e PCB

Dr Castle was shown Exhibit A (at that time it was tendered for identification purposes only but later tendered absolutely) and the following evidence ensued:

Q:     “Given the physical characteristics of that machine and the platform and the height of the plaintiff, could you describe whether or not there was likely to be any, from a medical point of view, strain on the plaintiff's cervical spine in performing the functions you've been describing?---

A:     Yes, certainly because she has to bend forward, she has to twist her neck to look and it's not really practical because you can see, from the size of the machine, that it's not really practical to stay in one – to move a number of small steps to look at what the threads are doing because that would take too long.  I can't remember now off the top of my head how many machines each worker was looking after, but they are looking after a number at the same time, and so you need to bend your head, you need to twist and you need to bend over to see as many of the threads that you can at once.”[65]

[65]T150, L16-31

Dr Castle gave evidence that he performed a pre-placement medical examination of the plaintiff on 22 May 1990, at which time he found no abnormality of her locomotor system.

He notes that the plaintiff was first seen by his locum, Dr Amanda Silcock, on 24 September 1999, at which time she was complaining of low-back pain of several months’ duration.  In particular, the plaintiff stated that on 1 September 1999 her back became very sore, causing her to be off work from 1 to 20 September 1999.  When reviewed on 24 September 1999, her back was still store and she was undergoing acupuncture and prescribed Dymadon Forte tablets.

Dr Castle reports that the plaintiff underwent a CT scan of the low back on 9 April 1999[66] which was reported as revealing multilevel degenerative changes.

[66]See Exhibit 7 at page 76-77 DCB

Dr Castle first consulted with the plaintiff in October 2009, at which time she asserted she was getting better but too “slowly” and at that time she had pain in the left side of her back and left leg.  He continued to see her on and off throughout 1999 and 2000 because of ongoing back problems.

In particular, Dr Castle consulted with the plaintiff on 13 March 2001, at which time she had a flare-up of back pain which had occurred, she stated, in December 2000.  At that time, she had pain in the left side of her back, down her left leg to her foot, together with numbness in her left foot, left ring and middle finger.  When reviewed on 27 March 2001, she was undergoing physiotherapy and had a lot of pain in her shoulders and upper back.

Examination at that time showed that her cervical spine, thoracic spine and lumbar spine were all tender and she was tender over the middle edge of the scapular.

On 3 April 2001, the plaintiff complained to Dr Castle of paraesthesia in her right arm and pain in her neck.  At that time, she told him that her duties involved walking around the machines and doing checking.  Dr Castle arranged for a CT scan of her neck on 9 April 2001.[67]  Dr Castle notes that the comment to the scan was that:

[67]See Exhibit B at page 61 PCB

“There is evidence of degenerative spondylotic changes involving the lower cervical spine, particularly at C5-C6 vertebrae, with encroachment on the right C5-6 neural foramen, which is possibly involving the exiting right C5 nerve root.”

Dr Castle referred the plaintiff to the neurosurgeon, Mr Daryl Nye, who ultimately advised conservative treatment and if symptoms persisted for her to undergo a MRI scan.

Dr Castle next saw the plaintiff on 4 May 2001, when she gave a history that her back had “snapped” the previous night when going home.  At that time she had paraesthesia of her right thumb and numbness of her right thumb and right index finger.  By 18 May 2001, she considered her neck was worse than her back and she was taking Dymadon Forte, Capadex and Amitriptyline.  On 25 May 2001, she informed Dr Castle that her neck was very bad with pain in her right arm, although she was managing work.

Dr Castle diagnosed neck, right shoulder and arm pain with paraesthesia due to nerve root compression at C5-6 and C6-7.  He notes that the plaintiff underwent a MRI scan of her cervical spine on 22 February 2007 which reported that:

“Significant disc disease at C5-6 level affecting the right side of the cord and also the right C6 nerve root.  Lesser changers at the C6-7 level again affecting the right side and especially the right C7 nerve root.  I note that patient’s symptoms are on the left side but the left side of the neck is unremarkable.”[68]

[68]See Exhibit B at page 63 PCB

Dr Castle also notes that following her motorcar accident in January 1992, she was examined by him in March 1992, at which time there was no evidence of neck pain and she was passed as fit to work. 

Dr Castle notes that after her redundancy on 21 September 2001, the plaintiff obtained some care from Dr Shen.  After the retirement of Dr Shen, Dr Castle resumed the medical care of the plaintiff.  Over the years he has referred the plaintiff to the neurosurgeons, Mr Timms and Mr Dohrmann.

As at July 2009, Dr Castle considered the plaintiff to be suffering spondylitic changes involving the C5-6 vertebrae encroaching on the C5‑6 neural foramen, low-back pain due to an L4-5 lateral recess narrowing and compression of the nerve root, with mild central canal stenosis, Major Depressive Disorder and gastric irritation.  He considered that all these conditions had developed as a result of her employment with the first defendant and that her employment continued to be a significant contributing factor to the development of her back and neck pain. 

In particular, Dr Castle responds to a letter from CGU dated 9 July 2009 which seemingly relied on opinions of Mr Shannon as to whether or not the neck injury was work-related.  Dr Castle states, in part:

“With the greatest respect for my colleague, he clearly does not understand the work of a weaver at Bradmill Textiles.  Weavers did work which involved a lot of bending, twisting and reaching, including extended neck flexion and rotation.  At her preplacement medical examination by me in 1990 I found no evidence of symptoms or signs of any neck problems.  I saw Mrs Milosevic many times in the intervening years and her neck problems developed in 2001.  She had not had any neck complaints following her motor vehicle accident in 1992, but did have low back problems.  I reviewed my notes from 1992, when Mrs Milosevic returned to work after the motor vehicle accident, and Mrs Milosevic has not mentioned to me, the nurse or the physiotherapist any neck problems prior to 2001, 9 years later.

She had returned to work on one type of weaving machine.

Prior to the development of her neck problems in 2001, Mrs Milosevic was doing a lot of checking work, which involved frequent neck flexion and rotation.  Pushing buttons was a very small part of the job.

In July 2001 her neck pain increased, due to working on ‘drawing in’, which again required a lot of neck flexion.  …

I consider there has been a major aggravation by her employment.”[69]

[69]See Exhibit B at page 75 PCB

He also notes that the plaintiff underwent a subsequent MRI scan on 9 June 2009 which was reported as revealing:

“Mild canal narrowing due to degeneration in mid cervical region.  Severe foraminal stenosis on the right at C5-6 and C6-7.”[70]

Dr Castle is of the opinion that the plaintiff requires surgery for her cervical spine and that she is unable to work.”

[70]See Exhibit B at pages 84-84 PCB

20      Under cross-examination, Dr Castle confirmed that he initially saw the plaintiff for her pre-placement medical check, subsequently after the 1992 motorcar accident and then not again until 1999.  Furthermore, he became her family doctor from about 2004 when Dr Shen retired.

21      Dr Castle accepted that over the period from 1992 to 1999 he had no knowledge of the plaintiff making complaints about her neck.

22      Although Dr Castle had not treated the plaintiff between March 1992 and October 1999, he confirmed that the records at the first defendant’s clinic did not reveal any attendances over that period. 

23      Dr Castle accepted that there were two types of weaving machines: one which was operated by levers and others which were operated by buttons.  Dr Castle could not say what dates those machines were installed.

24      Dr Castle also gave evidence that from late 1999, 2000 and up to March 2001, the plaintiff was continuing to report problems with her back and in particular, the pain emanating from her back.

25      Dr Castle accepted that when the plaintiff consulted him on 3 April 2001, she was experiencing pain in her neck and paraesthesia – that is, pins and needles.  At that time, her work involved walking around the machines doing “checking”.  Dr Castle accepted that the reference to numbness in the left ring and little fingers recorded on 13 March 2001 would have emanated from her neck and indeed he notes that there is reference to a “tender cervical spine”.  Dr Castle accepted that the notes would not suggest there was any specific workplace incident which precipitated her neck problems.

26      Dr Castle also accepted that the low-back condition would inhibit her ability to perform gardening or any digging, and also holding a squat.

27      Under re-examination, Dr Castle accepted that the records between 20 September 1999 and late summer of 2001 do not make reference to any neck problems.

28      In particular, the following evidence was given:

“Q:    Doctor, what do you say about the relationship, if any, between that sort of pathology … [intervertebral disc lesion at C5-6 and or to a lesser extent C6-7] … and the work you believed her to be doing?---

A:     Causes of an intervertebral disc lesion [are] fairly varied and subject to a fair degree of argument.  Essentially, there are different schools of thought.  One is that the disc protrusion is a result of degeneration and ageing, and another is that it is due to the effects of trauma, either particular individual trauma or cumulative trauma –  using ‘trauma’ in a very, very broad sense – over a period of time.  I think that as far as her work is concerned – sorry, and there is one other.  I must go back a step.  There is narrowing of the intervertebral foramen as well.  It is unlikely that the disc lesion was caused by any individual episode, but certainly it is likely and it is quite common for patients to develop symptoms as a result of a particular action when, if you like, it is the straw that breaks the camel's back, that they do something which may not be heavy or awkward and that seems to precipitate symptoms and then those symptoms remain after that.”[71]

[71]T175, L31 – T176, L19

29      On being queried as to what he was referring to when he commented that there had been “major aggravation by her employment”, Dr Castle stated:

“The continuing neck flexion while she was working on that job.”[72]

[72]T177, L6-7

30      Dr Castle gave evidence that her neck and right arm pain has persisted over the years and, in particular, gave this evidence:

Q:“Just finally, doctor, if I might take you to your last report of 24 May 2011; commencing, your Honour, at court book 106a …  At the third page of that report doctor under present capacity employment, have you any reason to change any of the views therein expressed? ---

A:No.

Q:The definitive condition as it now is doctor, is the condition permanent or not? ---

A:Which condition are we referring to?

Q:The cervical problem with the right-sided neuralgia, as at present is, is it likely to be permanent? ---

A:That’s hard to say.  If she has surgery, then there is a significant chance that her reflexes will improve and that her right arm will improve.  It is unlikely that the surgery will abolish her pain, but based on my experience I would say there would be some improvement after surgery but not an enormous amount and I don’t think it would improve sufficiently for her to be able to return to work.

Q:In the absence of surgery? ---

A:In the absence of surgery, she would stay the same and gradually deteriorate.”[73]

[73]T179, L 20 – T180, L 9

31      Dr Castle gave further evidence as to the significance of symptoms occurring on the right side of the neck and right arm which commenced in March/April 2001:

Q:“… Assume for the purposes of the question that any symptoms emanating from the neck had been in the left arm and left fingers or left hand and fingers continuing up to 1999 the period that you were---?

A:Yes.

Q:Indeed, assuming again for the purpose of the question that the evidence before me so far is that that in March/April 2001 when you first got the history of symptoms of the neck, the symptoms were on the right side for the first time? ---

A:Yes.

Q:Indeed, some neurological deficit seen in the right thumb and index finger? ---

A:Yes.

Q:Is it of any significance as far as you’re concerned as to whether or not the symptoms are occurring for the first time on the right side rather than the left, or is it just the same problem just manifesting itself a different way? ---

A:I think that would indicate to me that there has been a change in the right side of her neck, that something had changed a course or developed those symptoms in her right arm.  One of the problems is that CT scans are not [a] very fine measure, if I can put it, like that.  I mean, it’s one of the best that we have, but it’s not a very fine tool.”[74]

[74]T181, L 15 – T182, L 6

32      Later, and developing this issue, the following evidence was given:

Q:“What is going to be put to me I believe is ‘well, really what we’re seeing in 2001 is no more and no less than what’s been occurring since 1992.  She has got degeneration and foraminal problems in the neck and really this is just an ongoing thing since 1992, given the history of her symptoms’.  What do you say about that sort of opinion? ---

A:Well, I sought of partly answered that a minute or two ago when I said that I think that the development of her right-sided symptoms and the development of the paraesthesia and the numbness means that something has changed and my understanding is that prior to that her symptoms were left-sided and then she felt right-sided symptoms, so I think that something happened which caused her to develop her right sided symptoms. 

Q:That something is, what you say is at least a contributing factor, is the activity she was doing, the inspecting work and the like?---

A:Yes.”[75]

[75]T182, L31 – T183, L16

33      Under further cross-examination by Senior Counsel for the defendants, the following further evidence was given:

Q:“…  Assume for now if you would please that Mrs Milosevic had car accidents in 1986 and 1992.

A:Hmm.

Q:Assume that she reported pain and discomfort and restriction of movement in the aftermath of first the 1986 accident and then for many years after the 1992 accident. ---

A:Yes.

Q:If that is the case then the condition of her neck by 2001 would most likely have been affected for some degree by what had occurred in both 1986 and 1992?---

A:As I said previously, it seems to me that something changed in 2001.  Yes there would have been a contribution from everything that occurred to her over her lifetime, as his Honour just said, that it is a downhill slope from 2001 or whatever, but when she developed new symptoms in 2001 then I think that something new developed at that time.

Q:Radiologically though, as his Honour’s put to you, there were problems manifest in 1997 and apparent in 2001, but they were generally much the same, were they not?---

A:I haven’t got those reports in front of me, nor the films, so I don’t think I can reasonably answer that one.

Q:If they both showed narrowed intervertebral spaces and foramina?---

A:There is a poor correlation between x-ray appearance and a patient’s symptomatology.

Q:But there is a correlation between symptoms manifested and deterioration radiologically apparent?---

A:Yes.

Q:However, the one does not always go with the other?---

A:That’s right.  

Q:You can sometimes have pain without the radiological evidence?---

A:Yes, that’s right.

Q:Sometimes you can have radiological demonstrable … without reported pain?---

A:Absolutely.

Q:So what I suggest to you is that it is quite possible that a constellation of factors by 2001 had led to a significantly damaged neck in this lady?---

A:Well, yes.  She had a number of abnormalities that showed up on her neck, yes.

Q:Identifying what brought about any particular aspect of pain experienced in 2001 given the multiplicity of factors is just impossible?---

A:Well, no, I don’t agree.  Something changed and it is a matter of talking and finding out what changed or what happened to identify what caused it.

Q:Do you ascribe any significance to her having experienced paraesthesia in the left arm and numbness?---

A:That indicates there is some nerve root compression going on in her cervical spine.

Q:What part of the cervical spine is causing the nerve root compression manifesting in that way on the left side?---

A:Again, that is going to be either a C5-6 or a C6-7 or both nerve root compression; it can be disc lesion, it can be narrowing of the intervertebral foramina, it can be brachial plexus problems.

Q:So what one can say is that well before 2001 there was significant problems with C5-6, C6-7?---

A:Yes.”[76]

[76]T184, L14 – T186, L5

34      Dr Castle referred the plaintiff to the neurosurgeon, Mr D Nye, who examined her on 14 May 2001.[77]  At that time, she informed Mr Nye that she had not been working for the last two weeks because of back and neck pain.  Prior to that she had been working four hours per day over the last couple of months.

[77]Exhibit 3 at PCB 49

35      In particular, the plaintiff stated that she had an exacerbation of back pain in February 2001 and after some three treatments, neck pain was also noted and this symptom was said to continue and be associated with right arm pain extending and involving the first and second digits of the right hand.

36      During his examination, Mr Nye notes that the plaintiff demonstrated pain behaviour and some degree of voluntary restriction of her cervical and lumbar movements.

37      However, neurological examination revealed depression of the right biceps reflex and a sensory impairment affecting the first and second fingers of the right hand and extending into the forearm and consistent with a C6 distribution.

38      The CT scan of the cervical spine obtained on 9 April 2001, and according to My Nye, revealed chronic degenerative change at C5-6 with osteophyte formation and some possible foraminal narrowing, together with a soft disc protrusion at the same level.

39      Mr Nye informed Dr Castle that the problem was a “difficult one” as the plaintiff had multiple symptoms, together with functional features associated with suspected depression.  He recommended conservative treatment and anti-depressant medication.  If there be no further improvement, he suggested an MRI scan of the cervical spine.

40      Dr Castle also referred the plaintiff to the neurosurgeon, Mr Craig Timms, who examined her on 28 May 2009 and 3 July 2009.[78]  At the time of the examination the plaintiff gave a history that she had “no chronic medical conditions” and that her current medications included a morphine-based patch, Nexium, Lexapro and Tramadol.

[78]Exhibit B at PCB 97

41      She further gave a history that in around 1991 she hurt her back and neck when at work causing a brief time off work and she has had some neck pain and low-back symptoms from this injury.

42      In 2001, she believes in March 2001, she reinjured her cervical spine.  This caused a new onset of symptoms down the right arm.  She noted that prior to the original injury she has some long-term symptoms in the left arm.  In particular, she reported that on reaching and utilising a piece of machinery she developed quite severe pain in her neck which she describes as “big pain” and this extended down the right arm causing weakness and numbness.

43      She had continued to experience low-back pain but such condition was “stable” and she was able to perform most functions with this back pain.

44      When first seen, examination revealed absent reflexes in the right biceps and triceps and the sensation examination of the right arm revealed reduction in the C5-6 and C6-7 distribution.  The strength and sensation in the left arm was normal.  Palpation of cervical spine revealed some mild pain in the midline at the level of C5-6 and C6-7.

45      At that first examination, Mr Timms had the MRI scan undertaken in 2007 which revealed neural compression, particularly at the level of C5-6, which he believed would have explained some of her symptoms.  Mr Timms arranged for a further MRI scan to be taken on 9 June 2009 which revealed degeneration of the cervical spine, as well as marked foraminal stenosis at the levels of C5-6 and C6-7 more so on the right side than the left.

46      When reviewed on 3 July 2009, the symptoms of the plaintiff persisted and he noted that the plaintiff had presented to a local hospital emergency department with an exacerbation of her neck and arm symptoms.  On the basis of the latest MRI scan and her clinical presentation, Mr Timms recommended surgery and sought permission from WorkCover to undergo such a course.  Such recommendation was rejected by the WorkCover insurer.

47      Mr Timms states, in part:

“Mrs Milosevic has disc injuries at the levels C5-6 and C6-7 and the resultant disc prolapse and bony osteophyte formation has caused foraminal stenosis in her cervical spine more so on the right hand side than the left …  Mrs Milosevic in my understanding injured her neck and lumbar spine at work in the early nineties.  These symptoms were manageable with some physiotherapy and analgesia and she remained at work on full duties.  In March 2001, she reported that whilst at work using a heavy textile machine upon reaching for a wheel, she felt a sudden severe pain in the neck as well as new symptoms down the right arm.  Previously she had symptoms in the left arm.  Resultant neck pain and symptoms down her right arm caused her to stop working.  It is my understanding that she originally injured her neck and lumbar spine in 91 or 92 and managed to control her symptoms enough to continue working at full duties.  It was the injury in 2001 which caused her to stop working and has resulted in increasing neck pain and bilateral arm symptoms with predominant radiculopathy on the right hand side …  Due to Mrs Milosevic’s pain and suffering, she is unable to obtain any work … .”[79]

[79]Exhibit B PCB 98-99

48      Dr Castle also referred the plaintiff to the neurosurgeon, Mr Peter Dohrmann, who examined her on 7 August 2006 and 18 June 2007.[80]

[80]Report dated 20 June 2010, Exhibit B at PCB 101

49      When first seen by Mr Dohrmann on 7 August 2006, the plaintiff gave a history that she injured her low back at work in September 1999, after which she had been off work for about a month.  About one year later she developed neck pain and right arm pain whilst at work, having previously been recovering from her low-back pain.

50      Examination at that time revealed upper limb reflexes to be “sluggish” and although there was no definite motor weakness, there was reduced pinprick appreciation in all of the left hand and in the little and ring fingers of the right hand. 

51      At that time, Mr Dohrmann had available a CT scan of the cervical spine dated 25 June 2006 which showed moderately severe spondylosis at C5-6 with foraminal stenosis and mild canal stenosis.

52      When reviewed on 2 May 2007, the plaintiff had undergone the MRI scan on 22 February 2007 which revealed a disc lesion at C5-6 with compression on the right side of the spinal cord and the right C6 nerve root at that level.  At that time the plaintiff complained she was experiencing increased pain and pins and needles in the right arm and shoulder associated with headaches every day.  The left arm symptoms had not been as marked and the right arm was “getting worse”.

53      Mr Dohrmann suggested surgical decompression of the spinal cord and nerve root at C5-6 and possibly at C6-7.

54      Liability was accepted by WorkCover for the proposed surgery and, on 18 June 2007, surgery was discussed with the plaintiff.  At that time, according to Mr Dohrmann, the plaintiff indicated she would think about things and nothing was heard again.

55      Mr Dohrmann was of the opinion that her work “over many years as a factory worker” contributed significantly to the onset and persistence of her chronic neck and right arm pain due to a right C5-6 prolapse of the spinal cord and nerve root compression.

56      The solicitors for the plaintiff had arranged for her to be medico-legally examined by the following doctors:

(a)    A re-examination by Mr K King in November 2009;[81]

(b)    Mr G Brazenor on 31 October 2008.[82]

[81]Exhibit B PCB 86

[82]Report of same date, Exhibit B PCB 68

57      In his report, Mr King recalled that back in February 1997 the plaintiff was complaining of chronic neck and back pain and associated chronic left-sided brachial neuralgia and left-sided buttock and thigh pain.  At that time he formed the view that she was chronically and severely disabled but due to strong motivation was continuing her work, although with difficulty. 

58      In 2009, he obtained a further history that she continued to suffer from low-back and left brachial neuralgic pain until September 1999 when there was a flare-up of her back pain, causing her to be off work for a short time and then being put on lighter duties, after which she returned to her normal duties.

59      In particular, in March 2001 she sustained a “further injury” to her neck at work whilst pulling a lever of a machine – it was necessary to pull very hard on the lever in order to start up the machine.  Mr King obtained the history that as she strained on this lever she had a sudden flare-up of her pre-existing neck pain and for the first time she had pain radiating into the right shoulder, arm and forearm with tingling and numbness in the right thumb, index and middle fingers.  Mr King commented that there would appear to have been a “new injury” to already inflamed and scarred cervical disc associated ligamentous structures which involved for the first time right-sided cervical nerve roots, resulting in right-sided brachial neuralgia in the C5 and C6 distribution.

60      Mr King obtained the history that there was some improvement in the right-sided brachial neuralgia that has never completely settled and is her “main problem”.

61      Ultimately, Mr King apportioned one-third of her current problems with the neck pain to the effects of the “further injury” to the neck in March 2001 which has caused all her right upper limb problems and, in particular, he found no evidence of any psychological overlay from what he considered to be a very strong, motivated elderly woman.  He considered that only symptomatic treatment was required.

62      When examined by Mr Brazenor, the plaintiff gave a history that in 2001 she sustained sudden pain in her neck and down her right arm which she believes was the result of pushing buttons on the reading machine with extreme rigour. The plaintiff also informed Mr Brazenor that she had not improved over the ensuing years and her worst pain was in the neck and down the right arm with numbness in the fourth and fifth fingers at times.

63      Mr Brazenor had available to him the CT scans of the cervical spine dated 9 April 2001 and 25 January 2006, together with the MRI scan dated 22 February 2007.

64      Mr Brazenor states:

“If the descriptions which Mrs Milosevic gave me today are correct, then I do not see how the workers’ compensation insurer for Bradmill Textiles could possibly deny liability for injury to (at least) Mrs Milosevic’s L4-5 disc in 1999 as she tended her machine and to the C5-6 disc in 2001.  In my opinion on the balance of probabilities, it is overwhelmingly probable that Mrs Milosevic’s work on those machines, whether manual or automatic, exacerbated at least the L4 and C5-6 disc injuries which we see on scans from that time and even today.

With respect to her current symptoms, the lesion with which she has been left at C5-6 on the right would surely be causing neck pain and brachial neuralgia as she describes and I would recommend that she have a single level discectomy and fusion in competent neurosurgical hands.  Despite the functional aspects of Mrs Milosevic’s examination and presentation I believe that this lesion must be causing ongoing pain.”[83]

[83]Exhibit B, PCB 71

65      In a later report dated 26 October 2009,[84] Mr Brazenor commented on a variety of medical material pertaining to the plaintiff going back to 1986.  In such report, he concludes:

“After review of my previous report to you dated 1.11.2008 and the documents which you have provided recently itemised … I must agree wholeheartedly with Mr Max Neufeld’s statement in his report to the Accident Compensation Commission dated 1 September 2009 when he writes ‘I have no doubt that her employment at Bradmill Textiles over 30 years working as a labourer in the weaving section, where her job involved repetitive tasks of her upper limbs, at times heavy cotton spools or above shoulder height and forceful turning of wheels has contributed to the development of significant degenerative cervical spine disease and clinical evidence of foraminal stenosis and radiculopathy’.  With respect to your specific request for my opinion ‘as to whether her work injury suffered in 2001 continues to be a significant contributing factor to her present condition’, I would have to reply in the affirmative.”[85]

[84]Exhibit B, PCB 72(a)

[85]Exhibit B, PCB 72(h)

66      The solicitors for the defendants arranged for the plaintiff to be medico-legally examined by the following doctors:

(a)the orthopaedic surgeon, Mr Robert Carey, on 17 August 2005;[86]

(b)the orthopaedic surgeon, Mr M Shannon, on 15 August 2006,[87] 3 August 2007,[88] and on 21 October 2008;[89]

(c)the orthopaedic surgeon, Mr Ian Jones, on 7 June 2010.[90]

[86]See Report of same date Exhibit 7 at page 12 DCB

[87]See Report dated 17 August 2006 Exhibit 7 at page 46 DCB

[88]See Report dated 4 September 2007 Exhibit 7 at page 50 DCB

[89]See Report dated 27 October 2008 Exhibit 7 at page 55 DCB

[90]See Report dated 8 June 2010 Exhibit 7 at page 80a DCB

67      Mr Carey examined the plaintiff for the purposes of assessing permanent impairment with respect to an accepted back injury suffered on 1 September 1999.  At that time, Mr Carey obtained a history that the plaintiff had developed neck and right shoulder pain in “April 2000”.  Furthermore, the plaintiff was complaining, in part, of neck and right arm pain. 

68      Mr Shannon was specifically requested to assess the plaintiff in relation to her neck injury.  At that time, the plaintiff gave a history that in April 2001 she was on the automatic machine and started to develop pain in her neck, extending to the right trapezius muscle and down the right arm.  At the time of the examination, she complained of constant pain in the neck radiating down the right arm with cramps in the fourth and fifth fingers, together with some pins and needles in the left arm.

69      In particular, she denied having “the slightest trouble with her neck in the past”.  Although she accepted that there was a motorcar accident in 1992 or 1993, she asserted she did not suffer any injury to her neck or back in that accident. 

70      Mr Shannon noted that the plaintiff had fairly widespread degenerative changes in her neck and back which may have been aggravated by the previous motorcar accident (notwithstanding her denial of significant neck symptoms).  Mr Shannon also stated that there was “apparently” aggravation of her neck condition by her employment and it would appear that her neck was somewhat worse than it was in 1998, particularly in relation to the right upper limb symptoms.  He considered that it could be “reasonably argued” that there has been some permanent aggravation of her neck condition by her employment.

71      When re-examined by Mr Shannon in August 2007, the plaintiff asserted that she was running the manual machines when the pain in her neck came on “spontaneously”.  Mr Shannon noted that on his previous examination, the plaintiff had asserted that she had been working on the automatic machines.  At the time of the examination, she complained of ongoing pain in her neck, together with numbness in her right arm and in her fourth and fifth fingers of her right hand.

72      After perusing all the available material, Mr Shannon stated, in part:

“In any event, I think that she does have disc protrusion at two levels in the cervical spine, particularly at C5-6 where she has pre-existing, longstanding and previously symptomatic degenerative change.  Indeed she has osteophyte and foraminal stenosis on that side.

It is possible that some episode or activity in or around April 2001 aggravated the condition and she has ongoing symptoms of a radiculopathy.”[91]

[91]See Exhibit 7 at page 53 DCB

73      Essentially, Mr Shannon considered that her employment with the first defendant had an “insignificant effect” on her cervical condition which relates predominantly to underlying degenerative change which has been influenced by her age, by accidents in 1986 and 1992 and probably by the general nature of her work over the year.

74      When last examined in October 2000, the plaintiff continued to complain of pain in her neck, extending to the interscapular region to the right trapezius muscle and the right upper arm, particularly when she rotates her neck to the right.

75      Mr Shannon was of the opinion that the condition of the plaintiff had shown little change and that in regard to her neck, she did have degenerative change which may have been aggravated by her employment over the years.  He also did note that there was some wasting of the right upper limb which would be consistent with mild radiculopathy.

76      When examined by Mr Jones on 7 June 2010, the plaintiff gave a history that on an unspecified day in “April 2000”, she was working as a weaver and noticed the acute onset of neck pain, as well as some right arm symptoms.  The plaintiff attributed her exacerbation of her neck and the onset of right arm symptoms to the requirement to press the buttons on the machine.

77      The plaintiff complained of constant neck pain, which interfered with her sleep, together with pain and diminished strength in her right hand and arm.  In particular, she described numbness affecting all the fingers of the right hand with less severe numbness affecting the right thumb.  She considered that her low back was “not bad” at that time.

78      After examination, Mr Jones was of the opinion that given the description of the plaintiff’s employment between 1999 and 2001, together with her past history of neck symptoms, he could find no evidence that her employment with the first defendant has caused her ongoing difficulties with her neck.  Any aggravation of her neck symptoms which may have been caused during such employment would have resolved on cessation of her employment.

79      Mr Jones does note that her neck condition would preclude her from engaging in gainful employment even of a light nature.

Correspondence from the Insurer of the First Defendant

80      The plaintiff relies on a letter from CGU to her (via her solicitors) dated 21 August 2006 wherein a liability is accepted for a claim under s.98C/E of the Act for injury on 3 April 2001 during the course of her employment with the first defendant which is described as “aggravation of injury to neck”.

Analysis of the Evidence

81      It is for the plaintiff to discharge her onus in establishing that she has suffered an injury to her cervical spine on or after 20 October 1999 which is a “serious injury” within the meaning of the Act.  The defendant submit that to the extent that the plaintiff has a neck injury, such injury has been brought about over a long period by the aging process, and motorcar accidents in 1986 and 1992.  In particular, the defendants contend that the degenerate disc at C5-6 and possibly at C6-7 were well established prior to October 1999, giving rise to significant symptoms.

82      It is perhaps apposite to make some comments on the evidence of the plaintiff.  The plaintiff is a sixty-one year old woman who migrated to Australia in 1970 and commenced employment with the first defendant in 1971 as a weaver on the night shift.  She continued that employment in various capacities until being made redundant in September 2001.  Such employment has been her only employment in Australia.

83      After coming to Australia, she separated and divorced from her husband in 1993.  On coming to Australia, she had a baby son and subsequently had three daughters in Australia, who she essentially supported after the divorce.

84      I had the advantage of observing her through a comprehensive and thorough cross-examination and came to the view that she was a very strong-minded and determined woman, perhaps brought about by the necessity of fending for herself and her family after her divorce.  I also gained the impression that leaving aside any injuries, the plaintiff generally enjoyed her work with the first defendant – perhaps as one may expect after the length of time that she worked with the first defendant.

85      All in all, I formed the view that in general terms the plaintiff had an excellent work ethic and would have been prepared to work in the presence of some pain in order for her job to continue.

86      However, I do find the plaintiff to be largely an unreliable witness and, on occasions, I had grave concerns about her credit in giving evidence to the Court.

87      In relation to her reliability, I highlight the problems which emerged through her affidavits.  The evidence-in-chief of the plaintiff largely consisted of three affidavits which had been sworn prior to the trial with the last being sworn in 2010.  In particular, the second affidavit sworn on 19 October 2009 made specific reference to errors in the first affidavit sworn on 22 May 2007.  All these affidavits were said to have been “recently read” and were “correct”.

88      However, it became plain during the cross-examination of the plaintiff that she sought to change her evidence as to the circumstances surrounding the advent of her neck injury in 2001.  Indeed, I directed that the matter be stood down and that she read her affidavits and advise the Court of any changes.  She advised the Court that the affidavits were wrong in some respects and sought to change certain aspects of the affidavits.

89      Even allowing appropriate leeway for confusion in giving histories to various doctors, I came to the view that as such histories were in so many ways diverse, it was very difficult to put any reliability on such a history.  Perhaps, in the early years, the plaintiff may have had a variety of symptoms, the cause of which she was unclear as to whether they emanated from the motorcar accidents, her employment or just aging.

90      In relation to her credit, I was particularly concerned at two levels:  first, I gained the impression that although the plaintiff did accept in cross-examination that she had ongoing symptoms particularly from the 1992 motorcar accident in relation to her back and neck, such symptoms were downplayed to some extent.  However, the plaintiff accepted that she made a statement dated 17 March 1998,[92] wherein she stated, in part:

“I have continued to suffer from unremitting pain in my neck, left shoulder, back and left hip.  I have frequent, severe headaches.  My left arm feels numb and cold.  At the end of a shift, I suffered increased pain.”

[92]See Exhibit 2

91      Such a history is similar to that given to Mr King in late 1997.

92      Secondly, although not part of this claim, the plaintiff has made complaint of back symptoms from 1992 and perhaps more particularly from 1999.  She accepted that such back symptoms inhibited her in a variety of activities, particularly gardening and the ability to bend and squat.  The Court was shown video extending from late 2008 to early 2009 which clearly demonstrated the plaintiff capable of bending, squatting and performing gardening work.

93      After consideration of these matters, I have come to the view that I can put little or any weight on her direct evidence as to the circumstances surrounding the advent of her neck injury.

94      However, it is incumbent on the Court to consider all the circumstances around the alleged injury to determine whether or not as a matter of probability the plaintiff did suffer a neck injury on or after 20 October 1999  which gave rise to permanent serious impairment or loss of function with consequences that satisfy the narrative test.[93]

[93]See generally Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104 at [58]; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108

95      I do find that the plaintiff suffered some degree of neck pain after the motorcar accident in 1986.  In particular, I refer to the evidence from Mr Swan, who examined the plaintiff on 11 July 1986, at which time she complained of pain in the neck and left shoulder, together with pins and needles down the left arm, particularly when sleeping at night.  Notwithstanding the foregoing, I accept that she had little or no time off work following that injury and continued working perhaps in the presence of some symptoms.  After the motorcar accident in 1992, I find the plaintiff did suffer and continued to suffer symptoms in both her low back and neck consistent with her statement made on 17 March 1998.[94]  In particular, I refer to the evidence of the rheumatologist, Dr Stockman, who examined the plaintiff on 18 December 1997 and 29 January 1998. 

[94]See Exhibit 1

96      On those examinations, the plaintiff complained of neck pain, pain in the left arm, low-back pain and pain in the left leg, together with recurrent pins and needles of the left hand aggravated by movement of the arm and relieved when she rested the arm.

97      Dr Stockman had available x‑rays of the cervical spine which, according to him, revealed narrowing of the C5-6 disc space and of the right C5-6 intervertebral foramina.  Dr Castle, the treating general practitioner, accepted that on that history, there was clear nerve root compression, probably emanating from the degenerative disc at C5-6 or C6-7, which would suggest that there were significant problems with such disc well before 2001.

98      However, after a consideration of all the evidence, I am persuaded that it is more probable than not that the plaintiff suffered effectively a “new injury” to her neck over the period from March to April 2001, when she made dramatic complaints of increased neck pain and new symptoms in her dominant right arm and in particular, complaints of paraesthesia in her right arm.

99      I put much weight on the evidence of Dr Castle in part because he was the doctor “on the spot” in 2001, and indeed his “expert” knowledge of the operations of the first defendant where he had been the company doctor for a number of years.

100     Although Dr Castle clearly accepted that there was a pre-existing disc lesion at C5-6 and probably at C6-7, he considered that something “changed” in 2001 when she commenced to complain of increased neck symptoms and dramatic symptoms in her right arm.  In this respect, it is to be noted that Dr Castle had been treating the plaintiff from 1999 in relation to her low-back injury and there were no complaints of neck pain until 2001.  Dr Castle was of the opinion that the activities of her employment and, in particular, the “continuing neck flexion” while performing the inspection and checking work on the machinery contributed to such neck injury.

101     Although it is not precisely clear whether there was a particularly traumatic event or indeed employment over a short period of time in early 2001 gave rise to the symptoms, I am satisfied as a matter of probability that the activities undertaken by the plaintiff during this period of time (March to April 2001) has given rise to a general worsening of her neck condition with the advent of new symptoms in the right arm.

102     In one sense, such an “injury” is a new injury as described by Dr Castle (and Mr Brazenor).  If analysed in terms of an aggravation of a pre-existing degenerative disc, I am of the opinion that appropriately applying the principles set out in Petkovski v Galletti,[95] the extent of such aggravation gives rise to “serious” consequences.  Whereas prior to March/April 2001, the plaintiff had not made any complaints to Dr Castle about ongoing neck difficulties (although she accepted that she had had some ongoing neck difficulties from 1992), her symptomology in her neck and the symptoms in her right arm was the beginning of her undergoing CT scans to ascertain the difficulty, referrals to neurosurgeons and recommendations that surgery be undertaken.  Furthermore, she was having ongoing difficulty performing her work, whereas before this period, although clearly not symptom-free, she was performing such work and that any limitations in her work capacity were largely brought about by her low-back injury.

[95][1994] 1 VR 436; see also De Agostino v Leatch & Anor [2011] VSCA 249

103     Although clearly the plaintiff has ongoing low-back symptoms which may impact on her capacity for work and her enjoyment of life, it is not to the point for the purposes of this application to examine such consequences in relation to her low back.  I am satisfied that as a result of the injury suffered by her in March-April 2001, the plaintiff had suffered a permanent impairment to her neck which has resulted in consequences which satisfy the narrative test.  Such consequences are made up of her ongoing pain and restriction of activities brought about by her neck and right arm condition and her inability to perform any work reasonably open to her on the labour market as a result of her neck injury and right arm impairment following the events in March/April 2001.

104     In particular, I accept the opinions of Dr Castle and Mr Timms and Mr Jones that the Plaintiff has no capacity for employment as a result of her neck injury.

105     I find that the Plaintiff currently has a loss of earning capacity which is productive of a financial loss of 40% or more and that after this date will continue permanently to have a loss of earning capacity which will be productive of financial loss of 40% or more as a result of her neck injury.

106     I also note that liability was accepted for a claim under s98C/E of the Act for injury on 3 April 2001 which was described as “aggravation of injury to neck”.[96]

[96]See Ansett Australia Ltd v Taylor [2006] VSCA 171 at [40]

Conclusion

107     Accordingly, I grant the application and give leave to the plaintiff to bring common law proceedings for both “pain and suffering damages” and “pecuniary loss damages” in respect to her neck injury suffered on or after 20 October 1999 during the course of her employment with the first defendant.

108     I will hear the parties on the question of costs.

ANNEXURE ‘A’

1. The plaintiff tendered the following material:

(a)Exhibit A1 ─ weaving loom and platform (for identification purposes);

(b)Exhibit B consisting of:

·Affidavits of the plaintiff sworn on 22 May 2007, 19 October 2009 and an indeterminate date in 2010 (such documents found at pages 18 – 21h of the Plaintiff’s Amended Court Book (“PCB”));

·Medical reports of Dr Castle dated 9 March 2004, 29 October 2004, 9 November 2004, 27 September 2005, 12 March 2006, 9 September 2008, 22 February 2007, 12 August 2010 and 24 May 2011 (such reports found at pages 22 to 48 and 62 – 63 and from pages 105 – 106e PCB);

·Medical report of Mr Nye dated 27 April 2005 (at pages 49 – 51 PCB); medical reports of Dr Kohn dated 10 February 1994 and 27 September 1996 (at pages 52 – 55 PCB);

·Physiotherapy report from Mr Max Neufeld dated 5 January 2007 and 1 September 2009 (at pages 56 – 60 and 78 – 82 PCB);

·Medical report of Mr Brazenor dated 31 October 2008 (at pages 68 – 72 PCB);

·Report from Western Hospital dated 7 July 2009 (at page 83 PCB);

·Report of Mr K King dated 11 November 2009 (at pages 86 – 96 PCB);

·Medical report of Mr Timms dated 22 February 2010 (at pages 97 – 100 PCB);

·Medical report of Mr Dohrmann dated 20 June 2010 (at pages 101 – 104 PCB);

·CT scan of cervical spine dated 9 April 2001 (at page 61 PCB) and MRI scan dated 9 June 2009 (at pages 84 – 85 PCB);

(c)Exhibit C – Acceptance of s98C claim for neck dated 30 November 2006 and associated documentation (at pages 108 – 113 PCB) and summary of income tax returns (page 107 PCB);

(d)Exhibit D – Summary of surveillance.

1. The defendants tendered the following material:

(a)Exhibit 1 – document headed “Milka Milosevic” dated 17 March 1998;

(b)Exhibit 2 – document from Bradmill Textiles Pty Ltd dated 21 January 2003 setting out return to work periods of plaintiff;

(c)Exhibit 3 – video footage dated 6 November 2008;

(d)Exhibit 4 – video footage dated 4 January 2009;

(e)Exhibit 5 – video footage dated 13 and 14 March 2009;

(f)Exhibit 6 – plaintiff’s claim forms, employer claim report and plaintiff’s claim for impairment benefits form (pages 1 – 11 Defendants’ Amended Court Book (“DCB”))

(g)Exhibit 7 – Medical report of Mr Robert Carey dated 17 August 2005; medical report of Dr C Castle dated 3 February 2007; medical report of Mr D Conroy dated 8 September 1986; medical report of Mr Hugh Hadley dated 17 July 2000; medical reports from Mr K King dated 11 February 1997 and 14 August 1998; medical reports of Dr M Kohn dated 30 March 1992, 10 February 1994 and 27 September 1996; medical report of Mr Peter Kudelka dated 28 May 2004; medical report of Mr I McNicol Smith dated 13 June 2000; physiotherapist’s report of Mr M Neufeld dated 16 March 2001; medical report of Mr Daryl Nye dated 15 May 2001; medical reports of Mr Michael Shannon dated 13 August 2006, 4 September 2007 and 27 October 2008; medical reports of Dr Shen dated 18 November 1999, 30 November 1999, 1 June 2000 and 20 May 2004; medical report of Mr J L Sinha dated 19 October 1999; report of Dr Alex Stockman dated 27 July 1998; medical reports of Mr J L Swann dated 11 June 1987 and 15 July 1986; medical report of Dr S K Wong dated 25 May 1986; CT scan of lumbar spine dated 9 April 1999 and CT scan of the cervical spine dated 9 April 2001; MRI scan of the cervical spine dated 22 February 2007; and medical reports of Mr Ian Jones dated 8 June 2010 and 19 July 2010 (all such documents found at pages 12 – 80h DCB)

(h)Exhibit 8 – rehabilitation documents, including HDA Medical Group initial assessment report and HDA Medical Group vocational assessment (at pages 81 – 90 DCB);

(i)Exhibit 9 – employment documents consisting of pre-placement health assessment dated 22 May 1990; superannuation disablement claim dated 29 August 2002; letter from Bradmill Textiles Pty Ltd to “Stuart” dated 5 November 1999; letter from Bradmill Textiles Pty Ltd to ARF dated 21 January 2003; and facsimile transmission from ARF to Bradmill Textiles Pty Ltd dated 18 March 2002 (documents at pages 91 – 103 DCB);

(j)Exhibit 10 – documents relating to Transport Accident Commission file A8504836 (at pages 104 – 107 DCB);

(k)Exhibit 11 – documents from Transport Accident Commission file 91-09784 (at pages 136 – 151 DCB);

(l)Exhibit 12 – clinical file notes of Dr Castle;

(m)Exhibit 13 – medical certificates signed by Dr Castle dated 21 September 2001.