Mitrovska v Westaff (Australia) Pty Ltd
[2010] VCC 535
•31 May 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-09-003348
| DRAJIKA MITROVSKA | Plaintiff |
| v | |
| WESTAFF (AUSTRALIA) PTY LTD & ANOR. | Defendant |
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| JUDGE: | HER HONOUR JUDGE LAWSON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17 & 18 May 2010 |
| DATE OF JUDGMENT: | 31 May 2010 |
| CASE MAY BE CITED AS: | Mitrovska v Westaff (Australia) Pty Ltd & Anor. |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0535 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION - Accident Compensation Act 1985 – claim for serious injury certificate – pain and suffering and loss of earning capacity consequences – leave granted for pain and suffering and loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P. Rattray QC | John Dellios & Associates Pty |
| With Mr R.C. Forsyth | Lawyers | |
| For the Defendants | Mr P.D. Elliot | Herbert Geer & Rundle Lawyers |
| With Ms M. Taffe | ||
| HER HONOUR: |
1 Drajika Mitrovska brings this application seeking leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (the Act) to commence proceedings to recover damage for injuries suffered by her on 4 July 2004 during the course of her employment with the defendant.
2 Westaff (Australia) Pty Ltd (Westaff) is a placement agency. Ms Mitrovska worked as a picker and had been placed through the agency with a company called Chiquita Mushrooms, Mernda now known as The Mushroom Exchange.
3 On 4 July 2004 she tripped over some packaging at the premises of the Mushroom Exchange and sustained injury to her knees, shoulder and low back. Her knees and shoulder problems have largely resolved and are not the subject of this application. The low back injury is the subject of this application.
4 Ms Mitrovska relies upon paragraph (a) of the definition of ‘serious injury’ contained in s 134AB(37) of the Act. Paragraph (a) of the definition is in the following terms:
serious injury means –
(a) permanent serious impairment or loss of body function; or
5 The body function affected is the lumbar spine.
6 The application relates to leave for both and pain and suffering and loss of earning capacity consequences.
7 During the hearing the application under part (c) was abandoned.
8 What is in contention in this application is whether the plaintiff’s claimed injury and its consequences, fulfil the requirement of “serious injury” as defined in the Act and various authorities.
9 Mr Elliot, QC, on behalf of the defendant, submitted that this was a “range case” and that on the basis of the totality of the evidence the plaintiff does not fulfil the necessary requirements for certification for serious injury.
10 In conformity with Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in sub- s.(38)(c).
11 Ms Mitrovska gave evidence and was cross-examined. As was usual in these types of applications the parties tendered their respective Court Books and the details of the tendered material are set out in the exhibit list in a schedule attached to these reasons. Surveillance evidence is referred to in the index to the Defendants Court Book. No film was shown to the Court.
12 I accept the plaintiff as a witness of truth who gave her evidence in a straightforward manner, such a finding does permit me to act with some confidence in accepting the plaintiff’s evidence in relation to the pain, restrictions and problems associated with her low back injury.
13 The background to the matter and the nature of the claimed injury is not in dispute. The following facts have been established:
14 Ms Mitrovska was born in Macedonia on 17 May 1958. She is married with three children. She has basic education. She attended school in Macedonia to age 15 and helped out on the family farm until she migrated to Australia in 1978. She worked as a packer in a biscuit factory for some five years and then returned to Macedonia for eight years, returning to Australia in 1991. She then worked as a poultry packer for some seven years. Her ability to read, write and speak and understand English is restricted and she required the services of a professional Macedonian interpreter for the purposes of giving her evidence.
15 The plaintiff commenced employment on 27 November 2001. She was employed as a casual mushroom picker and her hours varied depending on demand. Sometimes she worked 10 hours and sometimes 20 to 30 hours and on other occasions up to 40 hours a week.
16 On Sunday 4 July 2004, at about 6.45am she entered the shed to collect a trolley to start work in the production building. She was carrying her handbag and a stool that she used to stand on to reach the shelves to pick the mushrooms. The mushrooms are grown on six levels from near ground level up to just above shoulder height. She was proceeding along a walkway when her right foot became caught on a plastic strap from a half open pallet which was lying across the walkway. She tripped and fell forward onto her face on the concrete floor landing on her hands and knees. A fellow worker assisted her and the supervisor was notified. She noted that she had pain in her low back, her arms ached and that she had pain in her hands and grazing on her knees.
Medical Treatment
17 She was seen by a company doctor who arranged x-rays of her knees and was advised not to work for a couple of days.
18 On 5 July 2004 she was seen by her own general practitioner, Dr Gorgioski. He remains her treating doctor. The plaintiff did require treatment in respect of other conditions, namely shoulder conditions, hand and trigger finger conditions and had some conservative management of her knee condition. At trial she gave evidence that it was her low back condition that was most problematic and that her other conditions were being managed appropriately.
19 Dr Gorgioski has known the plaintiff as his patient since 11 December 1991. He is therefore in a good position to be able to comment on her condition, management and prognosis. When he first examined the plaintiff on 5 July 2004 he found superficial abrasions on both knees, pain in the hips, painful movement at both shoulders, tenderness of the lumbar spine and right hip with restricted movement. A CT scan of the lumbar spine showed normal L3 and L4 and a minor degenerative disc bulge at L3, L5 and L5/S1. Ms Mitrovska complained at that time of severe back pain and that has continued on unabated.
20 Mr Brian Barrett, orthopaedic surgeon, took over responsibility for Ms Mitrovska’s management. He first saw her in October 2004. He noted in a letter sent to Dr Gorgioski dated 12 October 2004, that the low back pain has increased since the time of injury radiating up towards the thoracic area and intermittently into both legs, particularly the right leg. The lower back pain is aggravated by prolonged standing, prolonged sitting, bending forwards, heavy housework et cetera, and only seems to be improved by taking analgesics and resting.[1]
[1] Plaintiff’s Court Book (“PCB”) 102
21 Dr Gorgioski and Mr Barrett both note that there was no past history of back injury or symptoms and that the plaintiff’s general health had otherwise been good prior to the claimed injury.
22 Mr Barrett records that the CT scan of 6 July 2004 reveals modest L4/5 generalised disc bulge slightly more to the left than right and also a generalised L4/S1 disc bulge.
23 Ms Mitrovska continued to complain of pain such that an MRI was arranged and that was performed on 24 January 2006. The MRI findings are reported as follows by Dr Vincent Healy:
“Minor loss of disc signal intensity is appreciated at L2/3 consistent with early degenerative disc disease with minor disc bulging. No evidence of disc herniation or posterior annular tear.
At L4/5 disc height and disc signal intensity is preserved, however mild eccentric left posterior-lateral disc bulging is noted mildly compromising the lateral recess. However, there is no evidence of displacement or enlargement of the adjacent left L5 nerve root. No additional disc abnormality.
Conclusion:
Minor degenerative disc abnormality as described above at L3/4 and L4/5 with mild compromise of the left lateral recess at L4/5 but without convincing evidence of compressive radiculopathy of the adjacent left L5 nerve root.”[2]
[2] PCB 94
24 Subsequently, a repeat lumbar spinal MRI was carried out at Cabrini Hospital on 13 August 2008 and that showed similar features to the MRI of 24 January 2006 and again mild disc disruption is noted at L2/3 disc level with minimal disc bulge and a small posterior annular split is seen. The L4/5 disc has a mild posterior disc bulge with no evidence of any nerve irritation at any lumbar level.
25 The radiologist, Dr Nicholas Gelber, report notes that the lumbar discs are normal apart from mild desiccation at L2/3, L3/4 and L4/5 without significant narrowing and a small posterior annular tear at L2/3. No associated disc protrusions are identified. Facet joints appear within normal limits. No spondylosis or spondylolisthesis. No canal compromise or nerve root compression. Conclusion: Minimal mild lumbar disc degenerative changes virtually normal for age. No suggestion in neural compression.[3]
[3] PCB 95
26 Mr Barrett continues to monitor the plaintiff’s progress over the intervening period and he notes that there were complaints of increasing low back pain and pain radiating into both legs, particularly the right leg and those symptoms were aggravated by prolonged, sitting, bending, lifting. Ms Mitrovska avoids heavy housework, vacuuming and heavy shopping. She drives her car locally only and that her symptoms are helped by taking analgesics and resting. Her sleep remains very disturbed.[4]
[4] PCB 110
27 When examined on 31 July 2008, Mr Barrett noted some moderate lower lumbar tenderness, straight leg raising test recorded 70 degrees on the left and 60 degrees on the right. Neurological examination of the lower limbs revealed normal power, into both lower limbs, in the symmetrical distribution, the right ankle jerk reflex was markedly depressed, although other lower limb reflexes were normal and symmetrical. Sensations throughout the lower limb remain normal.
28 Mr Barrett’s diagnosis is of some disc disruption at L2/3 and L4/5 disc levels without any clear cut radiological evidence of sciatic nerve root irritation or pressure which he relates to the incident at work on 4 July 2004. He considered Ms Mitrovska unfit to return to her pre-injury duties and also lighter suitable duties. He considered that it is likely to continue into the indefinite future. No operative treatment is recommended and ongoing management is by way of conservative treatment.[5]
[5] PCB 111
29 Mr Barrett has continued to monitor the progress of Ms Mitrovska and her condition remains unchanged.
Current circumstances
30 Ms Mitrovska sets out in her affidavit dated 2 March 2009 that she still suffers pain in her low back region with pain down into her buttocks into both of the legs, mainly the right leg. Pain is present at all times and she complains of suffering flare-ups and more severe pain particularly whenever she bends over or twists when performing daily activities. Her back is always stiff first thing in the morning and takes some time to ease. She has difficulty sitting without changing position or standing up to stretch. Standing for too long also worsens the pain in her back and buttocks. She does undertake some self- managed exercise.
31 In her evidence, she has a walking tolerance albeit is restricted. She has good days and bad days. She has a treadmill and she sets it on slow and she walks for exercise up to 15 minutes per day. She must rest to stop the pain going down her right leg. She confirmed that she still has some pain in the front of her knees and left shoulder from time to time, that her thumb has settled following surgery but by far the most pain is from her back.
32 The back injury affects her day to day activities and she tries to do as much as she can with cooking and cleaning at home. She has difficulty with heavier duties, such as making beds and laundry and she requires the assistance of her husband with those tasks. She drives her car for a short distance only and she states that her social activities have been reduced. She is unable to enjoy dancing at weddings and other Macedonian celebrations because the vigorous movements involved cause severe pain. She currently takes Lexapro Digesics, Temaze, Nexium, Dulcolax and Panadol. She also uses Difflam gel and has physiotherapy treatment about once a fortnight.
33 In her further affidavit of 17 May 2010 she confirms that her condition remains unchanged. Gardening was a hobby that she enjoyed pre-injury. She is no longer able to do that. She confirms she did go back to Macedonia with her husband. In the affidavit it states in 1997, however in her evidence it was clearly in 2007 that they returned to Macedonia when her husband had some long service leave. Her evidence was that she flew from Australia to Singapore and then to Skojpa and then travelled some three hours via car to her village. The trip took 25 to 26 hours.
34 The fact that she undertook that travel does not in my view demonstrate that the consequences of the low back injury are not serious. The purpose of the visit was to see her mother and her father-in-law both of whom were in advanced age. Her mother has since died.[6]
[6] T32,L17
35 In her affidavit she says that it was difficult on the plane because she had to continually get up from her seat and walk around to ease the back pain but was assisted with the medications she took with her. In evidence she confirmed that she basically rested[7] and did not travel around Macedonia. She took sufficient medications to cover the entire trip so she could cope.[8] This evidence was not challenged.
[7] T15,L24-27
[8] T17,L6-9
36 She is prescribed and regularly takes one tablet of Nexium, one tablet of Dulcolax, four to six tablets of Panadol Extend per day and two tablets of Digesic each night. She applies Difflam gel two to three times a day. She sees her physiotherapist for treatment one to two times per month and that she finds with medication and physiotherapy her pain is eased in the short- term.
37 Ms Mitrovska demonstrated obvious postural discomfort throughout the time she was required to give evidence in the witness box and would stand and sit as the need arose. She states and I accept that she would not be able to work as a mushroom picker due to her low back injury as it involves a lot of manual work, bending, stooping and lifting. That aspect of her evidence was challenged in cross-examination.
38 Mr Elliot put to the plaintiff that she was a grandmother who enjoys her retirement and that she had no intention of working. She disputed that in her evidence.
39 Mr Elliot relied on the medical evidence that had been obtained on behalf of the defendant from Mr Brian Davey, consultant orthopaedic surgeon, who reviewed Ms Mitrovska on 12 August 2004. That was some five weeks following injury. At that time he considered that she did have some soft tissue injury to the knees and low back consistent with the fall on 12 July 2004 to which her employment was the significant contributing factor. He considered that it resulted in some incapacity for employment but that she had a capacity to undertake her pre-injury employment and he did not place any restriction on her ability to work such that he considered she was fit for her normal duties.
40 It is not apparent from Mr Davey’s report whether he was aware of the nature and extent of the plaintiff’s duties at the mushroom factory. Given the somewhat dated nature of his report, the fact that he did not have access to the radiological material, namely the two MRIs that were conducted nor details of the plaintiff’s current condition I have not placed great weight on that report.
41 Mr Elsner, orthopaedic surgeon, saw Ms Mitrovska on 30 May 2006. Again, this report is somewhat dated with more than four years having passed since that examination. During that intervening period there has been progression of her symptoms as is noted by the treating doctor, Dr Gorgiovski and also Mr Barnett. In those circumstances I have not placed much weight on his findings.
42 Mr Elsner did have available the CT film of the lumbar spine, the report of 6 July 2004, the MRI film of the lumbar spine, and the report dated 24 January 2006. His opinion is that the fall caused a temporary exacerbation of the pre- existing lower lumbar degenerative changes as demonstrated on the films that the plaintiff has recovered from any soft tissue injury that she sustained and requires no further treatment and is physically capable of resuming her pre- injury employment. Her condition is stabilised.
43 Mr Michael Troy, surgeon, examined the plaintiff on 9 August 2007 for the purpose of an impairment assessment. He considered that she had minor age related degenerative changes of the disc space of L4/5 and L5/S1 and minor facet joint arthropathy at L5/S1 and additionally, she has developed some gastric symptoms as a result of the medication supplied for her spinal condition. He considered the injury stabilised. He considered that she had a two per cent whole person impairment with respect to the lumbar sacral spine.
44 Dr P.D. Clarke reviewed Ms Mitrovska on 25 June 2008. He agrees with Mr Davey that she does not have any work-related injury and her symptoms in the back are constitutional and related to age-related degeneration. He considered the condition chronic but no treatment is indicated for the work injuries claim which has resolved.
45 Finally, Mr Michael Dooley, orthopaedic surgeon, reviewed Ms Mitrovska on 7 December 2009. On physical examination, he noted tenderness of the low lumbar spine; flexion is to 20 degrees and extension is to ten degrees; lateral flexion and rotation to the left and the right are to ten degrees. Ms Mitrovska complained of pain with these movements. Straight leg raising was recorded to 30 degrees on both sides. At this level Ms Mitrovska complains of pain in the lumbar spine. Spine is aggravated with hip and knee flexion. He noted the MRI scan of the lumbar spine was carried out in August 2008. He agrees that it shows evidence of disc degenerative disease of the lumbar spine, no evidence of nerve root compression or lumbar disc prolapse.
46 He considered the mechanism of injury consistent with Ms Mitrovska suffering soft tissue injury to her knees and a jarring type injury to the hands. He accepts it is possible she sustained a minor soft tissue injury to the lumbar spine. He did not consider that that would be of any significance. He appears to be alone in diagnosing that she has a significant psychological reaction and that she suffers from chronic pain syndrome. He considers it is her psychological reaction to enduring pain that dominates her clinical presentation. He did note clinically there is restriction of movement of the lumbar spine greater than he would expect to see and are inconsistent with the signs in relation to the straight leg raising. He did note, however, evidence of tenderness of the low lumbar spine.
47 Ms Mitrovska has been seen for medico-legal purposes by Mr Kevin King at the request of her solicitors. Mr King is an orthopaedic surgeon. He saw her on two occasions in May 2006 and again in December 2009. He had available to him all the radiological investigations.
48 His opinion was that, as a consequence of the injury following the fall at work on 4 July 2004, Ms Mitrovska suffered injury to her low back that presumably resulted in some damage to lumbar discs and associated ligamentous structures, this trauma being superimposed upon mild pre-existing by apparently symptomless degenerative changes in the spine as shown on the CT scans he examined. As she denied any problems of any sorts of back pain in the past he attributes the onset of symptoms and persistent chronic nagging pain since the fall to the effect of the fall at work on 4 July 2004.
49 He opined that the actual x-ray changes shown on CT and MRI scan films are consistent with somebody of her age and occupation and quite consistent with the previous lack of any symptoms. At the first examination he considered on clinical grounds she had a 20 per cent impairment of lumbosacral spinal function and that she was stabilised at this level.
50 He considered Ms Mitrovska would be suitable to undertake light work which involves only sitting and some light packing if such work was available, although that opinion was somewhat modified following his later examination in December 2009.
51 I note on both occasions when examined by Mr King he noted limitation of low back movement by pain and spasm and approximately one-third of the normal range of all movements of the lumbosacral spine was present.
52 In December 2009, Mr King considered that there was quite marked limitation of low back movement by pain and spasm on examination of the lumbosacral spine. Again approximately one third of normal range movements were present. He considered the plaintiff’s back condition seems to have deteriorated a little to some degree over the intervening three years.
53 His overall impression on clinical grounds, following the second examination, was that she had a 25 per cent impairment of the lumbosacral spinal function as a result of the lower back injury and that that condition had stabilised. Importantly, he could find no evidence of any sort of psychological overlay at the last review.
54 He also modified his view about suitable employment and did not consider that the plaintiff was capable of returning to work in suitable employment in the foreseeable future. He considered the back problem likely to continue for the foreseeable future.
55 Mr Ken Brearley, surgeon, examined Ms Mitrovska in August 2006. At that time he considered she had suffered an injury to the low back as a consequence of the fall at work. Previously her back condition had been asymptomatic but in his view there was no doubt there were significant degenerative changes present and that the heavy fall resulted in aggravation of those changes with specific injury to L4/5 and L5/S1 discs and supporting structures of the lumbar spine.
56 He considered that she was unfit for all pre-injury work and that she had no current work capacity when examined. He did not consider her fit for any suitable employment. He recommended ongoing conservative treatment.
57 When reviewed in December 2009 his opinion remained the same. He noted no improvement in the plaintiff’s condition and, if anything, it is somewhat worse than when he saw her three years ago. He records that her low back pain remained the major problem and a source of disability for the plaintiff. He considers the injury to be mechanical lumbar pain due to aggravation of degenerative changes in the mid and lower lumbar discs. In particular, there has been a specific injury to the L2/3, L3/4 and L4/5 intervertebral discs and those changes are demonstrated on MRI.
58 He confirmed his previously expressed opinion that she was unfit for any suitable duties and that the consequences of the work injury will continue for the foreseeable future. Ms Mitrovska will continue to have pain in the long term. She will also have restrictions in regard to her domestic activities involving difficulty with heavier aspects of her household tasks such as vacuuming, making beds, doing the laundry. She is unable to do gardening. She can only drive short distances. The prognosis in his view for the back is poor and no likelihood of any improvement in the foreseeable future.
59 At the request of the plaintiff’s solicitors Dr C. Castle, an occupational physician, reviewed Ms Mitrovska on 14 December 2009. It is unfortunate that he was only provided with the medical reports that have been obtained on behalf of the plaintiff by her solicitor but not the defendants. Nonetheless, I still accept his expressed opinion. He is of the view that she has aggravated degenerative disease of the lumbar sacral spine as a consequence of the injury at work. Ms Mitrovska no longer has the capacity for her pre-injury work and that, in his opinion, she has no current work capacity because of the severity of her pain, the restricted movement of the lumbar sacral spine, limited sitting, standing and walking tolerances. He considered her condition would remain long-term and would not change for the foreseeable future.
60 Mr Bill Radley, psychologist, prepared a vocational assessment report. Again it is unfortunate that he did not have access to all the medical material. He only seemed to have the dated medical report of Mr B. Davie and no other medico-legal consultants that saw the plaintiff for the defendant. Nonetheless, having regard to the fact that I consider Ms Mitrovska is a credible witness whose complaints of lower lumbar pain following injury. I accept his expressed opinion that she was not fit for any suitable employment.
Findings
61 I am satisfied that the plaintiff suffered a compensable injury to her low back on 4 July 2004.
62 Clearly the medical evidence is at odds concerning the nature of the claimed injury and its consequences. I prefer the expressed opinions of the treating doctors, Dr Gorgioski and Mr Barrett who have both managed the plaintiff since the injury. They are best able to gauge the extent of her injury and its consequences.
63 I am satisfied that following injury to the low back the plaintiff suffers mechanical lumbar pain due to aggravation of degenerative changes in the mid and lower lumbar discs. In particular, there has been a specific injury to the L2/3, L3/4 and L4/5 intervertebral discs and those changes are demonstrated on MRI.
64 I am satisfied that such injury has resulted in such permanent impairment of the low back giving rise to physical consequences.
65 In determining whether such “consequences” are “serious” within the meaning of s.134AB of the Act, I am assisted by two recent Court of Appeal decisions of Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181, delivered on 14 August 2009, and Sabo v George Weston Foods [2009] VSCA 242, delivered on 23 October 2009.
66 In particular, I refer to the following matters:
(a) The dicta of Ashley JA and Beach AJA in Stijepic, at paragraphs [40] – [42]
wherein they state:
“The emphasis in s 134AB (37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this
includes cases which do not end up in litigation — because, it may be supposed, the consequences are glaringly apparent one way or the other. The spectrum is not established simply by fastening upon a case or two in which the applicant has failed.”
(b) In Stijepic (op cit), Ashley JA and Beach AJA refer to Dwyer v Calco
Timbers Pty Ltd (No 2) [2008] VSCA 260, wherein, at paragraph 27, it is stated:
“… the significance of what has been lost, which bears upon the seriousness of
consequences, may be informed, to an extent, by what is retained.”67 Ms Mitrovska is a 52 year old woman who suffers chronic low back pain with associated stiffness. I accept her description of the effects of her injury on her activities of daily living. She lives a modest lifestyle. She enjoys her family and grandchildren but does not care for the grandchildren. She has limited exercise tolerance, can do only lighter tasks and relies on her husband to perform heavier household tasks such as the vacuuming, mopping, making beds and doing the laundry. She can drive only short distances and has curbed her social activities. She is unfit for any physical work. She continues to take prescribed medication for pain relief and only gets limited relief from the medications and the physiotherapy treatment that she had 1 to 2 times per month.
68 I refer to the recent decision of Tatiara Meat Company Pty Ltd v Kelso [2010] VSCA 12 delivered by the Court of Appeal on 16 February 2010, wherein Robson AJA (with whom Ashley JA and Mandie JA agreed), stated, at paragraph 75:
“I do not demur from the statements of principle in the earlier appeal and agree with the proposition that ‘The endurance of daily pain requiring frequent medication must, according to ordinary human experience, raise a very real prospect of a ‘very considerable’ consequence’. … “
69 In a similar way, I am of the opinion that the plaintiff’s chronic pain, although of varying intensity, requires ongoing medication and that is a consequence which can be well described as “very considerable”.
70 I am satisfied that the impairment to the low back or loss of body function of the low back is permanent in the sense that it is likely to last into the foreseeable future.
71 In summary, the pain and suffering consequences of the plaintiff’s impairment or loss or body function of her low back when judged by comparison with other cases in the range of possible impairments or losses of body function could fairly be described as being more than significant or marked and as being at least very considerable.
Loss of earning capacity
72 I am also satisfied that the plaintiff has discharged the burden of proof in this regard both in relation to the very considerable test and in relation to the additional stringent tests contained in s.134AB(38)(e)-(g).
73 I have had regard to s.134AB(19)(b) which provides that the plaintiff, for the purposes of proving a relevant loss of earning capacity, bears the onus of proving any inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment and the extent of such inability. I am satisfied the plaintiff has satisfied this onus.
74 I accept that it was reasonable for the plaintiff not to have accepted the offer of clerical work referred to in evidence 6 weeks post injury. The plaintiff was an unskilled labourer whose work history reflects that she was reliant on being physically fit and capable of performing manual tasks. She has limited skills in spoken English, basic skills in understanding written English and poor to non existent skills in reading and writing English.[9]
[9] Vocational Report, Mr B Radley PCB 182
75 I find that the plaintiff is not fit for “suitable employment’ and it is likely this situation will continue indefinitely.
76 I am satisfied that she has discharged the burden pursuant to s.134AB(19)(b) and that she thereby has satisfied the statutory tests including the other binding tests set out in s.134AB(38)(e)-(g).
77 When the requisite comparison is made with other cases in the range of possible impairments and losses of a body function is made, the loss of earning capacity consequences may be described as being more than significant or marked and as being at least very considerable.
78 The plaintiff has discharged the burden of proof in relation to injury to her low back in respect to both pain and suffering consequences and pecuniary loss consequences.
79 Leave is granted to bring proceedings for recovery of damages accordingly.
LIST OF EXHIBITS—
commencing on 17 May 2010
Mitrovska v. Weststaff (Aust) P/L & Anor
| COUNSEL FOR THE PLAINTIFF: COUNSEL FOR THE DEFENDANT: | Rattray QC & Forsyth |
| Elliott QC & Taaffee |
Number and
| Identifying Mark | Short Description of Exhibit | Date | Plaintiff/ |
| on Exhibit | Tendered | Defence |
Affidavit of the Plaintiff sworn 2 March 2009 and 17.05.20 Plaintiff
1 Further Affidavit of the Plaintiff sworn17 May 10 2010. Medical Panel Opinion dated 28 February 2008.
17.05.20 Plaintiff 2 10
Report of Dr C Gorgioski dated 20 November 17.05.20 Plaintiff
3 2008. 10 Reports of Mr B Barrett dated 12 October 2004;
17.05.20 Plaintiff 4 26 October 2004; 27 January 2006; 14 October 10 2008; 24 January 2006; 14 August 20084 August 200819 September 2008; 9 September 2009
Reports of Mr D Gibson dated 29 October 2004 17.05.20 Plaintiff
5 & 10 February 2005; Dr M Richardson dated 16 10 December 2004; Mr D de la Harpe dated 11 February 2005; Dr D Gya dated 9 August 2006
Report of Mr K King dated 2 June 2006 17.05.20 Plaintiff 6 10
Report of Mr K Brearley dated 17 August 2006 17.05.20 Plaintiff 7 10
Report of Dr C Castle dated 11 January 2010 17.05.20 Plaintiff 8 10
Report of Mr B Radley dated 13 February 2010 17.05.20 Plaintiff 9 10
Bundle of Reports including; 17.05.20 Defenda
A Mr B Davis dated 17 August 2004 10 nt Mr K Elsner dated 14 June 2006 Mr M Troy dated 9 August 2007; 22 August 2007; 29 October 2007 Dr P D Clark dated 25 June 2008 Mr M Dooley dated 23 April 2010
Dr H Karsz CT dated 6 July 2004 17.05.20 Defenda
B Dr V Healy dated 24 January 2006 10 nt Dr N Gelber dated 14 August 2008
0
5
0