Morris v Auscol Investments Pty Ltd & Anor (Revised)
[2013] VCC 1162
•6 August 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-00848
| ANGELA MORRIS | Plaintiff |
| v | |
| AUSCOL INVESTMENTS PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 and 6 August 2013 | |
DATE OF JUDGMENT: | 6 August 2013 | |
CASE MAY BE CITED AS: | Morris v Auscol Investments Pty Ltd & Anor (Revised) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1162 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering – injury to the lumbar spine
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605
Judgment:Leave granted to the plaintiff to bring common law proceedings for pain and suffering damages in respect to injury to the lumbar spine suffered by her on 25 February 2008 during the course of her employment with the first defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P G Nash SC with Ms A M Malpas | Victorian Compensation Lawyers Pty Ltd |
| For the Defendants | Mr D C Oldfield | Herbert Geer |
HIS HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injuries suffered by the plaintiff in the course of her employment with the first defendant on 25 February 2008.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only. She brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning “(a) permanent serious impairment or loss of a body function”. The body function relied upon ultimately in this application is the lumbar spine.
3 The plaintiff relied on three affidavits and gave viva voce evidence. She was cross‑examined. In addition, she relied on two affidavits of Richard Alexander Flett, sworn 16 January 2013 and 22 July 2013, and an affidavit of Norma Helen Holland, sworn 11 January 2012.
4 An impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future. The plaintiff bears an overall burden of proof upon the balance of probabilities. By ss(38)(c) of s134AB of the Act, the impairment must have consequences in relation to each of pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described at the date of hearing as being “more than significant or marked and being at least very considerable”.
5 I am required to consider the consequences to this particular plaintiff viewed objectively arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function.
6 Subsection (38)(h) consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases. I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd and Ors v Podolak[1] in reaching my conclusions.
[1](2005) 14 VR 622
7 The defendants concede the plaintiff suffered an organic injury in the course of her employment as alleged and that the injury is an aggravation of a lumbosacral disc. The medical evidence with respect to the organic injury is very consistent from both the plaintiff and the defendants’ perspectives.
8 Orthopaedic surgeon, Mr Paul Kierce, in a report dated 3 March 2011, opined that it was “very likely that Angela Morris suffered an annular tear of the lumbosacral disc in the incident at work on 25 February 2008”.
9 Further, consultant occupational and environmental physician, Dr David Fish, in his report dated 9 August 2010, considered that the plaintiff presented with aggravation of lumbar disc degeneration and although there were some features suggestive of abnormal illness behaviour with widespread pain and coccygeal pain, overall he considered that she had suffered injury with aggravation of lumbar disc degeneration. He considered that the injury was permanent, and awarded an impairment rating pursuant to the relevant tables.
10 For the plaintiff’s part, she was referred to orthopaedic surgeon, Mr Brian Barrett. In his report dated 20 January 2012, he opined as follows:
“Following clinical orthopaedic examination of the plaintiff on 25 November and 16 December 2010 and then repeated on 19 January 2012, it is clear she has sustained a serious injury, particularly involving the L5-S1 lumbar intervertebral disc, causing her ongoing symptoms of lower back pain radiating into the right thigh, not below knee level, these symptoms initiated by a heavy fall in the course of her work on 25 February 2008.”
11 Mr Barrett further stated:
“Lumbar disc injuries of this severity have no significant capacity to heal or repair which accounts for her ongoing symptoms and disability, her symptoms being aggravated by any significant physical activity and somewhat easing by resting.”
12 Mr Barrett went on to say:
“Conservative treatment has not improved the symptoms and disability of the plaintiff and I consider that the only satisfactory treatment to control her symptoms into the future would be operative fusion at the L5‑S1 lumbar intervertebral disc, removing the source of pain but leaving her other lumbar discs intact and normal.”
13 Incidentally, Mr Barrett also considered that in the subject fall, the plaintiff suffered a lesser rupture involving the T12-S1 disc, producing a mild posterior disc bulge more to the right side.
14 As a consequence, he considered that the disability of the plaintiff was physical, that it was ongoing and had significantly reduced her physical working capacity, and that any psychological change is entirely secondary to her ongoing disability. His opinion was essentially corroborated by Professor Kenneth Myers, consultant general surgeon, who examined the plaintiff on or about 9 July 2013. He considered that she had suffered a “shallow central disc protrusion at L5-S1”. He further considered that the injury had caused pain and suffering from physical injury quite apart from any physical contribution.
15 Perhaps the most significant area of residual dispute between the parties is whether or not the physical injuries suffered in the course of the plaintiff’s employment are said to cause consequences which are “serious” in terms of the legislation.
Compensable physical injury
16 It is common ground that a compensable physical injury occurred in the course of the plaintiff’s employment as a waitress as a result of a heavy fall on the day in question.
Pain and suffering consequences – principles
17 As has been set out on a number of occasions, but particularly in the Court of Appeal decision of Sutton v Laminex Group Pty Ltd:[2]
“The pain and suffering consequences of a compensable injury extend beyond the physical experience of pain to include the debilitating effect on a person’s life. … .”
[2] (2011) 31 VR 100 at paragraph [46]
18 The Court of Appeal recited with approval the dicta of Maxwell P in Haden Engineering Pty Ltd v McKinnon,[3] where his Honour recorded:
[3](2010) 31 VR 1
“[9]… [T]he ‘pain and suffering consequence’ of an injury encompasses both the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life. …
[10] As to the experience of pain as such, the court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale ‘mild/moderate/severe’. Unless the pain is constant, the court will need also to assess the frequency and duration of the pain episodes.
[11] The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
(b) what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c) what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d) what the objective evidence shows about the disabling effect of the pain.”
19 Relevantly to the issues in this appeal, Maxwell P pointed out that the first evidentiary basis will turn on an assessment of the plaintiff’s credit. He said, at paragraph [12]:
“[12]As to (a), the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility. The court will make its own assessment of the plaintiff's credibility if she gives evidence and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.”
20 An assessment of the fourth evidentiary basis must be tempered by an understanding of the effect of stoicism. Approving what was said in Dwyer v Calco Timbers Pty Ltd (No 2)[4] by Nettle JA, Maxwell P observed:
“[13]As to paragraph (d), the cases recognise that some plaintiffs may be more ‘stoical’ than others. This means that such a plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injuries suffered by the ‘stoical’ plaintiff is not to be viewed as an any less serious merely because she manages to remain more active than might have been expected given the level of pain. In such a case, the ‘objective’ evidence of the disabling effect may be of less significance than usual.”
[4][2008] VSCA 260 at paragraph [13]
21 To identify the disabling effect of pain requires an understanding both of the plaintiff’s pre-injury and post-injury employment and activities, although this does not amount to a simple comparison.
22 As Maxwell P explained:
“[15]The disabling effect of pain: as to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this Court (per Ashley JA) said in Dwyer (No 2), ‘Impairment is concerned with what has been lost. But the significance of what has been lost may be informed, to an extent, by what is retained.’ As to capacity for work, it is necessary to identify whether and to what extent a plaintiff is prevented by the pain from performing the duties of her previous employment. The fact that the plaintiff has been unable to return to full‑time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is the extent to which ‘an area of work which the plaintiff enjoyed has been closed off to her’.”
23 Assessing loss of enjoyment of life in a broad sense requires an understanding of the effect of the impairment upon numerous aspects of a plaintiff's daily life and activities. In this respect, Maxwell P said:
“[16]Capacity for work aside, assessing the extent to which the pain interferes with the ordinary activities of life will typically involve consideration of its effect on the plaintiff’s: sleep; mobility; cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication); capacity for self-care and self-management; performance of household and family duties; recreational activities; social activities; sexual life, and enjoyment of life. Whether and to what extent the matters listed are relevant to the court’s task in a particular case will, naturally, depend on the circumstances of the case.”
Pain and suffering consequences of compensable physical injury
24 The medical evidence in this regard discloses as follows:
25 First, Mr Kierce, having identified the injury as already indicated, stated:
“In my opinion, the injury has affected her employment capacity in the future as she should not be involved in waitressing unless the occupation did not involve prolonged or frequent bending, the lifting of weights more than five kilograms, nor pushing or pulling. She does have the capacity to perform full‑time work as long as it is suitable employment by reason of her back alone.”
26 Mr Barrett considered the consequences[5] as follows:
“Ms Angela Morris has no capacity to return to unrestricted manual or pre‑injury employment entirely due to the physical nature of her lower lumbar disc injury. Likewise, the inability to remain in full employment is entirely due to the physical effects of this lower lumbar disc rupture. Likewise, it profoundly reduces her social, recreational and domestic activities. Lumbar disc ruptures of this severity have no capacity to heal or repair and I consider her current symptoms and disability are likely to continue into the foreseeable future. Prognosis for improvement with further conservative treatment is unlikely to be helpful. Lumbar disc injuries of this severity have no capacity to heal or repair and it is likely that her symptoms will go on into the foreseeable future.”
[5]Plaintiff’s Court Book (“PCB”) page 64
27 Similarly, Professor K Myers, as to the consequences of the injury, stated as follows:[6]
[6]PCB 122
“(4) This injury has caused loss of earning capacity from physical injury quite apart from any psychological contribution;
(5) she has no capacity for full‑time unrestricted manual or pre‑injury employment;
…
(7) there will be impairment of social, recreational and domestic activities;
(8) as has been pointed out, there is no capacity for the lumbar intervertebral disc to heal so that her symptoms will be permanent with the probability of gradual worsening in the future;
(9) her physical injury has caused pain and suffering and loss of earning capacity quite independent of any psychological contribution;
(10) there is every likelihood that worsening symptoms will necessitate consideration of an operation to remove the degenerative lumbosacral intervertebral disc probably within the next three to five years.”
28 In my opinion, the opinion expressed by Mr Kierce, although not descending as to the possibility of future operative involvement, is consistent with these findings, in the sense that there is a permanent restriction on the plaintiff’s ability to undergo full work capacity into the future.
29 Clearly, there is no claim here for leave to proceed for economic loss but the restrictions in the plaintiff’s ability to work in the future are relevant as to consideration of pain and suffering and loss of enjoyment of life.
The Plaintiff’s evidence
30 In her first affidavit, the plaintiff swore that she was born in July 1980 in England and migrated to Australia from England in or around June of 2006. In or about January 2008, she began employment at Natalie’s Restaurant on a casual basis as a waitress. Working hours were varied but subsisted of approximately 15 hours per week.
31 In or about September 2006, she had experienced back pains when giving birth to her first child. She had received treatment from her doctor, including but not limited to medication and physiotherapy. This condition improved, and at the time of her work injury had not caused her any significant interference with her capacity to work.
32 Counsel for the defendants, in this case, fairly acknowledges that there was no demonstrated impairment immediately prior to the work injury. Further, the plaintiff stated that on or about 25 February 2008 whilst at work in the restaurant, she slipped on the tiles and landed heavily on her lower back. She experienced immediate lower back pain and found herself unable to get up off the floor. She was taken to Box Hill Hospital via ambulance. At the time of her work injury, she was in the first trimester of her pregnancy with her second child. She stated that the work she performed at the restaurant was repetitive manual work.
33 At the time of swearing her first affidavit, she was consulting her general practitioner for treatment on an on and off basis and continued to take medication consisting of Voltaren and Panadol. The consequences of her injury at that stage were that the quality of her relationships with each of her children and her partner had suffered enormously as a result of the work injury. The pain from the injury had caused her trouble sleeping and she often experienced pain when initially going to bed. In cross‑examination, she stated that the pain experienced when she first tried to go to sleep but generally she was able to complete a night's sleep uninterrupted.
34 She swore that she experienced increased pain and difficulty following physical activities such as standing or sitting for prolonged periods, reclining for too long in one position, walking for prolonged distances or in a repeated fashion, squatting, getting up after kneeling, reaching, bending, as well as repeated or prolonged twisting and leaning.
35 She further swore that her injury had adversely affected and interfered with her normal sexual function as she tended to suffer from inefficiency due to pain, meaning that she was unable to participate in desired sexual activity. Further, she was no longer able to engage in group activities such as camping and other outdoor activities such as jogging and bushwalking. She found that such activities increased pain in her lower back.
36 Prior to her injuries, she said that she enjoyed looking after her children and carrying out basic household duties. She was now more dependent on her partner to perform activities in and out of the house. This often left her feeling useless and frustrated. Although she had not been to the gymnasium for some years prior to the injury, it had been her intention to resume this occupation when duties with the children permitted. She was now unable to engage in that activity at all.
37 She returned to work for the relevant employer after about six weeks and continued in work until 2013, interrupted only by two pregnancies in October 2008 and March of 2013. This was material disclosed in her second affidavit sworn 30 December 2011.
38 At paragraph 7 therein, she stated that the pain and restriction caused by the work injury had made her prospects of securing and being able to stay in employment on the open labour market as minimal. She stated that she was frustrated by the restrictions placed upon her by that injury as prior to the onset thereof, she considered herself a good worker and enjoyed leading a normal and productive working life.
39 Other restrictions suffered by her at that stage were, she had difficulty lifting her children and engaging actively with her daughters and she found that some days were particularly bad as she tended to pay for increased activity with more pain afterwards, despite even taking painkilling medication on a daily basis. She swore further that she avoided taking the children for walks and she had difficulty with everyday tasks such as shopping and driving and now finds these activities tiring and painful.
40 She conceded in cross‑examination that she was still, nonetheless, able to engage in these activities despite these restrictions. It was once again fairly conceded by counsel for the defendants that the plaintiff's answers in cross‑examination were straightforward and non-evasive.
41 Further consequences that she swore to were that she used to enjoy jogging and going for long walks. Similarly, she and her husband now avoid going camping or on bushwalks as these activities exacerbate the pain in her back. Further, since the onset of her work injury, she has trouble with mopping the floors, vacuuming and picking up rubbish due to the very significant pain in the back. Although she tries to undertake as many tasks around the house as possible, she now relies upon her husband to perform many tasks that involve bending or lifting such as cleaning the bath and gardening. Due to the pain of her work injury, she no longer bathes her daughters in the bath and often waits for her husband to come home to bathe the children. Her next‑door neighbour, Mrs Norma Holland, also swore to having on occasions showered the children because of the plaintiff's inability to undertake that task.
42 In her third affidavit sworn 22 July 2013, the plaintiff confirmed the earlier disabilities and further swore that due to the pain and restriction caused by her work injury, she is concerned about her inability to work and care for her children.
43 Following the birth of her second child in October 2008, she quickly fell pregnant again and discussed with her partner whether to keep the baby as she was very concerned about her inability to cope with another child and another pregnancy as a result of the work injury. That pregnancy was terminated as a result of that concern. However, a third child was conceived and delivered in March of 2013 following a similar discussion but with the agreement of the plaintiff’s husband’s mother to the effect that she would come and stay and help the plaintiff during the pregnancy.
44 Currently, the plaintiff takes Celebrex and Panadol Osteo for back pain, and she says that caring for her children at times makes it difficult to attend medical practitioners for treatment as and when she would like. Further consequences are that she tends to avoid bathing the children and has difficulty dressing the children and putting their shoes on. She finds it hard to lift the third child’s pram in and out of the boot of her motor vehicle and she is limited in her ability to push the pram. She experiences increased pain with lifting, settling and nursing the third child and she avoids sitting on the floor with her children for extended periods.
45 As to her own needs, she now favours showering as she finds sitting in the bath tends to aggravate her back pain. She further tends to sit down to put her pants, socks and shoes on to minimise pain in the back. She now no longer wears high-heeled shoes or goes dancing as a result of the injury. None of these matters were challenged in cross‑examination.
46 Further, in her recent affidavit, the plaintiff confirms that although able to participate in sexual activity, this activity tends to be accompanied by increased back pain which means the activity is less enjoyable. Further, she continues to avoid active exercise due to back pain and in particular, avoids running, jogging and power walking.
Findings
47 In terms of the criteria referred to above and the concession made by defence counsel to the effect that the sole issue in this case is whether the consequences of the injury meet the necessary threshold pursuant to the legislation, I make the following findings:
(a) The plaintiff was an honest witness and made concessions where relevant and, in my view, gave a frank account of her disabilities;
(b) The organic injury suffered by the plaintiff, although tending to exacerbate or cause an emotional response, is genuinely founded, as recorded by the medical practitioners for both sides referred to above. In terms of the principles set out by Ashley JA in Jayatilake v Toyota Motor Corporation Australia Ltd,[7] the discal injury so described is consistent with the permanency and seriousness of the injury described by the plaintiff and as accepted by all the medical practitioners;
[7](2008) 20 VR 605 at paragraph [20]
(c) The plaintiff, in my view, has permanently lost the opportunity to work full time without restriction in the future on account of the injury, although not satisfying the statutory test for economic loss pursuant to this legislation. Nonetheless, such a restriction on her earning capacity is relevant in the assessment of pain and suffering consequences;
(d) The plaintiff further swore that she can no longer jog, attend the gym, go bushwalking or dance. These consequences were not challenged in cross‑examination.
48 Taking into account the plaintiff’s experience of pain and disabilities and her honest presentation, it is my opinion that the pain and suffering consequences to which the physical compensable injury materially contributes are “very considerable and more than significant or marked”. I consider that her injury to the lumbar spine has met the threshold test for leave to bring proceedings for damages under s134AB(16)(b) of the Act.
49 I will hear the parties as to consequential orders.
Orders
(1)Leave is granted to the plaintiff pursuant to s134AB (16) of the Act to commence proceedings at common law in respect of pain and suffering damages in respect of the injury to her suffered during the course of her employment with the first defendant on or about 25 February 2008.
(2) The defendants are to pay the plaintiff’s costs, on County Court Scale “D” up to 31 August 2011 and on County Court Scale from 1 September 2011, to be referred to the Costs Court in default of agreement.
(3) Certify for two counsel:
(a) Senior Counsel’s fee on brief fixed in the sum of $6,600 per day, for two days, 5 and 6 August 2013, inclusive of conference fee;
(b) Junior Counsel’s fee on brief fixed in the sum of $3,300 per day, for two days, 5 and 6 August 2013, inclusive of conference fee.
(4) Liberty to apply regarding certification for the reasonable costs of preparation of the Plaintiff’s Court Book.
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