Pollard v Akimbo Pty Ltd
[2011] VCC 1187
•14 July 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-03581
| KIMBERLEY POLLARD | Plaintiff |
| v | |
| AKIMBO PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6 July 2011 |
| DATE OF JUDGMENT: | 14 July 2011 |
| CASE MAY BE CITED AS: | Pollard v Akimbo Pty Ltd & Anor |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1187 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – whether the consequences of an injury to left shoulder were “very considerable” in respect of pain and suffering and loss of earning capacity – worker under 26 years of age at time of injury – plaintiff had prior disabilities as a result of a genetic condition.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell SC and | Henry Carus & Associates |
| Mr S R McCredie | ||
| For the Defendants | Ms K Galpin | Wisewould Mahoney Lawyers |
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed on 13 August 2010 by which the plaintiff applies for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of or in the course of her employment with the first defendant on or about 19 May 2008.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr J H Mighell SC appeared with Mr S R McCredie of counsel for the plaintiff and Ms K Galpin of counsel appeared for the defendants.
4 The body function which the plaintiff says has been lost or impaired is the left shoulder and left scapular area of her back.
5 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined; • The plaintiff tendered the Plaintiff’s Court Book (“PCB”): Exhibit A, including pages 18-23 and 27-97; • The defendants tendered the Defendants’ Court Book (“DCB”): Exhibit 1, including pages 1-36 inclusive and pages 37-43 inclusive. The defendant also tendered pages 24-26 of the PCB. 6 At the commencement of the application, Mr Mighell, on behalf of the plaintiff, announced that the application for serious injury was brought under paragraph (a) of the definition set out for “serious injury” in s.134AB(37) of the Act. The impairment of body function was to the left shoulder.
7 At the commencement of the application, Ms Galpin, on behalf of the defendants, conceded that causation was not an issue in this application.
The Statutory Scheme
8 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of s.134AB of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
9 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that she has suffered a compensable injury; that is, an injury which she suffered arising out of the course of her employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities.
(d)
Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)
Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently.
(g)
In conformity with Barwon Spinners, 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-section (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
10 When a worker is under twenty-six years of age at the date of injury, pursuant to s.134AB(38)(e)(ii) of the Act, she must establish that at the date of the hearing she has a loss of earning capacity of 40 per cent or more. Further, she must establish, pursuant to sub-section (e)(ii), that she will, after the date of the hearing, continue to have a permanent loss of earning capacity which will be productive of a financial loss of 40 per cent or more. Sub-section (f), which relates to older workers and requires consideration of income from personal exertion in the three years before and the three years after injury, does not apply.
11 Counsel for the plaintiff made reference to the Second Reading Speech on the Accident Compensation (Common and Benefits) Bill which he submitted supported the view that, in the case of a worker under twenty-six years, common law principles applied.
12 In the Legislative Assembly on 23 May 2000, the Honourable M M Gould, Minister Assisting the Minister for WorkCover, said:
“The three-year pre and post-injury period does not apply in the case of a worker referred to in section 5A(7) of the act or a worker under the age of 26 years at the date of injury. The government recognises that apprentices and workers undergoing training for the purpose of becoming qualified and in general terms workers under the age of 26 years should not be subject to a six-year period of inquiry of earnings or earning capacity. In the case of such workers, a court may have regard to the probable income from personal exertion which the worker would have earned but for the injury over the worker’s probable earning life. This means the usual common-law position prevails.”
13 I accept that the rationale for the insertion of this section was not to disadvantage young workers in assessing an “after injury” earnings figure against their “without injury” earnings.
14 This case is one in point where the plaintiff was engaged in part-time cleaning work at the time of the injury and was earning only $13,342.00 gross per annum at that time. If the plaintiff’s “without injury” earnings were assessed in the usual manner applied to older workers, the plaintiff would fail in her claim for loss of earning capacity if her “after injury” earnings exceeded approximately $8,000 per annum – an unfair situation when the likelihood was that she may have had the capacity to earn far in excess of what she was earning at the date of injury by doing more hours of work or being promoted, as she had aspirations to be.
15 In this case, I have to be satisfied, on the balance of probabilities, that the loss of earning capacity to the plaintiff exceeds 40 per cent and that the loss is permanent in the sense it is likely to last for the foreseeable future.
16 I am required by s.134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background
17 The plaintiff was born on 6 June 1982 and is now twenty-nine years of age. She is a single woman who lives alone. She completed Year 11 in formal schooling and then attended a horticultural course for two years, completing Certificate I and Certificate II in Horticulture. During the course of her studies in horticulture, she did work experience at Poynton’s Nursery in Middle Park for approximately six months. She subsequently did a cleaning traineeship and commenced work with the first defendant, Akimbo Pty Ltd, on a part-time basis of two hours a day for five days a week. Since the date of injury, 19 May 2008, the plaintiff has not resumed employment.
18 The plaintiff was born with a genetic disorder known as Pyruvate Dehydrogenase Deficiency (“PDH”) Complex. The plaintiff had suffered two strokes in her younger years. The first stroke was when she was approximately two-and-a-half years of age and the second stroke was when she was twelve years of age. As a result of those strokes, the plaintiff has physical restrictions to her right leg which requires a splint, and an affected right arm. She was dependant on her “good” left arm for daily living activities. The plaintiff’s speech is also affected, and this was evident during the course of her evidence. The plaintiff had been in receipt of a Disability Pension since 1994.[3]
[3] Transcript (“T”) 17, L4-5
19 The plaintiff commenced work with the first defendant in a part-time capacity at the end of 2005 or the beginning of 2006.
The Injury with the First Defendant
20 The plaintiff sets out the circumstances in which she was injured in her first affidavit.[4] The plaintiff, in her evidence, corrected the manner in which she was injured and set out the circumstances of her injury, stating that it occurred when she was lifting the pipe and head of the steam cleaner and carrying it from Building 2 to Building 3 at her place of work. The plaintiff stated that the pain was in her lower back and left shoulder initially.[5]
[4] PCB 10, paragraph 9
[5] T 11, L10-29
21 The plaintiff had corrected the date of injury from 12 February 2008 to the actual date of 19 May 2008 in her second affidavit.[6]
[6] PCB 15, paragraph 15
The Plaintiff’s Medical Treatment
22 The plaintiff went to see her general practitioner, Dr R Moreton, at the Elsternwick Clinic a couple of days after the injury on 19 May 2008. The nature of her treatment has been conservative.
23 On 24 June 2008, the plaintiff had an x-ray and ultrasound of her left shoulder. The conclusion of the report for the ultrasound to the left shoulder was:
“Appearances are those of a very mid subacromial bursitis with minimal
bursal impingement during forward flexion.”[7]
[7] PCB 26
24 The plaintiff deposed to receiving one cortisone injection to the shoulder. She was allergic to the cortisone and that procedure did not assist her.[8]
[8] PCB 10 and 16
25 Dr Moreton then prescribed Tramadol in June of 2008 and Panadol for relief of pain.[9] The plaintiff was then referred to physiotherapy treatment on 22 September 2008 and she attended at the physiotherapist for treatment.
[9] PCB 32
26 On or about 27 November 2008, the plaintiff was prescribed OxyContin and Endone to assist her with pain relief and management of her symptoms.[10] The plaintiff remained on OxyContin medication from November 2008 until 7 April 2009, when the medication was changed to Nexium.[11]
[10] PCB 34
[11] PCB 42
27 The plaintiff attended at the Caulfield Pain Clinic as an outpatient from 18 March 2009 until she was discharged on 5 October 2010.[12] The plaintiff was initially prescribed Mobic and OxyContin at the Pain Clinic on 18 March 2009.[13] The medication of OxyContin was changed due to the plaintiff’s reaction to the use of OxyContin.
[12] PCB 40 and 50
[13] PCB 40
28 On 28 April 2009, the plaintiff was first prescribed Endep, 10 milligrams per day. This was to assist her with her complaints of sleep disturbance.[14] The plaintiff gave evidence that she was currently taking 50 milligrams of Endep each evening before she goes to sleep and takes 25 milligrams of Endep in the morning.
[14] PCB 43
29 The only other medication the plaintiff takes currently is Panadol Osteo, which she buys over the counter at the pharmacy or supermarket.
30 Whilst at the Caulfield Pain Clinic, the plaintiff joined a Feldenkrais group on 27 January 2010.[15] The plaintiff gave evidence that the Feldenkrais exercises alleviate her pain when the pain levels get to an unbearable level for her.
[15] PCB 48
31 The plaintiff’s current treatment involves the medications of Endep and Panadol Osteo, combined with the Feldenkrais exercises. Dr Moreton supervises this treatment plan.
The Medical Opinions
32 I think it is unnecessary to review the medical evidence in any significant detail because there appears to be a level of agreement amongst the medical practitioners concerning the actual injury suffered by the plaintiff. In summary, the medical opinions diagnose a mild subacromial bursitis and a bursal impingement of the left shoulder. However, I will, in these reasons, refer to various parts of the medical opinions tendered in evidence in this case.
33 Dr Moreton, the plaintiff’s general practitioner, confirms that the ultrasound showed bursitis to her left shoulder. He states that the plaintiff has pain behind her left shoulder and left upper back, down the medial border of her left scapular. Dr Moreton opined that at some time in the future she could do some non-physical work.[16]
[16] PCB 36
34 Dr Peter Janovic from the Caulfield Pain Management and Research Centre found that the ultrasound to the left shoulder revealed a subacromial bursitis with impingement. On examination, the plaintiff had localised tenderness over her scapular region with limited movement of her left shoulder. Dr Janovic was of the opinion that in March 2009, the plaintiff had a significant Regional Pain Syndrome and heading down the path of a well-entrenched chronic pain process.[17]
[17] PCB 40
35 Dr Janovic, in his report dated 28 April 2009, reports that the plaintiff was suffering sleep disturbance and was feeling shaky and unwell. He changed the plaintiff’s medication from OxyContin to Endep at this time. He expressed the opinion that the use of Endep will assist in what is quite severe sleep disturbance and may play a role in helping her with her pain.[18]
[18] PCB 43
36 Dr James Harkness, rheumatologist, saw the plaintiff in July of 2008. He treated the plaintiff with a cortisone injection into the subacromial space of her left shoulder which was to settle the bursitis and relieve her pain. Dr Harkness found, on examination, that the plaintiff had restriction of flexion and abduction in the joint associated with pain but a full range could be achieved on a passive movement. He found the plaintiff was tender in the subacromial region.[19]
[19] PCB 54
37 Mr John O’Brien, orthopaedic surgeon, examined the plaintiff on behalf of the plaintiff’s solicitors. Mr O’Brien regarded the plaintiff as presenting with non- specific upper left-sided thoracic and shoulder girdle pain. He stated that it appeared to be chronic and indeed poorly responsive to conservative management. Mr O’Brien stated that the chronic nature of the plaintiff’s pain suggests a moderately poor prognosis and it now appears likely that this current clinical condition will persist. He stated that the very longstanding severe physical disability has been compounded by the effects of the work- related incident. As a consequence of this, the plaintiff is now incapable of returning to her previous occupation as a cleaner. Mr O’Brien added that he would suggest that there is probably no suitable employment for the plaintiff, and stated that he would therefore again conclude that this injury has resulted in the plaintiff becoming totally and permanently incapacitated.[20]
[20] PCB 72-73
38 Dr H Sutcliffe, occupational physician, examined and reported on the plaintiff. The examination took place on 23 March 2011. Dr Sutcliffe found that the plaintiff sustained an onset of left shoulder bursitis and musculo-ligamentous injury to her left shoulder girdle, cervical spine and thoracic region as a result of the incident at the workplace in 2008. Dr Sutcliffe opines that the plaintiff has no capacity for work other than occupations where she is able to perform no manual handling, limited upper limb use and avoids prolonged standing or walking. Dr Sutcliffe opined that currently the plaintiff has no capacity for employment either in pre-injury employment or in any employment for which she is suited, taking into account her age, background, education and training, and her past work experience. In summary, Dr Sutcliffe stated:
“I believe that she has no capacity for general employment and that she could find employment in niche employment only where she is protected by goodwill of an employer or organisation.”[21]
[21] PCB 79-80
39 Mr Clive Jones, orthopaedic surgeon, examined the plaintiff on behalf of the defendants on two occasions. In his report dated 12 May 2011, Mr Jones stated that on examination, he thought that the plaintiff’s left shoulder was impinging very slightly. He found that clinically she does have a mild degree of shoulder dysfunction and clinically an associated subacromial bursitis. Mr Jones attempted to separate out the left shoulder injury from the other significant disabilities that the plaintiff suffered. He stated as follows:
“Considering the shoulder injury in isolation and ignoring the very significant right-sided disability that she has, I feel she does have a work capacity, but I would judge her unsuitable to resume work as a cleaner even though that employment was only part-time.”[22]
[22] DCB 15
40 Mr Jones concludes his report by saying as follows:
“She has a mildly painful left shoulder. This is on top of her previous neurological problem. It is not uncommon to find even a small injury in the context of a major neurological deficit, may be enough to tip the patient over into joblessness, and this does appear to be the situation with Ms Pollard.”[23]
[23] DCB 16
41 I find that Mr Jones’ opinion of the plaintiff is that whilst the left shoulder injury and symptoms in isolation are not, of themselves, very serious, the nature of those left shoulder injuries has very considerable consequences for the plaintiff given her previous neurological deficits on her right side as a result of her genetic condition and the strokes she had suffered in the past.
42 The plaintiff was also examined by Dr P D Clark, on behalf of the defendants, on 23 February 2010.
43 Dr Clark found that the plaintiff’s active left shoulder movements were mildly restricted in abduction and flexion but internal and external rotation were normal. The plaintiff indicated a localised area at the medial border of her left scapular as the area in which she felt pain when she rotates to the left. He could find no impingement signs at the time of his examination.[24] Dr Clark concluded that the plaintiff sustained a soft-tissue injury in the course of her work as a cleaner. In his opinion, the injury had resolved.[25]
[24] DCB 19
[25] DCB 20
44 Of all the medical examiners, Dr Clark is the only one who finds that the plaintiff has recovered from her injury in 2008. I do not accept his opinion in this regard.
45 The plaintiff tendered and relied upon a report dated 19 April 2011[26] of Ms Louise Meilak from Flexi Personnel, a recruitment firm. Ms Meilak sets out the physical restrictions that now apply to the plaintiff and states her opinion as follows:
“When I consider all the negative factors together, I believe Kimberley will struggle to find suitable employment or be re-trained into any alternative vocation, which would be economically self-sustaining. I do not believe she has any transferrable skills that she is currently physically capable of performing to an adequate standard which would be considered acceptable in the workplace. As a recruiter, I would be concerned that if Kimberley were placed into work, that often in the workplace job descriptions can change, which could result in the duties not being compatible with her restrictions and she could consequently aggravate her current condition or sustain a new injury.”[27]
[26] PCB 82
[27] PCB 91
46 Ms Meilak goes on to say:
“I believe the physical impairments the plaintiff sustained from her work
injury in 2008 alone will hamper her return to work prospects.”[28]
[28] PCB 91
47 I accept that this is a realistic and appropriate assessment of where the plaintiff now finds herself in respect of employment prospects in the future. In this regard, Ms Meilak’s opinion and that of Mr Jones are in agreement.
The Plaintiff’s Credit
48 Ms Galpin, on behalf of the defendants, cross-examined the plaintiff on the basis that the plaintiff exaggerated the nature of the work which caused the injury to her left shoulder. The plaintiff, in her affidavits, had referred to carrying the whole of the steam cleaning machine. She gave that history to some of the doctors. The plaintiff even gave a history to one of the medical practitioners that she had carried the machine for one-and-a-half kilometres.[29] The thrust of Ms Galpin’s cross-examination was that the plaintiff was trying to make the most or best of her injuries by exaggerating what work was involved to cause them. The plaintiff’s response to the allegation was that the doctors were mistaken about the history given to them by her.
[29] PCB 76
49 The plaintiff also gave different histories to various doctors over the time:
•
On 20 August 2008, the plaintiff told Dr Timothy Wood, sports physician, that she was carrying a steam wand with some water in it and it weighed around 10 kilograms;[30]
•
On 23 February 2010, the plaintiff told Dr P D Clark that she was required to carry a steam wand from one building to another on the campus;[31]
•
On 4 August 2010, the plaintiff told Mr John O’Brien, orthopaedic surgeon, that she had been involved in lifting a nozzle and attached hose which was partially full of water some considerable distance to another building.[32]
[30] DCB 2
[31] DCB 18
[32] PCB 67
50 The plaintiff stated in her evidence that she thought the doctors were mistaken about her carrying the full steam machine. I note, however, that in both her affidavits she described that as the event giving rise to the injury.
51 I do not have to decide on the difference between whether the plaintiff was carrying the wand or the full steam machine in her evidence. The defendants admit that causation is not an issue in this case.[33] I do not find that this discrepancy in the history of the injury impacts negatively on the credibility of the plaintiff.
[33] T 27
52 The next issue for an attack on the plaintiff’s credit was the nomination of the lower back injury in the Claim Form dated 22 May 2008. The evidence in the hearing is that the plaintiff signed the Claim Form near the date of 22 May 2008. There is no evidence that she in fact filled out the form. In particular, in answers to Questions 9 and 17 there is no evidence as to who completed that part of the claim form.
53 On this issue of the actual injury sustained by the plaintiff on 19 May 2008, it is clear from the evidence of Mr Michael Kiryakidis that the plaintiff had complained to him on or about 20 May 2008 that she had a sore shoulder. Mr Kiryakidis was the supervisor of the plaintiff at her place of work. I conclude that the first defendant, through Mr Kiryakidis, had been notified by the plaintiff that her shoulder was sore or injured as a result of what had occurred on 19 May 2008. I do not place any significance on the fact that the actual Claim Form had referred to a muscle strain of the lower back rather than the shoulder, in light of the evidence given by the plaintiff that she signed the document but clearly had not completed it.
Observations of the Plaintiff
54 I have had the advantage of sitting and listening to the plaintiff give her evidence. She presented as an honest and forthright witness. I accept that she was doing her best to give an accurate and proper account of her difficulties and the things that she can still do.
55 On my observation of the plaintiff sitting in the court whilst being cross- examined, she sat with her left shoulder forward as she described. The plaintiff was asked to move her arm around to demonstrate the extent of the left arm and shoulder movement. I accept that the limited manner in which she moved her arm was restricted by her pain as she described it to be. Even when she was asked to demonstrate where on her back she was sore, she could not get her arm around to indicate the point of pain which she described as her left shoulder blade. I accept that the plaintiff was doing the best she could to display the range of movement she had in her left arm and shoulder.
56 The plaintiff gave evidence that she was unable to turn her head to the left.[34] I observed the plaintiff whilst she was in the witness box and it appears that she was unable to turn her head to the left. At one stage, when I asked a question directly of her, she rotated her chair around in order to look at me directly rather than turn her head to the left which would have been a much simpler action for her. I accept that due to her pain and stiffness, that she does have difficulty turning her head to the left and compromises the action by
[34] T 42, L14-20
rotating the whole of he r body. 57 The plaintiff impressed me as someone who, if she could, would be out working today. The background and her life history indicate a person who has made every effort to overcome enormous difficulties in order to obtain work and live her life as normally as she can. In obtaining the work as a cleaner after completing a traineeship, she had achieved a place in the workforce as a paid worker. She was very proud of that achievement and very pleased that she could continue with it.
58 The plaintiff said that she would like to work. She even volunteered that she thought she could possibly work in an opportunity shop. She says that she cannot work because of the pain. The plaintiff then said this:
“I can’t be relied upon to go on any, on a day when everyone else is at work. I can’t be guaranteed that I can get up at a specific time and go and do the work because things all spin and the pain medication, the Endep makes things spin and just causes me to want to doze and to want to rest.”[35]
[35] T 41, L1-11
59 I accept the plaintiff would want to work if she could. Her history has proven that. The problem she faces now is that, because of her injuries and, more particularly, the pain that she suffers in her left shoulder, she cannot work.
60 The defendants admitted they had obtained video surveillance of the plaintiff. The video surveillance was not shown to the plaintiff during the course of her cross-examination. I find that the video surveillance would not have assisted the defendants’ case in this matter.
Consequences
61 I have read the affidavits of the plaintiff sworn on 6 April 2010 and 8 June 2011. I have also read the affidavit of David Dockendorff dated 5 May 2011 and the affidavit of Judith Mary Pollard dated 8 June 2011.
62 I have carefully considered the evidence of the plaintiff and also her oral evidence given and tested by Ms Galpin during her cross-examination of the plaintiff. As I have previously stated, the plaintiff was a straightforward witness who gave a good account of the consequences of her injury. I accept her evidence in respect of the consequences and the effect the injury to her left shoulder has had on her.
63 I find that the consequences which I am satisfied the plaintiff has suffered as a result of the injury to her left shoulder are as follows:
•
As a result of her injury to the left shoulder, the plaintiff can no longer work. Dr Sutcliffe;[36] Ms Louise Meilak;[37] Mr Clive Jones;[38] and Mr John O’Brien[39] all agree that the injury to the plaintiff’s left shoulder has now placed her in a position that she can no longer engage in employment.
•
The loss of her work or the ability to work is a very considerable consequence for the plaintiff. The plaintiff is a young woman who has overcome many hurdles to deal with her genetic disabilities and despite all that, managed to get herself employed in the job as a cleaner. In her own words, the plaintiff, when speaking of her work, stated as follows:
[36] PCB 80
[37] PCB 91
[38] DCB 16
[39] PCB 73
“Yes, I did. I didn’t mind the extra hours because I really loved
doing the job, and I wanted to eventually move up if possible.”[40][40] T 13, L260-29
In my view, the inability of the plaintiff to return to paid employment is a serious loss to her self-esteem and general wellbeing.
•
The plaintiff has been unable to return to the workforce due to the level of pain in her left shoulder. She expressed that she was anxious to return to work but was not prepared to go and be a liability to her place of work. She stated in evidence:
“If I went back to work I feel I would be a liability not only to myself
but to the workplace and the public.”[41][41] T 46, L12-15
The plaintiff, during the course of cross-examination by Ms Galpin, was challenged about not even trying to look for work. The plaintiff responded in the following terms:
“No, not necessarily. I keep an eye out and I keep looking in the newspapers to see if there is something I could do, like volunteer work. I’ve been thinking about doing some form of work but at this stage I just feel that I can’t do it at the moment. Until the pain gets better I’m not going to do it.”[42]
[42] T 47, L14-20
I accept that the plaintiff is genuine in her desire to work but is restricted
from doing so due to the pain in her left shoulder.
•
Prior to the May 2008 injury, the plaintiff was able to live independently in her unit. She has given evidence that now she requires assistance from the local council who come and clean her home once every fortnight, because she is unable to do so herself. She states that she has difficulty getting out of the bath, being able to properly wash herself in the shower and has trouble dressing herself. She states that she now is unable to cook for herself and that a friend of hers, David, comes and cooks for her.[43]
•
The plaintiff has suffered sleep disturbance and has been prescribed Endep to assist her with her sleep disturbance and pain. The Endep medication has been longstanding and will continue into the future. The plaintiff gave evidence that she was tired as a result of the sleep disturbance. I accept that she has, as a result of the injury and pain as a result in her left shoulder, suffered considerable interruption and sleep disturbance and this has a consequent effect on her enjoyment of life. The Endep medication that she takes now is 50 milligrams in the evening and 25 milligrams each morning. The other medication that she takes to relieve her pain is Panadol Osteo for pain relief. This is an over-the- counter preparation and she gave evidence that she only takes it when she needs it.
•
The plaintiff gave evidence that her main method of controlling the pain was to do the Feldenkrais exercises which she had learnt at the Caulfield Pain Centre. She gave evidence that in the evenings when the pain become too much for her, she would go off to her bedroom and do Feldenkrais exercises for two to three hours.[44] For a person to engage in two hours of Feldenkrais exercises in order to manage her pain, in my opinion, indicates the level of pain and a great interruption to the normal lifestyle of the plaintiff.
•
The plaintiff said that as a result of her injury and withdrawal from employment, that she now has much limited social interaction with people of her own age. She stated that she had lost being around young people or people of her own age and that she now hangs around with older people.[45] The plaintiff gave evidence that because of her injury and the effect of it on her, that she could not socialise with young people by going out at night and to the city, because she did not feel able to access public transport or to be able to be in a position where people are crowding around her. The plaintiff was asked the following question in cross-examination:
[43] PCB 17 and T 43, L23-27
[44] T 40, L6-13
[45] PCB 18, paragraph 41
Q: “What stops you going out at night---? A:
The pain. That’s what stops me; it’s the pain, because that’s when it seems to get worse; it’s the pain and that’s when I go for a walk and that’s why I have to go for a walk to try and relieve it but if that doesn’t work then I have to do Feldenkrais and that can go on one to two hours or more depending on how much pain I’m in.”[46]
[46] T 45, L17-23
•
Other than her contact with David Dockendorff, the plaintiff does not have any contact with a younger person. I accept that this is a big impact on her as it is understandable that a young woman would want to mix with people of her own age and interests. As a consequence of the injury, this has been denied to the plaintiff and is a very significant consequence for her.
•
The plaintiff is now limited to travelling on public transport in the daytime due to the effect of her left shoulder injury on her. Prior to the injury, the plaintiff was able to access public transport because she could use what was then her good left arm to hang onto handles on trams and assist her in getting about. She gave evidence that she as able to use trams in the daytime but was unable to use public transport at night.[47]
•
The plaintiff has given evidence that she suffers considerable pain in her left shoulder. I accept the plaintiff’s evidence about that. There is evidence of an organic basis for the pain which is the bursitis and impingement in her left shoulder which has been found by the medical practitioners. The plaintiff is a person who has in the past dealt with considerable pain and disability but it seems that the added burden of the injury she received in May of 2008 has taken her pain levels to a new and barely manageable level. I find this is a very considerable consequence for the plaintiff.
[47] T 12, L12-14
Loss of Earning Capacity
64 I refer to my previous findings set out in these reasons and conclude that based on the medical opinions and the evidence of the plaintiff, that she has suffered an impairment to her ability to work and earn an income to the extent that she has more than a 40 per cent loss of earning capacity as a result of the injury in May of 2008. Indeed, based on some of the medical opinions, it could reasonably be said that the plaintiff is totally and permanently incapacitated from earning income or being employed in the future. I am satisfied that the plaintiff has established, on the balance of probabilities, that her loss of earning capacity into the future has been permanently impaired to an extent of greater than 40 per cent.
Conclusion
65 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s.134AB(16)(b) of the Act to recover damages for bodily injuries for pain and suffering and loss of earning capacity which have arisen out of her employment with the first defendant.
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