Port v Strandale Pty Ltd
[2013] VCC 1277
•11 October 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-12-04616
| TRACEY PORT | Plaintiff |
| v | |
| STRANDALE PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 and 7 October 2013 | |
DATE OF JUDGMENT: | 11 October 2013 | |
CASE MAY BE CITED AS: | Port v Strandale Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1277 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – pain and suffering – identity of injury – disentangling
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33; Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167; Ansett Australia Ltd v Taylor [2006] VSCA 171; Transport Accident Commission v Florrimell [2013] VSCA 247; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1.
Judgment: Leave granted to bring proceedings for pain and suffering damages only.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Carson | Maurice Blackburn Solicitors |
| For the Defendant | Mr I Gourlay | Wisewould Mahoney Solicitors |
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 injury suffered by the plaintiff in the course of her employment with the defendant on or about 24 May 2009 (“the injury”).
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 or loss of a body function”.
3 The body function relied upon in this application is the lumbar spine.
4 The plaintiff relied on two affidavits and gave viva voce evidence. She was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Outline of Section 134AB
5 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
6 The plaintiff bears an overall burden of proof upon the balance of probabilities.
7 By s134AB(38)(c) 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 the hearing, as being more than “significant” or “marked” and as being “at least very considerable”.
8 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.[1]
[1]Section 134AB(38)(b) of the Act
9 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[2] in reaching my conclusions.
[2](2005) 14 VR 622
10 The defendant concedes that it accepted liability for an organic injury suffered by the plaintiff in the course of employment on 24 May 2009 but does not concede that such injury meets the requirements of sub-paragraph (a) of the definition of “serious injury” referred to above.
11 In his opening, counsel for the defendant identified three significant areas of dispute between the parties being:
(a) whether or not the plaintiff has sufficiently identified the physical injury which is said to cause consequences which are “serious” in terms of the legislation;
(b) the psychological or psychiatric consequences of the physical injury are to be “disentangled” pursuant to s134AB(38)(h) of the Act; and
(c) whether the consequences to the plaintiff of the impairment can be described as “serious” when judged by comparison with other cases in the range of possible impairments or losses of a body function.
12 In final address, Counsel for the defendant, in a succinct and fair submission, conceded that the case really became a “range case” as outlined in paragraphs 7 and 8 above.
Compensable physical injuries
13 It is common ground that a compensable injury occurred in the course of the plaintiff’s employment as a cleaner on 24 May 2009, when she slipped and fell heavily onto her buttocks, whilst traversing a walkway area.
14 Although the defendant’s Counsel originally urged that the injury had not been sufficiently identified as being more than a simple musculoligamentous strain, in final address he fairly conceded that the sum total of the evidence adduced by the defendant from Associate Professor John Hart (Exhibit 2) and Dr Phillip Mutton (Exhibit 3) was to the following effect:
(a)As at June and July 2013, the plaintiff was suffering from “widespread degenerative changes” in the lumbar spine;
(b)The plaintiff had a genuine organic cause for her back pain which had been present for four years until that time;
(c)In that setting, “one would expect that [the plaintiff] would develop a functional component with persistent pain over such a prolonged period” (Associate Professor Hart, Exhibit 2);
(d)The plaintiff had “sufficient organic disease to prevent her working as a cleaner” (Associate Professor Hart, Exhibit 2);
(e)The plaintiff would be capable of non-cleaning type work for approximately 9 hours per week (Dr Mutton, Exhibit 3).
15 In addition, the defendant, by way of Notice of Impairments Benefits dated 8 May 2011, had accepted liability for a permanent impairment to the lumbar spine resulting from the injury (Exhibit B).
16 Both parties have referred to the MRI scan of the lumbar spine taken on 19 January 2010 (Exhibit L). The conclusion cited therein was as follows:
“Mild central broad-based disc protrusion at L4-L5 causing indentation of the thecal sac and mild central canal narrowing with contact on the L5 nerve roots bilaterally in the subarticular recesses. No foraminal stenosis.”
17 Although such investigation referred to “indentation of the thecal sac … with contact on L5 nerve roots bilaterally …”, only Dr Mutton considered there may be “some concerns about the neurological changes noted in terms of sensory changes and possible weakness in the left lower foot” on examination. He further stated “There was some lack of consistency in that area”.[3]
[3]Exhibit 3, DCB 39-40
18 In any event, both Counsel submitted that in the end the physical injury was open to be described as aggravation of pre-existing degenerative changes in the lumbar spine such that the changes were rendered symptomatic as alluded to particularly by Associate Professor John Hart.
19 Further, it was conceded that on a Petkovski v Galletti[4] analysis, the impairment extant at the time of hearing was wholly referable to the injury.
[4][1994] 1 VR 436
20 Against this background, I consider that the plaintiff has proved that she is still suffering from a compensable physical injury as at the date of this hearing, and that such physical injury results in an inability to perform the two cleaning jobs she was performing at the time of the injury and has resulted in a permanent physical restriction in her ability to work as a cleaner.
21 Thus, having so found, the next question is whether, at the time of hearing, the injury is “serious” in its pain and suffering consequences. Clearly, the plaintiff carries the burden of proof with respect to this matter.[5]
[5]See Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167 at paragraph [142]; Meadows v Victorian WorkCover Authority [2013] VSCA 201 at paragraph [21]
22 The nature of the physical injury, in my view, is consistent with the dicta of Ashley JA in Jayatilake[6] with respect to the nature of the compensable low-back injury which the plaintiff suffered. His Honour stated:
“The possibilities really reduce to three: simple musculo-ligamentous strain; aggravation of pre-existing lumbar spinal degenerative disease …; and lumbar intervertebral disc damage — either internal derangement or prolapse — in the setting of pre-existing lumbar degeneration. In general terms, if the first situation was the case, continuance of physical symptoms over a seven year period would be at least improbable. If the second situation was the case, whether continuance of physical symptoms was probable would sensibly depend upon the extent of the aggravation which was established. If the third situation was the case, it could most readily be concluded that physical symptoms continued.”
[6](supra) at paragraph [143]
23 Where his Honour uses the phrase “in general terms”, it must mean that every case will, of course, turn on its own facts.
24 The plaintiff, in her affidavit and evidence before the Court, describes ongoing pain in the low back, occasionally extending down the left leg. With respect to its constancy she was asked:
Q:“And how often do you have back pain?---
A:It’s a base pain constantly.
Q:It’s base pain that’s there all the time, is it?---
A:And aches all the time.
Q:And on a scale of 0 to 10 how bad is the pain that’s there all the time?---
A:Today I would give it a five, a six.
Q:Yes, and is today a good day or a bad day?---
A:Basically, it’s an uncomfortable day.
Q:An uncomfortable day?---
A:Yes.
Q:So you have days which are better than today?---
A:Yes.
Q:Do you have some days that are worse?---
A:Yes.”[7]
[7]Transcript (“T”) 15, L12-23
25 The plaintiff has been cross-examined by experienced Counsel and although I accept that her responses were at times “feisty”, she impressed me as a witness of truth, with her credit intact, and a person who was motivated to work to support herself and her daughters.
26 In addition, the plaintiff relies on the principle set out by Ashley JA in Ansett Australia Ltd v Taylor[8] to the effect that the acceptance of a permanent impairment with respect to the back injury by the defendant is probative evidence of an admission to that effect, although it does not amount an estoppel.[9]
[8][2006] VSCA 171 at paragraph [40]
[9]See Exhibit B
27 In this case, I have been urged by Counsel for the defendant to attribute lighter weight to this evidence, which I am prepared to accede to, along the lines set out in Transport Accident Commission v Florrimell.[10]
[10][2013] VSCA 247, 13 September 2013
28 The plaintiff also relies on the fact that the defendant has carried out video surveillance of the plaintiff and has not sought to adduce it in evidence and asks the Court to draw the inference that such surveillance would not have assisted the plaintiff’s case. I am prepared to draw that inference but once again not knowing the extent of the surveillance leads me to the conclusion that there is only limited weight that can be made of such an inference.
29 In any event, I am prepared to find that the plaintiff has discharged the onus of proof that she is still suffering from the compensable physical injury at the date of hearing and that the consequences of such physical injury are permanent, as outlined in the medico-legal opinions referred to.
Pain and suffering consequences – principles
30 As has been set out on a number of occasions, but in particular in the Court of Appeal decision of Sutton v Laminex Group Pty Ltd[11] at paragraph 46:
“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.”
[11][2011] VSCA 52
31 The Court of Appeal recited with approval the dicta of President Maxwell in Haden Engineering Pty Ltd v McKinnon,[12] where his Honour recorded:[13]
[12](2010) 31 VR 1
[13](ibid) at paragraphs [9] to [11]
“[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 …
The experience of pain
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.
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.
[47] Relevantly to the issues on this appeal, Maxwell P pointed out that the first evidentiary basis will turn on an assessment of a plaintiff’s credit. He said:
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 he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.
[48] 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) by Nettle JA, Maxwell P observed:
As to (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 injury suffered by the “stoical” plaintiff is not to be viewed as any the less serious merely because he/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.
[49] To identify the disabling effect of pain requires an understanding both of a plaintiff’s pre-injury and post-injury employment and activities, although this does not amount to a simple comparison. As Maxwell P explained:
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): ‘ … [I]mpairment 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 the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is to the extent to which ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her].’
[50] 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:
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
32 The plaintiff has sworn that she has been unable to pursue her dual employment because of the disabling back pain suffered since the occurrence of injury in May of 2009. I accept this evidence.
33 The plaintiff has sworn that prior to her injury, she had been performing work as a housekeeper with the Healesville Hotel from about April 2008. She worked there between approximately 10.00am and 3.00pm each weekday. Thereafter, she obtained a job with the defendant in September 2008 as a cleaner. There was a range of cleaning duties and she was rostered to work Tuesdays, Wednesdays, Fridays and Sundays.[14] Prior to April 2008, she had been out of the workforce for some 22 years, raising four children.[15] Following the injury on 24 May 2009, she did return to housekeeping at the Healesville Hotel but only approximating 3 to 8 hours per week in a more supervisory role.[16] This work was no longer available from July 2011 but alternative work was procured at the Terminus Hotel in Healesville, once again doing supervisory work. This took between 3 and 5 hours per week.[17] Importantly, the plaintiff has sworn she would not be able to get back to the sort of hours that she was previously working in her two jobs, nor would she ever be able to get back to unrestricted cleaning or housekeeping duties.[18] It was common ground that she could not return to her pre-injury employment duties. When asked why she had two jobs prior to injury, she replied:
A:“Financially I wanted to give [my girls] options that were a little bit strained before that.
Q:If you hadn’t been injured in May 2009 would you have kept working two jobs?---
A:Oh God, yeah. I want to keep working now. I want to try and find something I can do.”[19]
[14]Exhibit A, affidavit sworn 15 May 2012 at paragraphs 5 and 8
[15](ibid) paragraph 5
[16](ibid) paragraph 24
[17](ibid) paragraphs 24-26
[18](ibid) paragraph 27
[19]T48, L11-18
34 I further accept that the plaintiff has suffered the following consequences as a result of the said injury:
(a)The plaintiff’s only source of income now is the disability support pension, together with a minimal amount from a market stall she shares with her daughters;
(b)She has daily pain in her back and left leg as stated above such that, “I can’t even walk up the hill outside my house, it causes pain. I am uncomfortable, I like to walk on level ground”;[20]
[20]T48, L26-28
(c)She is restricted in her ability to go camping with her daughters.[21] She is restricted in being able to clean her house, in particular, cleaning the shower and bath;[22]
[21]T49
[22]T50, L9-22
(d)She is “annoyed” and “frustrated” at not being able to maintain her two jobs and the consequences financially were described as “a big financial impact. [My daughters] only have St John’s now”;[23]
[23]T51, L1-3
(e)She is unable to go horse riding with her daughters which, although it was only “a couple of times a year, but it was great, because we live in Healesville, so we’re already in the bush”;[24]
[24]T51, L13-16
(f)She had to get rid of her aviaries for budgies because she was no longer able to clean same. The aviaries consisted of three rooms, one as big as the court room and the other two probably a little bit smaller;[25]
(g)She had to give up camping with her girls in the Girl Guides approximately twice a year, together with craft and other such activities;[26]
(h)She undergoes active treatment from a chiropractor on a consistent basis since the injury which gives her noticeable benefits for “quite a few days”;[27]
(i)The plaintiff takes Panadol Osteo every couple of days but tries not to take it very often at all because “it’s not very nice” but she takes between four and six tablets during the day;[28]
(j)Prior to the injury the plaintiff would smoke marijuana “on a social occasion” approximately once every six months.[29] She now smokes marijuana once a day mostly as a “body relaxant, and it actually allows me to be a little bit comfortable”.[30]
[25]T51, L21-24
[26]T51, L25; T52, L4
[27]T21, L 11 – T22, L16
[28]T23
[29]T25, L8
[30]T25, L8-18
Findings
35 Taking into account the plaintiff’s experience of pain and disabilities and her feisty but 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(19)(a) of the Act.
36 I will hear the parties as to consequential orders.
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