Pountney v Austrak Pty Ltd
[2017] VCC 1229
•5 September 2017 (revised)
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-05160
| CHERYL POUNTNEY | Plaintiff |
| v | |
| AUSTRAK PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 29 and 30 August 2017 | |
DATE OF JUDGMENT: | 5 September 2017 (revised) | |
CASE MAY BE CITED AS: | Pountney v Austrak Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1228 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the cervical spine – pain and suffering
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Watts v Rake (1960) 108 CLR 158; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment:Leave granted to the plaintiff to issue proceedings at common law for pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A E A Macnab with Ms R Dal Pra | Slater & Gordon Ltd Lawyers |
| For the Defendant | Mr A J McG Moulds QC with Ms G-J Cooper | Wisewould Mahony |
HIS HONOUR:
1 In this matter, the plaintiff, Ms Cheryl Pountney, was employed by Austrak Pty Ltd, the defendant, as a factory worker from May 2003 until August 2014. Her duties with the defendant primarily involved working on the production line and testing railway sleepers and concrete samples. She alleges that the nature of her work with the defendant involved repetitive, heavy and awkward work, and in particular, there was a significant amount of manual handling involved. Further, she alleges she was required to manually move concrete sleepers, cylinders, and metal blocks, lift sleepers out of their moulds, and push and empty heavy wheelbarrows. She alleges the tasks involved reaching forward, bending, twisting, and lifting, and her role was not rotated.
2 As a result of the nature of these duties, she alleges she started to experience pain in the right side of her neck and shoulder area in or about October 2013, which came on gradually. Thereupon she consulted her general practitioner, Dr Hargreaves, who prescribed some painkillers and referred her for an MRI scan.
3 The general practitioner recommended the plaintiff perform light duties, which she managed until accepting a retrenchment package in or about August 2014. The plaintiff swore that she found the light duties difficult, and struggled to manage her injury as time went on. When offered the redundancy, she stated:
“I therefore jumped at the opportunity as I did not think I was going to be able to cope much longer in any event.”[1]
[1]Exhibit A, affidavit sworn 13 July 2016, paragraph 11
4 Although she has not worked since this time, she has looked for alternative light work, but has been unable to secure same. She further swore:
“If I had not injured myself I had planned to continue working for much longer, and planned to be still working at the age of 70.”[2]
[2]Ibid, paragraph 12
5 The plaintiff was born in 1950, and at the time of accepting her retrenchment she was rising sixty-four.
6 By Originating Motion filed in this Court, the plaintiff has sought leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings at common law against the employer. She relies upon paragraph (a) of the definition of “serious injury” in s134AB(37), namely “permanent serious impairment or loss of a body function”, being the cervical spine.
7 This matter was heard by me on 29 and 30 August 2017. At the hearing of the application, the plaintiff confined her application to one for leave to claim pain and suffering damages only, after the tendering of all the evidence. On the hearing of the application, the plaintiff relied upon two affidavits sworn by herself on 13 July 2016 and 25 August 2017.[3] She was cross-examined upon the affidavits. Thereafter, both parties relied upon medical reports and images which had been tendered in evidence, and I have read all those materials.
[3]Exhibit A
8 At the hearing, Senior Counsel for the defendant stated the issues to be, first, one of a threshold matter as to whether the plaintiff had suffered injuries whose consequences could be described as “more than significant or marked” and as being “at least very considerable”. The other issue was whether any ongoing consequences were still being contributed to by the work injury.
The injury
9 It is the plaintiff’s contention, with respect to compensable injury, that the plaintiff had pre-existing degenerative changes in her cervical spine which have been probably aggravated by the work described up until at least October 2013.
10 Tendered in evidence were two MRI reports concerning the cervical spine dated 8 April 2014 and 9 November 2015.[4] In the first report, the radiologist found:
“1. Lower cervical spondylotic change with endplate lipping, disc bulging and facet joint degenerative change. Resulting bilateral C6 foraminal narrowing (worse on the right), mild central canal AP diameter reduction at C6/7 and minor left C8 foraminal stenosis.”[5]
[4]Exhibit B
[5]Ibid, at Plaintiff’s Court Book (“PCB”) page 37
11 In the second report, the radiologist stated:
“Mild flattening of the cord at the C5‑6 and C6‑7 levels resulting from uncovertebral spondylosis Possible impingement on the right C6 nerve in its neural exit foramen.”[6]
[6]Ibid, at PCB 37.2
12 All medical practitioners in this case opined that at the date of their examinations, these degenerative changes were symptomatic and had rendered the plaintiff unfit for her pre-injury duties. The overall consensus was that she would be left permanently in this position.
13 Mr Clive Jones, orthopaedic surgeon retained on behalf of the defendant, considered that any employment contribution by way of aggravation of the underlying condition had ceased to have effect by September 2014.[7]
[7]Exhibit 1, Defendant’s Court Book (“DCB”) page 3
14 Orthopaedic surgeon, Mr Ian Jones, also retained by the defendant, opined that the nature of the plaintiff’s employment had the capacity to exacerbate some generalised degenerative disease affecting the cervical spine, but any such exacerbation had resolved since the plaintiff ceased work.[8]
[8]Exhibit 3, DCB 12
15 Further, consultant occupational physician, Dr Philip Mutton, reported that he agreed with “Dr Clive Jones that this lady suffers from constitutional problems”.[9]
[9]Exhibit 4, DCB 25
16 By way of contrast, orthopaedic surgeon, Mr Gerald Moran, on behalf of the defendant, reported on 10 June 2016 that the plaintiff was suffering from:
“[A]ggravated lower cervical spondylosis at work with Austrak.”[10]
[10]Exhibit 5, DCB 28
17 Further, he considered that her permanent impairment to the cervicothoracic region was stabilised and amounted to 5 per cent whole person impairment pursuant to the AMA Guides 4th edition.[11]
[11]Ibid, DCB 29
18 On behalf of the plaintiff, consultant surgeon, Mr Garry Grossbard, opined:
“The MRI scan confirmed the presence of degenerative change in the mid-cervical area, with disc bulging and prolapse.”[12]
[12]Exhibit F, PCB 54
19 Mr Grossbard himself stated that he examined the radiological studies in digit format. He stated:
“The MRI scan confirms degenerative changes at the C5/6 level and the C6/7 level, where there is significant bulging of the disc, causing some encroachment at the C6/7 foraminae.”[13]
[13]Ibid
20 In his opinion section, he stated that the plaintiff has:
“[C]ervical spine dysfunction related to degenerative disc disease in the mid-cervical area, associated with disc bulging and foraminal stenosis. Her symptoms are localised to the cervical spine on the right side, and are consistent with facet joint mediated pain. There is no evidence of radiculopathy or referred pain into the arms.”[14]
[14]Ibid, PCB 55
21 Importantly, he stated:
“I believe this injury has been aggravated as a result of the employment [the plaintiff] undertook with Austrak, although there would be no way of disproving the symptoms may not have occurred otherwise.”[15]
[15]Ibid
22 In a follow-up report dated 8 June 2017, he confirmed his previously expressed opinion.[16]
[16]Ibid, PCB 56
23 Further, the plaintiff relied on an opinion from specialist occupational physician, Dr Joseph Slesenger, who opined that the plaintiff was suffering from:
“· Mechanical injury to the cervical spine.
· Aggravation of degenerative disease of the cervical spine with right radicular symptoms and features of right radiculopathy.”[17]
[17]Exhibit G, PCB 66
24 Additionally, the plaintiff relied on an opinion from orthopaedic surgeon, Mr Roger Westh, dated 17 November 2015 to the effect that it was likely the plaintiff “sustained a soft tissue strain injury with aggravation of underlying cervical degenerative changes”.[18]
[18]Exhibit H, PCB 69.2
25 The treating general practitioner, Dr Ting, referred the plaintiff to neurosurgeon, Mr Girish Nair, who took a history that the plaintiff:
“[U]sed to do fairly heavy work and ... back in October [2013] she developed neck pain which is persistent for which she sought assistance from Dr Hargreaves, who treated her conservatively and organised MRI scans for her following which she was placed in light duties.”[19]
[19]Exhibit E, PCB 47
26 Mr Nair confirmed that the MRI scan of April 2014 showed:
“[D]egenerative changes at C5‑6 and C6‑7 with possible bilateral C6 nerve root narrowing.”[20]
[20]Ibid, PCB 48
27 He felt that her symptomatology was:
“[S]uggestive of cervical disc disease and along with the possible C5 radiculopathy.”[21]
[21]Ibid
28 He arranged for an updated MRI scan as at November 2015, which showed:
“[B]ulges at C5‑6 and C6‑7 with possible compression onto her right C6 nerve root.”[22]
[22]Ibid
29 As to the aetiology of the condition, he stated that the plaintiff:
“[D]escribed symptoms of developing neck pain in October of 2014 [scil. 2013] when she developed pain in her neck and her shoulder blade for which she was assisted in treatment by Dr Matthew Hargreaves. Her first visit to see me was almost a year after the onset of symptoms at which time her symptoms are of pain in the right side of the neck with pain on her shoulder blade without any radicular symptoms. After my clinical examination, my impression was of possible cervical disc degeneration with possible radiculopathy.”[23]
[23]Ibid, PCB 49
30 Mr Nair does not appear to have explicitly addressed the question of causation, but has stated:
“According to [the plaintiff] when she was working with Austrak her work was very heavy and involved lifting heavy objects repetitively. Based on her symptomatology on her last visit I do think that she could have limitations going back to her pre-injury duties and performing repetitive heavy lifting task or overhead task.”[24]
[24]Ibid, PCB 50
31 I infer from his report that he considers it at least consistent that the work so described has contributed to the onset of the symptoms and rendering the degenerative changes symptomatic.
32 The treating general practitioner, Dr Ting, has diagnosed a cervical disc prolapse in his reports dated 23 January 2015 and 28 May 2015.[25] Further, in his letter to Mr Nair dated 8 September 2015, he was seeking opinion and management for right-sided neck and radicular arm pain in circumstances where:
“This is a WorkCover issue. She was working for Austrak and her primary role as an operator at Austrak was to test concrete sleepers and cylinders for safety and manufacturing standards, whereby she would be required to push and pull sleepers, roughly 2 metres in length and weigh approximately 200kg along track rollers towards a hydraulic lifter, which then lifts the sleeper and transfers it onto the pressurised testing machine. An MRI report of her C-spine has been attached. Thank you for your help.
Past history
08/09/2014 Neck injury – disc prolapse.”[26]
[25]Exhibit C, PCB 38 and 40
[26]Ibid, PCB 42
33 The consensus of the medical opinion appears to be that the plaintiff is suffering from symptomatic cervical disc disease. The consequences include a permanent restriction imposed upon her pre-injury duties.
34 Although Mr Ian Jones considers there was only temporary exacerbation of the underlying condition, he does not state the evidence upon which it could be said that the pain resulting from the exacerbation had ceased. Insofar as Mr Clive Jones and Dr Philip Mutton opine that the symptoms are constitutional, they do not disclose a path of reasoning as to why the symptoms coming on in the course of the plaintiff’s heavy-duty employment are not relevant to at least an exacerbation or an aggravation of the underlying condition. Accordingly, I prefer the opinions of the defendant’s doctor, Mr Gerald Moran, and those of the plaintiff’s practitioners referred to above as to the work having aggravated the underlying degenerative changes such that the symptoms thus produced have not abated to the point where it could be said that the work is no longer playing a causative role.
35 Insofar as the defendant has an obligation pursuant to Watts v Rake[27] to show when it would be that the work aggravation would have ceased, I find that the evidentiary onus has not been satisfied for the reasons referred to above.
[27](1960) 108 CLR 158
Consequences
36 As already indicated, the plaintiff has sworn two affidavits in the matter, and she was ably and fairly cross-examined upon same by Senior Counsel for the defendant. I found her to be a witness of truth who did not embellish her complaints when there may have been opportunity to do so. Senior Counsel for the defendant did not demur in this conclusion.
37 In her first affidavit, sworn 13 July 2016, the plaintiff swore that she had had the following treatment since her injury:
“(a) Massage treatment.
(b) GP consultations – my current GP is Dr Ting.
(c) Consultations with specialist, Mr Nair.
(d) Physiotherapy.
(e) Heat packs.
(f) Gels and creams.
(g) Medication.”[28]
[28]Exhibit A, PCB 31–32, paragraph 8
38 As to medication at that time, she swore:
“I currently manage my condition as best I can with anti-inflammatory medication, over the counter painkillers, heat packs and gels/creams. I try to limit my medication, as I do not like taking it and the thought of becoming reliant on it. I also try to avoid the activities, which cause a flare up.”[29]
[29]Ibid, PCB 32, paragraph 10
39 As to employment, the plaintiff swore:
“Following my injury, my GP recommended I perform light duties, which I proceeded to do. I found the light duties difficult and struggled to manage my injury as time went on. When a redundancy was offered in or about August 2014, I therefore jumped at the opportunity, as I did not think I was going to be able to cope much longer in any event.
I have not worked since this time, although would much prefer to be working. If I had not injured myself, I planned to continue working for much longer and planned to still be working at the age of 70.”[30]
[30]Ibid, paragraphs 11 and 12
40 As to the consequences related by the plaintiff, she swore:
“13. I experience a constant ache in the right side of my neck and shoulder area, which sometimes travels down to my shoulder blade. I also experience frequent headaches, which I did not experience prior to my injury. I have been told that I am likely to develop arthritis in my neck and worry that my pain will only get worse with time.
14. My arm often feels heavy as though someone is pulling on it. I also experience stiffness in my neck and restricted movement. I find it harder to turn to the right than the left. I find my pain and restricted movement become worse in the cold weather.
15. As a result of my injury, I have difficulty with the following:
a.Any activity involving the repetitive use of my right arm.
b.Any activity requiring me to bend or turn my neck repetitively.
c.Any activity requiring me to hold a fixed posture for a long period.
d.Gardening. Prior to my injury, I loved spending long periods of time in the garden. I now find this causes pain after a relatively short period. I therefore now have to limit the time I spend doing gardening, as I will otherwise inevitably pay for it with increased pain.
e.Household chores. I have difficulty with vacuuming, mopping, scrubbing, cleaning the bathrooms and changing the bed. The more forceful and repetitive aspects of cleaning, are the most difficult for me.
f.Sleep. I now find it hard to sleep on my right side and often wake at night due to pain. I often inadvertently roll over onto my right side at night and I find that if I have slept too long on my right side, I experience increased pain, stiffness and restricted movement during the day.
g.Swimming and tennis. I previously enjoyed these hobbies, however I now find them too physically demanding. I particularly struggle with the head movements required for swimming. I really miss the social aspect of the tennis.
h.Hand sewing. I also really enjoyed craft before my injury, but find that this quickly causes increased pain.
i.Work. As mentioned, I am looking for work and would prefer to be working, however it has been difficult, as my experience has only been in manual work for the last 10–20 years. I miss work as it provided me with an income, sense of purpose and social outlet.
j.Grocery shopping. Before my injury, I always walked to the supermarket to get my groceries, however I now find it hard to carry a big load home. I therefore have to do more regular trips and often catch a cab back from the supermarket.
k.Hanging out the washing. This is a task that is very uncomfortable for me to do as I have to look up and reach up. I still do this, however need to do it more slowly and carefully than I used to.
l.Going to the movies. I have tried this since my injury, however I found it too uncomfortable, sitting in the one position for a long period and looking at a fixed angle for a long period. I therefore don’t enjoy the movies anymore.
m.Socialising. I find it hard to sit next to someone and talk to him or her for any length of time, if it requires me to turn my neck to the left or the right. I therefore try to sit opposite the person I am talking to.
16. Whilst I try to minimise activity that will cause a flare up, the pain is there all of the time regardless. It is very frustrating and sometimes really gets me down.”[31]
[31]Ibid, PCB 32–34
41 These matters were not significantly ameliorated in cross-examination. Senior Counsel for the defendant, however, submits that the plaintiff is taking little or no medication on an ongoing basis, and is still socialising with friends and siblings. Senior Counsel also submits that the medical practitioners have found only slight restrictions of movement on examination, and have at the very least cast doubt as to whether there is any nerve-root impingement suffered by the plaintiff.
42 On the other hand, leading counsel for the plaintiff submits that the plaintiff is a single woman, living by herself, in an environment where many of the physical activities that she used to enjoy are now denied to her. He submits that her inability to play tennis, ride a bike, or engage in swimming or gardening, are significant matters for a woman living on her own to forgo. In that context, he submits that her second affidavit, sworn 25 August 2017, is most telling in the following respect:
“12. It upsets me that my working life has been brought to a premature end. I very much enjoyed working and the social aspect with my co‑workers. I took the voluntary departure package as I was struggling to cope due to the pain in my neck and shoulder. I thought that if I did not take the package, that the defendant would eventually get rid of me. Given the extent of my neck pain, my age, education and work experience, I believe I no longer have the capacity for suitable employment.
13. If I had not been injured, it was my plan to undertake a lot more travel after retiring. However, given the extent of my neck symptoms, I no longer see this as being realistic and this upsets me greatly.”[32]
[32]Ibid, PCB 35.3, paragraph 12 and 13
Analysis
43 My task in this matter is to consider whether the plaintiff has established that the pain and suffering consequences of her injury, 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”.
44 As has been referred to by the Court of Appeal, this involves a value judgment in which matters of fact and degree and of impression are operative.[33] Further, the emphasis in s134AB is upon seeing where the facts of a particular case sit on a broad spectrum of cases, remembering that this includes cases which do not end up in litigation.[34]
[33]Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at paragraph [41]
[34]Ibid at paragraph [43]
45 In my view, it is to the plaintiff’s credit that she had returned to work in a light work capacity despite suffering from the constant pain in her neck, with the necessity for conservative ongoing treatment. I accept her evidence that she took the retrenchment package because she felt she could not continue in the job for much longer. I also accept her evidence that the loss of her employment not only affected her financially but was a significant loss to her socially, given that she lived by herself. I also accept her evidence that she is restricted otherwise in her recreational activities and household activities, as referred to above.
46 I accept Senior Counsel for the defendant’s submission that the lack of medication currently, and otherwise the findings by many practitioners of a reasonable range of movement in the cervical spine, does weigh somewhat in favour of the defendant in this matter. However, the plaintiff has impressed me not only with her honesty but with her stoicism, and the Court of Appeal has remarked that such a quality should not be seen as a disadvantage in these matters.[35]
[35]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [13]
47 In my view, the consequences can fairly be described as being “more than significant or marked”, and as being “at least very considerable”.
48 Accordingly, the plaintiff will be given leave to issue proceedings at common law for pain and suffering damages.
49 I will hear the parties as to any consequential orders.
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