Quan v Impact Personnel (Vic) Pty Ltd
[2011] VCC 7
•8 February 2011
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No.
| KIM LIEN QUAN | Plaintiff |
| v | |
| IMPACT PERSONNEL (VIC) PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE BOWMAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15 & 16 November 2010 |
| DATE OF JUDGMENT: | 8 February 2011 |
| CASE MAY BE CITED AS: | Quan v Impact Personnel (Vic) Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 7 |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s.134AB – two separate injuries arising out of two sets of circumstances to be considered in the one application – requirement for separate rulings – leave sought in respect of pain and suffering damages for injury to right upper limb – leave sought in respect of pain and suffering damages and pecuniary loss damages for injury to low back – whether statutory requirements met in each instance – factors to be considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin SC | Zaparas Lawyers |
| with Ms N Wolski | ||
| For the Defendant | Ms M Hartley SC | Lander & Rogers |
| with Mr S Martin | ||
| HIS HONOUR: |
General background
1 This matter comes before me by way of an application pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. Reliance was placed solely upon sub-paragraph (a) of the definition of serious injury contained in s.134AB(37) of the Act. The injuries relied upon are to the lumbar spine and to the right upper limb. The plaintiff seeks leave in relation to both pain and suffering damages and pecuniary loss damages in respect of the injury to the lumbar spine and in relation to pain and suffering damages only in respect of the injury to the right upper limb. As shall be discussed, it was conceded that these injuries cannot be aggregated and must be assessed separately in order to see whether they satisfy the statutory requirements. The injury to the right upper limb involved more than one part of that limb, and it was conceded that these could be aggregated. Furthermore, there was some argument as to whether, and if so how, the injury to the right upper limb should be taken into account in regard to any impact upon earning capacity. In summary, the injury to the lumbar spine is alleged to have occurred on or about 6 April 2006 when the plaintiff was struck and knocked over by a pallet lifter whilst in the course of her employment. The injury to the right upper limb is alleged to have occurred as a result of repetitive duties involved in the preparation of meat such as sausages. This is said to have culminated in the commencement of right shoulder pain in early January 2006. It should be said that the defendant was at the relevant times a labour hire company and the plaintiff had been placed by it in work at the premises of an entity known as Boss Foods. Henceforth references to “the defendant” should be treated as including a reference to the duties performed by the plaintiff at the premises of Boss Foods.
2 Mr T Tobin SC with Ms N Wolski of counsel appeared on behalf of the plaintiff. Ms M Hartley SC with Mr S Martin of counsel appeared on behalf of the defendant. The plaintiff was called to give evidence and was cross-examined. Oral evidence was also received from Dr Lawrence Po Singh Woo, a general practitioner who has been treating the plaintiff, and from Mr Michael Johnson, an orthopaedic surgeon who treated the plaintiff in 2006. The balance of the evidence was documentary in nature and was tendered by consent.
3 I am familiar with the numerous decisions of the Court of Appeal which bear upon applications such as this and shall endeavour to apply the principles set out in them in coming to a decision in this case. I shall not list such cases here but shall refer to any cases which are considered to be specifically relevant in the course of this Judgment. It was not argued but that the plaintiff bears the burden of proof.
Factual background
4 The following findings of fact are set out solely for the purposes of this application and are not intended to be findings which are in any way determinative in relation to issues such as negligence, the quantum of damages, entitlement to statutory benefits and the like.
(i) The plaintiff 5 I found the plaintiff to be a reliable witness. During closing addresses I stated from the Bench that I had no difficulty in relation to the credibility of the plaintiff, and that continues to be the case. I note that Mr David Brownbill, consultant neurosurgeon, who examined the plaintiff on behalf of her solicitors, has on two occasions reported that the plaintiff presented as being co-operative without embellishment. Dr Woo stated that the plaintiff was compliant with treatment recommendations and that her presentation was consistent with a person who had long-term back problems. Mr Brian Barrett, an orthopaedic surgeon who also treated the plaintiff, has reported that the plaintiff is a co-operative woman. Professor Mark Cook, neurologist, described the plaintiff as presenting well and clearly, and stated that he formed the view that she was providing accurate and very genuine history and that her demeanour was appropriate. I agree with all these observations in that they are consistent with the manner in which the plaintiff presented in the witness box. Insofar as there are any inconsistencies in histories taken by medical examiners, firstly I would refer to the observations of Ashley JA in Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 and secondly I would point out that to many examiners the plaintiff spoke via an interpreter. Indeed, her English seems to be very limited indeed. Her evidence in court was given through a professional interpreter.
6 In summary, I am of the view that the plaintiff did her best to answer questions accurately and honestly. She was an impressive witness. I accept her account of the symptoms, restrictions and consequences of injury from which she suffers.
(ii) The plaintiff’s education, background and training prior to the injury 7 The plaintiff is aged 50 years, she having been born on 7 August 1960. She was born in Vietnam, and was educated there to Year 9 level. The plaintiff is one of a large family and her parents conducted in Vietnam a very small business which she described as being like a milkbar. After leaving school she did a small amount of work in this shop and what work she did do was done less than two days a week. She did a little food preparation, but essentially her siblings served the customers and she, being the youngest, did very little. She also seems to have done few household chores but engaged in activities such as knitting and the making of small ornaments, although these activities were carried out as hobbies and the end results were not sold. In short, in Vietnam she appears to have had a very modest amount of education and performed a minimal amount of work in the family business somewhat spasmodically.
8 The plaintiff married and immigrated to Australia in or about December 1994. It would be fair to say that she had done very little work by this time, although she was some 34 years of age, and was a person of very limited education and with no particular skills.
9 Whilst the plaintiff apparently looked for employment in the period between arriving in Australia and commencing with the defendant in 2005, she was unable to find any. It is not suggested that she improve her skills during this period, although presumably she may have picked up a small amount of English. In approximately June 2005 the plaintiff was sent to work at Boss Foods and I accept that the work performed by her there was repetitive, her principal tasks involving, inter alia, the twisting of lengthy sausages so as to create individual sausages in a string and the labelling of packs of uncooked sausages. I accept that both these tasks, and her employment duties generally, essentially required no skill and were highly repetitive.
10 Thus, as at the time of commencement of symptoms in the right upper limb, the plaintiff was a Vietnamese migrant of very limited education, with little English, and no particular work skills or training. She was engaged in unskilled and very repetitive work.
(iii) The injuries 11 As stated, the injuries need to be assessed separately. Whilst the injury to the lower back represents the major impediment to employment, as shall be discussed, at this stage I shall deal with the separate injuries in chronological sequence. Hence, the injury to the right upper limb shall now be discussed.
1 The injury to the right upper limb (a) The state of the plaintiff’s health prior to the injury 12 The clinical records of Dr Soo indicate that the plaintiff was having some difficulty sleeping and was worried about financial matters in 2004, and that she also had some problems, such as bad headaches, associated with her periods. In March 1998 she had complained to Dr Woo concerning tiredness, overall pain and numbness in both hands. It is apparent from the evidence of Dr Woo that the plaintiff saw him in April 1996 with some complaint of shoulder problems. In 1998 he prescribed some anti-inflammatory medication for her. In July 2000 she had some muscular pain in the trapezius area and some headaches and again anti-inflammatory medication was prescribed. There was tenderness in both shoulders. Dr Woo had also recorded a history after the plaintiff suffered the work injury to the right arm that she had pain in her right shoulder and right thumb and wrist for years but it had got worse following the work injury.
13 The clinical notes of another general practitioner, Dr Trinh, contain a reference to muscle pains in 2004 and neck pain on the left side in January 2005. There are also some references to stress and worries in 2003.
14 In his oral evidence, Dr Woo stated that the plaintiff had no ongoing symptoms related to the shoulders prior to 2006, stating that: “She presented once or maybe twice with shoulder pain, and that was it”. He was also of the view that the plaintiff could not have carried out the work duties which she did at Boss Foods if she had problems in the wrists or shoulder before she started that job. He also stated that her depression and emotional problems had been coming and going for years, expressing this opinion in the context of factors which contributed to the plaintiff’s incapacity. It was apparent that he did not regard what could be described as mental problems as looming large in this regard.
15 In summary, I do not regard the plaintiff as having suffered from any ongoing or significant injury, incapacity or symptoms relating to the right upper limb prior to her suffering the injury in question. Similarly, whilst some other health issues arose from time to time, I do not regard them as having any significant impact upon the plaintiff’s lifestyle or her capacity for employment.
(b) The injury suffered, its treatment and assessments of it 16 The plaintiff’s work duties involved highly repetitive work using both arms. She is right hand dominant. In January 2006 the plaintiff commenced to feel pain in the shoulders spreading down the arms, this pain being worse on her dominant right side. On approximately 7 February 2006 she attended upon her usual general practitioner, Dr Soo. I might add that the plaintiff has two other general practitioners, namely Dr Trinh and Dr Woo, the latter giving oral evidence in the case. Dr Soo provided the plaintiff with some painkillers and also certified her for a brief absence from work for a couple of days. The plaintiff resumed on normal duties, but in April 2006 requested different work because she was finding the twisting of the sausages too painful. She was then placed in work on the hamburger production line which work also was of a repetitive nature. As shall be discussed, on 6 April 2006 the plaintiff was struck by a pallet on a pallet jack and fell, suffering the injury to the low back. Thereafter the situation is somewhat more complicated because of the existence of the two separate injuries.
17 In June 2006, upon referral by Dr Soo, the plaintiff underwent an x-ray and ultrasound of the right wrist. The ultrasound revealed marked thickening of the tendon sheaths, the findings being described by the radiologist as being due to de Quervain’s tenosynovitis. On the same day she had an x-ray and ultrasound of the right shoulder, and the radiologist’s comment in that regard was that the plaintiff had mild tenosynovitis of the biceps tendon. In July 2006 the plaintiff underwent an injection to the right wrist. Her problems with her right arm continued. On 14 May 2007 the plaintiff’s treatment was resumed by Dr Woo. The situation seems to have been that Dr Woo was the plaintiff’s original family doctor, but, due to a change of address and a large number of patients, some of those patients sought treatment elsewhere. Hence, for a period, the plaintiff’s treating practitioner was Dr Soo. Then, as stated, as at 14 May 1997 she returned to the care of Dr Woo, and that has continued to be the situation.
18 In any event, Dr Woo referred the plaintiff to Dr Alex Stockman, rheumatologist. Whilst this referral seems to have been principally in relation to the problems with the right arm, Dr Stockman also took a history in relation to the back injury and carried out an examination in this regard (the existence of concurrent work-related injuries has created some problems in relation to medical assessments and reports, but I shall do my best to distinguish between and separate the two).
19 Dr Stockman found extreme tenderness in the right wrist area with positive testing and also found features consistent with rotator cuff lesion, with pain on resisted abduction at external rotation of the right shoulder. He found that the findings in the right wrist were consistent with de Quervain’s tenosynovitis and re-injected the area with local anaesthetic and cortico-steroids. He also felt that the plaintiff probably had a rotator cuff lesion in the right shoulder, and recommended further radiological investigation, also raising the possibility of a steroid injection in the shoulder.
20 In a report of 6 July 2007 to the plaintiff’s solicitors, Dr Stockman expressed the view that the rotator cuff lesion in the right shoulder and the de Quervain’s tenosynovitis were consistent with the repetitive type of work performed by the plaintiff.
21 On 9 May 2009 the plaintiff underwent an MRI of the right shoulder and wrist. In relation to the shoulder, the finding was of a moderate supraspinatus tendonopathy and thickening which, in the opinion of the radiologist, may relate to previous capsular injury or be a feature of adhesive capsulitis. There was no evidence of internal or right wrist joint derangement or features indicating underlying arthropathy.
22 The plaintiff has continued to be seen by Dr Woo who, in his report of 3 October 2010, referred to the fact that she was still suffering from persistent tenosynovitis as a result of her work and that she had a right rotator cuff injury.
23 The plaintiff was examined for medico-legal purposes at the request of her solicitors by Mr Charles Flanc, vascular and general surgeon, who, in a report of 1 February 2008, has commented both in relation to the injury to her right upper limb and to the back injury. Upon clinical examination, he considered that her symptoms in the right wrist were consistent with the diagnosis of de Quervain’s Disease and that the development of such a condition was consistent with the repetitive nature of her work. He also considered that the gradual onset of pain in the right shoulder was consistent with one of the chronic conditions which can affect the right shoulder with repetitive use, although acknowledging that the ultrasound did not show any evidence of a rotator cuff tear. Nevertheless, the existence of some abnormality remained a possibility. Mr Flanc was of the view that repetitive lifting or repetitive use of the right shoulder could cause a flaring up of any condition. Mr Flanc then made further comments in a supplementary report of 23 July 2009 by which time he had been supplied with further material including reports of the MRI scans of the right shoulder and wrist. He expressed the view that the MRI findings in relation to the shoulder were consistent with the presence of a rotator cuff syndrome and maintained his opinion that the pain in the wrist was consistent with the diagnosis of de Quervain’s Disease.
24 The defendant has had the plaintiff examined for medico-legal purposes by a number of doctors, including Dr Maurice Wallin, consultant in occupational health safety rehabilitation and legal medicine. In a lengthy report of 20 July 2007, Dr Wallin diagnosed de Quervain’s tenosynovitis of the right wrist and what he described as “right shoulder rotator cuff disability”. He implicated employment. Dr Michael Baynes, specialist in occupational medicine, concentrated mainly upon the plaintiff’s back injury, but, in a report of 13 June 2008, made the somewhat confusing statement that “it was likely that work was an aggravating factor to the shoulder and wrist injury associated with the fall”. On the basis of what appears to me to be very limited material, he expressed the view that work was no longer a material contributing factor in relation to the wrist and right shoulder complaints, although his reference to the fall does not assist in obtaining a clear understanding of his conclusions.
25 Dr James Rowe, specialist occupational physician, has also examined the plaintiff at the request of the defendant. He expressed the view that she had signs of a mild de Quervain’s tendonitis, although adding, again this being a somewhat confusing remark, that he understand that she had claimed that in the past. He felt that she had some mild wrist pain that could not prevent her from working, and otherwise largely concentrated upon her back injury.
26 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff on behalf of the defendant on 20 February 2009. It is clear that he examined her in relation to both her back injury and that to her right upper limb. He expressed the view that the pain experienced in the right shoulder and right wrist were musculotendinous in origin, believed that the onset of the shoulder pain was related to repetitive activity, and did not expect ongoing significant shoulder pain following cessation of that activity. In his report of 30 March 2009, whilst recording that the plaintiff’s wrist pain had continued, he expressed the view that there were no specific chronic tendonitis signs, but did not believe that any specific treatment could help in relation to the symptoms.
27 Mr Robin Williams, consultant orthopaedic surgeon, examined the plaintiff at the request of the defendant on 15 September 2010. Whilst he examined both the plaintiff’s lower back and her right upper limb, his conclusions are somewhat ambivalent. He found that she had restricted movement of the head and neck, particularly to the right, and found that, on movement, she suffered pain on the right side of the neck extending into the superior aspect of the shoulder. He found certain restrictions in movement. He expressed the view that:
“I formed the opinion that Ms Quan has come to believe that she has conditions affecting her right shoulder and lower back that prevent her resuming any work. While she probably has a greater physical capacity than she describes at the time of medical examination, I believe that if she were to attempt employment she would complain of increased symptoms in both areas described and be assessed as unfit to work.”
28 The Defendant’s Court Book also contains a Certificate of Opinion from a Medical Panel, this being dated 14 April 2008. It is far from clear whether this Certificate of Opinion addresses the injury to the right upper limb. There are references in it to a mild adjustment disorder “relevant to the claimed injury”, but the same answer also refers to the absence of any physical medical condition of the lower back. There are references throughout the answers to “the claimed injury” but whether this includes injury to the right upper limb is uncertain. The impression conveyed is that the opinion deals only with injury to the lower back.
29 In relation to any injury to the right upper limb, I find that the reports of Dr Baynes, Dr Rowe and Mr Williams are not particularly detailed or satisfactory. Similarly, whilst the report of Mr Dooley contains more detailed observations concerning the right shoulder, he is less specific concerning the right wrist. In the circumstances, I prefer the opinions expressed by those treating the plaintiff and by Mr Flanc. I accept that the plaintiff’s right upper limb problems exist, and are related to de Quervain’s disease in the right wrist and to a physical problem in the nature of supraspinatus tendonopathy or possibly adhesive capsulitis, as identified in the MRI of 12 May 2009, in the right shoulder. I am satisfied that she has an organic basis in relation to the pain, symptoms and restrictions which she suffers in the right upper limb.
30 Despite the fact that she had occasional pain in the right upper limb prior to performing the work in question with the defendant, I am not of the view that this a case where the injury sustained is in the nature of an aggravation of a pre-existing condition. I have already discussed the state of the plaintiff’s health in relation to the right upper limb prior to her commencing the repetitive work which she performed with the defendant. Even if the injury were in the nature of an aggravation, in accordance with the authorities it would be the effects of that aggravation which I would be considering, and, in essence, the result would be the same, given that the plaintiff was previously, in essence, symptom free.
31 Pursuant to s.134AB(38)(h), psychological or psychiatric consequences of the injury are not to be taken into account. They shall not be. However, I am far from satisfied that there are any, or any of significance. The opinion of the Medical Panel refers to such things as a mild adjustment disorder with depressive features and a chronic pain syndrome, but, as stated, even if this were accepted, it is not clear that these comments are being made in the context of the injury to the right shoulder. The remarks of Mr Williams are, as previously stated, somewhat ambiguous. The plaintiff has suffered from moderate anxiety and depression on and off over the years, but, as stated by Dr Woo in his report of 3 October 2010, there is no sign of functional overlay. The impression conveyed by the plaintiff in the witness box was certainly not one of a person suffering psychological or psychiatric consequences of a physical injury. Any such consequences shall not be taken into account, but in my opinion they are minimal.
32 Whether the consequences of the injury to the right upper limb are permanent within the meaning of the Act seems to me to be doubtful. Dr Stockman has referred to the prognosis as being guarded, but has also referred to the possibility of surgery. Mr Dooley has observed that the plaintiff may note some right wrist pain and some intermittent right shoulder girdle pain, and would not expect her current condition to deteriorate in time. Dr Woo referred to the plaintiff’s wrist injury as being “much better” whilst stating that the right shoulder was an ongoing problem. On balance the consequences of injury to the right upper limb, (which, as shall be discussed, seem to me to be somewhat limited) are, on balance probably permanent within the meaning of the Act, but whether they are sufficient to meet the statutory requirements is another matter that shall be discussed subsequently.
2 The injury to the lower back (a) The state of the plaintiff’s health prior to the injury 33 Dr Woo did have a note of a complaint of back pain in September 1998, but in essence stated that that related to general aches and pains suffered by the plaintiff when she had an upper respiratory tract infection. However, I accept that the plaintiff suffered little symptoms or restrictions relating to her low back prior to suffering the injury in question. As shall be discussed, radiological investigations may suggest that the plaintiff had some degenerative changes in her lumbar spine, but even if that is accepted, they were not productive of symptoms prior to the incident of injury. Thus, even if the case insofar as it relates to her low back is viewed as one of aggravation, the symptoms and restrictions from which the plaintiff now suffers are consequences of that aggravation. The state of the plaintiff’s general health prior to injury and the condition of her right upper limb prior to 6 May 2006 have already been discussed.
(b) The injury of 6 April 2006, its treatment and assessment of it 34 On 6 April 2006 the plaintiff was doing the work normally performed by someone who was away ill, that work being the packing of trays of uncooked sausages into cartons. She was carrying a stack of such cartons across a walkway when she was struck by an empty pallet on a pallet jack. It hit her in the vicinity of the left ankle, causing her to twist and fall forward to the floor. She was immediately aware of pain in the low back. She attempted to continue working, but her back pain was too great, and after approximately 30 minutes she told her supervisor, who sent her home. She attended upon Dr Trinh, who organised radiological investigations and put the plaintiff off work for two weeks.
35 The plain x-ray taken on 6 April 2006 revealed nothing of note. A CT scan performed on the same day revealed spinal canal stenosis of mild severity at L4/5, this being due to a posterior disc bulge. The right L5 nerve root appeared to be involved. At L5/S1 a mild broad based posterior disc bulge was seen.
36 The plaintiff resumed work on light duties on Friday, 21 April 2006 when she did labelling for four hours as there were no other duties available. On Monday, 24 April 2006 she did seven hours of labelling and a further nine hours on 26 April 2006. By the next morning she could hardly move and arranged an appointment to see Dr Soo on 1 May 2006. She was given further time off work and physiotherapy was organised. She also had acupuncture treatment. Assessment at the Victorian Rehabilitation Centre was ultimately arranged, and the plaintiff attended rehabilitation for some seven weeks, being discharged on 24 October 2006.
37 The plaintiff continued off work. In the meantime, Dr Soo referred her to Mr Michael Johnson, orthopaedic surgeon, who first saw her on 6 October 2006. He noted a restricted range of thoracolumbar movement, and straight leg raising was also reduced on the left to 40 degrees.
38 Mr Johnson reported that the plaintiff’s symptoms were very suggestive of a lower lumbar nerve root compression, and organised an MRI scan. This was performed on 13 October 2006. It demonstrated disc degeneration at the L4/5 and L5/S1 levels. At the L4/5 level there was a small non-compressive left sided annular tear, but at neither level was there evidence of any major disc prolapse or the like. Mr Johnson formed the view that no reliable benefit would result from surgical intervention, and advised conservative treatment.
39 Having returned to Vietnam in November 2006, some special flight arrangements having been made and painkilling medication having been provided by Dr Soo, the plaintiff returned to Australia in February 2007. Shortly after that she underwent a laparoscopy and removal of an IUD. Subsequently, she returned to the care of Dr Woo. As earlier stated, he referred her to Dr Stockman, but this was principally in relation to the problems with the right upper limb. However, he did take a history of the plaintiff having low back and buttock pain that had become intolerable.
40 Dr Woo referred the plaintiff to Mr Brian Barrett, orthopaedic surgeon, who saw her on 14 November 2007. The reference appears to have been almost solely in relation to the injury to the lumbar spine. Mr Barrett took an appropriate history. On examination he noted restricted lumbar spinal movements and limited straight leg raising on the left. Because he considered the quality of the films from the MRI previously conducted to be poor, he requested a repeat MRI which was carried out on 22 November 2007. In his opinion this showed that the L4/5 and L5/S1 discs were both disrupted with minimal posterior disc bulges. There were some mild arthritic changes noted in the L4/5 and L5/S1 posterior facet joints, although in these films the posterior split in the annulus at L4/5 was not seen. Mr Barrett saw the plaintiff again on 6 December 2007. His ultimate conclusion was that the plaintiff had sustained painful ruptures involving both the L4/5 and L5/S1 discs, subsequently accompanied by left L5 and particularly S1 root sciatica, he having noted sensory depression about the left heel region corresponding to the left S1 dermatome area. He did not consider that there was clinical or radiological evidence of pre-existing or degenerative changes throughout the lumbar spine. He was of the view that ruptures of this type have no significant capacity to heal or repair, and so it was likely that the plaintiff’s symptoms and disability would continue into the foreseeable future.
41 Mr Barrett again reviewed the plaintiff at the request of Dr Woo on 18 September 2008. On examination he found that her lumbar movements were moderately limited and again found restricted straight leg raising on the left. Sensory testing revealed some moderate depression of sensation involving the left L5 and S1 dermatome regions. Essentially Mr Barrett’s opinion remained unchanged and he was of the view that the plaintiff remained disabled with lower back pain and significant left L5 and particularly S1 root sciatica. He implicated the work incident.
42 At the request of the plaintiff’s solicitors, Mr Barrett again examined the plaintiff on 21 October 2010. He took a history of the plaintiff experiencing increasing lower back pain and pain radiating particularly into the left lower limb, this being associated with some numbness in the left buttock and thigh. On examination her lumbar movements were very limited and straight leg raising was restricted. Again sensory testing revealed depressed sensation involving the left L5 and S1 dermatome regions. Mr Barrett’s opinion did not change, and he expressed the view that the plaintiff remained significantly disabled with ongoing and increasing symptoms of lower back pain and mainly left sciatica, these symptoms being related to her original work injury. His diagnosis of painful ruptures involving both the L4/5 and L5/S1 lumbar intervertebral discs also remained essentially the same.
43 Mr Michael Johnson gave oral evidence and was an impressive witness. He stated that the plaintiff’s English was poor. He also expressed the opinion that the plaintiff was a reasonable person and that her symptoms were organically based. In relation to the annular tear which he observed on the MRI, Mr Johnson thought that this was probably the cause of the plaintiff’s pain, but was not absolutely diagnostic. In other words, he thought that the plaintiff’s pain was probably related to the L4/5 disc injury. He also repeated the view expressed in his report that, if the plaintiff’s investigations remained stable, he would not advise surgery. However, this did not mean that she did not have a disability. Mr Johnson stated that: “It’s just I don’t believe I can necessarily help her with a spinal operation”. He also agreed with the statement that pathologically a disc disruption will probably not heal, but, in relation to symptoms, he stated that some 80 per cent of people with backache are better within nine months, but then there is a group that have persistent symptoms.
44 In relation to the plaintiff’s capacity to perform light duties, Mr Johnson stated that he had not seen the plaintiff for four years and that, in any event, he was of the belief that a medical consultation was an extremely poor way of determining a person’s vocational capacity. He stated that the plaintiff might be able to attempt certain things, and indeed expressed the view that he would tell everyone to go to work if they could, but also believed that the problem with process work was, in particular, standing. He also pointed to the difference between being able to do self-paced housework as opposed to standing on a production line. In re-examination he stated that the plaintiff did not present in a histrionic fashion and that he had no reason to disbelieve her in relation to the complaints that she was making after the incident of injury. If he saw something reported by a radiologist with which he did not agree, he would contact the radiologist and ask for a further report. He believed that the report of the scan of 13 October 2006 was not one with which he disagreed.
45 Dr Woo has reported three times and also gave oral evidence. In his report of 16 November 2008 he stated that the plaintiff had a lumbar disc injury resulting in moderately severe low back pain with pain and numbness in the left leg, and implicated employment. His report of 6 August 2009 effectively only updated the earlier report and the opinion of Dr Woo did not alter. His report of 3 October 2009 deals more with the right upper limb, but a similar opinion is expressed in relation to the lumbar spine. Dr Woo also stated in that report that there was no sign of any functional overlay.
46 In giving his oral evidence, Dr Woo was also impressive. He gave evidence that the plaintiff’s back condition remained the main obstacle preventing her from returning to work. Originally the right upper limb may have been of greater significance, but now in order of severity he would put the low back first ahead of the right shoulder and the right wrist. He agreed that his notes did not reveal any complaints concerning the plaintiff’s back in 2010. He also agreed that a modest amount of anti-inflammatory medication had been prescribed, and that one prescription of Panadol Osteo had been in relation to the neck and right shoulder pain. He was of the view that the numbness in the left leg referred to by the plaintiff was an anatomical distribution of the sciatic nerve and had not obtained a history where such numbness was not in the anatomical distribution. He expressed the opinion that the plaintiff’s emotional condition had improved and repeated that the plaintiff had an ongoing right shoulder problem, her wrist injury was much better, and the main issue, and main problem, was her back. He stated that there was no mention of the plaintiff’s back in his notes because he had told her that it was an incurable condition and he could do nothing for her. He referred to the fact that it was not possible to write everything down and said, “To me the major thing was the back”. He agreed that she was not at the worst end of the scale of severity of back injuries, whilst continuing to doubt that the plaintiff, with her background, would be fit for any kind of work.
47 In re-examination, Dr Woo expressed the opinion that, given a letter from Mr Barrett and the MRI report, the plaintiff had sustained a rupture of her disc, which is a permanent and incurable condition producing symptoms. He was also of the view that her back condition has stayed the same over the last couple of years. The development of some depression, in the context of the plaintiff’s situation, was not unexpected. The plaintiff was a person who had been compliant with treatment. He repeated that, if the plaintiff did not have her back condition, she would be able to work with her depression and neck problems. However, he felt that her shoulder and wrist problems would stop her from performing light duties.
48 The plaintiff was seen for medico-legal purposes by Professor Mark Cook, neurologist, at the request of her solicitors on 2 February 2008. He described the plaintiff’s problem of low back pain radiating to the left leg as being a very typical description of a lumbar radiculopathy. He had no doubt but that the original problem was one of damage to the nerve, with the protruding disc possibly returning to its original position. He regarded the plaintiff as being totally incapacitated.
49 Mr David Brownbill, consultant neurosurgeon, has examined the plaintiff at the request of her solicitors on three occasions. The examinations and opinions are in essence confined to the back injury. Mr Brownbill reviewed the MRI scan of 22 November 2007 and noted the decreased signal at the lower two levels with mild bulging and likely L4/5 annular tear. His opinion was that it was likely that the plaintiff suffered lumbar disc damage in the fall with likely L4/5 annular tear giving rise to lower back pain but without neurological damage. He did not consider it to be an aggravation of a pre-existing condition. His overall conclusion was that the plaintiff suffered injury to the lumbar intervertebral discs with a likely tear at the L4/5 disc.
50 When Mr Brownbill reviewed the plaintiff on 17 February 2009, he recorded that she was complaining of worsening pain but essentially his views were unchanged. When he again reviewed her on 29 September 2010 the situation was largely unchanged. Mr Brownbill considered that the plaintiff’s condition had stabilised and was unchanged from that noted at her previous reviews.
51 Mr Charles Flanc, vascular and general surgeon, examined the plaintiff on14 November 2007 in relation to both her shoulder injury and back injury. The symptoms of which she then complained in relation to her back were of pain radiating down the back of the left leg as far as the heel with constant low back pain left of the midline. Upon examination Mr Flanc found limitation of back movements because of pain. He expressed the view that the MRI scan showed evidence of disc degeneration at the L4/5 level, and believed that the incident in question rendered that condition symptomatic. In subsequent correspondence he commented upon the plaintiff’s capacity for employment.
52 The various radiological studies were forwarded by the plaintiff’s solicitors to Dr Anthony Kam, consultant radiologist. He viewed the CT scan of the lumbar spine of 28 August 2006, and noted, at L4/5, a shallow focal right foraminal disc protrusion resulting in mild impression upon the thecal sac. In his opinion the MRI scan of 13 October 2006 also showed, at L4/5, a shallow right foraminal disc (protrusion) resulting in contact of the traversing right L5 nerve root, whilst the MRI scan of 22 November 2007 again showed this, whilst also revealing no deformity of the traversing right L5 nerve root. Mild L4/5 disc desiccation was also apparent.
53 The defendant has also had a number of medical practitioners assess the plaintiff’s lower back. Dr Michael Baynes, occupational physician, examined the plaintiff on two occasions. On 26 July 2006 his examination revealed a restricted range of movements together with possible nerve root impingement as suggested by testing. His opinion was that the likely cause of the plaintiff’s back pain was discogenic, although he could find no cause for symptoms in the left leg. He placed restrictions upon her capacity for employment. When he reviewed her on 9 April 2008, he made similar findings on examination. His finding was of chronic lower back pain with intermittent leg pain associated with degenerative disease at the L4/5 and L5/S1 levels. He implicated employment and placed restrictions upon the plaintiff’s work capacity.
54 Dr James Rowe, occupational physician, saw the plaintiff at the request of the defendant on 13 November 2006. On examination he found a good range of back movement, and felt that she had recovered from any back injury that may have occurred. He did feel that her back pain might be related to stenosis at L4/5. He felt that she could return to work in modified duties. Subsequently, and after considering various material sent to him, he did not change his opinion.
55 Dr Maurice Wallin, occupational physician, examined the plaintiff at the request of the defendant on 20 July 2007. On examination he found a restricted range of back movements, which diminished back movements appeared to him to be genuine. Dr Wallin had been provided with essentially all medical material available to that point in time, and, in a lengthy report seems to have had some misgivings, to put it mildly, concerning the conclusion reached by Dr Rowe – see pages 13 and 16 of the report of Dr Wallin, on which latter page he described the conclusion reached by Dr Rowe as being “not feasible”. I certainly share Dr Wallin’s views in relation to the opinion expressed by Dr Rowe. Dr Wallin expressed the opinion that “it must realistically be accepted that her work remains an ongoing materially significant contributing factor to her back disability”. He diagnosed the plaintiff’s injury as being the aggravation of previously asymptomatic degenerative changes. He believed that she had a diminished capacity for work.
56 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff at the request of the defendant on 20 February 2009. His belief was that the episode at work aggravated underlying degenerative disc disease of the lumbar spine. Whilst restrictions of movement and of straight leg raising were found, Mr Dooley expressed the opinion that there was no evidence of major disc prolapse or of nerve root entrapment. He did not believe that her buttock and lower limb numbness had an organic basis. He thought that she would be able to carry out some light physical work and clerical duties.
57 Mr Robin Williams, consultant orthopaedic surgeon, examined the plaintiff at the request of the defendant’s solicitors on 15 September 2010. On examination there was an approximate 50 per cent reduction in her range of movement in the lumbar region. He stated that the plaintiff had symptoms and signs consistent with some mild low lumbar intervertebral disc malfunction, but also made the following somewhat ambiguous statement:
“I formed the opinion that Ms Quan has come to believe that she has conditions affecting her right shoulder and lower back that prevent her resuming any work.”
58 As previously stated, I found the plaintiff to be a reliable witness and accept her description of her symptoms and restrictions. I accept that she suffered from no such symptoms or restrictions of any note prior to the occurrence of the relevant incident. I accept that such symptoms and restrictions are consequences of the injury sustained on 6 April 2006.
59 In relation to that injury, I prefer the opinion of, for example, Mr Michael Johnson that the plaintiff has lower lumbar disc degeneration with a left sided L4/5 annular tear. Mr Johnson was an impressive witness, and I accept and prefer his opinion that the plaintiff’s symptoms, including the sensory alteration in the left leg, is organically based. Similarly, his explanation as to why the annular tear appears on one MRI scan but not another seemed logical. It did not seem to me to be clear that Mr Johnson was necessarily disagreeing with the opinions of Dr Woo and Mr Barrett that the plaintiff had disc ruptures at L4/5 and L5/S1. Certainly Dr Woo, also an impressive witness, was of the view that the plaintiff exhibited no sign of any functional overlay.
60 Mr Brownbill perhaps summarised things neatly with his opinion that the plaintiff suffered lumbar disc damage on 6 April 2006 with likely L4/5 annular tear. He was also of the view that there was no embellishment in the plaintiff’s presentation.
61 I do not accept the opinion of the Medical Panel of 14 April 2008 that the plaintiff is not suffering from any physical medical condition of the lower back relevant to the claimed injury and has no inability to perform pre-injury employment. That view, together with that of Dr Rowe (with whom Dr Wallin, also examining on behalf of the defendant, quite plainly disagreed) seems to me to be very much a minority view and does not accord with my impression of the plaintiff. I prefer and accept the opinions of those who have been treating her, such as Dr Woo, Mr Barrett and Mr Johnson. I accept that the plaintiff has a genuine organic injury to her low back as described by them and by examiners such as Mr Brownbill and that the symptoms, restrictions and consequences of injury from which she suffers arise directly from the incident of 6 April 2006.
62 If the injury is in the nature of an aggravation, the outcome is the same as if the incident caused injury ab initio. The plaintiff was previously symptom free and the complaints from which she now suffers arise directly from the relevant incident.
63 As required by the Act, I shall not take into account any consequences of a psychological or psychiatric nature. However, in my opinion these are minimal if they exist at all. I again prefer the views expressed by witnesses such as Dr Woo, Mr Johnson and Mr Brownbill, whose opinions confirm my own. There was nothing of the plaintiff’s demeanour or presentation in the witness box which gave the impression of the existence of psychological or psychiatric factors operating.
64 I am also satisfied that the injury and its consequences are permanent within the meaning of the Act. Mr Barrett has expressed the view that the plaintiff’s symptoms and disability will continue into the foreseeable future. Mr Brownbill regarded the plaintiff’s back condition as stabilised and stated that the plaintiff’s pain would continue in a fluctuating manner indefinitely. Mr Williams, examining on behalf of the defendant, also expressed the opinion that the plaintiff’s condition had stabilised and that the position would continue indefinitely. Dr Woo referred to the plaintiff having ruptured a disc, describing this as a permanent and incurable condition.
65 In summary, I am of the view that the symptoms, restrictions and consequences of injury are permanent within the meaning of the Act in that they will persist for the foreseeable future.
The plaintiff’s employment, training and other developments since the injuries
66 As stated, between the onset of symptoms in the right arm in January and February 2006 and 6 April 2006 the plaintiff resumed employment with the defendant, performing some restricted duties and some of her normal duties. Following the occurrence of the back injury, she returned on light duties on 21 April 2006, performing essentially labelling duties until approximately 27 April 2006. As I understand the situation, she has not worked since.
67 The course of the plaintiff’s medical treatment has been described above. The plaintiff was referred to IPAR Rehabilitation by the defendant’s solicitors for a vocational assessment, where it was noted that she presented in a friendly and co-operative manner throughout. The plaintiff stated that she would like to do some study and initially do English classes but needed to “get rid of her pain”. The IPAR assessment was more related to the plaintiff’s capacity for employment than to treatment, and was more in the nature of a medico-legal examination than any form of treatment or training.
68 The plaintiff attended at the Victorian Rehabilitation Centre for a seven week rehabilitation program between 4 September 2006 and 24 October 2006. This program seems to have consisted of physical conditioning sessions. Some guidelines in relation to a possible return to work were suggested, but the report from that organisation pointed out difficulties until a worksite assessment had been completed and further medical assessments performed. This treatment (including the report in relation to it) occurred very early in the post-injury history of events, and is now somewhat dated.
69 On 16 March 2007 the plaintiff underwent a laparoscopy as earlier described. It is not suggested that there are ongoing complications resulting from this.
Ruling 70
Whilst it was previously convenient for me to deal with the injuries in chronological sequence and hence discuss the injury to the right upper limb prior to considering that to the lower back, when it comes to my ruling I shall deal firstly with the injury to the lower back. Leave has been sought in relation to both pecuniary loss damages and pain and suffering damages in respect of it as opposed to pain and suffering damages only in respect of the right upper limb, so that it may be more appropriate if I turn firstly to the injury to the lower back.
(i) Injury to the low back (a) Pecuniary loss damages 71
I am satisfied that the plaintiff has discharged the burden of proof in relation to pecuniary loss damages. I am satisfied that, because of the injury to her low back, her capacity to earn income in suitable employment has been destroyed. I am of the view that this is so when the injury to the low back is viewed in isolation and without having any regard to the injury to the right upper limb. In those circumstances, arguments as to whether or not the plaintiff, as at 6 April 2006, should be treated for employment capacity purposes as a person with a pre-existing disability, namely that to the right upper limb, need not be discussed. The consequences of the injury to the low back when viewed in isolation are sufficient to discharge the burden of proof.
72
I have arrived at this conclusion for the following reasons which are not listed in order of significance or importance:
(i)
When regard is had to the factors listed in the definition of “suitable employment” contained in s.5 of the Act, the following would appear to be relevant. The plaintiff is aged 50 years. She has a very limited education and equally limited English. Her work history prior to commencing employment with the defendant is, if anything, even more limited. She seems to me to possess a minimum of work experience and very few transferable skills.
(ii)
The plaintiff’s pre-injury employment with the defendant involved performance of unskilled, highly repetitive physical work. She performed this for approximately 10 months prior to suffering the injury to the lower back and it is, in reality, the only real job that she has had in her lifetime.
(iii)
The overwhelming weight of medical evidence is to the effect that, whatever else may be the situation, the plaintiff could not perform her pre-injury work. I accept this. As stated, for example, by Dr Wallin, examining on behalf of the defendant: “…she is not fit for her normal job designation now or at any time in the future”.
(iv)
However, it is not just that the plaintiff no longer has the capacity to return to the only type of work of which, in essence, she has any experience. She has no capacity for employment. As stated by her treating orthopaedic surgeon, Mr Barrett:
“Significant lumbar disc ruptures of this type have no capacity to heal or repair and this accounts for the ongoing symptoms and disability of Mrs Quan, preventing her from returning to even light and limited work…
I consider she has no fitness for a return to work, either her pre-injury employment or alternative light and part time duties, due to the severity of these lower lumbar disc injuries.”
After his most recent review of 24 September 2010, Mr Barrett
expressed the following view:“Throughout my 4 examinations of Mrs Quan from November 2007 until October 2010 she clearly has no capacity to return to even light and limited work, because of her ongoing symptoms and disability.”
It should be said that Mr Barrett appears to have been considering only
the symptoms emanating from the plaintiff’s lower back.(v) Dr Woo made it clear in his oral evidence that he considered that the main obstacle to the plaintiff’s employability was her back condition. He stated:
“Currently my opinion is that her low back injury is the main problem which stops her from doing any type of work.”
He had earlier considered the IPAR Rehabilitation report and the suggestions contained therein in relation to possible jobs. In his report of 6 August 2009, Dr Woo stated that he disagreed with such report and stated as follows:
“She is not fit for any type of manual work no matter how light. In my opinion, at her age, she is unfit for any type of work in the future. Taking into consideration of (sic) her lack of training & English, she is unemployable.”
I accept the opinions of Dr Woo, who struck me as a careful general practitioner, well acquainted with the plaintiff and her problems, and an impressive witness.
(vi) I might add that, whilst the report of Mr Williams, examining on behalf of the defendant, is, as stated, somewhat ambiguous, I note the following question and answer:
“Question: If there is no current work capacity, do you
consider this would be the position indefinitely?
Yes.”
(vii) I agree entirely with the opinion expressed by Dr Woo in relation to the jobs suggested in the report from IPAR Rehabilitation. Given her back injury, when combined with the factors listed in the definition of serious injury, it seems to me that suggested employment options such as that of a process worker or hand packer are indeed unsuitable. This is particularly so when the plaintiff’s description of her back symptoms, as set out in her affidavits, is taken into account.
73 No argument of any substance was advanced to the effect that s.134AB(38)(g) of the Act operated so as to defeat the plaintiff’s claim and I find that it does not apply to the plaintiff’s detriment.
74 In summary, I prefer and accept the opinions referred to above which coincide with the impression I have formed of the plaintiff. In my opinion, when the appropriate matters are taken into account, she has no capacity for employment and this will continue to be the state of affairs for the indefinite future. She has discharged the burden of proof.
(b) Pain and suffering damages 75 The plaintiff having discharged the burden of proof in relation to pecuniary loss damages, the requirements of the Act have also been satisfied in relation to pain and suffering damages. I would refer to the decision of the Court of Appeal in Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 and to the various decisions of this Court.
76 I might add that, even were that not so, the plaintiff would seem to me clearly to have established that her pain and suffering consequences are more than significant or marked and are at least very considerable. I would refer again to her oral evidence and to the matters set out in her affidavits, as well as to medical opinions such as those of Dr Woo and Mr Barrett. That the patient is quite severely restricted and struggles on a daily basis with pain and great interference with her lifestyle are propositions which I accept. Of course, as stated, her capacity for employment has been destroyed.
77 The plaintiff is successful in relation to the injury to the lower back. She has discharged the burden of proof, and leave is granted to her to bring proceedings in relation to both pecuniary loss damages and pain and suffering damages.
(ii) Injury to the right upper limb 78 In this regard the plaintiff is seeking leave only in relation to pain and suffering damages. Because of the subsequent injury to the low back, it following very soon after the commencement of right arm symptoms, the task of determining whether the plaintiff has discharged the burden of proof in relation to the injury to the right upper limb is not a simple one. In some of the material the description of the restrictions and interference with lifestyle from which the plaintiff now suffers has involved a blending of the injuries. Separating them, as I believe I am required to do, is at times quite difficult, if not in some instances impossible.
79 On balance, I am not satisfied that the plaintiff has discharged the burden of proof in relation to the injury to the right upper limb. I have arrived at this conclusion for the following reasons which are not listed in order of importance or significance:
(i) In her more recent affidavit of 10 August 2009 the plaintiff has stated as follows: “I also continue to have right wrist and shoulder pain although this is not as usual or as troubling for me as my back pain unless I accidentally place too much stress on the right shoulder. My shoulder and wrist pain comes and goes but my back pain is constant.”
Whilst I am not assessing the injury to the right upper limb on the basis of a comparison with the plaintiff’s back problems, nevertheless this sworn evidence tends to downplay the significance of the injury now under consideration.
(ii) Following the development of symptoms in the plaintiff’s right upper limb and before the occurrence of the back injury on 6 April 2006, the plaintiff was able to resume work performing a mixture of duties. When asked about her condition during that period before the back injury, she agreed that she was not seeing Dr Soo about her right upper limb and stated that:
“Because that – during that period of time, you know, the symptom wasn’t that bad, there was not much impact on me.”
I appreciate that symptoms may develop and worsen over time, but that honest answer of the plaintiff gives some indication as to the severity of symptoms in the right upper limb prior to the occurrence of the back injury.
(iii) It was put to the plaintiff that Dr Stockman had advised that the plaintiff’s right wrist pain should resolve following a relatively minor operation to decompress the affected tendon. The plaintiff stated that she never went back to Dr Stockman about that operation “because there was no swollenness and only a pain”. She also agreed that Dr Stockman had suggested, via Dr Woo, that, if the right shoulder continued to worry her, the plaintiff should consider a steroid injection. Her response to this was that she did not have an injection in the shoulder because, in essence, “at that stage I wasn’t on medication and the symptom wasn’t that bad so I didn’t think I should go ahead with the injection”.
(iv) When cross-examined about an allegation that, during 2009, she only complained to Dr Woo on one occasion in relation to shoulder pain, the following questions and answers occurred:
“But was your shoulder during 2009, your right shoulder, was it mainly okay? --- Yes, up and down or come and go.
Yes, but mostly was it okay? --- Ok now.”
It was put to the plaintiff that, only in December 2009, did she complain to Dr Woo about pain in the wrist during that year. The plaintiff agreed that that was so, and the following exchange of questions and answers then occurred:
“So was the wrist a bit like the shoulder that it was mostly okay during last year? --- So basically you know that come and goes.
Yes, but again was it mostly okay? --- Yes.”
The plaintiff also agreed that, during 2010 her wrist had been mostly okay and that her shoulder had been troublesome when her neck had been troublesome.
(v) Dr Woo agreed in cross-examination that recent investigations indicated no sign of any organic pathology in the wrist. He also agreed with the proposition that, by and large, during 2009 and 2010 the plaintiff’s wrist had been “okay”.
(vi) The MRI scan of the plaintiff’s right shoulder and right wrist performed on 9 May 2009 revealed a thickening of the coraco-humeral ligament in the right shoulder with a low signal stranding of the fat in the rotator cuff interval. This was described as a non-specific finding which may relate to either capsular injury or capsulitis. One of the conclusions of the radiologist was that there was moderate supraspinatus tendonopathy with no tear. In relation to the right wrist, there was no evidence of internal right wrist joint derangement, no bone oedema or fracture and that, whilst the area of clinical concern related to the lateral aspect of the first carpo-metacarpal joint, there were no imaging features to indicate underlying arthropathy. As with pathology, radiological findings are not the be all and end all, but these are not particularly suggestive of major right upper limb injury.
(vii) Mr Charles Flanc, vascular and general surgeon, examined the plaintiff at the request of her solicitors. He felt that the diagnosis in relation to the right wrist was of de Quervain’s Disease, but also described this as a condition which, if severe enough, responds well to an open operation which frees the tendons. In relation to the right shoulder, he stated that the ultrasound did not show any evidence of a rotator cuff tear, although it was still possible that the plaintiff had some abnormality of the rotator cuff. He also stated that “this condition has improved because she is able to elevate her right upper arm almost fully but nevertheless, repetitive lifting or repetitive use of the right shoulder could flare this up”.
(viii) Mr Michael Dooley, examining on behalf of the defendant, reported a complaint by the plaintiff of intermittent right shoulder pain, and found a slight restriction of rotation of the shoulder. He expressed the view that the plaintiff’s shoulder pain was musculotendinous in origin related to repetitive activity, and that, with cessation of that activity, he would not expect there to be ongoing significant shoulder pain. Mr Robin Williams took a history of intermittent right shoulder pain.
80 Bearing in mind all of the above, it seems to me that the evidence, including the plaintiff’s honest appraisals of the situation, leads to the conclusion that the injury to the right upper limb fails to satisfy the statutory test. When judged by comparison with other cases in the range of possible impairments or losses for body function, the consequences could not be fairly described as being more than significant or marked and as being at least very considerable. That is no criticism of the plaintiff. The bottom line is that, on the basis of the available evidence, the burden of proof has not been discharged.
Conclusion
81 The plaintiff’s application in respect of injury to the low back is successful, and is successful both in relation to pecuniary loss damages and pain and suffering damages. Insofar as the application relates to injury to the right upper limb, the burden of proof has not been discharged. Accordingly, leave to initiate proceedings in relation to the injury to the low back is granted, such leave extending to both pecuniary loss damages and pain and suffering damages. The application insofar as it relates to the right upper limb fails and is dismissed.
82 I shall hear the parties as to any ancillary orders that are required.
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