Quinlan v VWA
[2016] VCC 264
•18 March 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-03589
| SARAH ANNE QUINLAN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 February 2016 | |
DATE OF JUDGMENT: | 18 March 2016 | |
CASE MAY BE CITED AS: | Quinlan v VWA | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 264 | |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION ACT 1985 – s134AB – Application in respect of pain and suffering damages only – injury to the left ankle – reliance upon paragraph (a) of the definition only – whether burden of proof discharged – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Moulds QC with Mr C Sidebottom | Shine Lawyers |
| For the Defendant | Ms B Myers | Hall & Wilcox |
HIS HONOUR:
General background
1This matter comes before me by way of an application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. The plaintiff seeks leave to bring proceedings in respect of pain and suffering damages only. In so doing, she relies upon paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act. The physical injury relied upon is one to the left ankle and lower leg. Whilst reliance upon paragraph (c) of the definition may have been foreshadowed, it was made quite clear that this was not the case for the purposes of the present application – see Transcript (hereinafter referred to as “T”) 1.
2The application is based upon a specific incident which occurred on 3 November 2009. At that time, the plaintiff was working on a casual or part-time basis for an entity called Racelead Pty Limited, which was effectively operated by her mother. Racelead Pty Limited ran a TAB agency in Centre Road, Bentleigh. The day in question was Melbourne Cup Day and the plaintiff’s mother had engaged her to work, as the TAB would be busy. Whilst she was engaged in employment there, the plaintiff tripped on a floor mat and suffered a fracture of the shaft of the left distal fibula (herein after referred to as “the accident”). There is no argument concerning the occurrence of the accident. The issues raised by the defendant include whether there was a predominantly organic basis for the plaintiff’s presentation and whether the plaintiff has disentangled the consequences of the left leg injury from those attributable to the spine and to her psychiatric or psychological condition. Her credit is also in issue. The case could also be described as a “range case” – that is, whether the consequences satisfy the statutory test.
3 Mr A Moulds QC with Mr C Sidebottom of counsel appeared on behalf of the plaintiff. Ms B Myers of counsel appeared on behalf of the defendant. The plaintiff gave evidence, including the adoption of two affidavits as being true and correct, and was cross-examined. The balance of the evidence was documentary in nature and was tendered either by consent or without objection.
Factual background
(a)The plaintiff’s background, training and employment prior to the injury
4 The plaintiff is aged 40 years, she having been born on 15 March 1975. She is a single woman. As leave is not sought in relation to pecuniary loss damages, only limited attention need be given to her qualifications, employment history, salaries received and the like.
5 The plaintiff was educated to Year 10 level. Apart from doing some work at TAB outlets, she did some modelling and was engaged in the hospitality industry. She subsequently moved into office administration, although, as shall be discussed, she maintained a strong interest in singing. She sang at a number of Melbourne’s top live music venues, ultimately being lead singer for a band called “Immersion”, which seems to have been a hard rock, heavy metal band.
6 In any event, the plaintiff’s “day job” became that of an assistant to a financial planner, before working full-time as an office manager in that industry. She was working in that position, as well as being a singer and doing some casual work at TAB outlets, at the time of the accident.
7 The plaintiff had suffered a number of personal problems and health issues prior to the accident. I shall discuss these shortly.
(b) The plaintiff as a witness
8 I found the plaintiff to be an entirely credible witness. I note that Associate Professor Paoletti, consultant psychiatrist, who examined the plaintiff at the request of her solicitors, described her as pleasant and co-operative. Mr Russell Miller, orthopaedic surgeon, similarly examining, described her as co-operative. Associate Professor Doherty, consultant psychiatrist, examining on behalf of the defendant, described her as settled, calm, co-operative and attentive. I would agree with all these remarks. In addition, I found no reason to doubt the accuracy of her evidence and I accept her as a reliable witness of truth.
(c) The state of the plaintiff’s health prior to the injury
9 There is no doubt but that the plaintiff had suffered from various illnesses prior to the accident of 3 November 2009. In particular, she had suffered psychological and psychiatric conditions which required counselling and medication. She had been the victim of a sexual assault. As at the time of the accident, she was still taking Effexor regularly. As at the time of the accident, her symptoms were controlled. She had encountered difficulties with her mother and stepfather. She had major difficulties with alcohol and with drugs. She took anti-depressant medication. The plaintiff had received treatment from psychiatrists and psychologists. In addition, she had been assaulted by an ex-partner, being hospitalised as a result.
10 In short, there is no doubt but that, prior to the accident, the plaintiff had lived a somewhat disturbed life. She had required psychiatric and psychological treatment and had taken prescribed medication. It is also apparent that, at some stage, she had become pregnant, but had a miscarriage. For quite a lengthy period, she was an alcoholic. She had also been the victim of assaults.
11 The plaintiff had also suffered from an episode of back pain when she picked up her dog, this occurring in August 2009. She attended an osteopath and suffered some stiffness for a matter of weeks. I accept there are ongoing symptoms from that incident that are minor. The plaintiff was also involved in a motor vehicle accident in December 2006. That essentially involved injury which resulted in stiffness in the arms, head and neck, although the plaintiff’s right leg and spine were also checked. The plaintiff appears to have had minimal treatment in relation to the symptoms, but did have some ongoing back pain. The amount of medical expenses paid by the Transport Accident Commission could be described as minimal, with the ambulance bill being the largest component. Ultimately, the defendant placed comparatively minor emphasis upon these incidents.
12 It is also evident from histories taken by examiners that she had been singing in bands from the age of approximately 21 years and enjoyed this. She also managed to remain in comparatively constant employment, even if this involved changing jobs somewhat regularly.
(d) The injury, its diagnosis and treatment
13 As stated, the injury occurred on 3 November 2009, when the plaintiff tripped and fell whilst in the course of her employment. She was conscious of hearing a loud snap and felt severe pain in her left leg and ankle. She was conveyed by ambulance to the Dandenong Hospital. She was there admitted. X-rays revealed two transverse fractures through the distal fibular shaft. Lateral angulation of the middle fragment was seen, along with medial angulation of the distal fragment. She was immobilised in a below knee plaster.
14 Subsequently, she was referred by a general practitioner, Dr Tan, to Mr Adrian Trivett, orthopaedic surgeon, who first saw her on 13 November 2009. The plaintiff required surgical treatment. It was the opinion of Mr Trivett that, in addition to the obvious fractures, there was tenderness of the medial malleolus and distally at the level of the lateral ankle joint indicative of possible ligament injuries associated with an unstable ankle injury. An examination under anaesthesia was required. Mr Trivett continued to see the plaintiff until 21 January 2010. By that stage, the ankle fracture had united radiographically. He expected a slow but steady recovery. He did not see the plaintiff after 21 January 2010.
15 The plaintiff saw a general practitioner, Dr Fox-Smith, on a couple of occasions. The more recent of these was on 4 January 2011. She was referred again for physiotherapy and a scan was organised in order to exclude a clot in the leg.
16 The plaintiff also saw Dr Souad Hussain at the Casey Super Clinic. She had also seen Dr Fong Lee at that clinic two days after the fall. Dr Hussain has reported that the plaintiff had problems with anxiety and depression in 2010, effectively not leaving her house and staying in bed. Apparently, she was treated with medication and psychotherapy and her condition was under control from September 2010. In a report of 24 December 2010, Dr Hussain referred to the fact that the plaintiff’s leg injury had affected her lifestyle and ability to perform her normal daily activities. She was unable to play sport, run, walk for long periods, and had some limitations in relation to standing. The plaintiff did not see Dr Hussain after January 2011.
17 It would also seem that the plaintiff saw another general practitioner, Dr Robert Szabo, during 2010. In his report of 27 February 2011, the focus is largely upon the plaintiff’s anxiety and depression, Dr Szabo taking a history of anxiety and of events prior to the accident. He noted that she had sought help from a psychologist and a counsellor. In relation to her symptoms in that regard, Dr Szabo expressed the opinion that, as at the date of his report, being 27 July 2011, the plaintiff was well enough to be able to return to pre-injury duties.
18 Since 2013, the plaintiff has seen Dr Ameen Mohammed, a general practitioner based at Templestowe Lower. In his report of 5 February 2016, Dr Mohammed recorded that the plaintiff still has pain on and off and limps almost every day. An x-ray of the left ankle was organised by Dr Mohammed, this being carried out on 17 December 2015. The radiologist reported that there was an old healed fracture of the distal shaft of the left fibula. There was moderate deformity in this area with moderate angulation of the fibula. The ankle joint appeared normal, but there was a tiny plantar calcaneal spur and a small dorsal calcaneal spur. Dr Mohammed regarded the x-ray as clearly reporting deformity of the previously fractured bone. He was of the view that the injury had caused her a significant amount of ongoing physical disability and had affected her ability to enjoy her social and personal life. He considered the reported deformity to be permanent, the consequences of it affecting her for the rest of her life. He was also of the view that the deformity could lead to a degenerative condition, such as osteoarthritis, and considered her likely to require ongoing treatment on a long-term basis.
19 Dr Mohammed also referred the plaintiff for an MRI of her left ankle. This was carried out on 19 February 2016. The conclusion of the radiologist was that there was a chronic partial tear of the posterior talofibular and anterior tibiotalar ligaments with small joint effusion and medial ankle joint chondrosis. There was a split tear of the peroneus brevis and moderate Achilles paratendinosis.
20 This most recent MRI has been the subject of comment from two medico-legal examiners, they being Associate Professor Bruce Love, orthopaedic surgeon, who examined the plaintiff at the request of her solicitors, and Mr Michael Shannon, orthopaedic surgeon, who examined her at the request of the defendant. Whilst I shall return to the opinions of each of these examiners, for the moment I shall deal with the impression of each in relation to the recent MRI.
21 Associate Professor Love saw only the radiologist’s report and not the actual images. However, in his letter of 24 February 2016, he has stated that the report confirms that the plaintiff has a chronic soft tissue injury about the left ankle. As more than six years have passed since the injury, the condition can be considered chronic and stable. In the opinion of Associate Professor Love, it is unlikely to change significantly in the foreseeable future, assuming that active intervention did not occur. However, he would be concerned that any active intervention may have a low probability of improving the functional outcome.
22 Mr Shannon’s report of 23 February 2016 embraces both some of the x-rays and the MRI of 19 February 2016. In relation to the MRI, Mr Shannon considered that it provided new information in that it showed some early degenerative changes in the ankle joint, in addition to evidence of some healed injury to the lateral and anterior ligaments of the ankle, all of which were entirely consistent with an inversion injury as described. He also stated that the degenerative changes identified on the MRI scan are not apparently visible on the plain x-rays, but are certainly consistent with the discomfort and restriction of movement that was identified. He also observed that the MRI showing early degenerative change in the ankle was “of some concern, although the appearances are not dramatic”.
23 As is apparent, the plaintiff has also been examined for medico-legal purposes. At the request of her solicitors, she saw Mr Russell Miller, orthopaedic surgeon, he reporting on 30 August 2014. He noted that there was significant irritability during ankle and sub-talar movement, with reported discomfort when attempting to kneel, squat on the left leg, hop or lunge. Mr Miller reviewed the radiology file, but, of course, this comfortably pre-dated the MRI. Mr Miller diagnosed a left ankle injury with a segmental fracture of the fibula, which had required surgical intervention. The fracture was united in a satisfactory position, with no evidence of arthritis. However, in the opinion of Mr Miller, there were significant ongoing symptoms and he believed the prognosis to be only fair.
24 Mr Miller was also of the view that the plaintiff had developed a Chronic Pain Syndrome and a mild form of Reflex Sympathetic Dystrophy. He did not believe that the plaintiff would benefit from surgical intervention, but would require ongoing conservative treatment, with an emphasis on pain management and rehabilitation. He considered her condition to be substantially stabilised. Mr Miller also stated that the plaintiff will have a reduced mobility; a reduced capacity for heavy domestic and gardening activities; and a significant reduction in her capacity for pre-injury leisure and recreational activities. He concluded that the left lower extremity symptoms impact significantly on the plaintiff’s capacity for pre-injury domestic, gardening and recreational activities and that the symptoms were likely to be permanent.
25 Associate Professor Love saw the plaintiff at the request of her solicitors on 19 January 2016. To him she described how she suffered a pain and a pulling sensation in the left ankle on a daily basis. There are episodes of locking and a sensation of weakness. Pain radiates to the remainder of the foot. The pain worsens throughout each day. She did not believe that her condition is changing significantly.
26 As she had received minimal treatment in recent times, he was of the view that there should be up-to-date investigations carried out. He diagnosed a chronic left ankle soft tissue injury. He observed that she had stated that her lifestyle had changed significantly, reference having been made to her singing in a band, dancing and running, activities in which she no longer engaged.
27 Associate Professor Love subsequently viewed both an x-ray report of 17 December 2015 and, as discussed above, the report of the MRI of 19 February 2016. The MRI confirmed his view that the plaintiff had a chronic soft tissue injury. Her condition could be considered both chronic and stable and was unlikely to change significantly in the foreseeable future, assuming active intervention did not occur. As stated, he was also of the view that active intervention would have a low probability of improving the functional outcome.
28 The defendant has also had the plaintiff seen for medico-legal purposes. Mr Brendan Dooley, orthopaedic surgeon, reported to the defendant on 7 April 2011. Mr Dooley diagnosed a segmental fracture in the left ankle region, being to the distal left fibula and left ankle joint. His report is now somewhat out of date and, in any event, seems to have been at least partially directed towards an Impairment Assessment pursuant to the AMA Guides, an Assessment which he was prepared to make.
29 As indicated earlier, the plaintiff has also been seen by Mr Michael Shannon, he seeing her on 18 January 2016. To Mr Shannon, the plaintiff described a tendency on the part of her ankle to swell at the end of the working day. She also described a locking sensation and some clicking. She described the pain as being present every day, with two to three flare-ups a month, these lasting for approximately a week.
30 Mr Shannon felt that the fracture had united with some angulation, but good general alignment. Secondary to the fracture, the plaintiff had developed some restriction of movement of the ankle and sub-par joints. Mr Shannon considered her restrictions to be mild and her condition to be permanent.
31 Mr Shannon reported again on 23 February 2016, without having again seen the plaintiff. It is this report which contains the comments about the MRI results, which have been set out above. Mr Shannon described the radiologist’s report of the x-ray of 17 December 2015 as being “somewhat misleading”, although admitting that he had not seen the films of that date. Presumably, what he considered to be misleading was the reference to a moderate deformity with moderate angulation of the fibula. In the view of Mr Shannon, this led to the report of Dr Mohammed of 5 February 2016 also being misleading.
32 Mr Shannon seems to have formed the view that, because the earlier x-rays did not reveal the deformity referred to in that of 17 December 2015, the x-ray of that date would also have shown no such deformity. In his view, the MRI scan of 19 February 2016 supported his opinion.
33 However, as previously stated, he was of the view that the MRI scan provided some new information, in that it revealed some early degenerative changes in the ankle joint and, as stated, he expressed the opinion that this was of some concern, although the appearances were not dramatic.
34 The diagnosis in this matter seems to be comparatively clear, even including the results of the recent MRI. As diagnosed by her treating surgeon, the plaintiff suffered a segmental left fibula fracture with possible unstable ankle joint. The fracture has healed. However, as demonstrated by the MRI, she has been left with a chronic partial tear of the posterior talofibular and anterior tibiotalar ligaments. I accept that she has a chronic soft tissue injury of the left ankle, although the fracture itself has healed. There are early degenerative changes in the ankle.
35 It is not suggested that the injury is in the nature of an aggravation and considerations in that regard are not required.
36 It also seems to me that the consequences of the injury are permanent within the meaning of the Act, in that they will persist for the foreseeable future.
37 The plaintiff’s current treating general practitioner, Dr Mohammed, has stated that her deformity is permanent and has consequences for the rest of her life. Associate Professor Love has stated in his most recent reports that the plaintiff’s condition can be considered chronic and stable and is unlikely to change significantly in the foreseeable future. He has left open the possibility of there being some active intervention, but has expressed the view that, if this should occur, it would have a low probability of improving the functional outcome.
38 Mr Dooley was prepared to make an assessment pursuant to the AMA Guides, a condition of such assessment being permanence. He also expressed the view that the injury had stabilised. Mr Shannon has stated that the prognosis for the ankle remains unchanged and that the impairment is permanent. Accordingly, I am of the view that the requirement of permanence has been satisfied.
39 There is no dispute but that the plaintiff has suffered quite severe psychiatric or psychological problems over many years. There is no reliance upon consequences of such nature in the present case. Therefore, pursuant to s134AB(38)(h), such consequences are not to be taken into account in the present case and I shall not do so.
40 However, the existence of such problems is something which can be taken into account. It is trite law that, in cases such as this, a defendant must take a plaintiff as it finds him or her. Often used examples include that of the damage to the fingers of a concert pianist as opposed to, say, a barrister. Thus, the impact of a physical injury upon the lifestyle of someone with mental problems potentially may be far greater than to a person of sound mental health. The person with pre-existing mental problems may have had removed from his or her lifestyle, by reason of physical injuries, sustained activities which were very important, if not beneficial, to such person.
41 In the present case, the plaintiff had a troublesome childhood. She was the victim of a sexual assault. She had problems with drugs and alcohol. She had suffered nightmares, anxiety and depression, attending for both psychological and psychiatric counselling for a number of years. She also took various medications. She has sworn that she improved slowly, to the point where she was able to obtain and retain full time employment, in addition to ceasing the receipt of counselling. She was still taking medication as at the date of the accident, but her symptoms were largely controlled and she was able to engage in full-time employment.
42 The plaintiff has been seen by consultant psychiatrists for the purposes of this case. Associate Professor Nick Paoletti saw her at the request of her solicitors on 31 July 2014. The history taken by Associate Professor Paoletti included that the plaintiff had been diagnosed with Post-Traumatic Stress Disorder at the age of 20 years and had been in a relationship with an extremely violent boyfriend. She had been an alcoholic by the age of sixteen years. She took all sorts of drugs to the extent that “it nearly killed her”. She suffered from hallucinations and, on one occasion, accidentally overdosed on antidepressants. She saw a large number of psychiatrists and psychologists over the years, most of them briefly because of the expense involved. She told Associate Professor Paoletti how she had been singing in bands from the age of 21 and, whilst not a confident person, liked this very much. She had taken Effexor, and continued to take it. Associate Professor Paoletti was of the view that the plaintiff suffered from various symptoms which had been aggravated by her injury (and which shall not be taken into account). However, as he pointed out, she had a background of Post-Traumatic Stress Disorder and multiple substance abuse/dependence, with psychotic expression.
43 Associate Professor Paoletti re-examined her on 18 December 2015. Apart from describing symptoms of a psychological or psychiatric nature, the plaintiff complained to him about the pain that she suffers when walking and the fact that she cannot wear high heels. She also complained of shooting pain in her feet. Further, she mentioned that she used to play in a band, but now lacked the confidence to commit herself. Her inability to sing with a band is something to which I shall return.
44 The defendant has also organised for two consultant psychiatrists to see the plaintiff. Dr Paul Kornan saw her on 10 March 2011. Dr Kornan also took a detailed history of her mental health and family problems. Essentially Dr Kornan felt that, as a result of the accident, the plaintiff had aggravated a longstanding pre-existing psychiatric condition. He felt that prior to the injury she had a longstanding, fluctuating depressive disorder and a generalised anxiety disorder. She described problems and pain associated with her left ankle.
45 The defendant also organised for the plaintiff to be seen by Associate Professor Peter Doherty. Associate Professor Doherty saw the plaintiff comparatively recently, namely on 17 December 2015. The plaintiff described to Associate Professor Doherty both the state of her pre-injury mental health and matters that have occurred since, including some things that have no connection to the accident. However, she complained of regular pain and leg trouble. She told Associate Professor Doherty she could not wear high heels, could not run and could not perform certain activities at her gymnasium. She also told him of her ongoing interest in music and the fact that she had been a singer. The ultimate conclusion of Associate Professor Doherty was that the plaintiff had clear, longstanding, pre-injury psychiatric symptoms and a psychiatric condition. There was then the work injury, which required convalescence and the like. When he saw her, Associate Professor Doherty could find no objective evidence of a psychiatric condition being present. However, there were pre-existing psychological and personality vulnerabilities.
46 In Associate Professor Doherty’s opinion, as at 17 December 2015 there was no current linkage between the injury of November 2009 and the plaintiff’s current mental health. Any worsening of her previous condition because of the effects of the injury of November 2009 had resolved. However, he did conclude that her long-term psychological and personality vulnerabilities leave her particularly prone to decompensate under stressful circumstances.
47 I would certainly agree with Associate Professor Doherty that the plaintiff is a vulnerable person and that this has been a long-term situation. Thus, whether the view of Associate Professor Doherty that any aggravation as a result of the injury of November 2009 has resolved or whether the Act is applied and psychological and psychiatric consequences are ignored, any mental health problems, to use a broad term, are to be ignored insofar as they arise from the accident. However, that she was a vulnerable person with pre-existing problems and limitations seems clear.
Other developments since the injury
48 The plaintiff remains on Effexor. She uses Panadeine and Nurofen on a regular basis in order to manage her pain. She also uses Voltaren Emulgel when required. She sees Dr Mohammed from time-to-time. After a difficult period, she has returned to full-time employment and is currently working as the manager of a TAB at the Doncaster Hotel. Apart from some other restrictions, she has not been able to return to singing. The nature of the music which she performed is such that a great deal of on-stage activity is required and she simply cannot do it.
Ruling
49 I am of the view that the plaintiff has discharged the burden of proof in this matter. I have come to that conclusion for the following reasons, which are not listed in order of importance or significance.
(i) I am satisfied that the plaintiff suffers pain effectively on a daily basis. In her affidavit of 17 April 2015, she has described the pain as being present most of the time, but worse in the morning or after any physical activity. It varies from a constant, dull, throbbing ache to a more intense sharp pain. At times, her left lower leg gives way. In her more recent affidavit, she has sworn that, the more active she is, the more pain she has to endure. In addition, her left ankle feels weak and unstable. To Associate Professor Love, she described how she continued to have pain and a pulling sensation in her left ankle on a daily basis, in addition to episodes of locking, a sensation of weakness and pain radiating into the remainder of the foot. She told him that pain worsens throughout each day. As was said by Dodds-Streeton JA in Kelso v Tatiara Meat Co Pty Ltd [2007]
“The endurance of permanent daily pain requiring frequent medication must raise a real prospect of a ‘very considerable’ consequence.”
The plaintiff in the present case endures daily pain and takes painkillers on a regular basis.
(ii) The age of the plaintiff is to be remembered. She is currently aged 40 years. Whilst she has had a somewhat turbulent life, she now seems more settled. It is likely that she will continue to endure the pain and restrictions from which she suffers for decades to come.
(iii) In that regard, there is a physiological foundation for the plaintiff’s ongoing problems. I would refer again to the concluding paragraphs of the brief report of Associate Professor Love of 24 February 2016, this being written after he had read the report of the radiologist following the MRI of the plaintiff’s left ankle on 19 February last. Associate Professor Love concluded as follows:
“This report confirms that she has a chronic soft tissue injury about the left ankle and now more than six years has passed since the injury the condition can be considered chronic and stable and it is unlikely to change significantly in the foreseeable future assuming that active intervention does not occur.
I would be concerned that any active intervention may have a low probability of improving the functional outcome.”
Whilst Mr Shannon, examining on behalf of the defendant, was perhaps not quite as pessimistic, he did remark that “The MRI showing early degenerative change in the ankle is of some concern … .” Whilst he went on to say that the appearances were not dramatic, it is clear that the MRI scan caused Mr Shannon to have some worries.
(iv)As stated earlier, the defendant must take the plaintiff as it finds her. During what had been a troubled existence, one thing to which the plaintiff was greatly attached and which obviously gave her great pleasure and some confidence for many years was her singing. Whilst the style of music might not be to everyone’s taste, it being of a genre described as alternate hard rock or heavy metal, I accept that the plaintiff was talented in this regard. She was the singer for the band “Immersion”. She had also sung with other bands. I accept her evidence that she was sufficiently talented for other bands to attempt to “poach” her. From 2005 onwards, she played professional “gigs,” originally with the band “At What Cost” before being the lead singer with “Immersion” from 2007 until the time of the accident. I accept that her performance required a lot of jumping, running on the stage, kicking out, spinning, jumping off the stage and the like. When asked in evidence why she performed, her answer was as follows:
“Because I loved it. It was one of the few things that I did that I really felt good at that I had a calling for that made me happy, it made me feel strong, confident, alleviating any stress that was with me at the time. It was really cathartic for me.” – CT54.
The affidavit of the plaintiff’s mother, it having been sworn 17 February 2016, contains the following:
“During her performances Sarah was quite energetic; she would jump, dance and head bang. She was a true performer and always seemed to have a passion for music.”
After the accident, and in 2010 the plaintiff attempted to make a return to singing with the band, “Immersion”. There was to be a series of six shows. The plaintiff gave up after five. She could not wear high heels or boots on stage. She could not jump. The stage was in darkness with cords everywhere. She was constantly worrying about falling and in fact did fall on some occasions. She lost all confidence and at times had her back to the audience. She was frightened that her leg would break again or that she would roll over on her ankle. She left, and the band broke up. She has not sung since.
I accept that this meant a great deal to her. Generally she gave evidence in a calm and careful fashion. The only time that she became emotional was when discussing the issue of the band and her singing. In answer to a question of mine, she stated that the good musicians keep going and that there was always demand for them. Had she remained fit and healthy, she would have “absolutely” continued singing – see T61. At the time of the accident, there was a record label showing interest in the band as well as other bands asking it to tour and play with them. I accept that people from other bands were trying to poach her. She was not of the view that she would have had a limited lifespan as the singer of the type of music which she performed.
As stated, it was quite apparent that this meant a great deal to her. She is a person who has had an unfortunate and troubled life and this was one area of endeavour which she obviously enjoyed and in which she was successful. I accept that she would have continued on in it indefinitely. I also accept that, because of the nature of the performance that was required, it is now lost to her. I accept that this is a very substantial loss. An additional result is that she is no longer involved with the band and those who are active in the music scene. Her social life has suffered accordingly. As she has sworn, she has become very withdrawn. The plaintiff’s mother, who was not required for cross-examination, has also sworn that the plaintiff rarely attends social functions and appears to have lost the ability “to trust her leg”.
(v)I also accept that the condition of the plaintiff’s left ankle and lower leg interferes with her enjoyment of life in other ways. There are exercises at the gymnasium that she can no longer perform. She finds it difficult to perform domestic chores in her unit, particularly those that involve crouching or squatting. Examples of this are cleaning floors, cleaning the bathroom, emptying the dishwasher and the like. She cannot wear high heels without experiencing pain and discomfort. Recently her sister married and the plaintiff was a member of the bridal party. This required her to wear high heels. After the ceremony, she was in such severe pain that she had to replace the high heel shoes with thongs. This may have been a particular occurrence on one day, but it is reflective of the plaintiff’s inability to wear high heel shoes. This is something that is important to her. Indeed, any form of heeled shoe apparently causes a problem. She is permitted to wear black running shoes at her place of employment. Even then, at the end of the working day she generally needs to lie down and put her feet up.
50 In summary, I am of the view that the statutory test has been satisfied.
Conclusion
51 The plaintiff is successful. She has discharged the burden of proof. Leave is given to her to seek damages in respect of pain and suffering. I shall hear the parties as to any ancillary orders that are required.
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