Ryan, Sandra Joy v SPC Ardmona Operations Ltd
[2009] VCC 995
•11 August 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT WANGARATTA
CIVIL DIVISION
DAMAGES - COMPENSATION
SERIOUS INJURY
Case No. CI-08-04428
| SANDRA JOY RYAN | Plaintiff |
| v | |
| SPC ARDMONA OPERATIONS LIMITED | Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Wangaratta |
| DATE OF HEARING: | 31 July and 3 August 2009 |
| DATE OF JUDGMENT: | 11 August 2009 |
| CASE MAY BE CITED AS: | Ryan, Sandra Joy v SPC Ardmona Operations Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0995 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION - Accident Compensation Act 1985 - whether the plaintiff had suffered a compensable injury - whether the consequences of the injury to the plaintiff’s lower back were least very considerable – credit – leave refused: section 134AB (c)
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti with | Nevin Lenne & Gross |
| Mr I Fehring | ||
| For the Defendant | Mr D Myers with | Wisewould Mahony |
| Ms J Forbes | ||
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed on 27 October 2008 by which the plaintiff applies for leave, pursuant to section 134AB (16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of the course of her employment with the defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering.
3 Mr T Monti appeared with Mr I Fehring of Counsel for the plaintiff, and Mr D Myers appeared with Ms J Forbes of Counsel for the defendant.
4 The body function which the plaintiff says has been lost or impaired is the dominant lower back.
5 The following evidence was adduced during the hearing:
• The plaintiff tendered her Court Book ("PCB") pages 11-18; 31-38; 86-133; 136-139; 173-174; 176 and 180: Exhibit A • The defendant tendered its Court Book (“DCB”) pages 19-38; 54-80; 134- 135; 147-148 and 167-174: Exhibit 1 • Film taken of the plaintiff on the 18 July 2009: Exhibit 2 6 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
The Statutory Scheme
7 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that she has suffered a compensable injury, that is, an injury which she suffered arising out of the course of her employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(d)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(e)
Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event,[3] an approach which I intend to follow in the present case.
(f)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(g)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[4]
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
[3] A consistent approach of Judges of the County Court – see, for example, De Pasquale v AW Dark Pty Ltd [2005] VCC 158, per Judge Higgins; Talevski v Fulop Trading Australia Pty Ltd [2007] VCC 833, per Judge Strong; and Patterson v Burbank Plumbing and Maintenance Services [2007] VCC 1527, per Judge Ross.
[4] (1994) 1 VR 436
8 I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff's Background and the Injury
9 The plaintiff was born on 31 May 1962. She is a married woman with four children. The youngest is sixteen years of age. Her other children are adults and independent.
10 The plaintiff commenced employment with the defendant on 23 June 1999 working on the fruit bar line. Her hours of work were from 6.00 am to 2.20 pm, however, in her first five years of employment with the defendant she usually worked up until 4.30 pm and often worked overtime during the week. She also worked on weekends.
11 Essentially the plaintiff worked in the following areas within the workplace:
ƒ On the fruit bar line, which the plaintiff described as requiring rapid
repetitive movements and continual bending and straightening of her lower
back.
ƒ
After four and a half years, the plaintiff undertook work on rotation. She worked one week on the fruit bar line and the next week undertook packing work.
ƒ
The fruit bar wrapper machine, which required the plaintiff to stand for the purpose of centering the fruit bars for the purpose of wrapping them, and changing rolls of plastic on the machine which weighed about 25 kg which required her to lift the roll and to carry it to the machine.
ƒ The cranberry line, which required the plaintiff to lift frozen bags of
cranberries which weighed about 20-25 kilograms off a pallet to waist
height and onto a sorting table.
ƒ Cleaning the orange line, which required the plaintiff to shovel orange peel from the floor into bins and to sweep the general area.[5][5] PCB 12-13
12 As a consequence of the work described by the plaintiff, she first experienced pain around her left knee over a four-month period. On 15 July 2005, she said that she was required to work in the taylors area to fill in for a fellow worker who was absent. On the following day, which was a Saturday, the plaintiff woke at about 4.00 am with pain in her lower back and what was later diagnosed as left-sided sciatic pain.[6]
[6] PCB 13
13 The plaintiff was admitted to the Kyabram Hospital with severe lower back pain and sciatica. Dr Tisdall saw the plaintiff. He considered that she had suffered a ruptured disc. He referred the plaintiff to Dr King, neurologist, who in turn referred the plaintiff to Mr Maarten’s, neurosurgeon, who operated on the plaintiff. The nature of the medical treatment which followed referral to Mr Maarten’s is referred to below.
Causation
14 Mr Myers submitted that the question of causation was a live issue even though he conceded that the preponderance of the medical evidence supported the conclusion that the nature of the work performed by the plaintiff was a cause of the injury to her lower back.
15 The real issue was whether the plaintiff actually filled in for an absent fellow worker on 15 July 2005 on the taylors area.
16 Mr Myers cross-examined the plaintiff about whether she in fact worked in the taylors area at all on 15 July 2005. He referred to the affidavit of Denise Kennedy sworn 18 July 2009 who, inter alia, swore:
[7] PCB 28
"3 I believe that on 15 July 2005 I worked in the taylors area with
Julie Beare on afternoon shift.4 I do not believe that I worked with Samba Ryan in the taylors area on 15 July 2005."[7]
17 For reasons which will become plain below, the issue whether the plaintiff worked in the taylors area on 15 July 2005 is of little consequence because the preponderance of the medical evidence supporting the conclusion that the plaintiff suffered the injury as a consequence of her work is based upon the general work which the plaintiff undertook in her employment with the defendant and not what work she undertook in the taylors area that day.
18 However, Mr Myers submitted that the plaintiff was not telling the truth that she in fact worked in the taylors area. He said that the plaintiff added in that work to give the impression of a temporal connection between additional and more difficult work with the onset of the lower back pain and left-sided sciatica.
19 Mr Myers referred me to the clinical notes of Dr Tisdall, general practitioner,[8] and to a medical report he wrote on behalf of the plaintiff on 15 August 2005 to International Underwriting Services Pty Ltd in support of a claim under an injury and sickness protection scheme.[9] Neither contains any reference to the plaintiff working in the taylors area nor any work which the plaintiff performed which was said to have precipitated the onset of her lower back pain on 16 July 2005.
[8] PCB 90-92
[9] PCB 169-172
20 Mr Myers submitted that if the plaintiff had been telling the truth about working in the taylors area, and it was so important because of its temporal connection with the onset of her lower back pain, that it would have been in the forefront of her mind and she would have said something about it early on.
21 Mr Myers submitted that the reasons why the plaintiff did not refer to the taylors line were, firstly, because she could not work there; and secondly, the plaintiff had decided that her injury was not work-related, which is why she decided to make a claim against the insurer of the injury and sickness protection scheme which the plaintiff had available to her.
22 The controversy surrounding whether the plaintiff worked in the taylors area on 15 July 2005 or not is a difficult one to resolve without having that question investigated fully as it would at the trial of the damages proceeding where no doubt the plaintiff and Denise Kennedy would be cross-examined at greater length and any documents, such as payroll and other records, would be produced to determine whether Denise Kennedy was working that day and perhaps other records pointing to the plaintiff being assigned to work in the taylors area.
23 Mr Monti criticised the evidence relied upon by the defendant, submitting that it could have produced the kind of documentary evidence which I have referred to, but equally so could the plaintiff. No effort was made by the plaintiff to require the production of those documents nor to cross-examine Denise Kennedy. The very route by which the plaintiff could have tested the evidence of the defendant was not pursued.
24 It is for these reasons that I am unable to determine whether in fact the plaintiff was working in the taylors area on 15 July 2005 or not.
25 In any event, it does not seem to matter all that much because the preponderance of the medical evidence supports the conclusion that the plaintiff suffered a compensable injury.
26 Although Mr Myers essentially conceded that there was evidence which supported that conclusion, he did not go so far as to concede the point. Therefore, I intend to give only the briefest summary of the evidence which supports the conclusion:
ƒ Dr Tisdall was of the opinion that on the balance of probabilities the
plaintiff's work with the defendant was a significant contributing factor to
the occurrence of the injury.[10]
[10] PCB 95
ƒ Mr Maarten’s, orthopaedic surgeon, was of the opinion that on the
description of the work given to him by the plaintiff and the occurrence of leg pain then followed by a lower back pain was a fairly typical sequence of events. I infer from that observation that he accepted that the plaintiff's work resulted in the occurrence of the injury.[11]
[11] PCB 105
ƒ
Dr King, neurologist, was of the opinion that the nature of the plaintiff's work contributed to the development of an acute prolapse which caused her sciatica.[12]
ƒ
Mr Nye, neurosurgeon, was of the opinion that on the description of the work given to him by the plaintiff that the plaintiff's work was a significant contributing factor to the occurrence of the injury.[13]
ƒ
Mr O'Brien, orthopaedic surgeon, was of the opinion that on the description of the work given to him by the plaintiff, that the plaintiff's work was a significant contributing factor to the occurrence of the injury.[14]
ƒ
Mr D’Urso, neurosurgeon, was of the opinion that on the description of the work given to him by the plaintiff, that the plaintiff's work that the injury resulted from the plaintiff's work.[15]
[12] PCB 110
[13] PCB 122
[14] PCB 127
[15] PCB 131
27 Dr Joubert examined the plaintiff in 2005. He provided a medical report to the defendant dated 1 June 2006.[16] There are many aspects of the report of Dr Joubert which are very unsatisfactory: firstly, he did not identify the date upon which he examined the plaintiff; secondly, he did not set out any of the history he must have obtained from the plaintiff regarding her work and the way in which she eventually considered that her work caused or contributed to the occurrence of the injury; thirdly rather than offering a medical opinion, he engaged upon a forensic exercise of evaluating the plaintiff’s evidence on causation against the defendant's evidence; and, lastly, he has not described his qualifications so it is not possible to say whether his qualifications match those of the other medical practitioners who have offered an opinion on causation.
[16] PCB 134-135
28 I accept the plaintiff’s evidence that she was required to undertake work which involved the tasks described by her and had physical elements which impose stress and strain on her lower back. Considering the preponderance of the medical evidence which I have summarised, it seems to me that there is no other conclusion that is open on the evidence than that the plaintiff's work either caused or contributed to the occurrence of the injury.
Serious Injury
29 Mr Myers made a sustained attack upon the plaintiff's credit, ultimately submitting that from the histories recorded by all of the treating and medico- legal medical practitioners who have provided opinions in this case, that the plaintiff made a very good recovery from the surgery performed by Mr Maartens, leaving her with consequences which do not meet the statutory test for pain and suffering.
30 Mr Myers submitted that I should not accept the plaintiff’s evidence that in fact she has not made such a good recovery and continues to suffer from significant and persistent lower back pain. He submitted that the plaintiff has not told the truth and that she evidenced a willingness to say whatever was needed to suit a case consistent with meeting the statutory test.
31 In order to test the plaintiff’s evidence, I will analyse the histories recorded by the relevant medical practitioners and the results of the clinical examinations, both before and after she underwent the undergone surgery, against the evidence ultimately given by the plaintiff contained in her affidavits and in her oral evidence at trial, to firstly, determine what evidence I consider to be reliable; and secondly, to determine whether that evidence points to consequences which meet the statutory test.
32 The plaintiff was referred to Dr King by Dr Tisdall and subsequently Dr King referred the plaintiff to Mr Maartens. Mr Maartens performed surgery on the plaintiff on 28 October 2005 at the Royal Melbourne hospital. The operation involved a left L5-S1 microdiscectomy and left S1 neurolysis.
33 On 9 December 2005, when Mr Maartens reviewed the plaintiff post- operatively, he recorded the following:
"… all her back pain had resolved and she only experienced some lumbar stiffness - predominantly in the early morning, which rapidly resolved over the course of the subsequent morning. All her leg symptoms had also resolved. This improvement was sustained three months post-operatively at her next review on the third of February 2006. Her only complaint was that of intermittent cramps in her left leg."
34 In relation to the plaintiff's capacity for work, Mr Maartens said:
"I recommended to her that she did not return to her original position at her previous workplace but emphasised that this did not preclude her from numerous other positions at a workplace that appeared to be more suitable."
35 Mr Maarten’s also told the plaintiff that it was no longer necessary for him to follow her up unless she developed complications. He then discharged her from his care.[17]
[17] PCB 105
36 In a medical report dated 22 May 2006, Dr Tisdall recorded:
"Mrs Ryan is now free of pain and has not returned to work at this time although she is prepared and willing to do so on a suitable Return to Work Plan."[18]
[18] PCB 99. He repeated that opinion in a subsequent report dated 9 August 2006 at PCB 101
37 Mr Myers cross-examined Dr Tisdall, who confirmed what he had said in that medical report.[19] Mr Myers also referred Dr Tisdall to his clinical notes which reveal that Dr Tisdall did not treat the plaintiff for her lower back again after 24 May 2007, although he did treat her for other medical conditions.[20]
[19] Transcript 48
[20] PCB 60-63a and transcript 51-52
38 Dr King was of the opinion that patients who have had the same surgery as the plaintiff often required regular exercise, but overall they have a good prognosis. He expected that she would have made a good recovery.[21]
[21] PCB 112
39 Mr Nye, neurosurgeon, examined the plaintiff on a medico-legal basis on 8 August 2007. He recorded a history that the plaintiff remained generally pain- free, but experienced stiffness in the morning. By the time Mr Nye examined the plaintiff, she had obtained full-time employment at the Tatura Hospital. He recorded that she was taking no medication.
40 Mr Nye examined the plaintiff, finding modest restriction in the thoraco-lumbar spine. He found that her ankle response was present on both sides but minimally depressed on the left side, and otherwise he could not detect any sensory impairment affecting either lower limb.
41 Mr Nye was of the opinion that the plaintiff had suffered a minor incapacity for work. He considered she was not capable of undertaking her pre-injury work. He considered that it was appropriate for her to undertake work with restrictions on lifting of no more than 5 kilograms and a limitation on the amount of time she would be required to stand of no more than 45 minutes, and that she not be required to undertake repeated bending. He ultimately described her physical limitations as being minor.
42 It was Mr Nye's impression that the plaintiff's prognosis was favourable. He did not consider that she would experience any deterioration in her condition.[22]
[22] PCB 123-124A
43 Mr O'Brien examined the plaintiff on 8 December 2008. He recorded a history that the plaintiff was suffering constant lower back pain of a severity which she estimated to be 8 out of 10 on a visual analogue scale. He also recorded that bending, leaning forward, stretching, lifting and bending and being in a prolonged position such as sitting and standing aggravated her pain.
44 Mr O'Brien, orthopaedic surgeon, examined the plaintiff finding the movements he had the plaintiff perform produced complaints of pain.
45 In the section of Mr O'Brien's report headed "Discussion", he also recorded that the plaintiff told him that she had suffered continuous back pain over the past three years which must mean that the plaintiff had experienced that degree of pain before Mr Maartens operated on her and since.
46 Mr O'Brien was of the opinion that the plaintiff's prognosis was poor because it seemed to him that she had established chronic discogenic back pain. He was also of the opinion that she was moderately disabled, however, he noted that she had returned to work which he understood not to require any heavy physical activity. He did not consider that the plaintiff would be capable of returning to unrestricted duties and that she would have to continue on modified duties on a permanent basis. He considered that the nature of the impairment of the function of the plaintiff’s lower back would have a significant effect on her general domestic, social and recreational pursuits.[23]
[23] PCB 127-128
47 Mr D’Urso examined the plaintiff on 13 March 2009. He recorded a history that the plaintiff told him that ever since the injury she had been incapacitated to some extent. He also recorded that she told him that she rated her ongoing lower back pain as 6 out of 10 on a visual analogue scale and her left leg pain at 8 out of 10.
48 The plaintiff denied that she told Mr D’Urso that she still suffered pain in her left leg. Mr Monti submitted that because the plaintiff had denied any symptoms in her left leg post-operatively to all of the other examining medical practitioners, that the plaintiff should be believed that she did not tell Mr D’Urso that she was still suffering pain in her left leg.
49 Despite the plaintiff's repeated denials that she has suffered any left leg pain post-operatively, she said, in her affidavit sworn 6 May 2008, that she was still suffering from symptoms of sciatica at the back of her left knee. That does not sit well with her denial. According to the plaintiff’s repeated denials, that statement in her affidavit must be wrong.
50 I accept the evidence of the plaintiff that she did not tell Mr D’Urso that she was still suffering pain in her left leg. I accept that it was noted in error by Mr D’Urso, and I am fortified in reaching that conclusion because Mr D’Urso had nineteen enclosures which he recited in the preamble to his medical report dated 5 May 2009. Some of the enclosures were medical reports from Dr Tisdall, Dr King, Mr Maartens, Mr Nye and Mr O'Brien, all of which contain histories in which the plaintiff has denied any post-operative left leg pain.
51 Mr D’Urso examined the plaintiff, finding that her left ankle reflex was diminished, similar to the finding made by Mr Nye. He also found the movements he had the plaintiff perform were restricted by complaints of pain.
52 Like Mr O'Brien, Mr D’Urso was given a history of significant lower back pain, and by inference it would appear that he understood that to be the case since the occurrence of the injury. Furthermore, it is unfortunate that Mr D’Urso’s opinion is seriously flawed because it was expressed on the belief that the plaintiff both suffered from significant lower back pain and left leg pain.
53 Whilst he was of the opinion that the plaintiff had made a satisfactory return to work, he was of the opinion that she had a significant disability, and he added that he considered that she had a significant disability related to what he considered to be a significant psychiatric condition which had affected the plaintiff. Ultimately he was of the opinion that it was a combination of the plaintiff's physical injury and psychiatric disturbance which produced the degree of disability under which he considered she was labouring.
54 It is quite obvious that there is a serious conflict in the histories given by the plaintiff to Dr Tisdall, Dr King, Dr Maartens and Mr Nye, that she had obtained a very good recovery after undergoing surgery and was left with little physical disability.
55 Furthermore, it would appear from the reports provided by each of those medical practitioners that the plaintiff told them that she was not taking any medication. The plaintiff said that she takes Nurofen Plus to deal with the pain in her lower back.[24] No doubt the addition of that factor was of some importance in the opinion which each of those medical practitioners formulated.
[24] Transcript 95
56 The foregoing is to be contrasted with the opinions of Mr O'Brien and Mr D’Urso. Both were given histories of significant ongoing lower back pain which the plaintiff had endured both before and after undergoing surgery.
57 The plaintiff sought to reconcile the conflict by saying that she had not been entirely truthful with Dr Tisdall, Dr King, Mr Maartens and Mr Nye and that in fact she had suffered pain in her lower back despite undergoing the surgery. She admitted telling those medical practitioners that she was totally pain-free, but she said that she did so to try to get a job back.[25] The plaintiff did not say that the estimate she gave to Mr O'Brien and Mr D’Urso of the degree of the pain she was suffering in her lower back was wrong.
[25] Transcript 74-76 and 78; 81-82
58 In re-examination, Mr Monti asked the plaintiff why she had previously said to examining medical practitioners that she was pain-free when that was wrong. She said that she was experiencing a lot of pain, but she was not going to let on about that because she wanted to get a job back.[26]
[26] Transcript 92
59 Also in re-examination, the plaintiff said that when she is not working she does not sit except when she sits to eat a meal. She spends the rest of the day lying down on a couch, and when asked to give an estimate of how long she would be lying on the couch, she said most of the day because she feels more comfortable when she lies down. She said that has been the situation since May 2006 up until the present time.[27]
[27] Transcript 91-92
60 The plaintiff did not inform any of the medical practitioners whose evidence I have reviewed that she has such a dramatic problem with sitting and has to lie down in preference to sitting because it is more comfortable. Generally speaking, the histories reveal that the plaintiff has some difficulty with sitting. In her affidavits sworn 6 May 2008, she described having difficulty being able to sit for any longer than one hour, after which her back would start to ache with pain.[28] There is no reference in her affidavits to her resorting to lying down as extensively as she described in re-examination.
[28] PCB 15
61 This plaintiff swore two affidavits in support of her application. The first was sworn on 6 May 2008 and the second on 16 July 2009.
62 In her first affidavit, she described making a reasonable recovery post- operatively, but still having ongoing symptoms. She said her back is stiff in the mornings. She cannot sit for longer than one hour. She feels a pulling sensation when she bends. She can bend only once or twice before she will be met with pain. She cannot drive long distances. She and her husband had purchased an automatic car to make driving easier for her. She cannot wear high-heeled shoes. Her sleep is often broken at night. She has to avoid lifting heavy things. She has to sit on the ground and pick out weeds when gardening.
63 The plaintiff said that she is no longer able to water ski. She is unable to ride a bicycle. She has become moderately reclusive and anti-social. She does not vacuum the carpets. She does not mow the lawns or put out the rubbish bins. She has a clothes basket on wheels to aid her in hanging out washing. She has a fear of falling on stairs and either uses the railing or looks for a ramp instead of using stairs.[29]
[29] PCB 15-16 and 17-18
64 The plaintiff said that she commenced working at the Tatura Hospital on 28 May 2007 on a full-time basis, working 70 hours per fortnight. She described her work as dishing out meals which requires her to put meals on trolleys and to make four or five trips in order to dish out meals to patients. She said that she is able to work and only does what she can.[30]
[30] PCB 16
65 Essentially the plaintiff now says that the histories recorded by Dr Tisdall, Dr King, Dr Maartens and Mr Nye are wrong insofar as they record a history given by the plaintiff that she was pain-free at the time when she gave those histories and had otherwise obtained a very good result from the surgery.
66 The plaintiff now says that the history given to Mr O'Brien and Mr D’Urso and what she has deposed to in her affidavits is more consistent with the pain and restriction of movement she suffered both before and after the surgery.[31]
[31] Except for the history recorded by Mr D’Urso of continuous left leg pain
67 Mr Monti submitted that the simple explanation to reconcile this conflict is that the plaintiff did not tell the truth early on because she was keen to return to work. I accept that the plaintiff was keen to return to work.
68 However, a reasonable observer would almost inevitably have concluded that the histories recorded by Dr Tisdall, Dr King, Dr Martens and Mr Nye, together with the plaintiff's return to full-time work on 28 May 2007, demonstrated a very good recovery from a disabling injury with modest ongoing consequences to the plaintiff.
69 Furthermore, the submission made by Mr Monti is really untenable. The plaintiff commenced work with the Tatura Hospital on 28 May 2007. Mr Nye examined the plaintiff on 8 August 2007, and at a time when there was no necessity for the plaintiff to suppress what she says was the real nature of the pain she was experiencing because by that stage she had already obtained the job at the Tatura Hospital. The plaintiff told Mr Nye that she had commenced work and described to him nature of the work she was undertaking.[32]
[32] PCB 121
70 If the plaintiff's strong motive was to mislead Dr Tisdall, Dr King, Mr Maartens and Mr Nye to enhance her prospects of re-employment, then it seems to me that it cannot be reconciled with her persisting with the deception when she saw Mr Nye.
71 The question arises for my consideration is whether I should accept any and what of the plaintiff’s evidence contained in her affidavits and given by her orally during the trial relevant to the consequences which she now says have been present both before and since she underwent surgery and which she submits consequences which meet the statutory test.
72 I accept the plaintiff’s evidence that she suffered a compensable injury resulting from the work which she undertook prior to 16 July 2005 when she was met with acute lower back pain and left sided sciatica.
73 I accept that the plaintiff underwent surgical amelioration of the injury which led to the eradication of her left leg pain. I accept that the plaintiff continues to experience some symptoms consistent with the injury. It is clear from the examinations conducted by Mr Nye and Mr D’Urso that the plaintiff has a loss of left ankle reflex.
74 I accept the opinions of Dr Tisdall, Dr King, Mr Maartens and Mr Nye that the plaintiff should have restrictions placed upon her and that she is probably not fit for her pre-injury work. I accept that the plaintiff is fully fit for the work she is presently undertaking at the Tatura Hospital.
75 I do not accept that the plaintiff is suffering from the level of pain in her lower back which she described to Mr O'Brien and Mr D’Urso and which she described in her evidence at the trial.
76 I do not accept that the plaintiff was suffering such a significant degree of pain and restriction of movement when she was last examined by Dr Tisdall, Dr King, Mr Maartens and Mr Nye because none of them elicited that degree of restriction of movement when they examined the plaintiff.
77 Furthermore, the plaintiff is now undertaking manual work at the Tatura Hospital which must inevitably involve some degree of lifting, carrying and bending and stooping in the course of loading the trolleys with meals and then unloading them on delivery of the meals to patients. It is a job which the plaintiff is unable to undertake 70 hours per fortnight. I infer that by the absence of any evidence to the contrary that she is able to cope with the tasks involved in undertaking that job and has had no time off work.
78 One measure of the extent of the pain, the limitation of movement produced by the pain and the degree of disablement which the plaintiff presently endures is the medical treatment which she requires. At present the plaintiff has no medical treatment for her lower back. The clinical notes of Dr Tisdall demonstrate that she continues to see him for other medical conditions, so it is not as if there are no opportunities for the plaintiff to voice any continuing problems which she has with her lower back coincidental to treatment she is afforded by Dr Tisdall for those other medical conditions.
79 I accept that the plaintiff does not take prescription medication because the combination of that medication with the medication she takes for her the bipolar disorder may produce interference with her capacity to function in other ways.
80 The film shown to the plaintiff which was taken on 18 July 2009 is in conflict with the degree of disablement the plaintiff says she endures at present. The aspects of the film which are of significance are as follows:
ƒ between approximately 2.23 pm and approximately 4.13 pm, the plaintiff was seen walking briskly; standing in one position talking to her son for about 10 minutes; moving on the spot while talking to her son, other young men standing nearby and then her husband and another young woman; and briefly taking, holding and supporting a young child on her left hip at 2.29 pm. ƒ at approximately 2.43 pm, the plaintiff put her right foot forward and bent forward at about 45 degrees with her arms outstretched to retrieve a football which she then tossed towards a group of children. The movement was full, fluid and undertaken spontaneously. 81 Whilst I consider that a judge must be cautious in relying on film in the absence of medical practitioners observing the film and commenting on it, there are aspects of the film which, when in conflict with other evidence given by a witness, is capable of being used in the course of making a determination of the reliability of that witness.
82 I accept that the plaintiff was on a simple outing at a football game, however, she was able to walk briskly. She was able to stand and move freely and spontaneously. She did not baulk at taking, holding and supporting the young child on her left hip. She undertook an episode of bending in the way I have described, yet it is something which she described in her first affidavit and in her evidence at the trial as something which almost always causes her pain.[33]
[33] Transcript 84-85 and PCB 15
83 It is open to conclude from the plaintiff's evidence that if bending always produced pain, that she would avoid it and would only do so in circumstances where it could not be avoided, however, the film showed the plaintiff picking up a football when there was no reason for her to do that except that she must have been confident that undertaking the movements I have described were ones she could undertake confidently and comfortably.
84 Therefore, the consequences which I consider have flowed from the occurrence of the injury as follows: I accept that the plaintiff cannot return to her pre-injury work. I accept that she has some pain and limitation of movement. I accept that very arduous activities of a social, domestic and recreational kind are difficult for the plaintiff, and more particularly, I accept that the plaintiff could not water ski or bike ride, and I accept that undertaking domestic activities of a heavy nature like aspects of gardening and vacuuming would cause the plaintiff some difficulty. I accept that the plaintiff took steps to obtain an automatic car and clothes basket on wheels to avoid aggravating her lower back.
85 It is inherent in the findings which I have just referred to that I do not accept that the plaintiff has suffered pain and restriction of movement in her lower back of the magnitude she described to Mr O'Brien and Mr D’Urso and which she has deposed to in her affidavits. I should add that to describe the extent of her lower back pain as 8 out of 10 is to put it at the severe end which is inconsistent with the plaintiff's capacity to work and to engage in general social, domestic and recreational activities and also inconsistent with what I observed on the film.
86 I am required to give weight to all of the evidence in arriving at an ultimate conclusion in a proceeding of this kind,[34] and in weighing up the evidence I must not treat the plaintiff less favourably because she has not resigned herself to the injury.[35]
[34] Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104, per Neave JA, at paragraph 49; Forder v Hutchinson [2005] VSCA 281, per Nettle JA, at paragraph 42, and In Allsmanti Pty Ltd v Ernikiolis [2007] VSCA 17, per Ashley JA, at paragraphs 47-49, who observed that film and the plaintiff's presentation to examining medical practitioners was only part of the evidence in that case and did not disable the trial judge from considering all of the evidence going to the question of whether the plaintiff had suffered a serious injury. In Grace v Elmasri and Transport Accident Commission [2009] VSCA 111, at paragraph 136, the Court of Appeal overturned the decision of the trial judge in denying a plaintiff serious injury where the trial judge considered that the plaintiff's credit was seriously impugned, observing that the trial judge was required to weigh the whole of the evidence and to look at all of the factors raised in the application in an overall context
[35] Dwyer v Calco Timbers Pty Ltd (No 2), per Nettle JA, at paragraph 3
87 Although the plaintiff has made a very good recovery from the injury, that does not necessarily mean that the impairment she has suffered does not meet the statutory test.
88 Judging the impairment resulting from the injury is concerned with what the plaintiff has lost, but it is a legitimate approach to inform myself of the seriousness of consequences to the plaintiff by what she has retained.[36]
[36] Per Ashley JA, at paragraph 27
89 In the end, I am not satisfied that the symptoms the plaintiff described to Dr Tisdall, Dr King, Mr Maartens and Mr Nye, and the consequences which I accept have arisen from the impairment of the function of her lower back (referred to in paragraph 77 above) are approaching moderate at worst, and are not at least very considerable. I have reached the foregoing conclusion by making the relevant comparison which I am required to make which I have described in my discussion of the statutory scheme.
Conclusion
90 On the basis of the foregoing reasons, findings and conclusions, I order that the Originating Motion be dismissed.
91 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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