Salem v Victorian WorkCover Authority
[2014] VCC 1321
•20 August 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-03746
| DONIA SALEM | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 and 31 July 2014 | |
DATE OF JUDGMENT: | 20 August 2014 | |
CASE MAY BE CITED AS: | Salem v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1321 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – spinal impairment – aggravation – pain and suffering
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171; Petkovski v Galletti [1994] 1 VR 436; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Ebejer v Hobsons Bay City Council & Anor [2014] VCC 795; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S J Carson | Maurice Blackburn Pty Ltd |
| For the Defendant | Ms R L Kaye | Minter Ellison |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of her employment with the defendant on or about 2 April 2008 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning - “(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the spine.
5 Apart from being a serious injury, the injury must have arisen on or after October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities.
8 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
9 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
10 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
11 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1] (2005) 14 VR 622
[2] (2006) 14 VR 602
12 The plaintiff relied upon two affidavits and gave viva voce evidence. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
13 The plaintiff is nearly forty, having been born in August 1974. She was born in Victoria and attended school to Year 12. Thereafter, she completed a Bachelor of Engineering and a Diploma of Education. She mainly worked in secondary school teaching.
14 The plaintiff suffered from some back pain from time to time in the late 1980s. She had a fall at school and her general practitioner’s clinical records showed she attended, complaining of back pain. She was given a couple of days off school at the time.
15 In the late 1990s, the plaintiff had a bout of back pain and pain going down into her legs. This was a nasty episode of pain, although she felt that she got over it quite quickly and did not feel it was an ongoing problem for her.
16 The plaintiff has also been made aware that there were some x-rays taken of her back in 2006. She believed this must have been as a result of reporting back pain, although she did not have a clear, specific recollection. She could recall that she had chiropractic treatment for her back from time to time over the years.
17 In evidence-in-chief, the plaintiff described how following a 1999 transport accident she had a lot of pain in her right side. It was just on the hip where the seatbelt was located.[3]
[3]Transcript (“T”)10
18 In relation to that injury, the plaintiff had massages and physiotherapy but nothing that was going to stop her from doing “everyday stuff”. She was a student and did not miss any classes.[4]
[4]T11
19 The plaintiff was cross-examined at length as to her back condition prior to the said date.
20 The plaintiff confirmed her description of her pre accident condition as set out in her affidavit.[5] She could not remember attending the Western General Emergency in May 1998 but if that had been noted, she agreed that would have happened. She agreed she had a history of back pain but it never stopped her from doing anything. She agreed as at 1998, she had had a longstanding history of back pain and that had been going on probably since she was at school.[6]
[5]T16
[6]T17
21 The plaintiff attended university from 1996 to 1999. During that time, she had had some problems with her right side and had investigations including an enema and a colonoscopy. She was told there was a problem with the soleus muscle.[7]
[7]T18
22 The plaintiff could recall a few visits to Western General physiotherapy in 1999. She agreed that her complaint at that time was back pain specifically down her leg. She did not remember attending neurology at Western General.[8]
[8]T19
23 The plaintiff agreed that in 1999 her pain was aggravated by walking, standing and sitting and that she had had ongoing pain on and off throughout university but she was managing, she was coping and she was still physically active. She agreed at that time she had numbness in the toes and soles of her right foot and also some left lower limb symptoms.[9]
[9]T21
24 The plaintiff disagreed she had back pain from the 1999 accident. She just had pain on the right from the seatbelt.[10] When shown her TAC claim form which included pain in the back and down the right leg in the list of her injuries, the plaintiff accepted that that would have been the case.[11]
[10]T22
[11]T23
25 The plaintiff agreed with a TAC file note in August 1999 that her low back was still her main problem but she pointed it was also then noted that her condition had returned to its pre aggravation state.[12]
[12]T25
26 The plaintiff agreed she had been diagnosed with Raynaud’s phenomenon in her late teens, a condition which involved sensitivity at the extremities but that problem seemed to go after she had had her tonsils removed.[13]
[13]T25
27 The plaintiff initially said she had been to Hume Osteopath Clinic (“Hume”) a few times from January 2002. She had been pregnant around that time. She then said she had gone there “quite a few times” and she agreed with whatever was set out in the notes. If the records set out that she had had pain in the lower back going down into her buttock and legs, that was the type of pain she had been having during university.[14]
[14]T26
28 The plaintiff agreed it was correct if the Hume notes in 2006 showed ten visits for similar complaints; in 2007 from February to December, fourteen visits and a couple of visits in 2008 before the incident.[15]
[15]T36
29 The last entry before the incident was on 17 March 2008 at which time the plaintiff agreed there was a discussion about Karate and lumbar spine pain into the left and right buttock with a dull ache.[16]
[16]T30
30 The plaintiff confirmed that on 21 April 2008 when she attended Hume she advised of the problems she had playing basketball at school when she collapsed and had to be taken to the staff room.[17]
[17]T41
31 The plaintiff agreed the vast amount of the attendances at Hume Osteo seemed to be for her back, buttock and leg pain. When asked why she had not mentioned this in her affidavit, the plaintiff said in 2008 she was doing PE at school and had been working since 2007. She accepted through 2006 to the beginning of 2008 she was having back pain.[18]
[18]T41
32 The plaintiff also saw a chiropractor for a few sessions in Camperdown in 2005.
33 In a form, completed when she started seeing Chiro Centra Osteopathic in 2006, the plaintiff detailed her complaints in order of severity as spinal curvature causing hunchback and extreme low back pain. She wrote that the duration of those conditions was “too long” and someone else had written on the form - “most of her life”.[19] In a diagram, the plaintiff identified lower back pain radiating into the right buttock.[20]
[19]T43
[20]T43
34 In 2006, the plaintiff was also sent for pilates with Mr Dibb in Essendon, with whom she had a few sessions.
35 In her Claim Form dated 27 May 2008 relating to the incident, the plaintiff denied any previous condition or claim but explained she thought that question related only to previous claims. She was wrong in stating she did not have any previous condition.[21]
[21]T47
36 The plaintiff agreed that from the time she was a student until the present, she had a level of back pain radiating down into her buttocks and legs. At times, it flared up and at times, it was less serious.[22] However, in re-examination she described how she had not felt severe back pain before the said date.[23]
[22]T89
[23]T118
37 The plaintiff started work with Ilim College (“the employer”) in 2007, employed as a science and maths teacher. In 2008, she continued teaching science and also taught other subjects, including physical education and primary Arabic. It was a job she enjoyed and she believed she was well regarded as a teacher.
38 On the said date, after a couple of hours engaged in putting some physical education equipment into a store room, the plaintiff started to notice an increase in low back pain which eventually built up to a quite strong level (“the incident”). She rested over the next few days at home and the pain initially eased to some extent.
39 However, on getting back to carrying out her regular duties during the term, the plaintiff found the pain was worsening. She was taking painkillers, but they were really only masking her problem.
40 On 18 April 2008, the plaintiff was taking a Year 9 physical education class during which she felt that her pain increased significantly in her lower back and around the waist area. It also went down into both legs. The pain was severe and she had to rest in the staff room.
41 For the next few days, the pain did not settle and seemed to be getting worse. The plaintiff attended her general practitioner, Dr Habib, on 28 May, who referred her for spinal x-rays, which the plaintiff understood indicated she had injured some discs in her low back.
42 In early 2008, the plaintiff was referred to orthopaedic surgeon, Mr Gul Keng. He arranged an MRI scan later that month which, she understood, confirmed disc damage. The plaintiff commenced anti-inflammatories on his advice.
43 The plaintiff was off work all Term 3. She returned in early October in Term 4 as part of her return to work plan. She struggled and her hours had to be reduced. She worked half time with some assistance. She then gradually built up her hours, although she did not get back to full time. During that time, the plaintiff was having regular chiropractic treatment with Dr Aldenhoven and also some physiotherapy.
44 On her return to work during the 2008 year, the plaintiff worked a reduced load although the subjects were crammed into the same day causing her difficulty.
45 On her return to work at the start of 2009, the plaintiff was offered physical education teaching duties only, although she again had to work with an assistant in this role. She worked half hours, generally from 8.30am to 1.15pm.
46 The plaintiff’s assistant did more of the demanding jobs. The plaintiff had limitations on twisting actions and activities putting strain on her back, and also had a lifting restriction of ten kilograms. Her contract was due to end at the end of 2009.
47 By letter dated 7 December 2009, the employer’s principal advised the plaintiff her contract was not going to be renewed, confirming it was not because of her medical condition, but because she had behaved in an unprofessional and inappropriate manner.
48 The plaintiff was advised the college records indicated that she had scared students with a ruler. It was noted that was inappropriate and that had caused the college and parents distress. It was noted that was just one incident and under no circumstances were the plaintiff’s injuries an issue of topic as the employer believed she was very successfully rehabilitated for work.
49 Ultimately, the plaintiff got a modified reference which did not set out anything about her work performance, simply setting out the subjects she taught and during what period.
50 The plaintiff denied her contract was not renewed at the end of 2009 because of the ruler incident although she was told this was the case. She was also told there were other reasons and she was not needed any more.[24]
[24]T53
51 During 2009, the plaintiff continued to have chiropractic treatment which reduced from three times a week to once a week. She agreed there had been some improvement in 2010 as her chiropractor noted.[25]
[25]T88
52 The plaintiff was off work for some time, but eventually picked up some work with Victorian Arabic Social Services in late 2011, on a fixed contract which ended in June 2012. She worked a 15-hour week over three days, working five hours each day on administrative and mainly desk-based duties and speaking to people.
53 The plaintiff found her back worsened during that period. Sitting at the desk became increasingly painful as time passed and she was coming home from a shift in significantly increased pain.
54 From mid 2011 to 2012, the plaintiff worked in that role having done her Master’s degree from 2010 to 2012. She did that degree with the aim of working as an education consultant with a focus on children with learning disabilities because of her inability to do practical teaching.[26]
[26]T78
55 In late 2012, the plaintiff obtained the carer’s pension to look after her autistic daughter. This was pretty much a full time job.[27]
[27]T57
56 When she swore her first affidavit in March 2013, the plaintiff had not worked since June 2012 and she was worried about what sort of work she could do on a regular basis. She had difficulty coping with very light duties.
57 The plaintiff had trouble coping with keeping up with the housework and raising her children, and she had to break up tasks into smaller jobs and then rest. She also got a lot of help from her mother. The plaintiff’s level of activity depended on her pain.
58 The plaintiff then experienced low back pain all the time every day, although she was not working and was largely able to avoid movements that flared up the pain. Her pain extended into her buttocks where she often felt numbness. It was only a question of how strong the pain would be from time to time.
59 The plaintiff’s back also locked up on her frequently. She was afraid to move it as she knew she would experience very sharp pain which happened after she held a static position for a period. Therefore, she had to vary her posture throughout the day with sitting, standing and lying down.
60 Despite being careful with her back, the plaintiff had frequent episodes of very sharp or severe low back pain, at which times there was not much she could do but lie down. She had times at work when she had to be helped to the staff room.
61 The plaintiff had also been experiencing pain in the soles of her feet in more recent times. She tended to wear runners as they were more comfortable. She was not sure whether or not that situation related to her back condition.
62 The plaintiff’s sleep was not good. She found it hard to get to sleep because of pain and it also woke her up. She found sleeping on a harder surface was best and she now slept on a futon type bed on the floor.
63 The plaintiff had also developed a significant problem with an urgency to urinate that happened frequently and was embarrassing.
64 The plaintiff generally tried to put up with the pain rather than relying on painkillers. However, she still occasionally took Nurofen or similar tablets when the pain got too much. She also took Glucosamine and Omega 3 oil tablets. She continued to have chiropractic treatment once a week and attended her general practitioner, Dr Habib, if the pain was really bad and she needed pain medication prescriptions.
65 The plaintiff had also been to a few community-based groups which taught her coping strategies to help deal with her back pain and the impact it had on her life.
66 Previously, the plaintiff was a very active and fit person. She trained in martial arts and did some instruction and competition. After the incident, she took some time off from training. She had tried to get back into this field with limited success but had realised she would never get back to the level that she was at or be able to compete. Most of the time, she was on the sidelines with an ice pack on her back.
67 The plaintiff had intended to become more involved in instructing and to eventually open her own school, but it was now clear that that would never happen as her back was just not up to it.
68 In her further affidavit sworn in July 2014, the plaintiff described how her condition and/or symptoms have worsened since her earlier affidavit.
69 The plaintiff has pain in both hips and across her lower back, which is always present at a base level and will flare up to a severe level frequently. She finds the pain also slowly builds during the day at work, so that she comes home in significant pain most evenings. That makes things at home difficult. She then has to further avoid aggravating the pain and usually does not do much at night. In fact, many simple tasks around the house are simply left to be done for weeks at a time and that upsets the plaintiff greatly.
70 The plaintiff agreed there was no mention of any leg problems in her affidavits, but said that did not mean they were not there. She denied she told Dr Horsley in 2012 that there was no leg pain.[28]
[28]T49
71 The plaintiff’s sleep is still not good. She also experiences some numbness in the left arm when lying on her back. Also, there is often a sense of muscle cramping in her calf muscles or in her leg. She also feels a sense of the muscles twitching in her legs and sometimes in her shoulders.
72 A major blow to the plaintiff has been the loss of her martial arts. She tried to hang on for as long as she could and was training others as a way of staying involved. Doing so was painful, but the sport was something she was not willing to let go. In late 2013, the plaintiff got to the point where the pain was just too much and she had to, very reluctantly, give the training away. This loss continues to upset her greatly.
73 The plaintiff explained Karate is not as intense as people think and it is not as competitive. After her injury, she wanted to keep going and she was taking a lot of painkillers. She had been doing martial arts on and off from the age of fifteen and after a break having had her children, she recommenced karate.
74 When they lived in Camperdown, the plaintiff and her husband ran their own club where he was the instructor and she was a brown belt.
75 The plaintiff did a short course to be nationally accredited as a coach and they shared training of the classes. In 2005, the plaintiff came to Melbourne and joined a club at Coburg. She was then still a brown belt and an accredited coach. She still had to be supervised by a black belt and could not operate a club on her own. That was why she wanted a black belt; and that was what she was training for. Her children also got involved in martial arts at this time.
76 After the injury, the plaintiff started to take painkillers. She wanted to keep going with her training and she was trying to hide her injury from the instructor but it became obvious to him and he told her she had become very sloppy. She then told him she was taking a lot of painkillers.
77 The plaintiff actually stopped karate for about a year and a half, maybe two years. She then tried to come back to it but never really could and she had a private discussion with the instructor after which the plaintiff and her family ended up leaving the club.
78 The plaintiff then tried to get into what other clubs would take her but those clubs were “a little too far off” and the plan just did not work out for a number of personal reasons.[29]
[29]T64
79 The plaintiff then looked into a different style Taekwondo which started at the end of 2009. It was a bit more physical. The plaintiff explained Taekwondo was a whole body thing but then said it was mainly leg work and there is not much arm work in it. She used the ice pack a lot on her back and left out the exercises she was unable to do.[30]
[30]T64
80 When the plaintiff started Taekwondo, she spoke to the instructor and asked if training could be modified because of her back issues. Further, the plaintiff’s chiropractor had advised her to do this activity in a limited way.
81 The plaintiff used an icepack a lot of the time and often she would just leave out various Taekwondo exercises she could not do. She stopped it at the end of last year because it became too much. Maybe earlier this year was when she really started to rely more on the walking stick and she had not been able to go back to martial arts since.[31]
[31]T65
82 Prior to ceasing Taekwondo she was not doing any high impact.[32] She did two 45-minute classes per week. She was also learning to be a teacher. She had only competed once and that was only against one other competitor.[33]
[32]T67
[33]T68
83 Whilst working for the employer, prior to the incident, the plaintiff undertook a program of swimming and first aid. She enjoyed swimming and doing laps before her injury and she used to love going to the gym on a periodic basis.[34] She was a member on and off at Broadmeadows gym and had attended there after having her children.[35]
[34]T70
[35]T72
84 When the plaintiff came back to Melbourne from Camperdown after 2005 she tried to make gym a regular thing and was working towards it. She was doing mostly treadmill, bike and some weights. She had her core assessed and was working on increasing its strength.[36]
[36]T120
85 The plaintiff continues to have chiropractic treatment and massage, as she feels it helps with her pain. Generally, these treatments are weekly and give her limited relief. She usually sees Dr Habib every month, although it now seems there is not much that can be done by doctors.
86 On a more positive note, once she became more settled, the plaintiff has managed to obtain work with an employment agency, Campbell Page, where she started in May 2013, initially working 15 hours per week and eventually working 32 hours, putting up with the extra hours as she is able to work locally.[37] She generally works from 9.00am to 4.00pm, Monday to Friday, doing administrative type work.
[37]T74
87 If the plaintiff is to keep her pain levels under control at work, she has to keep varying her posture. Fortunately, she is able to sit and stand to try to accommodate the pain, and she is lucky to have an understanding employer who makes allowances for her.
88 The plaintiff is very worried about the future and is hanging on as matters stand, but it is not at all easy. She feels her injury has robbed her and her children of a normal life in many respects, and that is very hard to cope with.
89 The plaintiff was involved as a project officer in an Under 16 Glenroy College demonstration project for sixteen weeks from July to November 2013. This occurred after the plaintiff met the principal when she took her son to look at the school last year and he asked her to become involved in a project with children at the school who had difficulties.
90 The program ran from 11.00am to 3.00pm on a Friday. The plaintiff was able to cope as she did not have to carry or do anything; it was just sitting and listening to children and she enjoyed it. A trained social worker did most of the duties set out on the written program.[38]
[38]T75
91 In 2009, the plaintiff started her own business, Inspired Empowered, to offer seminars and workshops to help people particularly with learning difficulties. In reality, the only work she got out of it was the Glenroy project and she did a bit of tutoring here and there. The business never really took off.[39]
[39]T59
92 Also now, the plaintiff’s main job is at Campbell Page and she has little time to do any extra work on her business. Whilst at Arabic Services, she did some networking for the business and went to a business expo.
93 In the last few years the plaintiff has been involved in the Muslim Women’s Council and was a member of the Victorian Police Reference Committee for a couple of years. In 2012, she did some voluntary work at Meadows Primary School.[40]
[40]T77
94 The plaintiff denied she had been horse riding or engaged in other strenuous activities since the incident. She did things with her children such as going to Collingwood Children’s Farm, having a holiday in Sydney and going to the tennis.[41]
[41]T80
95 The plaintiff has done some work as an Avon lady on and off over the years but at present her only customer is really her mother.[42]
[42]T121
96 The plaintiff tries to do household activities such as cooking and washing. She tries to keep things to a minimum with housework. If she does it all in the one day she will be out of it for the next few days and unable to do anything. Pain would spread beyond her lower back but it would spread more so. When this occurred, her kids would even be more bored and not able to go out over the weekend.
97 The plaintiff takes over the counter Nurofen from time to time and she also uses an icepack. She still sees the chiropractor and also her general practitioner. She has been to a self-help group.
98 The plaintiff has only seen one specialist, Mr Keng, in 2008, and has not been referred to anyone else or asked for a referral after his retirement in that year.[43]
[43]T87
99 Just about everywhere the plaintiff walks, she uses a Nordic stick. If she walks for longer than a few steps, she uses it pretty much all of the time. Although she does not like the idea of it, she has to have it.
100 The plaintiff agreed she definitely takes the stick if she has to go and do a bit of shopping. Sometimes she can walk fine but “just out of the blue” she will get a shock from her hip radiating up her back and it will be so sharp she cannot stand on her leg. She has to take a stick as there is nowhere to hold, otherwise she could fall to the floor.[44] The plaintiff has collapsed a few times. She does not use the stick at home.
[44]T92
101 Sometimes if the plaintiff goes out with her children, if she has not got her stick, she leans on them. If she knew she was going out and about for an hour or two, she agreed she would definitely make sure she had a stick. It is in the car all the time.[45]
[45]T93
102 The plaintiff agreed she would walk around and browse and buy things at the shop. If she is on her feet for an extended period, she gets pain across her lower back and down into her bottom on both sides. Sometimes she pushes herself because she had the children and other times she tells them they have to go home as she is too tired and they miss out on a fair bit.[46]
[46]T94
103 Most of the time when she is out and about with them, the plaintiff will have a stick with her but she could have left it in the car on an occasion or two. She does try to make sure she has some way of relieving her back pain.[47]
[47]T94
104 The plaintiff could not remember any occasion in the last month or so when she had been out and about for an extended period when she had forgotten her stick.
105 The plaintiff also uses the stick at work. There have been some adjustments made to the workplace to help her cope with her back problem. The plaintiff’s current employer has provided her with a trolley for her to move various items around.
106 The plaintiff has a lumbar support in the car and one was purchased for at work. When keyboarding, the plaintiff sometimes puts a cardboard box under the computer and stands by her desk to do her work.[48]
[48]T101
107 Exhibit 1 was surveillance film taken on 3 and 15 July 2014 for 7 minutes 8 seconds; Exhibit 2 was film taken on 24 July 2014 for 2 minutes 39 seconds and Exhibit 3 was film taken on 27 July 2014 for 23 minutes 57 seconds.
108 The plaintiff agreed she was shown in the film on 27 July 2014 out shopping from 12.30pm for two hours or so at three different locations, initially at Broadmeadows Homemaker Centre. Her son was shown supporting her. He was not just being affectionate. He was more concerned with her walking.[49]
[49]T103
109 After Bunnings they went to the Essential Stuff, a $2 dollar shop in Campbellfield Plaza. They later went to a pet shop and Bunnings in Coburg.
110 The plaintiff thought she walked like a duck in the second video at Bunnings.[50] Whilst she agreed she was not shown at any time with a stick, she did get rest in her car. That was a relief for her and at the end of the shopping, she told her children she was very sore and she was going home. She had to go out because Sunday was the last day of fasting and she had not bought gifts for the children.[51]
[50]T105
[51]T106
111 The plaintiff took Monday off work which was supposed to be a day of celebration, however she did not go to the Mosque.
112 Whilst it was suggested to the plaintiff she did not show discomfort on the film, she said she still had a lot of pain. She was not someone who was going to make a “big hoo-hah” of how much pain she was in and she tended to keep to herself. She was not shown walking normally compared to how she almost used to power walk. She now walks at a very slow pace, taking very slow steps and she looks like an old lady. She was upset looking at herself.[52]
[52]T107
113 The plaintiff noticed she was limping on her right leg, whereas before her injury, she could walk properly.[53]
[53]T107
Treaters
114 The plaintiff presented at the Western General Hospital Emergency Department on 22 April 1998 with a long history of back pain with recent exacerbation. She felt shooting pain down the back of the leg occasionally and had a sensation of heaviness in her lumbar region. Swimming was suggested.
115 Dr Habib first examined the plaintiff on 28 May 2008 when she told him of the incident. She was then complaining of radiation of pain into the leg.
116 Dr Habib’s original diagnosis was of back pain of “? discogenic origin”. He had seen the plaintiff with similar complaints of back pain in 1998, 1999 and 2001, and he noted the back pain had been troubling the plaintiff for some time.
117 Dr Habib thought the plaintiff was then fit for light duties.
118 As of October 2011, Dr Habib reported that the plaintiff was taking painkillers, and had told him that she was feeling much better. Considering her age, Dr Habib thought the prognosis was good.
119 Dr Habib reported again in July 2012.
120 In the plaintiff’s past history, Dr Habib noted that from 1987 to 1990, there was a history of back pain following a fall and the plaintiff slipped on the school ground. She was complaining of back pain, and x-rays were taken which were essentially normal. She was prescribed Voltaren and given two weeks off work. He noted the plaintiff was a young girl and would not expect any major problems. It was more of a fibro or muscular problem following the fall and she was alright for a while.
121 There was an incident of severe back pain in 1998 of a shooting nature radiating down the plaintiff’s legs and she was referred to the Western General Hospital, Emergency Department.
122 Dr Habib noted the attendances after the incident when the pain was quite severe.
123 As of mid-2012, Dr Habib noted the plaintiff was undertaking some post-graduate study and education. He thought, considering her age, he would think she should go for surgery, such as a laminectomy; however, he was not an orthopaedic surgeon.
124 On 13 March 2014, Dr Habib reported the plaintiff still complained of back pain and came to see him the day before with a walking stick. She wanted an ergonomic chair, as sitting gave rise to pain and difficulty in getting up. He then thought she should try working 20 to 25 hours a week to see how she went.
125 In a report later that month, Dr Habib noted the plaintiff was already working 32 hours a week. He thought she needed to have manipulation by a chiropractor, physiotherapy and hydrotherapy. He noted she continued to take medication. He also noted she would be having another MRI scan in the next week to rule out any nerve impingement giving rise to pain and numbness.
126 In his June 2014 report, Dr Habib suggested he had nothing further to offer.
127 Dr Habib considered the plaintiff had multi-level degenerative disease of the lumbar spine with lumbar scoliosis. He had seen her many times but noted in his honest opinion, she was capable of resuming her duties without lifting and excessive bending. In the surgery he saw her walking with a normal gait but she complained of pain.
128 Dr Habib thought the plaintiff should be given a chance to settle down at work. In his view, once the mind is focussed on work, other problems, including depression and anxiety would take it by itself. He had nothing to offer in terms of an expert prognosis.
129 Mr Keng, orthopaedic surgeon, reported to Dr Habib in August 2008, thanking him for referring the plaintiff following the incident. The plaintiff complained to him of a deteriorating condition and pain in the lower part of the back.
130 Mr Keng noted x-rays were done which revealed degenerative disc bulge at L4-S1, L4-5 and L3-4 and a CT scan had revealed a disc protrusion. He noted the plaintiff’s back was painful and the intensity of the pain had increased. She had had treatment but it had not helped ease the pain. He thought her condition was gradually getting worse, and advised a regime of exercises and he had given her a course of steroid injections.
131 Since September 2008, the plaintiff has attended chiropractor David Aldenhoven at Chirocentre.
132 Dr Aldenhoven thought the plaintiff has lumbar disc protrusions with associated lumbar joint dysfunction and myospasm. She also has cervical and thoracic joint dysfunction and joint disc afferentation associated with the lumbar disc protrusion and scoliosis. He thought that was consistent to injury to the lumbar spine and associated compensatory changes.
133 From her history and the presence of scoliosis, Dr Aldenhoven thought the plaintiff significantly aggravated and contributed to existing lumbar joint dysfunction with her alleged lifting injury. He noted the absence of disc narrowing and degenerative changes in the 2006 report would sustain that conclusion.
134 Dr Aldenhoven did not think the plaintiff was capable of resuming her pre-existing job but was capable of certainly holding work which did not involve lifting or prolonged bending activities. Most desk roles would be suitable but as with all disc injuries, prolonged sitting was often not tolerated. He thought regular breaks or limits on the amount of sitting would have to be factored in.
135 Dr Aldenhoven considered the current treatment undertaken was vital to enable the plaintiff to continue prolonged deskwork. He noted the increasing hours at the desk would have a detrimental effect on her condition. Treatment also helped to maintain function and decrease pain levels. He thought the plaintiff should also be involved in an active strengthening and flexibility routine for the maintenance of her spinal health and to that end, a gym program or personal trainer would be of assistance.
Investigations
136 The plaintiff had a lumbosacral spine and thoracic spine x-ray in December 1990. It was reported there was a mild scoliosis concave to the left. There were no significant bony abnormalities demonstrated. The disc spaces, facets and S1 joints appeared well preserved.
137 Dr Habib organised a lumbosacral x-ray on 27 May 1998. It was reported there was a mild scoliosis concave to the left with slight vertebral rotation. The disc spaces were not narrow and the underlying vertebral bodies and appendages were within normal limits.
138 Dr Intveld organised an MRI scan of the thoracic and lumbar spine in March 1999. There was neural compressive lesion demonstrated and there multi-level annular bulges reported in the lumbar spine.
139 In the thoracic spine, there was no cord signal abnormality. There was a broad-based annular bulge at T7-8 which indented the anterior thecal sac and caused normal flattening of the anterior cord without associated signal abnormality.
140 In February 2006, Dr Habib organised an x-ray of the lumbosacral spine. It was a normal study and it was noted there was bilateral insignificant osteitis condensans ilii.
141 Dr Habib organised an x-ray of the thoracic and lumbar spine in May 2008.
142 In the lumbar spine there was sacralisation of L5 present. There was normal preservation of vertebral body height and disc height, however, present throughout the lumbar spine. The pars region appeared to be intact and the S1 joints appeared to be patent.
143 In the thoracic spine, there was a mild scoliosis convex to the left. Despite that, there was no evidence of significant loss of vertebral body height throughout the thoracic spine. Minimal degenerative change was present in the mid thoracic spine and no paravertebral mass lesion was present.
144 Dr Habib organised a CT scan of the lumbosacral spine in June 2008. It was reported there was asymmetrical disc bulge/small broad-based protrusion present on the right at L5-S1 with mild disc bulging at L4-5 and L3-4.
145 Dr Russo organised a CT scan of the thoracolumbar spine in July 2008.
146 It was reported alignment was satisfactory with the normal kyphosis and lumbar lordosis. There was a little disc narrowing at T7-8-9, which was associated with marginal osteophyte formation around end plates, a little disc narrowing and associated intradiscal gas. All pedicles were intact and no paraspinal mass was seen, and there was no wedge compression. There was no disc protrusion.
147 Mr Keng organised an MRI scan of the lumbosacral spine in July 2008. It was reported there were changes of early intervertebral disc degeneration with multilevel mild disc bulging but no significant central canal or neural exit foramina compromise. There was contact of several budding and exiting nerves but no displacement nor compression.
148 Dr Aldenhoven organised further investigations in April 2010. It was reported there was some mild thoracic scoliosis concave to the right side. The normal thoracic kyphosis was maintained and there were mild, multi-level degenerative changes.
149 In the lumbar spine there was mild lumbar scoliosis, concave to the left, and a normal lumbar lordosis was maintained. There were mild degenerative changes at L5-S1 with mild loss of disc space height in marginal osteophytes. There was mild facet hypertrophy at L5-S1 causing mild neural exit foraminal stenosis and it was noted that would be better assessed using a CT or MRI scan.
150 Dr Habib organised a lumbar x-ray in March 2011.
151 It was reported there was mild right thoracic lumbosacral curvature with minimal rotation, convex to the right, centred at L3. There was normal disc space height and no significant vertebral and end plate changes and no evidence of facet joint arthropathy. No pars defects were identified, but regions were not optimally seen at L5-S1. There was no joint abnormality and no paravertebral abnormality.
152 Dr Habib organised a CT scan of the lumbar spine in April 2014. It was reported there was very small localised disc protrusion seen centrally at the level of L3-4 measuring 3 by 2 millimetres only. It was indenting the anterior theca. It was noted it may be lying in close association with the L4 nerve roots prior to their exit in the segment below.
Medico-legal examiners
153 The plaintiff was initially examined by occupational therapist, Dr Horsley, in October 2012, and more recently in March 2014.
154 On the first examination, Dr Horsley reported the plaintiff had no leg pain.[54]
[54]The plaintiff denied this in cross-examination – See T49
155 Dr Horsley noted there was no specific fear avoidance behaviour. There was a good range of lumbar movement. There was limited straight leg raising on the left. The plaintiff’s gait was normal.
156 Dr Horsley diagnosed mechanical back pain with no clinical radicular component.
157 Dr Horsley then thought the plaintiff had reached a plateau of effectiveness of chiropractic treatment. She noted the plaintiff was benefitting from doing Taekwondo twice a week and that it was commendable the plaintiff was doing further study.
158 Dr Horsley thought the plaintiff would benefit from a structured physical program, with an emphasis on core stabilisation and some advice and guidance about pain management and strategy.
159 Dr Horsley considered the plaintiff had a sitting tolerance of about thirty minutes; static standing, dynamic standing and walking tolerance on a flat surface, self-paced of twenty minutes and a driving tolerance of thirty minutes.
160 Dr Horsley thought the plaintiff was permanently unfit for physical education roles and that her current training would open up more flexible roles for her.
161 On re-examination in March 2014, Dr Horsley noted earlier radiology from the 1990s and previous episodes of aches and pains.
162 The plaintiff then complained of ongoing bilateral back pain and bilateral hip pain. She could experience an electric shock-like discomfort at times, radiating from one hip or the other, which could radiate up the thoracic spine and down the leg.
163 Examination of the lumbar spine revealed no specific significant trigger points and there was no spasm. There was some limitation of movement and the peripheral nervous system examination was again normal. The plaintiff’s gait was slow but not antalgic.
164 Dr Horsley confirmed her earlier diagnosis. She believed the symptoms were likely to persist, and confirmed that the plaintiff required work restrictions such as avoiding repetitive overreaching, repetitive pushing and pulling, truncal rotation, lifting items greater than 10 to 12 kilograms except occasionally, and lifting items up to eight kilograms on a repetitive basis.
165 In her view, the plaintiff also required good manual handling techniques, avoidance of static posture and avoidance of repetitive bending. Dr Horsley noted the plaintiff’s functional tolerances had reduced even further since the previous assessment with reduced static tolerance and walking tolerance.
166 Dr Horsley thought the plaintiff presented as a person in need of assistance and that she would benefit from referral to a psychologist for some counselling from the cognitive behavioural perspective and involvement in a pain management program to assist her with education about the nature of her back and her structured physical condition. She thought it was appropriate that the plaintiff was working thirty-two hours a week.
167 Mr King, orthopaedic surgeon, examined the plaintiff in March 2014.
168 The plaintiff told him of backache in her teenage years and early twenties. Overall, prior to the incident, she felt her health was very good, the bouts of backache were mild and intermittent and did not seem to have interfered with her capacity either to carry out a teaching load or even teach martial arts.
169 The plaintiff complained to Mr King of constant low back pain, fluctuating in intensity, and constant generalised aching pain in both thighs and calves of moderate severity and aggravated by exertion.
170 On examination, there was a moderate limitation of low back movements by pain and spasm - approximately half the normal range of movements. There was reluctance to straight leg raise with limitation to 40 degrees. There were no neurological signs.
171 Mr King noted the plaintiff had continued to be disabled and was obviously strongly motivated, having returned to the workforce with two small children to support.
172 On the basis of the clear history, it seemed reasonable to him to assume that apart from an occasional mild backache from early teenage years, the plaintiff had no significant health problems until the incident.
173 Mr King thought the plaintiff appeared to have sustained injuries to lumbar discs and associated ligamentous structures because of the incident and she had been chronically disabled by low back pain and sciatic symptoms ever since. He thought the pain in the plaintiff’s thighs seemed to be discogenic rather than due to radiculopathy.
174 Overall, he thought, from the investigations, the plaintiff appeared to have a mild thoracolumbar scoliosis of longstanding dating, plus some sclerosis in the region of both sacroiliac joints.
175 On the information provided, Mr King thought it reasonable to assume the plaintiff suffered a significant injury to her back in the incident, with a flare up three weeks later. He thought it reasonable to assume she is chronically disabled to a moderately severe degree by low back pain and bilateral discogenic pain radiating into both hips and he thought it reasonable to accept she would find it difficult to manage heavy teaching.
176 Mr King thought, however, the plaintiff should be able to manage her present office job providing there was no bending, lifting or straining. She would probably be able to do restricted teaching, but certainly she could not permanently go back to a heavy teaching load or heavy work for the foreseeable future, and she would be left with permanent restriction on how much work she could do as a teacher despite her high qualifications.
177 Mr King could find no evidence of exaggeration and no evidence of psychological overlay. He thought the plaintiff’s condition seemed to have stabilised. His overall impression was that she was in considerable need of home help, considering she had a full-time job and was looking after two children.
178 Mr King thought the prognosis was poor, with stabilisation at the present level of moderate to severe disability. Future medical treatment in his view was symptomatic only.
179 Dr Paul Kornan, psychiatrist, examined the plaintiff in April 2014.
180 Dr Kornan diagnosed a Major Depressive Disorder and Adjustment Disorder with Anxiety. He thought the plaintiff’s psychiatric ill health condition was noticeable and of chronic, moderate intensity. He noted she tended to use denial mechanisms and he suspected she understood her psychiatric difficulties.
181 Dr Kornan thought, from a psychiatric point of view, the plaintiff’s prognosis seemed to be somewhat unfavourable. He gained the impression she was likely to be left with some permanent anxiety and depression relating to physical injuries and would remain sad and frustrated with her ongoing pain and discomfort. He considered commencing anti-depressants in a sustained way was likely to be helpful. He thought the plaintiff would benefit from psychological treatment for about twenty sessions.
182 However, Dr Kornan thought the permanent restrictions were due to physical factors which were outside his expertise. From a psychiatric viewpoint alone, he believed the plaintiff remained with some ongoing noticeable depression and she would be limited to administrative duties and not able to perform teaching duties.
Claim documentation
183 The plaintiff lodged a claim for compensation relating to the incident on 27 May 2008. She answered “No” to the question “Had you previously had another injury, condition or personal injury claim that related to this injury?”
184 The plaintiff lodged a claim for impairment benefits to her back and psychological condition in November 2011. By letter dated 25 July 2012, liability was accepted for the plaintiff’s lower back claim pursuant to s98(c).
The Defendant’s medical evidence
185 Dr Matkovic, neurologist, from Western General Hospital, wrote to Dr Habib in April 1999, noting the plaintiff had recently attended the Neurology Department at the Western and advising that he would no doubt be aware that she had a two-year history of lower back and lower limb, especially right-sided, pain.
186 Dr Matkovic did not think there was any neurological abnormality and that the plaintiff would not benefit from any surgery. Conservative treatment was appropriate.
187 Dr Linton, from Western General Hospital, wrote to TAC in September 1999. He noted physiotherapy attendances from April 1999 with an improvement in back pain.
188 Notes from Hume Osteopathic Clinic set out details of attendances from January 2002 until September 2008.
189 Dina Culcasi, chiropractor from Hume, reported in February 2002 that the plaintiff presented complaining of pain in her mid thoracic area and pain in her right buttock with radiation to her posterior lateral thigh. She also complained of her leg collapsing for no apparent reason on several occasions. She complained of coccyx pain that she described as feeling inflamed on several occasions and she felt her weakness symptoms were worsening.
190 In June 2006, Dr Cross from Hume wrote to Pilate’s treater, Mr Dibb, thanking him for seeing the plaintiff who had presented to Hume intermittently since 2002.
191 Dr Cross noted the plaintiff’s last acute episode of pain was about three months ago, when she rose from a chair and felt severe pain in her lower back. She was later hospitalised for two days and prescribed anti-inflammatories.
Medico-legal examiners
192 Dr Mutton, occupational physician, examined the plaintiff in December 2008, at which time there was no significant medical surgery or psychiatric history.
193 The plaintiff then complained of pain across the low back, generally in the midline but radiating into both buttocks, with the right worse. There was quite free movement on examination and no spasm.
194 Dr Mutton thought the plaintiff then had a work capacity but not for heavy physical teaching and there were restrictions required. He suggested a return to work program was then suitable.
195 Dr Mutton carried out a worksite assessment at the plaintiff’s workplace on 28 November 2008. He concluded that the plaintiff should be able to undertake her duties as proposed with the ability to sit and stand and manage her back pain. He thought working half time in 2009 would allow her to continue with her rehabilitation.
196 Dr Mutton re-examined the plaintiff in August 2009.
197 Dr Mutton noted an MRI scan demonstrated early degenerative change throughout the spine. He thought from a physical point of view, the plaintiff presented as quite mobile with no neurological impairment. He considered less physical teaching activities would be more suitable for her, and thought she did not need ongoing chiropractic treatment.
198 Dr Mutton considered there was no suggestion of functional overlay exaggeration, psychological or psychosomatic features. He thought the plaintiff’s condition was likely to be a combination of acute musculoligamentous strain against a background of pre-existing degenerative changes in the lumbar spine, as shown on the MRI.
199 Dr Mutton thought the incident may be a significant contributing factor to that aggravation. He considered the plaintiff’s current condition was unlikely to be work-related and was likely to be a reflection of the degenerative changes noted on the MRI, rather than any acute changes in the incident.
200 Dr Mutton then thought treatment should move to self-management and the plaintiff may respond to a functional restoration program. He considered her prognosis was poor, noting the evidence of degenerative change. However, she presented as quite mobile with no significant neurological changes in the lower limbs. He expected she had the capacity to undertake pre-injury duties as a physical education teacher full time.
201 Mr Gale, surgeon, examined the plaintiff for an AMA assessment in April 2012.
202 On examination, the plaintiff moved freely and briskly around the consulting room without any postural or gait abnormality. Mr Gale noted she showed features of illness behaviour, although he did not elaborate further.
203 Examination of the thoracolumbar spine revealed a minor scoliotic deformity, convex to the right at the upper lumbar region, with a minor rotational element. There was moderate restriction in range of back movement due to pain in the lower back. There was no neurological abnormality.
204 Mr Gale noted the back pain symptoms seemed rather non-specific and it was probable there had been a secondary development of some type of chronic pain syndrome secondary to the initial physical injury, probably contributed to by a number of psycho-social features.
205 Mr Gale thought the prognosis was likely to be poor in view of the long history of back pain over many years, with a number of co-existing psycho-social factors probably compounding the clinical picture. He considered stabilisation was likely.
206 Mr Gale thought the management of the plaintiff’s back symptoms had been sub-maximal, that her management program should be reappraised, and there could be significant benefit if she were able to attend a multi-disciplinary coordinated physical rehabilitation program for cognitive and physical therapy.
207 Mr John O’Brien, orthopaedic surgeon, initially examined the plaintiff in February 2010. On examination, the plaintiff was observed to move quite freely and had a normal gait.
208 Physical examination revealed minimal subjective signs confined to a very mild restriction of lumbar movement without any evidence of any nerve root compromise or radiculopathy.
209 Mr O’Brien noted investigations were reported as demonstrating very early degenerative change really not caused by any specific physical incident.
210 Mr O’Brien initially thought the plaintiff presented with non-specific back pain. In his view, there was certainly no evidence to suggest the presence of any severe lumbar pathology such as disc prolapse or, indeed, nerve root compromise.
211 Mr O’Brien then thought the history would indicate that employment was a significant contributing factor.
212 Mr O’Brien suggested further chiropractic treatment was not justified and self-management was appropriate. He thought there was no indication for any further investigations or invasive treatment.
213 Mr O’Brien noted the rather prolonged course of the plaintiff’s back pain made him a little guarded in terms of prognosis as there certainly were elements which suggested the possible elevation of chronic back pain that certainly did seem to be influenced by some psycho-social matters.
214 Mr O’Brien noted the plaintiff described a very mild disability in relation to her overall general function. He suggested she was not capable of unrestricted activity and would not be able to work as a physical education teacher. However, he thought she was not totally incapacitated and was capable of lighter teaching work. He also noted the plaintiff was currently minimally restricted in her general, domestic, social and recreational activities, and he suggested that could be resolved by self-managed exercise.
215 Mr O’Brien noted that because of her pain, the plaintiff was forced to cease martial arts but did indicate she was now attempting to return to it slowly.
216 Mr O’Brien re-examined the plaintiff in July 2014. She then told him that following the initial examination, she continued to experience low back pain for which she required chiropractic treatment.
217 The plaintiff described to Mr O’Brien constant pain localised in the region of her right upper buttock. He noted she presented ambulating with a rambling stick held in her right hand but she was quite capable of walking unaided and demonstrated a normal gait.
218 Mr O’Brien thought the physical signs in relation to the lumbar spine were, indeed, minimal and confined to slight restriction of movement and very mild tenderness. In his view, that would certainly not indicate the presence of any significant lumbosacral pathology on the basis of her symptoms. He confirmed his earlier diagnosis and considered it did not justify the need for any form of walking stick.
219 Mr O’Brien noted radiological reports over the years did not appear to suggest any progressive pathology given the presence of some mild, somewhat generalised degenerative changes. He thought there was certainly no radiological described presence of any specific significant pathology which, of course, was in keeping with the clinical findings.
220 Whilst the plaintiff described a specific incident precipitating back pain, Mr O’Brien was really unable to find any specific organic pathology which could explain the cause of her current symptoms. He concluded that currently there was no real evidence to suggest employment continues to be a materially contributing factor to her current low back symptoms.
221 Mr O’Brien confirmed his earlier comments about treatment. He thought the prolonged nature of the plaintiff’s symptoms would suggest back pain would continue to be an ongoing complaint.
222 Mr O’Brien was sure the plaintiff could continue sedentary employment and it was unlikely she would go back to unrestricted physical activity given her complaints. He also thought she was currently minimally limited in her general, domestic, social and recreational activities, and that she would continue to pursue a reasonably active lifestyle.
223 The plaintiff had told him about living alone with two children, doing some cooking and essential housework, and problems using her arms with heavier housework. She drove a car and did shopping with the assistance of her children and she worked six and a half hours, five days a week.
Overview
224 It is not disputed the plaintiff suffered a compensable injury to her lower back in the incident.
225 I am mindful of the fact that the defendant accepted liability for the payment of weekly payments, medical expenses and also a claim pursuant to Section 98 (C).
226 This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[55] such admission should ordinarily be regarded as very significant:
“… albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”
[55][2006] VSCA 171
227 Most medical practitioners consider the plaintiff suffers mechanical back pain, having aggravated pre-existing degenerative changes in her lumbar spine.
228 I am satisfied the work contribution continues. Mr O’Brien came to a contrary view following his re-examination in 2014 but provides no explanation as to why he changed his view or how he could put a time on when the work aggravation ceased.
229 Whilst Mr Gale made a fleeting reference to illness behaviour, and some psychosocial features were noted by Mr O’Brien, Mr Gale and Dr Horsley, I accept that the plaintiff’s complaints of ongoing back pain and restriction are substantially organically based.
230 In this case, where there is a pre-existing back condition, I must consider what the evidence discloses as to the plaintiff’s prior back condition and determine whether the additional impairment resulting from the incident is serious and permanent.
231 In Petkovski v Galletti,[56] the Full Court of the Victorian Supreme Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. …”
[56] [1994] 1 VR 436
232 Obviously when considering the extent of any pre-existing condition, the plaintiff’s evidence is particularly relevant. In this case, an attack was made on her credit primarily on the basis of her failure to acknowledge the extent of her pre incident treatment.
233 Further, counsel for the defendant raised the plaintiff’s failure to mention, and at times specifically deny any previous back problem or treatment in claim documentation and to all medical examiners.
234 However, as I indicated during the hearing, whilst the plaintiff had osteopathic treatment before the incident she was functioning well, working full time mainly as a physical education teacher and actively engaged in martial arts.
235 There is no evidence that the plaintiff was having any medical treatment or seeing a doctor and being prescribed any medication for her lumbar spine in the period close to the incident.
236 Clearly, there was treatment in the late 1980s and then late in the 1990s and the transport accident in 1999. Early instances of back pain were short lived and were referred to in the plaintiff’s affidavit.
237 There was no evidence of any ongoing treatment until osteopathic treatment commenced in January 2002 and ceased soon thereafter. There were then a number of chiropractic sessions in Camperdown in 2005 and then the osteopathic attendances from 2006 and also the referral for Pilates in that year.
238 The plaintiff’s description to Mr King of her pre-incident state is accurate – namely having some problem but being able to get on with things and not missing time off work or having interference with her activities.
239 I accept, as her counsel submitted, the plaintiff is the type of person who loves osteopathic treatment although she was functioning well before the incident.[57]
[57]T161
240 In these circumstances, I am satisfied the plaintiff did not have an ongoing spinal condition of any significance at the time of the incident.
Credit
241 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[58]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[58](2010) 31 VR 1 at paragraph [12]
242 In addition to the lack of detail as to the attendances at Hume, counsel for the defendant attacked the plaintiff’s credit on the basis of her failure to mention the 1999 transport accident and her attendances at Western General in the late 1990s in her affidavit.[59]
[59]T130
243 Whilst the plaintiff did not go into the amount of detail, as set out in the osteopathic notes, she did depose to having chiropractic treatment from time to time over the years and she mentioned previous back problems in the late 1980s and late 1990s and undergoing spinal investigations in 2006.
244 Counsel for the defendant submitted the film showed the plaintiff did not use a stick as frequently as she described and that there were lots of times her children were not shown assisting her.[60] Further, the plaintiff was not shown sitting down to rest.[61] It was only a few days prior to the hearing that the plaintiff was shown shopping yet she said she could not remember a recent occasion when she had gone out with a stick.
[60]T157
[61]T161
245 It was submitted there was no limp evident in the surveillance despite the plaintiff maintaining that was the case.[62] There was no apparent discomfort in the film, no grimacing or groaning.
[62]T160
246 However, I found the surveillance video, if anything, reinforced the plaintiff’s complaint of her lack of mobility and general restrictions and confirmed she did not lead the active lifestyle she previously enjoyed, moving like an old woman when she is just forty compared to the fit young woman she was before suffering injury. At times, she required the assistance of her young son for support.
247 As the plaintiff explained she sat in the car on the drive between the three shopping centres and was not on her feet for the duration of the shopping trip.[63]
[63]T165
248 Further, prior to the film being shown, the plaintiff admitted going browsing in the shopping centre.
249 In any event, in the two hours the plaintiff was under surveillance, there was only 33 minutes of film.
250 Overall, I found the plaintiff to be a frank witness who answered questions directly and truthfully.
Pain
251 In Haden, Maxwell P stated that the evidentiary basis of the pain assessment will ordinarily comprise, inter alia what the plaintiff says about the pain (both in court and to doctors.[64]
[64]Paragraph 11
252 I am satisfied that the plaintiff has suffered lower back pain of varying intensity radiating in her buttocks, particularly the right, since the incident.
253 The plaintiff initially received chiropractic and physiotherapy treatment and was sent for specialist referral in 2008. However, conservative treatment was suggested at that time.
254 The plaintiff continues to have chiropractic treatment from Dr Aldenhoven, which gives her some benefit although she is left with restrictions.
255 The plaintiff does not take painkilling medication on a frequent basis, although she takes Nurofen from time to time.
256 I accept as a result of her back condition, the plaintiff is significantly restricted in her ability to bend, lift and twist.
257 Because of her sore back, the plaintiff has problems with her housework and has to pace those activities accordingly. She is unable to cope with running her household effectively, having to work 32 hours a week and then come home and look after the house and her two young children. Her house is now a pigsty because she cannot look after it properly.
258 At times, the plaintiff requires her mother’s assistance with housework. If the plaintiff does too much at once, she later suffers with increased back pain.
259 The plaintiff is able to do various light activities with her children but is unable to engage in any particularly physical or strenuous activities. After a full day’s work the plaintiff has difficulty doing household tasks and has to rest. She then has limited energy to engage with her children.
Work
260 Having qualified as a teacher in 2006 with a science background, the plaintiff’s first teaching job was with the employer as primarily a physical education teacher also teaching Arabic and Maths. She has been unable to return to full time teaching of any description since the incident.
261 When her employment was terminated by the employer in late 2009, the plaintiff was working only a half time load, a year and a half after the incident. It is accepted the plaintiff would be unwise to return to a full teaching load, particularly in physical education with her back condition.
262 However, the plaintiff has obtained further qualifications to act in a consultative role directed to her interest in working with intellectually disabled children and it is not suggested her career as a teacher has been lost.
263 Whilst she can work 32 hours per week in her current administrative job with Campbell Page, the plaintiff has ongoing difficulties at work with lifting and prolonged sitting and modifications have been made to her workplace accordingly – standing to type placing the keyboard on a box, the provision of a trolley and a lumbar support.
264 The plaintiff has an understanding employer and she is able to vary her posture at will.
265 The plaintiff’s own business Inspired Empower does not involve physical work and in any event provides her with little work. Projects such as Glenroy were for a limited period, sixteen weeks, four hours a day on a Friday morning doing administrative tasks and dealing with students.
266 Whilst there has been a continuity of employment since the incident, working with the employer through 2009, undertaking a Masters full time 2010 to 2011 and then working for Arabic Services 2011 to 2012 for eight months, fifteen hours per week and then 2013 Campbell Page, none of these roles have been on a full time basis.
267 I accept that prior to the incident, the plaintiff was an active young woman engaged in a wide range of physical activities, most importantly, marital arts, gym, swimming, and generally keeping fit.
268 Karate was a major part of the plaintiff’s life at the time of the incident. [65] The plaintiff, then aged thirty-three, held a brown belt. She was training for a black belt to enable her to teach and start her own school.
[65]T167
269 As a result of her incident injury, the plaintiff has not been able to resume karate at the pre incident level and go on to black belt where she could then instruct and run a school by herself, as was her intention prior to the incident.
270 The plaintiff battled on with karate thereafter with the assistance of painkillers for a couple of months and then had to stop for a year and a half. As she could not resume karate and decided to take on Taekwondo.
271 The plaintiff commenced that activity on a limited basis with her chiropractor’s knowledge and her instructor’s awareness of her physical limitations. The plaintiff had to cease this sport eighteen months ago as she could not keep going with her back pain. Whilst training she had used ice packs and left out the more onerous exercises. Her only competitive exercise was against one other competitor.
272 The plaintiff’s evidence as to her love of martial arts, the high level to which she had trained and her plan to commence teaching, having obtained a black belt, were not challenged and I accept that interest played a major role in the plaintiff’s life prior to her injury. That activity has now been lost to her as a result of her back condition.
273 Whilst each case turns on its unique facts, Judge Dyer recently found in Ebejer v Hobsons Bay City Council & Anor,[66] the inability to engage in martial arts was a serious consequence for the plaintiff in that case.
[66][2014] VCC 795
274 Further, since the incident, the plaintiff has not been able to do gym or swim laps, which were also part of her general fitness regime prior to the incident.
275 I do not accept the submission by counsel for the plaintiff that there has been little change in the plaintiff’s life following the incident. I do not accept the plaintiff lives a full and busy life as was submitted.
276 The plaintiff continues to suffer pain and is restricted in her domestic and work life. Her major interest of karate is no longer open to her. She has become an “old woman” at the relatively young age of just forty.
277 In Stijepic v One Force Group Aust Pty Ltd,[67] Ashley JA and Beach AJA discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.
[67][2009] VSCA 181 at paragraph 43
278 The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, they considered it relevant to look at the likely period for which those consequences would be experienced. It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.
279 As the plaintiff’s condition has continued for in excess of six years, without significant, sustained improvement, I am satisfied her impairment is permanent.
280 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.
- - -
Appendix “A”
Exhibit 1
DVD Video-Surveillance Film of the Plaintiff
Surveillance DVD Exhibit 1 – Length: 7 minutes 8 seconds
Date Time Event 3 July 2014 11:13am Plaintiff filmed driving her vehicle
12:53pm Plaintiff exits the vehicle
12:54pm Plaintiff bends into the passenger side of her vehicle to retrieve an object for her daughter
Plaintiff walks back into her house with her daughter
15 July 2014 8:23am Plaintiff filmed standing still at a service station
8:24am Plaintiff enters service station
8:26am Plaintiff exits service station
Surveillance DVD Exhibit 2 – Length: 2 minutes 39 seconds
Date Time Event 24 July 2014 9:03am Plaintiff filmed walking in the street with the aid of her walking stick
Surveillance DVD Exhibit 3 – Length: 23 minutes 57 seconds
Date Time Event 27 July 2014 12:23pm Plaintiff filmed walking around at Bunnings in Broadmeadows with her son
12:27pm Plaintiff picks up item off the shelf, then places it back on the shelf
12:45pm Plaintiff filmed walking around a $2 store in Campbellfield Plaza inspecting items on the shelves with her daughter
12:48pm Plaintiff pays for items and leaves store with her daughter
12:57pm Plaintiff enters K-Mart with her son and daughter and is filmed walking around shopping
1:46pm Plaintiff filmed at Bunnings in Coburg looking at items on the shelves with her daughter
2:10pm Plaintiff exits Bunnings with her daughter and is filmed walking down the street
2:15pm Plaintiff is filmed walking around a pet store
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