Salerno v University of Melbourne
[2021] VCC 419
•23 April 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-03611
| LIANNE SALERNO | Plaintiff |
| v | |
| THE UNIVERSITY OF MELBOURNE | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 March 2021 | |
DATE OF JUDGMENT: | 23 April 2021 | |
CASE MAY BE CITED AS: | Salerno v University of Melbourne | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 419 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the back – pain and suffering only
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Sabo v George Weston Foods [2009] VSCA 242; Petkovski v Galletti [1994] 1 VR 436
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett QC with Mr J Valiotis | Arnold Thomas & Becker |
| For the Defendant | Mr P Trigar | IDP Lawyers |
HER HONOUR:
1The plaintiff, Ms Salerno, is a forty-seven-year-old woman. She makes a claim pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRC Act”) for a serious injury certificate for pain and suffering damages for injuries she sustained to her back during the course of her employment with The University of Melbourne.
2The issues in this case are:
(a) whether Ms Salerno’s current condition and pain is a result of the injuries she sustained; and
(b) if so, whether it constitutes a “serious injury” within the meaning of Division 2 of Part 7 of the WIRC Act.
Background
3After completing high school at the age of seventeen, Ms Salerno worked in various administrative roles. In 2000, she began studying animal technology and subsequently worked for a number of government and private organisations. A keen sportswoman, Ms Salerno also worked part time as finance officer for Victorian Little Athletics.
4Ms Salerno commenced employment with The University of Melbourne in September 2009 as an animal care coordinator. She alleges a number of injuries during the course of that employment as set out below:
(a) On 28 March 2011, Ms Salerno hurt her back whilst lifting a sheep that had collapsed and was stuck in a fence. She had to remove the sheep from the fence. Ms Salerno said she did not immediately know she had hurt her back when removing the sheep but her pain increased when she subsequently reached into a food bin.
(b) On 26 April 2013, Ms Salerno developed further lower back pain as a result of prolonged sitting and repeatedly getting up and down from a tractor.
(c) On 21 September 2016, Ms Salerno hurt her lower back and neck whilst moving a wheelbarrow of dead calves weighing around 100 kilograms from the post-mortem room to the cattle shed.
(d) On 17 August 2017, Ms Salerno further hurt her lower back whilst driving a forklift over a series of speed humps. Ms Salerno said these speed humps had previously caused her concern and were the subject of a removal request which was refused. She said she experienced increasing levels of back pain as she went over the 8th of 9 humps.
5Although Ms Salerno relies on the three earlier incidents, it was really the injury on 17 August 2017 she said resulted in her inability to undertake her work and fully participate in her recreational activities. Since 2017 she has remained in full-time employment but says she has been significantly impaired in her activities, particularly her sporting pursuits.
Plaintiff’s Evidence
6Ms Salerno relies on three affidavits sworn 6 March 2019, 17 December 2019 and 18 February 2021.
7In her first affidavit she says the pain she suffers is not constant pain but is variable. She has referred pain into her left hamstring which is present on a daily basis. She has back pain most days. If she is less active her back is less painful.
8Ms Salerno says she was previously very active in sport and played competitive tennis for a team known as the Sapphires for eight years up until 2017 when she had to give it up due to her back pain.
9Ms Salerno played Australian Rules Football for Glen Orden. She stopped playing in 2017 and recommenced playing in about 2019 with a Point Cook team. She took up football again as she had put on significant weight and missed the social outlet provided by the footy club. She says she was “determined to push through the pain and become more active”.
10Ms Salerno says that though she has played “several games”, she has a significant increase in her pain, both during and after the game.
11Ms Salerno says that her sleep is variable, depending on the level of pain. Her activities around the house are restricted – she used to work intensively in the garden, she now “potters around”. Though she remained in the Army Reserve as at the time of her first affidavit, she was downgraded and can no longer be deployed or attend exercises. She feels that her active days in the Army Reserve are over.
12In her second affidavit dated December 2019, Ms Salerno says she has a constant dull ache in her lower right back which increases with activity and sometimes for no reason. She has occasional severe pain and weekly “spasms”. A back spasm causes crippling pain. She is stiff and sore in the morning and sometimes takes painkillers. She does physiotherapy exercises. By mid afternoon she is in increased pain and by bedtime she is stiff and sore. She says that her days are spent managing her back and pain and she “no longer know[s] what life is like without the back and referred leg pain”.
13Ms Salerno gets referred pain into her left hamstring. She has nerve pain down the outside of both legs and some twitching in her right leg. She suffers pins and needles in her feet on activity.
14Her sleep is poor, she has difficulty getting to sleep, wakes most nights due to pain, and has difficulty getting back to sleep. She is left fatigued.
15Ms Salerno says she is a positive person with a high threshold for pain and she tries to push through the pain as being active is important to her. When she was not exercising due to the pain, her mood suffered.
16Ms Salerno has not returned to tennis but plays football in a Masters competition. She says that this is an “over 35” competition with special rules for tackling and an emphasis on fun. She describes this as “old ladies’ football”.
17In her final affidavit sworn in February 2021, Ms Salerno says her right back pain is now worse than it was previously and she gets more frequent back spasms, suffering severe spasms at least a couple of times a week. The referred leg pain is almost constant. She has elected not to undergo a radiofrequency neurotomy, a procedure offered by her pain specialist, Dr McCallum, as there were risks of increased pain at the procedure site, bleeding, infection and paralysis, and any benefit would only be temporary.
18Ms Salerno says that she attempted to return to football after the COVID lockdown to train for a Masters football match in early January 2021 but this was too painful and she has not been back. She tried to jog throughout 2020 as it was important to maintain some exercise during the COVID lockdown, but since late 2020, has found this too painful and no longer goes jogging.
Employment since injury
19Ms Salerno was made redundant from The University of Melbourne in October 2017. She obtained sessional teaching work at Gordon TAFE College in March 2018. In December 2018, she worked for three months with the Department of Agriculture as a biosecurity officer in their call centre. Since February 2019, Ms Salerno has worked full time as a welfare inspector with Greyhound Racing Victoria. At the hearing Ms Salerno informed the Court that she had very recently obtained employment as the Greyhound Adoption Program Manager with TasRacing. She intends to relocate to Tasmania to take up this position. This is a permanent full-time position. She makes no claim for pecuniary loss.
Medical history prior to 2017 injury
20Ms Salerno said she consulted her general practitioner, Dr Donald Fraser, at Hampstead Drive Medical Centre for her spinal symptoms during her course of employment with the defendant, including prior to the 2017 injury. She was treated conservatively and from about 2013, was seen by physiotherapists, in particular her cousin, Dominic Salerno. An MRI scan taken on 2 June 2014 showed a slight narrowing of the L5-S1 interspace of Ms Salerno’s lumbar spine and x-rays showed mild degenerative changes in her right hip. Ms Salerno said that, prior to 2017, her back pain was managed, rather than resolved. She says she would get “random bouts of back pain” which were not serious enough, generally, to warrant treatment.
Medical history after the 2017 injury
21Ms Salerno underwent a further MRI scan of her lumbar spine on 1 September 2017 at the request of Dr Fraser due to persisting spinal pain. This scan indicated mild central canal narrowings at L1-2, L3-4 and L4-5, a small annular tear at L5‑S1 and facet arthropathy.
22Ms Salerno consulted neurosurgeon Professor Richard Bittar on 19 December 2017. In his report dated 30 June 2018, Professor Bittar noted Ms Salerno’s complaint of lower back pain and right sciatica with a lesser degree of left leg pain. He recorded the onset of those symptoms as having occurred at work on 17 August 2017 when she was driving a forklift over speed humps. He noted one of the speed humps jolted her back quite severely and she experienced worsening pain several days later which radiated into her right leg. Professor Bittar noted Ms Salerno had injured her back at work in 2011 and 2016 but made a full recovery with no ongoing symptoms. It was also noted she experienced an episode of lower back pain on holiday in Sydney in April 2017 which resolved in a matter of weeks.
23Professor Bittar diagnosed an aggravation of lumbar spondylosis and considered that the work injury was the significant contributing factor.
24On 28 December 2017, Ms Salerno underwent a weight bearing MRI scan. This scan revealed:
· Mild canal stenosis at L1-L2, a mild broad based disc bulge but no compression of traversing nerve roots
· Minimal bilateral foraminal disc bulging was noted at L2-L3 but no compression of traversing nerve roots
· Broad based disc bulge at L3-4 in combination with bilateral ligamentum flavum hypertrophy resulting in mild canal stenosis
· Mild canal stenosis at L4-L5 attributed to broad based disc bulge and bilateral ligamentum flavum hypertrophy
· Left paracentral disc protrusion at L5-S1 causing minimal contact but no clear compression of the traversing left S1 nerve root.
25On 15 January 2018, Ms Salerno consulted rehabilitation specialist, Dr Ali Kian Mehr. He noted she had constant pain in the right side of her lower back and intermittently in her left ankle. Her gait was normal but she had a limited range of motion in her lumbar spine on both flexion and extension.
26Ms Salerno had nerve conduction studies in July 2018 which showed mild chronic denervation changes consistent with mild radiculopathy.
27Dr Mehr reviewed Ms Salerno on 8 November 2018. He considered that, despite comprehensive conservative treatment, her reported pain was unchanged. She was taking Endone weekly or fortnightly and Nurofen Plus weekly. He considered that her condition was caused by her work injury and that her prognosis was guarded.
28On 20 November 2018, Ms Salerno returned to Professor Bittar. He assessed her condition as largely unchanged since his earlier review in December 2017, but with the addition of intermittent sensory disturbance and right leg discomfort. He noted her complaints of longstanding left leg sciatica. His examination revealed a non-antalgic gait and significant restriction of lumbar spine flexion, with mild restriction of straight leg raising on the left and a diminished left ankle reflex. He noted her diagnosis was unchanged and there was clinical evidence of a left S1 radiculopathy.
29Ms Salerno underwent a left-sided sacroiliac injection with Dr Symon McCallum, pain specialist, on 13 September 2019.
30Further radiology was obtained in November 2018 which demonstrated a central to left paracentral mild disc protrusion at L5-S1 with a left-sided annular fissure.
31In January 2020, Ms Salerno returned to Dr Mehr. Her clinical examination was unchanged. She was taking the same medication as previously and he added Circadin at night to treat her pain-induced insomnia.
32On 20 January 2020, Ms Salerno was assessed by neurosurgeon, Mr Paul D’Urso, for medico-legal purposes. He noted that she had started reattending football training and was an Army reservist. She was able to walk her dogs, undertake light gardening and cleaning and do the washing. She intermittently used Nurofen, Nurofen Plus and Endone. Mr D’Urso diagnosed her with an injury to the L5-S1 intervertebral disc, with evidence of a left-sided posterolateral annular tear. In his view, her workplace activity could have also aggravated the underlying degenerative disc at L1-2, but considered that these injuries were sustained during the course of her employment as an animal care coordinator. Whilst he was unable to attribute her specific injuries to the specific events, he suspected that the injuries in March 2011 and April 2013 aggravated a degenerative L1-2 disc and that the injury in 2017 contributed to the development of the annular tear at L5-S1. In his view her injuries were a significant contributing factor to her ongoing symptoms.
33In March 2020, Ms Salerno saw Dr McCallum for a left-sided sacroiliac joint injection. These injections assisted Ms Salerno’s pain level for about eight weeks. He recommended that she exercise as much as possible.
34In February 2021, Dr McCallum again saw Ms Salerno and noted at that time, she was taking ibuprofen on a daily basis and her sleep was affected by pain. He noted she was able to walk for 45 minutes, stand for 20 minutes and sit for an hour. She was walking regularly and attending fitness classes. She was working full time and was still participating in sports but he thought it unlikely that she could play active physical sports for the full duration of a game. She still ran but struggled to do so.
35The plaintiff’s medical records and medico-legal opinion are reasonably consistent. They present a picture of the plaintiff as a person who, prior to 2017 had sustained some back injuries which caused her intermittent pain which had either resolved or was manageable aside from occasional flare-ups. After the injury in 2017, the plaintiff was in constant pain. She had physiological changes apparent on imaging. The pain was responsive to sacroiliac joint injections and analgesia. Her treating doctors and Dr D’Urso considered that her work injuries were significant contributing factors to her condition.
Medico-legal opinion of Mr Haig
36The defendant relied on five reports of Mr Ronald Haig, a consultant orthopaedic surgeon, dated 18 September 2017, 29 September 2017, 19 December 2017, 6 February 2018 and 16 December 2019.
37In his first report, Mr Haig noted that Ms Salerno had a work-related condition of lower back pain caused by travelling in a forklift over a high speed hump. He did not believe there was any permanent impairment.
38In his second report, he notes that he expects her to continue to improve.
39In his December 2017 report, he notes that Ms Salerno was much improved but had continued intermittent discomfort in her lower back and experienced pins and needles in her right foot. He noted she had recently been white water rafting in Zambia. On examination, he recorded some reduced extension of the back and diminished sensation on the lateral side of the right foot which would be consistent with S1 nerve root distribution. In his opinion, her injury was an aggravation of an underlying condition but did not consider there was any permanent impairment.
40In his report of February 2018, Mr Haig noted signs consistent with S1 nerve root involvement but did not consider that Ms Salerno had sciatica.
41In his report of December 2019, Mr Haig noted that Ms Salerno had begun experiencing pain in the left hamstring. He noted her description of her right low back pain as dull, present most of the time, increased with prolonged activity such as walking, sitting and gardening. He noted she had pain in her right lower thigh and leg when she ran but that there was otherwise no adverse effect on her activities of daily living. He noted that although she had not returned to tennis, she had resumed playing Australian Rules football.
42Mr Haig formed the view that his findings were not atypical or unusual for someone of a similar age, gender and work background. He diagnosed Ms Salerno with lumbar spondylosis, and considered that the various events, including the August 2017 incident, exacerbated the underlying condition. However, in his view, the exacerbations and any other effects from the August 2017 incident would have long since settled, and her ongoing pain was the result of her underlying pathology and the natural history of her underlying disease.
Is the Plaintiff’s condition caused by her work?
43There is no real dispute that there were a number of incidents that occurred to Ms Salerno at work that caused her injuries. She made contemporaneous reports, and her evidence and the medical evidence has been consistent as to the nature of those events and the injuries she sustained.
44The real question is whether her ongoing pain results from those injuries, in particular the 2017 injury, or whether what she experiences now in terms of pain and restriction of movement is the result of the inevitable progression of an underlying condition of lumbar spondylosis, as hypothesised by Mr Haig.
45There is no way of knowing with certainty what Ms Salerno’s condition would be now, but for the injuries. I am reliant on the evidence before me to determine the matter.
46The defendant points to the pathology which, it says, simply does not support the plaintiff’s claim. It says that, at most, the plaintiff had an exacerbation, or aggravation of an underlying condition, which has now long since resolved. Her actual level of activity, as distinct from the level of activity she deposed to, is more supportive of a claim that she does not have any significant injury, but rather the inevitable aches and pains that arise from being a middle-aged woman with an underlying back condition.
47In contrast to that position, the plaintiff’s evidence was that the level of pain she occasionally experienced prior to 2017 was not at all comparable to what she experiences now. Counsel for the plaintiff notes that the most recent report of Mr Haig was in 2019, not in any way a contemporaneous report, and he saw her within months of a sacroiliac injection which had provided significant relief.
48The plaintiff notes that it is not uncommon for pathology to not reveal any significant changes in the absence of “something absolutely staggering” like a disc prolapse that is compressing and squashing the nerve root beyond recognition. Further, it is highly likely that the plaintiff, like most people, has degenerative changes, but degenerative changes can be entirely asymptomatic. Mr Haig does not proffer any reason as to why Ms Salerno’s symptoms became symptomatic and remained so after 2017. He says that any exacerbation would have “well and truly” settled by 2019 and therefore the ongoing symptoms must be the result of the underlying condition. The plaintiff argues that it was the work injury that rendered her symptomatic, that was plainly the trigger and that is supported by the opinion of Dr D’Urso and the various treating doctors.
49The assessment I am required to undertake to determine whether I prefer the evidence of Mr Haig, or the evidence of the plaintiff’s treaters and experts, does not come down to a ’numbers game’. The fact that there are more doctors opining that the plaintiff’s symptoms are caused by the work injuries than opining that they are not is irrelevant if the opposing opinion is more cogent and persuasive.
50In this case, however, I am persuaded by the opinions of the plaintiff’s treaters and experts. Mr Haig formed a view almost immediately after seeing the plaintiff that she had sustained no permanent impairment. He did not resile from that opinion, even though the plaintiff’s condition did not change markedly, as he had expected it to, between his first consultation with her and his fifth. She continued to have pain and symptoms but by 2019 he attributes that pain and those symptoms, which are generally consistent with the symptoms she experienced in 2017, as being caused by an underlying condition.
51I accept that, on the balance of probabilities, she has an underlying condition that was exacerbated by her work injuries, but I am not persuaded that that underlying condition would have inevitably progressed or ever become symptomatic but for those injuries.
52I am satisfied on the basis of the expert opinions of Professor Bittar and Mr D’Urso, that the work incidents were the significant contributing factors to her ongoing disability, incapacity and the persistence of her symptoms and that consequently her current injuries were caused by her work.
Is the Plaintiff’s injury a “serious injury”?
53The principles that apply to this application are well known and are not in dispute. Ms Salerno must establish that she has suffered consequences in relation to her pain and suffering 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”.[1]
[1] Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
54In cross-examination, it was put to Ms Salerno that, in contrast to the evidence in her affidavit that she had given up football in 2017 and had not returned until 2019, she had played a number of games in October 2017 and played nearly the entire 2018 season with the Werribee Centrals. Ms Salerno accepted that in 2018 she had played twelve games for Werribee Centrals and a number of games for Werribee Masters, including, on two occasions, two games in one day. In 2018, her team won the ‘unofficial’ grand final, and at the end of 2018, she participated in an over 35s carnival at Coffs Harbour. In 2019, she played an AFL Masters exhibition match at Marvel Stadium. She also accepted that, in contrast to her affidavit which only mentioned her ongoing participation in Masters football, she had also played in other teams which were not for the over 35s and did not have modified rules.
55I consider that the affidavit material did not truly reflect her ongoing level of involvement, prior to the COVID lockdown, in football. This leads me to conclude that Ms Salerno was less than candid in her affidavit material, in an attempt to bolster her claim.
56The Court was shown a number of surveillance videos. These had been helpfully edited into a ‘highlights’ package of about 50 minutes from total footage of about 2.5 hours. The footage was all of Ms Salerno either playing in football games or participating in training.
57In summary, Ms Salerno was shown undertaking various physical activities of the kind that might be expected in football training and during a match. She bent over, kicked, tackled, handballed, marked the ball, did some push ups and ‘burpees’, hopped, moved from side to side, jogged and so on.
58It was put to Ms Salerno that the video showed no obvious discomfort to her from any of the activities and that there was no apparent limitation in her ability to do any of those things. Ms Salerno disagreed with those propositions.
59Ms Salerno said that she was restricted in her ability to move freely and to get up quickly. She did not jump nearly as high as some of the other players. She could not bend as far and on some occasions she was wincing and looked obviously in pain. In one of the videos she was sidelined and received treatment from the trainer. She gave evidence that that treatment was because of pain in her lower back, even though she had been medicated before the game. She said she was slower and not as agile, that her run was more like a “light stroll” and that she was definitely not able to play at the same level as she played at prior to her injury. She also gave evidence that she was medicated before every game with paracetamol and anti-inflammatories, but that she kept playing because of the social connection. She said:
“The physical pain is - you can deal with it. You know, you can put a heat pack or an ice pack, or take some anti-inflammatories and deal with the physical pain. You can’t put a heat pack or an ice pack on emotional pain, and you can’t just have an anti-inflammatory and – and discard those psychological issues when you’re having deep dark thoughts. And so for me it was maintaining those social connections, trying to maintain a level of physicality and activity.”
60After viewing the video footage I formed the following impressions:
(a) on occasions Ms Salerno was visibly limping;
(b) during the training session she did clearly modified burpees and was not doing proper push ups;
(c) she appeared to have difficulty getting up from the ground on occasion;
(d) when she bent down to pick up a green vest she raised her leg, a typical action of someone with back pain;
(e) the footage did not show someone with a good range of movement in the back and leg but rather someone participating in her sport in a modified way and clearly protecting her body and rarely putting herself ‘on the line’ in the way that might be considered typical of the game.
61I accept that Ms Salerno was, prior to the COVID lockdown, participating in football to a greater extent than suggested by her affidavits. However, having viewed the footage of her participation, I consider that that participation is consistent with her evidence that when she plays she pushes through the pain because of the other benefits she gains from it, particularly for her mental health, social wellbeing and fitness levels.
62Ms Salerno was cross-examined on her evidence in relation to back spasms and it was put to her that she had not mentioned these spasms to any of her treating doctors or to the experts she was seen by. Ms Salerno said the spasms cause pain and that she discussed her pain with the doctors. I am not sure that anything much turns on this distinction. The crucial issue is whether the evidence supports Ms Salerno’s claims of the level of pain she is in and the degree to which it impinges on her life.
63Ms Salerno was cross examined about a trip she took to Zambia where she went white water rafting at the end of 2017. She conceded that she had indeed rafted on the Zambezi river as part of an internship during her studies. She said it was a lifelong dream but that she struggled. She took medication and was ‘looked after’ by the captain, but by the time she had to walk back to her meeting point she was in so much pain she had to be piggy-backed by the locals.
64It was put to Ms Salerno that she had taken time off work, and claimed sick pay for that time, in order to participate in a football carnival. Ms Salerno said that she had taken sick leave as she was experiencing some mental health issues arising from workplace difficulties at the time and that her sick leave was not because of her physical injuries. I make no finding as to whether Ms Salerno required sick leave for mental health issues, though I note that the timing of the sick leave with the football carnival seems to be rather convenient. Ms Salerno may have been less than candid with her employer at the time about the reason for taking leave, but I do not consider that it has any significant bearing on this application. She has admitted that she participated in the carnival and it is not in dispute that she continued to train and play football until the COVID lockdown.
65I found Ms Salerno to be a generally credible witness who impressed as a stoic person who was keen to ensure that, despite her injury, she continued to participate in important aspects of her life. It is clear that she had previously engaged in physical activities at a very high level, she was very involved with tennis and football and joined the Army Reserve as a forty-one-year-old which required a five-week training course.
66Since the injury, I accept that she has had near constant pain in her back and frequent, now also near constant, pain in her leg. This necessitates medication on occasion, including strong opioids (Endone), and Nurofen Plus, but she avoids taking these as much as possible because of side effects. Her sleep is affected most nights. She has difficulty falling asleep, she wakes most nights and she has difficulty getting back to sleep because of pain.
67Ms Salerno describes her days as spent “managing” her pain. She is restricted in the amount and intensity of housework and gardening she can engage in. She is limited in her physical pursuits, including jogging. She is likely to not be able to resume playing football. She has already had to give up tennis. Her role in the Army Reserve is not as active as it once was. Though she can be deployed, it is with limitations.
68The medical evidence is that her prognosis is guarded. No one has suggested that she will improve. There is a possibility of further treatment, but it carries with it risks, and any benefits would be only temporary. To all intents and purposes, Ms Salerno’s injury is permanent.
Does Ms Salerno’s injury satisfy the test?
69The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.[2]
[2]Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267 at paragraph [199]
70The analysis of whether Ms Salerno meets the “very considerable” test requires a value judgment in which matters of fact and degree and impression are operative.[3] I must consider the consequences for Ms Salerno of her impairment, compared with the range of other possible impairments[4] and compared with her pre-existing condition.[5]
[3]Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at paragraph [41]
[4]Sabo v George Weston Foods [2009] VSCA 242 at paragraph [66]
[5] Petkovski v Galletti [1994] 1 VR 436
71I am satisfied that her reduced ability to participate in the aspects of her life that have been most important to her – tennis, football, the Army Reserve – is of great significance to Ms Salerno. The impacts of the injury affect every part of her life and they are considerable.
72Whilst Ms Salerno has retained the ability to work full time it is not in work that has the same physical demands as her previous occupation. I am satisfied that the impact that this injury has had on her does satisfy the “very considerable” test. Accordingly, leave will be granted to commence a common law proceeding for pain and suffering damages.
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