Salopek v George Weston Foods Limited
[2009] VCC 640
•9 June 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-08-03427
| ANKA SALOPEK | Plaintiff |
| v | |
| GEORGE WESTON FOODS LIMITED | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 12 and 14 May 2009 |
| DATE OF JUDGMENT: | 9 June 2009 |
| CASE MAY BE CITED AS: | Salopek v George Weston Foods Limited |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0640 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION - Accident Compensation Act 1985 – plaintiff suffered injury to her lower back – whether the pain and suffering consequences were at least very considerable – plaintiff working full-time and undertaking overtime – whether full- time work with overtime inconsistent with pain and suffering consequences being at least very considerable: section 134AB (38)(c)
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Collis QC with | Victorian Compensation Lawyers |
| Mr A Malpas | ||
| For the Defendants | Mr R Meldrum QC with | Hall & Wilcox |
| Mr P Gates | ||
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed on 21 August 2008 by which the plaintiff applies for leave, pursuant to section 134AB (16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of the course of her employment with the defendant on 1 November 2002.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering.
3 Mr B Collis QC appeared with Mr A Malpas of Counsel for the plaintiff, and Mr M R Meldrum QC appeared with Mr P Gates of Counsel for the defendants.
4 The body function which the plaintiff says has been lost or impaired is the lower back.
5 The following evidence was adduced during the hearing:
ƒ The plaintiff tendered her Court Book ("PCB") pages 10-28; 36-48; 74-105;
118-121; 138; 482-490; 628 and 638-640: Exhibit Aƒ The defendants tendered their Court Book ("DCB") pages 4-8 and 118-128 and from the Plaintiff's Court Book, pages 106-117; 122-125; 144-301; 366; 370; 374; 379; 383 and 491-627: Exhibit 1 ƒ Film taken of the plaintiff on 21 February 2009: Exhibit 1 6 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
The Statutory Scheme
7 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that she has suffered a compensable injury, that is, an injury which she suffered arising out of the course of her employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(d)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(e)
Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event,[3] an approach which I intend to follow in the present case.
(f)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(g)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[4]
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
[3] A consistent approach of Judges of the County Court – see, for example, De Pasquale v AW Dark Pty Ltd [2005] VCC 158, per Judge Higgins; Talevski v Fulop Trading Australia Pty Ltd [2007] VCC 833, per Judge Strong; and Patterson v Burbank Plumbing and Maintenance Services [2007] VCC 1527, per Judge Ross.
[4] (1994) 1 VR 436
8 I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff's Background and the Incident
9 The plaintiff was born on 16 May 1949 in Croatia. She migrated to Australia in about 1970. She is a married woman with three adult and independent children.
10 The plaintiff was last educated in Croatia to the equivalent of Year 8 level. It was apparent to me during the long period she was in the witness box being cross-examined, that her competence with English can at best be described as modest.
11 The plaintiff commenced employment with the first defendant on 20 October 1986 as a process worker.
12 On 1 November 2002, the plaintiff attempted to pull a trolley which was loaded with meat, which she estimated weighed a total of about 300 kilograms, in order to reposition the trolley and then push it. The wheels did not operate properly, with the result that the trolley became stuck, resulting in the plaintiff experiencing a hot and painful sensation in her lower back.[5]
[5] PCB 13
The Plaintiff's Medical Treatment
13 The plaintiff completed the remainder of her shift. She rested over the following weekend. The pain in her lower back worsened and was affecting her capacity to walk. She became aware of pain extending down into her left leg.
14 The plaintiff first saw Dr Sulava, general practitioner, on 4 November 2002.[6] He noted a stiff range of movement in the plaintiff’s lower spine. He referred the plaintiff to have an x-ray which was undertaken on 6 November 2002.[7] It did not show any significant abnormality. He prescribed the plaintiff Panadeine Forte for pain relief and also anti-inflammatory medication. He noted that her symptoms were worsening. He referred her to have a CT scan. He put her off work for one week at that stage.
[6] PCB 76
[7] PCB 74
15 The CT scan was taken on 11 November 2002. The radiologist reported that the CT scan showed a left postero-lateral disc protrusion and L4-5, impinging on the thecal sac over the origin of the left L5 nerve root, and prominent disc degenerative disease at L5-S1 and mild facet joint arthropathy at L4-5 and L5- S1.[8]
[8] PCB 75
16 Dr Sulava agreed with the radiologist's interpretation of the CT scan. He certified the plaintiff is unfit for work for a further two weeks. After some improvement was noted, he certified the plaintiff as fit to return to modified duties at the end of January 2003, and noted when he saw her on 6 February 2004 that she had returned to her normal duties.
17 Dr Sulava referred the plaintiff to Dr Malic, osteopath. According to his clinical notes, Dr Malic commenced treating the plaintiff on 11 March 2004. He treated her on a total of six occasions between 11 March 2004 and the end of September 2004.[9] In her second affidavit sworn 14 April 2009, the plaintiff says that she has ceased her treatment by Dr Malic. I infer, therefore, that what the plaintiff meant was that the treatment was ceased some time prior to her swearing the affidavit.[10]
[9] PCB 482-496, and especially at 485
[10] PCB 22
18 Dr Sulava continued treating the plaintiff. In a report dated 21 April 2009 he described the plaintiff's position as follows:
"In essence, it is my opinion that, if she was to do her usual house, domestic duties and chores, he[r] work would be compromised, possibly to the extent of full incapacity for employment. Therefore, overall, if she did not neglect her house duties and did not receive help, her employment power would be significantly compromised and currently I do not believe (even though on normal duties) that she is fit for her true, pre-injury duties and doubt the extend[t] she would be able to cope, if at all, to do the work she was suppose[d] to do, when initially employed.
Currently Mrs Salopek is, essentially, forced by her socio-economic circumstances to endure and work and in my opinion her physical condition [work related injury] is, therefore, deteriorating. She has been seeing me in regards to her injuries and seeking treatment through Medicare, at her request, which would otherwise come under WorkCover. Then again, it is not up to me to determine or presume whose responsibility and liability it is for the condition she is suffering. I can only say that it is my opinion that her injury is due to her description and circumstances which occurred during the course of her employment. I hope that this report will shed some light on her state, as I see it, as her treating GP." (sic)
19 Mr Meldrum referred to Dr Sulava’s clinical notes relevant to the first occasion the plaintiff saw him on 4 November 2002 and subsequently to the last entry in the clinical notes of 28 February 2007.[11] Mr Meldrum submitted that a close inspection of each entry disclosed only a few attendances on Dr Sulava for treatment for her lower back injury and only a few occasions when he prescribed the plaintiff medication.
[11] PCB 492-500
20 Dr Sulava’s clinical notes are consistent with the submission made by Mr Meldrum, although the number of attendances on him by the plaintiff for treatment for her lower back injury might suggest that the plaintiff’s lower back injury was not causing her the impairment of function described by her in her affidavits and oral evidence, however, this must be seen in the context of Dr Sulava’s description of the plaintiff in his last report.
21 Whilst some of the criticisms made of the plaintiff by Mr Meldrum have merit, I do not accept that the clinical notes tell the whole story of the plaintiff's treatment. Dr Sulava has expressed an opinion which has inherent in it a clear understanding of the predicament of the plaintiff. His capacity to express that opinion was not attacked by the defendants.
22 Dr Sulava’s opinion is in stark contrast to the way in which Mr Meldrum characterised the plaintiff's few attendances upon him for treatment and the few occasions on which the plaintiff was prescribed medication. I prefer the opinion of Dr Sulava expressed in his report. It is an opinion expressed in such a way as to leave me with the strong impression that he did not consider that there was any impediment to him being able to review the complaints made to him by the plaintiff in the context of his treatment of her.
23 The first defendant referred the clinical notes of Dr Sulava and Mr Malic to Mr Shannon, orthopaedic surgeon, after he examined the plaintiff for the first defendant on 18 July 2008 for the purpose of determining whether Mr Shannon stood by the opinion he expressed in his report dated 22 July 2008. In a second report dated 9 February 2009, and after reviewing those clinical records, he said unequivocally that those clinical notes did not alter his opinion that the plaintiff probably sustained a work-related disc prolapse superimposed on pre-existing disc degeneration.[12]
[12] PCB 104-105
24 The opinion of Dr Sulava, with the addition of the opinion of Mr Shannon, makes the submission made by Mr Meldrum an untenable one. The fact that the plaintiff may not have seen Dr Sulava frequently seemed not to trouble Mr Shannon, and furthermore, Mr Shannon's opinion is a compelling one because he is an orthopaedic surgeon with competence in the management of spinal injuries.
25 The plaintiff was referred for an MRI scan which was undertaken on 5 May 2009. She was referred to have the MRI scan by Mr P Mangos, who I understand is a general surgeon. No evidence was produced by the plaintiff of any treatment provided by Mr Mangos. According to the radiologist, the MRI scan shows multilevel mild degenerative disc disease at L4-L5 and L5-S1 facet joint arthropathy.
26 In her second affidavit, the plaintiff described her treatment as limited to seeing Dr Sulava and using Mobic, Panadeine Forte and Panadol for pain relief. Mr Meldrum referred me to the clinical notes of Dr Sulava which support the evidence of the plaintiff that she has been prescribed Panadeine Forte, but not Mobic. Whilst that appears to be true, the last entry in the clinical notes is 28 February 2007 which shows that Dr Sulava did prescribe the plaintiff Panadeine Forte on that occasion, but immediately below the entry for “P-forte” is another prescription medication which looks suspiciously like Mobic.
27 The fact that the clinical notes go no further than 28 February 2007 does not support the submission made by Mr Meldrum that the plaintiff was not prescribed medication which the plaintiff says she is using at present, nor does it support the submission that the plaintiff's medical treatment provided by Dr Sulava is only occasional. I am left with the plaintiff's evidence that she says that she continues to see Dr Sulava and is prescribed Mobic and Panadeine Forte for pain relief. I see no reason why I should not accept her evidence.
The Other Medical Evidence
28 Before reviewing the other medical evidence I should refer to the bases upon which the first defendant contested the plaintiff's application.
29 Although there is some medical evidence which questions the organic basis of the injury which the plaintiff says she suffered on 1 November 2002, Mr Meldrum did not strenuously oppose the characterisation of the contest that the preponderance of medical evidence disclosed that the plaintiff did suffer an injury to her lower back which impaired the function of her lower back, and that the impairment was permanent and had consequences for the plaintiff in terms of pain and suffering.
30 Therefore, the real contest between the plaintiff and the defendants was whether the consequences for the plaintiff in terms of pain and suffering were at least very considerable.
31 The following is a short summary of the opinions of medical practitioners who have examined the plaintiff:
•
Mr Myers, vascular surgeon, examined the plaintiff on 8 January 2009. He was of the opinion that the plaintiff's injury was an aggravation of pre- existing previously asymptomatic degenerative intervertebral disc disease and spondylosis in the lumbar spine causing nerve root irritation on the left side.[13]
•
Dr Sutcliffe, occupational physician, examined the plaintiff on 11 March 2009. She was of the opinion that the plaintiff suffered a disc derangement with radicular pain. She agreed with the opinion of the radiologist who took the CT scan, together with her clinical findings, that there was persisting left L5 nerve root irritation.[14]
•
Mr Brearley, orthopaedic surgeon, examined the plaintiff on 1 April 2009. He was of the opinion that the plaintiff suffered mechanical lower back pain, secondary to that, prolapse of the L4-5 intervertebral disc and aggravation of severe degenerative disc changes at L5-S1 and left leg pain secondary to irritation of the fifth lumbar nerve as a result of the prolapse of the L4-5 disc.[15]
•
Mr Shannon, orthopaedic surgeon, examined the plaintiff on 18 July 2008 for the defendants. He was of the opinion that the plaintiff had sustained an aggravation of pre-existing lumbar disc degeneration in the form of a left-sided L4-5 disc prolapse which he considered had substantially subsided, leaving her with the significant risk of further aggravation if she were to perform heavy physical work.[16]
•
Dr Fish, occupational physician, examined the plaintiff on 29 January 2003 for the defendants. He was of the opinion that the plaintiff was suffering from the effects of pre-existing disc degeneration and facet arthropathy which he did not believe were related directly to the injuries she suffered on 1 November 2002.[17]
•
Dr Stevenson, physician, examined the plaintiff on 20 October 2008 for the defendants. Despite being asked specific questions relevant to the injury suffered by the plaintiff, Dr Stevenson provided rather oblique answers curiously describing the injury as a slightly irritable back due to a mixture of constitutional as well as occupational incidents. He did not appear to be impressed by what was reported by the radiologist who took the CT scan.
[13] PCB 83
[14] PCB 92-93
[15] PCB 98-99
[16] PCB 102-103
[17] PCB 108
32 Although Mr Meldrum did not press the opinions of Dr Fish or Dr Stevenson, I reject their opinions in any event. Mr Brearley and Mr Shannon are orthopaedic surgeons and have particular medical expertise to make a diagnosis of a spinal complaint. They essentially agree that the plaintiff suffered a prolapse of the L4-5 disc, however, each then emphasised a different opinion regarding the extent of the plaintiff's injury to her lower back.
33 I am fortified in accepting the opinions of Mr Brearley and Mr Shannon by the opinions of Mr Myers, Dr Sutcliffe and Mr Conroy.
The Affidavits and the Oral Evidence
34 The affidavits sworn by the plaintiff, her husband and her son were very probably drawn by the same person. They bear remarkably close characteristics in the language used which is said to be the language of the plaintiff, her husband and her son.
35 After hearing the evidence of the plaintiff and her husband, I am not satisfied that the affidavits are a real reflection of the evidence of the plaintiff and her husband. Both the plaintiff and her husband strike me as being very simple people of a middle European background with faulty English and fairly basic comprehension. The affidavits reflect far greater sophistication of language and comprehension than the plaintiff and her husband have. However, the fact is that the plaintiff and her husband were prepared to swear that the contents of their affidavits were true and correct. They should have been far more assiduous to ensure that what they swore to was not just someone else's characterisation of the case, but their characterisation of the case.
36 I must have regard to the best evidence in order to make the value judgment which I am called upon to make. Whilst I have paid careful attention to the matters deposed to by the plaintiff, her husband and her son, I have paid far more regard to the oral evidence of the plaintiff and her husband because I consider it to be the more reliable evidence of the plaintiff and her husband.
The Plaintiff's Evidence
37 The major point made by Mr Meldrum against the plaintiff is that she is working full-time and doing overtime, which is inconsistent with someone who submits that she has pain and suffering consequences which are at least very considerable.
38 The plaintiff was absent from her employment for short periods of time after she initially suffered injury. She was off again between 20 September 2004 and 5 October 2004. She was given a certificate by Dr Sulava on 28 January 2005 certifying her as fit to return to work.
39 Prior to suffering injury, the plaintiff worked as a process worker on the malosi line. At present she works on that line for about 10 hours per day with some overtime on Saturdays. The tasks required of her in undertaking that work see her standing on her feet without being able to sit, although she takes intermittent breaks during the course of a shift. She rarely lifts the hams except for those which way about 1 kilogram, and that occurs occasionally because the hams are on a line and do not require lifting.[18]
[18] Transcript 9-12
40 Mr Meldrum referred me to the payment summaries of the first defendant which demonstrate that the plaintiff's income has risen since the financial year ending 30 June 2004.[19] The first of those payment summaries for the year ending 30 June 2004 demonstrates that the plaintiff earned $37,058.74 which included overtime, and the last payment summary for a pay period ending 15 June 2008 demonstrated that the plaintiff earned $62,052.46, which included overtime.
[19] PCB 366, 370, 374, 379 and 383
41 Mr Meldrum also referred me to the plaintiff's taxation returns for the years ending 30 June 2000 to 30 June 2008 for two purposes - the first to demonstrate the plaintiff's increase in income over those years, and, secondly, to demonstrate the income earned by her husband which Mr Meldrum submitted called into question the plaintiff's evidence that she worked to make the precarious financial position of herself and her husband which was partly due to her husband's inability to work.
42 The plaintiff's husband's earnings referred to were as follows:
Financial Year Gross Income Ending 30 June 2000 $4,290.00
2001 Nil
2002 Nil
2003 $792.00
2004 $2,905.00
2005 $20,057.00
2006 $15,478.00
2007 $1,293.00
2008 $375.00
43 Mr Meldrum cross-examined both the plaintiff and her husband on their recollections of the husband’s earnings over those years. Neither the plaintiff nor her husband had a clear recollection of his earnings and when he actually was more substantially employed compared with other years.[20]
[20] Cross-examination of the plaintiff, at Transcript 15-17, and cross-examination of the plaintiff's husband, at Transcript 65-80
44 Mr Collis opened with the plaintiff's case on the basis that the plaintiff's husband had not worked for the past ten years.[21] Mr Meldrum seized upon that part of the opening and submitted that it was clearly wrong. There is no doubt that the plaintiff's husband worked and earned income for the financial years ending 30 June 2003 to 2008, and that at the least over two years he earned a significant income.
[21] Transcript 5
45 Mr Meldrum submitted that the pain and suffering consequences experienced by the plaintiff could not be equated with being at least very considerable because of the fact that she was able to work. Mr Meldrum referred me to Sumbul v Melbourne All Toya Wreckers Pty Ltd[22] and to the observations of Chernov JA:
"… If one accepts, as her Honour did, that the appellant is physically able to return to alternative employment, then, unless there was some other evidence that showed that he experienced significant pain or that he otherwise significantly suffered physically from the injury, it would ordinarily be difficult to conclude that the pain and suffering consequences of it are ‘at least very considerable’. …”[23]
[22] [2006] VSCA 292
[23] at paragraph 24
46 However, Chernov JA did not discount that there might be evidence which showed that the worker was experiencing significant pain notwithstanding that the worker was actually capable of work which might nonetheless equate with serious injury consequences.
47 That point seems to have been very much in the mind of Nettle JA in Dwyer v Calco Timbers Pty Ltd (No.2),[24] when His Honour said:
"Secondly, I suspect that, but for the way in which the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well not have disputed his claim. It is unnecessary for present purposes to reach a concluded view about that and I have not done so. But it would be unfortunate, and in my view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury."[25]
[24] [2008] VSCA 260
[25] at paragraph 3, and also the similar observations of Ashley JA at paragraphs 24-28
48 Mr Meldrum did not submit that the plaintiff was not experiencing any pain and suffering consequences, but essentially that when weighed up against her capacity for work and what he submitted was the real evidence of her inability to engage in general social, domestic and recreational activities of a reasonable value judgment, must lead to the conclusion that the consequences to her were not at the least very considerable.
49 I consider the starting point is to examine the work undertaken by the plaintiff to determine what she is actually capable of doing. The fact that the plaintiff might be at the workplace for the hours she admitted to is one thing, but whether she is actually engaged in tasks which test the tolerance of her lower back is another matter.
50 Mr Michael Oravec swore an affidavit on 17 April 2009. He is a team leader employed by the first defendant. He has known the plaintiff for about fifteen years and has been her team leader for about ten years. He describes her attitude as a worker is essentially being admirable, and importantly, as having a good work ethic and not being much of a complainant.
51 Mr Oravec then described his observations of the plaintiff as follows:
"To my observation Anka did not recover and has never been the same worker since the incident. She still tries her best to continue work. I do notice that she has difficulty with walking and struggles with bending to pick things up off the ground.
Since her injury, Anka has been put on light duties. I recall her duties now involve activities including bookkeeping and from time to time replacing someone on a machine when they go to the toilet."[26]
[26] PCB 42-43
52 Ms Epifania swore an affidavit on 17 April 2009 describing her observations of the plaintiff as follows:
"To my observation she did not recover and has never been the same worker since her injury. She nevertheless did not give up working. From my observations, Anka is not a complainant, and is very hardworking.
Since her work injury, I have noticed that Anka has been given lighter duties, mainly paperwork, such as writing down weights."[27]
[27] PCB 41
53 The evidence of Mr Oravec and Ms Epifania supports the evidence given by the plaintiff only to the extent that the plaintiff's injury has altered her capacity to work. The references they make to the plaintiff undertaking non-manual work, such as bookwork and paperwork, is contrary to the plaintiff's own evidence of the manual tasks which she currently undertakes.[28]
[28] See paragraph 42 above
54 Mr Goran Salopek, the son of the plaintiff, swore an affidavit on 17 April 2009 describing his observations of his mother since she suffered injury. He describes her physical activity as being severely affected with her no longer being active or being able to engage in any physical activity as and when she pleases, adding that she was previously a fit and energetic woman. He described interference with her capacity to garden; undertake domestic tasks around the home; with her capacity to walk due to pain in her lower back and left leg observing her to hobble; drive a motor vehicle; attend social and recreational outings, and observing the plaintiff to lie down due to pain in her lower back and left leg when he has visited her home.[29]
[29] PCB 46-47
55 Mr Salopek also described the assistance which the plaintiff has obtained from his father and his brother's wife in undertaking domestic tasks around her home.
56 The plaintiff's husband was cross-examined by Mr Meldrum for about two hours. In his affidavit sworn 20 April 2009, he described his wife tending to avoid shopping and undertaking domestic tasks and gardening; having difficulty performing self-care and personal hygiene; preferring to have a shower rather than a bath; requiring assistance from him to wash her back and legs; assisting her in putting on her bra; having difficulties standing, sitting, reaching, bending and twisting and similar physical activities; her being affected by pain; sleeping poorly, and not engaging in any social or recreational activities as she once did.[30]
[30] PCB 37-38
57 The plaintiff's husband also described the plaintiff previously been very active with her children and grandchildren and being active physically in a domestic, social and recreational sense.[31]
[31] PCB 39
58 However, when the plaintiff's husband was tested during cross-examination, he described the plaintiff’s inability to engage in a variety of activities as well as she did previously in a less exaggerated way than the way he described her inability in his affidavit.[32] I consider that the plaintiff's husband gave a good account of himself and gave what I regard as a credible account that the plaintiff requires assistance from him and from members of her family on occasions.[33]
[32] The plaintiff's husband was cross-examined about the plaintiff's capacity to cook (Transcript 82); put dishes in the dishwasher (Transcript 83); bath (Transcript 87-88 and 95); do washing and hang it on the line (Transcript 86-89); do up her own bra (Transcript 95-96); iron clothes (Transcript 96); interacting with her grandchildren (Transcript 97); driving a motor vehicle (Transcript 98), and changing linen on beds (Transcript 100).
[33] Transcript 87 and 91
59 Mr Meldrum submitted that I should not accept the plaintiff’s evidence. He referred to many aspects of his cross-examination of the plaintiff which he submitted demonstrated exaggeration on her part when a comparison was made of her oral evidence with what she swore in her affidavits.
60 As examples of the demonstration of exaggeration, Mr Meldrum pointed to:
•
The plaintiff's evidence of her having difficulty doing up her bra in the morning, requiring assistance from her husband,[34] compared with her husband's evidence that he helps her do up her bra rarely.[35]
•
The plaintiff’s evidence of having difficulty dressing, requiring assistance from her husband [36] compared with her husband's evidence that he helps her with some of her dressing requirements rarely.[37]
•
The plaintiff's evidence of having difficulty attending church because of the need to dress, presumably meaning in more presentable clothing fitting such an occasion, and the necessity to kneel during a church service.[38] The plaintiff's husband made no reference to any problems the plaintiff experiences attending church services.
•
The plaintiff's evidence in her affidavit sworn 12 February 2008 in which she refers to significant problems with self-care and personal hygiene and specific reference to bathing[39] compared with her husband's affidavit sworn 20 April 2009, in which he refers to helping her wash her back and legs, but during cross-examination he said he might do that once a year.[40]
•
The plaintiff's evidence that she does little cooking now compared with her husband's evidence that the plaintiff does the lighter cooking and he does the heavier cooking.[41]
•
The plaintiff's evidence that she is unable to do much clothes washing or hang the washing out on the line.[42]
•
The plaintiff’s evidence that she is unable to do much shopping on her own and without assistance from her husband.[43]
[34] Transcript 23-25
[35] Transcript 96
[36] Transcript 21-26
[37] Transcript 96
[38] Transcript 21-22
[39] PCB 15 , but also in her second affidavit sworn 19 April 2009 and at PCB 24
[40] PCB 37 and transcript 94
[41] Transcript 27 and 82
[42] Transcript 28-31
[43] Transcript 33-40
61 Mr Meldrum showed the plaintiff a short film taken on 21 February 2009.[44] On the two occasions which I viewed the film, the first when it was shown to the plaintiff, and later when reconsidering the film, I was unimpressed by what it showed.
[44] Exhibit 2
62 In summary, the film showed the plaintiff:
ƒ At about 9.21 am standing in a queue at a post office. ƒ At about 9.27 am at delicatessen, and on one occasion reaching to take an
item from a person who served her.ƒ At about 9.42 am in a car park, at which time she demonstrated slight
bending at the back.ƒ At about 9.55 am entering a supermarket armed with a red plastic supermarket basket, and between about 10.02 am and 10.06 am, she carried the red plastic supermarket basket and raised her right arm at about head level on two occasions; her left arm at about head level on four occasions, and at about knee-high on one occasion.
ƒ At about 10.06 am, she put the red plastic supermarket basket on the floor.
It appeared to have a number of items in it. She then picked it up.ƒ At about 10.09 am, the plaintiff returned to her motor vehicle. 63 The foregoing is a simple summary of some aspects of the film which essentially showed the plaintiff on a shopping trip. Mr Meldrum submitted that the activity shown on the film demonstrated that the plaintiff had a significant level of movement in her lower back and that it was in stark contrast to the evidence given by the plaintiff of her level of incapacity generally.
64 I reject that submission out of hand. The film showed very little which was in conflict with the plaintiff's oral evidence. It was hardly the momentous piece of evidence which Mr Meldrum submitted it was.
65 After listening to the plaintiff’s oral evidence and that of her husband, I was left with the strong impression that the plaintiff is capable of working at her present level, however, she is assisted by her husband to a fair extent in undertaking general domestic tasks in their home, and she otherwise limits the non-working activities in which she engages.
66 I consider that the plaintiff made her point very well, that whilst she is capable of working, she limits the social, domestic and recreational activities in which she engages to save her strength and to make sure that she is able to work the following day.[45]
[45]67 I reject the submission made by Mr Meldrum, that the plaintiff's credit was so affected by the cross-examination he conducted that I should reject the plaintiffs evidence out of hand, and furthermore, that the evidence of the plaintiff's husband is also very unsatisfactory, and therefore, unreliable, as is the evidence of the other witnesses.
68 Mr Meldrum also made an attack upon the plaintiff's credit based upon histories which she gave to examining medical practitioners. He referred to the history given by the plaintiff to Dr Kornan, psychiatrist, that the plaintiff had been overseas a few times. The plaintiff said she had been twice to visit her sick mother.[46]
[46]
69 Mr Meldrum also referred the plaintiff to a history she gave to Mr Myers, surgeon, that she had purchased a walking machine. The plaintiff said that she had in fact purchased a walking machine but had not used it. She also said that she had purchased a machine with magnets and a blanket with magnets to self-treat her lower back.[47]
[47]70 In the course of his final address, Mr Meldrum referred me to all of the medical reports, drawing from them histories which he submitted were in conflict with the plaintiff’s evidence. Apart from histories given to Dr Kornan and Mr Myers, the other histories Mr Meldrum referred me to were not put to the plaintiff.
71 It occurs to me, through experience, that often medical practitioners take histories which appear to be at odds with the evidence given by workers. That history cannot always be treated as a reliable record, but, of course, it can be used as being against the interests of the plaintiff, depending on whether it is accepted that what the worker said is what the medical practitioner recorded, but in order to test that properly, the histories relied upon by Mr Meldrum in his attack upon the plaintiff’s credit should have been put to her.
72 Ms Malpas submitted that to a large degree the attack made upon the plaintiff was without merit and that there was a thread of consistency in the evidence that the plaintiff had suffered an injury to her lower back which impaired the function of her lower back and which had consequences for her which, if I accepted her evidence, were at the least very considerable.
Serious Injury or Not?
73 The issues which are not in contest between the plaintiff and the defendants are that the plaintiff did suffer an injury to her lower back; that the injury impairs the function of her lower back; that the impairment is permanent, and that she has consequences of that impairment.
74 At the heart of the attack made by Mr Meldrum upon the plaintiff is not that there are no consequences, but that the consequences need to be measured in two ways: firstly, the plaintiff's credit and that of her husband and her witnesses; and secondly, the fact that the plaintiff is working.
75 I have already made all the observations I am going to make about the affidavits which were prepared for the plaintiff and her witnesses, and that I will have regard to the oral evidence of the plaintiff largely because the cross- examination conducted by Mr Meldrum covered practically every aspect of the claims made by the plaintiff that the impairment of the function of her lower back impacts upon her capacity to work and aspects of her daily life. The cross-examination gave me a very full picture of the plaintiff and the consequences which she says flow from the impairment of function of her lower back.
76 I am also concerned to have regard to a number of authorities which direct me to the method I must follow in making a value judgment whether the plaintiff's claim for pain and suffering consequences is at least very considerable.
77 A similar issue arose in Cakir v Arnott’s Biscuits Pty Ltd.[48] The trial judge found that the plaintiff was not a credible witness. The plaintiff gave an inaccurate history regarding previous back problems. Neave JA observed:
“However, even if the appellant deliberately denied that he had previously suffered from back problems, an adverse finding on the appellant’s credibility did not, in my view, justify refusal of the appellant’s application. In order to conclude that the appellant was not entitled to leave to commence common law proceedings it was necessary for his Honour to analyse and give appropriate weight to all the evidence both as to the cause and as to the seriousness of the appellant’s injury. …”[49]
[48]
[49] at paragraph 49
78 Furthermore, in Forder v Hutchinson,[50] Nettle JA made the following relevant observations:
“In the fifth place, I consider that the judge was in error in confining his analysis to an assessment of the appellant’s and the respondent’s credibility. That may well have been a logical place to start, but it was by no means the place to finish. The question for the judge was not merely whether he accepted or rejected the appellant as a witness of truth, but whether the inference could properly be drawn from the whole of the evidence that the respondent’s manipulation of the appellant’s neck caused the appellant’s symptoms. It was necessary therefore for his Honour to consider the evidence which stood independently of the appellant’s testimony and then to consider it in conjunction with the appellant’s testimony. That evidence included the physiological evidence recorded in Professor Terrett’s and Mr Kingsley Mills’ reports; the opinions recorded in their reports; and the respondent’s admissions. His Honour ought also have taken into account the opinion of Dr Gale. As noted earlier, Dr Gale said there had been reports of damage to the vertebral arteries occurring after or as a result of neck manipulation and that, in this instance, if there were rapid movement towards the left, a vertebral artery, which passes to the brain in the cervical vertebrae, could have been involved. If that occurred, Dr Gale said, it could provide another possible mechanism for the appellant’s symptoms, when, due to some altered blood circulation in the brain, some disturbance of vestibular functions could have been initiated.” [51]
[50] [2005] VSCA 281
[51] At paragraph 42. In Allsmanti Pty Ltd v Ernikiolis [2007] VSCA 17, per Ashley JA, at paragraphs 47- 49, who observed that film and the plaintiff's presentation to examining medical practitioners was only part of the evidence in that case and did not disable the trial judge from considering all of the evidence going to the question of whether the plaintiff had suffered a serious injury. In Grace v Elmasri and Transport Accident Commission [2009] VSCA 111, at paragraph 136, the Court of Appeal overturned the decision of the trial judge in denying a plaintiff serious injury where the trial judge considered that the plaintiff's credit was seriously impugned, observing that the trial judge was required to weigh the whole of the evidence and to look at all of the factors raised in the application in an overall context.
79 In line with that approach, I have analysed the plaintiff's evidence and all of the medical evidence and have reached the following conclusions:
•
The plaintiff suffered an injury to her lower back consistent with the description of the injury made by Mr Myers, Dr Sutcliffe and Mr Brearley, that is, a disc injury at L5-S1 with irritation of the L5 nerve root.
•
As a consequence of suffering the injury to her lower back, the plaintiff was unable to work during the periods referred to in paragraph 16 above, and at present performs work which is lighter in nature than she previously performed.
•
The plaintiff limits her domestic, social and recreational activities for the purpose of saving her strength so that she can continue working.
•
The plaintiff is limited in being able to undertake the activities on which she was cross-examined at length, such as cooking; loading the dishwasher; bathing; washing clothing and hanging clothing on the line; ironing clothes; interacting with her grandchildren; driving a motor vehicle and making beds, and otherwise has a capacity for work where the work is no more onerous than what she is doing now.
80 I do not accept that in some way the plaintiff was so beguiling and seductive that she was able to convince Dr Sulava, Mr Myers, Dr Sutcliffe, Mr Brearley, Mr Shannon and Mr Conroy that she had suffered an injury of the grade which I find she suffered, and that they were equally beguiled and seduced by the plaintiff's obvious loss of movement when she was physically examined.
81 It is very common in serious injury applications to see medical practitioners undertake examinations which they consider are inconsistent with other behaviour observed in the examination room or inconsistent with their reckoning as to what the injury is likely to produce by way of loss of movement. It was only Dr Stevenson who found little abnormality.
82 None of the medical practitioners whose evidence I accept suggest that there is any conscious embellishment evident in the histories given by the plaintiff or in the product of their clinical examinations of the plaintiff.[52]
[52] It was only Dr Stevenson who found little abnormality, at PCB 112
83 However, Mr Meldrum made a point which requires some consideration that the plaintiff did not inform any of the medical practitioners that she is undertaking overtime.
84 In informing the examining medical practitioners that she is working full-time, the plaintiff gave them the impression that she is working a full week which, in ordinary estimations, would be about 40 hours per week. The plaintiff is probably working 50 hours per week, which I do not consider is as compelling as Mr Meldrum submitted as constituting a basis upon which those medical practitioners would have changed their opinions, given that they found an organic basis for her complaints of pain and disablement and made no adverse comment about her behaviour when examined.
85 What this brings me to now is whether what the plaintiff continues to be capable of doing on a domestic, social and recreational basis and in a working context are such that the consequences of the impairment of the function of her lower back do not meet the standard of being at least very considerable.
86 What I consider to be the most compelling evidence in favour of the conclusion that the pain and suffering consequences are at least very considerable is the opinion of Dr Sulava from which I have quoted in paragraph 18 above. It is entirely in accord with the evidence of the plaintiff that she manages to maintain her work by adjusting her activities outside work.
87 Furthermore, I accept the plaintiff’s evidence that she is relies upon medication to tolerate the levels of pain she experiences, and that she uses Mobic and Panadeine Forte for pain relief as prescribed for her by Dr Sulava.[53]
[53] Transcript 56
88 It occurs to me that the plaintiff has given a good account of herself. I accept her evidence of how she is able to maintain her connection with her work and the accommodation she makes by not engaging in domestic, social and recreational activities as she once did; that she is in pain produced by the disc injury and has leg pain as well, and requires prescriptions of medication to cope with her pain.
89 The contrast between how the plaintiff is now and what she was like before she was injured is therefore quite obvious. I do not accept that necessarily working as she is carries with it such a degree physical capacity that the plaintiff is therefore disentitled from obtaining serious injury. Looking, as I must, at the impairment of function of the plaintiff’s lower back and what consequences flow from it, I conclude that the consequences to the plaintiff are at least very considerable when the necessary comparison is made as I have described it in my discussion of the statutory scheme.
Conclusion
90 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB (16)(b) of the Act to recover damages for bodily injuries for pain and suffering arising out of her employment with the first defendant on 1 November 2002.
91 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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| Transcript 30 Transcript 61-62 |
| Transcript 59 [2007] VSCA 104 |
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