Schirmer v Nexxt Health Pty Ltd
[2011] VCC 402
•1 April 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-01813
| SERENA LOUISE SCHIRMER | Plaintiff |
| v | |
| NEXXT HEALTH PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 31 March and 1 April 2011 |
| DATE OF JUDGMENT: | 1 April 2011 |
| CASE MAY BE CITED AS: | Schirmer v Nexxt Health Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 402 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – whether the consequences of an injury to the lower back in terms of pain and suffering were very considerable: Section 134AB (c)
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I R Fehring | Ryan Carlisle Thomas |
| For the Defendant | Ms A Ryan | Lander & Rogers |
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed on 29 April 2010 by which the plaintiff applies for leave pursuant to s.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 or in the course of her employment with the defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering only.
3 Mr I Fehring of counsel appeared for the plaintiff, and Ms A Ryan of counsel appeared for the defendant.
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:
• The plaintiff gave evidence and was cross-examined; • Dr Albarki, general practitioner, gave evidence and was cross examined; • The plaintiff tendered her Court Book, pages 5 to 45: Exhibit A; • The defendant tendered films taken of the plaintiff: Exhibit 1; • The defendant tendered its Court Book, pages 2 to 60: Exhibit 2; •
The defendant tendered an extract of the clinical notes of Dr Dessauer, general practitioner: Exhibit 3.
The Statutory Scheme
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”.
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 he suffered arising out of the course of his of 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)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities.
(d)
Sub-section (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”.
(e)
Sub-section (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.
(f)
Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently.
(g)
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 sub-s.(38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[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
8 I am required by s.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
9 The plaintiff was born on 23 April 1974. She is a married woman with two children. She formerly worked with the defendant. She now works with a different employer, and I will refer to the situation with her work later in these reasons.
Medical Treatment
10 The plaintiff's medical treatment is adequately described in her first affidavit sworn 18 December 2009.
11 It would appear that the plaintiff firstly consulted Dr Albarki, who referred the plaintiff to Mr Lo, neurosurgeon, and also to a physiotherapist.
12 At present, the plaintiff's medical treatment comprises monthly reviews by Dr Dessauer, and the use of a prescription medication known as Cymbalta, which the plaintiff described as being both an anti-depressant and a muscle relaxant, and Nurofen and Nurofen Plus, which is anti-inflammatory which can be purchased over the counter from a pharmacist.
The Medical Opinions
13 It is not necessary for me to describe the medical opinions in any particular detail. It seems to be that the preponderant view of the examining medical practitioners is that the plaintiff suffered a discal injury at L4-5, which produced some radicular pain affecting her left leg.
14 It seems tolerably clear to me that the medical examiners disagree as to the gravity of the particular injury; however, given that this is a gateway application, it is unnecessary for me to define the pathology in a precise manner but rather, to be satisfied that an injury was suffered by the plaintiff for the purpose of then determining what body function has been impaired and whether the impairment is permanent.
15 In the course of the opening addresses made by Mr Fehring and Ms Ryan, and also in their closing addresses, it became very clear to me that no issue is raised in this application concerning the identification of the injury suffered by the plaintiff, nor whether it impairs a body function, nor whether the impairment is permanent.
16 The real issue centred around whether the consequences suffered by the plaintiff meet the statutory test.
The Consequences
17 I have read the affidavits sworn by the plaintiff on 18 December 2009 and 3 March 2011, and also the affidavit of Simone Michaels sworn 28 March 2011, and Grant Schirmer sworn 31 March 2001. Mr Schirmer is the husband of the plaintiff.
18 I have carefully considered the evidence of the plaintiff, Miss Michaels and Mr Schirmer, and also the oral evidence given by the plaintiff, tested by Ms Ryan during her cross-examination of the plaintiff.
19 The plaintiff struck me as being a tolerably straightforward woman, who I consider gave a very good account of the consequences to her of the injury, which I have described. I have little hesitation in accepting her evidence, save with some exceptions which I will refer to later in these reasons.
20 I find that the consequences, which I am satisfied that the plaintiff has suffered are the following:
•
The plaintiff has persistent pain in her lower back requiring the use of anti-inflammatory medication, that is, Nurofen, taken daily, varying between two to three tablets per day. I am also satisfied that the plaintiff requires periods of rest after returning to her home from work, which vary between half-an-hour to two hours, depending upon the extent of the pain experienced by the plaintiff, and the demands of her domestic life.
•
I find that the plaintiff has restriction in her movements to the extent described by the examining medical practitioners which has deprived her of the full, free and unrestricted movement and use of her lower back. Again, that seems to be a view expressed by all of the examining medical practitioners.
•
If find that the plaintiff became unable to continue her work with the defendant. She attempted a return to work in early 2008. It lasted about three months or so. On the basis of the description deposed to by the plaintiff, it would appear that that work was tolerably arduous. However, the plaintiff has been able to return to work with the Rochedale Institute, where she is involved in what would appear, without any doubt, to be suitable light employment, absent the arduous nature of the work which she previously undertook. She works from 8.30 am to 5.00 pm, five days per week. It would appear to be the sort of work which the examining medical practitioners, who were asked to turn their mind to the plaintiff's employability, would consider to be suitable.
•
I accept what the plaintiff has deposed to in her affidavits as constituting the consequences which presently impact upon her social, domestic and recreation routine, and in particular, paragraphs 9 to 10 of her affidavit sworn 18 December 2009, and paragraphs 1 to 5 of her affidavit sworn 3 March 2011. It is would appear to me that there are very few aspects of her social, domestic and recreational routine which have not been affected by the impairment of the function of her lower back, much of which was not the subject of challenge.
21 The central challenge to the plaintiff's case would appear to me to be made on a two-fold footing. Firstly, the fact that the plaintiff is presently working, which demonstrates a capacity to function at a particular level and, secondly, what is shown in films taken of the plaintiff, much of which was taken recently.
22 I am not satisfied that the fact that the plaintiff is capable of working, is a complete answer to the application brought by the plaintiff. The evidence which I accept demonstrates that the plaintiff has suffered a major level of interference with the normality of her life as she once understood it to be prior to the occurrence of the injury.
23 It seems to me that what the films demonstrate is that the plaintiff has the capacity to drive, to walk, to shop and to otherwise move with some degree of freedom; however, when a comparison is made with what the plaintiff has deposed to in her affidavits, and the history she gave to the examining medical practitioners, there was nothing that I saw which suggests that the plaintiff cannot drive, or walk, or shop, or that she has ever suggested that those activities are so impaired as to be matters which she is incapable of engaging upon.
24 It is clear enough to me, and a matter referred to by Mr Fehring, that on one occasion the plaintiff entered a supermarket with a female friend, or so it would appear, who pushed the supermarket trolley for the plaintiff, and the only significant activity engaged upon by the plaintiff was removing the plastic bags containing goods purchased at the supermarket from her right-hand side and placed them into the rear-carrying tray of a small four-wheel drive, to her left-hand side. An activity which, on my understanding of what was physically involved, hardly affected the plaintiff's lower back, in that the movements were very limited.
25 Otherwise, the attack made upon the plaintiff's case is that she has married; she has children; she has been able to go on holidays; she has been able to attend her mother's birthday at a restaurant on one occasion, and that she has been able to keep in touch with aspects of her former life, which Ms Ryan submitted, when all of the above is weighed up, does not create a platform from which one can conclude that the statutory test has been met.
Conclusion
26 The conclusion that I have reached is that upon applying the relevant value judgment, which a judge is called upon to apply, and measuring whether the consequences to a plaintiff equate with the statutory test, I am driven to the conclude that the consequences to plaintiff affect nearly aspect of her life. She suffers pain; she suffers restriction of movement, and she resorts to medication in sufficient quantity to take it outside simple and modest quantity as if to treat pain of a modest nature.
27 Furthermore, the plaintiff is a wife and a mother, and no doubt, to a wife and a mother, the capacity to engage in the sorts of domestic activities in keeping a house are of central importance, as is the capacity to engage in social and recreational activities with one's spouse and children.
28 It seems to me that those aspects of the plaintiff's life have been affected in a major way. The fact that the plaintiff attended at Sea World in Queensland with her children, may show a capacity to take her children to a place of recreation of that kind, but the evidence fell very, very significantly short of suggesting that the plaintiff engaged in any activities which would suggest that she has a back condition of a lesser degree than I consider it to be.
29 There are many authorities which condescend in some degree of particularity as to what a judge must be satisfied about in determining whether the pain and suffering consequences equal the statutory test. It seems to me that what a judge is called upon to do is to determine what are the consequences which are more likely than not to satisfy the statutory test.
30 Very often what a judge sees in cases which are clearly serious are characteristics which I consider to be present here, but without unintentionally repeating what I have already said, the presence of persistent pain; the necessity to resort to medication; the inability to undertake simple social domestic and recreational activities which were once part of one's life, all when gathered together give me the strong impression that this is not a case of some modest interference with the plaintiff's capacity to function in that overall sense, nor do I consider that “significant” or “marked” are apt descriptions of the plaintiff’s consequences.
31 It is for foregoing reasons that I consider that the plaintiff has adequately satisfied the statutory test, and therefore I am satisfied that she has suffered an injury to her lower back comprising a discal injury at L4-5 which impairs the function of her lower back, and that the impairment is permanent. I am also satisfied that the consequences as I have found them to be in this case, satisfy the statutory test relevant to pain and suffering.
Orders 32
On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s.134AB(16)(b) of the Act to recover damages for the injury giving rise to the pain and suffering consequences which have arisen out of her employment with the defendant.
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