Schryver v Healthscope Limited (trading as Clinical Laboratories Pty Ltd)
[2016] VCC 1857
•7 December 2016
| IN THE COUNTY COURT OF VICTORIA AT WANGARATTA COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-14-03400
| NICOLE SCHRYVER | Plaintiff | |
| v | ||
| HEALTHSCOPE LIMITED (TRADING AS CLINICAL LABORATORIES PTY LTD) | Defendant | |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Wangaratta | |
DATE OF HEARING: | 19 and 20 October 2016 | |
DATE OF JUDGMENT: | 7 December 2016 | |
CASE MAY BE CITED AS: | Schryver v Healthscope Limited (trading as Clinical Laboratories Pty Ltd) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1857 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the lower back/lower spine – pain and suffering only – range case – credit – extent of injury – consequences
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T S Monti QC with Mr S J Carson | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr P B Jens QC with Mr J L Batten | Lander & Rogers |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) for injury suffered by the plaintiff in the course of her employment with the defendant on or about 21 June 2010.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious injury” is defined as meaning:
“A permanent serious impairment or loss of body function”.
5 The body function relied upon in this application is the lower back/lower spine.
6 The plaintiff relied upon three affidavits sworn by her on 18 February 2014, 18 August 2015 and 10 October 2016. The plaintiff was cross-examined. I have not summarised the affidavits and the further evidence the plaintiff gave; however, I will refer to the relevant evidence of the plaintiff in my reasoning. In addition, both parties relied upon medical reports and other material which was tendered in evidence.
7 I have read all of the tendered material.
The issues
8 Counsel for the defendant informed the Court that there were a number of issues in this case:
(a) principally, that this is a “range case”; namely, that the consequences flowing from the plaintiff’s injury do not meet the test of seriousness for pain and suffering, in that they could not be considered “as more than significant or marked”, and as being “at least very considerable” when compared to other cases in the range;
(b) the plaintiff’s credibility;
(c) the current level of activity of the plaintiff as outlined in her affidavits was in dispute; and
(d) any change in lifestyle of the plaintiff as a result of the work injury was minimal.[1]
[1]Transcript (“T”) 10, L1-18; T11, L13-15
Surveillance
9 The plaintiff was under surveillance on 6 and 13 December 2014 and 6 and 24 September 2016. In cross-examination, the plaintiff was shown the abovementioned surveillance, and counsel for the defendant questioned her on its contents. I have summarised the surveillance material and the plaintiff’s evidence below.
Surveillance of 6 December 2014
10 On 6 December 2014, the plaintiff was shown standing with her horses. She walked with a blue bucket in her hands. She closed the boot of her car with one hand and looked at her horses with her hands on her hips. She gestured several times with her right arm at the horses. She used her whole body to duck under the wire fence and got into her car.
11 She was later shown at the pet store. She leant to the right to put her arm through the driver’s-side window. A staff member carried bags to the boot of her car. The plaintiff carried one bag down low with two hands, walking towards her car. A staff member took the bag from her and put it into her car boot. In cross-examination, the plaintiff agreed she carried the bag awkwardly and said normally staff carried the bags. She could not say why she carried the bag.[2]
[2]T67, L1-12
12 The plaintiff was then seen crossing the road with her son. She withdrew money from an ATM. The plaintiff and her son walked down the road to Subway where they had lunch and left. The plaintiff was seen getting into her car and appeared to get in normally. She reversed her car and drove away.
13 Later that day, the plaintiff was seen at the service station. She was observed to get into the car swiftly before reversing. The plaintiff was seen filling up her car with her left hand on her hip. She appeared to get into the car with ease and close the door.
Surveillance of 13 December 2014
14 On 13 December 2014, the plaintiff was observed behind trees talking to someone. The plaintiff was then seen back with her horses. She leaned forward to see underneath one of her horses. She stood up to rub her horse’s coat with one arm. She was observed next to the horse with her hands on her hips. She walked over and leant forward with her body to grab a bucket with her left hand. She carried the bucket in only her left hand.
15 The plaintiff was shown sitting in the driver’s seat of the car. She got out, opened the boot and was observed with a vacuum cleaner hose in her left arm and leant into the boot of her car. She was seen vigorously moving it backwards and forwards for a few minutes with both arms while leaning forwards. She lifted the hose upwards in a sharp motion with her left arm to pull it around the side of the car. She then leant into the driver’s side of the car, presumably vacuuming there. She walked back around the car to return the hose. She got back into the car and shut the door. In cross-examination, the plaintiff agreed she was driving a replacement car as her car had been damaged. She said she was removing the hay in the car boot using the vacuum cleaner. She agreed she used some vigour. She said she had no choice. I note that the cleaning took about four minutes according to the surveillance.[3]
[3]T66
16 The plaintiff was seen talking to a man. She appeared to get into the car normally and close the door. The plaintiff was then observed with her son walking into a store. She was seen walking to her car and carrying a large heavy bag at chest height with two arms around it. She placed it onto the ground, opened the boot with her left arm and bent forward to lift the bag into the boot. In cross-examination, the plaintiff agreed she was seen carrying a large bag of dog food which she placed into the boot of the car. She estimated it weighed between 12 to 15 kilograms. She said she buys a lot of dog food and there was no attendant at that store to carry the bag.[4]
[4]T68 – 70
17 The plaintiff was seen arriving at a fresh food market. She walked with one shopping bag in her left hand and a handbag over her left shoulder. She browsed at the stores with her son for several minutes. The plaintiff had two shopping bags held in her left hand. She browsed at other stalls. The plaintiff appeared to get into the driver’s side of the car and put the bags in the back before returning to the market. The plaintiff was observed browsing more, buying and returning the car with her son. She got into the car. In cross-examination, the plaintiff agreed she just climbed into the car and drove away.[5]
[5]T69
Surveillance of 8 September 2016
18 On 8 September 2016, the plaintiff got out of her car and closed the door behind her. She lifted the car boot with her left arm. She used sharp motions of her right arm to throw food at her horses taken from a bucket. She retrieved two buckets from her car, which appeared to be heavy, and carried them closer to the horses. She bent down to put the buckets on the ground. She repeated this with another two buckets. The plaintiff bent over to empty one of the buckets and shook it to remove all of its contents. The plaintiff was observed carrying two buckets, which appeared to be heavy, and she walked while holding those buckets. She appeared to groom the top of one of her horse’s coats with a brush. She walked around the horse, brushing it with sweeping motions of her right and then left arm for several minutes, according to the surveillance. She bent forwards slightly to brush the horse’s legs. The plaintiff was observed to clean the brushes. She bent forwards and twisted her head to the right to see underneath the horse. She brushed its coat underneath. She stood upright with her hand on her right hip. The plaintiff was seen standing up and brushing the coat of a different horse, a white horse. She walked around the horse, brushing it up and down. The plaintiff was then seen brushing a different horse’s coat. She bent slightly to reach under that horse.
19 In cross-examination, the plaintiff agreed that she would have worked at the medical practice until 4.00pm on this day before caring for her horses. She said that this was a “chore component of a recreation”.[6] She told the Court that grooming her horses was part of what she did each day and was particularly intensive work.[7] Further, she agreed she had taken on this activity since suffering her work injury and knowing it would be a daily task.[8]
[6]T30, L14-15
[7]T30
[8]T29 – 33
Surveillance of 24 September 2016
20 On 24 September 2016, the plaintiff was seated on a bench, smoking behind a brick wall. She was then seen arriving at a store where a staff member carried a bag to her car. The plaintiff was seen outside the Chemist Warehouse looking at products. She bent forward to look at products in a box on the ground.
21 Later, the plaintiff got out of her car. She turned around to lean into the car and then bent down to put on gumboots. The plaintiff was again with her horses. She was leaning over, doing something at ground level. She again bent forward to rub the legs of one of her horses. She walked around to the other side of the horse to bend forward and clean its front hooves. She squatted beside the horse to clean the hooves further. The plaintiff made her way to the back of the horse to clean the other hooves in the same manner. She walked back around the horse to clean the front hooves again. She stood with both hands on her hips, looking at the horses for several minutes, according to the surveillance. The plaintiff was squatted next to her horse before standing up to put her hands onto her hips. She walked around with her hands on her hips. The plaintiff then carried a bundle of something in both hands and threw it on the ground. She bent over to pick up another bundle and threw it elsewhere. She ducked her whole body under the wire fence to leave. In cross-examination, the plaintiff agreed with counsel for the defendant that she was cleaning all of the hooves of one of her horses by lifting the foot up to remove the dirt from inside the hoof.[9] She told the Court that she was “standing with my hands on my back for a good five minutes afterwards stretching my back”.[10]
[9]T45, T48, L18-19
[10]T48, L22-24
Surveillance Summary
22 In all of the surveillance material shown to the Court, the plaintiff was seen to care for her horses, which involved bending and twisting on a number of occasions when she was inspecting her horses’ hooves. She was seen ducking underneath paddock fences and standing with her hands on her hips on a number of occasions. She agreed that caring for her four horses was a daily task, which she undertook after she had completed her work commitments. On occasions, she was seen to lift buckets of which some appeared to be light and some heavy. The surveillance showed her carrying bags of dog food to the boot of her car, which weighed between 12 to 15 kilograms, on the plaintiff’s evidence. It also appeared to show the plaintiff getting into and out of her car with no apparent difficulty. The plaintiff was also seen vacuuming the boot of a car with some vigour.
23 I conclude that the surveillance showed the plaintiff engaged in normal everyday activities without any obvious restrictions to her movements. I take this into account when assessing the plaintiff’s credit.
Credit
24 There were a number of issues raised by counsel for the defendant, which impacted upon the plaintiff’s credibility. In particular, the plaintiff’s answers to questions throughout cross-examination, the accuracy of her background given to medical witnesses and failing to tell the Court in her affidavits that she owned and cared for four horses after the work injury.
25 Firstly, in answering questions during cross-examination, I observed that the plaintiff was often reluctant to answer the question asked by counsel for the defendant. On occasions, counsel was forced to put a question a few times before it was directly answered by the plaintiff.
26 For example, the plaintiff was questioned on whether she had received chiropractic treatment and was evasive in answering the question:
Q: “… you haven’t reported to doctors I suggest and yet you had a bit of backache as it were for maybe a month or two or a few months before June 2010, and you’d seen a chiropractor for that, but otherwise, you hadn’t needed any treatment et cetera for your back, et cetera?---
A:I didn’t have a back injury. I used to get - - -
Q: You heard my question? You’ve told doctors - - - ?---
A:That I - - -
Q: Maybe for two or three months you might have seen a chiropractor for your back before this incident but otherwise - - -?---
A: I don’t recall making that statement to a doctor.
Q: So what is the truth then? What did you do about your back before June 2010?---
A: I used to attend a chiropractor for general wellness as it’s quite common practice that people do that - - -
Q: We don’t need to know what’s quite common practice. We just want to know what you did?---
A:I’m just saying, I didn’t attend the chiropractor specifically for any injury.”[11]
[11]T16, L18-19
27 Another instance of evasiveness was where the plaintiff was asked about her prescription of Mobic anti-inflammatory medication. Counsel asked:
Q: “You had one prescription for it, didn’t you?---
A: Yes
Q: That was many years ago?---
A: That was 2010 or 11.
Q:Yes. Otherwise, it’s over-the-counter medication?---
A:I’ve been offered stronger pain management medication.
Q:You heard my question. Otherwise you take - - - ?---
A:I take over-the-counter stuff, yes.”[12]
[12]T26, L28-31
28 On occasions, the plaintiff also volunteered additional information to the question being asked by counsel for the defendant. In relation to the plaintiff’s ability to drive since the work injury, Counsel said:
Q: “You tell us if you drive for five minutes you’re in agony to get out of the car?---
A:It’d be barely five minutes to property, but yes, I got out of the car.
Q:Just got out of the car and put your boots on and went into the paddock and started playing with the horses?---
A:I didn’t say I lay on the ground and thrashed and screamed in agony. I said I’m in pain.
Q:Did anyone else?---
A:What?
Q:Did anyone else say that, that you lay on the ground and thrashed and screamed in agony?---
A:No, but I mean, how can you determine pain from watching me get out of a car?” [13]
[13]T49, L9-19
29 I accept that, on occasions in cross-examination, the plaintiff failed to directly answer questions put to her and volunteered additional information. However, this may be due to the fact that the plaintiff was unfamiliar with being cross-examined and the court process in general.
30 Secondly, counsel for the defendant asserted that the fact the plaintiff gave an inaccurate history to her medical witnesses, put her credit in issue.
31 The plaintiff reported to Mr Brearley, Professor Bittar and Mr Dooley that her activities are restricted. The plaintiff told Mr Brearley she is limited in her dog-showing interests and she frequently misses shows. She no longer goes bushwalking or horse-riding. She said she owns seven horses, but is apprehensive about getting on them. She cannot engage in karate now. The plaintiff reported to Professor Bittar that she no longer rides horses or engages in karate. She previously enjoyed showing dogs on a frequent and regular basis and is only able to undertake this activity every six weeks on average. The plaintiff reported to Mr Dooley that she had been very active in the past. She used to engage in karate, show English settler dogs but does less showing now. She is unable to ride horses but she owns horses.
32 During cross-examination, the plaintiff’s evidence was that she enjoyed bushwalking with her older children. She no longer feels confident bushwalking because of the terrain. However, the only evidence as to how often she bushwalked at the time of the work injury is that she last bushwalked in early 2010.
33 In relation to horse-riding, the plaintiff’s evidence was that she had not ridden a horse for many years.
34 The plaintiff’s evidence as to karate was that she ceased karate because her trainer ceased training. However, she did have a bag which she would use on occasions.
35 The plaintiff told the Court that she had shown her dogs in 2016 at the Royal Melbourne Show. In cross-examination, she agreed that she showed her dogs in June, August, September and October 2016. She had driven to Melbourne and Albury to show her dogs.
36 I formed the view that the plaintiff exaggerated her involvement in bushwalking, horse riding and karate at the time of the work injury.
37 Thirdly, counsel for the defendant submitted that the plaintiff was misleading in her third affidavit where she said, at paragraphs 4 and 5:
“4.I continue to work at the Docker Street General Medical Centre in Wangaratta. I still work with pain every day. My hours are about to reduce. I will be working from 9.00am until 1.00pm for 3 days per week, 8.15am until close (about 5.30pm) for 1 day per week and 10.30am until close for 1 more day per week.
5.In terms of my pain levels, I am happy that my hours are going to reduce. As set out in my last affidavit, I find that by the end of a working day I am in a lot of pain and I very much need to rest the back just so that I am again able to go to work the next day. The 2 longer days of work are particularly onerous.”[14]
[14]Plaintiff’s Court Book (“PCB”) 17
38 Counsel for the defendant submitted to the Court that the plaintiff was suggesting that at the end of her day at work, she was in a lot of pain, which was in contrast to the surveillance material that showed the plaintiff caring for her horses following her work commitments.
39 In cross-examination, the plaintiff said that the words “end of a working day” in her affidavit meant after she had completed her daily chores, which included caring and feeding her horses.
40 I take the view that paragraphs 4 and 5 of the plaintiff’s affidavit are meant to be read together and refer to her working day, which did not include feeding and grooming her horses.
41 The plaintiff’s affidavit material was silent on her owning, caring and riding horses. On this aspect, I thought the plaintiff’s evidence was not forthright. Much was made by counsel for the defendant that the plaintiff had made it a “secret” from the Court that she owned horses and that she was responsible for their wellbeing.[15] In cross-examination, the plaintiff agreed there was no mention in her affidavits of this activity. She said she did not realise the omission was of any significance because they were her pets.[16] I accept the plaintiff’s explanation for the omission. I accept that these are matters I can take into account; however, I would be reluctant to infer the plaintiff failed to disclose this information on purpose as it is unclear what questions were asked of her by her lawyers in preparation for the affidavits.
[15]T50, L22
[16]T50, L24-25
42 In Court, the plaintiff was reluctant to agree that when she initially sought treatment from her chiropractor, Ms Lloyd, in 2007, she reported inter alia low back pain. This was confirmed by Ms Lloyd in her reports dated 2011 and 2015.
43 In considering the credit of the plaintiff, I must consider the evidence as a whole. Overall, I formed the view that the plaintiff tended to exaggerate the consequences of her injury in the evidence she gave to the Court. The treatment she was receiving was not consistent with the descriptions she used to describe the injuries she was suffering. However, I did not form the view that the plaintiff set out to mislead medical witnesses or the Court. I take this into account when assessing the consequences of the plaintiff’s injury. In these circumstances, I will place greater reliance on the objective evidence.
Analysis of the evidence
44 It was not in issue that the plaintiff injured her lower spine at work, which was accepted by all medical witnesses. The central issue before me was the extent of the injury to her lower spine and the consequences as a result.
45 The current medical evidence as to the plaintiff’s injury varied. The plaintiff’s medical evidence was as follows.
46 Dr Fidge, the plaintiff’s current general practitioner, treated the plaintiff from August 2011. In his most up-to-date report of April 2015, he said the plaintiff suffered an anterolisthesis of her lower spine, resulting in localised lower back pain and vertebral disc bulge with nerve impingement, causing sciatica nerve pain in the distribution of her right L4 nerve, a simple common mechanical injury, frequently seen in workers who have to bend over as part of their work.[17]
[17]PCB 35-36
47 In 2011, Dr Fidge referred the plaintiff to Mr Wilde, orthopaedic surgeon, who diagnosed an exacerbation of lumbar spondylosis without radiculopathy. He expected she would make a satisfactory recovery.
48 In February 2015, Mr Brearley, surgeon, examined the plaintiff at the request of the plaintiff’s solicitors. He diagnosed mechanical lumbar back pain secondary to aggravation of pre-existing degenerative changes in the lumbosacral spine and particularly at the L4-5 level.[18] The plaintiff reported to Mr Brearley that, prior to the work incident, she had some lower back discomfort and had been seeing a chiropractor. However, she reported that the chiropractic treatment was not for any back symptoms but for her general health and wellbeing.
[18]PCB 55
49 In October 2015, Professor Bittar, neurosurgeon, examined the plaintiff at the request of the plaintiff’s solicitor. He noted that her past medical history was significant for some mild lower back discomfort over several months leading up to the onset of her severe pain in June 2010. She reported seeing a chiropractor for some time for general wellness purposes and reported not experiencing any leg pain prior to June 2010. He diagnosed an aggravation of the lumbar spondylosis and spondylolisthesis. He said her clinical findings are suggestive of pain emanating from the facet joints as well as a right L5 radiculopathy.[19]
[19]PCB 62
50 In October 2016, Dr Todhunter, specialist in anaesthesia and pain medicine, examined the plaintiff at the request of the plaintiff’s solicitor. He diagnosed mechanical pain with referred leg pain, rather than radicular pain or sciatica, but said it is possible she has radicular pain.[20]
[20]Report handed up in evidence
51 In August 2015, Mr Dooley, orthopaedic surgeon, examined the plaintiff at the request of the defendant’s solicitor. He diagnosed naturally occurring and age-related degenerative change involving the lumbar spine, mainly at the L4-5 level. He concluded, on the history, that the plaintiff reported she sustained a soft-tissue injury to her lumbar spine that involved aggravation of underlying degenerative disease. He said that, based on the information available, it was evident the plaintiff had symptoms relating to degeneration of the lower lumbar spine prior to June 2010. She presented to her chiropractor with low back pain in February 2007 and May 2010 and reported experiencing pain in the right low lumbar region and buttock area.[21]
[21]Defendant’s Court Book (“DCB”) 32c and 32e
52 Prior to the work injury, the plaintiff’s evidence was that she had consulted a chiropractor in February 2007 for general wellness. The plaintiff’s evidence was she did not attend the chiropractor specifically for any injury.
53 Ms Michelle Lloyd, chiropractor, of Carrier Street Chiropractic, treated the plaintiff between February 2007 and December 2013. Her records were before the Court. Ms Lloyd confirmed that the plaintiff first presented in February 2007 with a history of general muscle soreness and lower back pain, as well as concerns about her posture.
54 On 28 February 2007, Ms Lloyd referred the plaintiff to the Benalla Hospital Radiology for x-rays of the full spine. The x-ray report noted:
“Clinical notes: Low back and hip pain.”[22]
[22]PCB 50
55 Ms Lloyd reported that the examination in February 2007 was unremarkable, except for mild disc height loss at C5-6, minimal loss of cervical lordosis and minor wedging of three mid-thoracic vertebrae, with 20 per cent loss of vertebral body weight. The plaintiff received regular chiropractic care and experienced improvement in her joint pain, postural distortion and muscle hypertonicity.
56 In May 2010, the plaintiff reported experiencing intermittent right sacroiliac joint pain and hypertonicity of the right gluteus medius and piriformis musculature. The plaintiff reported certain postural positions used while performing certain duties at work exacerbated her back pain and tension experienced in the gluteal muscles with sciatic nerve radiation. Because there was minimal improvement in the pain levels, the plaintiff was referred to an x-ray of the lumber spine and pelvis which, again, was unremarkable, except for some facet joint asymmetry at L4-5. The plaintiff underwent a CT scan examination, which showed mild displacement at L4-5 level, with no central canal stenosis, lateral recess stenosis, or foraminal encroachment of significance. The plaintiff continued to have regular chiropractic adjustments to subluxated vertebrae, pelvic blocking and soft-tissue therapy to associated hypertonic vertebrae.
57 In May 2011, the plaintiff reported she had re-injured her lower back in April while at work, producing gluteal and lower-lumber muscle spasm, right-sided sciatica and antalgic posture. The plaintiff received treatment and the episode of lower back pain improved slowly, with pain experienced in the sacroiliac joint, in particular, the right. In April 2012, the plaintiff reported another episode of lower back pain, radiating to the right sacroiliac joint with referred pain into the right leg. Neurological examination was unremarkable. The plaintiff reported dissipation of lower back pain after two weeks. In June 2013, the plaintiff reported mild lower back pain, which was treated conservatively.
58 I accept that the plaintiff suffered intermittent lower back pain prior to the work injury, which she reported to a number of the medical witnesses, including Mr Brearley, Professor Bittar and Ms Lloyd. Mr Dooley formed that opinion on the basis of the information provided to him. Dr Fidge did not express a view. It was not clear whether Dr Fidge had been provided with any information of pre-injury back pain.
59 I accept that the majority of the up-to-date medical evidence was that the work injury involved an aggravation of pre-existing degenerative changes in the lumbosacral spine and, particularly, at the L4-5 level.
Aggravation injury
60 In respect of an aggravation to a pre-existing condition, Southwell and Teague JJA, in Petkovski v Galletti,[23] said that the task of the Court is to analyse the extent of the impairment of the body function before and after the relevant injury.[24]
“… a comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of the additional impairment … .”
[23][1994] 1 VR 436
[24]Petkovski v Galletti (supra) at 443
61 Where the injury for which compensation is claimed is an aggravation injury, the additional impairment must, itself, involve a permanent serious impairment or loss of body function.
62 Accordingly, I must consider what the evidence discloses as to the plaintiff’s prior condition, and determine whether the additional impairment resulting from the work injury was “serious”.
63 Accordingly, I accept that prior to the work injury, the plaintiff suffered intermittent back pain for which she received treatment from a chiropractor on occasions. The plaintiff’s evidence was that her intermittent back pain did not interfere with her work and there was no evidence that the plaintiff was absent from work as a result of the injury. The plaintiff had minimal treatment for her back prior to the work injury.
64 The plaintiff’s evidence is that she is currently working 32 hours per week in an administrative position in a general medical practice. The evidence of her general practitioner and other medical witnesses is that this work is suitable and that she could work five-and-a-half days per week if she chose. Professor Bittar said she was incapacitated for pre-injury duties as a pathology collector.[25] Mr Dooley said she had a current capacity for suitable work and was aware she was working as a practice manager for a general medical practice. Mr Brearley and Dr Fidge said she could perform this work full time. However, Mr Brearley said she will require days off work because of her intermittent back pain. All witnesses accepted that she would suffer some restriction in her recreational, social and domestic activities.
[25]PCB 62
65 Accordingly, on a Petkovski v Galletti[26] analysis, the impairment extent of the lower back injury at the hearing was largely referable to the plaintiff’s work injury of June 2010.
[26]Supra
66 It is now necessary for me to consider the evidence as to the consequences to the plaintiff of the work injury of June 2010.
Consequences
Pain
67 The plaintiff’s current evidence is that the back pain is always present. It radiates down into the right buttock and down into the upper part of the right leg. She also feels numbness in her right shin, and notes that her right heel often tends to drag. She has tripped over on many occasions as a result. The plaintiff’s evidence was that, by the end of the working day, she is in a lot of pain and she very much needs to rest the back, just so that she can go to work the next day. The two longer days of work are particularly onerous on her.
68 In re-examination, the plaintiff said currently, she attends the chiropractor every four weeks for treatment to keep the pain under control, which enables her to lead a normal life.[27]
[27]T87, L14-88
69 In October 2016, the plaintiff reported to Dr Todhunter that she has pain occurring in the right lumbosacral region, extending to the right thigh and down to the right anterolateral mid-calf. She rated her pain as varying between 2 and 8 out of 10, where zero is no pain and 10 the worse pain imaginable. She described the pain as feeling like electricity, with a deep aching and cramping sensation, accompanied by spasm. She said the pain felt like a toothache the size of her fist in the right lumbosacral region, which was worse than the leg.
70 Her general practitioner, Dr Fidge, said, in 2015, that her back pain will continue for the rest of her life and worsen as she ages. It will fluctuate with her level of activity even if she is avoiding specific aggravating activities and postures.
71 In February 2015, she reported to Mr Brearley constant lower back discomfort and that, at times, she has pain, which will be worsened by activity. He said that, in the future, she will suffer significant chronic lower back pain. Professor Bittar said she is likely to remain significantly symptomatic and moderately disabled in the long term.
72 In August 2015, the plaintiff reported ongoing lower back pain to Mr Dooley. He said she should remain active, undertaking regular low impact exercises and sensibly modifying her activity in relation to lifting and bending. He said the plaintiff’s current management is reasonable and she did not require any alternative treatment.[28]
[28]DCB 32c
73 I accept that the plaintiff suffers an ongoing level of pain. However, when considering the level of pain, I take into account the treatment the plaintiff is receiving. The plaintiff’s current evidence as to treatment is that she takes over-the-counter medication, which consists of Ibuprofen or paracetamol tablets daily. Currently, she is taking six per day. She continues her routine of stretches or exercise to keep the pain under control. She uses heat packs and a massage machine, which relaxes her muscles.
74 In October 2016, Dr Todhunter said the plaintiff’s treatment has essentially included massage, heat packs or ice packs, as well as chiropractic treatment. He said her pain could be reduced with further treatment of facet joint denervation on the right side of the L4-S1 level, and the risks of such a procedure are no more than injecting local anaesthetic.
75 I accept that the plaintiff suffers pain but that the current level of treatment is at the low end of the scale. The current evidence as to pain is that of Mr Todhunter, the pain specialist, and Professor Bittar, neurosurgeon, who said her pain levels could be reduced by a relatively simple procedure of facet joint denervation.[29]
[29]PCB 62
76 Accordingly, I accept the plaintiff suffers pain as a consequence of her injury, which is at the lower to medium end of the range.
Work
77 The plaintiff’s evidence was that she continued work as a pathology collector without time off following the injury. In April 2011, she was made redundant, as her employer lost the contract for blood collection with Wangaratta Base Hospital.[30] The plaintiff’s evidence was that she did not work for a period of time. She was then offered her current job as a practice manager and receptionist/administrator in a general medical practice. The plaintiff said the work is less strenuous than the pathology collection and she is seated for much of the time. The plaintiff’s evidence is that she performs pathology collection for a number of hours on a Friday morning. The evidence is that she currently works almost full time. The medical evidence was that the plaintiff could work five-and-a-half days per week in her current job.[31] Professor Bittar said she could undertake her work as a pathology collector several hours per week, as she was currently doing.[32]
[30]T21, L20-21
[31]Dr Fidge, Mr Brearley, Professor Bittar and Mr Dooley
[32]PCB 62
78 I accept the medical evidence is that the plaintiff can work full time in suitable employment in her current position as a manager for a general medical practice. I accept that she can no longer engage in work as a pathology collector but the evidence is that she was not working full time in that position and is still able to perform that work on a limited basis. Accordingly, I accept that the consequences to the plaintiff in relation to her employment are at the low end of the scale.
Sleep
79 The plaintiff’s evidence is that her sleep is affected and she cannot remember when she had a decent night’s sleep. She reported to Mr Dooley she can get three hours consecutive sleep before she awakes with pain.[33] In her most recent affidavit, the plaintiff said she could sleep for four hours. She is woken a couple of times per night by pain. She wakes feeling tired, which makes it harder to deal with the pain. There was no evidence that she sought medication for sleep disturbance. Accordingly, I accept that any sleep disturbance the plaintiff suffers is at the low end of the scale.
[33]DCB 32b
Dogs
80 In her first affidavit, the plaintiff’s evidence was that, prior to the work injury, she showed dogs on a regular basis, generally on the weekends. The plaintiff reported this to a number of the medical witnesses. In February 2015, she reported to Mr Brearley that she was limited in her dog interests and frequently missed shows.[34] In October 2015, she reported to Professor Bittar that she was only able to undertake this activity every six weeks on average.[35] The plaintiff’s evidence is that she showed her dogs in June, September and October 2016, including at the Royal Melbourne Show this year, but she required the assistance of a handler. In cross-examination, the plaintiff said that showing dogs was a regular activity prior to the work injury. In re-examination, the plaintiff’s evidence was that she was limited to how often she walked her dogs. Because she does not walk the dogs as regularly as she used to, when they are walked, they are excited and pull on the lead, which hurts her back. The plaintiff’s evidence is that she cannot handle them.
[34]PCB 54
[35]PCB 61
81 I accept that the plaintiff’s limited ability to show her dogs since the injury and that she is restricted in walking her dogs are consequences, which I can take into account.
Karate
82 Counsel for the plaintiff submitted that the plaintiff can no longer engage in karate as a result of her work injury. However, the plaintiff’s evidence was confused and, at times, inconsistent as to how active she was in pursuing karate at the time of the work injury. She told the Court that she stopped karate before the birth of her third child, probably in 2005. She agreed that her son would have been aged between two-and-a-half to three years old when she recommenced karate.[36] She agreed she returned to a lesser level of involvement. She taught karate classes to children. She ceased karate because her instructor ceased teaching. However, at the time of the work injury, she would perform daily stretching exercises. She had a hanging boxing bag at home that she and her older sons would use.
[36]T56
83 The plaintiff reported to Mr Brearley and Professor Bittar that she no longer performs karate. Mr Brearley accepted that she could no longer pursue this recreational activity,[37] although there is no reference in Mr Brearley’s report as to whether he was informed of the level of activity the plaintiff was performing at the time of the work injury. Professor Bittar made no comment on this aspect.
[37]PCB 56
84 Accordingly, due to the inconsistency of the plaintiff’s evidence and lack of evidence on this aspect, I place less weight on the loss of karate as a consequence of her work injury.
Bushwalking
85 The plaintiff’s evidence was that she enjoyed bushwalking with her older children. She told the Court that she thought the last time she went bushwalking was in early 2010. She said they would walk through the Tallarook and Strathbogie Ranges for about two hours and take a picnic lunch. Now, she does not feel confident walking on rough terrain. She said it was an activity that she enjoyed as it enabled her to rebalance her life by listening to the sounds of the bush. She feels a sense of loss that she can no longer pursue this activity. Mr Brearley accepted that she would not be able to pursue this activity.[38] Professor Bittar was told about this activity but did not comment on it.
[38]PCB 56
86 I accept that this is a consequence I can take into account but as there was no evidence as to the regularity with which she performed this activity, I place this at the lower end of the scale.
Horse riding
87 The plaintiff did not refer to owning and caring for horses or horse riding in any of her affidavits. She reported to Mr Brearley that she owned seven horses but was apprehensive about getting on them.[39] She reported to Professor Bittar and Mr Dooley that she no longer rides horses. Mr Brearley said she would be unable to pursue her previous recreational pursuits of horse riding.[40] Professor Bittar and Mr Dooley did not express a view.
[39]PCB 54
[40]PCB 56
88 The plaintiff’s evidence was that, at the time of the work injury, riding horses was not a regular activity for her. The plaintiff said she had horses as a child and young adult. In cross-examination, she agreed that horse riding was not a regular activity she pursued at the time of the work accident. She said she had not ridden a horse at least six months prior to her work injury, probably not at all in 2010 and that it was not a regular thing that she did at the time.[41] Based on Mr Brearley’s report, it was unclear what he was told about the regularity of the plaintiff’s horse riding activities. Given the plaintiff’s evidence that horse riding was not a regular activity at the time of the work injury, I accept that any loss of this activity is at the low end of the scale.
[41]T26
Horses
89 The plaintiff reported to Mr Brearley and Mr Dooley that she owned seven horses. The plaintiff’s evidence in cross-examination was that, in about April 2014, she purchased her first rescue horse. Currently, she has seven horses on agistment, although she is only responsible for the care and maintenance of four horses, approximately 5 kilometres down the road from her home. She feeds the horses daily, mixing her own feed. She grooms them as required. The plaintiff’s evidence was that the horses do not tax her back terribly.[42] She derives great pleasure from the horses and said they have a calming effect upon her.[43] She described the horses as her passion.[44]
[42]T38, L22
[43]T38-39
[44]T40
90 I accept that the plaintiff has retained the ability to maintain horses on a daily basis which involves feeding the horses daily and grooming them at the weekend. This is an activity that she has undertaken following her work injury.
Gardening/lawn mowing
91 The plaintiff reported to Mr Brearley that she has difficulty with gardening and weeding and has increased pain after undertaking lawn mowing.[45] She reported to Mr Dooley she struggles with heavy chores and lawn moving. I accept that this is a consequence that I can take into account.
[45]PCB 53
Domestic duties
92 The plaintiff reported to Mr Brearley that she has “difficulty with the heavier aspects of housework such as vacuuming, sweeping and mopping” and that she has no assistance with domestic duties at home.[46] She reported to Professor Bittar, who recorded that she had “some difficulty with housework.”[47] She said she breaks up these activities. She told Mr Dooley that she struggles with heavy chores and paces herself in the home. I accept that this is a consequence I can take into account. There was no evidence before me as to how often her domestic duties are affected. Accordingly, I consider this at the low to medium end of the range.
[46]PCB 53
[47]PCB 61
Weight
93 The plaintiff’s evidence is that she has gained weight since her work injury. This is because she can no longer carry out physical and aerobic activity. Dr Fidge referred to the plaintiff gaining weight due to lack of exercise because of back pain. Ms Lloyd, treating chiropractor from February 2007 to December 2013, said that the plaintiff “… was carrying excess body weight not consistent with her exercise and being a single mum. …”.[48]
[48]PCB 23
94 In view of Ms Lloyd’s comments, and without further evidence, I accept that the plaintiff may have gained weight as a result of the work injury but, without further evidence, I consider this consequence is at the low end of the range.
Retained capacity
95 Counsel for the defendant referred me to Dwyer v Calco Timbers Pty Ltd (No 2),[49] where Ashley JA stated that in assessing whether the consequences of the work injury are serious:
“The significance of what has been lost … may be informed, to an extent, by what is retained”.[50]
[49][2008] VSCA 260
[50]at paragraph [27]
96 Counsel for the defendant submitted that considering what the plaintiff lost must be balanced by the capacities the plaintiff has retained. It was submitted that the plaintiff had retained a considerable amount of capacities.
97 The evidence is that all medical witnesses said the plaintiff is fit to continue with her present position as a practice manager which is mainly an administrative position. On Friday mornings, she continues to take blood, which is the activity she was performing at the time of her injury.
98 The plaintiff retains the capacity to work. All medical witnesses accepted that she could work full time in her current position. I accept the plaintiff is able to perform her work to her satisfaction and is engaged in almost full-time hours. To the plaintiff’s credit, she has maintained her ability to work.
99 The plaintiff is independent in her personal care and activities of daily living. She has taken on a new activity. She purchased seven horses and is responsible for the day-to-day care of four of those horses, which are on an agistment. I accept that this is a matter which I must take into account.
100 The plaintiff can perform heavy household tasks but must pace herself. She retains the capacity to drive her car. Her evidence was that, on one occasion, she was able to assist a friend paint her house. She said she sat on the ladder and did the “cut-in at the top”.[51]
[51]T75, L28-29
Conclusion
101 What was in issue were the consequences of the plaintiff’s injuries and whether they meet the test for seriousness for pain and suffering, in that they could be considered “more than significant or marked”, and as being “at least very considerable” when compared to other cases in the range.
102 In Stijepic v One Force Group Aust Pty Ltd & Anor,[52] Ashley JA and Beach AJA said:
“The emphasis in s 134AB (37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation — because, it may be supposed, the consequences are glaringly apparent one way or the other.”[53]
[52][2009] VSCA 181
[53](Supra) at paragraph [42]
103 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[54]
“… many disturbances are considerable, in the sense that they are important or substantial, without being very considerable.”[55]
[54][1998] 1 VR 702
[55](Supra)
104 Section 134AB of the Act was intended to restrict the availability of common law damages to plaintiffs whose impairments were of “very considerable” magnitude.
105 In determining the application, it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgement.[56]
[56]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
106 Taking all the evidence into account, I am satisfied that the evidence establishes the plaintiff has an increased level of pain in her lower spine. A number of activities she previously performed, namely, mowing the lawn and heavy household chores can be performed on a restricted basis. As to the loss of recreational activities, such as bushwalking, there was no evidence demonstrating how frequently the plaintiff engaged in this activity prior to her injury. In relation to karate, she had reduced her involvement in this activity following the birth of her third child. She agreed that, at the time of the work injury, horse riding was not a regular activity but that the frequency of showing her dogs had reduced.
107 I take into account that the plaintiff is receiving limited medical treatment and her medication requirements are limited to over-the-counter medication.
108 When these consequences are balanced with what the plaintiff has retained, namely her capacity to work full time and to engage with caring for her horses on a daily basis, an activity that she pursued after sustaining her work injury, I am not persuaded, on the balance of probabilities, and in light of the evidence as a whole, that the consequences to the plaintiff satisfy the test. I accept the plaintiff suffered a physical injury to her lower back in 2010 in the form of an aggravation injury. I accept that the injury has had consequences to her which are considerable, but I am not satisfied that, when judged by comparison with other cases in the range of possible impairments, the injury can be fairly described as being “more than significant or marked”, and as being “at least very considerable”.
109 Accordingly, I dismiss the plaintiff’s application in respect to the physical injury.
110 I will hear the parties on costs.
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