Shrimpton v Victorian WorkCover Authority
[2024] VCC 245
•27 March 2024
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-04082
| ANGELA JOAN SHRIMPTON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE TRAN | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 31 January and 1 February 2024 | |
DATE OF JUDGMENT: | 27 March 2024 | |
CASE MAY BE CITED AS: | Shrimpton v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 245 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – long COVID syndrome – impairment of a body function - whether impairment of immune system is impairment of a body function
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325 and s335
Cases Cited:Victorian WorkCover Authority v Brassington [2021] VSCA 236; Georgopoulos v Silaforts Painting Pty Ltd (2012) 37 VR 232; Humphries & Anor v Poljak [1992] 2 VR 129; Target Australia Pty Ltd v Moloney [2000] VSCA 124; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511;
Judgment: Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab KC with Ms P Prossor | Shine Lawyers |
| For the Defendant | Mr J Clark | Wisewould Mahony |
HER HONOUR:
1In August 2020, Angela Shrimpton worked for two days in an administration role at the Opal Aged Care facility. During the course of performing her duties, Ms Shrimpton was exposed to COVID-positive residents. As a result, she contracted COVID-19. Some three-and-a-half years later, Ms Shrimpton continues to suffer the impacts of this infection. The consensus of expert medical opinion is that she is suffering from long Covid syndrome and that it is likely her symptoms will continue indefinitely.[1]
[1]See, for example, report of consultant respiratory physician Dr Jonathan Burdon, dated 18 May 2023 at Plaintiff’s Court Book (“PCB”) 92; report of infectious diseases physician, Professor Justin Denholm, dated 19 December 2023 at PCB 61 and report of Associate Professor Abraham Rubinfeld, respiratory physician, dated 16 December 2023 at Defendant’s Court Book (“DCB”) 6.
2Ms Shrimpton has applied for leave to bring proceedings for pain and suffering damages on the grounds that she has suffered a permanent serious impairment of a “body function”, within the meaning of paragraph (a) of the definition of serious injury in s325(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). She contends that the “body function” that has been impaired as a result of long COVID is her immune system; and that the Court can consider all of the symptoms and consequences of her long Covid syndrome for the purposes of determining whether she has a serious injury.
3The defendant, on the other hand, contends that the immune system is not a relevant “body function” for the purposes of paragraph (a). It says that Ms Shrimpton has suffered separate impairments to a number of body functions – i.e.: her respiratory system; her cognitive function; her auditory system and her sinuses. It contends that the consequences of each of these impairments must be considered separately for the purposes of Ms Shrimpton’s serious injury application; and that no single impairment suffered by Ms Shrimpton is sufficiently serious to pass the serious injury threshold.
4For the reasons which follow, I have concluded that the immune system can be considered a body function, and that, by reason of long Covid syndrome, Ms Shrimpton has suffered a permanent serious impairment of her immune system. Accordingly, she is given leave to bring proceedings for pain and suffering damages.
Is the immune system a “body function”?
5Section 325(1) of the Act defines serious injury to mean:
(a) permanent serious impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c) permanent severe mental or permanent severe behavioural disturbance or disorder; or
(d) loss of a foetus.
6The wording of the definition of serious injury in s325(1) of the Act has, as its original source, the definition of serious injury in s93(17) of the Transport Accident Act 1986 where it is stated:
“‘serious injury’ means—
(a) serious long-term impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c) severe long-term mental or severe long-term behavioural disturbance or disorder or
(d) loss of a foetus.”
7The phrase “serious … impairment…of a body function” thus preceded by many decades the emergence of COVID-19 and the first trickle of complaints that it was causing enduring symptoms in a small, but significant, proportion of sufferers. Self-evidently, Parliament did not have long Covid syndrome in mind when this phrase was drafted.
8The Court is required to take a “commonsense and pragmatic approach”[2] to the application of the definition of serious injury to this novel, and, still to a significant extent, unknown condition. As said by the Court of Appeal in Georgopoulos v Silaforts Painting Pty Ltd:[3]
“The human body is a complex multi cellular organism. The relationship between its components is the subject of continuing research and progressive medical understanding. It cannot readily be supposed that Parliament intended that the application of the notion of serious injury depended upon precise medical diagnostic differentiation between the individual components of an injury suffered in the causal circumstances envisaged by s 134AB . The more probable view is that Parliament’s intention was that the relevant concept of injury was to be understood in a broad commonsense way.”
[2]Victorian WorkCover Authority v Brassington [2021] VSCA 236 at paragraph [52] (“Brassington”)
[3](2012) 37 VR 232 at 247-248 at paragraph [68]
9And by the Court of Appeal in Brassington:[4]
The serious injury provisions being gateway provisions, a sensible, pragmatic and consistent approach should be taken in relation to the identification of an appropriate body function, in any application in which it is sought to establish that a particular body function has suffered the requisite impairment as a result of a particular incident or set of compensable circumstances.
[4](Supra) at paragraph [46]
10The words of Crockett and Southwell JJA in Humphries & Anor v Poljak,[5] are perhaps most apt of all:
“… A body function must be identified. That done the inquiry to be made is whether that function has been impaired or lost. … .”
[5](1992) 2 VR 129 at 138
11It has been said that a body function is a “physical act or operation” of the body.[6] For convenience, body function is sometimes equated with a body part, such as an upper limb, or the spine. However, the body is not neatly segmented into non-overlapping parts, like a diagram from an anatomy textbook, each of which has a distinct and severable “body function”. The text of the definition requires a body function to be identified, not a body part.
[6]Target Australia Pty Ltd v Moloney [2000] VSCA 124 at paragraph [18]
12As I will explain further in the next section, Ms Shrimpton’s most prevailing and debilitating symptom is that of all-over body tiredness. A body function must be identified which has been impaired or lost as a result of this tiredness.
13It would be the very opposite of pragmatic commonsense to suggest Parliament intended all-over body tiredness to be segmented and considered separately with respect to each arm, each leg, the spine, et cetera. I did not understand such a submission to be made by the defendant. Instead, when asked what body function was impaired by all-over body tiredness, the defendant contended that it could be considered as an impairment of the function of her respiratory system. It did so on the basis that Associate Professor Rubinfeld, a respiratory physician, expressly refrained from commenting on Ms Shrimpton’s ENT symptoms or psychological condition on the basis that they were outside his expertise, but did not expressly do so in relation to her fatigue. This implied, it was said, that Ms Shrimpton’s fatigue could be considered a respiratory symptom.
14Against this, Associate Professor Rubinfeld lists only intermittent cough and wheeze and breathlessness when describing the nature of her condition “in regard to her respiratory symptoms”:[7]
“She has some symptoms of intermittent cough and wheeze. Her cough has previously been attributed to being a Post-Covid cough.
The basis for her breathlessness on exertion may be due other conditions including physical deconditioning, fatigue from long standing night time sleep disturbance or from conditions not yet identified, such as pulmonary thromboembolism (unlikely).
Based on her history and her lung previous lung function tests, asthma is unlikely, but has not been excluded.”[8]
(sic)
[7]DCB 5
[8]Ibid
15Professor Denholm, who is an infectious diseases physician, is the only medical expert to expressly provide an opinion in relation to what he describes as the “physiological mechanisms” or “body systems” affected by Ms Shrimpton’s long Covid syndrome. He states as follows:
“… I noted that the nature of the Long COVID syndrome is ‘not pathologically firmly established’ and is ‘likely to be multifactorial and varied’. The purpose of this statement was to highlight that, while Long COVID syndrome is well-established, there are a variety of physiological mechanisms currently under ongoing scientific consideration. These include haematological pathways (such as abnormal blood clotting), viral persistence and immunological dysregulation, as well as superimposed psychological impact of illness and disease.
In Ms Shrimpton’s case, I have seen no evidence of coagulation issues identified, and her symptoms are not suggestive of viral persistence. Her presentation is in keeping with classically described Long COVID syndrome, and I am satisfied that it is appropriate to assess its severity and impact within my expertise in infectious diseases. On the balance of probabilities, I consider that the predominantly affected body system is the immune system, and I consider that she has a serious injury to her immune system as outlined in my initial report.”[9]
[9]Professor Denholm’s supplementary report, dated 23 December 2023 at PCB 65
16It was plain from the reports of the medical experts that there is much which is not yet known about long Covid syndrome, its impacts, causes and prognosis. The opinion of Professor Denholm that the predominately affected “body system” was the “immune system”, was tentatively expressed and in a context of a high degree of uncertainty. What is known is that Ms Shrimpton is suffering here and now; and seeks compensation. She understandably does not wish to wait for scientific certainty. Nor should she be required to, so long as she is able to satisfy the Court, on the balance of probabilities, that she has suffered a serious long-term impairment of a body function.
17In the end, the Court must determine the relevant “body function” on the basis of the expert evidence tendered in this case and applying a commonsense and pragmatic approach.
18I accept that Ms Shrimpton’s breathlessness could be viewed as an impairment of the function of her respiratory system, her tinnitus could be viewed as an impairment of the function of her auditory system and her nasal congestion could be viewed as an impairment of the function of her sinuses, and so on. However, the concept of “body function” is a pragmatic one. It does not require the body to be segmented into distinct non-overlapping parts. Thus, the fact that breathlessness may be viewed as an impairment of the function of the respiratory system does not mean that it cannot also be viewed as an impairment of a different body function.
19This is not a case, as in Lu v Mediterranean Shoes Pty Ltd,[10] where the plaintiff is seeking to aggregate the effect of two separate incidents. Nor even a case, as in Brassington, where the plaintiff was seeking to aggregate two separate injuries suffered in one incident. Ms Shrimpton has suffered a single injury – long Covid syndrome – which has impacts throughout her body. Indeed, her most predominant symptom – all-over body tiredness – is incapable of reference to any particular part of her body.
[10](2000) 1 VR 511
20I am not prepared to draw an inference from the oblique comments in Associate Professor Rubinfeld’s report, that he attributed Ms Shrimpton’s fatigue to an impairment of her respiratory system. The only relevant “body function” impaired by Ms Shrimpton’s all-over body tiredness, squarely identified by the expert evidence, is that of the immune system.
21In the circumstances, a commonsense and pragmatic approach requires the function of the immune system to be considered a body function; and all of the symptoms of Ms Shrimpton’s long Covid syndrome as an impairment of that body function.
Do the pain and suffering consequences of Ms Shrimpton’s illness meet the threshold for a permanent serious injury?
22From the evidence she gave in the witness box, Ms Shrimpton appeared to be an impressively forthright, honest, and resilient young woman. She was careful to consider the questions being asked of her and asked for clarification when unsure what was being put to her by the defence counsel. Her responses were direct, simple and precise. She was co-operative and presented as a sensible and sincere person, doing her best in unfortunate circumstances. She did not exaggerate her answers, nor did I detect melodrama in the delivery of her responses. She made appropriate admissions of improvement in 2021 and into 2022, but was consistent in maintaining that the trajectory of improvement had not been ongoing. If she had difficulty recalling a matter, she said so.
23Ms Shrimpton experienced significant childhood and early adulthood trauma which led to a diagnosis of Post-Traumatic Stress Disorder (“PTSD”) prior to her COVID-19 diagnosis. She mentioned this in her first affidavit without going into significant detail. Given the intensely personal nature of her trauma, the lack of detail in her disclosure was understandable. It does not impact on the credibility of her evidence. I accept that she suffers from PTSD, but that she has obtained treatment for this; and it was not impacting on her enjoyment of life immediately prior to her contracting COVID-19.
24After a gradual return to work in 2021, Ms Shrimpton has continued to work full time since her COVID-19 diagnosis. This demonstrates her stoicism and determination to provide for her children as a single mother, rather than undermining her evidence of the severity of her symptoms.
25I accept her as an honest and reliable witness.
26I accept that Ms Shrimpton has suffered from a debilitating array of ongoing symptoms since first contracting COVID-19. These symptoms include a persistent cough, shortness of breath, a sore throat, nasal drip, fatigue, and headaches.
27She experiences coughing fits at least three times a week and sometimes every day. When she coughs, she feels even more fatigued, and her whole body aches. She finds exposure to perfumes, smoke or deodorant can trigger severe coughing fits that, at times, lead to urinary incontinence and cause her “head, neck, back and abdominal pain.”[11] This interferes with her ability to work outside the home and participate in social and recreational activities. She must constantly monitor her environment for potential respiratory triggers, and, when using cleaning products, wear a mask.
[11] PCB 7 at paragraph [11]
28Prior to suffering from COVID-19, Ms Shrimpton had “experienced stress incontinence on only one occasion after having [her] children”,[12] however she now experiences stress incontinence “most days”.[13] She was referred to a physiotherapist due to her worsening urinary incontinence in the context of her persistent coughing, however this has not improved her symptoms. Ms Shrimpton described three times where her “whole bladder has voided and [she has] not been able to stop it”.[14]
[12]PCB 12 at paragraph [12]
[13] Ibid
[14] Ibid
29A symptom which has particularly worsened over time is her tinnitus. I accept that she experiences a constant ringing in her ears that is serious enough to, on occasion, affect her ability to comprehend conversation. This tinnitus also interrupts her sleep every night.
30Ms Shrimpton also describes struggling to concentrate, forgetting and losing things, having difficulty finding words and feeling “constantly foggy”.[15]
[15]PCB 15 at paragraph [22]
31However, I am satisfied that, for Ms Shrimpton, the most debilitating symptom that she experiences is her overwhelming all-over body fatigue. I note that she has been diagnosed with depression, and that tiredness can be a symptom of depression. However, the specific all-over body fatigue she describes is accepted by two respiratory physicians and an infectious diseases specialist as a symptom of long Covid syndrome. I accept that it is appropriately considered under paragraph (a) of the definition of a serious injury (impairment of a body function), rather than paragraph (c) (mental or behavioural disease or disorder).
32Before contracting COVID-19, Ms Shrimpton was a young woman with a lot of energy. She says she “used to feel extremely energetic, and in the mornings, [she] would put music on, dance in the kitchen, and get the kids ready for the day”.[16] She used to enjoy being active and would go bike riding most days. She used to play tennis and go on long walks with friends, where they would chat the whole time they walked, and she enjoyed going to the beach.
[16] PCB 13 at paragraph [16]
33Now, she feels exhausted and out of breath if she walks for more than a few minutes. She has “had to modify every aspect of [her] life to manage [her] constant fatigue and breathlessness”.[17] She is constantly exhausted and has “no energy for anything outside of work”.[18]
[17] PCB 8 at paragraph [16]
[18] PCB 7 at paragraph [11]
34It is evident that Ms Shrimpton is a resilient mother who has prioritised her children and continues to work full time in order to provide for them. Out of necessity, she also still cooks and completes domestic chores. However, I accept her evidence that “[t]he fatigue impacts everything [she does]”[19] and that she is now unable “to do anything spontaneously”.[20] She carefully paces her housework in fifteen-minute blocks and limits the gardening she does. She now avoids activities such as bike riding, playing tennis, long walks and going to the beach. For example, she was previously riding her bike most days and her usual ride was 20 kilometres. Since contracting COVID-19 she has tried twice, and struggled to make it around the block.
[19] PCB 13 at paragraph [18]
[20] PCB 8 at paragraph [15]
35Ms Shrimpton also must limit her driving due to constant fatigue ꟷ she is able to do short car trips, but longer trips, such as from Geelong to Melbourne and back, are too much for her. Prior to her injury, Ms Shrimpton was a regular attendee at Kardinia Park to watch the Geelong AFL games. She still attends games, but is exhausted by half time and “can barely muster up the energy to clap”.[21]
[21]PCB 8 at paragraph [16]
36Like many working mothers, Ms Shrimpton experienced tiredness prior to her COVID-19 infection, including tiredness that was significant enough to mention to her general practitioner. However, the all-over body fatigue she experiences post-COVID-19 is entirely different. As she explained in re-examination:
“Well, for example, right now my hands are shaking and I'm struggling to keep my eyes open … Whereas now, I feel completely exhausted and no matter how much I sleep, it doesn't change whereas before I was sleeping very poorly and it made sense to me that I was tired. My children were small.”[22]
[22]Transcript (“T”) 38, Lines (“L”) 29 – T39, L7
37As I have noted, Ms Shrimpton’s sleep has been impacted by tinnitus. In relation to sleep, however, she had some trouble sleeping prior to contracting COVID-19. If anything, her hours of sleep have lengthened due to her fatigue. Her current issue is more that she wakes not feeling refreshed, no matter how many hours she has slept.
38For anyone, this debilitating fatigue would be a very significant consequence. However, Ms Shrimpton is a relatively-young, previously energetic woman, with two young children. This renders the consequences of ongoing fatigue, respiratory symptoms, and incontinence, particularly severe for her.
39Although the evidence is necessarily uncertain, the consensus of the medical evidence is that these symptoms should be viewed as long term and likely to continue indefinitely.[23]
[23]Dr Jonathan Burdon at PCB 92; Professor Denholm at PCB 62 and Associate Professor Rubinfeld at DCB 6 (particularly in relation to fatigue).
40In all of the circumstances, I am satisfied that Ms Shrimpton has suffered a permanent serious impairment of the function of her immune system.
41I grant leave to bring proceedings for damages and will hear from the parties on the question of costs.
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