Simpson v VWA
[2023] VCC 963
•14 June 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-21-04777
| KAZMIR SIMPSON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 February 2023 | |
DATE OF JUDGMENT: | 14 June 2023 | |
CASE MAY BE CITED AS: | Simpson v VWA | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 963 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious Injury – spine – whether compensable injury resolved – whether later separate injury - pain and suffering – loss of earnings-worker under 26 at date of injury – application of common law principles
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Barwon Spinners Pty Ltd & OrsvPodolak [2005] VSCA 33; CEM OGE v VWA [2016] VCC 1664; Capper v Munday Sales Pty Ltd & Anor [2013] VCC 1015; D’Argaville v Gorman [2015] VCC unreported; Dart v JC Decaux Australia Pty Ltd [2021] VCC 74; Dwyerv Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Graham v Baker (1961) 106 CLR 340; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Hawkins v DHL Express (Aust) Pty Ltd [2013] VSCA 26; HuntervTransport Accident Commission & Avalanche [2005] VSCA 1; Jarvis v Woolworth [2012] VCC 1329; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; Mallett v McMonagle [1970] AC 166; Moslimyar v Victorian WorkCover Authority [2020] VCC 444; Paff v Speed (1961) 105 CLR 459; Sabo v George Weston Foods [2009] VSCA 242; Sanderson v Woolworths Limited [2019] VCC 106; Sharma v Chandler Personnel ServicesPty Ltd [2018] VCC 1658; Spiteri v Victorian WorkCover Authority [2016] VCC 912; State of New South Wales v Moss (2000) 54 NSWLR 536; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Tatiara Wheat Co Pty Ltd v Kelso [2010] VSCA 12; TTB SMS Pty Ltd v Reading [2020] VSCA 203; Wellington Shire Council v Steedman [2003] VSCA 115; Yammine v Kalway [1979] 2 NSWLR 151.
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Chancellor with Ms M Lang | Maurice Blackburn Lawyers |
| For the Defendant | Mr A Middleton | Wisewould Mahoney Lawyers |
HIS HONOUR:
Introduction
1The plaintiff seeks a Serious Injury Certificate for pain and suffering and pecuniary loss damages in accordance with the provisions of s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”) for injuries occasioned to the function of the spine. The plaintiff was represented by Mr Chancellor of leading counsel together with Ms Millicent Lang of counsel. The defendant was represented by Mr Middleton of counsel.
2The application is brought pursuant to clause (a) of the definition of “serious injury” as that term is defined in s325(1) of the Act. The impairment of body function relied upon is the spine. The Particulars of Injury described:
injury to the spine;
central disc prolapses at L3/4, L4/ and L5/S1 with impingement;
bilateral sciatic nerve root irritation causing sciatica.
The issues
3The plaintiff relies on the mechanism of injury comprising a heavy lifting incident that occurred at work on 1 March 2015. The plaintiff says the injury has caused consequences in terms of pain and suffering and economic loss that are each more than significant or marked and at least very considerable and hence serious. The defendant says that the evidence does not support a finding that the injury is serious. It submits that the plaintiff suffered a separate and non-compensable injury on 17 November 2017 when having bent over at home she experienced acute pain that resulted in a short hospital admission. The plaintiff contends that the November 2017 incident in not a separate injury to the spine but rather that it was an exacerbation or aggravation of the plaintiff’s already serious injury to the spine that was rendered vulnerable by reason of the March 2015 accident that had not resolved.
4The economic loss claim advanced by the plaintiff raises two avenues of possible recourse by her. Because the plaintiff was aged under 26 at the date of the March 2015 injury, in order for her to establish an entitlement to commence proceedings for pecuniary loss damages, she must satisfy the provisions of s325(2)(e)(i) of the Act but the usual common law position applies in determining whether or not she has established a loss of earning capacity of 40 per cent or more that after the date of hearing will continue permanently. The plaintiff’s case is that the injury thwarted her career prospects of becoming an on air radio announcer or, if the position is found otherwise, that she is unable to acquit herself in suitable employment to an extent that would defeat her claimed and prospective loss of earnings.
Relevant legal principles – serious injury
5The Court must not give leave to a plaintiff unless it is satisfied, on the balance of probabilities, that the “injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s325(1) of the Act.
6Paragraph (a) of the definition of “serious injury” contained in s325(1) of the Act reads:
“‘Serious injury’ means –
(a) Permanent serious impairment or loss of a body function ….”
7To establish serious injury, the plaintiff must prove, on the balance of probabilities, that:
(a) “the injury” suffered by her arose out of or due to the nature of her employment with the employer on or after 1 July 2014;[1]
[1] Section 5(1)(a) of the Act; see also Barwon Spinners Pty Ltd & OrsvPodolak [2005] VSCA 33 (‘Barwon’).
(b) “the injury” and resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future;”[2]
(c) the “consequences” of the impairment in relation to “pain and suffering” must be “serious” – that is, the impairment or loss of body function “when judged by comparison with other cases in the range of possible impairments … may be fairly described as being more than significant or marked, and as being at least very considerable.”[3]
[2] Barwon [2005] VSCA 33, [33].
[3] Section 325(2)(c) of the Act.
8The requirement to satisfy these elements is sometimes referred to as the “narrative test.”
9In determining the “consequences” of the injury, the Court is required to consider the consequences to this particular plaintiff, when viewed objectively, arising from the injury.
10In determining the application, the Court:
(a) must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury;”[4]
[4] Section 325(2)(h) of the Act.
(b) must assess whether “the injury” is a “serious injury” as at the time the application is heard;[5]
(c) must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application;[6]
[5] Section 325(2)(j) of the Act.
[6] See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1, [23]-[26].
11The question of whether an injury satisfies the narrative test is largely a question of impression or value judgement.[7]
[7] See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592, 628 (Dodds-Streeton JA); see also Sabo v George Weston Foods [2009] VSCA 242, [67].
12In TTB SMS Pty Ltd v Reading,[8] Tate and T Forrest JJA, had occasion to emphasise the essential aspects to which consideration is to be given on a serious injury application in a pain and suffering case and these are:
[8] [2020] VSCA 203.
(a) serious injury means permanent serious impairment or loss of a body function;[9]
[9] Section 325 of the Act.
(b) an impairment shall not be held to be serious unless the pain and suffering consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked, and as being at least very considerable;[10]
(c) in assessing the seriousness of the claimed impairment consequences, a Court is required to consider both the effects of the impairment and those aspects of the affected body function which remain unaffected.[11]
[10] Section 325 of the Act. This formulation picked up the language in Humphries, which concerned similar provisions in the Transport Accident Act 1986.
[11] Dwyerv Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 (‘Dwyer’), [27] per Ashley JA; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181, [44] per Ashley JA and Beach AJA; Tatiara Wheat Co Pty Ltd v Kelso [2010] VSCA 12, [77] per Ross AJA, quoting Dwyer [2008] VSCA 260, [27]).
The plaintiff’s evidence
13The plaintiff relied on the following evidence:
·Affidavit of plaintiff affirmed 25 June 2021;[12]
[12] Exhibit P1, PCB 6-15.
·Further Affidavit of the plaintiff affirmed 3 January 2023;[13]
[13] Exhibit P1, PCB 16-22.
·Affidavit of Sarah Maree Cameron sworn 29 January 2023;[14]
[14] Exhibit P1, PCB 23-27.
·Ambulance Report dated 1 November 2017,[15] Records of Princess Alexandra Hospital Patient Referral Form dated 3 November 2017[16] and Princess Alexandra Hospital Physiotherapy Body Chart dated 17 November 2017;[17]
[15] Exhibit P2, PCB 39-44.
[16] Exhibit P2, PCB 45.
[17] Exhibit P2, PCB 46.
·Report of Mr Matthew Pit dated 31 January 2022;[18]
·Report of Dr Pouya Hafezi dated 27 June 2022;[19]
·Network Pain Management Report & Ongoing Management dated 6 October 2022;[20]
·Report of Dr Sandra Parsons dated 31 January 2023 with Letter of Instruction;[21]
·MRI scans dated 29 July 2015 and 6 April 2022;[22]
·Two reports of Dr Clayton Thomas dated 23 March 2022[23] and 13 April 2022;[24]
·Report of Dr Simone Ryan dated 13 April 2022;[25]
·Report of Mr Thomas Kossmann dated 9 November 2022;[26]
·Report of Dr Hazem Akil dated 13 December 2022;[27] and
·Tax Summary and Summary Business Earnings 2023 financial year to date.[28]
[18] Exhibit P3, PCB 57-60.
[19] Exhibit P4, PCB 61-62.
[20] Exhibit P5, PCB 63-72.
[21] Exhibit P6, PCB 73-77.
[22] Exhibit P7, PCB 78-79.
[23] Exhibit P8, PCB 80-83.
[24] Exhibit P8, PCB 84-85.
[25] Exhibit P9, PCB 86-94.
[26] Exhibit P10, PCB 95-104.
[27] Exhibit P11, PCB 105-109.
[28] Exhibit P12, PCB 140-141.
The defendant’s evidence
14The defendant relied on the following evidence:
·Medical report of Dr David Elder dated 4 May 2021;[29]
·Three reports of Mr Kevin Siu dated 27 September 2021,[30] 14 April 2022[31] and 28 November 2022;[32]
·Three reports of Dr Mary Wyatt dated 5 November 2021,[33] 10 April 2022[34] and 9 December 2022;[35]
·Nabenet Suitable Employment Report dated 1 April 2022;[36]
·3 Surveillance recordings;[37] and
·Agreed Report of periods of surveillance undertaken[38]
[29] Exhibit D1, DCB 25-29.
[30] Exhibit D2, DCB 32-38.
[31] Exhibit D2, DCB 39-44.
[32] Exhibit D2, DCB 45-51.
[33] Exhibit D3, DCB 52-58.
[34] Exhibit D3, DCB 59-63.
[35] Exhibit D3, DCB 64-69.
[36] Exhibit D4, DCB 70-81.
[37] Exhibit D5.
[38] Exhibit D6.
15I have read and had regard to all of the lay and medical evidence relied on by the parties as well the affidavit evidence and the cross-examination and re-examination of the plaintiff together with the final addresses of counsel.
The plaintiff
16In her first affidavit, the plaintiff deposed to her pre-injury employment that comprised the following:
·Essentially Ballet as an assistant ballet and tap dancing teacher;
·Jassies Confectionary (2007-2008) as a casual retail worker;
·Bakers Delight, Rosanna, retail (2008 – 2011);
·Crust Pizza, Rosanna, casual/part-time retail (2011-2012);
·EPICURE, MCG Corporate Suites, catering/waitstaff, (2012);
·Novo Shoes, Bourke Street, casual retail (2013 approximately).
17The plaintiff said it had been her lifelong ambition to become an on-air radio announcer. Her interest in radio began at 12 years of age. As part of her school captaincy she undertook some community radio on 96.5 Inner FM in Heidelberg and enjoyed it so much that it directed her to pursue radio as her career. She had a talk radio show on community radio station SYN FM in around 2011 and 2012.
18On 2 August 2013, the plaintiff commenced a trial period with radio station “Nova 100”. She was employed as a “Street Team” member for Nova and as well for radio station “Smooth FM.” Her title was “Casual Integration Assistant.”
The Injury
19On 1 March 2015, the plaintiff injured her low back lifting a large box of bath salts out of a work car at the Fritsch Holzer Park in Hawthorn East. The fact of injury and its circumstances was not contested by the defendant.
20The plaintiff completed a WorkCover Claim Form in March 2015.
21The plaintiff was off work until about May/June 2015. She was in great pain and was cared for by family. She made a graduated return to work of about 20 hours per week on light duties. She resigned later in the year due to her back injury but also because she described feeling discriminated against due to her injury.[39]
[39] First Affidavit of Plaintiff. Exhibit P1, PCB 9 paragraph 9.
22After leaving her employer she obtained other full time employment. From January 2016 to November 2016 she was employed by Southern Cross Austereo in Melbourne as a Sales Co-Ordinator. Towards the end of 2016 the plaintiff moved to Brisbane with her partner due to his sporting commitments. In Brisbane from December 2016 to June 2017 she was employed by Southern Cross Austereo and then worked for them as a Producer from June/July 2017 to about April 2019.
23Whilst working as a Producer for Austereo and in September 2017 she suffered back pain when she bent down to pick something off the floor at home. She was taken by ambulance to Princess Alexandra Hospital in Brisbane.
24In August 2019, the plaintiff returned to Victoria because of her partner’s health related conditions.
25From February 2020 to July 2020 the plaintiff was employed full time as a Recycling Project Engagement Officer with Hobsons Bay City Council.
26From about July 2020 to July 2021 the plaintiff was employed by Hobsons Bay City Council as a Senior Communications Advisor earning $84,497.00 gross annually. Initially the plaintiff’s employment was full time but in about April 2021 structural changes at Hobsons Bay City Council resulted in her employment being reduced to 3 days per week. The plaintiff said she had contemplated moving to part-time work due to her health but the restructure occurred before she was able to progress her thinking. Although less financially remunerative, the plaintiff said she found the change to part-time work was better accommodating of her health.
Medicine and treatments
27Because the plaintiff experienced gastrointestinal issues to prescribed medications she has adopted a non-medicinal approach to her health and no longer takes Endone, Ibuprofen, Nurofen, and Panadol. Nowadays she attends a general practitioner in Hawthorn, a psychologist in St Kilda and a physiotherapist. Her regime includes:
(a) magnesium supplements and anti-inflammatory supplements;
(b) salt baths;
(c) heat packs and stick on heat packs, electric heat packs, physiotherapy, cupping, acupuncture, dry needling, curcumin tablets, light therapy, massage gun, acupressure mat, spikey ball, and light exercise such as Pilates and yoga.
Effects on activities of daily living and enjoyment of life
28The plaintiff deposed that since her back injury she has not returned to dancing, or to sports, such as social soccer, or running all of which she had previously enjoyed and participated in. Also prior to her injury she said that she ran regularly and attended the gym. Losing her fitness, she says has been very frustrating. She deposed that “I feel like a slob because I am so inactive. I am the heaviest I have ever been.”[40] The plaintiff said she is frustrated that she cannot do much about it.
[40] Exhibit P1, PCB 11.
29The plaintiff said that her back pain is aggravated by bending, twisting, and lifting. Her partner carries heavy grocery bags. She has groceries and meals delivered when he cannot attend to the shopping. At the supermarket she avoids using a trolley because it is difficult to control the wheels without aggravating her back and causing pain. She is able to take out the garbage bins if they are light but her partner attends to the green or any heavy bin. She deposed that she has difficulty stacking the dishwasher because bending down aggravates her back pain. She has similar difficulties with laundry and operating the washing machine and dryer and relies on her partner to lift heavier loads of washing. Housework, such as mopping and vacuuming aggravates her back pain.
30The plaintiff avoids wearing high heels as it hurts her lower back and her physiotherapist recommended she wear a small block heel or wedges so that her weight is spread more evenly.
31Steps and stairs can aggravate the plaintiff’s back pain and there are four stairs up to the front door of her home.
32The plaintiff said that walking can alleviate some of her lower back pain but the downside to it is that she also experiences sciatic pain from walking. She enjoys walking and will do light walks of up to 30 to 40 minutes.
33Sitting for lengthy periods of time aggravates her back pain. She struggles sitting at her work desk. The little toe of her right foot experiences numbness and she suffers a sharp fiery pain between her lower back in her right foot when sitting at her desk or driving for any lengthy period of time or from sitting on the ground at the beach or if at a picnic. As a consequence social outings are unpleasant.
34The plaintiff says her back pain interrupts her sleep about every second night. She finds it hard to get to sleep due to discomfort. She makes use of a pillow between her legs under her knees to keep her hips in line. She finds herself exhausted during the day. Sexual activity severely aggravates her back pain.
Further affidavit
35The plaintiff made a supplementary affidavit dated 3 January 2023.[41] She addressed her employment status with Hobson Bay Council. In July 2021 she ceased work as a Senior Communications Advisor where she had been working three days per week because her contract concluded and was not again extended. She said that in the final couple of months of her employment she had taken time off work due to ongoing back pain and stress at work.
[41] Exhibit P1, PCB 16-22.
36The plaintiff earns income performing freelance work as a voice-over artist working from her home. She said that she records for 2 to 3 hours a week. The work allows her to sit, stand, and move about as suits. An agency provides her scripts throughout the week. She is paid by the “HIT Network” $150.00 per hour gross and another agency pays her between $600.00 and $1,200.00 gross per month. In the 6 months from August 2022 to January 2023 the plaintiff earned an average of $849 gross per month.[42]
[42] Exhibit P12, PCB 141 shows the plaintiff’s monthly average earnings in the period July 2022 to December 2023 as $933. In the plaintiff’s written submissions (Para 15) it was put that, “Currently, the Plaintiff works about two to three hours per week in her voiceover business from home freelancing. In the past six months she has earned an average of about $849 per month gross.”
37The plaintiff said that she would have liked to have continued her role as a Producer in Brisbane but she returned to Victoria with her partner because of his health. She said she has been unable to find similar work in Victoria and, she is not confident in her ability to return to or sustain producing work due to the strain on her back.
38The plaintiff stopped seeing her psychologist in September 2021.
39In August 2022, the plaintiff commenced a Pain Management program at the Victorian Rehabilitation Centre.
40The plaintiff said that she sees her GP infrequently because she does not take medicine. She sees her physiotherapist at Centre Sports and Spinal fortnightly. She has Clinical Pilates weekly and Acupuncture and Cupping performed on a weekly basis.
The radio career trajectory
41The plaintiff said that her role as a Street Team member at Nova was a natural pathway to on air announcing. She did live crosses to the radio studio from various locations and events. She explained that she volunteered to do producing work every now and then and prior to her back injury and for a period of about two weeks undertook some producing of breakfast radio with “Hughsey & Kate.”[43]
[43] Radio presenters.
42The plaintiff said that the approximate earnings capable of being achieved by metropolitan radio market announcers were:
·midday announcers around $100,000 and $150,000 gross per annum;
·breakfast show announcers around $250,000 to $450,000 gross per annum;
·so called “stars” may command up to $1,000,000 gross per annum.
Treatment
43The plaintiff continues to adopt a natural approach to pain management due to her intestinal problems and intolerance to pain medication. She continues to take magnesium supplements, use salt baths, heat packs, cupping, electric heat packs and do exercises to try and relieve pain. She walks her dog a couple of times a day which activity she finds helpful.
Current Symptoms
44The plaintiff said that she continues to suffer constant low back pain radiating across her back and travelling down her left leg and into her left foot. She experiences a sharp shooting pain, with pins and needles and numbness in her left foot. She experiences pain which runs down into the back of her right knee. Occasionally she gets burning and pins and needles in her right foot. There is a shooting or “fire pain” as she described it, which radiates out from her low back and causes her to limp and comes on throughout the day for about 15 to 20 minute periods.
45Her sleep remains poor due to back pain. The burning sensation and pins and needles is disruptive of sleep. It is hard to get comfortable in bed. She sleeps with a pillow between her legs. She wakes with a stiff back and her toes can feel like they are on fire or like she is being electrocuted by her feet.
46She is chronically tired and as a result of fatigue she suffers from poor memory and concentration. She reads but her mind drifts off.
47Activity aggravates her back pain. Her partner continues to do most of the housework and some of the cooking. She can manage light laundry and simple cooking.
48Her partner does about 90% of the driving because sitting is painful for her. She suffers increased back pain after about 30 minutes. Using her feet on the pedals also brings on an intense burning pain in her feet. It is more comfortable, and safer, to be a passenger.
Sarah Maree Cameron
49The plaintiff relied on affidavit evidence from Ms Cameron who is an on-air presenter with Triple M radio station and she was an on air presenter at Nova FM and had worked with the plaintiff when the plaintiff was a member of the Street Team.
50Ms Cameron said that on numerous occasions she discussed with the plaintiff her aspiration to become an on air presenter.
51Ms Cameron described that she provided the plaintiff with training.
52Ms Cameron deposed that prior to her injury the plaintiff would come in on weekends and throughout the week to observe and learn in addition to her normal shifts and unpaid work. Ms Cameron described the plaintiff as incredibly tenacious and aspirational.
53In Ms Cameron’s opinion, the plaintiff had the aptitude and the talent to progress to an on air presenting role.
54Ms Cameron deposed that had the plaintiff not sustained her back injury she would have recommended her for a producer role and that this would have also entailed an on air component for the plaintiff. Although she regarded the plaintiff as a natural she explained that it was not feasible for her to recommend the plaintiff to do production duties and all that entailed following her injury.
55Ms Cameron deposed that an On Air Presenter’s starting salary is in the order of $70,000.00 to $90,000.00 a year. A comfortable salary would be up to $110,000.00. Beyond this, Ms Cameron’s evidence of likely earnings was more speculative and dependent on a number of variables. For example, she deposed that if one was considered to be part of the “on air talent” for a show and had occupied such a position for a reasonable amount of time, an income of around $150,000 per annum was feasible. In addition, she said that “talent” are often able to negotiate to receive survey bonuses if certain KPls are achieved with bonuses being in the order of around $2,000.00 minimum, and paid eight times per year. In addition, a person who advanced, as she believed the plaintiff could have, might expect to be paid for “live reads” which range between $5,000.00 to $10,000.00 yearly. Ms Cameron said that on air radio personalities have the ability, due to their profile, to supplement their income doing other paid jobs such as hosting opportunities and charging somewhere between $600.00 to $2,000.00 per appearance.
56Ms Cameron was not required for cross-examination.
The Plaintiff Cross-Examined
57The plaintiff agreed with Mr Middleton that from the commencement of her employment with Nova in August 2013 and until the date of injury in March 2015 and thereafter her employment did not progress to permanent full time employment and that her role as a Street Team member was always a casual position. The plaintiff agreed that after her injury and return to work in May 2015 she did not perform as a Street Team member. The plaintiff agreed that her medical advice did not recommend that she return to those duties. Instead she was undertaking administrative duties before resigning for reasons she explained comprised her back and her sense of discrimination in the workplace.
58The plaintiff agreed that she was subsequently employed in a full time role as a Sales Co-ordinator with Southern Cross Austereo and said she “pushed through five days a week.”[44] She then managed a transfer with the same company to Brisbane where she performed a similar full time role.[45] In Brisbane her GP was Dr Chu.
[44] T18, L16-17.
[45] T18, L21.
59The plaintiff accepted that the pain incident she suffered in Brisbane in November 2017 did not come on gradually but occurred when she was in the process of bending over.[46] She was taken by Ambulance to Princess Alexandra Hospital and was discharged a day or two later. From then she recommenced regular physiotherapy and Pilates.
[46] T20, L9-11.
60The plaintiff described her employment in Brisbane as a Program Producer for breakfast radio and that it required her to organise interviews and read through news articles, and suggest content ideas.[47] After the November 2017 incident and some time off work she returned to these duties. She said that she was provided with an ergonomic set up with the ability to sit and stand.
[47] T21, L22-27.
61On her return to Melbourne the plaintiff obtained employment with Hobson Bay Council in a full time role.[48] The role was then restructured. The plaintiff disputed that had the restructure not occurred that she would have remained in the full time role and that she “was considering reducing my hours or potentially stopping work and continuing with voice overs because I was finding full time work unsustainable.”[49]
[48] T22, L17-19.
[49] T23, L2-4.
62The plaintiff said that restructured work was three days a week and lasted only a short time before her employment was not renewed. The plaintiff said that she “wasn't looking to continue on with office work at that point. My back pain was getting too much and I had to try and look for something else to do financially.”[50]
[50] T23, L19-22.
63The plaintiff said that there “are days where I feel better and more capable, and days where I'm just feeling awful and in a lot of pain ….”[51] And, on good days, the plaintiff said “I have a little bit more range of movement. My physio encourages me to try and get better as much as I can by practising those things.”[52] I asked the plaintiff whether by her evidence, “Do you mean that there may be a day every once in a while where you will bend and the pain that might otherwise be associated with bending, is not so great? Or you can walk up to those minutes or so without pain preventing you from doing so? Is that the position? ---Yes, yes, that's right, Your Honour. On good days, yes.”[53]
[51] T25, L12-14.
[52] T25, L15-18.
[53] T25, L19-25.
64The plaintiff was taken to the account of history by Mr Akil who recorded that the plaintiff told him that she is “always in agony”[54] and when asked if that is the truth, the plaintiff said, “Yes, most of the time, yes.”[55]
[54] Exhibit P11, PCB 108.
[55] T25, L31.
65As to accounts given by doctors of the plaintiff presenting with a limp, she said that although she does not limp all the time she will limp sometimes and when her sciatica is “really bad.”[56]
[56] T26, L5.
66The plaintiff said that although the “pros and cons” of surgery have been discussed with her no doctor has suggested a surgical route.[57]
[57] T27, L1-4.
67The plaintiff said she undertook a Pain Management program in August 2022 that lasted some three or four months.
68Mr Middleton questioned the plaintiff about a suggestion arising out of pain management and referred to by her that it was thought to be beneficial for her wellbeing to increase her hours at work. She said that she has “found a really good balance at the moment with what I was doing, and I was happy to continue ahead with that, but if I seek any improvement or financially I need to do a few more hours, I can certainly try my best to do that.”[58]
[58] T27, L23-27.
69The plaintiff said that her current treatment consisted of weekly physiotherapy and weekly clinical Pilates and weekly acupuncture and cupping during times her back pain is “really bad”[59] and that she sees her GP “occasionally.”[60] The plaintiff said that the years of this form of treatment has “definitely given me some relief. It hasn't resolved it but it's offered me some relief”[61] although of a temporary nature. She described it providing temporary relief of her suffering on a “really bad day”[62] or a few days relief when the level of pain is of the type experienced during a “good week.”[63]
[59] T28, L16.
[60] T28, L6.
[61] T28, L28-29.
[62] T29, L4.
[63] T29, L6.
70The plaintiff was questioned by Mr Middleton about the surveillance footage. The plaintiff pointed to certain parts of it that she believed were indicative of her being in pain. In particular, when asked if there were any parts of the surveillance where she was limping, the plaintiff stated that she was walking very slowly to get up the stairs to the front of her house.
71When asked why there were no outward signs of her being in agony in the dog park, the plaintiff responded that she was stretching after getting the dog bags. The plaintiff said that she will “try and push through a lot of the pain to get a bit more normalcy in my life and often I bust from that and I get a lot of pain after.”[64]
[64] T34, L21-24.
72Mr Middleton asked the plaintiff why she would lift up her dog as she was seen doing if she is in a lot of pain. The plaintiff said that her dog “was a puppy and she’s very light and my physio Matt Pitt has been recommending me to try and use some of the exercise in my clinical Pilates program outside of that too. We – we practice those exercises.”[65]
[65] T34, L25-29.
73Mr Middleton also suggested to the plaintiff that she was seen bent down and lifting her dog away from another dog. The plaintiff said that it must probably have been a better day for her. The plaintiff added that it was possible each day from which surveillance was shown was her on better days.[66]
[66] T35, L23-24.
74Mr Middleton asked the plaintiff about Ms Wyatt an Occupational Therapist to whom she was sent on behalf of the defendant insurer. The plaintiff said that she did not think Ms Wyatt had discussed with her the work options that had been identified by Nabenet, the Vocational Assessor.[67] Neither did the plaintiff believe she had discussed with her GP or physiotherapist Dr Wyatt’s report or Dr Wyatt’s belief that the plaintiff could work a number of the jobs identified in the Nabenet vocational assessor’s report.[68] Indeed, the plaintiff said she had “only recently just seen that report…in the last couple of days.”[69]
[67] T28, L8-16.
[68] T38, L14-19.
[69] T38, L23-27.
75The plaintiff agreed that she and her partners home is in the process of renovation by him and by some hired trades. Mr Middleton asked the plaintiff if she does anything and she said, “I try to help out with some light work around the house.”[70]
[70] T40, L4-5.
76Mr Middleton suggested to the plaintiff that in the fourteen attendances on Dr Parsons since returning from Brisbane in late 2019 up until the last recorded attendance on 31 January 2023 there are only three specific references to her back. The plaintiff explained that she will not always refer to her back when seeing Dr Parsons and has also attended on her for reasons unrelated to her back but moreover Dr Parsons had already explained to her that all avenues of redress had been exhausted and that at any rate Mr Pitt is her “primary carer.”[71]
[71] T40, L28.
77The plaintiff said that in 2022 she attended a bridal shower in Adelaide and in August 2022 had holidayed in Queensland flying into Maroochydore and in October 2022, she had travelled to Byron Bay and to the Gold Coast on separate trips.
78In re-examination the plaintiff was asked to expand on what she had meant when she said she had pushed through her pain when working full time in Brisbane, and the plaintiff said, “Well, I experienced a lot of this like shooting leg pain and spinal pain. And I just wanted to – just wanted to live a normal life. And I didn't want to miss out on working in radio, so I tried to push through the pain.”[72] Describing the difficulty in pushing through her pain, the plaintiff said it was, “Tough. One stage I was seeing my physio twice a week, and yeah, I tried to manage it as best that I could.”[73]
[72] T42, L8-12.
[73] T42, L14-15.
79The plaintiff was directed to her evidence that from late 2016 up to the incident on 17 November 2017 she was not receiving physiotherapy and she said it was because it had been stopped by WorkCover. Mr Chancellor asked the plaintiff how she was coping during that period? The plaintiff said, “I wasn't great and my pain was getting a lot worse. I tried contacting my case manager at the insurer multiple times. Phoned, emailed, but they were not looking to reinstate my physio and my clinical Pilates and that sort of thing. So yeah, and then it resulted in me being hospitalised end of that year.”[74]
[74] T42, L21-26.
80Asked how she was coping with her employment during this same period of time, she said, “I found it hard to focus on instruction from my managers or, you know, be a good team player because I had this constant pain down my leg and my back. Yeah, it was difficult.”[75]
[75] T42, L27-30.
81The plaintiff said she used heat packs on the domestic aeroplane trips referred to and that she walked up and down the aisles of the aircraft and used a muscle ball that had been provided by her physiotherapist to work her muscles.[76]
[76] T47, L15-22.
82Asked about her career ambitions had her injury not occurred, the plaintiff said that she envisaged her progression to daytime announcer and to a night show with a co-host “music based and principally as on air talent.”[77]
The Plaintiff’s Medical Evidence
[77] T44, L15-22.
Matthew Pitt, physiotherapist
83In a report dated 31 January 2023[78] Mr Pitt wrote that the plaintiff presented to him with an extensive history of back pain and associated sciatica extending down both legs and she had not reported having experienced back and sciatica pain prior to the incident at work on 1 March 2015.
[78] Exhibit P3, PCB 57.
84Mr Pitt reported that the plaintiff had improved to about 50% of function until Workcover terminated her rehabilitation funding in November 2016.
85Mr Pitt described that in September 2017 the plaintiff suffered a “relapse” of her injury when she was bending over to pick up clothes and experienced severe pain and loss of feeling in her legs and that she was unable to stand and was taken by ambulance to the Princess Alexandra Hospital in Brisbane where she completed inpatient and outpatient rehabilitation. She was then able to complete further private physiotherapy and Pilates funded by Workcover.
86Mr Pitt recorded that at the end of 2019 the plaintiff returned to Melbourne. She was seen at Centre Sports & Spinal.
87Mr Pitt reported that the plaintiff moved away from Pilates rehabilitation but made significant improvement with weight-based rehabilitation that targeted functional movements. With the Victorian Government closure of gyms, the plaintiff was unable to maintain her function and there was some regression.
88Mr Pitt pointed to the plaintiff having suffered three central disc prolapses at L3/4, L4/5, L5/S1 resulting in lumbar canal stenosis and associated sciatica bilaterally. In his opinion because of the plaintiff’s fragmented rehabilitation she has developed central sensitisation.
89Mr Pitt could not proffer a clear prognosis for the plaintiff’s injury observing that:
she has had this injury since 2015 (7 years) and it is clear there are other factors that contribute to her initial injury. As previously stated, these factors are not biomedical and they do not follow a clear delineated timeline.[79]
[79] Exhibit P3, PCB 59.
90Addressing his opinion of appropriate treatment Mr Pitt reported that the plaintiff:
needs at least twice weekly 40min supervised rehabilitation classes, a concurrent gym membership and some physiotherapy sessions in the event of a flare up. For how long this will be needed is hard to say. Her initial rehabilitation led to her feeling 50% improved with over a year of rehabilitation and she reinjured simply from bending over to pick up clothes. Therefore, it is clear she needs over a year for proper rehabilitation to occur, otherwise she will inevitably reinjure and present into the clinic again.
Following the conclusion of these supervised exercise classes, it is clear she will need ongoing support with gym memberships and physiotherapy sessions in the event of another flare up. Hopefully with the entire year of rehabilitation she will be able to self-manage her pain with her own independent exercise program.[80]
[80] Exhibit P3, PCB 59.
91Mr Pitt said he does not think that the plaintiff had been receiving optimal treatment and thought that she:
would benefit from twice weekly rehabilitation classes, a concurrent gym membership and physiotherapy sessions in the event of a flare up.
Ms Simpson may also benefit from attending a pain clinic and a psychologist as these two treatments have been shown to enhance physiotherapy outcomes .
If these interventions do not produce the desired outcome, Ms Simpson should also consider the possibility of injectables. Although I would only advise this if all other options have been exhausted. Considering previous physiotherapy intervention, it is unlikely Ms Simpson will need to go down this road, however, it is still an option.[81]
[81] Exhibit P3, PCB 59-60.
Dr Hafezi, Rehabilitation Physician
92Dr Hafezi provided a report dated 27 June 2022.[82] He wrote that the plaintiff’s:
pain is consistent with axial mechanical low back pain, likely arising from discogenic changes. I did not identify any red flag signs and symptoms. Her pain has been perpetuated by the psychological vulnerability. Today she expressed depressive symptoms, pain frustration, and adjustment disorder. Kazmir strongly feels that she has lost function as an independent and fit person and cannot enjoy her life due to her pain-related disability.[83]
[82] Exhibit P4.
[83] Exhibit P4, PCB 61.
93On examination of the plaintiff, Dr Hafezi reported that:
her lower limb power and reflexes are normal. I provoked paraspinal tenderness on light palpation at the lower lumbar region. Her SLR are positive bilaterally, the left at 30° and right at 40°. Her pain is low back which is described as a constant ache with nociceptive descriptors. Today's primary pain concern is the radicular neuropathic pain within the left L5-51 dermatome. She also has a right-sided referred leg with neuropathic features, which is less intense.[84]
[84] Exhibit P4, PCB 61-62.
Dr Sandra Parsons, General Practitioner
94Dr Parsons provided a report dated 31 January 2023.[85] Dr Parsons wrote that the plaintiff’s injuries are consistent with the mechanism of injury relied on and that her prognosis is “unknown at this time given the longevity of the symptoms following her original work place injury in 2015.”[86]
[85] Exhibit P6.
[86] Exhibit P6, PCB 74.
95Dr Parsons reported that the plaintiff appears to have exhausted all avenues of treatment and she will need to “continue all forms of treatment that have shown some benefit in managing her symptoms although to date there has not been a totally effective long term treatment available.”[87]
[87] Exhibit P6, PCB 74.
Dr Clayton Thomas, Consultant Rehabilitation and Pain Medicine
96Dr Thomas provided two reports dated 23 March 2022[88] and 13 April 2022.[89] He saw the plaintiff on 17 March 2022 via a Zoom telehealth consultation. He noted in his first report that radiological investigations had not been supplied to him:
but I note an MRI 29 July 2015. I noted their conclusions. Mild L3-L4, L4-L5 and L5-S1 lumbar canal stenosis secondary to a central disc prolapse at each level with impingement of the thecal sac but no definite nerve root impingement at any of these levels. Mild lower lumbar spondylosis and mild bilateral L5-S1 facet joint osteoarthritis. There are no more contemporarily performed investigations available.[90]
[88] Exhibit P8, PCB 80-83.
[89] Exhibit P8, PCB 84-85.
[90] Exhibit P8, PCB 81.
97Dr Thomas also recorded in his first report that the plaintiff has:
back and bilateral leg pain. The previous MRI was in 2015 and is not contemporary. She has a convincing story of symptomatic spondylosis with radicular type pain. It is not possible to be accurate with respect to the diagnosis without a physical examination of her and without up to date more contemporary investigations being performed. She needs an up-to-date MRI of her lumbar spine at a minimum. She needs a hands-on physical examination.
You have asked me as to whether the condition is an organic one and certainly the history sounds very organic but examination will determine the degree of organic and nonorganic components that contribute to her pain experience.
By way of treatment, she has had hands-on physical therapies and Pilates-type program which are reasonable. Treatment will also be guided by the MRI and a hands-on examination of her.
Her current condition is one of marked disability. She cannot perform work that does not involve very sedentary type duties with flexibility to alter her posture as required.
I do not think it is possible to be precise with respect to placing restrictions on her without reviewing the imaging and without direct physical examination of her.[91]
[91] Exhibit P8, PCB 81-82.
98On 6 April 2022, and following a physical examination of the plaintiff he was able to perform, Dr Thomas provided a second report dated 13 April 2022.[92] He noted that an “up-to-date MRI of her lumbar spine was performed on 6 April 2022. I was able to review the imaging online as well as review the report.”[93] Dr Thomas reported that the plaintiff:
[92] Exhibit P8, PCB 84-85.
[93] Exhibit P8, PCB 84.
has a lumbar spine problem. The lumbar spine problem is certainly an organic one. She has back and bilateral leg pain. This is particularly problematic when she extends her spine, walks and is trying to be physically active.
The size of the disc bulge at L5-S1 was quite significant. She has had prolonged period of conservative treatment with no amelioration of her symptoms to any extent.
I would recommend that she be assessed by a spinal surgeon. Spinal decompression may afford benefit to her, particularly from the leg symptom perspective.
I can confirm to you that the nature of her problem is an organic one. There are no obvious nonorganic components contributing to her pain experience.
When you compare the current up-to-date contemporary performed MRI to the MRI report (imaging not seen), 29 July 2015, in that there were central disc prolapses at each level but no definite nerve root compromise.
The up-to-date contemporary MRI ideally should be reviewed side by side with the old MRI to see what interval change has occurred but it does appear that, at the very least, the disc bulge at L5-S1 has probably got bigger, the L4-L5 one has got smaller and the L3-L4 maybe has not changed.
I can confirm that she remains markedly disabled as a result of the organic injury and impairment. In the absence of any significant change (such as surgery), her condition will remain as it is now into the foreseeable future.[94]
[94] Exhibit P8, PCB 85.
Dr Simone Ryan, Consultant Occupational Physician
99Dr Ryan provided a medico-legal report dated 13 April 2022. From the medical viewpoint Dr Ryan reported that:
In September of 2017, Ms Simpson re-injured her back. She had been showering and bent over to pick up some clothes off the floor. She describes that she had a chronic exacerbation of her usual lower back pain, however it started again radiating down the back of both legs.
An ambulance was attended and she was taken to the Princess Alexandra Hospital. Again, she was discharged to the care of her GP. Treatment consisted of inpatient and outpatient physiotherapy, clinical Pilates and hydrotherapy. She was then referred to an independent physiotherapist in Brisbane who again recommended that physiotherapy and clinical Pilates
should be the mainstay of treatment.On returning back to Melbourne, Ms Simpson again tried to best manage her chronic lower back pain. She was being afforded physiotherapy ongoing, clinical Pilates ongoing and she had started with a light weights program at a gym. Her physiotherapist has referred her to a pain clinic.
Ms Kazmir Simpson is a 28-year-old right hand dominant worker who, in the course of her work with Nova 100 and Smooth FM, sustained a work-related multi-level discogenic lower back injury from L4 to S1. She has undergone extensive amounts of conservative treatment and has made a determined decision to try and keep working (all within her medical restrictions scenario).
The prognosis is very uncertain. I am very concerned about Ms Simpson’s current presentation. She is considerably distressed, frustrated and at a loss as to a pathway forward. This is concerning in a young woman who had great aspirations of slowly stepping up her career to ultimately be a radio announcer. It is clear that when she is engaged with a particular employer, she performs well and with any given employer that she has worked for, she has been able to certainly, in more recent years, make her way up through the ranks through various promotions. This would indicate her good work
ethos, work attitude and performance.Unfortunately, all of this has come to an end, not least of which is contributed to by her lower back scenario and inability to undertake regular usual amounts of work, in regular usual working environment such as sitting down in an office. Sitting is one of the worst scenarios for her lower back presentation which triggers a sciatica and from there, there is a spiral of events with low back pain, inability to work, downturn in mood, loss of income
and on it goes.The prognosis very much depends on the next steps of treatment. If Ms Simpson was my patient, I would pivot her treatment to something far more aggressive and possibly down the pathway of a neurosurgical review and interventional pain management.
At the very least, she requires referral to a consultant pain management specialist to try and manage her current medications noting that many of the medications she has been prescribed over time have triggered various side-effects. If Ms Simpson was able to be seen by a consultant neurosurgeon and/or interventional pain management specialist, and if treatment was to be implemented, then she will need a reassessment in time with respect to the medical prognosis moving forward.
If Ms Simpson was my young patient with her motivation and determination to improve her medical scenario, I would make a recommendation for her to have a neurosurgical review in conjunction with an interventional pain specialist review. It may well be that there is some surgical intervention to be considered for Ms Simpson and if not, interventional pain management may be the next stay of recommended treatment. In any case, her consultant pain specialist should be involved in her care given the length of time it has been that she is suffering a very significant chronic lower back pain and associated symptomatology.
I am concerned that her medical management is suboptimal. Clearly, she has gone on to develop side-effects of some of her medication including but not limited to gastrointestinal side-effects and she is doing her very best to try and manage her medical scenario with nonmedical therapy such as various inflammation-targeted supplements, electric heat packs and topical creams. Clearly, this is not improving her medical scenario and she needs a pivot in her treatment to improve things.[95]
[95] Exhibit P9, PCB 92.
100From the standpoint of a work capacity Dr Ryan reported that:
it is admirable that Ms Simpson has tried to maintain employment right throughout her history since her lower back injury. She is currently working as a voiceover artist where she can sit, stand and move around as tolerable by her pain in a studio. She is at a loss as to a pathway forward and vocational rehabilitation would be sensible for her.
In her current state, Ms Simpson has capacity to work part-time where she can sit, stand and move around as tolerable by pain. I would suggest that she is not fit to work any more than three to four hours per day on four to five days per week like this. This can be reassessed once there has been a change in her medical oversight, certainly under the watchful eye of a consultant pain specialist whether she undertakes surgery or not.[96]
[96] Exhibit P9, PCB 92.
101Dr Ryan reported that the plaintiff’s prognosis is dependent on her future treatment. She concluded her report by stating that:
at the very least, she requires referral to a consultant pain management specialist to try and manage her current medications noting that many of the medications she has been prescribed over time have triggered various side-effects. If Ms Simpson was able to be seen by a consultant neurosurgeon and/or interventional pain management specialist, and if treatment was to be implemented, then she will need a reassessment in time with respect to the medical prognosis moving forward.[97]
[97] Exhibit P9, PCB 93.
Mr Thomas Kossmann, Orthopaedic Surgeon
102Mr Kossmann provided a medico-legal report dated 9 November 2022. After addressing history and the work injury he said that:
Ms Simpson suffered from aggravation of her lumbar spinal condition in September 2017. She told me that when was bending over in the shower she suffered from severe lower back pain, radiating into both of her legs. She told me that she could not feel her legs and could not stand. She was taken for further evaluation to Princess Alexandra Hospital and was treated accordingly.
Ms Simpson told me that she continued with physiotherapy and Pilates at Princess Alexandra Hospital throughout 2018 and 2019. Ms Simpson returned to Melbourne at the end of 2019.
103Mr Kossmann diagnosed a “traumatic disc prolapses at the L3/4, L4/5 and L5/S1 levels and bilateral L5/S1 facet joint osteoarthritis.”[98] As to the cause of injury, Mr Kossmann reported that “in my opinion on the balance of probabilities, the activity described in paragraph 8 of Ms Simpson’s serious injury affidavit was a cause of her injury and present incapacity.”[99]
[98] Exhibit P10, PCB 100.
[99] Exhibit P10, PCB 102.
104In addressing causation, Mr Kossmann said that:
Ms Simpson was working in physically demanding work for a radio station, where she had to lift heavy items, as outlined above. In the course of her employment, she suffered from an acute onset of severe pain in her lumbar spine. Further investigations showed that she suffered from disc prolapses at the L3/4, L4/5 and L5/S1 levels, as well as bilateral L5/S1facet joint osteoarthritis. Ms Simpson was treated conservatively. She had a significant flare up in September 2017. She continues with physiotherapy and Pilates and undertakes self exercises. Ms Simpson continues to suffer from pain in her lower spine, radiating into both of her legs, more on the left than on the right side, with different pain sensations. Her lumbar spinal condition has had a profound impact on every aspect of her life.
105Mr Kossmann addressed the plaintiff’s prognosis as follows:
Ms Simpson’s prognosis regarding her lumbar spine is guarded. She will further treatment with pain medication and anti-inflammatories. She may also benefit from ongoing physiotherapy, Pilates and hydrotherapy; however, this has to be monitored very carefully to avoid any aggravation. Ms Simpson may develop further degenerative changes in her lumbar spine, for which she may require further treatment. She has a medium chance of undergoing surgery on her lumbar spine at some stage in her life; however, I cannot anticipate a timeframe if and when this may occur.[100]
[100] Exhibit P10, PCB 101.
106Mr Kossmann added:
Ms Simpson has pain over the iliosacral joints, more on the left than on the right side and signs of trochanteric bursitis and/or insertional tendonitis of the gluteus medius tendon over the left side. This may be caused by her changed gait and her limping. I recommend further investigations including MRIs of her pelvis and left hip. Depending on the outcome of these investigations she may require further treatment. Once the MRIs of her pelvis and left hip have been done, I will be able to give you my further opinion regarding the possible future treatment options.
Ms Simpson suffers from ongoing pain issues in her lumbar spine, and I recommend referral to a pain management specialist who can treat her with CBD oil.
Ms Simpson has a history of anxiety, depression and post-traumatic stress disorder. I recommend referral to a psychiatrist.
Ms Simpson is depending on the support of her partner for some activities of daily living. I recommend referral to an occupational therapist to see if Ms Simpson requires tools, aids, domestic services and changes to her accommodation.[101]
[101] Exhibit P10, PCB 101.
107Mr Kossmann reported on the plaintiff’s work capacity:
Ms Simpson is working on very limited hours and on light duties. She may be able to continue with this kind of work and possibly increase her working hours depending on her symptoms. However, I doubt that she will be able to work full-time. I recommend that she does not engage in any physically demanding work or work where she has to walk long distances, walk on uneven ground, walk upstairs and downstairs, walk on inclines and declines, climb up and down ladders, kneel or squat, or carry heavy items weighing more than 2-5kg. In my opinion, this incapacity will continue for the foreseeable future.[102]
[102] Exhibit P10, PCB 101.
Dr Hazem Akil, Neurosurgeon
108Dr Akil in a medico-legal report dated 13 December 2022[103] reported on the mechanism of the plaintiff’s injury, her current symptoms, her past medical history, as well as her social history. Addressing the question of diagnosis, Dr Akil said that:
Based on my clinical examination, the details of the history obtained from Ms Simpson and based on the radiological investigation of both 2015 and 2022. The sequence of the event is the following:
The lifting of a heavy box resulted in a disc herniation at the level of L5/S1. This resulted in a bilateral displacement of the S1 nerve root. The pain has been under some kind of control, although not completely; however, it kept on increasing in intensity with the time. The resultant left leg pain occurred due to the increase in the size of the disc prolapse at the level of L5/S1 with a frank compression of the descending left S1 nerve root and a displacement of the right S1 nerve root.
Her clinical diagnosis is discogenic pain with an S1 radiculopathy. The main cause of the condition is the incidence that occurred in March 2015. Prognosis is guarded.[104]
[103] Exhibit P11.
[104] Exhibit P11, PCB 107.
109As to the plaintiff’s work capacity, Dr Akil reported that:
She is currently working on two to three hours a week. However, she is always in agony. She certainly cannot do any of the activities that she was able to do when she was doing a job as a street team member with a radio station. Certainly, bending, lifting, pushing, pulling, squatting or manipulating her spine is something that is not advisable.[105]
[105] Exhibit P11, PCB 108.
110According to Dr Akil, the plaintiff cannot return to full time unrestricted work in her pre-injury position.
111Dr Akil addressed the impact of injury on the plaintiff’s life in these terms:
Ms Simpson described to me that she was athletic. She won many medals during her time at school in many sports. She used to be a keen runner doing 10 km plus daily.
She was also keen on dancing with many types of it.
She feels that she put on significant weight as she was unable to exercise.
Her ability to socialise and meet her friends has significantly reduced.
Her intimate relationship with her partner is also significantly affected.[106]
[106] Exhibit P11, PCB 108.
112Dr Akil concluded his report by stating that “with the surgical intervention, her prognosis is guarded. Without any intervention, her prognosis is poor.”[107]
[107] Exhibit P11, PCB 109.
The Defendant’s Medical Material
Dr David Elder, occupational physician
113Dr Elder provided a medico-legal report dated 4 May 2021.[108] He summarised the history of the plaintiff’s presenting condition, her symptoms and treatment. He reported on the plaintiff’s past medical history as well as her occupational and personal history, her activities of daily living, and his assessment following on a physical examination. Dr Elder diagnosed that “in summary, the worker has chronic mechanical low back pain with no clinical evidence of radiculopathy.”[109]
[108] Exhibit D1.
[109] Exhibit D2, DCB 27.
Mr Kevin Siu, neurosurgeon
114Mr Siu provided three reports dated 27 September 2021,[110] 14 April 2022[111] and 28 November 2022.[112] In his first report, he said that:
in summary, Ms Simpson was lifting a box of bath salts weighing approximately 10-15kg way back in 2015 and had low back pain with pain down both legs. She has had physiotherapy throughout most of this time. She was gainfully employed for many months and indeed for 18 months in Queensland she was able to hold down a full time desk job.[113]
[110] Exhibit D2, DCB 32-38.
[111] Exhibit D2, DCB 39-44.
[112] Exhibit D2, DCB 45-51.
[113] Exhibit D2, DCB 36.
115Mr Siu reported that there had been a diagnosis of a soft tissue injury in 2015 and that the “MRI imaging in 2015 showed a mild central disc prolapse without nerve root entrapment.”[114]
[114] Exhibit D2, DCB 36.
116Referring to the MRI of the lumbar spine report dated 29 July 2015 Mr Siu said that it:
is slightly unusual, in that it shows a central disc prolapse in someone in their twenties, however, there was no nerve root compression. I would not consider that the straining of lifting a box of bath salts would bring about those changes. I think it is part of the normal ageing process. I hesitate to call it a degenerative condition as she was only in her early twenties at that time. The MRI scan does not describe the extent of the central disc prolapse. I would have thought that the findings were incidental and the injury at work was a soft tissue injury.[115]
[115] Exhibit D2, DCB 36-37.
117Mr Siu concluded that the soft tissue injury should have settled many years ago and he was unable to explain the plaintiff’s symptoms on an organic basis.
118In his second report, Mr Siu wrote that:
the pain level was reportedly 7/10 and remained so. In fact, she said she has pain every day. She had been gainfully employed for many, many months between the injury and now. She had flare-ups, the frequency of which cannot be determined with accuracy. It could be as often as once every six months. She does not see the general practitioner very often, only twice in the last six months, but she regularly sees the physiotherapist. It is impossible for me to ascribe why she has such persistent pain and discomfort.[116]
[116] Exhibit D2, DCB 42.
119When asked how the plaintiff’s condition has progressed since he last saw her Mr Siu said that:
There has been no progression. She continues to complain of pain as severe as 7-7½/10. She is on no prescription medicine. Since July 2021, she can work one to two hours per week, that means with standing and doing voice over. She has not been asked to do more and she has not sought to do more. I must say I find the history unreliable but I certainly cannot offer any organic reason why she should continue to have pain. I believe she sustained a soft tissue injury which should have settled in a matter of months. Physiotherapy is passive and should not continue. She should be taught some home exercises and do them at home. There is no need to have face-to-face physio and massage. Massage is passive and would not contribute to her recovery.[117]
[117] Exhibit D2, DCB 42.
120Mr Siu remained of the opinion that “in the seven years post-injury she remained symptomatic. The soft tissue injury from work would have resolved in a matter of months in 2015. Her present symptoms are unlikely to be work-related.”[118]
[118] Exhibit D2, DCB 44.
121In his third and final report, Mr Siu stated on examination the plaintiff “had a normal neurological examination of her lower limbs. Symptoms and restrictions were not consistent with the diagnosis of nerve root compression I think she fits more into chronic pain syndrome.”[119]
[119] Exhibit D2, DCB 48.
122Mr Siu expressed the opinion that the plaintiff is likely suffering from chronic pain syndrome. Her current symptoms were “persistent severe pain in the lower back with radiation into both legs, the left worse than the right.”[120] He said that “whilst she had a soft tissue injury, it morphed into a chronic pain syndrome.”[121]
[120] Exhibit D2, DCB 49.
[121] Exhibit D2, DCB 49.
Dr Mary Wyatt, Occupational Physician
123Dr Wyatt furnished three medico-legal reports dated 5 November 2021, 10 April 2022, and 9 December 2022.
124In her first report Dr Wyatt related the history of condition, the plaintiff’s medical, social, and occupational history as well as recording her examination and assessment of the plaintiff.
125In describing the occupational restrictions that the plaintiff’s physical injury causes, Dr Wyatt said that her:
back problem means that she should avoid a lot of heavy manual work, repeated deep bending, and she should be encouraged to change her position intermittently.
Ms Simpson seems to be over-avoiding activities, which is a not uncommon issue, in people who are anxious. She did do a lot of sport in her youth and it would seem appropriate to encourage her to engage in greater levels of activity and ensure that recognises that activity is not likely to harm her back, but that improving her fitness is an integral part of managing her back problem.
Ms Simpson’s back problem in 2015 would not be expected to cause long term back problems. The episode is clinically more consistent with an acute episode and while Ms Simpson advised she does not recall previous back complaints, the records from suggest a long history of back problems. The 2015 episode is more consistent with a flare-up in a constitutional problem. This is similar to the episode in 2017, with an acute episode, which is common for people with back problems.[122]
[122] Exhibit D3, DCB 57.
126Dr Wyatt reported that in light of restrictions, the type of work the plaintiff has done since 2015 is reasonable work, and she said that “working in communications, radio production, community without doing the manual handling aspects of the role, work in retail or work in communications roles is suitable for Ms Simpson from a medical perspective. Full-time hours of work seem reasonable.”[123]
[123] Exhibit D3, DCB 57.
127In her second report, Dr Wyatt wrote that since she had last seen the plaintiff she:
has had ongoing physiotherapy and discussions about trying to improve her exercise and fitness. However, she continues to have passive treatment and while she has supervised exercises weekly, I did not get the impression that Ms Simpson was actively engaged in her home exercise program or engaged sufficiently for this to be making a meaningful difference. The overall situation seems to be stagnant.[124]
[124] Exhibit D3, DCB 61.
128Dr Wyatt did not believe that any medical indication existed for the plaintiff to remain off work. She reported that the duties outlined in the Nabenet Vocational Assessment report are all in line with the plaintiff’s previous work experience and that they fit the plaintiff’s limitations set out in her first report.
129In her third report dated 2 December 2022, Dr Wyatt stated that:
work activities that allow Ms Simpson to change her posture are appropriate. She should not be required to do repeated deep bending and repeated twisting of the spine. She should not be required to repeatedly lift over 5-8kg. I see Ms Simpson as having a broad capacity for work. I formed the view that non-physical factors are playing a significant role in her remaining off work. I note her adverse childhood experiences and advised anxiety and that her work activities came to an end on the basis of her employer’s decisions. I note lack of financial pressure to work and her outstanding compensation claim. I think she has a broad capacity for work and is capable of full-time hours of work within the limitations described above.[125]
[125] Exhibit D3, DCB 67.
130In Dr Wyatt’s opinion, the plaintiff has the capability to complete the activities outlined in the job descriptions from Nabenet from April 2022. As she had previously noted in her reports, “the communications assistant role is parttime, with flexible work arrangements, and the job is not physically taxing and the duties are within Ms Simpson’s previous work experience. The online communication officer role for Bayside City Council is also a suitable role. It is not physically taxing and such a role would enable regular change in posture. The same applies to the broadcast team member role. This is not a physically taxing role and I consider is within Ms Simpson’s physical capacity.”[126]
[126] Exhibit D3, DCB 68.
Nabenet Suitable Employment Report 1 April 2022[127]
[127] Exhibit D4, DCB 70-81.
131Relevant worksite assessments undertaken for suitable employment for the plaintiff were identified as:
Communications assistant
The first assessment completed was for a Communications assistant at an Australian Childcare Alliance located in Oakleigh.
Online Communications Officer
The second assessment completed was for an Online Communications Officer at Bayside City Council.
Programming and Broadcast Team Member
The third assessment completed was for a Programming and Broadcast Team Member at Channel 31 in Southbank.
Food and Merchandise Events Officer
The fourth assessment completed was for a Food and Merchandise Events Officer at Myer Support Office in Docklands.[128]
[128] Exhibit D4, DCB 72.
Defendant’s submissions
Pain and suffering
132Mr Middleton submitted that neither the medical evidence nor the consequences relied on by the plaintiff supported a finding of her injury being at least very considerable.
133Mr Middleton submitted that in such a case as this where the plaintiff had returned to full time work at Hobson Bay City Council and which work was reduced to part time hours at the initiative of the employer due to a reorganisation and not because of the plaintiff’s impairment, the measure of the disabling effects of pain experienced by the plaintiff may be identified through what limitations there were on her employment and that I should be satisfied that they have proved to be quite limited.[129]
[129] Hawkins v DHL Express (Aust) Pty Ltd [2013] VSCA 26, [63].
134Furthermore, and at any rate, Mr Middleton submitted that I should be satisfied that the plaintiff suffered a second and separate injury in Brisbane in 2017 and which “probably plays some relevant and significant part in her current presentation.”[130]
[130] T57, L20-21.
135Mr Middleton referred to the radiology and specifically two MRIs of the plaintiff's lumbar spine taken on 19 July 2015 and 26 April 2022. He submitted that in comparing the reports it seems clear that at particularly the L5/S1 level there had been enlargement in the later scan and taken after the November 2017 incident.
136Mr Middleton submitted that the injury suffered in Brisbane in November 2017 when the plaintiff bent over to pick something up should not be regarded as a gradual onset or worsening of the first injury of March 2015.
137Mr Middleton made particular reference to the report of Dr Thomas and from whom he sought to obtain support for his contentions who wrote that:
In September 2017 she bent to pick up some clothes and she had extreme pain similar to the first event. An ambulance was called and she was admitted to Princess Alexandra Hospital in Brisbane. She was given medication and referred back to a physiotherapist. She reported that the acute event subsided but she had been left with chronic pain.[131]
[131] Exhibit P8, PCB 81.
138Mr Middleton submitted that Dr Thomas’s comment that the plaintiff has been left with chronic pain should be understood as an intended reference to a new consequence and not that the plaintiff had lived with chronic pain prior to November 2017 and since the first injury in March 2015.
139In response to me suggesting to Mr Middleton that one view of the reporting by Mr Thomas is that all he intended to convey was that if the scans were considered side by side there is an enlargement by the time of the later MRI, Mr Middleton argued that Mr Thomas having omitted to connect the March 2015 injury to the observations on the later scan is telling and, moreover, to conclude a connectedness by way of cause of the first injury to the plaintiff’s condition after the second incident is to leave unanswered the comment by Dr Thomas that although the acute aspect of the November 2017 injury had subsided the plaintiff had been left with chronic pain in its wake.
140Mr Middleton next referred to Mr Kossmann who reported that:
Ms Simpson suffered from aggravation of her lumbar spinal condition in September 2017. She told me that when she was bending over in the shower she suffered from severe lower back pain, radiating into both of her legs. She told me that she could not feel her legs and could not stand. She was taken for further evaluation to Princess Alexandra Hospital and was treated accordingly.[132]
[132]Exhibit P10, PCB 96.
141Mr Middleton referred to Mr Kossmann’s who wrote that, "In my opinion on the balance of probabilities, the activity described in paragraph 8 of Ms Simpson’s serious injury affidavit was a cause of her injury and present incapacity."[133] Mr Middleton was critical of the broad nature of the opinion and the lack of justification in excluding without explanation the history he recounted of the incident in Brisbane in November 2017.
[133]Exhibit P10, PCB 102.
142Mr Middleton next referred to the absence of history of the November 2017 incident in Dr Akil’s report of 13 December 2022 which he submitted amounted to a significant deficiency.
143Mr Middleton referred to the report by Mr Siu who classified the plaintiff to have suffered a soft tissue injury but who was unable to divine an organic basis for her ongoing pain at the level of intensity claimed and who, in his third report of 28 November 2022 that followed him having been provided further material said, "whilst she had a soft tissue injury, it morphed into a chronic pain syndrome.”[134]
[134] Exhibit D2, DCB 49.
144Mr Middleton highlighted the absence of a medical report from any doctor who treated the plaintiff in Queensland and he argued that the lack of the same is not cured by recourse to the record of the plaintiff’s hospital admission at Princess Alexandra, Brisbane.
145Mr Middleton relied on the report by Dr Wyatt who saw the plaintiff on a number of occasions and who on 9 December 2022 identified jobs from the Nabenet report, which in her opinion are within the plaintiff's capacity.
146Mr Middleton submitted that the plaintiff worked a number of years after the initial injury in March 2015 as well as after the incident in 2017 and always in full time employment save when she was restructured into parttime work three days a week at Hobson Council.
147Mr Middleton argued that there is little evidence that much has changed since the March 2015 injury or after November 2017 whether for the better or the worse but only that the plaintiff’s condition has remained basically the same. As Mr Middleton submitted, despite physiotherapy over the course of approximately 8 years, a long history of recourse to Pilates, cupping, and the needling, none of these modalities have altered the plaintiff’s condition and, furthermore, despite a suggestion by Mr Thomas there has not been a referral of the plaintiff to a spinal surgeon.
148Mr Middleton submitted that the plaintiff has demonstrated a far greater capacity than some of the doctors who assessed her described in their opinions.
149Mr Middleton submitted that despite the account from Dr Akil that the plaintiff is "always in agony"[135], and other references to complaints of the plaintiff’s pain as constant, such accounts are inconsistent with what is depicted on the surveillance footage. Mr Middleton submitted that the manner in which the plaintiff was observed interacting with her dog is clearly at odds with her histories and her complaints and presentation to doctors. Moreover, Mr Middleton emphasised that the plaintiff’s presentation in the footage is not a snapshot of the plaintiff on a single day but was recorded over a period of time such that it should be regarded as providing a reasonable basis to reach a favourable conclusion on retained capacity.
[135]Exhibit P11, PCB 108.
150The defendant provided an aide memoire of the surveillance times. The aide memoire identified that the plaintiff was filmed for a total of 55 hours over the course of 12 days, namely 2 August 2021, 4 August 2021, 5 August 2021, 1 November 2021, 28 March 2022, 1 April 2022, 5 April 2022, 7 April 2022, 8 April 2022, 24 October 2022, 28 October 2022, and 3 November 2022. The aide memoire had three periods for which the plaintiff was under surveillance.[136] The aide memoire indicated the dates, the hours the plaintiff was under surveillance together with the amount of time of footage. There were periods when the plaintiff was not seen by the person recording her.
[136] T49, L21-26.
151The first period comprised 15 hours of surveillance on the plaintiff, during 2 August 2021, 4 August 2021, 5 August 2021, and 1 November 2021. During this period and in particular 2 August 2021 there was 15 minutes of footage of the plaintiff filmed and during the other dates, the plaintiff was not seen.
152The second period comprised 25 hours of surveillance during 28 March 2022, 1 April 2022, 5 April 2022, 7 April 2022, and 8 April 2022. During this period there was 62 minutes and 54 seconds of footage of the plaintiff. On 28 March 2022, there was 18 minutes and 45 seconds recorded. On 1 April 2022, there was 22 minutes and 26 seconds recorded. On 5 April 2022 there was 4 minutes and 1 second recorded. On 7 April 2022 there was 10 minutes and 44 seconds recorded. On 8 April 2022 there was 7 minutes and 58 seconds recorded.
153The third period comprised 15 hours of surveillance which was split up between 24 October 2022, 28 October 2022, and 3 November 2022. During this period, the plaintiff was recorded on 28 November 2022 for 11 minutes and 27 seconds.
154Of the 55 hours spent on surveillance over the three periods, there was 89 minutes and 21 seconds of recorded surveillance footage of the plaintiff.
155The days and times of the surveillance played in Court were:
·2 August 2021, for 15 minutes and 52 seconds.
·28 March 2022, for 18 minutes and 45 seconds.
·1 April 2022, for 22 minutes and 26 seconds.
·5 April 2022, for 4 minutes and 1 second.
·7 April 2022, for 10 minutes and 44 seconds.
·8 April 2022, for 7 minutes and 58 seconds.
·28 October 2022, for 11 minutes and 27 seconds.
Pecuniary Loss
156Mr Middleton submitted that the plaintiff has a demonstrated work capacity for full time employment and would be suitable in each job identified in the Nabenet report with evidence of the plaintiff’s capacity underscored by reference to the fact that she worked full time as a Program Director for a radio station in Brisbane and from which employment she resigned due to the need to return to Victoria because of health related issues with her partner and not because of back pain and restriction in discharging her employment duties.
[156] (2010) 31 VR 1, [9]-[17].
The Surveillance
192I have again watched the surveillance footage depicting the plaintiff that was played in Court in the course of the hearing. It is helpful in explaining my findings of the extent of its probative value if I make the following preliminary observations concerning it.
193First, although there are some accounts in histories referred to by Mr Middleton to which I have referred to in these reasons of the plaintiff presenting to doctors in constant agony or constant pain, I think such accounts need to be tempered by an appreciation that they are understandable descriptions by her and explicable by the repeated flare ups of pain that the plaintiff has described experiencing. It is improbable that even the most stoic of person would be able to push through and engage in full time employment for so long as the plaintiff has and to be able to go about the activities in the park which she is seen engaged in on surveillance for the limited periods of times over the days shown if her pain was of the degree and the constancy that Mr Middleton pointed to and was recorded by some doctors to whom the plaintiff has been referred.
194Second, the plaintiff in her evidence in Court portrayed a somewhat less dramatic picture and I have concluded that her oral evidence more fairly depicts the extent and effect of pain and limitation on her. I do not accept that previous heightened descriptions of pain on the one hand and the plaintiff’s more measured oral evidence in Court on the other hand, is proof of the plaintiff being dishonest. The plaintiff, for example, gave accounts in histories of walking her dogs and which she also deposed to in her affidavit evidence. As well, the plaintiff described how, for example, her recourse to conservative management by way of physiotherapy can provide temporary although not long lasting relief from pain. I am satisfied that there are periods of time and in fact days when the plaintiff experiences relief from pain or at least a moderation in her back pain. This conclusion is consistent with the plaintiff depicted on surveillance.
195Third, and following on my from this assessment by me is that the plaintiff’s appearance in surveillance and her actions as depicted cannot be fairly evaluated absent an understanding of the broader evidence I have referred to of the occasions of variability in the plaintiff’s pain that she has provided in written and oral evidence. Accordingly, the surveillance falls to be considered in a less adverse light than the defendant would have it when the evidence is considered overall.
196I am not satisfied that the surveillance precludes the acceptance by me of the plaintiff’s account of pain and suffering and the nature and frequency of the same or of my evaluation of it as being more than marked and significant when judged objectively according to range of like impairments and being very considerable. I am of the same mind in relation to the plaintiff’s claim for economic loss for the reasons that follow.
Pecuniary Loss
197To establish an entitlement to commence proceedings for pecuniary loss damages, the plaintiff must satisfy the provisions of s325(2)(e)(i) of the Act. Because the plaintiff was under 26 years of age at the date of injury, the usual common law position applies in determining whether or not she has established a loss of earning capacity of 40 per cent or more that after the date of hearing and will continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more.
198Her Honour Judge Robertson in Debono v VWA[157] comprehensively addressed the principles derived from authority concerning these provisions of the Act in the following passages:[158]
[157] [2022] VCC 1317.
[158] Ibid [143]-[151].
For leave to be granted to seek damages for pecuniary loss, Mr Debono must establish, at the date of the hearing, that:
(a)he has sustained a loss of earning capacity of 40 per cent or more, as set out in s325(2)(e)(i);
(b)pursuant to s325(2)(e)(ii), Mr Debono will continue permanently to have such a loss of earning capacity, and
(c)the narrative test in s325(2)(b) is met.
Section 325(2)(e)(i) provides that:
“… the worker has a loss of earning capacity of 40 per cent or more, measured (except in the case of a worker referred to in item 1 of Schedule 2 or a worker under the age of 26 years at the date of the injury) as set out in paragraph (f); …”
It was not in dispute that where a worker is under the age of twenty-six years at the date of injury, the effect of s325(2)(e)(i) is that the formula in s325(2)(f) does not apply to the worker under the age of 26.[159]
The defendant submitted that, notwithstanding that the formula in s325(2)(f) did not apply, s325(2)(g) of the Act applied to Mr Debono and imposed a requirement that he establish that he would not have a capacity for “suitable employment” which would result in him earning more than 60 per cent of gross income from personal exertion, as determined in accordance with paragraph (f), had the injury not occurred.
The question whether paragraph (g) of s325(2) was intended to apply to a worker under the age of twenty-six arose for consideration in Capper v Munday Sales Pty Ltd & Anor.[160] In that case, her Honour Judge Millane considered that the intention of Parliament was not to restrict the factors relevant to the determination of the loss of earning capacity of a worker under the age of twenty-six at the date of injury.
In Dart v JC Decaux Australia Pty Ltd,[161] her Honour Judge Tsalamandris noted that some judgments of this Court have subsequently held that the obligations in s325(2)(g) apply to a worker under the age of twenty-six.[162] Other, more recent decisions, have held that they do not.[163] Ultimately, her Honour did not need to decide the issue.
In my view, Mr Debono is not required to discharge the onus as to capacity for suitable employment found in s325(2)(g) of the Act. Nor is he required to establish the reasonableness of his attempts to participate in rehabilitation and retraining. This is because the intention of Parliament in enacting s325(2)(e) of the Act was not to restrict the factors relevant to the determination of the loss of earning capacity of a worker under the age of twenty-six at the date of injury. Instead, it was intended that the usual common law position as to the assessment of loss of earning capacity applies and the Court may have regard to the probable income from personal exertion which a worker would have earned, but for the injury, over the worker’s probable earning life.
Having determined that common law principles apply to s325(2)(e) of the Act, as her Honour Judge Millane noted, imposing a requirement that a worker under the age of twenty-six years establish that he would not have a capacity for “suitable employment” which would result in him earning more than 60 per cent of gross income from personal exertion, as determined in accordance with paragraph (f), had the injury not occurred, would re-introduce, via s325(2)(g), the statutory formula in s325(2)(f) for the assessment of the loss of earning capacity of a worker under the age of twenty-six at the time of injury. It would also have the practical result of restricting the factors relevant to the determination of the loss of earning capacity of a worker under the age of twenty-six at the time of injury contrary to the intention of the legislature.
The result is that in assessing loss of earning capacity of a worker under the age of twenty-six, what a worker was earning, was capable of earning or would have earned during the three-year pre and post-injury period is not relevant. Nor is the concept of suitable employment. Instead, the usual common law position as to the assessment of loss of earning capacity applies and the court may have regard to the probable income from personal exertion which a worker would have earned but for the injury over the worker’s probable earning life.[164]
[159] Capper v Munday Sales Pty Ltd & Anor [2013] VCC 1015, [144] (‘Capper’).
[160] Ibid.
[161] [2021] VCC 741.
[162]Jarvis v Woolworths [2012] VCC 1329; Spiteri v Victorian WorkCover Authority [2016] VCC 912; Sharma v Chandler Personnel Services [2018] VCC 1658.
[163]Sanderson v Woolworths Limited [2019] VCC 106; Moslimyar v Victorian WorkCover Authority [2020] VCC 444.
[164]Victoria, Parliamentary Debates, Legislative Assembly, 23 May 2000, 1169 (Hon M.M. Gould, Minister assisting the Minister for WorkCover)
199I respectfully adopt the reasoning and analysis by her Honour Judge Robertson and adopt the position that s. 325(2)(g) of the Act does not apply as it pertains to “suitable employment” and which is a creature of s.325(2)(f).[165] The plaintiff is not required to discharge the onus as to capacity for suitable employment found in s325(2)(g) of the Act. Nor is she required to establish the reasonableness of her attempts to participate in rehabilitation and retraining. This is because the intention of Parliament in enacting s325(2)(e) of the Act was not to restrict the factors relevant to the determination of the loss of earning capacity of a worker under the age of 26 at the date of injury. Instead, it was intended that the usual common law position as to the assessment of loss of earning capacity applies and the Court may have regard to the probable income from personal exertion which a worker would have earned, but for the injury, over the worker’s probable earning life. Imposing a requirement that a worker under the age of twenty-six years establish that she would not have a capacity for “suitable employment” which would result in her earning more than 60 per cent of gross income from personal exertion, as determined in accordance with paragraph (f), had the injury not occurred, would re-introduce, via s325(2)(g), the statutory formula in s325(2)(f) for the assessment of the loss of earning capacity of a worker under the age of 26 at the time of injury. It would also have the practical result of restricting the factors relevant to the determination of the loss of earning capacity of a worker under the age of twenty-six at the time of injury contrary to the intention of the legislature.
[165] Capper [2013] VCC 1015, [144].
200In an assessment of a loss of earning capacity by the plaintiff, I may have regard to the probable income from personal exertion which she would have earned but for the injury over her probable earning life.[166] The usual common law principles apply and have been expressed in successive County Court decisions since Jarvis v Woolworth[167](‘Jarvis’). In Jarvis, his Honour Judge Brookes referred to State of New South Wales v Moss[168] (‘Moss’) in which Heydon, JA identified the common law principles used to assess the loss of earning capacity of a plaintiff injured in a school accident at the age of fourteen years.[169] His Honour identified the following as relevant:
·Evidence of past economic loss is some though not conclusive evidence of reduced earning capacity.[170]
·It is generally desirable to have precise evidence of what the plaintiff would have been likely to earn before the injury and what he is likely to learn after it.[171]
·Where a plaintiff has suffered a significantly disabling injury which affects the range and nature of the work he can perform, a court can, without specific evidence as to what other persons with that kind of disability can earn, make a judgment and assessment on a percentage basis or otherwise of the value of the lost capacity.[172]
·The compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss.[173] It is an issue of calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities and not proof of probabilities.
·The mere fact that the quantum of damage is difficult to assess does not mean that the plaintiff is only entitled to a nominal sum.[174]
·The task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters.[175]
[166]Victoria, Parliamentary Debates, Legislative Assembly, 23 May 2000, 1169 (Hon M.M. Gould, Minister assisting the Minister for WorkCover)
[167] [2012] VCC 1329.
[168] (2000) 54 NSWLR 536.
[169] Ibid [66]-[87].
[170] Ibid [64].
[171] Ibid [66].
[172] Ibid.
[173] Ibid [77]. See Graham v Baker (1961) 106 CLR 340, 347.
[174] Ibid [72] and [74].
[175] Ibid [87].
201In arriving at my findings I have had regard to Sharma v Chandler Personnel Services Pty Ltd,[176] in which his Honour Judge Bowman said that what is required in an application such as this, is not a simple assessment of loss obtained by applying common law principles but rather, common law principles are applied in determining whether or not a 40 per cent loss has been proven. Of course evidence of a financial loss of 40 per cent would usually involve a comparison of actual and potential earnings figures. His Honour spoke of a burden of proof upon the plaintiff in relation to these matters generally, and, as his Honour said, the words “productive of financial loss of 40 per cent or more”[177] must have some meaning and applicability.
[176][2018] VCC 1658.
[177] Ibid [70].
202In Yammine v Kalway[178] Reynolds JA said this:
… [W]here a plaintiff has suffered a significantly disabling injury which obviously affects the range and nature of the work he can, therefore, perform, a tribunal of fact can, without specific evidence as to what other persons with that kind of disability can earn, make a judgment and assessment, on a percentage basis or otherwise, of the value of the lost capacity.[179]
[178] [1979] 2 NSWLR 151.
[179] Ibid 155.
203Strictly speaking, the issue does not turn on a comparison between what money the plaintiff would have earned apart from the injury and what money the plaintiff will earn after the injury. The compensable loss is not a loss of income but rather the loss of capacity to earn income in a manner productive of financial loss.[180] The income earned before the injury is relevant, but only as an evidentiary aid in assessing damages for the loss of the plaintiff’s capacity to earn income.[181] It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities.
[180] Graham v Baker (1961) 106 CLR 340, 347.
[181] Paff v Speed (1961) 105 CLR 459, 566 (Windeyer J).
204In Malec v J C Hutton Pty Ltd[182] Brennan and Dawson JJ approved Lord Diplock’s statement in Mallett v McMonagle[183]:
… the court must make an estimate as to what are the chances that a particular thing would or could have happened and reflect those chances, whether or not they are more or less than even, in the amount of damages.[184]
[182] (1990) 169 CLR 638, 639.
[183] [1970] AC 166.
[184] Ibid 176.
Analysis and Findings
205Taking into account the above principles, my task is to assess, to the best of my ability, the plaintiff’s injury, and to determine whether she has suffered more than 40 per cent loss of earning capacity. As Heydon JA identified in Moss,[185] the compensable loss is not a loss of income or an enquiry as to what Ms Williams was earning immediately prior to sustaining injury. It is an assessment of the loss of capacity to earn income in a manner productive of financial loss. It requires the estimation of possibilities, not proof of probabilities.[186]
[185] (2000) 54 NSWLR 536.
[186]Wellington Shire Council v Steedman [2003] VSCA 115; Moss (2000) 54 NSWLR 536.
206In CEM OGE v VWA[187] his Honour Judge Jordan said:
Taking the evidence of these treating practitioners, in my opinion they amount to a very significantly impaired earning capacity that is permanent for such a young worker… whatever the workplace is, workers cannot just refuse to lift anything below the knees or above the shoulders to take a few of the permanent restrictions. If a boss wants something done as basic as these functions, then in the real world it has to be done.[188]
[187] [2016] VCC 1664.
[188] Ibid [42].
207I respectfully agree with his Honour’s statement with suitable adaptions to the plaintiff’s particular circumstances.
208Given my findings of the plaintiff’s injury for the reasons earlier explained, I am satisfied that the plaintiff has established by means of the exercise in the estimation of possibilities and not proof of probabilities that the injury has precluded her attaining her strongly expressed and long standing desire to have attained the role of On Air Announcer.
209I am furthermore satisfied that the plaintiff’s ambition was not merely aspirational but grounded in a realistic and factual historical framework when regard is had to her work along with the evidence of Ms Cameron borne of her experience in the industry, the opinion she had formed of the plaintiff’s skill and application and her own knowledge of the broad range of remuneration of various echelons within the radio and entertainment side of the same. While Ms Cameron was not presented as an expert witness no application was made to exclude her evidence or was a submission made that I could not be informed at least in the broad by it. I have adopted a like approach to the plaintiff’s anecdotal account of earnings in her professed field of anticipated career development.
210If necessary to determine, then I am satisfied that the plaintiff has established a loss of earning capacity of 40% or more, with 40% of $150,000 being $60,000.
211In the event, I am wrong about this, then alternatively, I am satisfied that when the preponderance of the medical evidence is considered, then the plaintiff’s residual capacity for employment is at best two or three days per week and, therefore, the plaintiff has separately demonstrated the requisite loss of 40% or more having regard to the identified suitable employment. I accept the submission made by Mr Chancellor that it is not realistic that the plaintiff could be expected to meet the demands of the role with Bayside City Council given her evidence that I have accepted that she was only just managing her full time position in communications at Hobsons Bay Council prior to the restructure and had agreed to her hours being significantly reduced. Moreover, on the question of functional capacity, I am not satisfied that the demands associated with the suggested role for example of Broadcast Team Member and the working environment are consistent with the weight of the medical evidence and furthermore that the variable nature of the plaintiff’s condition exclude realistic employment in such a position.
212For all these reasons, I am satisfied that the plaintiff has discharged her burden of proof and has demonstrated a loss of earning capacity productive of a financial loss of 40 per cent or more and that the loss is permanent as required by s325(2)(e)(ii) of the Act and that my finding of the same is by way of consequence on any objective measure very considerable.
213I will hear the parties on the final form of orders and any ancillary matters.
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