Smith v Colorado Group Pty Ltd
[2016] VCC 1408
•28 September 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-03042
| DANNIELLE MAREE SMITH | Plaintiff |
| v | |
| COLORADO GROUP PTY LTD and VICTORIAN WORKCOVER AUTHORITY | First Defendant Second Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 August 2016 | |
DATE OF JUDGMENT: | 28 September 2016 | |
CASE MAY BE CITED AS: | Smith v Colorado Group Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1408 | |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION ACT 1985 – Section 134AB(38) – application for leave in respect of pain and suffering damages only – plaintiff suffered injury to the low back in two separate incidents with two separate employers – proceedings issued against each – action against employer later in time previously settled – plaintiff now seeking leave in respect of accident with earlier employer – problems associated with child birth – whether termination of pregnancy is a consequence which can be considered – whether consequences generally are of sufficient magnitude to satisfy statutory test – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Middleton QC with Mr D Seeman | Robinson Gill |
| For the Defendants | Mr R Stanley QC with Ms S Manova | IDP Lawyers |
HIS HONOUR:
General background and the test to be applied
1 This matter comes before me by way of an application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. The plaintiff seeks leave to bring proceedings in respect of pain and suffering damages only. In so doing, she relies upon paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act. The physical injury relied upon is one to the low back. The incident of injury relied upon occurred on 3 November 2008, when the plaintiff was lifting and moving a trestle table. This shall hereinafter be referred to as “the Colorado injury”. I should say at this stage that, whilst there are two named defendants, as I understand it the first defendant, which I shall hereinafter refer to as “Colorado”, has gone into liquidation or no longer exists and hence the addition of the second defendant, the Victorian WorkCover Authority. The interests of the defendants overlap entirely.
2 The occurrence of the Colorado injury is not in dispute. The occurrence of the injury and the payment of statutory benefits in respect of it are admitted – see, for example, Transcript (hereinafter referred to as “T”) 42.
3 A factor which considerably complicates matters is the occurrence of a second lower back injury on 30 October 2012, when the plaintiff was employed by an entity called Fujian Footwear. This injury, which occurred over the course of a day when the plaintiff was performing heavy duties, will hereinafter be referred to as “the Fujian injury”. The plaintiff commenced proceedings in relation to the Fujian injury and such proceedings were subsequently resolved. Thus, the plaintiff, having settled the action in relation to the Fujian injury, now seeks to litigate the Colorado injury, which patently occurred earlier in time. This certainly added a level of complexity, with the obvious necessity to distinguish between the consequences of the respective accidents. I would refer to the decision of the Court of Appeal in AG Staff Pty Ltd v Filipowicz [2012] VSCA 60. I am conscious of the fact that the Colorado injury is a separate injury and that I must determine whether the consequences of that injury, which consequences are to be delineated and kept separate from the consequences of the Fujian injury, satisfy the statutory test. There cannot be accumulation.
4 Of course, the situation in the present case is considerably more complicated than that in Filipowicz, because the injury and consequences under consideration are those that relate to the earlier accident and not the “aggravating” accident, as was the situation in Filipowicz. In this somewhat tricky situation, it seems to me that, in this particular case, the soundest way of approaching the matter and complying with Filipowicz is to take into account the events and consequences that can be established as having occurred or arisen after the Colorado injury, but prior to the Fujian injury. In other words, treatment, events and the like that occurred in the interval between the two accidents can be considered and assessed. The state of the plaintiff’s health in relation to relevant matters immediately prior to the occurrence of the Fujian injury can be considered. If there has been any satisfactory evidence of “disentangling” of consequences attributable to the Colorado injury and which persist after the occurrence of the Fujian injury, such evidence can be considered and, if appropriate, taken into account. However, in the present case, it seems to me that the bulk of the evidence relating to consequences of the Colorado injury is to be found by a consideration of events occurring between the two accidents and the state of the plaintiff’s back condition during that period up to the time of the Fujian injury. Overall, it seems to me that this approach should be followed in order to ascertain whether, to employ the terminology used in Filipowicz, the Colorado injury has satisfied the requirements of a “serious injury” in its own right, rather than in combination with the Fujian injury.
5 Mr R Middleton QC with Mr D Seeman of counsel appeared on behalf of the plaintiff. Mr R Stanley QC with Ms S Manova of counsel appeared on behalf of the defendants. The plaintiff gave oral evidence, including the adoption of two affidavits as being true and correct, and was cross-examined. No other witnesses were called. The balance of the evidence was documentary in nature and was tendered either by consent or without objection.
6 This quite complex case was conducted with a minimum of time wastage and with admirable identification of and speaking to the real issues. Counsel and their instructors are to be congratulated for this.
Factual background
(a)The plaintiff’s background, training and employment prior to the Colorado injury
7 The plaintiff is aged 36 years, she having been born on 27 April 1979. She is now a divorced and single woman with two young children. Her older child, a son, was born in 2000. She subsequently divorced, but found a new partner. She became pregnant again in March 2008 and was thus in an advanced stage of pregnancy when the Colorado injury occurred on 3 November 2008. The second child, a daughter, was born on 17 December 2008, some 44 days later. The plaintiff asserts that, because of the back pain which she was suffering and effectively remembering the strain upon her back when in labour with her earlier child, she opted to have this second child delivered by way of caesarean section.
8 The plaintiff became pregnant again in mid-2009. She alleges that, bearing in mind her previous experiences with pregnancy, including substantial weight gain and back problems, she opted to terminate the pregnancy and this seems to have occurred on 16 July 2009. The difficulties and back pain which the plaintiff had in relation to her second pregnancy, the birth of her second child, the symptoms which she suffered thereafter and the distress caused to her by the termination of the subsequent pregnancy are also set out in some detail in the affidavit of 18 April 2016 of the plaintiff’s father, Mr Peter Waite. There was no challenge to the accuracy of what is contained in his affidavit and he was not required for cross-examination.
9 I have gone into some detail in relation to these matters, because both the decision to have the caesarean section and particularly that to terminate the later pregnancy were relied upon as consequences of the Colorado injury. This is a topic to which I shall return.
10 In any event, the plaintiff’s background is that she completed secondary school and had some TAFE training. She worked for the Commonwealth Bank for approximately four years, including a period of three months maternity leave when her first child was born. In 2002 she obtained a position with Colorado, which was operating shoe stores under the title “Williams the Shoeman”. She originally worked as a salesperson, before being promoted to an assistant store manager and ultimately a manager. She did some further work for the Commonwealth Bank in 2005, before returning to work on a full-time basis as a store manager with Colorado. It was whilst working at the Parkmore store that the Colorado injury occurred.
(b) The plaintiff as a witness
11 I have no hesitation in accepting the plaintiff as a witness of truth. Mr Roy Carey, orthopaedic surgeon, examining the plaintiff at the request of the defendant in the Fujian litigation, described her as a pleasant and genuine witness with no evidence of embellishment. Associate Professor Miron Goldwasser, who saw the plaintiff at the request of Colorado, described her as friendly and co-operative. The impression created by the plaintiff in the witness box was that of a completely genuine individual, who did her best to answer questions in a truthful way.
12 Prior to the commencement of the oral evidence, counsel for the defendant called for an admission that the original supporting affidavit in the present application was identical to that used in the plaintiff’s application for leave in the case relating to the Fujian injury. That admission was not forthcoming at the time. However, the situation was later clarified. It is apparent that the plaintiff swore her original supporting affidavits in both the application against Colorado and that against Fujian before her solicitor on the same day. The affidavits are identical, save for the fact that, in the headings, one nominates Colorado as the defendant and the other nominates Fujian. Apart from that difference, each affidavit sets out, with considerable thoroughness, the sequence of events and the consequences relating to each accident. In other words, there has been complete transparency. Both affidavits contain considerable detail concerning each accident and its consequences. There is no attempt to conceal the circumstances or effects of either. There has been complete candour in relation to the two accidents.
13 I hasten to add that the above is in no way a criticism of Mr Stanley in calling for the admission in the way which he did. This is a somewhat unusual case and the fact that the plaintiff resolved the litigation concerning the accident later in time before dealing with the earlier accident, whilst being perfectly legitimate, is another unusual feature. In any event, the end result is that the identical affidavits represent transparency and candour, rather than anything sinister.
14 In summary, as earlier stated, I accept the plaintiff as a witness of truth.
(c) The state of the plaintiff’s health prior to the Colorado injury
15 In her affidavit of 9 February 2015, the plaintiff has sworn that, prior to the Colorado injury, she had suffered from some lower back pain, but it had always resolved and did not require significant time off work. This is similar to the history given, for example, to Mr Thomas Kossmann, orthopaedic surgeon, who examined the plaintiff at the request of her solicitors. There is no argument but that, when giving birth to her first child, contractions associated with back pain were experienced. However, I accept the general proposition that she had no ongoing back problems of any significance prior to the Colorado injury.
16 In his report of 11 May 2016, Mr Michael Dooley, orthopaedic surgeon, who examined the plaintiff at the request of the defendant, there is reference to a report of the CT scan of the lumbar spine of 31 March 2009. This showed some mild disc space narrowing and a minor diffuse disc bulge. Thus, the plaintiff probably had some pre-existing degenerative changes consistent with disease of the lumbar spine. However, even if this be so, I accept that such degenerative disease rendered no symptoms other than the limited ones referred to above.
(d) The injury, its diagnosis and treatment
17 Following the Colorado injury on 3 November 2008, the plaintiff attended at the Carrum Downs Medical Centre on 8 November 2008. This was a surgery which she seems to have visited in relation to various complaints since 2003. It is not suggested that these complaints are relevant for the purposes of the present litigation.
18 On 8 November 2008 the plaintiff was found to be very stiff and tender in the lower back, with a very severely limited range of movement due to pain. The pain radiated down the back of the right thigh. It would seem that physiotherapy was suggested. A WorkCover certificate was issued. The plaintiff attended again two days later, when Panadeine Forte was prescribed. Because of her pregnancy, she had only taken non-prescription Panadol over the preceding days. She underwent physiotherapy, which gave her some relief.
19 As previously stated, on 17 December 2008, the plaintiff’s daughter was born. The plaintiff had a caesarean section due to her concerns in relation to back pain. She denied emphatically that the caesarean section was required because of the position of the baby. After the birth, she suffered ongoing back pain. She has sworn to the fact that she had debilitating flare-ups of pain that would occur weekly. There were also occasions when her condition was such that she would have to ring her daughter’s father, from whom she had separated, so that he could come over in the middle of the night and assist due to the fact that her back had “locked up”.
20 It is apparent from the clinical notes of the Carrum Downs Medical Centre that the plaintiff saw Dr Hoole, who has since retired, on a couple of occasions in February and March 2009 in relation to lower back pain. When the plaintiff saw that doctor on 30 March 2009, she requested diagnostic imaging. It was recorded that she did minimal lifting.
21 It seems obvious that a CT scan was performed. Whilst no report from the radiologist involved was put before me, such report apparently being unable to be located, it is apparent from the report of Associate Professor Bruce Love, consulting orthopaedic surgeon, who saw the plaintiff at the request of the defendant in the Fujian litigation, that a radiological investigation was carried out in 2009 and that Associate Professor Love had available to him the images. In his report of 23 January 2014, he has stated that he observed the images from 2009 and that these revealed loss of disc height at the L5-S1 level with a suggestion of disc protrusion at that level.
22 Associate Professor Miron Goldwasser, orthopaedic surgeon, examined the plaintiff on 9 January 2015. It is apparent that he had available to him a report of a CT scan (apparently of 31 March 2009, although reported as being performed on 31 May 2009). It would not appear that Associate Professor Goldwasser, unlike Associate Professor Love, actually viewed the images. In any event, the conclusion of the radiologist, as reported by Associate Professor Goldwasser, was that there was some mild intrinsic disc space narrowing at the L4-5 and L5-S1 levels, a minor diffuse bulge at the L4-5 level, but no significant focal disc lesion was seen.
23 Mr Roy Carey examined the plaintiff on 17 December 2014. He described the CT scan of 31 March 2009 as showing a sacralisation anomaly on the left, but no other specific finding. Whether he actually viewed the imaging or simply read the radiologist’s report is not clear.
24 As stated, Mr Michael Dooley also examined the plaintiff at the request of the defendant. He would appear to have had only the radiologist’s report. He records it as indicating mild intrinsic disc space narrowing at the L4-5 and L5‑S1 levels and a minor diffused bulge at the L4-5 level.
25 Mr Thomas Kossmann, orthopaedic surgeon, who examined the plaintiff at the request of her solicitors, refers to the CT scan of 31 March 2009 as showing that the plaintiff had narrowed L4-5 and L5-S1 discs. He has also recorded that the radiologist described a very mild disc bulge at the L4-5 level, which bulge was abutting the anterior aspect of the theca.
26 In summary, it would appear that only the radiologist and Associate Professor Love have viewed the actual images resulting from the CT scan of 31 March 2009. I might add that the fact that Associate Professor Love viewed the actual images, as opposed to a report, is emphasised by the contrast which he drew between the investigation in 2009 and an MRI of 22 October 2013, concerning which he emphasised that he had only seen a report. He made it clear that he had observed the 2009 images. I am prepared to accept Associate Professor Love’s interpretation of what the images revealed. He is a consultant orthopaedic surgeon, as opposed to a radiologist. He saw a loss of disc height at the L5-S1 level, with a suggestion of disc protrusion.
27 As previously stated, the diagnostic imaging was requested by Dr Hoole, who has since retired, but she failed to make any record of what it revealed or what was then recommended as a result. Indeed, the report of the plaintiff’s current treating general practitioner, Dr Bien, from the same clinic, contains the observation that a lumbar CT scan was organised but, to the best of Dr Bien’s knowledge, was not performed. Why there is no record of it in the material from the Carrum Downs Medical Centre is a mystery, but what is apparent is that it was in fact performed.
28 In any event, the plaintiff has sworn that, throughout 2009‒2010, she continued to suffer from lower back pain and flare-ups. The pain ran down her right leg. She required regular pain relief medication. I note that she saw Dr Hoole in relation to back pain in November and December 2009. She also had locum doctors come to her house on a few occasions because of the severity of her back pain, including a late night attendance by Dr Nguyen of the Melbourne Medical Deputising Service on 26 August 2010.
29 Of course, in the meantime, she had again become pregnant and had that pregnancy terminated in July 2009. As shall be discussed, I accept that this termination of pregnancy was related to the back pain suffered by the plaintiff and to her fears as to the effect that such pregnancy and ultimate delivery would have upon such pain.
30 The plaintiff did not return to work with Colorado until approximately August 2010. This was a brief return, but she returned on a more permanent footing shortly after Christmas 2010. The plaintiff had written to Colorado on 17 November 2009 indicating that she was “still having severe problems with my back, having injured myself at work on 3 November 2008”. The plaintiff tendered an affidavit of Ms Michelle Raven‑Martin. In 2010, Ms Raven-Martin was the manager of the Colorado store in Moorabbin and decided to bring the plaintiff back to work there. She has sworn that she had to make some concessions. The plaintiff was given breaks, even on short shifts, because her back would get very sore and she would have to sit down. Ms Raven‑Martin has also sworn that she noticed that the plaintiff’s back would spasm and that she was very restricted in the work which she could do in the store. At times she appeared to drag her leg and sometimes attended work with a walking stick. She would not climb ladders to bring down stock and worked frequently on the till. However, when she was well enough to serve customers, she would significantly improve sales. The plaintiff continued in this employment until the store closed, although Ms Raven‑Martin has sworn that, even then, the plaintiff assisted with the “packing down”, although at times obviously in pain.
31 The plaintiff was then out of employment from approximately mid-2011 until approximately August 2011, when she commenced with Fujian. She was a full-time manager at a shoe store in Bentleigh. She has sworn that her new employer was aware of her back injury, but nevertheless she worked alone most of the time. She worked 40 hours per week and did this until suffering the Fujian injury on 30 October 2012. It would appear that she received little or no medical treatment at the Carrum Downs Medical Centre during her later period of employment with Colorado or whilst working at Fujian, prior to the occurrence of the second injury. Thereafter, because of the necessity to distinguish between the consequences of the Colorado injury and those of the Fujian injury, the situation is even more complicated. However, I accept that she was suffering from comparatively constant low back pain and stiffness throughout this period prior to the Fujian injury.
32 I am leaving to one side treating practitioners such as Mr Peter Wilde, orthopaedic surgeon, and Dr Dan Bates and others associated with the Metropolitan Pain Group, all of which practitioners treated the plaintiff after the Fujian injury and have no particularly helpful or detailed comment to make concerning the Colorado injury.
33 Following the retirement of Dr Hoole, Dr Bien, of the same clinic, treated the plaintiff. That doctor records first seeing the plaintiff in relation to lower back pains in April 2011. She was complaining of lower back and mid-thoracic back pains, as well as posterior right leg pains and intermittent numbness in the right lower leg. These pains had persisted since the Colorado injury.
34 In an undated report which may be supplementary to an earlier report of 10 May 2016, Dr Bien found it difficult to say whether the plaintiff’s current back problems were caused by the Colorado injury or the Fujian injury. Dr Bien was prepared to say that the plaintiff did have back issues prior to August 2012, which would appear to be when that doctor last saw the plaintiff, although that is not entirely clear. The report is a little hard to understand, but it would appear that the doctor is expressing the opinion that the Colorado injury was “a possible aggravating factor”. Dr Bien felt that the plaintiff’s back pains were unlikely to resolve in the foreseeable future.
35 The plaintiff has also been examined for medico-legal purposes, and again additional complexity is added by reason of the two injuries.
36 Whilst Mr Kossmann did not see the plaintiff until after the Fujian injury, he has provided opinions which embrace both injuries. His conclusion in his supplementary report of 7 August 2016 is that the Colorado injury was responsible for a permanent injury, regardless of the Fujian injury. In a further report of 15 August 2016, he expressed the view that, on the balance of probabilities, had the Fujian injury not occurred, the plaintiff would have continued in the same or similar state that she was prior to it. The intensity of her symptoms may have varied. I might add that I appreciate that the concept of the balance of probabilities and a decision based upon it is something for me, rather than for Dr Kossmann, but, nevertheless, I note his view that, in essence, the plaintiff’s symptoms arising from the Colorado injury would have been ongoing.
37 Mr Roy Carey, orthopaedic surgeon, examining on behalf of the defendant in the action against Fujian, was well aware of both injuries. Whilst he seems to have been primarily concerned with the Fujian injury, in his report of 17 December 2014 he referred to a significant pre-existing history of spinal pain – that is, spinal pain prior to the Fujian injury and specifically referring to the Colorado injury. He has recorded that the plaintiff had very occasional flare-ups with a heavier workload from time to time whilst working with Colorado after December 2010. However, he has also pointed out that, on the other hand, she may have had Panadeine Forte and heat treatments, whilst continuing to work on alternative duties until the injury of 30 October 2012. In relation to the alternative duties, he has referred to her having “flares with pain” before the Fujian injury “presumably all relating to the injury of November 2008”. Mr Carey made an assessment in relation to Whole Person Impairment pursuant to the AMA Guides relating to the Fujian injury and a considerable amount of his ultimate opinion seems to have been directed to this.
38 Mr Carey subsequently wrote two letters to Fujian’s insurer, these essentially dealing with matters relating to the AMA Guides. In his letter of 20 January 2015, he referred to a report of Associate Professor Miron Goldwasser, orthopaedic surgeon, who also paid significant attention to the AMA Guides. In essence, Mr Carey subtracted the assessment of Associate Professor Goldwasser in relation to the Colorado injury from his assessment following the Fujian injury, the end result being an impairment assessment of zero percentage. In other words, the permanent Whole Person Impairment arising from the Colorado injury and as assessed by Associate Professor Goldwasser coincided with the assessment made by Mr Carey in relation to the Fujian injury and to which he was directing his attention.
39 As is evident from the above, Associate Professor Goldwasser had discussed the Colorado injury. He saw the plaintiff on 8 January 2015 and took a history which focussed quite considerable attention upon the Colorado injury, whilst also dealing with the Fujian injury. That history refers to the plaintiff getting only temporary relief from physiotherapy following the Colorado injury and having difficulties holding her baby. In relation to her return to work in December 2010, it records that she had pain in her back and took occasional time off, but most of the time continued to work, using painkillers, to help her. She also used stick-on heat patches. In relation to her work for Fujian and before the accident there, she told Associate Professor Goldwasser that she had occasional flare-ups of pain and took occasional days off work, but mostly kept on working, taking painkillers.
40 Associate Professor Goldwasser also viewed the report of the CT scan of 31 May 2009, which apparently recorded some intrinsic disc degeneration at L4-5 and L5-S1, but no disc protrusion or significant lesion. Radiological investigation subsequent to the Fujian injury revealed a mild broad-based disc bulge at L4-5 with associated posterior central annular fissure, but no contact on proximal traversing or exiting nerve roots. The conclusion of Associate Professor Goldwasser was that the plaintiff had suffered an injury to her lower back at work with Colorado in November 2008 and that this continued to be troublesome, although she eventually returned to work, but taking painkillers and occasional periods off work when her pain was too severe. That condition became stable, but subsequently became worse after the Fujian injury. He thought that the plaintiff suffered a soft tissue injury in the Colorado injury. Having made an assessment of Whole Person Impairment pursuant to the AMA Guides, Associate Professor Goldwasser effectively apportioned responsibility equally between the Colorado injury and the Fujian injury, attributing a 5 per cent impairment to each, this coinciding with the assessments of Mr Carey.
41 Associate Professor Bruce Love saw the plaintiff on a number of occasions. Whilst it may be that he was examining at the request of the defendant in the action against Fujian, Associate Professor Love was aware of the Colorado injury. In his report of 23 January 2014, he observed that the history of injury in 2008 suggested that the underlying condition was constitutional in nature, although I find this observation a little difficult to follow.
42 In a subsequent report of 1 October 2014, Associate Professor Love, principally concentrating on the Fujian injury, again stated that the plaintiff had a past history of a back injury dating from 2008, being the Colorado injury. He expressed the opinion that the plaintiff did not have a current work capacity and, as things then were, this was likely to continue into the foreseeable future. Whilst the issue of work capacity is not central to the present application, the observations of Associate Professor Love as to permanence could theoretically be of limited relevance, although he does not distinguish between the injuries.
43 In a subsequent report of 1 April 2015, he observed that the plaintiff’s prognosis was poor and that she had a significant impairment. He attributed this to the Fujian injury, although making no reference in this report to her pre-existing condition.
44 Mr Michael Dooley, orthopaedic surgeon, saw the plaintiff on 3 May 2016 at the request of the solicitors for Colorado. He took a history of the plaintiff noting increasing low back pain and right lower limb pain following the Colorado injury. She had physiotherapy and could not continue in her work. He has recorded that she had to take Panadeine Forte for her pain whilst she was pregnant and had a caesarean section. He also took a history of physiotherapy in February 2009 and of the plaintiff suffering exacerbations of low back pain, together with difficulty holding her baby.
45 In November 2009 she had a significant episode of low back pain, requiring attendance at the Frankston Hospital. Subsequently, she took 12 months off work. She then returned to work. Mr Dooley also recorded that, following her return to work, she noted intermittent pain and stiffness of the back. She would have to take extra breaks, sometimes having a hot shower, using hot packs and the like.
46 The opinion of Mr Dooley was that, in relation to the Colorado injury, the plaintiff suffered a soft tissue injury to her lumbar spine that involved some aggravation of underlying degenerative disc disease. However, he also thought that there was some psychological reaction and could find no evidence of objective neurological deficit. He believed that the radiological investigation had shown degeneration of the low lumbar levels, but no evidence of a major disc prolapse or nerve root entrapment. He believed that she would need to modify her activities. He implicated the Colorado injury, but thought that there was a significant psychological reaction. He was of the opinion that she would continue to have some intermittent low back and low limb pain.
47 Dr Dominic Yong, specialist occupational physician, has also examined the plaintiff at the request of the solicitors for Colorado. Dr Yong took a reasonably comprehensive history of the Colorado injury and of events thereafter. This included the fact that the plaintiff had regular flare-ups and had trouble performing tasks, such as holding her baby. She took painkilling medication. After returning to work with Colorado, she had occasional flare-ups, took intermittent Panadeine Forte and Panadeine Extra, rested and used heat packs. The plaintiff also informed Dr Yong of the fact that she had persisting pain prior to the performance of the caesarean section.
48 Dr Yong’s conclusion referred to both accidents and the fact that the plaintiff had a discal injury to the low back without neural compression, although there were radicular features, together with lumbar dysfunction and deconditioning. He also thought that there was some psychological “comorbidity”. Dr Yong suggested a range of activities and treatment which could improve the prognosis. Referring to both injuries, he stated that “Both of these mechanisms of injuries would be reasonable for the onset of her condition”. He believed that both contributed to a reduction in functional capacity.
49 Dr Louise Barberis, occupational physician, provided some reports to the insurer of Fujian. These essentially involved return to work plans, and do not take matters much further, although she did record some details of the Colorado injury. She noted that the plaintiff generally improved following it, although her low back remained stiff and at times she would take occasional Panadol. She attributed difficulties which the plaintiff was having to the Fujian injury, upon which her concentration seems to have been centred.
50 I might say that some of the medical material tendered in the Defendant’s Court Book and provided in relation to the claim against Fujian received little or no attention during the conduct of this case. This is understandable, as the report from a manipulative therapist, the two reports from consultant psychiatrists and the report from a clinical psychologist do little more than record the occurrence of the Colorado injury, but otherwise take matters no further. A possible exception is the report of Associate Professor Saji Damodaran, consultant psychiatrist, who recorded that the plaintiff had persistent pain after the Colorado injury.
51 I am satisfied that the plaintiff suffered an injury to the low back in the Colorado incident and that symptoms emanating from that injury persisted until the occurrence of the Fujian injury. Both injuries seem to have been in the same area of the back, namely, at the L4-5 and L5-S1 levels. The CT scan performed on 31 March 2009 showed narrowing at L4-5 and L5-S1 with a very mild bulge at L4-5. An MRI performed in October 2013, being after the Fujian injury, showed a mild broad-based disc bulge at L4-5 with an associated posterior central annular fissure and a minor broad-based disc bulge at the L5-S1 level. The opinion of Mr Kossmann that there was a deterioration of the Colorado injury as a result of the Fujian injury seems to be logical. Thus, I accept that, in relation to the Colorado injury, the plaintiff suffered aggravation, acceleration and exacerbation of degenerative changes in the lumbar spine and that the Fujian injury caused the consequences to be more severe because of the existence of the Colorado injury. I refer again to the report of Mr Kossmann. To some extent, this is also the opinion of Mr Dooley, who has expressed the view that, in the Colorado injury, the plaintiff sustained a soft tissue injury to the lumbar spine that involved some aggravation of her underlying degenerative disc disease. He may have a different opinion in relation to the existence of a psychological reaction, but there are certainly some similarities between the diagnosis of Mr Dooley and that of Mr Kossmann. I accept the diagnosis of aggravation of degenerative changes by reason of the Colorado injury.
52 Whilst obviously the waters are muddied by the occurrence of the Fujian injury later in time, I accept the proposition that the consequences of the Colorado injury are permanent within the meaning of the Act. In his report of 7 August 2016, Mr Kossmann stated his opinion that the Colorado injury was a permanent injury, regardless of the Fujian injury. Mr Roy Carey, examining on behalf of the defendant in relation to the Fujian injury, expressed the view that the Fujian injury had aggravated pre-existing lumbar spondylosis producing chronic back pain and lower limb symptoms. He was aware of the Colorado injury and, indeed, attributed to it a Whole Person Impairment of 5 per cent. An essential ingredient of Whole Person Impairment assessments is permanence. It is quite apparent from the plaintiff’s affidavit, and that of Ms Raven-Martin, that the plaintiff continued to have symptoms and consequences for the period of almost four years after the Colorado injury and up to the date of the Fujian injury. Permanence of consequences was an issue in this somewhat complicated case and, in my opinion, on the balance of probabilities, that permanence has been established.
53 I accept that the injury sustained in the Colorado injury was at least partially in the nature of an aggravation. However, I also accept that, prior to the Colorado injury, the plaintiff had suffered from some episodes of lower back pain which had always resolved. Essentially, the consequences suffered by the plaintiff after the Colorado injury increased greatly. As shall be discussed, insofar as those consequences involve matters of a gynaecological or obstetric nature, these essentially related to problems encountered after the Colorado injury and prior to the Fujian injury, although against a background of lumbar pain associated with the birth of the plaintiff’s first child.
54 Pursuant to s134AB(38)(h), the psychological or psychiatric consequences of physical injury are to be taken into account only for the purpose of applications based upon permanent severe mental or permanent severe behavioural disturbance or disorder. Accordingly, as paragraph (c) is not relied upon in the present case, such consequences will not be taken into account.
55 I appreciate that Mr Michael Dooley expressed the opinion that he believes that the plaintiff had suffered a psychological reaction to her situation following the Colorado injury. Of course, he had the disadvantage of not seeing her until after the Fujian injury and essentially seems to have based his view upon the belief that the constancy and intensity of her ongoing pain and her described disability were greater than one would expect to see as a result of her organic condition.
56 Associate Professor Damodaran, consultant psychiatrist, examining on behalf of the defendant in relation to the Fujian injury, regarded the plaintiff, as at May 2015, as not having a current work capacity from a psychiatric point of view, whilst earlier noting that she had been able to return to casual work after the Colorado injury.
57 On the other hand, in August 2014, Dr Krapivensky, consultant psychiatrist, expressed the opinion that the plaintiff was handling her physical disorder with what could be considered as a normal range of emotional response and did not need any psychiatric treatment. She was examining almost two years after the Fujian injury.
58 Whilst the plaintiff, when giving evidence concerning the termination of the pregnancy, became quite distressed, the overall impression created by her in the witness box was not that of a person suffering from some noticeable psychological or psychiatric illness.
59 Overall, on balance I am not persuaded that the plaintiff suffers ongoing psychological or psychiatric consequences of note as a result of the Colorado injury. Any such consequences which she does suffer will not be taken into account in accordance with s134AB(38)(h) of the Act.
Other developments since the injury
60 I have already described the sequence of events between the Colorado injury and the Fujian injury. I accept the evidence of Ms Raven-Martin, the plaintiff’s manager at the Colorado store in Moorabbin, as to the difficulties which the plaintiff encountered when working there after her return to work in 2010.
61 Following being made redundant at Colorado, as earlier described, the plaintiff worked for Fujian. Following the injury sustained there in late October and early November 2012, the plaintiff worked reduced hours at Fujian and ultimately stopped working altogether because of back pain in August 2013. She has not returned to any employment.
62 To repeat relevant developments in relation to the plaintiff’s family situation, on 17 December 2008, the plaintiff’s daughter, Lilah, was born. Because of her concerns in relation to back pain, the plaintiff had a caesarean section, something which she did not want to do. She became pregnant again in July 2009. This pregnancy was terminated. I accept that this was essentially because of the level of her back pain. The actual date of the termination of the pregnancy was 16 July 2009. That this has been an ongoing source of anguish to the plaintiff is something which I accept.
Ruling
63 In this unusual and somewhat complicated case, I have reached the conclusion that the plaintiff has discharged the burden of proof. I am satisfied that, when the relevant comparison is made, the consequences of the plaintiff’s injury could be fairly described as being more than significant or marked and as being at least very considerable. I have come to that conclusion for the following reasons, which are not set out in order of importance.
(a)Unless consequences of an injury are so manifest that they virtually speak for themselves, in applications of this nature the credit of the plaintiff is usually important. As was said by Brooking JA in Palmer Tube Mills (Aust) P/L & Anor v Semi (1998) 4 VR 439 at 448:
“Moreover, in ‘serious injury’ applications the credit of the applicant is of great importance …”.
This observation has been referred to recently by the Court of Appeal in Papamanos v Commonwealth Bank of Australia [2014] VSCA 167 and, even more recently, in Haidar v TAC [2016] VSCA 182.
As earlier stated, I find the plaintiff to be a witness of credit and I have no reason to doubt the accuracy of her evidence. I accept that she had the symptoms and consequences which she has described following the Colorado injury and that these continued until the date of the Fujian injury. I accept her evidence in relation to the performance of the caesarean section and the reasons for and impact of the termination of pregnancy.
(b)The termination of the pregnancy seems to me to be an important factor. I must say that, whilst I have heard and decided many serious injury applications, this is a consequence which I have not encountered before. The termination occurred at the Hampton Park Women’s Health Care Centre on 16 July 2009. Thus, it clearly post-dated the Colorado injury and pre-dated the Fujian injury. It is also quite apparent that the plaintiff became pregnant after the Colorado injury. If I understand the documentation correctly, she was approximately seven weeks pregnant at the time of the termination of that pregnancy. In any event, there is no argument but that, as sworn to by her, both the pregnancy and the termination post-dated the Colorado injury. An appreciation of the circumstances and impact of the third and final pregnancy and the decision to terminate it is assisted by viewing the situation in the context of what had gone before. That pregnancy could be seen as “the final straw” in circumstances where there were mounting pressures and concerns relating to pregnancy, childbirth and baby management, these pressures and concerns being associated with the plaintiff’s back condition. The problems associated with the birth and management of the second child were comparatively recent when the plaintiff became pregnant again. The relevant problems associated with the second child are directly related to the Colorado injury.
The plaintiff’s first child was born in 2000. It was a natural birth. However, the plaintiff had 10 hours of labour with, as she described it, “muscle spasms across my back non-stop for almost 10 hours” – see T52. The plaintiff expanded upon this in re-examination, when she stated as follows:
“I requested a caesarean section (for the second birth) because when I had Tyson (the plaintiff’s first child) I had back labour. All my contractions were across the back, all my spasms were across the back, and I was terrified of doing further damage to my lower spine by having contractions and back pain.”
Thus, the plaintiff’s evidence was that she requested a caesarean section for the birth of her second child substantially, if not entirely, because of her memories of what had happened during the birth of her son some years earlier.
I accept that her recollection of what had occurred during the first and natural birth, combined with the back pain which she had been experiencing since the Colorado injury, played a prominent role in the plaintiff’s decision to opt for birth by way of caesarean section with her second child, even though this was contrary to her quite strong beliefs in relation to the advantages and desirability of natural childbirth. The plaintiff was 33 weeks pregnant with her second child at the time of the Colorado injury. She had experienced no back problems with her pregnancy to that point in time. Thereafter she did suffer from back pain. As she has sworn, she was reluctant to take prescription pain medicine because she was concerned about the possible effects on the unborn child. However, “The pain became so bad but that I had no choice but to take Panadeine Forte after the incident.” – see the affidavit of the plaintiff of 3 May 2016. The note from Peninsula Health of 17 December 2008, being the day that her daughter was born, indicates that the plaintiff insisted on having a caesarean section irrespective of the lie of the baby. She insisted on this due to her fear of injuring her back further by having labour and her concerns in relation to back pain.
I accept that thereafter she had very considerable back pain. There were debilitating flare-ups that would occur weekly. There were occasions when she had to call for assistance in the middle of the night for someone to come over and help, because her back had locked up and she could not sit, stand or hold the baby. As her father has sworn, she was upset because she had not gone through the natural birth process. I accept that, as commented upon by her father, she had severe back pain.
It is against this background that she discovered that she was again pregnant within six months of the birth of her second child.
I accept the plaintiff’s evidence that she decided to terminate that pregnancy, because, at the time, her back pain was very bad. She was having difficulty carrying her daughter, who was only six months old. She had suffered from debilitating flare-ups of pain following the birth of her daughter. Hence, when she became pregnant again, she opted to terminate the pregnancy.
I accept what the plaintiff has sworn in her affidavit of 3 May 2016 to the effect that she still bears the emotional scars of the termination and it is a decision that she regrets every day.
It is a matter concerning which the plaintiff became quite emotional and tearful in the witness box. I would refer to T62. The plaintiff became quite visibly tearful and distressed when discussing the termination of the pregnancy. She stated that she obtained the referral for the termination from a different clinic, as she was too ashamed to go to her own doctor. In the witness box, she became so distressed as to warrant a brief adjournment being ordered ‒ see T63. The witness again became distressed when discussing this topic during re-examination ‒ see T72. My recollection is that she was sobbing. She stated as follows:
“It goes against everything I believe in, all the values I was raised with. The fact that I had to make a choice to terminate my old [sic - should be ‘own’] child because of my back injury is something that still eats at me today. It is a decision that I never ever wanted to have to make …”.
Reference was then made to her affidavit of 3 May 2016, in which she swore that the decision to terminate the pregnancy was one that she regretted every day. When asked why this was so, the plaintiff replied as follows:
“Because that was my child. If I hadn’t have had back issues, there is no way in the world that I would have ever chosen to terminate my child”.
I appreciate that no claim is brought pursuant to paragraph (d) of the definition of serious injury ‒ that is, for loss of a foetus. I raised this issue with counsel. What was said by Mr Middleton on behalf of the plaintiff was that, in essence, what had occurred was not a loss of a foetus arising directly from an incident of injury, but that the termination of pregnancy and the effects thereof could be relied upon as a consequence of the injury. As was pointed out by Mr Stanley, it is stated in s134AB(38)(a) of the Act that “foetus” has the same meaning as in s98C(5) ‒ that is, the conceptus beyond the 16th week of development. That was not the situation in the present case, so that reliance upon paragraph (d) of the definition would not be available. However, it was agreed by Mr Stanley that the termination of the pregnancy was a factor that could be relevant in assessing the seriousness of the consequences ‒ see T81. This concession seems to me to have been very properly and fairly made. It seems to me to be correct.
Mr Stanley referred to s134AB(38)(h) of the Act, which is to the effect that psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise. Accordingly, the psychological or psychiatric consequences of the termination of pregnancy would have to be ignored.
It was also submitted by Mr Stanley that the fact that the plaintiff is now “riddled with guilt” should not be taken into account, because it did not mean or indicate that the decision to have the termination of the pregnancy was affected by the back injury, as opposed to other factors. However, in my opinion, the decision to terminate the pregnancy was directly related to the back injury. As earlier stated, at T72 the plaintiff stated that she made the choice to terminate the pregnancy “because of my back injury”, subsequently repeating “If I hadn’t have had back issues, there is no way in the world that I would have ever chosen to terminate my child”.
It may be that the document filled in by the plaintiff at the Hampton Park Women’s Health Care Centre contains no reference to a back injury, but it seems to me that the overwhelming weight of evidence is to the effect that the plaintiff was suffering from back complaints after the Colorado injury and prior to the Fujian injury.
Further, the letter of 17 November 2009 from the plaintiff to Colorado indicates that, at that time, she was still having severe problems with her back as a result of the work injury.
My overall conclusion is that the termination of the pregnancy is a consequence of the back symptoms resulting from the Colorado injury and that it and matters associated with it can be taken into account. Whilst psychological and psychiatric consequences are not to be taken into account, such matters as anguish, regrets and suffering can be. These seem to me to be consequences that are quite distinct from those of a psychological or psychiatric nature and, as discussed at T117‒8, seem to me to be matters that do not require expert evidence. If a plaintiff is a credible witness and gives evidence on oath that she has suffered ongoing distress and suffering as a result of the termination of a pregnancy, I do not see why that evidence should not be accepted. The same could be said of the proposition that the decision to terminate a pregnancy was made on the basis of back pain and disability. It was not contested but that such matters are not necessarily psychological or psychiatric consequences and that there is scope for taking them into account.
In the present case, I do so take them into account. I have already determined that the consequences of the back injury suffered by the plaintiff in the Colorado injury are permanent within the meaning of the Act. One of those consequences relates to the termination of the pregnancy. The plaintiff has sworn that it is a situation which she regrets every day, and I am of the view that, with or without the ongoing reminder of back pain, this is a situation which will persist for the foreseeable future.
I have spent a considerable amount of time on this particular consequence, because it is both unusual and important. I regard it as a consequence that played a substantial role in the discharging of the burden of proof by the plaintiff.
(c) The earlier decision by the plaintiff to have her daughter delivered by way of caesarean section is also a consequence of the Colorado injury. When viewed in isolation and not as part of the sequence of events leading to the termination of pregnancy, I do not regard this as a consequence of the same magnitude as that of the decision to terminate the subsequent pregnancy. I accept that the plaintiff would have preferred to have given birth naturally, but, because of the back injury suffered with Colorado, opted for a caesarean section. In addition to the back problems which she was then suffering, she was well aware of the difficulties which she endured in relation to the birth of her first child. I accept that proceeding by way of caesarean section caused her concern that she would not bond with her daughter and that her preference was not to have the “unnatural” surgical procedure involved.
It is something which she may continue to regret, but, without wishing to trivialise it, and viewing it in isolation away from the decision to terminate the third pregnancy, this seems to me to be a consequence of less significance than the termination of that later pregnancy and what has resulted from it. There is no evidence that, in fact, she has in some way failed to bond properly with her daughter. Whilst her perceived inability to avoid a caesarean section is a consequence which I take into account, and even if she continues to regret it to this day and into the future, it does not seem to me to be of the same magnitude as the consequences associated with the termination of pregnancy.
(d) I accept that the plaintiff has had ongoing and regular back pain since the Colorado injury and that the magnitude of this pain at times increased greatly. As stated, there were occasions when the intensity of that back pain reached a level which necessitated the plaintiff to require the attendance of a “locum” service doctor, and on at least one occasion, comparatively late at night. On another occasion, a visit to the Frankston Hospital seems to have been required. As also stated, her manager at Colorado, Ms Raven-Martin, has described the difficulties which the plaintiff experienced following her return to work with Colorado, including such things as back spasms, the use of a walking stick and the like. I would also refer to the affidavit of the plaintiff’s father, Mr Waite. I accept that, even before the Fujian injury, the plaintiff was suffering from comparatively regular lower back pain with flare-ups, some of them quite severe. This is a consequence which would have persisted regardless of the occurrence of the Fujian injury. It is one which I take into account.
Persistent, ongoing pain is a factor of importance – see Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 and subsequent cases such as Sutton v Laminex Group Pty Ltd [2011] VSCA 52. Even leaving to one side matters such as the necessity for the caesarean section and the termination of pregnancy, it seems to me that the level of pain suffered by the plaintiff, and described not only in her evidence but in the unchallenged affidavits of Ms Raven-Martin and Mr Waite, is sufficient to discharge the burden of proof.
(e) True it is that the plaintiff returned to employment and at times worked long hours, particularly when the Colorado business was in the process of winding up. The impression which I have gained from her evidence and from the affidavit of Ms Raven-Martin is that she did this under considerable difficulty and with a somewhat stoical approach. I accept that, at least at times, she did this with the assistance of medication, although she was somewhat loathe to use powerful, prescription drugs. I accept the evidence of Ms Raven-Martin that the plaintiff struggled with her return to employment. It seems to me to be comparatively clear that her work was something which she needed and in relation to which she was more than competent. However, clearly it was something with which she struggled.
(f) Given some of the circumstances which I have described above, I am not of the view that factors such as the level of treatment, the level of medication or the capacity to engage in employment arguably do not assist her claim. That is not to downplay the treatment and medication which the plaintiff did have. It is apparent that she took Panadeine Forte and painkillers such as Panadol. She had physiotherapy. She employed the use of heat patches and the like. It is apparent that the pain was of sufficient magnitude at one stage for her to make a trip to Frankston Hospital. She required visits from locum doctors at times of severe pain. Her ability to work was restricted. At times she dragged her leg and at other times required the use of a walking stick. All of these matters occurred prior to the Fujian injury.
(g) The age of the plaintiff is another matter which should be borne in mind. She is 38 years of age. There is nothing to suggest that she has anything other than a normal life expectancy. If that be so, she probably faces many decades of pain and suffering as a result of the consequences of the injuries arising from the Colorado injury.
(h) I commenced the reasons for this Ruling by referring to the impression which the plaintiff made as a witness of credit. It seems to me that, in an unusual case such as this and bearing in mind the matters involved, the normal advantage which I may have had of observing a witness and his or her demeanour has been even greater than might normally be the case. To have someone who is a mother describe in the witness box the personal consequence of requesting a termination of pregnancy, which went against that person’s firm beliefs, seems to me to be a somewhat unique situation in applications of this nature. Having observed her give her evidence and considered the written material, I am of the view that she was driven to the decision which she made by back pain and that, as previously stated, whilst it is certainly not the only consequence of the relevant injury, it is an important one.
64 In summary, I am of the view that the plaintiff has discharged the burden of proof and that the statutory test has been satisfied.
Conclusion
65 The plaintiff is successful. She has discharged the burden of proof. Leave is given to her to bring proceedings for pain and suffering damages. I shall hear the parties as to any ancillary orders that are required.
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