Speirs v Western District Health Service
[2010] VCC 202
•9 April 2010
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT WARRNAMBOOL
CIVIL DIVISION
Case No. CI-09-00351
| PHYLLIS SPEIRS | Plaintiff |
| v | |
| WESTERN DISTRICT HEALTH SERVICE | First Defendant |
| and | |
| CGU WORKERS COMPENSATION (VIC) LIMITED | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE BOWMAN |
| WHERE HELD: | Warrnambool |
| DATE OF HEARING: | 12, 15 & 16 March 2010 |
| DATE OF JUDGMENT: | 9 April 2010 |
| CASE MAY BE CITED AS: | Speirs v Western District Health Service & Anor. |
| MEDIUM NEUTRAL | [2010] VCC 0202 |
| CITATION: |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s.134AB – application for leave in respect of both pecuniary loss damages and pain and suffering damages – injury to right shoulder – age of plaintiff – retirement – the plaintiff’s ability to engage in a range of activities – whether the capacity for work exists – burden of proof – factors to be considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D. Brookes SC with | Stringer Clark |
| Mr N. Bird | ||
| For the Defendants | Mr P. Scanlon QC with | Lander & Rogers |
| Mr P. Jens | ||
| HIS HONOUR: |
Background
1 This matter comes before me by way of an application pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. There are two named defendants in this matter, but their interests coincide entirely. Hereinafter I shall simply refer to “the defendant”, meaning Western District Health Service, being the plaintiff’s employer at the relevant time.
2 The plaintiff seeks leave to bring proceedings in respect of both pecuniary loss damages and pain and suffering damages. In so doing, she relies solely upon sub-paragraph (a) of the definition of “serious injury” contained in s.134AB(37) of the Act. The injury upon which reliance is placed is one to the right shoulder. It is alleged that the plaintiff suffered the incident of injury when assaulted by a patient on 12 December 2002. The injury has resulted in surgery to the right shoulder, as shall be discussed subsequently.
3 I will not set out here the numerous authoritative decisions of the Court of Appeal which are relevant. I have referred to most of them in many previous cases.
4 Mr D. Brookes SC with Mr N. Bird of counsel appeared on behalf of the plaintiff. Mr P. Scanlon QC with Mr P. Jens of counsel appeared on behalf of the defendant. The plaintiff gave evidence and was cross-examined. The balance of the evidence, including surveillance material, was tendered by consent. This saved the Court considerable time and doubtless also saved considerable expense. In addition, detailed and very well prepared submissions were made on behalf of each party.
Factual background
5 The following findings of fact are made for the purposes of this application and are not intended to be findings which are in any way determinative in relation to issues of negligence, the quantum of damages, entitlement to statutory benefits and the like.
(i) The plaintiff 6 I found the plaintiff to be a reasonably direct witness who was prepared to give answers that did not necessarily advance her cause, although I did not find her evidence to be always convincing. Mr Kenneth Brearley, examining the plaintiff at the request of her solicitors, described her presentation as direct with no sense of exaggeration. However, having viewed the surveillance film and observed the plaintiff in the witness box, I am of the view that there may have been some embellishment or exaggeration to at least one medical examiner, if the history of complaints recorded is accurate. When seen by Mr John O’Brien, orthopaedic surgeon, at the request of her solicitors on 25 November 2009, the plaintiff reported significant aggravation of right shoulder pain with any movement of the right arm. This does not sit comfortably with what was seen on the video surveillance taken before and after Mr O’Brien’s examination. The video surveillance and its impact shall be discussed subsequently. Similarly, a discussion of the complaints made to doctors and the conclusions which they reached shall also follow.
(ii) The plaintiff’s background, training, education and activities prior to injury 7 The plaintiff is aged almost 68 years, having been born on 15 April 1942. She is a married woman with adult children, and indeed has made reference to a great-grandchild.
8 The plaintiff was educated to Year 11 level. Whilst she has engaged in some other occupations, for the overwhelming bulk of her working life she has pursued the career of a nurse. Work activities other than those involving nursing ceased in excess of 25 years ago. At one stage, the plaintiff did a refresher course in nursing. Ultimately, she became a Division 1 nurse. She was employed by the defendant which operates the Hamilton Base Hospital. It was whilst so employed, and on night duty, that the plaintiff suffered the relevant incident of injury when attacked by a disturbed patient on 12 December 2002.
9 The plaintiff’s interests prior to injury included old-time dancing, craftwork, the collection of gemstones and working on these, carpet bowls, gardening and activities with her grandchildren.
(iii) The injury of 12 December 2002 (a) The state of the plaintiff’s health prior to injury 10 There is no doubt but that the plaintiff suffered from some health problems and restrictions prior to the relevant incident of injury. As she has sworn in her affidavit of 2 September 2008, she suffered occasional back pain – particularly in the days prior to lifting machines. This is a complaint with which nurses are well familiar. In approximately February 1993, she suffered a severe back injury when attacked by a patient and, when trying to free herself, hurt her neck, shoulders and back. She was off work for approximately 16 days after which she returned to normal duties, but since that time had chiropractic treatment when required. She received such treatment from a Mr Mitton, and it would seem that his attention was primarily focused on her back and neck. The records of that chiropractor are not easy to read, and it may be that some attention was directed towards her shoulders. However, the impression which I have gained is that it was to the plaintiff’s back and neck that Mr Mitton substantially paid attention.
11 On 10 April 2002, the plaintiff commenced attending Mr Brian Bourne, chiropractor. At that time she was complaining of low backache, left elbow and arm pain with non-specific neck, shoulder and spinal myofascial tenderness and aches. Her work was apparently aggravating her condition. At that time, Mr Bourne suggested to the plaintiff that she should consider retiring from her position as a nursing home worker as her work was clearly exacerbating her symptoms and general incapacity. His report of 22 June 2003 would indicate that the plaintiff continued working and visiting him approximately fortnightly until the incident of injury, and during that period was complaining of varied spine and limb pains and of left tennis elbow for which she was undergoing cortisone injection therapy. It must be said that the plaintiff denied that she had a left tennis elbow condition, initially stating that the problem was in her wrist. Further into cross examination she stated that there had been pain in her left forearm.
12 Given that the clinical notes of the plaintiff’s general practitioner, Dr McAllan, also referred to the plaintiff suffering from left tennis elbow, and to his prescribing Panadeine Forte in relation to it (apart from any suggestion of a cortisone injection), I think it highly likely that the plaintiff did suffer from left tennis elbow in 2002, and was probably treated as described. This issue was hardly central to the application, and I am uncertain as to why the existence of left tennis elbow and treatment for it was denied by the plaintiff.
13 I accept that, prior to December 2002, the plaintiff had low back problems and had also suffered from left tennis elbow. She also had some neck symptoms, and some pain in both shoulders. I am not convinced that the shoulder pain was of great magnitude, but I do accept that the general aches and pains from which she was suffering were sufficient for her chiropractor to suggest that she should consider retiring. Further, the plaintiff agreed in cross examination that, shortly before the occurrence of the relevant injury, there was a reduction in the number of hours which she was working. This was because of the problems which she was having at work in relation to back pain and the like. I do not find that, specifically, symptoms emanating from the right shoulder played any significant role in the reduction of working hours. However, the reduction in her working capacity by reason of the general symptoms from which she was suffering is a relevant consideration. As I understand it, from approximately October 2002, the plaintiff was working on a part-time basis of 56 hours per fortnight.
(b) The injury 14 In the early hours of the morning on 12 December 2002 the plaintiff was grabbed by the shoulders by a disturbed patient and pushed back against a doorframe. Whilst she did not fall, she was held in that position by the patient who had one hand on her shoulder and one around her neck. When she yelled for help, he became distracted and released her. She was conscious of pain in her right shoulder, arm and the right side of the neck. She immediately took Panadeine Forte for this. She was due to have the next seven days off in any event, but did not recover sufficiently immediately, and in fact did not return to work until 21 March 2003.
15 On 13 December 2002, the plaintiff presented to Mr Bourne, giving the appropriate history concerning injury to her neck and right shoulder. Whilst it is not entirely clear, it would seem that the plaintiff was also seen by Dr McAllan, her general practitioner, at or about the time of the injury. It is apparent from the report of Mr Bourne that, on 2 January 2003, the plaintiff had CT scans of her neck and lumbar spine which revealed no major damage, but “long-term” damage to the lumbar discs. It is also apparent that, on 8 January 2003, the plaintiff underwent an ultrasound of her right shoulder, the referring doctor being Dr McAllan and a copy being sent to Mr Bourne. The ultrasound revealed, in essence, a tiny focus of calcification of the insertion of supraspinatus unlikely to represent supraspinatus tendonitis. No rotator cuff calcification was demonstrated.
16 Briefly moving ahead, the plaintiff was ultimately referred to Mr Andrew Byrne, orthopaedic surgeon, who, in a report of 22 April 2004, expressed the view that ultrasound examinations are notoriously inaccurate. In this instance, that proved to be the case, as shall be discussed.
17 Returning to the sequence of events, the plaintiff returned to work on the basis of restricted duties performed two hours per day, three days a week. After three or four weeks, those hours were increased to three hours per day, three days per week. The plaintiff took some holidays in August or September 2003, following which she returned to work on normal nightshift duties. Her neck and back pain had gradually improved. Her shoulder pain continued to be troublesome and became more severe. In May 2003, she had been referred to Dr Paul Talman at the neuroscience department of the Geelong Hospital. He felt that she was suffering from a regional pain syndrome. He was of the opinion that there was no evidence of any spinal cord or nerve root impingement and that an MRI scan was not warranted.
18 On 11 December 2003, Dr McAllan formed the view that it was clear that the defendant was having considerable difficulty with ongoing symptomatology. A further ultrasound was performed. This revealed a seven millimetre full thickness tear involving the supraspinatus tendon, although, because of the plaintiff’s very limited movements, the radiologist was unable to ascertain as to whether there was any significant impingement. It was following this that the plaintiff was referred to Mr Andrew Byrne on 23 February 2004, and, apart from commenting upon the inaccuracy of ultrasound examinations, he advised arthroscopic assessment. Exactly when the plaintiff ceased work is not entirely clear. The report of Mr Paul Kierce, orthopaedic surgeon, examining the plaintiff on behalf of the defendant on 4 May 2007, would indicate that the plaintiff ceased work in January 2004, and this would seem to be correct.
19 In any event, on 6 April 2004 the plaintiff underwent surgery which involved an arthroscopic assessment of her right shoulder with a subacromial decompression. A tear involving the supraspinatus, and measuring one centimetre by half a centimetre, was found. The rotator cuff was repaired by Mr Byrne.
20 When reviewed by Mr Byrne on 20 April 2004, the plaintiff’s pain had improved, she was attending physiotherapy, and she was very pleased with her progress. There is nothing before me to suggest that Mr Byrne saw the plaintiff after 20 April 2004, and no further report subsequent to that of 22 April 2004 was put before me. In that report, apart from setting out what has been described above, he expressed the view that the incident described was the direct cause of the plaintiff’s current right shoulder difficulty. He also stated that it was too early to say whether in fact the repair had been successful, although the plaintiff had responded favourably to the surgical intervention. Regardless of whether or not a more up-to-date review by the treating surgeon would have been of value, none has been put in evidence.
21 The plaintiff did not return to employment. She resigned in October 2004. In a report of 8 June 2004, Dr McAllan expressed the view that the plaintiff had been progressing since the surgery, and was finding more and more movement without pain was occurring. His long-term expectation was that her shoulder movement would essentially return to near normal, and he anticipated that “her planned years of retirement” would be relatively pain-free. He also expressed the view that it was unclear whether she would be able to work prior to her retirement, but “it would not be unreasonable to perceive that she will be able to return to light duties, certainly the work that she had in the interim between her initial injury and her final operation”.
22 In a report of 30 November 2006, Dr McAllan referred to slow progress since the surgery with periodic pain which the plaintiff managed herself. He found some significant limitation in her shoulder movements, limiting the activities that she could actually perform. He referred to increased pain which the plaintiff found when her arm was load-bearing, but also observed, “Most of the time when Mrs Speirs is in control of what she is doing, she can perform most functions”. He also pointed out that her last script for analgesia was in June 2004. His concluding remarks were as follows:
“I suspect that whilst Mrs Speirs will be able to carry out most activities of daily living her shoulder will never be the same again. If further assessment is required, I suggest another appointment with Mr Andrew Byrne who performed the operation.”
As stated, that suggestion does not seemed to have been followed.
23 The most recent report from anyone treating the plaintiff is from Mr Kane Fraser, a chiropractor. It is a very brief report referring to the fact that the plaintiff has ongoing pain and disability requiring ongoing treatment to maintain her present quality of life. There is reference to numerous restrictions due to shoulder pain, there being attached to the report a list of daily tasks which cause the plaintiff pain and which she was unable to complete. The prognosis is described as being poor in relation to a full recovery, and it is said that the plaintiff has a very limited opportunity for employment and will have a permanent disability. As stated, no report from Mr Byrne after April 2004, or from Dr McAllan after November 2006, has been put in evidence.
24 The plaintiff has been examined for medico-legal purposes. Mr Kenneth Brearley, surgeon, examined the plaintiff at the request of her solicitors on 9 July 2008 and 25 November 2009. In his earlier report, Mr Brearley took the relevant history, related her right shoulder problems to her employment and, in particular, to the relevant incident, and made the following observations:
“She has had a reasonably good result for (sic) the procedure (the surgery carried out by Mr Byrne) but she still has some residual stiffness and pain”
25 Mr Brearley also expressed the following view:
“In particular, she is quite unfit now to undertake manual labour, nor could she return to her pre-injury duties as a nurse, working in the Geriatric Ward without severe restrictions.
She has in fact retired, having reached the age of 65 years. Had this not been the case, she would presumably be still doing some heavily modified duties.”
Mr Brearley considered that the plaintiff’s condition was stabilised with no further improvement anticipated.
26 I would point out that it would appear that the plaintiff officially resigned in October 2004, at which time she would have been 62 years of age. It is true that, when seen by Mr Brearley, she had in fact retired and had reached the age of 65 years. Whether Mr Brearley was under the impression that she had worked until the age of 65 years is not clear, although in an earlier paragraph he has referred to her working until retirement in 2004. In any event, his overall conclusion seems to have been that she had a capacity for heavily modified duties. I would also point out that the history obtained by him in relation to the plaintiff’s recreational activities may also convey the wrong impression. He has stated that, “She does continue to bowl but she has to use her left arm”, which, again, is accurate, but may convey the impression that the plaintiff had been engaging in lawn bowling prior to the injury and had then been forced to switch from bowling right handed to bowling left handed. That is not the case. The plaintiff did not commence lawn bowling until after the incident of injury. She had previously played carpet bowls, but, as I understand it, has continued to bowl right handed in that game, using a bowling arm presumably, and using it with her injured right upper limb, so that she does not have to bend her back. Whilst referring to the bowling arm, it should be said that Dr McAllan provided to the plaintiff a certificate dated 22 February 2008 which reads:
“Phyllis Mary Speirs, aged 65 yrs, needs to use a bowling arm as she has a back complaint which causes her pain if she bends over and a left shoulder complaint.”
The content of this certificate shall be discussed subsequently.
27 Mr Brearley has also taken a history that the plaintiff cannot go gem fossicking, and this does not seem to be correct. She has been gem fossicking since the injury, but does not carry out some aspects of that hobby in relation to the preparation and presentation of the stones.
28 In a further report of 25 November 2009, Mr Brearley observed that the plaintiff had become lady president at the bowling club and arranged a good deal of the catering, being involved in making many rounds of sandwiches, cakes and some meals, this being described as “quite a busy job”. He made some reference to her disability and restrictions, including the inability to lift heavy objects, the carrying out of repetitive tasks, and difficulty using the arm above shoulder height. He again considered that she had reached maximum medical improvement.
29 Mr John O’Brien, orthopaedic surgeon, examined the plaintiff at the request of her solicitors on two occasions. On 25 July 2008, he reported to the plaintiff’s solicitors. This report contains the interesting observation that the plaintiff assessed that her right shoulder pain could reach a severity of 4/10, whilst stating that she has a constant lower back pain, the severity of which was 4/10. Indeed, the restrictions described by her in relation to her lower back read as being more significant than those resulting from the shoulder injury. In respect of the shoulder injury, she referred to aggravation by activities such as reaching forward, sweeping, and activities at or above shoulder level, such as hanging clothes. She did tell Mr O’Brien that she does most of the housework and shopping whilst being aware of loss of strength in the right arm. She referred to the fact that she uses her bowling arm in her left hand for outdoor bowls. By way of comparison, she referred to her back pain as being aggravated by walking, particularly up and down stairs, bending, lifting and carrying objects, such as the shopping or even a washing basket. Mr O’Brien noted that the plaintiff underwent chiropractic treatment about once every three to four weeks, and required the occasional Panadol but was not receiving any other active treatment.
30 Mr O’Brien also made the following remarks:
“The signs now certainly demonstrate persistent restriction of shoulder movement, which would indicate the ongoing presence of rotator cuff tendinitis, aggravated by shoulder movement …
A stable clinical situation is certainly present. The patient reports continuing symptoms, for which treatment now seems minimal with occasional chiropractic treatment and medication …
I would suggest that the prognosis overall is satisfactory, in that although mild symptoms may persist, it is unlikely there will be any major progression of underlying pathology.”
31 However, Mr O’Brien formed the view that the plaintiff would not be able to undertake any form of employment involving lifting, and therefore manual labour would be impossible. He thought it unlikely that she would ever return to any form of gainful employment, and also referred to a major impact on recreational, social and domestic pursuits – perhaps a conclusion that does not sit entirely with the observation that the overall prognosis was satisfactory with the persistence of mild symptoms. The two remarks may be compatible in that the plaintiff may have few symptoms of magnitude if she avoids certain activities, but it still seems to me that Mr O’Brien’s ultimate conclusion does not sit particularly well with his earlier observations.
32 When reporting again on 16 December 2009, Mr O’Brien indicated that the plaintiff was complaining of shoulder pain of increased severity whilst still experiencing very constant low back pain. She stated that she had significant aggravation of her right shoulder pain with any movement of the right arm – a complaint which, as I previously observed, seems to me something of an embellishment, particularly bearing in mind the content of the quite lengthy surveillance. Mr O’Brien again noted that the plaintiff was not receiving any active treatment and only occasionally required analgesic medication to control the shoulder pain. Despite this remark, in his conclusion it is reported that the plaintiff is now regularly using analgesic medication, particularly at night. He regarded her prognosis as not being perhaps as bright as initially suggested, and it appeared that she had well-established chronic shoulder pain which would continue. He felt that there had been some loss of function since her earlier examination, and that the plaintiff was significantly disabled, mainly by shoulder pathology producing quite marked restriction of movement with her right dominant arm. He regarded her as totally and permanently incapacitated.
33 The plaintiff was seen at the request of the defendant by Dr David Barton, consultant occupational physician, in April 2003. His view – essentially that there was a lack of any recognisable physical injury, although the plaintiff may have sustained some mild soft tissue bruising – is one which I do not accept and his whole report has been well and truly overtaken by events and proven to be inaccurate. I need not deal with it further.
34 As stated, Mr Paul Kierce, orthopaedic surgeon, reported on 4 May 2007. To him the plaintiff complained of difficulties with such things as reaching above shoulder level, vacuuming, sweeping, and washing dishes, together with pain when she turned over in bed. The only medication which she was currently taking was for diabetes and cholesterol. Mr Kierce was basically focussing on a whole person impairment, but diagnosed a soft tissue injury to the right shoulder girdle and a tear of the supraspinatus tendon. He believed that her condition had stabilised and thus was prepared to make such an impairment assessment.
35 No other material was put before me on behalf of the defendant. That which was could be described as somewhat scanty.
36 I am satisfied that the plaintiff suffered injury to her right shoulder in the incident described. As found at surgery by Mr Byrne, this injury was to the rotator cuff of the right shoulder and involved a tear of the supraspinatus tendon. Whilst the plaintiff may have had some aches and pains in the shoulders prior to the relevant incident, as earlier stated, I do not believe that these were of any great magnitude. The relevant incident caused injury and impairment. I do not regard it as being in the nature of an aggravation. The issue is whether the consequences of such injury and impairment meet the statutory tests.
37 I also am of the view that the plaintiff’s condition has stabilised and that her impairment and its consequences are permanent within the meaning of the Act in that they will persist for the foreseeable future. This seems to be the unanimous opinion of the more recent examiners, and I accept it.
Development since the injury
38 As earlier stated, following the injury the plaintiff ultimately returned to work on a restricted basis. Whilst she had been working reduced hours prior to the incident, the hours worked by her after the injury, at least initially, reduced even further. Gradually the amount of work performed by her increased, and her duties changed. Her affidavit of 2 September 2008 refers to her returning to work on normal nightshift duties following holidays in August/September 2003. Her shoulder pain got worse and she continued with the assistance of visits to her chiropractor and the taking of medication. Whilst it is not entirely clear, it would seem that she ceased work in January 2004 prior to the surgery. She did not return to work after the operation and officially resigned in October 2004. She has not worked for wages since.
39 The plaintiff has commenced lawn bowling since the incident of injury and, as stated, has become Lady President of the Grange Burn Club. She bowls with the assistance of a bowling arm, which she operates left-handed. I accept, as shown in the certificate put in evidence, that she also uses this arm because of her low back problems, as the use of it removes the necessity to bend. However, she uses her left arm to operate the device. Despite what is said in the certificate, it appears to be an obvious error that she needs the arm for left shoulder difficulties in addition to her back problem. Given the history of events and the fact that she uses it with her left hand, this seems to be a typographical error. It is interesting that, when engaging in carpet bowls, she uses the bowling arm with her right hand. During the season, the plaintiff plays bowls, including competitive bowls, usually twice a week.
40 Whilst other recreational activities may have been affected by the injury in the sense of some modification of them, the plaintiff continues to be able to engage in old-time dancing and gem fossicking. She has also had to adjust the manner in which she swims.
Ruling
(a) Pecuniary loss damages 41
I am of the view that the plaintiff has failed to discharged the burden of proof in this regard.
42
Essentially, the application of the plaintiff in this regard was presented on an “all or nothing” basis. In other words, material was not put before me in relation to earning rates and the like for the purposes of establishing whether a 40 per cent loss of earning capacity had been established pursuant to s.134AB(38)(e), (f) and (g). If it were demonstrated that the plaintiff had a capacity for suitable employment, the burden would not be discharged.
43
In my opinion, the burden has not been so discharged. Examining in July 2008, Mr Brearley reported to the plaintiff’s solicitors that, had the plaintiff not in fact retired, she would presumably be still doing some heavily modified duties. He considered her condition stabilised. In his subsequent report of 25 November 2009, he again referred to the fact that the plaintiff had reached maximum medical improvement, but on this occasion expressed the view that the plaintiff would not return to any form of work in the future and did not have the capacity to return to work as a Division 1 nurse. He does not make it entirely clear as to whether or not the statement, “She will not return to any form of work in the future”, is a reference to her intentions or to her medical condition. As it occurs in the context of a discussion of her resignation and of her doing voluntary work involving “much catering” at the bowling club, I think it more likely that Mr Brearley was speaking of the plaintiff’s intentions and the reality of the situation. I do not take it as some modification of his earlier expressed view that, had she not retired, the plaintiff would still be doing some heavily modified duties.
44
Apart from the making of sandwiches and the like at the bowling club, the plaintiff also visits a school canteen once a month where she prepares meals. This is also voluntary work, and is to her credit. However, the fact remains that she is able to do such things as the making of many rounds of sandwiches, cakes and some meals at the bowling club, which she described to Mr Brearley as “quite a busy job”, and can perform similar duties on a more occasional basis at the school canteen.
45
In his report of 25 July 2008, Mr O’Brien, having referred to the persistence of mild symptoms, considered that the plaintiff would not be able to return to undertake any form of employment involving lifting, and certainly not to her pre-injury occupation. He thought it unlikely that she would ever return to any form of gainful employment. In his later report of 16 December 2009, he regarded her as being totally and permanently incapacitated. He had no history of the bowling club activities, or, for that matter, the canteen activities. Indeed, he took a history of significant aggravation of right shoulder pain with any movement of the right arm. In the circumstances, I do not accept his opinion as to the level of the plaintiff’s incapacity.
46
In any event, the plaintiff agreed in cross-examination that she was qualified to take blood, but would need retraining in that regard. She agreed that it was extraordinarily light work. She also agreed that she had done no retraining and had done nothing whatsoever since leaving work in 2004 in relation to the obtaining of any alternative employment. She had not asked at the defendant’s hospital or enquired of any pathology services. Because of such things as her back complaints, she had been reduced to part-time work prior to the relevant injury. I am satisfied that the level of impairment of her shoulder would not have prevented her from carrying out some part-time duties on an ongoing basis since the injury. Indeed, she did this for a period prior to the surgery, and as recently as 25 November 2009, told Mr Brearley that she considered that the surgery had produced a reasonably good result in the sense of improvement in the pain level when she was at rest. The surveillance of her also revealed a person who may have restrictions, but uses her right hand and arm in a variety of ways, including, on one occasion, carrying a sizeable and awkward looking screen from a garage auction and using only her right hand.
47
As has been stated, no up to date assessments of her capacity for employment are available from her treating specialist or treating general practitioner. The last report from Dr McAllan, already in excess of three years old, refers to the plaintiff being able to carry out most activities of daily living, although her shoulder will never be the same again. The report before that, of 8 June 2004, expressed the view that it would be reasonable to consider that the plaintiff would be able to return to light duties, and certainly to the work that she had performed in the interim between her initial injury and the operation. All that we know of Mr Byrne’s opinion is that the early indication was that the plaintiff had responded favourably to the surgical intervention, and, by way of second-hand evidence, the observation of Mr Kierce that the plaintiff had told him that Mr Byrne said that she should not return to nursing work. The more recent report from the treating chiropractor, Mr Fraser, simply refers to the plaintiff having a very limited opportunity for employment and a permanent disability.
48
When all of the above is borne in mind, my conclusion is that the plaintiff has failed to discharge the burden of proof in relation to pecuniary loss damages. That is so, even without taking into account such factors as her age and the quite significant back injury which had already affected her work capacity. The material put before me simply does not persuade me that the plaintiff has no capacity for gainful employment. Once that is so, there is an absence of any material in relation to earnings and the like. Basically the inevitable conclusion is that the statutory requirements have not been satisfied and the burden not discharged.
49
Further, the plaintiff makes no secret of the fact that she has made no attempt at retraining, rehabilitation or the obtaining of suitable employment. Bearing these matters in mind, and also remembering that no earning details have been put before me, it would also appear that the plaintiff may face some difficulties in relation to s.134AB(38)(g).
50
Whilst it is probably unnecessary to make any further determination, I might say that, in my opinion, the plaintiff would also fail the “very considerable” test in relation to pecuniary loss damages. When one takes into account factors such as her age, the fact that she was already a part-time worker prior to the incident of injury and retains a capacity for part-time duties, and the other matters referred to above, it seems to me that the burden has not been discharged.
(b) Pain and suffering damages 51
I am also of the view that the plaintiff has failed to discharge the burden of proof in this regard.
52
As was pointed out in submissions, and as has been emphasised in previous decisions including those of superior courts, the term “serious” means that, after the appropriate comparison has been made, it is not sufficient if the pain and suffering consequence is significant or marked. It must be more than significant or marked, and be at least very considerable. Having considered all the material, it seems to me to be reasonable to say that the pain and suffering consequence to the present plaintiff may well be significant or marked. However, it must be more than this. Almost inevitably, there are going to be cases where a worker has clearly suffered an injury resulting in impairment and with a pain and suffering consequence which causes some inconvenience, some pain and some restrictions – which consequence could be described as significant or marked – but which fails to satisfy the statutory requirement of being more than significant or marked and as being at least very considerable. The present case is one of them.
53
I accept that the plaintiff suffered the incident of injury which has resulted in surgery. Whilst there has been no up-to-date review by Mr Byrne, I accept that the plaintiff can no longer perform all of the duties required of a Division 1 nurse. I accept that there has been some interference with her lifestyle. I accept that she has some ongoing pain and discomfort. However, when the comparison is made with the pain and suffering consequence seen in other cases in the range of possible impairments or losses of a body function, the injury suffered by the plaintiff falls short of meeting the statutory requirements.
54
I have come to this conclusion, and to the conclusion that the plaintiff has failed to discharge the burden of proof, for the following reasons which are not listed in order of importance.
(a)
There is simply no up-to-date material from the qualified medical practitioners who have treated the plaintiff. If one goes to the only material that is available from such treaters, the support for the proposition that the plaintiff has a pain and suffering consequence that is at least very considerable scarcely exists. The report of Dr McAllan of 30 November 2006 has been referred to above. Essentially he has stated that the plaintiff will be able to carry out most activities of daily living although her shoulder will never be the same again. He has stated that most of the time when she is in control of what she is doing, she can perform most functions. As at that date, he also pointed out that her last script for analgesia was in June 2004. Despite his recommendation that a review be carried out by Mr Byrne, either this was not done or the outcome of it was not put before the court. Mr Byrne’s only report is now almost six years old, was written at a stage when it was too early to say whether the repair had been successful, but at a time when the plaintiff had responded favourably to surgical intervention. Thus, from the viewpoint of treating medical practitioners, the most current material available would suggest that the plaintiff, with some limitations and modifications, can perform most functions and can carry out most activities of her daily living. It would further suggest that there have been lengthy periods when the plaintiff did not require prescribed analgesics.
(b)
It seems likely that the plaintiff would have been seen by either Dr McAllan or some other general practitioner from time to time since November 2006. In his report of 4 May 2007, Mr Kierce has referred to the fact that the plaintiff was on medication for diabetes and the lowering of her cholesterol. In her affidavit of 18 February 2010, the plaintiff has sworn that she attends her doctor for prescription medicine every six months. She also refers to the occasional taking of Panadeine Forte, and I have heard sufficient evidence concerning it over the years to be able to take judicial knowledge of the fact that it is a prescription medication. In any event, the plaintiff has sworn that she attends her doctor every six months. However, no up-to-date report has been made available. Thus, there is nothing to assist me in relation to assessing the current state of the plaintiff’s impairment and its consequences from the point of view of treating medical practitioners. This is so despite the fact that it seems apparent that she has continued to see a doctor. Therefore, I am left with the opinions referred to above, as outdated as they may be. As far as her general practitioner is concerned, the impression which is left is that the plaintiff is able to carry out most activities of daily living and does not require prescription analgesics for lengthy periods.
(c)
Whilst she suffers from some pain and has some restrictions, the plaintiff is able to engage in some of the hobbies and pastimes in which she used to engage prior to injury, and has acquired one new pastime which seems to play a significant role in her life. True it is that she has had to modify some of these activities. However, she is still active on what could be described as the old time dance circuit, effectively dancing whenever possible but with some modification to certain movements. She played carpet bowls before the injury and continues to do this, and, as I understand it, using a mechanical bowling arm in her right hand. Incidentally, the fact that she uses the device in her right hand when so doing may be seen as underlining the role which her back complaint plays in relation to the necessity for using the mechanical arm. With the carpet bowl, which is presumably lighter, she can bowl with her right arm but nevertheless uses the mechanical arm. It is also to be remembered that the certificate of Dr McAllan of 22 February 2008 seems to place greater emphasis upon the plaintiff’s back complaint than upon any shoulder complaint. It may just be the way that it is worded, but it would not be difficult to form that impression.
She has continued to go fossicking for gemstones after the injury, although there is now a problem in relation to this since her husband has commenced some duties as a school bus driver. However, she admitted frankly that she had been fossicking for gemstones in Queensland on trips with her husband, and that the fact that she had not been doing this more recently related more to lack of opportunity than incapacity. There are some modifications as to the work which she can do on the stones. In her affidavit of 18 February 2010, she has sworn that she can still do craftwork, whilst limited in that regard. She also attempts leadlighting, although she gets some assistance from her husband in relation to larger pieces. She has had to alter the way in which she swims. The plaintiff has, since the injury, commenced participating in lawn bowls and has risen to the position of being lady president of the club of which she is a member. As earlier discussed, she needs the assistance of a bowling arm, this being because of her back problems, and also to avoid placing any painful strain on her right shoulder. However, as seen on the surveillance and as is apparent from her evidence and the histories she has given, she is able to participate fully in this activity. During the season, she usually bowls twice a week. In addition, she is able to do such things as the preparation of meals and the like for social occasions. She also performs duties at the school canteen once a month.
Since the injury, she has also travelled quite extensively within Australia and with her husband, this being in part related to gemstone fossicking. There are also frustrations in relation to her cooking, but she can cook. For example, she can put a roast into the oven but has to get assistance from her husband to lift it out. Doubtless, there are restrictions and modifications of these activities which the plaintiff finds frustrating and inconvenient. However, and as has been emphasised by the Court of Appeal, when making the required comparison, one should bear in mind not only what has been lost but what has been retained. The plaintiff seems to me to have retained the ability to participate in a busy and active social and recreational life.
(d) Whilst I am by no means suggesting that older people cannot satisfy the statutory requirements, or that it is difficult for them so to do, the age of the plaintiff is nevertheless a factor. I would refer to the following extract from the decision of the Court of Appeal in Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181: “The circumstances of this case, in our opinion, put it on the borderline. The appellant is a young man with low back pathology which has at least been aggravated by the compensable injury. He faces, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life. When judging the pain and suffering consequences for the appellant by comparison with other cases, we consider that it is relevant to look at the likely period for which those consequences will be experienced. All things being equal, impairment consequences which a man (or woman) will have to put up with for 40 years might well be judged more serious than the same consequences which a man (or woman) may have to put with for a much shorter period of time. [13]”
Footnote [13] states as follows:
“When we put this proposition to counsel for the
respondents, he readily and properly agreed with it.”
That the plaintiff has had and continues to have some pain and restrictions, that she has to be more careful in doing everyday things and might suffer some loss of enjoyment of the simple things in life, such as some aspects of interacting with her grandchildren, may well be true. However, she suffered this injury when she was in excess of 60½ years old, and underwent surgery when she was almost 62 years old. She is currently close to 68 years of age. In accordance with what was said in Stijepic, and logically, her age is a factor when the required comparison with other cases is made.
(e)
The surveillance video of the plaintiff may not have been totally destructive of her credit nor shown her exerting herself in a way that put particular or repeated strain on her right upper limb and shoulder. However, it does reveal her using her right arm in what is apparently a relatively normal way when engaging in every day activities. In March 2009, she is depicted doing such things as carrying the quite sizeable screen referred to earlier from a garage sale to her van using her right hand and arm; at times opening the van door, and, on one occasion after shopping, elevating the hatch at the back with her right hand and arm; attending another garage sale and lifting objects with her right hand; elevating her right arm above her head whilst examining items of clothing in a shop; and pushing a supermarket trolley with both arms extended in front of her. Surveillance film taken in February 2010, and which was quite lengthy, essentially focussed upon the plaintiff arriving at her bowling club and engaging in a game of bowls. Earlier video taken in November 2009 showed the plaintiff arriving at her club obviously in anticipation of playing bowls. These videos depict her doing some lifting with her right hand and arm, but playing bowls with the assistance of the bowling arm carried in the left hand. The plaintiff does make some movements with her right hand and arm, including the brushing away of flies, but, more particularly, extending her right arm upwards when apparently signalling to someone else on the bowling green, apparently waving to or acknowledging a friend with the right arm, and using that hand and arm when unpacking her bowling bag. Certainly the use of the right hand and arm was not dramatic. However, with the exception of the use of the bowling arm on the left side, nor was there anything that depicted great pain or restriction when performing everyday tasks, and the carrying of the screen by using the right hand and arm appeared to demonstrate that the right limb could be used in a meaningful way when dealing with a somewhat cumbersome object. Another aspect of the video was that it demonstrated the plaintiff generally going about everyday tasks in addition to engaging in activities which presumably were enjoyable, such as the attending at the garage sales and participating in what appeared to be a competition bowls match that extended over a couple of hours. None of this aligns particularly well with the history given to Mr O’Brien on 25 November 2009 of significant aggravation of right shoulder pain with any movement of the right arm.
(f)
That the plaintiff suffers from some restrictions and pain on some activities is something which I accept. However, whatever sympathy may be felt for the plaintiff in this regard, that is not the end of the matter. I would refer to the observations of Ross AJA in Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12 in which His Honour readily accepted that the injured worker’s life was not what it was pre-injury, that the worker had to adapt and could not perform some tasks as well as he could prior to the injury, and suffered pain. Nevertheless, after the required comparison with other cases in the range of possible impairments was made, the Court of Appeal was not persuaded that the consequences could fairly be described as being more than significant or marked. His Honour also referred to the remarks of Ashley JA in Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260 as follows:
“ … in assessing whether the impairment consequences of injury are serious, one should consider not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”
Similarly, in Stijepic the Court of Appeal did not doubt but that the evidence to which it had been referred disclosed pain and suffering consequences which were both marked and significant, but it was not persuaded that the consequences could be fairly described as being more than significant or marked, or as being at least very considerable. Obviously, each case is different and the required comparison is with the range of possible cases. To isolate individual cases where the plaintiff has either won or lost, and measure them against the facts of the case under consideration, is an exercise of very limited value, and the Court of Appeal has pointed out that this is not the course that is required to be adopted. Nevertheless, the observations referred to above underline the proposition that a person may be suffering restrictions and pain, but, after making the appropriate comparison and including a consideration of what has been retained, the statutory requirements may not be satisfied. The present case falls into that category. Whilst the plaintiff may have difficulties in relation to certain aspects of dressing, perming her hair, hygiene and the like, after the making of the appropriate comparison the statutory tests are not met.
(g)
The loss of one’s chosen occupation or vocation is a factor that can and should be taken into account when assessing pain and suffering. The injury and resultant surgery either put an end to, or impose considerable restrictions upon, the plaintiff’s ability to work as a Division 1 nurse, although she did return to such duties for a period. However, in this regard there are other matters to be taken into account. The plaintiff was already working reduced hours, at least in part because of her back condition. It is to be borne in mind that, in July 2008, she told Mr O’Brien that she was aware of constant low back pain of the same severity as the maximum pain felt in her shoulder. She also told Mr O’Brien that such back pain was aggravated by walking, bending, lifting and carrying. One could readily imagine that her days working on unrestricted duties as a Division 1 nurse were numbered. In addition, there is the question of her age. It may be that she would have worked on beyond the age of 65 years as a Division 1 nurse, and I accept that there is one person still working with the defendant in that capacity who is a month younger than the plaintiff. I also accept that the number of Division 1 nurses who are over the age of 65 years and employed by the defendant is very small. They are employed on a part-time basis of no more than 19 hours per week. I accept that the defendant currently employs no nursing staff over the age of 70 years. In addition, I accept that the plaintiff was initially, and perhaps briefly, happy to retire, although subsequently she seems to have regretted this. She missed being able to engage in the nursing activities which she had performed for so many years. Nevertheless, on balance, I am not satisfied that, in the particular circumstances of this case, the plaintiff’s inability to work as a Division 1 nurse is sufficient to tilt the scales in her favour after the required comparison has been made.
55 In summary, when judged by comparison with other cases in the range of possible impairments or losses of her body function, I am not satisfied that the pain and suffering consequence of the injury in question could be fairly described as being more than significant or marked and as being at least very considerable.
Conclusion
56 The plaintiff has failed to discharge the burden of proof in regard to either pecuniary loss damages or pain and suffering damages. Her application is dismissed. I shall hear the parties as to any ancillary orders that are required.
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