Stiegler v J.M.B. (Vic) Pty Ltd (in liquidation)
[2015] VCC 1355
•1 October 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-05222
| DARRYLE STIEGLER | Plaintiff |
| v | |
| J.M.B. (VIC) PTY LTD (IN LIQUIDATION) | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 and 31 July 2015 | |
DATE OF JUDGMENT: | 1 October 2015 | |
CASE MAY BE CITED AS: | Stiegler v J.M.B. (Vic) Pty Ltd (in liquidation) | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1355 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – paragraph (a) of the definition of “serious injury” – pain and suffering only – whether injury to left forearm is organic in nature - whether injury to left forearm resulted in serious injury consequences – relevant principles
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Meadows v Lichmore Pty Ltd [2013] VSCA 201; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd (t/a Arnold Webbing Australia) v Filipowicz (2012) 34 VR 309; Zivolicv Hella Australia Pty Ltd [2007] VSCA 142; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Garnham | Hounslow Lawyers |
| For the Defendant | Ms B Myers | Hall & Wilcox |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with J.M.B. (Vic) Pty Ltd (“the employer”) on 20 December 2007.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The application is brought pursuant to clause (a) of the definition of “serious injury” as that term is defined in s134AB(37) of the Act.
4 The impairment of body function relied upon is function of the left wrist and left arm[1], in other words, the left forearm.
[1]T2-3
5 The plaintiff relied upon two affidavits, gave viva voce evidence and was cross-examined.
6 In addition, both parties relied upon medical reports and other materials which were contained within Court Books tendered in evidence.[2] I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered materials.
[2]The plaintiff’s Court Book was marked as Ex P1; the defendant’s Court Book was marked as Ex D1
Relevant legal principles
7 The Court must not give leave unless it is satisfied, on the balance of probabilities, that the “injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[3]
[3]Section 134AB(19)(a) of the Act
8 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act which reads:
“‘Serious injury’ means –
(a) permanent serious impairment or loss of a body function … .”
9 To establish serious injury, the plaintiff must prove, on the balance of probabilities, that:
(a) “the injury” suffered by her arose out of or due to the nature of her employment with the employer on or after 24 October 1999;[4]
[4]Section 134AB(1) of the Act; see also Barwon Spinners Pty Ltd & OrsvPodolak (2005) 14 VR 622
(b) “the injury” and resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[5]
[5]Barwon Spinners Pty Ltd & OrsvPodolak (ibid) at [33]
(c) the “consequences” of the impairment in relation to “pain and suffering” must be “serious” – that is, the impairment or loss of body function “when judged by comparison with other cases in the range of possible impairments … may be fairly described as being more than significant or marked, and as being at least very considerable”.[6]
[6]Section 134AB(38)(b) and (c) of the Act
10The requirement to satisfy these elements is sometimes referred to as the “narrative test”.
11In determining the “consequences” of the injury, the Court is required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.
12In determining the application, the Court:
(a) must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[7]
[7]Section 134AB(38)(h) of the Act
(b) must assess whether “the injury” is a “serious injury” as at the time the application is heard;[8]
[8]Section 134AB(38)(j) of the Act
(c) must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application;[9]
[9] See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1 at [23]-[26]
13The question of whether an injury satisfies the narrative test is largely a question of impression or value judgment.[10]
[10]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at [67]
The plaintiff’s background
14The plaintiff was born in the United States of America on 3 April 1951 and is currently 64 years of age. She completed the equivalent of Year 12 at school and then partially completed primary school training. She moved to Australia in 1972,[11] aged 19 years.[12] She is married and has three adult children, a daughter and two sons.[13] She has seven grandchildren who live in England and America.[14]
[11]Ex P1, pge 12, paragraphs 3-4
[12]T10 (9-10)
[13]T10 (25-31)
[14]T29 (27-31)
15In Australia the plaintiff has worked variously as a kitchen hand, in customer service, as a youth worker, a factory worker and as a waitress. From approximately 1984 to 1995 she worked as an office manager at Nauru House in Melbourne, and this included collecting rents and carrying out some reception duties. She also worked as a supervisor at Flexidrive, a factory that made parts for car windscreen wipers, in Gisborne. Her work as a supervisor included being “hands-on” at the factory. [15]
[15]Ex P1, pge 12, paragraph 5; Ex D2; T14-15
16From approximately 1998 to 2002 the plaintiff worked as a youth worker for Hayslee in Ballarat. She was assaulted during this period of employment, which led to her suffering a significant period of depression, resulting in time off work and a significant amount of counselling.[16] She eventually recovered from the depression and went off the medication and ceased having counselling.[17]
[16]Ex P1, pge 12, paragraph 6; T16 (17-18)
[17]Ex P1, pge 12, paragraph 7
17She worked as a nanny for one year over the period 2003 to 2004.[18] Thereafter the plaintiff was unemployed before commencing to work with the employer, an employment agency, in December 2007. On her first day of work with the employer (being 20 December 2007) the plaintiff was directed to work at a poultry farm in Bendigo operated by Provac Pty Ltd (“Provac”).[19]
[18]Ex D2; T18 and 21
[19]Ex P1, pge 13, paragraph 8
18Prior to 20 December 2007, the plaintiff had suffered from no physical injuries that bear upon consequences with respect to the injuries to her left forearm.
The incident
19In her affidavit sworn 11 March 2014, the plaintiff described the accident (“the incident”) and its immediate aftermath in the following terms:
“9. I was injured on my first day of work with Provac on 20 December 2007. The injury occurred when I was in a chicken pen and I was turning to pass chooks to the person injecting them, when I slipped on the muddy floor. When I slipped I fell and my left wrist struck a metal feeder which was lying on the bottom of the pen...
10. After the accident I was taken to the Bendigo Base Hospital where an x-ray revealed a fracture to the left distal radius. My left arm was placed in a half cast for approximately 2 weeks and then it was placed in a more substantial cast for approximately another 8 weeks…..”[20]
[20]Ex P1, pge 13, paragraphs 10-11
20In his report dated 9 February 2015,[21] Dr Ireland notes that two weeks following the incident, the plaintiff was admitted to Bendigo Base Hospital for manipulation of the left wrist under anaesthesia and application of a cast.
[21]Ex p1, pge 48
The plaintiff’s evidence
21The plaintiff swore two affidavits, the first on 11 March 2014 and the second on 23 June 2015. In summary, her evidence as to the pain and suffering consequences which she experiences is as follows:
Experience of pain, medication and treatment
(a) following the accident and her initial treatment at hospital, the plaintiff began a period of physiotherapy, from which she did not derive benefit.[22] She tried returning to work at Provac, but was unsuccessful, as she found she could not carry out even minor office duties or assist with the collection of vaccinated chickens;[23]
[22]Ex P1, pge 13, paragraph 10
[23]Ex P1, pge 13, paragraph 11
(b) her left wrist pain continued and she was referred to Mr Travis Perera, orthopaedic surgeon. He subsequently referred the plaintiff to Mr Stephen Pham, hand surgeon.[24] On 30 July 2009 and 15 February 2010, Mr Pham carried out two separate surgical procedures on the plaintiff’s left wrist. In the second operation, she had a metal plate and screws inserted into her left forearm. She had hand therapy after both procedures;[25]
[24]Ex P1, pge 14, paragraph 12
[25]Ex P1, pge 14, paragraph 12
(c) she often has an ache in her wrist and this ache moves up the forearm and into the region of where the plate and screws are inserted.[26] As the day progresses the ache becomes worse and develops more into a pain;[27]
[26]Ex P1, pge 15, paragraph 16; Ex P1, pge 19, paragraph 4
[27]Ex P1, pge 15, paragraph 16; Ex P1, pge 19, paragraph 4
(d) she continues to get swelling in her lower left forearm and wrist.[28] She has less grip strength in her left hand;[29]
[28]Ex P1, pge 15, paragraph 16; Ex P1, pge 19, paragraph 4
[29]Ex P1, pge 15, paragraph 16
(e) because of her left wrist problems she has difficulty lifting heavier items with her left hand.[30] Her left wrist is not as flexible and bending it causes more pain;[31]
[30]Ex P1, pge 15, paragraph 17
[31]Ex P1, pge 15, paragraph 17
(f) she takes two to three Panadeine or Panadol per day.[32] She also needs to take the same medication at night.[33] She takes Panadeine Forte two to three times per week when her symptoms become unbearable.[34] She wears a thermo support on her left wrist during the day and applies a heat pack at night to help alleviate the pain and aching.[35]
[32]Ex P1, pge 16, paragraph 18
[33]Ex P1, pge 16, paragraph 18
[34]Ex P1, pge 16, paragraph 18; Ex P1, pge 20, paragraph 6
[35]Ex P1, pge 19, paragraph 4
(g) Under cross-examination the plaintiff agreed that prior to July 2014, her GP did not prescribe any analgesia for her left wrist.[36] She said however that she complained “all the time” to her GP about the pain in her left wrist: “We just didn’t go any further with it”.[37] Later in cross examination, when pressed again on this matter, the plaintiff gave the following evidence:
[36]T31 (18-19)
[37]T32 (13-19)
“Well…we always talked about my wrist and I always talked to her about the pain, even though there were other things that I went for I did talk to her – I always talked about it.” [38]
[38]T33-34
(h) under cross-examination she also said that the Panadeine Forte that she took was prescribed by her dentist, who has removed numerous teeth from the plaintiff and her husband: they share that medication;[39]
[39]T32 (1-12)
Sleep interruption
(i) she frequently wakes at night with left wrist pain.[40] She said that she takes a sleeping tablet every three days to help her get to sleep.[41] Under cross-examination she agreed that she has been taking Temazepam intermittently since at least October 2007; [42]
[40]Ex P1, pge 15, paragraph 16 and 17
[41]Ex P1, pge 20, paragraph 5
[42]T34 (4-23)
Qualifications for work and attempts to retrain
(j) wanting to remain employed, in 2009 and 2010, she completed Certificates III and IV in aged care, at a Continuing Education facility in Bendigo. She had difficulty completing the course as it involved an active placement, which she could not manage easily. She finally managed to obtain a placement in a low care facility, which involved very little use of her left arm;[43]
[43]Ex P1, pge 14, paragraph 13
(k) realising that she could not work in aged care because of the problems with her left wrist and forearm, in 2011 she completed a Certificate II in retail, again at the Continuing Education facility in Bendigo. After completion of this course she looked for numerous jobs in retail, but was unsuccessful with this endeavour;[44]
[44]Ex P1, pge 14, paragraph 14
(l) under re-examination, the plaintiff confirmed she has a computer at home and that she had done some typing work long before the incident.[45] She does type on the keyboard, but “very little.”[46] She said that her left hand “irritates me after a while, so I… type with one hand.” [47] She clarified that the irritation occurs when her left hand “starts aching” after probably about 15 minutes;[48]
[45]T37 (9-12)
[46]T37 (13-17)
[47]T37 (15-17)
[48]T37 (19-22)
Return to the workforce
(m) at the end of 2011, she was able to find work at Care Beyond Measure (“CBM”). Initially, she struggled with general care work because of the left wrist and forearm problems, however, she eventually settled successfully into a position as a disability carer, with a low care client.[49] She worked two to three nights per week (about 20 hours per week) in this job.[50] She would start at 8pm at night and end at 9am in the morning. Her job was to prompt the client to go to bed at 10pm and give the client her night time medication, then to wake the client at 8.30am, giving her morning medication at that time.[51] Under cross examination the plaintiff said that at CBM she did two to three shifts per week and the shifts were 13 hours each.[52] She also confirmed that she never took any time off because of her left wrist when she worked for CBM;[53]
[49]Ex P1, pge 15, paragraph 15
[50]T9
[51]T9-10
[52]T28 (8-10)
[53]T36-37
(n) unfortunately CBM shut down, and the plaintiff has been unable to find any alternative job, because of the work restrictions to which she is subject. Her employment options have become significantly diminished as a result of the incident.[54]
[54]Ex P1, pge 20, paragraphs 2 and 8
(o) under cross-examination the plaintiff said that she does not recall working 76 hours per fortnight at the job with CBM, but that it was “possible”. She said that for the first six months she worked with a whole variety of clients. That work required her to use her left hand and she didn’t like it, so they found her a low care job.[55] She started with the low care client about 6 months into that job;[56]
[55]T28 (27-31)
[56]T27 (20-29)
Activities of daily living
(p) many activities are affected by the left wrist injury, for example washing her hair is difficult and cooking is difficult because she cannot hold the utensils well or lift heavier pots and pans.[57] Dressing is difficult and she is assisted with this by her partner.[58] Due to the difficulties she experiences, her partner carries out most of the housework and cooking.[59] Under cross-examination she said that she does not do any housework at all, her husband does everything: “I’m very lucky”.[60] She said she could try to do some housework, but it would just aggravate her wrist.[61] She said that she is right hand dominant and agreed that she could do household chores with her right hand;[62]
[57]Ex P1, pge 15, paragraph 17
[58]Ex P1, pge 15, paragraph 17
[59]Ex P1, pge 16, paragraph 19
[60]T34 (24-28)
[61]T35 (1-4)
[62]T35 (6-12)
(q) prior to the incident the plaintiff and her partner were very active in renovating their home. The plaintiff also used to assist her partner in various gardening jobs that he did for other people. She used to enjoy this work and it was something that they did together. She cannot contemplate carrying out physical activities such as this anymore.[63] Under cross-examination the plaintiff agreed that she lives on a very large property and has done for the past fifteen years. She confirmed that in the past her husband was away a lot, although she said that he retired 10 years ago;[64]
[63]Ex P1, pge 16, paragraph 20
[64]T29 (20-24)
(r) she used to enjoy knitting and crocheting and cannot do this anymore.[65] Under cross-examination she said that her crocheting and knitting were not just something she did when her grandchildren were little, she did it for her husband, for scarves and other things: “I always did something, I enjoyed doing it;”[66]
[65]Ex P1, pge 16, paragraph 21
[66]T36 (18-28)
(s) she does not drive long distances as she has to rely a lot more on her right hand when driving.[67] Under cross-examination the plaintiff confirmed that she continues to visit her grandchildren overseas every three years, as she had always done.[68] She also agreed that she socialises, but said that it this was “not very often”.[69] She sometimes goes to the movies and restaurants,[70] she travels to see her husband’s children in Geelong.[71] She used to be a keen bushwalker, but said that she doesn’t do it very often as she is afraid of falling over: “the bush is pretty rugged.”[72] She said that she can read hardback but not softback books, because you need both hands to hold a softback, and it irritates her wrist after a while;[73]
[67]Ex P1, pge 16, paragraph 21
[68]T30 (3-12) - T31 (4-17)
[69]T35 (13-15)
[70]T35 (16-17)
[71]T35 (20-24)
[72]T35 (25-31) – T36 (1)
[73]T36 (2-10)
The issues
The plaintiff’s credit
22No serious attack was made on the plaintiff’s credit during the hearing. However, on a number of occasions, Counsel for the defendant put matters to the plaintiff during cross-examination, which called into question the accuracy of the matters contained within her curriculum vitae. Counsel also questioned the veracity of her assertion that she had experienced constant pain in her left forearm since the accident, by reference to the lack of any record of this within the GP’s notes until July 2014.
23In relation to the detail of her work history, it was clear that the plaintiff had an imperfect recall as to the chronology of some of the jobs. However, it was similarly clear that the detail of those jobs and the tasks she performed while employed in those positions were accurately recounted to the Court. Thus, in the end, nothing turned on this point.
24In relation to the absence of notes in the GP’s records about complaints of pain between April 2011 and July 2014, as set out in detail above, the plaintiff was adamant that she had complained to her GP about pain, as well as attending for other matters.
25The GP’s reports set out details of complaints of pain made by the plaintiff and span a period between 8 August 2008 and 9 July 2015. I invited counsel for the defendant to require the GP to attend for cross examination if it was proposed to take the matter further. This course was not pursued. Instead, the defendant submitted that the medical records “speak for themselves”.[74]
[74]T39
26In circumstances where the plaintiff’s evidence is clear and consistent, in the absence of contrary sworn evidence from the plaintiff’s GP, I am not persuaded that I should reject the plaintiff’s evidence as to the frequency and severity of her pain. This is especially so when one looks at the content of the GP’s recent medical report dated 3 February 2015, which expressly sets out the extent of the plaintiff’s pain in very similar terms to that deposed to by the plaintiff in both her affidavits and in her viva voce evidence. Further, that medical report states that the plaintiff’s condition has “remained unchanged for the last seven years.”[75]
[75]Ex P1, pge 37
27Having had the benefit of observing the plaintiff while she was giving evidence to the Court, I formed the view that she was a co-operative witness, who appeared to be doing her best to give accurate responses to the questions asked of her. During cross-examination, she gave her evidence openly and without embellishment, even though on occasion, her answers were contrary to her interests. For example when asked about her ability to travel overseas on a plane, she agreed that she was able to do so, and had done this on more than one occasion since the incident.[76] When asked about whether she could do any housework at all, she admitted that she could do some with her right hand, and that she was “lucky” because her husband does everything at home for her.[77]
[76]T30 (8-12)
[77]T34 (26)-T35(10)
28Furthermore, I find that the plaintiff's account of events has remained consistent throughout the period during which she has seen her treating medical practitioners, consulted with the medico-legal assessors and provided evidence to this Court.
29After a consideration of all the evidence and in particular, the evidence of the plaintiff, I consider that she was a credible witness, in the sense of being a truthful person. At no time did I gain the impression that she was attempting to mislead the Court, or exaggerate her symptoms.
Stoic plaintiff
30I also formed the view that the plaintiff is somewhat stoic in relation to her condition. For instance, she has diligently retrained and has continued trying to work, even though she is sometimes unable to avoid activities which cause her pain.
Compensable injury
31The details and occurrence of the incident are not in dispute.
32The defendant submitted that there is a “significant non-organic element” to the plaintiff’s presentation. Thus, there is an issue as to whether the pain and suffering consequences alleged by the plaintiff have a substantial organic basis. In addressing this matter, it is well established that it is for the plaintiff to “disentangle” any physical consequences of her injury from the psychological consequences (if any).[78]
[78]Meadows v Lichmore [2013] VSCA 201
33A further issue in relation is whether any consequences of the injury satisfied the narrative test[79] – in this sense, Counsel described the matter as a “range case”.[80]
[79]AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd (t/a Arnold Webbing Australia) v Filipowicz (2012) 34 VR 309
[80]T2 (1), T8 (23); Defendant’s submissions, pge 13
Substantial organic basis
34Each of the plaintiff’s treaters gave opinions that the injury to the plaintiff’s left forearm was organic in origin:
(a) on 20 May 2009, Mr Stephen Tham, hand surgeon, reported that the plaintiff’s symptoms “are due to distal radial ulnar joint instability associated with TFC (triangular fibro-cartilage tear) and ulnar abutment syndrome”;[81]
[81]Ex P1, 26
(b) on 12 August 2009, Mr Tham reported following the first surgical procedure “clear evidence of left carpal abutment, with tear of the triangular fibro-cartilage, but also of the luno-triquetral interosseous ligaments…because of the marked ulnal carpal abutment she may require an ulna shortening osteotomy…”;[82]
[82]Ex P1, pge 27
(c) on 3 February 2015, Dr Margaret Payne, general practitioner, reported that “Darryle’s fractured left arm has healed and her torn triangular fibrocartiledge has been surgically repaired. She still has some instability of the distal radioulnar joint and pain with excessive movements of the wrist. This is directly due to the injury she sustained on 20 September 2007;”[83]
[83]Ex P1, pge 37; a very similar report was provided by Dr Payne on 9 July 2015
35The plaintiff’s medico-legal expert, Mr Damian Ireland, hand surgeon, noted that the plaintiff suffers from pain in the left wrist “following a mildly malunited fracture of the distal radius and following surgical treatment for ulnar carpal abutment syndrome.”[84] While he noted that there is a discrepancy between the severity of the subjective symptoms of which the worker complains and the presence of corresponding objective physical findings, he was clear that “the current demise of the left wrist is due to the injury sustained on 20 December 2007.”[85]
[84] Ex P1, pge 50
[85]Ex P1, pge 50
36The defendant’s medico-legal expert, Mr James Rowe, Occupational Physician, was engaged in 2011 to provide a vocational assessment.[86] His report does not address the origin of the plaintiff’s pain, and even when asked whether “employment [is] an ongoing materially contributing factor to the worker’s current condition”, failed directly to answer that question and instead opined in relation to the plaintiff’s present capacity: “I am not sure that her presentation today is a true indication of her capacity”, but did note “however, there is no other information supplied.” I take this to mean that Mr Rowe did not feel he was in a position to provide the opinion he was asked for. While he noted that at that stage, the plaintiff did have “a normal range of movement of the wrist and hand”, he also noted that “her grip strength is reduced and her employment would still be deemed to be an ongoing materially contributing factor.”
[86]Ex D1, pge 20
37 On the basis of the opinions set out above, I find that the consequences of the plaintiff’s injury to her left forearm, have a substantial organic basis.
Is the compensable injury permanent for the purposes of the Act?
38Having considered the relevant evidence from Mr Tham[87] and Dr Payne,[88] I find that the plaintiff is likely to continue to suffer from symptoms in her left forearm for the foreseeable future.[89] Thus, I find that the injuries sustained by the plaintiff in the incident are permanent for the purpose of the Act.
[87]Ex P1, pge 35
[88]Ex P1, pge 39
[89]Neither Mr Ireland nor Mr Rowe provided an opinion as to the permanence of the plaintiff’s present condition
Is there a need to disentangle consequences suffered by the plaintiff which are psychological in nature, from the physical consequences of her injuries?
39As set out above, Counsel for the defendant submitted that in this case, there was a need to disentangle the plaintiff’s physical consequences from the psychological consequences suffered by her.
40The plaintiff bears the burden of proof in any disentangling exercise which needs to be undertaken.
41Disentangling is not necessary in all cases where an injury contains both physical and psychiatric components. In some cases, the medical evidence may be enough to prove that the physical component of the injury is a serious injury, without the judge undertaking the task of “stripping away” the psychological or psychiatric components from the overall impairment.[90]
[90]Zivolic v Hella Australia Pty Ltd [2007] VSCA 142 at [19]-[20] per Redlich JA
42In determining whether there is a need to disentangle the symptoms suffered by the plaintiff, I must undertake a two-step process:[91]
[91]Meadows v Lichmore Pty Ltd [2013] VSCA 201 at [21]-[22]
(a) first, I must determine whether there is a substantial organic basis for the injury. If there is, then subject to the degree of impairment, I may find that there is a serious injury without needing to undertake the disentangling exercise;
(b) if I am not, or cannot be satisfied that there is a substantial organic basis for the injury, then I must proceed to disentangle the physical and psychological components of the pain and suffering consequences to determine whether the pain and suffering consequences of the physical injury satisfy the narrative.
43I have accepted that there is a substantial organic basis for the physical consequences of the injury to the plaintiff’s left forearm.
44Applying the principles set out above, no further disentangling needs to be undertaken. The only matter left to decide is whether the physical consequences of that injury produce a sufficient degree of impairment to satisfy the narrative test.
Pain and suffering consequences of the incident
Medical evidence – treating doctors
45Following the incident, the plaintiff continued to see her treating general practitioner, Dr Payne. Dr Payne recently described the plaintiff’s left forearm symptoms in the following manner:
“The pain and burning sensation affects all activities because she will develop increased pain whenever she undertakes activities where she has to twist her wrist or carry any weight in the left hand. With shopping she is not able to carry more than 5kg on the left side. She avoids vacuuming, mopping, bed-making, cutting vegetables with the left hand, knitting crochet, holding books for more than a few minutes because all of these activities cause her increased pain. This pain will occur at the time of undertaking the activity and will persist and keep her awake at night.
With regards to employment she is not able to do anything that requires manual dexterity particularly twisting of the wrist. She does some work in disability care which is of a supervisory nature only. This is mostly night work so that she does not have to do physical tasks for her clients.
Current treatment is to wear a supportive splint, take analgesia as needed and use heat packs and rest to manage pain. She requires some form of analgesia every day, either Paracetamol, Panadeine or Panadeine Forte depending on the severity at the time.
Darryle’s condition has stabilised and remained unchanged for the last seven years. I do not think that it is likely to change in the future. There is no available treatment which would improve the situation.”[92]
[92]See report dated 3 February 2015, Ex P1, pge 37
46Mr Tham’s most recent opinion dated 20 October 2010 provides the following opinion in relation to the plaintiff’s injuries:
“…She developed pain over the dorsum and ulnar aspect of her left wrist which persisted despite use of a splint [and] physiotherapy….ongoing pain…was precipitated by twisting type activities, lifting but also day to day activities at home. There was no rest pain. Her symptoms appeared to be activity related…Darryle should refrain from work which requires repetitive pronation and supination or twisting motion of the forearm or lifting of weights greater than 5 kg. This may exacerbate her symptoms related to tear of the TFC and a degree of instability of the distal radio ulnar joint.”[93]
[93]See report dated 20 October 2010, Ex P1, pge 34-35;
The medico-legal evidence
47In his report dated 9 February 2015, Mr Ireland recorded that the plaintiff:
“complains of pain on the dorsal aspect of her left wrist and over the subcutaneous border of the distal ulna. She claims this pain is constant and aggravated by use. It is eased by heat and Panadeine Forte and Panadol. She complains of weakness of grip strength. She denies any sensory loss or loss of motion. She complains of diminished function with the left hand. The symptoms prevent her from making her bed, mopping or vacuuming. She has limited ability to cook as she can’t lift full pots or pans and can’t cut vegetables. She is no longer able to knit or crochet and is only able to do gardening with the right hand.” [94]
[94] Ex P1, pge 49
48Mr Rowe provided two reports in respect of the plaintiff’s work capacity. In his opinion:
“She is limited in what she can do at home, she cannot really sue the arm and hand with any strength…with a grip strength of 10kg she could handle up to 5kg, but she cannot use her arm in a forceful or repetitive way…the pre-injury employment details are not within her capacity, but alternative work is within her capacity…if she is restricted in the use of a computer, it really makes it very difficult to place this lady in work.”[95]
[95]Ex P1, pge 22-23
Conclusions as to pain and suffering
Pain
49I accept the plaintiff’s evidence that she often has an ache in her left wrist which moves up her forearm and into the region of where the plate and screws are inserted. I find that the ache becomes worse as the day progresses and develops into pain.
50I find that the plaintiff gets swelling in her lower left forearm and wrist. I find that her left wrist is not as flexible as it was and that bending it causes her pain.
Effect on sleep
51I accept the plaintiff’s evidence that she frequently wakes at night with left wrist pain. I find that she takes a sleeping tablet about every three days to help her get to sleep, although I accept that an examination of the medical records reveals that she had been prescribed Temazepam intermittently prior to the incident.
Effect on social life and activities of daily living
52I accept that with regards to her activities of daily living, the plaintiff can no longer carry out the physical activities that she used to perform prior to the incident, such as gardening jobs and home renovation tasks.
53I find that because of her left forearm problems, the plaintiff has less grip strength and has difficulty lifting heavier items with her left hand. I find that day-to-day tasks such as washing her hair, cooking and dressing are now difficult for the plaintiff. I find that while the plaintiff would be capable of doing some household chores with her right hand, her ability to assist with housework has been significantly impeded.
54I find that the plaintiff can no longer knit or crochet, an activity which she used to enjoy. I find that she no longer drives long distances since she must rely a lot more on her right hand when driving. I find that she has difficulty reading any book which she has to use both hands to hold, as this activity irritates her left wrist after a time.
55I accept the plaintiff’s evidence that she still socialises, although not very often, and sometimes goes to movies and restaurants. I find that she is able to travel overseas to see her children and grandchildren, and that she has done this regularly since the incident. I find that her left forearm pain does not impact any of these activities.
Work restrictions
56I find that the plaintiff’s employment options have been significantly diminished as a result of the incident.
57I accept the evidence from the plaintiff’s treaters that the plaintiff will develop increased pain whenever she undertakes work where she has to twist her left wrist or carry any weight in her left hand.
58I find that the plaintiff is unable to do any work that requires manual dexterity, particularly twisting of the left wrist. I accept that the plaintiff is restricted to lifting weights which are 5kg or less. I find that these are new restrictions which have come about by reason of the injuries suffered by the plaintiff during the incident.
59In the plaintiff’s most recent position as a disability carer for a low care client, she would start at 8pm at night and end at 9am in the morning. However, I find that the reason she could cope with this work was because it did not require her to use her left forearm.
60I accept that the plaintiff can type on a computer keyboard, but only for approximately 15 minutes until her left hand starts to ache.
61Since the plaintiff’s most recent employer, Care Beyond Measure, closed down, I accept the plaintiff’s evidence that she has not been able to find an alternative job because of the work restrictions to which she is subject. This is despite her commendable efforts to retrain by completing numerous Continuing Education courses and her persistence in the search for alternative employment.
Medication and treatment
62I accept the plaintiff’s evidence that she now needs to take medication every day. I find that she takes two to three Panadeine or Panadol per day and also takes the same medication at night. I accept that the plaintiff takes Panadeine Forte two to three times per week when her symptoms become unbearable.
63I accept that the plaintiff wears a thermo support on her left wrist during the day and applies a heat pack at night to help alleviate the pain and aching.
64I accept that the plaintiff’s condition has stabilised and there is no available treatment to improve the situation.
Do the consequences satisfy the narrative test?
65In Haden Engineering Pty Ltd v McKinnon,[96] the Court of Appeal made observations about the task of evaluating the pain and suffering consequences of an injury. In particular, Maxwell P observed that the consequences of pain and suffering encompass both the plaintiff’s experience of pain, as well as the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.[97] Part of the process is for the Court to assess the intensity of pain which the plaintiff experiences, together with the frequency and duration of pain episodes. Ultimately, the question of whether an injury satisfies the narrative test is one of impression or value judgment.
[96](2010) 31 VR 1
[97]ibid at [9]
66The weight to be attached to the plaintiff’s account of the pain experience will depend upon an assessment of the plaintiff’s credibility.[98] In Haden, Maxwell P also observed that the cases recognise that some plaintiffs may be more “stoical” than others. His Honour said that the stoical plaintiff is not to be viewed as any less serious, merely because he/she manages to remain more active than might be expected given the level of pain.[99]
[98]ibid at [12]
[99]ibid at [13]
67I have already made observations about the plaintiff's demeanour and presentation in Court, and in particular, her willingness to make concessions which were against her interests. I have found that the plaintiff was a truthful witness. I have also concluded that the plaintiff is somewhat stoic in her approach to managing the consequences of her injuries.
68An analysis of the evidence clearly demonstrates that many aspects of the plaintiff’s life have been adversely affected by the consequences of the injuries that she suffered during the incident. The plaintiff endures permanent, daily pain, requiring frequent medication, which of itself, has been held to raise a real prospect of a “very considerable” consequence.[100] Further, this pain has caused significant restriction in her ability to work and has impacted on her ability to perform the usual activities of daily living.
[100]Kelso v Tatiara Meat Co Pty Ltd (supra) at [199] per Dodds-Streeton JA
69The fact that the plaintiff was able to return to part-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account, when assessing all of the evidence.[101]
[101]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 at [47]
70Taking into account all of the evidence, I am satisfied that the consequences of the plaintiff’s injury to her left forearm are “serious”, and satisfy the narrative test.
Conclusion
71Accordingly, pursuant to s134AB(16)(b) of the Act, I grant leave to the plaintiff to bring common law proceedings in respect of injury to her left forearm, suffered on or about 20 December 2007.
72I will hear the parties on the issue of costs.
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