Stojanovic v Saljewel Pty Ltd
[2016] VCC 593
•16 May 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-04627
| BILJANA STOJANOVIC | Plaintiff |
| v | |
| SALJEWEL PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 May 2016 | |
DATE OF JUDGMENT: | 16 May 2016 | |
CASE MAY BE CITED AS: | Stojanovic v Saljewel Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 593 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – aggravation injury pre-existing asymptomatic lumbar spine – pain and suffering – whether consequences “very considerable” – “range” case
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barlow v Hollis [2000] VSCA 26; Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317; Barwon Spinners v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Stijepic v One Force Group & Anor [2009] VSCA 108; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Aburrow v Network Personnel Pty Ltd & Ors [2013] VSCA 46
Judgment:Leave granted in respect to pain and suffering
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Dunstan | Zaparas Lawyers |
| For the Defendant | Mr P Hamilton | IDP Lawyers |
HER HONOUR:
Preliminary
1 The plaintiff alleges she suffered injury to her lower back in the course of her employment as a store manager in the defendant’s jewellery store. She claims she suffered injury as a consequence of heaving and frequent lifting of trays of jewellery. The period relied upon is from 20 October 1999 until 2 February 2009 when she ceased her employment with the defendant.
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”). The application is made under sub-section (a) of the definition contained in s134AB(37) and leave is sought in respect of pain and suffering only.
3 The body function said to be lost or impaired is the functioning of the lumbar spine.
4 Mr N Dunstan appeared for the plaintiff and Mr P Hamilton appeared for the defendant.
5 The defendant accepted that she suffered a lower back injury, which was permanent. The dispute in the case was whether the consequences to the plaintiff are very considerable. Mr Hamilton submitted that the consequences for the plaintiff were modest, such that she did not satisfy the statutory test.
6 Only the plaintiff was called to give evidence and she was cross-examined. Medical reports, imaging reports and other material were tendered in evidence. I have read these documents as well as the transcript of the proceedings. I shall not refer to all of that material in the course of this Judgment, but rather those parts of the evidence and reports I consider most relevant and which I have relied upon in coming to the conclusions referred to in this Judgment.[1]
[1]See Barlow v Hollis [2000] VSCA 26 per Chernov J at [14]-[16], and the “pathway of reasoning” per Ashley J A in Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 at [38]
7 For reasons that I will explain below, I am satisfied the plaintiff suffers a lower back injury which is related to her employment with the defendant since 20 October 1999, that her impairment is permanent and that the consequences suffered by her meet the “very considerable” test.
Relevant background
8 The plaintiff is 50 years of age. She is divorced, having separated from her husband in 1998. She has been in a de facto relationship since 2000. She has no children.
9 The plaintiff was born in Macedonia, where she completed her secondary education and four years of a six year medical degree. In 1993, she ceased studying due to financial difficulties. She then worked in a family milk bar and travel business.
10 In May 1996 the plaintiff migrated to Australia. In March 1997, she commenced employment with Rochis Opals in Swanston Street. She worked there for about eight to nine months. In October 1997 she commenced employment with the defendant.
11 Prior to the accident, the plaintiff claimed she was very active. She enjoyed walking her dogs most days of the week, and riding her bicycle. She would go to the movies and to restaurants.[2]
[2]Plaintiff’s Court Book (“PCB”) 19, 22.5
Injury and its consequences
12 The plaintiff worked with the defendant from 27 October 1997 until 2 February 2009. She worked in the Northland store for two months; the Chadstone store for about two and a half years; and the Southland store for about 11 months in the role of assistant manager. In February 2001, she returned to the Chadstone store in the role of manger, before being transferred to the Swanston Street store in 2003 in the role of store manager.
13 The plaintiff’s job required her to lift trays of jewellery, including watches, in to and out of the display cabinets every morning and every night.[3] The more expensive watches then had to be put in a safe overnight. Each morning she was required to lean in to the display cabinets to place the individual watches.[4]
[3]PCB 12
[4]PCB 13
14 The plaintiff first experienced some back pain in 1998. She sought medical treatment and was diagnosed as suffering an inguinal hernia. She was referred to surgeon, Mr Bruce Waxman, who recommended surgery. However, she did not undergo this surgery until July 2005. She stated that after this surgery she continued to have intermittent back pain.
15 In August 2007, the plaintiff consulted Mr Ernest Lawrence, chiropractor, due to her occasional back pain. She consulted him three or four times a week, for a few weeks.
16 On 8 November 2007, the plaintiff attended her general practitioner, Dr Pjesivac, and complained of a six-month history of moderate to severe lower back pain, for which she had been treated by Mr Lawrence.[5] Dr Pjesivac recommended that she continue receiving chiropractic treatment.
[5]PCB 38
17 She continued to see Mr Lawrence once or twice a week until the end of the year. While the treatment seemed to improve the plaintiff’s back pain, she said it did not go away completely.[6]
[6]PCB 14
18 The plaintiff continued to work with intermittent back discomfort. In October 2008, she suffered an exacerbation of her back pain when unloading a delivery of stock.
19 On 17 October 2008, the plaintiff consulted Dr Pjesivac. He noted that she had exacerbated her lower back pain when lifting 5 to 10 kg boxes at work. He noted worsening lower back pain, which was radiating to her left leg. He prescribed Panadeine Forte, provided her with a WorkCover certificate of incapacity, and referred her for a CT scan.[7]
[7]PCB 38
20 The CT scan taken on 23 October 2008 showed a shallow broad based left paracentral L5-S1 disc protrusion, causing some minor posterior displacement of the left S1 nerve root.[8]
[8]PCB 68
21 On 2 February 2009, the plaintiff resigned her employment with the defendant. She then obtained alternate employment with another jeweller, where there was no lifting involved. The plaintiff undertook that work for a month, but then resigned as she found travelling to the city on the train to be uncomfortable for her back.
22 Soon after, the plaintiff obtained employment with a jewellery store in Hampton. She worked there from 17 March 2009, until January 2012 when the business closed.
23 In November 2009, the plaintiff attended Dr Pjesivac. He noted that she presented in moderate distress, complaining of lower back pain and left sciatica, which had worsened lately. He noted that she had changed jobs, and was performing light work with restrictions. He referred her for physiotherapy treatment with Mr George Kokovas, as well as to neurosurgeon, Mr Richard Bittar.[9]
[9]PCB 39
24 The plaintiff saw Mr Kokovas several times, but felt the physiotherapy did not really help.[10]
[10]PCB 15
25 The plaintiff was unable to consult Mr Bittar, as she did not have private health cover. Instead, she sought a referral to see an orthopaedic surgeon at the Royal Melbourne Hospital.[11] She had to wait almost two years to be seen. While there, she was referred for physiotherapy, which she had on two occasions. She felt it did not help her.[12]
[11]PCB 15
[12]PCB 15
26 The plaintiff then set up a jewellery business with a girlfriend. They leased premises in Hampton and commenced trading in April 2012.
27 In September 2012, the plaintiff commenced part-time employment at Zamels in Southland, working two to three days a week, a few hours a day. She did this to supplement her income, as the jewellery store in Hampton did not require her to be there every day.
28 After a time, the plaintiff decided to close the jewellery store, as the rent had increased and it had become too expensive to maintain. The plaintiff has kept her business name registered, and hopes to resume her jewellery business in the next year or two.
29 After closing her jewellery store, the plaintiff then commenced employment at Nick Scali furniture. She is presently the manager of the Frankston store and works full-time.
30 In March 2014, Dr Pjesivac referred the plaintiff to neurosurgeon Mr Ales Aliashkevich. However, she did not attend him at this time.
31 In December 2014, the plaintiff attended Dr Pjesivac. He noted that she complained of ongoing intermittent lower back pain and occasional shooting pain down her left leg, left sole and left toes. He noted her lower back pain worsened after repetitive bending and lifting. He noted she was taking Mobic and Panadol for her pain and was compliant with her home-based core muscle strengthening exercises. At her request she was provided with another referral to Mr Aliashkevich.
32 The plaintiff consulted Mr Aliashkevich in February 2015. He took a history of problems with her back dating back to 1999, and noted that she had been suffering from intermittent left-sided leg pain since 2005. He noted that at that time, she complained about pain originating in the left gluteal region and extending along the posterior and lateral aspect of her thigh, with intermittent pain into the medial aspect of her thigh and into her foot, associated with some painful sensation in the sole of her foot and her toes. He noted that she rated the intensity of her symptoms around 6 to 7/10.[13]
[13]PCB 63
33 Dr Aliashkevich diagnosed chronic and refractory left sided back and leg pain. He recommended that she avoid weight lifting in excess of 10kg, and that she avoid repetitive jobs in which she is required to bend and twist, or to maintain a static posture for more than one hour at a time. He considered her prognosis was guarded, and he thought it was unlikely she would make a complete functional recovery in the foreseeable future.[14]
[14]PCB 66-67
34 An MRI scan was taken on 6 February 2015, and it demonstrated only very minimal reduction of the height of L5-S1 intervertebral disc with moderate loss of hydration and no evidence of bulging or neural compression.[15]
[15]PCB 69-70
35 Mr Aliashkevich referred the plaintiff to Dr Robert Gassin, pain management specialist. The plaintiff consulted him on 7 April 2015. He recommended a left sacroiliac joint and dorsal interosseous injection of Cortisone, which she underwent on 23 April 2015.
36 Dr Gassin noted in his report that she had received approximately 40 per cent relief of her symptoms for at least two weeks.[16]
[16]PCB 61
37 The plaintiff said the Cortisone injection only gave her temporary relief, for approximately two weeks.[17]
[17]PCB 22.2; Transcript (“T”) 14, Line(s) (“L”) 17-18
38 She attended upon Dr Gassin in in September 2015, and he recommended that a further injection be given. While this was scheduled to be performed in late October 2015, the plaintiff cancelled the procedure as she did not feel that she could have the time off work before Christmas.
39 In cross-examination, the plaintiff explained that after the first injection she had returned to work the following day. However, she said it was extremely painful and her intention is to have a full week off work, when she next undergoes a Cortisone injection. She said she has spoken to her State manager about taking a week’s leave, but is yet to obtain formal approval for this.
40 According to Dr Pjesivac’s medical report dated 2 April 2016, he has not seen the plaintiff in relation to her back pain since 3 February 2015. This was the day after her serious injury application was previously adjourned. The plaintiff did not accept this and believed she had seen Dr Pjesivac about her back pain some time in the last year. Dr Pjesivac’s subpoenaed records only go to May 2015, so I cannot be certain what was recorded after this. It was not put to the plaintiff that she was making this up. I cannot reconcile or decide this either way. However nothing much turns on this, as the plaintiff conceded that overall, she had not seen Dr Pjesivac very often.[18] She explained this was because there was nothing he could do for her.[19]
[18]PCB 22.2
[19]PCB 22.2
41 The plaintiff said that at times she was prescribed Mobic by Dr Pjesivac.[20] However, she would mostly take Ketanol, which is an equivalent medication to Mobic, and was provided to her by family and friends travelling to Macedonia.
[20]T17, L26-30
42 The plaintiff said that Panadol and Panadeine upset her system. She prefers to take Nurofen. She said she normally takes three to four Nurofen per day and one to two Ketanol per day.
43 Mr Hamilton cross-examined the plaintiff in relation to this. He asked her if she had any evidence to prove the purchasing of the Nurofen. She said she had not kept her receipts and that no-one had asked her to.[21] She also said she had not kept a record of the packages of Ketanol sent to her from Macedonia.[22]
[21]T16, L30-31, T17, L1-3
[22]T17, L19-20
44 He also cross-examined her about why she did not have any medication with her in court. She said she had taken it before leaving home and did not need it bring it with her.[23]
[23]T18, L4-6
45 The plaintiff said her back is stiff each morning.[24] She has to move around carefully, and does the exercises she learnt from the physiotherapist. Bending over to put on her shoes and socks is painful.[25]
[24]PCB 22.4
[25]PCB 19.2 and 22.3
46 She said she has good days and bad days.[26] On bad days she has to walk more slowly. She generally tries to avoid lifting things, but on her good days, is able to move small items of furniture.[27]
[26]PCB 22.3
[27]PCB 22.3 and T10, L5-6
47 She said in addition to her back pain, she suffers shooting pain in her left leg. It can happen when she stops walking or when she “stomps a little bit harder on the ground.”[28] This left leg pain can happen a couple of times a day, or as many as 10 to 15 times if she is doing things.[29]
[28]T30, L15-26
[29]T30, 27 -31, T31 L1
48 In the witness box, the plaintiff said that one of her most painful positions is standing. She demonstrated a slight forward flexion of her lumbar spine and said that this position, when standing over the kitchen bench or brushing her teeth, is the most painful position for her.[30]
[30]T32, L13-19
49 She said that while her daily back pain is now less than it was before, her exacerbations are worse.
50 She has learnt to cope with this pain and is now more active than she had been when she swore her previous affidavits. She is now able to walk her dog, one to two times a week. She is also now able to go to restaurants and socialise with friends, but needs to move regularly.[31]
[31]T31, L4-12
51 She explained this improvement in her condition, in the context of walking her dog:
“As I said, having one dog now it's much easier because I don't have two dogs pulling me and me trying to hold them. Second, as I said, now I guess I got used to it as well. I simply accepted the pain. The pain is there. So what I'm trying to do is just ignore it because otherwise it's going to be in my head all the time. So now when I walk, first, taking one dog it's easier and I also, as I said, now the pain is not as before or probably I've learned how to deal with that pain, just to get on with my life.”[32]
[32]T31, L13-24
52 The plaintiff said that although her daily pain has now improved, when she suffers exacerbations, they are more intense.[33] She had two significant exacerbations of back pain in the last six months. On 29 October 2015, she attended the Dandenong Hospital and was prescribed Endone.[34] On 22 November 2015, she re-attended the Dandenong Hospital and was discharged with analgesia.[35]
[33]T30, L3-14
[34]PCB 111
[35]PCB 112
Medico-legal evidence
53 There was little dispute as to the plaintiff’s medical condition.
54 The plaintiff’s solicitors arranged for her to be examined by vascular and general surgeon, Mr Charles Flanc, in June 2010 and November 2014. In his report dated 7 June 2010, Mr Flanc took a history that the plaintiff gradually developed pain in the lower back in May/June 1999. He noted that her lower back and right groin pain worsened during 2004 and that she was subsequently referred to have hernia surgery in August 2005.
55 After reviewing the CT scan of October 2008, he diagnosed degenerative changes at L5-S1 which he considered were probably present at the time she started work with the defendant in 1998. He considered that her work with the defendant resulted in an aggravation of pre-existing disc degeneration of the lumbar spine. He commented that:
“this aggravation was relatively minor for the first years but became more severe when she was moved to the city store in about 2003. From then on the aggravation relating to her work became more symptomatic and it was at this stage that she may have developed an actual prolapse at the L5/S1 disc.”[36]
[36]PCB 80
56 The plaintiff was re-examined by Mr Flanc in November 2014. At that time, he obtained a history from her that her lower back pain was more severe than it was in 2010. He diagnosed a degenerative condition of the lumbar spine especially at the L5-S1 intervertebral discs. He considered her left leg pain was consistent with irritation of the S1 nerve root. He was of the opinion that she should avoid any work which involved heavy lifting or frequent bending. He recommended that she be reviewed by an orthopaedic surgeon.[37]
[37]PCB 88
57 The plaintiff’s solicitors arranged for her to be examined by orthopaedic surgeon, Mr Thomas Kossmann, in May 2014 and April 2016. In his report dated 30 May 2014, Mr Kossmann diagnosed discogenic lumbar back pain, which he considered related to her employment.[38]
[38]PCB 93
58 In his report dated 8 April 2016, Mr Kossmann noted the February 2015 MRI scan.[39] He considered the plaintiff’s prognosis was guarded. He felt she would most likely continue to suffer from pain, for which she will require further treatment with pain medications and anti-inflammatories. He considered she was not likely to require surgery. He did not comment on whether the plaintiff was likely to benefit from further epidural injections.
[39]PCB 99-100
59 In August 2012, the defendant arranged for the plaintiff to be examined by general surgeon, Mr John McTiegue, to assess her level of impairment to determine her entitlement to lump sum compensation. Mr McTiegue diagnosed a prolapse of the L5-S1 intervertebral disc, resulting in irritation of predominantly the first sacral nerve root on the left side.
60 The defendant solicitors arranged for the plaintiff to be examined by occupational physician, Dr Dominic Yong, in April 2016. In his report dated 26 April 2016, Dr Yong diagnosed chronic low back pain from an initial discal condition with reported radicular features. He noted there were no current features of radiculopathy, and referred to the February 2015 MRI scan.
61 Dr Yong noted the plaintiff was taking Nurofen and Mobic on a daily basis, and occasionally Endone when she suffered a flare-up of pain.
62 Dr Yong noted there were no suggestions of functional overlay and no features suggestive of exaggeration.
Permanent
63 In order to satisfy the definition of serious injury, the plaintiff must prove the injury and its consequences are both serious and permanent.
64 I am satisfied that the plaintiff’s injury and the consequences which flow from it are permanent. Since the onset of significant lower back pain in October 2008, the pain has persisted for over seven years. The only outstanding recommended treatment are epidural injections. However, given the first one gave the plaintiff only short-term pain relief, I consider it unlikely such treatment will lead to an improvement in her condition.
Aggravation
65 The plaintiff suffered some lower back pain prior to 20 October 2009. In accordance with s134AB(1) of the Act, and the principles enunciated in Barwon Spinners Pty Ltd v Podolak and Grech v Orica Australia Pty Ltd,[40] I must only have regard to injury referable to employment after 20 October 2009.
[40](2006) 14 VR 602
66 Mr Flanc diagnosed degenerative changes at L5-S1 which he considered were probably present at the time she started work with the defendant in 1998.
67 As it is an aggravation case, this involves a comparison between the plaintiff’s pre-existing condition, with the aggravated state. Pursuant to the well-known principles enunciated in Petkovski v Galletti,[41] I must consider only the consequences arising from the aggravation.
[41][1994] 1 VR 436
68 Chernov JA, in R J Gilbertson v Skorsis,[42] summarises the task before me:
“In determining whether an injury which is an aggravation of a pre-existing injury is a “serious injury”, it is necessary first to make a comparison between the applicant’s condition before the accident that gave rise to the second injury and to his or her condition after that incident and thereby ascertain the degree of additional impairment that has been brought about by the second injury. It is then necessary to make an assessment of whether the additional impairment is serious and long term.”
[42][2000] VSCA 51 at [40]
69 The plaintiff denied suffering any lower back pain prior to commencing work with the defendant and therefore her degenerative condition was asymptomatic at that time.
70 She believed the back pain that she experienced in 1998 was associated with a hernia. No doctors comment on this. She delayed having hernia surgery, but when she did have it in July 2005, she continued to have intermittent lower back pain. It was not until October 2008 that her lower back pain worsened and was then associated with left leg pain.
71 I am therefore satisfied that any lower back condition she suffered prior to 20 October 1999 was either asymptomatic or very mild. There is no evidence that she suffered any impairment at that time. Therefore, I am able to look at the totality of her current impairment in assessing the consequences of her lower back injury.
Pain and suffering consequences
72 I must now consider whether the consequences to the plaintiff meet the test of “very considerable.”
73 In Haden Engineering Pty Ltd v McKinnon,[43] Maxwell P said at paragraphs 9–12:
[43](2010) 31 VR 1
“In its accepted interpretation, the ‘pain and suffering consequence’ of an injury encompasses both the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life. (I will refer to the second element as ‘the disabling effect’ of the pain.)
As to the experience of pain as such, the court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale mild/moderate/severe. Unless the pain is constant the Court will need also to assess the frequency and duration of the pain episodes.
The evidentiary basis of the pain assessment will ordinarily compromise the following:
(a)what the plaintiff says about the pain (both in court and to doctors);
(b)what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c)what the doctors say about the extent and intensity of the plaintiffs pain; and
(d)what the objective evidence shows about the disabling effect of the pain.
As to (a) the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility. The court will make its own assessment of the plaintiff’s credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.”
74 There was no substantial challenge to the plaintiff’s credit. I found her to be credit worthy and reliable. She did not seek to overstate her restrictions and pain levels. In her most recent affidavit, she conceded there had been an improvement in her condition. She is walking her dog more than before, her sitting tolerance in the car has improved, and she is able to go out with friends to restaurants.
75 Mr Dunstan described the plaintiff as being stoic, in that she had obtained alternate work on a full-time basis, despite her ongoing back pain. I accept this as a fair description of the plaintiff.
76 In relation to her “experience of pain”, the plaintiff said, and I accept, that she suffers lower back pain on a daily basis. She also experiences shooting pain into her left leg. I accept that the plaintiff’s daily pain has recently improved, but that her exacerbations are worse than before. Although the pain has improved, it is still there every day, and varies in intensity. The pain is bad enough that she requires pain killing and anti-inflammatory medication on a daily basis.
77 The plaintiff’s acknowledgement that her daily pain has improved is evidence of her creditworthiness.
78 The doctors who have examined the plaintiff accept her as genuine, and there is no suggestion by any doctor that she is exaggerating her symptoms and complaints of pain.
79 The plaintiff’s attendance upon doctors has been scant, but when she has attended, her complaints have been consistent.
80 The plaintiff delayed in obtaining specialist medical treatment. She was slow to see Mr Aliashkevich - it took over a year for her to see him after getting her first referral. She has also been slow in arranging a further Cortisone injection.
81 I consider such delays are, in part, a reflection of her working full-time. I also accept that she is not a person who rushes to undergo specialist treatment. She waited approximately seven years before undergoing the hernia surgery. I also accept that as she received minimal relief from the last Cortisone injection, and will need to have a week off work when she has another, that a further Cortisone injection is not a priority for her. I do not consider that her delays in obtaining such medical treatment indicate a lack of veracity in her complaints of ongoing back pain.
82 I will next consider the plaintiff’s “disabling effects of pain”.
83 In considering the pain and suffering consequences, Mr Hamilton submitted that I should consider the plaintiff’s return to full-time employment as a retail sales manager an indicator that the injury is not serious. He referred me to the decision in Aburrow v Network Personnel Pty Ltd & Ors.[44] In that case, the plaintiff had suffered an injury to his right hand at work, and sought a serious injury certificate for pain and suffering only. Mr Aburrow claimed that due to his hand injury, he could not work as a meat boner and instead obtained work as a forklift driver. He described this alternate employment as easy. He occasionally took over-the-counter medication, and his hand injury worsened in the cold weather. He was unsuccessful in the County Court and his appeal to the Court of Appeal was dismissed.
[44][2013] VSCA 46
84 In Sumbul v Melbourne All Toya Wreckers Pty Ltd[45] Chernov JA said that it is ordinarily very difficult for a plaintiff to establish a serious injury where the plaintiff has returned to alternate employment. However, Mr Dunstan for the plaintiff, referred me to the later decisions of Stijepic v One Force Group & Anor[46] and Sutton v Laminex Group Pty Ltd.[47]
[45][2006] VSCA 292
[46][2009]VSCA 108
[47][2011] VSCA 52
85 In Stijepic, Ashley JA and Beach AJA stated:
“It is plain that Sumbul is no authority for the proposition that a return to alternative work is somehow determinative against a worker on the issue of pain and suffering consequences.”[48]
[48][2009] VSCA 108 at [47]
86 They took Chernov JA to be saying that a worker successfully returning to alternate duties,
“will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious.”[49]
[49][2009] VSCA 108 at [47]
87 This is not a case where there is an “absence of other relevant evidence”. I have already commented on the medication which I accept the plaintiff takes on a daily basis. In addition to that, I also accept the following consequences:
· She no longer goes bike riding, and this was an activity she previously enjoyed.
· She is restricted in her walking. She used to walk five to seven times a week. She now only walks once to twice a week.[50] When she does walk, it is at a slower pace than before. She is focused to place her right leg firmly on the ground as she feels weakness in her left leg.[51]
[50]T23, L16-17
[51]T31, L25-29
Mr Hamilton cross-examined her on the wording of her most recent affidavit which stated “I am now able to walk the dog…” She conceded that after suffering her injury, she still walked her two dogs, but less often than before her injury. She said they would pull on their leads, so she would take them to a park where they could go off their leads. One of her dogs has since died, and she now only has to walk one.
Her affidavit did not make this clear. However, I accept the current position is that walking one dog is easier, but that she is still restricted in how often she walks and in the pace of her walking.
· She is restricted in the household activities she can do. I accept she does not vacuum her entire house, and only vacuums small amounts. When she does vacuum, she does it slowly. She can put on a load of washing, but hangs the wet clothes on a drying rack inside, instead of carrying it outside, to hang on the clothes line.
· She finds it painful standing with a forward flexion, so avoids standing to wash the dishes, cut the vegetables and cook meals. Her partner does most of the cooking, although she can make a salad.[52]
[52]PCB 22.4; T32, L10-19
· She does not go to the movies anymore.[53]
[53]PCB 22.5
· She socialises with friends by going to a restaurant, but she needs to move around to be comfortable.[54]
[54]T31, 2-12
· Her sexual relationship with her partner has been interfered with. Mr Hamilton challenged this claim and submitted that I should not accept it as a genuine consequence, as she had never told her treating doctors or any of the medico-legal doctors about this. Further, it was only raised in her most recent affidavit.
In cross-examination, she said she was uncomfortable being asked questions about it and was embarrassed to discuss it. I accept the plaintiff’s explanation on this. I therefore accept that interference with her sexual life is a consequence of her injury.
88 The plaintiff claims she has gained weight as a consequence of her lack of activity. She said that before suffering the back injury, she would fluctuate between 69kg to 76kg,[55] but in 2007 it was approximately 73-75kg. She conceded that even at that time she was overweight.[56]
[55]T26, L4-11
[56]T26, L17-18
89 In her third affidavit sworn on 26 April 2016, she claimed to have gained 15 to 20kg.[57] At the commencement of the proceedings she corrected this to 10kg.[58] She now weighs 84kg.[59] I consider this a modest weight gain over an eight year period, and I consider this an insignificant consequence.
[57]PCB 22.5
[58]T9, L12-13
[59]T25, L11-14
90 For several years, the plaintiff had a limited sitting tolerance, such that in January 2015, she said that driving 25 minutes to work was painful and uncomfortable.[60] However by April 2016, she was able to drive comfortably for an hour, before needing to change position.[61] She can be a passenger for up to four hours before needing to stop.[62] I also consider this an insignificant consequence.
[60]PCB 19.2
[61]PCB 22.3
[62]T18, L26-31, T19, L1-6
Conclusions
91 When looking at this case, in comparison to other cases in the range of possible impairments, I am mindful that I must consider the broad spectrum of cases which this court sees. As was noted by Ashley JA and Beach AJA in Stijepic v One Force Group Australia Pty Ltd & Anor[63]:
“this includes cases which do not end up in litigation-because, it may be supposed, the consequences are glaringly apparent one way or the other.”[64]
[63][2009] VSCA 181
[64]Ibid at [42]
92 When considering her experience of pain, and the disabling effects of pain, when judged by comparison with other cases in the range of possible impairments or losses, I am satisfied that the consequences for the plaintiff are very considerable.
93 The plaintiff’s application for leave to commence a claim for common law damages for pain and suffering succeeds. I shall make consequent orders.
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