Suric v Victorian WorkCover Authority
[2014] VCC 2232
•16 December 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CI-13-02770
| VERA SURIC | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 November 2014 | |
DATE OF JUDGMENT: | 16 December 2014 | |
CASE MAY BE CITED AS: | Suric v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2232 | |
REASONS FOR JUDGMENT
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Subject: Serious Injury-impairment of function of lower back -credit of plaintiff- chronic pain syndrome-whether organic basis for pain and suffering
Catchwords:
Legislation Cited: Accident Compensation Act 1985 - S134 AB
Cases Cited: Elefteria Papamanos v Commonwealth Bank of Australia [2014] VSCA 167; Palmer Tube Mills Pty Ltd v Semi [1998] VSC 245; Peak Engineering v McKenzie [2014] VSCA 67.
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | M J Ruddle | Verduci Lawyers |
| For the Defendant | B Mckenzie | IDP Lawyers |
HER HONOUR:
Introduction
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) Accident Compensation Act 1985 (Vic) (“the Act”) for injury suffered by the plaintiff in the course of her employment with the defendant on 12 October 2011.
2 The plaintiff’s application is pursuant to Clause (a) of the definition of serious injury s134AB(37) of the Act. The permanent serious impairment or loss of body function relied on is with respect to her back. The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff suffered from a pre-existing degenerative low back condition. The main issues in this case are:
· Whether the aggravation caused by accident is ongoing or replaced by a chronic pain syndrome and age related degenerative changes;
· The plaintiff’s credit, and
· Whether or not the consequences of any injury suffered by the plaintiff to her back on 12 October 2011, amount to a serious injury.
4 The plaintiff was called to give evidence and relied on two affidavits; the first affidavit dated 5 February 2013 and the second affidavit dated 13 June 2014. She also relied on an affidavit sworn by her daughter, Daniela Vuletic, on 18 September 2014.
5 None of the doctors whose medical reports were relied on were called to give evidence. The parties relied on the medical material in their respective Court Books. Surveillance DVD footage of the plaintiff was tendered by the defendant.
Background
6 The plaintiff’s background details were set out in her first affidavit. She is sixty years old and was born in Croatia in the former Republic of Yugoslavia on 9 September 1952. She left school aged eighteen after completing Year 12 and then worked as a domestic worker-room attendant at a hotel for about two years. She was married in 1972.
7 In 1973 she migrated to Australia together with her husband and commenced work at the Children’s Cottage, Kew, as a domestic worker. She worked at Kew Cottages for about eleven years and then transferred to the Psychiatric Centre at Gordon Street, Footscray, again working as a food and domestic worker. She worked there for about fifteen years, until she was retrenched due to a reorganisation.
8 After her retrenchment, she worked part time on and off for various companies as a domestic worker. Then in or about 2008 she commenced work with Tourwood Property Services Pty Ltd, a cleaning company contracted to Gunaso Pty Ltd in Port Melbourne.
The Injury
9 On 12 October 2011, the plaintiff was working at a building in Salmon Street, Port Melbourne when she sustained an injury after falling heavily onto a concrete floor after tripping on uneven and raised concrete. The area was a bit dark and she had not noticed the fault on the floor.
10 The plaintiff injured her back, right knee, right arm and left arm. As a result of her pain, it was a while before she was able to slowly get up. She then advised her husband (he was on the premises) of the accident and he drove her home. She did not seek immediate medical treatment because she thought the pain would go away.
Treatment
11 The following day the pain continued and the plaintiff attended her general practitioner, Dr Sulava on 13 October 2011. Dr Sulava referred her for a CT scan of her spine and a request for an MRI scan was forwarded to the insurer. The plaintiff was also given “a cocktail of analgesics, anti-inflammatories and muscular relaxants”.[1]
[1] Dr Sulava’s Report, Plaintiff’s Court Book (“PCB”) 26.
CT Scan 13 October 2011
12 The CT scan of 13 October 2011 showed:
· Moderate central canal stenosis at L3-4 related to severe bilateral facet joint osteoarthritis;
· Less severe central canal stenosis at L4-5 with further facet joint degenerative changes;
· Right L4‑5 foraminal narrowing, and
· No definite focal disc protrusion.[2]
[2] PCB 25.
13 As the plaintiff’s pain continued and was becoming worse Dr Sulava referred her for a further CT scan, which took place on 24 October 2011. This scan suggested that there was a possible disc protrusion with symptoms of right-sided radiculopathy.
CT scan 24 October 2011
14 The conclusion was moderate central canal stenosis at L3-4 due to degenerative disc bulging and severe hypertrophic facet joint osteoarthritis.[3]
[3] PCB 24.
MRI scan 4 November 2011
15 An MRI scan performed on 4 November 2011 concluded that there was multilevel degenerative disc disease and a disc bulge at T11-12. There was a mild central canal stenosis at L3-4 secondary to a combination of spondylolisthesis disc bulge and facet joint hydropathy. There was an L5-S1 disc bulge which contacted the traversing S1 nerve root in the left lateral recess without evidence of significant displacement of the nerve root.[4]
[4] PCB 21-22.
MRI Scan 21 November 2011
16 A further MRI scan performed on 21 November 2011 revealed a disc bulge at T12-L1.[5]
[5] PCB .
17 By December 2011, the pain in the plaintiff’s back and right knee was getting worse. She had trouble walking or standing for long periods of time and she had trouble sitting for too long . She had difficulties in remaining on her feet for too long and pain in her right hip. She continued with her medication and was referred for an x‑ray of her right knee and hip.
X-Ray 6 February 2012
18 An X-ray report dated 6 February 2012, showed that there was a mild decrease in the medial knee joint space suggestive of degenerative cartilage thinning. There were mild osteoarthritic changes seen along the super lateral part of the bilateral hip joints, right hip and knee arthritis.[6]
[6] PCB 23.
19 Dr Sulava referred her to Mr Roy Carey who examined her and referred her to the Mercy Hospital for further x‑rays of the lumbar spine and CT scan.
20 The plaintiff has remained off work since the date of the injury due to the pain in her back and right knee and limitation of movement. She continues to receive treatment from Dr Sulava.
Medical Opinion
Plaintiff’s Medical Reports
Mr Carey
21 The plaintiff’s treating orthopaedic surgeon Roy Cary provided her solicitors with three reports dated 16 April 2012, 13 November 2012 and 15 May 2014. In his report of 16 April 2012, his diagnosis was aggravation of pre-existing lumbar spondylitis producing back and leg pain but without radiculopathy. On that occasion the plaintiff told him that before the fall she had never had any symptoms, treatment or taken time of work because of her back.[7]
[7] PCB 32.
22 On 13 November 2012, Mr Carey reported that the plaintiff gave him a history of prior low back discomfort 25 years prior to her fall on 12 October 2011.She told him that it had returned to normal shortly afterwards and that she hadn’t had any low back pain or right leg symptoms “for many many years.”[8]
[8] PCB 36.
23 In his opinion, the plaintiff now presented primarily as someone with a Chronic Pain Disorder. Her current condition was a result of her work related injury with the subsequent development the chronic pain disorder.[9]
[9] PCB 42.
24 As the defendant relies on the examination section of this report as being supportive of their case that the plaintiff now suffers from a chronic pain syndrome I will set out Mr Carey’s observations of the plaintiff:
·Walking into the office with an antalgic limp on the right holding the low back with her left hand;
·Moving gingerly around the office and sitting in the described position in the office chair constantly fidgeting;
·When undressed there was no obvious lower limb muscle wasting.
·Having a negative trendelenberg test on the left with the right being a little difficult to assess because of an idiosyncratic jerky sort of collapsing motion.
·Having markedly positive head compression, pelvic rotation, percussion and skin pinch tests
·Having no evidence of nerve root irritation or conduction deficit with full straight leg raise and to 90 degrees in the sitting position with no pain.
·Having a right hemibody paraesthesia syndrome with altered sensation (less sharp) to pin prick all the way from the tip of the toes to the right side of her scalp[10].
[10] PCB 40.
25 In his final report of 15 May 2014, Mr Carey reported that:
26 “My opinion is that Mrs Suric remains symptomatically the same as previously described, but on physical examination has significantly improved in the sense that the chronic pain syndrome previously described is much less florid.”[11]
[11] PCB 54.
27 With respect to the plaintiff’s medication Mr Carey reported that for the last 4 to 5 months she had been on OxyContin 40mg. She felt it produced little relief and did not take it constantly because of gastrointestinal upset. She classed her pain before the Oxycontin as over 8/10. Mr Carey commented that
28 “Now, after much thinking, she thinks the pain is probably 7 or 8/10. In other words OxyContin has made little difference, although she does claim subjectively to have improved a little bit.”[12]
[12] PCB 52.
29 The plaintiff’s prognosis was:
“For continued discomfort and disability into the foreseeable future, although there had been significant objective improvement in the last eighteen months or so since last seen and this may (hopefully) continue”.[13]
[13] PCB 55.
Dr Sutcliffe
30 In his report of 11 December 2012, Dr Sutcliffe believed that the plaintiff had sustained aggravation of degenerative change in the lumbosacral spine and inner thoracic lumbar spine as a result of the fall in the course of her employment on 12 October 2011.
31 With respect to her past medical history, the plaintiff told him that she “previously had always been healthy”. However, she also informed him that she had “a long history of some intermittent soreness in the back over a period of about 25 years”.[14]
[14] PCB 59.
32 Dr Sutcliffe was of the opinion that the plaintiff had no capacity for her pre-injury employment. She had sustained significant adverse impact on her capacity for the activities of daily living in general activity, domestic, social and leisure tasks. He believed this would continue into the foreseeable future.
33 On examination he found that she had sustained “a very substantial loss of capacity for movement of the lumbosacral spine, complaints of pain on any activity ,and signs consistent with some degree of nerve root involvement on the right probably L5.”[15] Her prognosis was poor and the symptoms of pain and sensory change would continue into the foreseeable future as would the incapacity.[16]
[15] PCB 9.
[16] PCB 11.
Mr Khan
34 Mr Khan provided the plaintiff’s solicitors with two reports dated 18 February 2013 and 21 August 2014. In his first report Mr Khan diagnosed the plaintiff as having:
“Aggravated and flared up pre-existing asymptomatic advanced disc degeneration at L3-4 and to a lesser extent, L4-5 level and this is associated with disc disruption at L3-4 level of the spine without radiculopathy but referred pain down the back of the right leg due to nerve root irritability. She has flared up facet joint arthropathy which was pre-existent and it had been aggravated and with the combination of these events, she had developed mild symptoms of spinal canal stenosis.”[17]
[17] PCB 77.
35 He described her impairment as follows:
“The condition of her lumbar injury, including flare up of disc degeneration at L4-5 level has now substantially stabilised. She has been left with residual partial permanent impairment of function. She is unable to perform activities requiring excessive bending, twisting, turning of her spine, sitting on low seats, working with her back bent in confined spaces or lifting weights more than 5 kilograms. At times she cannot walk very far and cannot cope with repetitive strenuous activities on account of her spinal condition as described above.”[18]
[18] PCB 85.
36 In his report of 21 August 2014 the diagnosis remained the same. However, Mr Khan said that since his previous report:
“Mrs Suric has developed a well-entrenched chronic pain syndrome and her condition has further deteriorated due to the progression of pre-existing changes of lumbar spondylitis, excessive facet joint arthropathy in the lower part of her lumbar spine and pre-existing early degenerative change in her right hip and knee. Her injuries have considerably aggravated the pre-existing condition affecting her lumbar spine, knee and hip as diagnosed above and I consider that it has also resulted in some disruption of her lumbar discs in particular at L3-4 level, but without radiculopathy. She is totally disabled for work.”[19]
[19] PCB 85.
Mr Morgan
37 In his report of 16 January 2013 Mr Morgan was of the opinion that on 12 October 2011, the plaintiff aggravated multilevel degenerative disc disease of her lumbosacral spine. He considered that this diagnosis was established after reviewing the report of the MRI lumbar spine of 4 November 2011.
Defendant’s Medical Report
Dr John Roth
38 The defendant relied on the three reports from Dr John Roth dated 9 March 2012, 21 March 2012 and 17 May 2012.
39 In his report of 9 March 2012, Dr Roth was of the opinion that the plaintiff’s fall on 12 October 2011 had precipitated symptoms from pre-existing degenerative disease in the lumbar spine. She had also sustained a soft tissue to her right knee. While employment had materially contributed to the plaintiff’s injuries, he believed that she had largely recovered from these injuries.[20]
[20] DCB 16/42.
40 In his report of 21 March 2012, Dr Roth said:
“Employment is no longer a significant contributing factor to the worker’s claimed condition. The worker’s underlying pre-existing degenerative condition has superseded the work-related component. The worker’s compensational condition has I believe very largely resolved.”[21]
[21] DCB 16/42.
41 Then in his report dated 17 May 2012, Dr Roth said:
“The worker suffered an injury on 12 October 2011 which was a temporary aggravation on underlying or non-work-related condition. The effects of aggravation of the underlying non-work-related condition have now ceased and the underlying condition now remains as a cause of the incapacity and ongoing symptoms.”[22]
[22] DCB 17/42.
Mr Jeffery Littlejohn
42 The plaintiff relies on Mr Littlejohn’s report to the defendants solicitors of 21 January 2013 where his diagnosis was:
“This lady has referred pain from the lumbar spine. In the lumbar spine she has imaging evidence of degenerative disease affecting disc and joints with some neural compression. Clinically her symptoms would fit with referred pain from degenerative process within the lumbar spine; ie coming from disc and joint regions. There is no clinical evidence of neural impingement.”
43 Mr Littlejohn regarded the plaintiff’s prognosis as being guarded given that her “symptoms had been present for some time now without resolution”. He thought it likely that she would have “ongoing symptoms at least at some level for some time, although improvement and fluctuation in degree of symptoms could well occur”. He also noted that she had some emotional distress as a consequence of her predicament and considered that it may also be amplifying some of her pain.[23]
[23] DCB 23/42.
44 In summary as the plaintiff had informed Mr Littlejohn that she had no symptoms prior to her accident he believed that she had;
· An aggravation of underlying degenerative processes within the back which had rendered her symptomatic;
· The symptomatic aggravation had not ceased;
· Her employment was a significant contributing factor to the onset of the condition and continued to be so;
· Her employment was materially contributing current incapacity and impairment.[24]
[24] DCB 24/42.
The Plaintiff’s Credit
45 In Palmer Tube Mills Pty Ltd v Semi [1998] VSC 245, Brooking JA noted that in a serious injury applications the credit of the applicant is usually of great importance:
“For so often the opinions of medical witnesses depend on what they have been told by the applicant and upon the applicants behaviour and performance on examination or upon testing.”[25]
[25]Palmer Tube Mills Pty Ltd v Semi [1998] VSC 245.
46 The defendant relied on a number of matters which were submitted to call the plaintiff’s credit into question. In particular, the video footage of the plaintiff taken on 10 October 2013, which was submitted to be inconsistent with her presentation to this court and to Medical Experts.
47 In his closing address Counsel for the defendant submitted that the video footage showed the plaintiff walking at a brisk pace and going about her activities in a normal fashion. This contrasted with her:
· Slow and somewhat contrived walk to and from the witness box.[26]
[26] T 39.
· Her presentation to Mr Carey on 13 November 2012, when she had walked into the office with antalgic limp on the right, holding the low back with her left hand and responded in a markedly positive way to the tests he carried out.[27]
[27]Report 13 November 2012 PCB40 & judgement paragraphs 21-29.
· Her presentation to Dr Sutcliffe on 26 September 2012 when on examination he had noticed an antalgic gait with slow movement with poor agility.[28]
· Her presentation to Mr Khan on 23 June 214 when he observed that, she walked very stiffly and moved in a slow exaggerated fashion when getting dressed and undressed.[29]
[28] Report 11 December 2012, PCB 62.
[29] Report 21 August 2014, PCB 83.
48 However, when she was cross examined about these matters the plaintiff denied that the slow manner in which she came up to witness box was a performance for the court .[30] She also denied that when she had limped at the above mentioned medical examinations that this was also a performance. Her evidence was that she walked with a limp when she was sore or her leg became numb. She did not limp every day. She limped when she was in pain.[31]
A further matter relied on by the defendant with respect to the plaintiff’s credit was her failure to reveal the prior injury to her back suffered after a fall when she was working at the Footscray Hospital . The plaintiff had made a claim with respect to this injury and had received $16,000 compensation. However, she had not revealed this in her Claim Form of 18 October 2011. Nor had she mentioned it to Dr Carey, Dr Littlejohn and Dr Roth .
[30] T 20.
[31] T21-23.
49 The plaintiff’s explanation for failing to mention the prior injury in her Claim Form was that :
· It had happened 25 years ago;
· She was not on Workers compensation at the time but was still working;
· She had not known if it was necessary to put the information in her affidavit;
· She had informed her lawyer that she had a little accident at work many years ago .[32]
[32] T 14-15.
50 With respect to her failure to reveal the prior injury /claim to the Medical Experts her evidence was that Dr Littlejohn and Dr Roth had not asked her about past injuries.[33] As to Mr Carey the plaintiff had informed him that she had a little problem with her back 25 years ago.[34]
[33] T 14-15.
[34] T 15.
51 Other matters said to go to the plaintiff’s credit were that :
· She had maintained that her husband helped her in relation to housework despite the fact that he had a disabling back condition.
· She had told Mr Carey that after she took OxyContin, her pain level remained at 7-8/10.
52 The plaintiff agreed that her husband was on a disability pension for a back injury from a motor vehicle. However, her evidence was that this was a long time ago. When it was suggested that her husband could not be helping her with the housework due to his injury she replied
53 “Yes,---but my husband is better now. I mean he’s not that good but he can still do little things to help me out and everything.”[35]
[35] T 19.
54 With respect to the OxyContin not making much difference to her pain the plaintiff’s evidence was that they eased her pain a little bit . The only trouble with them was that they sometimes affected her stomach.[36] She did not take OxyContin every day. On some days she took two Panadeine Forte tablets three to four times a day.[37]
[36] T 28.
[37] T 29.
55 I accept the defendant’s submission that the plaintiff’s presentation both to this court and to a number of the Medical Experts on examination was inconsistent with the video footage of 10 October 2013. However, although the video footage showed the plaintiff walking in a shopping centre with no sign of a limp and reaching up to high shelves it ran for only seven minutes.
56 The plaintiff was cross-examined about the difference between her presentation in the video footage to when she saw Medical experts. Her evidence was that she did not limp every day but only when she was in pain or her leg was numb. She said: “ I never said I ‘m a cripple, I - you know ,I just try to do things and …”[38]
[38] T 23.
57 This is consistent with the fact that the plaintiff did not make any claim of having a permanent limp in her affidavit material. On 13 November 2012,[39] Mr Carey referred the plaintiff walking into the office with an antalgic limp on the right holding her low back with her left hand .However, in his report of 15 May 2014 he said
[39] PCB 40.
58 “On this occasion Mrs Suric walked down the corridor and into my room with no obvious limp, and was not holding her back”.[40]
[40] PCB 52.
59 The plaintiff’s explanation that she limped when she is in pain is not unreasonable.[41] While there is medical opinion that she has developed a chronic pain syndrome there was no suggestion in any of the medical reports that she was deliberately exaggerating her injury.
[41] T 23.
60 I do not make an adverse finding as to the plaintiffs credit on the basis of the plaintiff’s presentation in the short video footage shown to the court compared to her presentation at court and to the medical experts. The video was for a short period only 7 minutes. It showed the plaintiff walking in a normal fashion and reaching up to shelves in a shop. It did not show her running, jumping ,bending or carrying heavy objects.
61 I am not satisfied that the further matters relied on by the defendant, as to her credit are of sufficient weight for an adverse finding .With her failure to reveal her prior injury in her Claim form and to some of the Medical experts I have taken into account that it was 25 years ago. I accept that given the length of time between the injuries she could have failed to see the relevance of the earlier injury.
62 With respect to the plaintiff’s relatively high pain levels on OxyContin I accept her evidence that on some days she takes OxyContin and on others Panadeine Forte. This may provide some explanation as why her pain level remained relatively high .
Causation and Nature of the Plaintiff’s Injury
63 The defendant did not dispute that the plaintiff suffered an aggravation to the degenerative changes in her back at work on 12 October 2011. However, it was disputed that this work-related aggravation was ongoing. The defendant relied on the opinion of Mr Carey and Dr Knan that the plaintiff now had a chronic pain syndrome. It was submitted that the plaintiff’s current symptoms were now the result of age related change and the chronic pain syndrome.
64 In his closing address Counsel for the defendant submitted that as the plaintiff was relying on paragraph (a), of the definition of serious injury, she had to satisfy the Court that she had a physically-based condition. Counsel relied on the case of Papamanos & Peak Engineering v McKenzie[42]. He submitted that in accordance with this decision the court was required to disentangle physically based consequences from psychologically based consequences..
[42] [2014] VSCA 67.
65 I accept the medical opinion that the accident on 12 October 2011, aggravated the plaintiff’s pre-existing multilevel degenerative disc disease. This is essentially the opinion of all the Medical experts and it is supported by the radiology.
66 In addition I accept the opinion of Dr Carey who was the plaintiffs treating surgeon and Dr Knan that the plaintiff has also developed a chronic pain syndrome. However, I am satisfied on the balance of probabilities that the plaintiff’s chronic pain syndrome relates to lower back in jury and that there is an organic basis for her pain and restrictions.
67 This finding is supported by:
· The radiology showing significant degenerative change from L2-L3 down to L5-S1 and problems with thoracic area. Additional imaging done on 21/11/2011 revealed a disc bulge at LT12-L1 .
· Dr Carey’s opinion that funding for appropriate pain management would be beneficial for her and that she had continued pain and restrictions of motion due to her back and leg symptoms.[43]
[43] PCB 44-55.
· Mr Knan’s opinion that her injuries have considerably aggravated the pre-existing condition affecting her lumbar spine, knee and hip and that it has also resulted in some disruption of her lumbar discs ,in particular at L3-4 level but without radiculopathy[44].
[44] PCB 85.
· Dr Sutcliffe’s finding on examination of very substantial restriction of range of movement. In addition his opinion that she has persisting pain which he believes will continue into the foreseeable future continuing to limit her capacity for the activities of daily living.[45]
· Mr Morgan’s opinion that the diagnosis of aggravated multilevel degenerative disc disease of the lumbo-sacral spine was established by the MRI of 14 November 2011.[46]
· Associate Professor Littlejohn’s opinion that the symptomatic aggravation of her degenerative aggravation has continued and is materially contributing to her current incapacity and impairment.[47]
[45] PCB 68.
[46] PCB 90.
[47] DCB 24/42.
68 Mr Roth is alone in his opinion that the plaintiff suffered a temporary aggravation of her underlying degenerative back condition which has ceased. I reject his opinion in favour of the majority medical opinion that the aggravation is ongoing. In doing so however, I note that his opinion supports the finding that her chronic pain syndrome has an organic cause.
Does the Plaintiff’s Back Injury Meet the Definition of Being a Serious Injury?
69 Other than suffering from a prior back and shoulder injury at work some twenty-five years ago the plaintiff described her general health prior to the accident as being good and her work attendance as regular . She was happy and enjoyed being occupied and useful. She used to go for regular walks in the morning and sometimes in the afternoon. She visited friends and played games with them and did gardening.
70 As a result of her injuries the plaintiff is now restricted in all these activities. She suffers from constant back pain and pain to her right knees. Her back pain prevents her from sleeping and this disturbs her husband. She takes medication on a daily basis for her back pain either Panadol Forte or Panadol Osteo. In addition Diazepam to help her sleep.
71 The plaintiff is unable to do all the work around the house . In his report of 13 November Mr Carey took a history that on a normal day she may occasionally do some dishes and cooking. Her does the heavier work such as cleaning, vacuuming, the carpets and any gardening work.[48] While she tries to do some housework later on she would pay the price with her back getting worst.[49]Prior to the injury she took her grandchildren to the park and played with them on the swings. She no longer does this as she cannot run after them as she used to. While she still has a social life it is not like before.[50]
[48] PCB 38.
[49] T19 & 33.
[50] T 31-32.
72 The medical opinion is that she can no longer work as a cleaner .When she was cross-examined about her work the plaintiff said
73 “I used to love my work. I was very active and I loved--- the cleaning was my life. Since coming to Australia I always clean and that’s something what I love and what I enjoy to do” .[51]
[51] T 25.
74 The plaintiff relies on the affidavit of her daughter, Daniela Vuletic who is married with four children, including triplets aged eleven. In her affidavit of 18 September 2014, Daniela stated that she regularly sees her mother at least twice weekly, more often prior to her injury. She described her mother prior to her injury as:
· Being always at work and often talking about the satisfaction of being employed and busy;
· Being quite healthy and enjoying going for walks or shopping;
· Visiting her more often and helping with the four children, especially the triplets;
· Helping with the washing and housework as well as taking the children for walks and to the playground.
75 In contrast since the injury her mother had:
· Regularly complained of pain in her low back;
· Been restricted in the performance of household duties particularly mopping the floor, hanging the clothes, engaging in bending or lifting;
· Been assisted with household duties by her father because of her pain and restrictions;
· No longer been able to help her with the housework or with the children;
· Needed her help with the housework which was a cause of frustration and upset to her.[52]
[52] PCB 20.
76 The plaintiff’s claims concerning the consequences of the injury to her lower back on her life are not only supported by her daughter but they are also consistent with the history she gave to the various medical practitioners. I am satisfied that she was an active and relatively fit woman before the injury and that as a consequence of the injury to her back, her domestic, social and recreational life has been adversely affected.
77 I am satisfied on the balance of probabilities that the plaintiff has discharged the onus of showing that the pain and suffering consequences caused by the aggravation of the pre-existing degenerative nature of her lower back is a permanent serious impairment which satisfies the statutory criterion of being more than significant or marked and at least very considerable.
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