Tainsh v Kalianna Special School and VWA
[2011] VCC 1495
•30 August 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT BALLARAT
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVSIION
Case No. CI-10-00620
| GAYLYN TAINSH | Plaintiff |
| v | |
| KALIANNA SPECIAL SCHOOL | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Ballarat |
| DATE OF HEARING: | 16 and 17 June 2011 |
| DATE OF JUDGMENT: | 30 August 2011 |
| CASE MAY BE CITED AS: | Tainsh v Kalianna Special School & VWA |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1495 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – s.134(AB)(16) – serious injury application – injury to the left lower limb involving aggravation by compensable injury of prior injury suffered in transport accident – methodology of approach as to assessment of severity of consequences considered – relevance of finding that compensable injury materially contributed to impairment in its aggravated state.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Moore QC with | Saines & Partners Pty Ltd |
| Mr K Mueller | ||
| For the Defendant | Mr J D Elliott QC with | Herbert Geer |
| Mr I S Gourlay | ||
| HIS HONOUR: |
1 In this matter, the plaintiff seeks leave to commence a proceeding claiming damages for the pain and suffering consequences of an injury which she suffered in the course of her employment with the first defendant on 16 February 2007.
2 In the proceeding, the plaintiff relies upon two affidavits sworn by her on 1 October 2009 and 25 March 2011 respectively. In addition, the plaintiff attended the proceeding for cross-examination and gave viva voce evidence. Otherwise the parties rely upon medical reports tendered by them.
3 The injury relied upon by the plaintiff involves a fracture of the medial malleolus of the left ankle, together with the development of reflex sympathetic dystrophy affecting the left ankle and leg. The impairment of function is that of the left lower limb.
4 In her first affidavit, the plaintiff deposes that in October 2004, she was involved in a motor vehicle accident in which she suffered a dislocation of the talus of the left ankle, which injury led to the development by her of reflex sympathetic dystrophy. The plaintiff said that by 2005, whilst her foot remained swollen and slightly inverted, she had, by 2006, returned to her work with the first defendant on a full-time basis undertaking normal duties.
5 As the result of the injury of 16 February 2007 (“the 2007 incident”), the plaintiff said that she was again diagnosed with Complex Regional Pain Syndrome Type 1. She described the incident of 2007 as causing her condition to substantially worsen, and deposed to the fact that prior to that incident:
“I had made a reasonable recovery and was able to work full time in my
normal duties.”
6 The plaintiff said that following the 2007 incident, she was off work for twelve months and returned to work in 2008 on restricted hours and duties. She said that by reason of the threat to the security of her employment, she was required in 2008 to comply with the request by the first defendant that she return to normal hours and normal duties. She stated that whilst she complied with this request, she found her work to be extremely difficult and was required to spend four nights in Bendigo rather than having to travel each day between her home address in Carisbrook and Bendigo.
7 The plaintiff described having had to transfer from working with children aged twelve to fourteen years, to dealing with children aged between fourteen and eighteen years:
“… who were better able to look after themselves physically”.
8 She said she had difficulty walking; that she now spent most of her time indoors; that her daughters and her husband undertook most of the household tasks, including shopping; that she had difficulty sleeping due to pain and employed Panadeine Forte and Luvox to help her sleep.
9 In her second affidavit, the plaintiff deposed to the fact that whilst she had suffered from continuing problems in her left ankle during 2006, she was gradually becoming less disabled and that she had made a reasonable but not full recovery from her earlier accident at the time at which she suffered her injury in 2007. She described the injury in 2007 as causing her to be –
“much more disabled than before”
and listed the following symptoms as being associated with her disability:
“I now walk more on the side of my foot because my foot is both
turned over and inverted.”
10 Whereas previously swelling in the ankle was intermittent and worse with hot weather, the swelling was now permanent and more significant, extending to the plaintiff’s knee.
11 She suffered from constant pain in her foot and ankle of greater severity than that which was present prior to her injury.
12 Whereas before her 2007 injury she had been able to volunteer for extra curricular school activities such as fundraising duties, her symptoms were such now that her practice was to leave school as soon as the children have gone home.
13 That whilst at school, she attempts to avoid standing for long periods of time.
14 That whilst previously she suffered from intermittent trouble with her sleep, there were now:
“Many nights I am not able to get to sleep until the early hours of the morning. I often get up and have a drink and listen to music. Typically I get about four hours of sleep a night. I usually feel very drained and lacking energy in the mornings.”
15 Her constant symptoms of pain have had an adverse effect on her marriage.
16 Whereas prior to her 2007 injury she was managing her symptoms of pain with the use of 5 milligram Norspan patches and Panadeine Forte, she had, following her injury in 2007, been prescribed Norspan patches of 20 milligrams.
17 That she had undergone a regime of Botox injections in management of her symptoms which she described as being very painful.
18 That she found her requirement to travel daily between her home and her work, a distance of approximately 68 kilometres, to be arduous and was contemplating seeking part-time employment notwithstanding the adverse impact that this would have on the family budget.
The Plaintiff’s Viva Voce Evidence
19 In the course of viva voce evidence, the plaintiff said that prior to her 2007 injury, she had learned to manage the condition in her knee, she had returned to work and had not required treatment in the form of rehabilitation.
20 In cross-examination, the plaintiff was taken to a statement made by her on 8 December 2006 as to the effect which her 2004 transport accident had had upon the function of her leg. It was put to the plaintiff, that in this statement, she had said that she found her work extremely difficult to cope with as her duties required her to assist in looking after –
“… children with difficulties, and these children tend to run off. Because of my injury I have difficulty chasing after them or even walk quickly without pain.”
(sic).
21 It was put to the plaintiff that her description of the symptoms which she was suffering as described in her December 2006 statement,[1] were similar to those in respect of which she presently complained, in that they included:
[1] Defendants’ Court Book (“DCB”) 88-89
(i) difficulty coping with full time duties; (ii) difficulty carrying out domestic duties; (iii) difficulty driving long distances and walking on uneven ground; (iv) the requirement to stay overnight in Bendigo on a number of days per week, rather than return to her family. 22 In response, the plaintiff said that whilst the description given by her in her statement of December 2006 correctly described the impact of her symptoms upon her at that time:
“You think that is bad until something else happens and it’s worse.”
23 The plaintiff agreed that as at 2006, at the end of the day’s work, she suffered from swelling which extended to her knee and that her leg was painful and that she was required to rest it; that she was required to stay in Bendigo overnight a couple of nights a week because she was unable to cope with the drive between her home and her place of employment; that she had been required to employ Panadeine Forte and Norspan patches for pain relief; that at the commencement of 2007 she had changed the children with which she worked and had commenced working within the senior section of the school as she was having difficulty coping with the duties required of her when assisting with younger students.
24 The plaintiff said that following the 2007 incident, her duties had been altered so that she now worked with autistic children who required less physical intervention and that in performing this work:
“I can sit and they’re totally different children to what the other kids are.”
25 In this regard, the plaintiff described having the assistance of a fellow teacher who would take the children outside and walk with them or toilet them if necessary. The plaintiff accepted that shortly before her fall, she had told Dr Capes that her life had changed to a significant degree by reason of her ankle injury but commented:
“… and it has changed a lot more now.”
26 The plaintiff accepted that she had told Dr Capes that she did not believe her symptoms had improved over the six to nine months which preceded her consultation with him in January 2007, that she continued to suffer from significant pain and swelling; that her foot was inverted and this had caused her to suffer from falls.
27 She agreed that in 2007 her leg was hypersensitive and that she was unable to walk for long distances.
28 It was put to the plaintiff that she had provided a history to Dr Capes that she had not made a reasonable recovery and that this was the true state of her condition prior to the fall in contrast to that which the plaintiff had deposed in her affidavit, to which the plaintiff responded:
“Well I was walking, not on crutches, whereas before I was walking on crutches, so I must have been getting gradually better even though I still had the pain.”
29 The plaintiff, however, conceded that if she had told Dr Capes that she had not made a reasonable recovery, this must be true. It was put to the plaintiff that she presently suffered from problems similar to those which were present in 2007, to which she responded:
“They’re a lot worse now.”
30 The plaintiff accepted, however, that she did suffer from similar problems but maintained that the effect of those problems were a lot worse.
31 The plaintiff said, whereas prior to 2007 she had fallen on two occasions, since that time she had experienced regular incidents of falling.
32 The plaintiff said that prior to her 2007 incident, she had not been prescribed Norspan, 20 milligrams, which was her present dose; that her treatment was presently managed by her general practitioner, Dr Thompson, and a rehabilitation specialist, Dr Murphy; that she loved her job with the first defendant but had recently made enquiries as to employment at the Maryborough Special School, where she hoped to find part-time employment.
33 The plaintiff described presently being able to stand for only ten to fifteen minutes and having to now employ a stool when she washed the dishes at home or she dried her hair. She said that this was not the case prior to the time at which she sustained her injury in 2007.
34 It was put to the plaintiff:
“Q: What I’m putting to you is that you are leading essentially the same type of life and doing the same type of things, with difficulty, that you’ve described as you were before February 2007?--- A: Yes, but to a lot more – it’s just what – I don’t know. What was normal then is a lot worse now. I’ve just learnt to live with it the way it was … I learned to live with it as being normal and now it’s a lot worse. I
fall over a lot.”
35 In re-examination, the plaintiff described her pain as being at a level of seven prior to her 2007 incident and as being approximately nine at the present time. She said:
• that she thought her symptoms could not get worse but that they had; •
that in 2006, she had been required to stay in Bendigo two nights a week but that following her fall in 2007 up until the floods which had affected her property in January 2011, she had been staying in Bendigo for four nights a week;
•
that the swelling in her leg was worse and that the hypersensitivity which had been present in her foot and ankle and confined to that area prior to 2007, now extended up to her knee;
•
that she had discontinued physical therapy in early 2006 but that her treatment had been reinstituted in 2007 and was continuing;
•
that whereas prior to 2007 she had difficulty walking on stairs or inclines or uneven ground, she now had difficulty walking on flat surfaces and that she presently tripped approximately three times per week. She described her foot as being looser prior to 2007; that she now walked on the side of her foot “most of the time” and that since 2007 Botox injections were required to maintain flexibility in her foot;
•
that whilst before 2007 she had difficulty getting to sleep and she might be required to get up two or three times a night, her injury was such that it now often impaired her ability to get to sleep until four or five o’clock in the morning.
36 The plaintiff described the 2007 incident as having had the effect of turning around her life:
“Everything revolves around if I’ve had enough sleep or not. I go
to work and come home. That’s about it.”
37 The plaintiff described the exacerbation of her symptoms by the 2007 incident as having had a significant effect on her home life and social life,[2] and said:
[2] Transcript (“T”) 62
• she had significantly more pain in her hip and knee; •
that her decision to seek alternative employment to that involved in her employment with the first defendant, which she enjoyed was motivated solely by the reason of her need to seek part time employment;
•
that the area in which hypersensitivity was present in her leg was now significantly greater than that which had existed prior to the 2007 incident.
The Medical Evidence
38 There is no issue in the case that, whilst the primary injury suffered by the plaintiff in the 2007 incident differs from the primary injury suffered by the plaintiff in her car accident, the incapacity arising from the 2007 incident stems from an aggravation of the plaintiff’s pre-existing reflex sympathetic dystrophy and that many of the symptoms with which the plaintiff now presents were present prior to the 2007 incident.
39 In these circumstances, it is submitted on behalf of the defendants, that for the plaintiff to succeed in this application, it is incumbent upon her to establish that the pain and suffering consequences associated with the aggravation of her pre-existing injury by the 2007 incident can, in themselves, be said to be at least very considerable.[3]
[3] See Guppy v Victorian WorkCover Authority [2010] VSCA 164 (25 June 2010) and Petkovski v Galletti [1994] 1 VR 436
40 Assuming for the purpose of the analysis required by me in this case that I should adopt the approach taken by the Court of Appeal in Petkovski v Galletti, the medical reports which are relied on by the parties are of little assistance as:
•
The symptoms associated with the reflex sympathetic dystrophy developed by the plaintiff following her motor vehicle accident are, to a significant degree, similar to those associated with the aggravation of the condition by the 2007 incident, the difference being largely one of degree associated with the level and severity of the symptoms; and
•
The medical reports do not descend to the particularity required to allow a definitive comparison to be made as to the precise level of symptoms and incapacity associated with the 2004 incident and that associated as with the 2007 incident.
41 In addition, when one contrasts the statements made by the plaintiff in her two affidavits (which assert that she had recovered to a significant extent from the incapacity associated with her transport accident), with the description given by the plaintiff to Dr Capes as to the extent of her symptoms as at 9 January 2007, inconsistencies arise which cannot be reconciled.
42 It is submitted on behalf of the defendants that these inconsistencies tell against the plaintiff’s credit. Whilst I am satisfied that the inconsistency in the evidence in this regard goes to the reliability of the plaintiff as an historian upon the issue of the extent of her recovery from her pre-existing condition, the plaintiff did not impress me as a witness who was prone to deliberate dishonesty when giving her evidence as to her recovery from her 2004 accident and as to the effect of the 2007 incident upon her. Indeed, there is much to be said in favour of the plaintiff’s credit, having regard to her perseverance in continuing in her employment after the 2007 incident, notwithstanding the fact that she was experiencing what I accept were severe symptoms which required management with substantial doses of narcotic medication, and to have abandoned her employment may well have magnified the compensation claim available to her.
43 Be that as it may however, I am satisfied that at the time at which she swore the affidavits relied upon by her in this application, the plaintiff’s memory as to the extent of her recovery from the 2004 accident was probably faulty given the history of her symptoms which the plaintiff had given to Dr Capes some five weeks before the 2007 incident.
44 In these reasons, I am not satisfied that I can apply great weight to the generalised statements made by the plaintiff as to the level of the symptoms she experienced and the restrictions which she faced immediately prior to the 2007 incident when compared with those from which she presently suffers in the absence of some corroboration of that evidence. That is not to say however that I do not accept the plaintiff’s evidence as to the present level of her symptoms and their effect upon her
45 I am satisfied that I should make the following findings of fact as to the effect of the 2007 incident:
(i) As to the increase in the plaintiff’s level of pain – When account is taken of:
•
The significant increases in the plaintiff’s use of narcotic medication; her Norspan patches having been increased from 5 milligrams immediately before the 2007 incident to 20 milligrams at the present time (although the plaintiff was, prior to the 2007 incident, also making use of Panadeine Forte. I accept her evidence that the use of this medication was occasional.).
•
The fact that the plaintiff had, immediately prior to the 2007 incident, been able to achieve some accommodation of a condition which imposed significant restrictions upon her life in that, by November 2006, she no longer required “the ongoing services of the various therapists she had visited over the prior almost two years”[4] when considered in conjunction with the fact that the plaintiff has since the 2007 incident required ongoing treatment from both her general practitioner and Dr Murphy who has employed Botox injections and cortisone injections to assist in the management of her symptoms.
•
The fact that whereas before the 2007 incident the plaintiff was required to spend two nights per week in Bendigo in order to allow her to manage her symptoms and her work-related travelling time, following the 2007 incident, the plaintiff was required to spend four nights a week in Bendigo;
[4] See the report of Dr Ed Davis of Bendigo Health dated 14 November 2006
the startling increase in the plaintiff’s level of medication and need for treatment and following the 2007 incident satisfies me that the 2007 incident has been responsible for a very significant increase in the plaintiff’s pain levels.
(ii) As to the position of the plaintiff’s foot and to the steadiness of her gait –
When account is taken of the fact that whilst prior to the 2007 incident the plaintiff was able to manage her symptoms with medication and no treatment, and that since the 2007 incident, she has required regular management by Dr Murphy:
• To treat the tendency of the plaintiff’s left foot to “over-dorsiflex”;[5] and • To treat problems in the plaintiff’s hip;[6] the latter, in the opinion of Dr Murphy, stemming from the tendency of the left foot to over- dorsiflex; [5] Report dated 24 March 2009
[6] Report dated 26 May 2009
the evidence given by the plaintiff as to the increased problems that she has had with the inversion of her foot and the instability in her gait is corroborated, and I accept her evidence in this regard.
(iii) As to whether the 2007 incident has caused the allodynia present in the plaintiff’s left leg to spread to encompass the area between her ankle and her knee –
The plaintiff’s evidence on this issue is supported by the statement by Dr Murphy January 2011, who described the plaintiff’s symptoms of allodynia as being significant and I interpret the comment made by him in his report of 14 June 2011; namely:
“I do not think there has been any significant change in her complex regional pain syndrome symptoms over the past year or two and I suspect that this situation is now quite stable and will persist in its current form indefinitely.”
as being an expression of opinion that it will remain so. I am further satisfied that even though there has been some amelioration of the symptoms associated with this condition since it first manifested itself, it nevertheless remains a significant issue for the plaintiff.[7]
(iv) As to the effect of the 2007 incident upon the plaintiff’s sleep pattern –
I accept the plaintiff’s evidence that there has been a general deterioration in her pattern of sleep associated with the exacerbation of her symptoms. (The plaintiff’s evidence in this regard is supported by the decision by Dr Murphy to prescribe night time OxyContin.8) I have difficulty, however, quantifying the change in this regard however the fact that it is of significance
(v) I accept the plaintiff’s evidence which was not the subject of challenge by the defendants that by reason of the increase in her symptoms, as caused by the 2007 incident, the plaintiff has been required to alter the nature of the activities which she presently undertakes in the course of her employment with the first defendant so as to allow her more opportunities to sit and rest. Further, the increase in the plaintiff’s symptoms has restricted the extra curricular activities in which the plaintiff engages in association with her employment, such as fund raising and also staff meetings, and has caused her to contemplate giving up the job which she obviously enjoys with the first defendant, to seek part-time employment. [9]
[7][9] Report dated 26 May 2009
Should Petkovski v Galletti be applied to the Analysis of this Application?
46 In Filipowicz v Arnold Ribbon Pty Ltd,[10] his Honour Judge Misso held, in an application under 134AB (16)(b) where the injury involves an aggravation of a pre-existing condition, it was inappropriate to undertake a before and after comparison of the plaintiff’s non-aggravated and aggravated state for the purpose of determining whether the plaintiff has suffered a serious injury pursuant to the provisions of the Accident Compensation Act.
[10] Delivered 21 February 2011
47 It is my interpretation of the reasoning of Judge Misso in Filipowicz that where the impairment in an application under is.134AB (16)(b) arises by reason of the aggravation of a pre-existing injury, the issues to be focussed upon are whether:
(i)
the work-related incident materially contributed to the eventual impairment;
(ii)
the injury in its aggravated state gives rise to an impairment which constitutes a serious injury within the meaning of the Act.
48 I find the analysis by Judge Misso in Filipowicz to be compelling and I am persuaded that I should follow the approach taken by his Honour in this application, notwithstanding that the aggravation involved here involves a condition which originally arose by reason of a transport accident and which has been aggravated by an industrial accident.
49 It follows that if I am satisfied that the 2007 incident materially contributed to the plaintiff’s impairment which, in its aggravated state is one which can be appropriately described as being more than significant or marked or being at least very considerable, then the plaintiff has satisfied the onus imposed upon her by the provisions of s.134AB of the Act. Having regard to the findings which I have made, I am satisfied that this is so in the present case.
50 Alternatively, applying a comparative approach as required by the decision in Petkovski, when account is taken of the findings which I have made as to the effect of the 2007 incident in increasing the level of pain and incapacity suffered by the plaintiff by reason of the 2004 accident, I am satisfied that it is appropriate to describe the effect of the increase in the plaintiff’s symptoms as caused by the 2007 incident as involving an impairment which is appropriately described as being more than significant or marked and as being very considerable.
51 In the circumstances, I am satisfied that the plaintiff has established her entitlement to the leave which she seeks in this proceeding and I will hear the parties as to the order which should be made and also upon the issue of costs.
- - -
| As to the plaintiff’s allodynia, in his report dated 14 June 2011, Dr Murphy describes that condition as affecting most of the skin: “… most of the skin over the anterior aspect of the leg and foot”. |
I am also influenced to accept the plaintiff’s evidence as to this issue, taking into account the consistency between the plaintiff’s evidence as to her present capacity for employment; namely, that she considers she is limited to part-time employment; and the opinion expressed by Mr Capes in his report of 6 January 2009 that her likely capacity for employment would not exceed twenty hours per week.