Thomas, Katie v Pogue Vineyards P/L and VWA

[2009] VCC 1437

IN THE COUNTY COURT OF VICTORIA Revised

(Not) Restricted

AT MELBOURNE

CIVIL DIVISION

SERIOUS INJURY

Case No. CI-09-01053

KATIE THOMAS	Plaintiff
v
POGUE VINEYARDS PTY LTD and	Defendant
VICTORIAN WORKCOVER AUTHORITY

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JUDGE:	LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	24 & 25 AUGUST 2009
DATE OF JUDGMENT:	19 November 2009
CASE MAY BE CITED AS:	Thomas, Katie v. Pogue Vineyards P/L & VWA
MEDIUM NEUTRAL CITATION:	[2009] VCC 1437

REASONS FOR JUDGMENT

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Catchwords: Serious Injury-Complex Regional Pain Syndrome Type 1-lack of objective evidence for such a diagnosis- no serious injury within section 134AB(16)(a) of the Accident

Compensation Act 1985.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. R Young of counsel with	J G Thompson
Mr. J Sala of counsel
For the Defendant	Mr. R Middleton SC with Ms.	Thomson Playford Cutlers
F Ryan
HIS HONOUR:

Introduction

1. This is an application which relies on Part (a) of the definition of "serious injury" in sub-section (37) of section 134AB of the Accident Compensation Act 1985 (“the Act”), that is permanent serious impairment or loss of a body function.

2.   The body function relied upon is the lower right leg.

3. The application by the Plaintiff instituted by Originating Motion dated 17 March 2009, seeks leave from the Court pursuant to sub section (16)(b) of the Act to commence a proceeding which will claim damages for both pain and suffering and loss of earning capacity.

4.   Particulars of Injury pleaded as at 21 August 2009 are:

(a)	Pain and tenderness to the right foot with severe restriction of movement;
(b)	Swelling and development of reflex sympathetic dystrophy in the right foot resulting in difficulty with walking or weight bearing on the right foot;
(c)	Severe swelling of the right ankle resulting in the plaintiff walking with a limp;
(d)	Development of tingling and pins and needles in the right foot and ankle with aches and pains and the right foot giving way causing instability, resulting in loss of body function namely loss of use of the right foot.

5.  Mr. R. Young of counsel with Mr. J Sala of counsel appeared on behalf of the plaintiff. Mr. R. Middleton SC with Ms. F. Ryan of counsel appeared on behalf of the defendants.

6.   The following evidence was adduced during the hearing:

• The plaintiff swore two affidavits and gave evidence and was cross- examined. The Plaintiff’s first affidavit was sworn on 17 March 2009[1]. The second affidavit was sworn on 23 July 2009[2].

• The plaintiff also relied on an affidavit sworn and filed by her partner Eric Walter Clifford Thomas sworn 19 March 2009[3] and an affidavit of her mother Helen Louise Clarke sworn 16 March 20094. Neither of these witnesses gave evidence before me.

• The plaintiff tendered the following evidence - the Plaintiff's Court Book ("PCB") pages 1-158.13 (inclusive): Exhibit A

• The defendant tendered the following evidence - the Defendant's Court Book (“DCB”) pages 159-391 (inclusive): Exhibit 1

• Dr. Peter Blombery was called to give evidence on behalf of the plaintiff and was cross examined;

• Dr. Shannon was called to give evidence on behalf of the defendant and was cross examined.

[1]             PCB 5-20

[2] PCB 28-30

[3] PCB 31-35 4 PCB 36-38

7.  In giving consideration to this application I have considered all of the evidence adduced by the respective parties.

Background Facts

8.  The plaintiff is now 35 years of age. She was born on 15 September 1974. She attended Wangaratta High School and completed year 12. Thereafter she worked picking fruit and then at Brown Brothers Winery doing general vineyard work where she developed her interest and knowledge of the wine industry.

9.  In 1989 (when she was 15 years old) the plaintiff fractured her right ankle in a horse riding accident. Her right ankle healed well and she went on to play net ball and tennis and ride horses. As a young women she was active in all sports and was uninhibited by the previous right ankle injury.

10.The plaintiff continued to work for Brown Brothers until she married in 1998 and moved to Shepparton. There she worked in an orchard doing general orchard work. After three months she began work with the defendant at its vineyard near Toolamba. She did all forms of general manual type work one associates with a vineyard which tasks are more particularly set out in paragraph 4 of her first affidavit.

11.With the encouragement of the defendant, the plaintiff undertook a viticulture course at Dookie in 2000. This was a part time course which, when completed to diploma level, would have enhanced the plaintiff’s qualifications and prospects in the viticulture industry.

12.On 18 November 2002 the plaintiff was injured when she slipped whilst alighting from a tractor she had been driving during the course of her employment (“the accident”). The circumstances of the accident are described fully in paragraph 6 of her first affidavit. As a result she claims to suffer from constant pain, disability and impairment of function of the right lower leg. She claims that she can no longer engage in her occupation of choice and her recreational and sporting pursuits and domestic life have been seriously affected.

13.In the plaintiff’s first affidavit she claims that her ability to stand and balance properly has been impaired because of her injury. She claims she cannot use a chain saw which she would routinely be required to use in her previous employment. She claims she can no longer safely mount and dismount a tractor and cannot weight bear on her right foot or operate the brake on a tractor. As a result she has been unable to continue with her viticultural studies.

14.As a result of the accident and the injuries claimed to have been sustained by the plaintiff she was off work for approximately 18 months. In mid 2004 she commenced a return to work program with the defendant. Initially she worked for two hours per day two days a week and was given tasks which did not place strains on her ankle. She claims that as her hours of work increased she was able to undertake limited tasks at a reduced rate of output. She says that her injured ankle caused her extreme pain from time to time particularly if she spent time walking or standing on it.

15.In her first affidavit she describes the medication she was required to take to cope with the work at paragraph 21. The list is extensive. The return to work program was gradual. The plaintiff says that she was only able to cope with work because of the extensive medication which included pain killing tablets and anti inflammatory tablets. Towards the end of the program the plaintiff was working 40 hours per week on modified duties.

16.The plaintiff claims that on 13 September 2004 she was made redundant by the defendant and that this redundancy was brought about because of her on going disability and impairment[5]. The plaintiff has not engaged in any form of paid employment since being made redundant on 13 September 2004.

[5] Plaintiff’s first affidavit paragraph 26 PCB 12. 6 Plaintiff’s first affidavit paragraph 27 PCB 13

17.In her first affidavit the plaintiff claims that since ceasing employment her ankle has “improved somewhat”6 but attributes this to being careful not to engage in activities which tend to aggravate the condition of the right ankle.

18.In 2005 she undertook some bar work at the Toolamba Hotel. She had to stop this because the work brought on what she describes as severe pain in her ankle.7

19.In paragraph 29 of her first affidavit the plaintiff sets out many daily activities which she either can no longer perform or if she does so she exacerbates the pain in her right ankle. She claims the injury she suffered also affects her social and sporting activities.

20.At paragraph 33 of her first affidavit the plaintiff details various instances where she claims she suffers from impairment due to the injury to her right ankle. These include:

(a)	Walking;
(b)	Cannot climb ladders or walk up stairs;
(c)	Lack of flexibility and control of the right ankle especially on uneven ground;
(d)	Nausea and dizzy spells. “I find that changing weather conditions, or tiredness, can precipitate an attack of nausea”8
(e)	Hot and cold flushes across the foot, changes in colour, numbness and pins and needles sensations across the foot. “My foot also sweats profusely. On occasions my foot does not maintain an even temperature. Frequently I have to rug the foot up to keep it warm as it becomes excessively cold when the ambient temperature is normal9”
(f)	constant low level pain in the right ankle.

21. The plaintiff claims that the impairments from which she suffers are not improving.

22.At paragraphs 35 and 36 of her affidavit the plaintiff sets out the names of businesses where she claims to have made “enquiries” for work consistent with her injuries in the Tatura area. In her second affidavit the plaintiff deposes that she has continued to make enquiries of various employers “who may be able to offer suitable employment” in the Tatura area10. She has been unsuccessful in obtaining employment for which she might be capable. She now believes she is now incapable of undertaking any paid employment.

23.The plaintiff’s evidence is that had it not been for the accident and the injury she sustained to her right ankle she would have continued to work until aged 65. She claims she would presently be earning $867 per week inclusive of superannuation payments from her former employer. She has been in receipt of a Disability Support Pension from Centrelink since being made redundant. The plaintiff deposes to taking 180 Panadeine Forte tablets per month, 20 to 30 Mersyndol tablets per month, 20 to 100 Panadeine tablets per month and Neurofen “occasionally”.

24.In his affidavit the plaintiff’s partner Eric Thomas describes the ways in which the plaintiff suffers from the injury. That evidence was not challenged. The same might be said of the evidence from her mother.

7 Plaintiff’s first affidavit paragraph 28 PCB 13

8 Plaintiff’s first affidavit paragraph 233[v] PCB 16 9 Plaintiff’s first affidavit paragraph 33[vi] PCB 16 10 Plaintiff’s second affidavit paragraph 7 PCB 29

25.The defendant contests the application at every level. Whilst it does not dispute that the plaintiff injured her right ankle on 18 November 2002 whilst working for the defendant, it says the actual physical injury suffered was in the form of a sprained right ankle from which the plaintiff has or should have made a complete recovery without any ongoing permanent impairment. It argues that if the plaintiff suffers reflex sympathetic dystrophy or complex regional pain syndrome type 1 (“CPRS”) (which it does not admit) then such injury is not a physical injury. The defendant disputes any diagnosis of reflex sympathetic dystrophy or CPRS in this case. The defendant argues the plaintiff is not impaired from returning to work and even if it accepted that the plaintiff has some continuing impairment then she is still capable of performing other work which is available to her in her area where she lives. The defendant disputes that the plaintiff was made redundant in her work with the defendant.

26.Relating the defendant’s arguments to the provisions of the Act, the defendant contends:

(a)	the consequences of the plaintiff’s impairment do not meet the threshold set out in section 134AB(38)(c) and (d) of the Act; and
(b)	the plaintiff has not disentangled the physical consequences of her injuries from the psychological consequences as required by section 134AB(38)(h) of the Act; and
(c)	the plaintiff has a capacity for suitable employment; and
(d)	If the plaintiff does have a loss of earning capacity, then such loss does not satisfy the requirements if section 134AB(38)(e) of the Act.

The Statutory Scheme

27.The application is brought under the definition of “serious injury” contained in subsection (37)(a)[11] of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.

[11] Transcript Page 159/5

28. The relevant considerations which apply to such an application are as follows:

(a)	The plaintiff must prove that she has suffered a compensable injury, that is, an injury which she suffered arising out of the course of her employment on or after 20 October 1999.[12]
(b)	The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[13]
(c)	The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a), subsection (19)(b), subsection (38)(e) imposes a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)	Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)	Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise. The proper identification of pain and suffering attributable to impairment which is physical or physiological in origin requires that any psychological or psychiatric overlay be stripped aside.[14]
(f)	Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(g)	Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined. For the purposes of those sub-sections “suitable employment” is defined in section 5 of the Act to mean “employment in work for which the worker is currently suited (whether or not that work is available) etc etc”.
(h)	Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.

[12] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11

[13] Barwon Spinners, at paragraph 33

[14] Barwon Spinners at paragraph 117

(i)  Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event.[15]

[15]           A consistent approach of Judges of the County Court – see, for example, De Pasquale v AW Dark Pty Ltd [2005] VCC 158, per Judge Higgins; Talevski v Fulop Trading Australia Pty Ltd [2007] VCC 833, per Judge Strong; and Patterson v Burbank Plumbing and Maintenance Services [2007] VCC 1527, per Judge Ross.

(j)

In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.

(k)

In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[16]

[16] (1994) 1 VR 436

29.I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.

Work and Relevant Medical History

30.Immediately after the accident the plaintiff was taken to the Tatura medical centre where she was treated by Dr. Yamei Cui.[17] Her ankle was x-rayed and no abnormality was found. In a report dated 27 April 2005 (two and a half years after the accident) Dr. Monzer Adba general practitioner said, inter alia:

[17] PCB 61

"Dr Blombery saw Kate and found her to have complex regional pain syndrome in her right ankle which is due to traumatic disturbances and the full name of the syndrome is reflex sympathetic dystrophy." "I saw Katie a few times lately and found her to have a right ankle pain, limping on walking, abnormal sensation of cold skin. She is stressed and anxious about her condition."[18]

[18] PCB 61 at page 62

31.What Dr. Adba wrote in his report in April 2005 is not quite accurate. Dr. Blombery by that time had not said that the plaintiff had CPRS. Rather he had said that she had a component of CPRS. At a latter point in time he said that she had features of CPRS.

32.The plaintiff continued to complain and after some time she was referred by the general practitioner Dr. Cui to Mr. Ian Crichley orthopaedic surgeon in Shepparton. He saw her on 3 February 2003 about 10 weeks after the accident and then reviewed her on three subsequent occasions in March and April 2003. He last saw her on 17 April 2003 and provided his report on 28 October 2008[19]. On examination he noted that her right foot was cold and dry compared to the left side. Such a finding might be a component or feature of CPRS but on its own could not be decisive of the diagnosis. Mr. Critchley opined, inter alia:

[19] PCB 93

"She suffered a significant inversion injury to her right ankle with an undoubted ligamentous component. She may have developed a minor degree of peroneal tendon instability. The injury was complicated by the development of reflex sympathetic dystrophy."

"Normally I would expect her to make a full recovery from this injury, but the presence of reflex sympathetic dystrophy makes the outcome unpredictable. It may well be that she will have gone on to develop a chronically painful and stiff ankle joint which would significantly affect her employment history and an employment that involved prolonged standing," et cetera. (CB94-5)

33.The plaintiff continued to undergo physiotherapy without success. She was referred to Mr. Wearne Orthopaedic Surgeon by her general practitioner. Mr. Wearne saw the plaintiff on one occasion on 2 June 2003.[20] He noted that the plaintiff had received extensive physiotherapy and had undergone a bone scan and an MRI of her right ankle neither of which revealed any abnormality. Examination of the plaintiff by Mr. Wearne revealed no muscle wasting of the right leg. Although the plaintiff said that her right foot was cold examination showed the temperature of both feet was equal and only mildly cool. There was no swelling of either foot and the texture and colour of the skin of her right foot was normal. She had excellent dorsalis pedis pulses in both feet. She had a full range of foot and ankle movement.

[20] PCB 54

34.Mr. Wearne opined, inter alia:

"Mrs Thomas's description of the injury of 18 November 2002 is consistent with her having suffered a soft tissue injury or sprain of the right ankle which has been the site of a previous fracture from which she has apparently made a good recovery. Her complaints of significant and continuing symptoms and disability arising from the right ankle appear to be out of proportion to the type of injuries she has sustained and the objective clinical findings.

I decided that there was a possibility that Ms. Thomas could have been in the process of developing Complex Regional Pain Syndrome Type 1 and wrote to Dr. Zaini suggesting that Ms. Thomas be referred to Dr. Peter Blombery, a recognised expert in the treatment of this condition." (my underlining)

35.Mr. Wearne’s examination did not reveal indicia or symptoms normally associated with CPRS and he said that a diagnosis of CPRS is more a possibility than a probability. In his report he said, inter alia:

“A Complex Regional Pain Syndrome Type 1 is a condition, which will sometimes arise following, an injury to a limb and is notorious for the severity and chronicity of symptoms, which include continuing pain, extreme sensitivity of the skin in the area of the injury, changes in colour, temperature and texture of the surrounding skin and excessive sweating. My examination of Ms Thomas did not demonstrate most of these clinical signs and I stress the diagnosis is more of a possibility than a

probability." [21] (my underlining)

[21] PCB 59

36.The plaintiff relies heavily on the evidence from Mr. Blombery. He has provided a number of medical reports and as at the time of hearing he had seen the plaintiff on 9 occasions. He first saw the plaintiff on 18 July 2003 about 8 months after the accident. On examination Dr. Blombery found two tender spots on the dorsum of the right foot. “There was only a slight reduction in the range of movement of the ankle, which was a little surprising and there was no difference in temperature or colour between the two feet.”[22] His initial opinion was that “it was quite evident that she had a component of complex regional pain syndrome, type 1 present or as it used to be known, reflex sympathetic dystrophy. She had also become quite depressed and this was tending to enhance her experience of pain”. In his report Dr. Blombery did not identify the “component of complex regional pain syndrome, type 1” he found to be present.

[22] PCB 45 23 PCB 46

37.Dr. Blombery reviewed the plaintiff in August and November of 2003 and in January 2004 and May, August and December of 2005 (at which stage he said “her right foot remained unchanged”) before writing his first detailed report dated 9 February 2006.

38.Dr. Blombery’s final opinion in February 2006 was “when I last saw her she(sic) had ongoing features of complex regional pain syndrome type 1”. He went on to say then:

“Her management would essentially be that of a patient with a chronic pain syndrome using multidisciplinary therapy, including the use of analgesic, antidepressant and anticonvulsant drugs, physiotherapy, behavioural therapy, occupational therapy, as well as other techniques such as TENS and acupuncture. These may best be provided in the setting of a pain management clinic.”23

39.Pausing at this point, where Dr. Blombery has said that the plaintiff had “a component” or “features” of CPRS and had not himself found either the component or features on his examination of the plaintiff, I have concluded that in giving his opinion he accepted in whole each of the complaints made to him by the plaintiff even though objectively and after physical examination no proper physical basis for the complaints could be found. Further, having regard to the management which he prescribed for her condition included, antidepressant and anticonvulsant drugs and behavioural therapy, occupational therapy I have concluded that Dr. Blombery must have regarded a large part of the plaintiff’s complaints of pain and on going impairment to be psychiatrically or psychologically based.

40.According to his further report dated 6 August 2007, Mr. Blombery saw the plaintiff on 8 May 2006. He did not see her again until 24 May 2007 when he saw her at the request of the plaintiff’s solicitors.[24] It was not a medical appointment but a medico legal appointment. Over one year had elapsed without treatment from Dr. Blombery.

[24] PCB 48 25 PCB 49 26 PCB 152

41.When he saw her in May 2007 on examination both feet were the same temperature and the right foot was paler than the left. The plaintiff was found to be tender over the lateral side of the proximal foot distal to the lateral malleolus and also the anterior aspect of the upper talus. There was a subjective difference in sensation over the entire foot from the ankle distally. There was a reasonable range of movement of the ankle on the right side although there was a slight reduction in dorsiflexion. In this report Dr. Blombery repeated that the plaintiff “has ongoing features of complex regional pain syndrome type 1 as a complication of the injury that she sustained on 18 November 2002”. He went on to again recommend the same management regime that I have referred to above.25

42.Dr. Blombery next saw the plaintiff on 9th April 2009. A further period of two years had elapsed without treatment. Again this was at the request of her solicitors. In his report of 9 July 200926 Dr. Blombery says, inter alia:

“She had ongoing sharp stabbing pains in the toes of the right foot. There was also pain in the ankle together with pins and needles which fluctuated from day to day. He right foot became hot and cold and changed colour. There was still swelling in the foot as well as numbness and tingling. The foot tended to wake her with throbbing as well as a freezing sensation”.

43.Although the paragraph set out above in terms reads as if Dr. Blombery observed these features in the plaintiff, it is clear to me that he has merely recorded what the client’s complaints were at that time. He did not for example note any swelling on examination[27]. The report indicates that on examination:

[27] Transcript page 93

“She was tender over the lateral aspect of the right ankle and over the dorsum of the proximal foot but not over the medial side. She was also tender over the distal calf. Both feet were of the same temperature and colour but the right big toe was paler than the left one. There was no wasting of the calf and there was a full range of inversion and eversion of the foot. There was 20 degrees flexion of the ankle and 10 degrees extension of the ankle.”[28]

[28] PCB 152-3

44.It should be noted that notwithstanding that this examination occurred some nearly seven years after the accident there was no finding by Dr. Blombery of wasting of the calf. None of his reports evidence any finding of wasting of the right lower leg or ankle area. Given the period of time that has elapsed since the accident this suggests normal use of the right lower leg. Dr. Blombery opined that the plaintiff has “ongoing features of complex regional pain syndrome type 1” adding “she gave a good history of this and this is all that is required in terms of making a diagnosis of complex regional pain syndrome type 1”.

45.Dr. Blombery was cross examined by Mr. Middleton. He agreed that a diagnosis of CPRS was a differential diagnosis for particular forms of pain not injury. He agreed that the diagnosis is one made where there is pain out of proportion to the original injury and for which there can be no other explanation[29]. He agreed that here the initial physical injury was a sprained right ankle which in normal circumstances ought to have fully resolved within 3 months of occurrence[30].

[29] Transcript page 70

[30] Transcript page 71.

46.Dr. Blombery listed some clinical features or symptoms each of which he said must be present for a diagnosis of CPRS to be made of a patient by a medical practitioner[31]. The first was the presence of swelling. He had not observed this in the plaintiff. The second clinical feature was local skin or colour change particularly red, blue, purple and pale. As his reports above note he had noticed pale features in the plaintiff’s right foot when he examined her May 2007 and in the right big toe in April 2009. That is all. The third clinical feature was local temperature changes. This feature was not present on all occasions when Dr. Blombery examined the plaintiff. The fourth feature was smooth or shiny skin sometimes associated with hair growth in the affected limb which may occur occasionally. This had not been seen by Dr. Blombery in the plaintiff. The fifth feature was wasting. Here, there was no wasting found indicating that there was no marked reduction in the use of the limb[32].

[31] Transcript page 98.

47.Dr. Blombery agreed that he was dependent on what the plaintiff told him but added:

If other doctors report no clinical examination of observations of change in colour, temperature, if that's a consistent pattern amongst them, that undermines the diagnosis, does it?---I wouldn't say it undermines it, but I guess if you had every doctor who saw her never saw anything at all, and let's say if there were numerous reports, one would start to wonder a bit.

clinical examination of those criteria that we've been through?---Yes.

So the assistance you gain from other medical examinations is in the observations at that situation if they're always absent.[33]

48.In this case none of the doctors who have examined the plaintiff has observed all of the clinical features or symptoms identified by Dr. Blombery as necessary for the diagnosis of CPRS present at the one time. Mr. Critchley who saw the plaintiff on three occasions in 2003 noted that the plaintiff’s right foot was cold and dry compared to the left. Mr. Blombery has seen the plaintiff on 9 occasions over more than six years. In that time the only features or symptoms he has observed are that on one examination he thought the plaintiff’s right foot was paler in colour than the left and on the occasion of another examination the big toe on the plaintiff’s right foot he thought was paler than that on the right.

49.Dr. Blombery was asked about the fact that in September 2004 the Plaintiff ceased work because she refused to transfer to another vineyard owned by the defendant. At that time she had increased her weekly work load of modified duties to 40 hours per week. He said that the diagnosis of CPRS did not prevent her working completely.[34] He added that she could do similar work now to what she was then doing:

How do you explain an ability to do that four months on about 40 hours a week? -- She was medicated and she was obviously having some rests and things during the day. It doesn't sort of mean that she doesn't have a complex regional pain syndrome type 1. It's all quite consistent with the diagnosis.

circumstances, does it?---No, it doesn't.

In fact that's a good indicator that she could do a job, isn't it?---I mean, I would have

expected she could do a similar job now to what she could then.

Yes, there is no reason to think today that she couldn't do what she was doing in

May of 04 to September 04?---No, within the limits of how she was doing it.

Nor does it mean that she couldn't do a job 40 hours a week in the same improvement?---Yes, some slow improvement.[35]

[35] Transcript page 84

50.Mr. Stanley O’Loughlin orthopaedic surgeon saw the plaintiff for medico legal purposes at the request of the plaintiff’s solicitors on one occasion on 11 May 2007. His examination revealed the plaintiff walked normally without any obvious limp. There was no obvious swelling or discolouration of the right ankle compared to the left. There was no wasting of the calf. There was no temperature difference comparing one foot and ankle to the other. There were subjective sensory changes in a glove and stocking fashion below the level of the right ankle involving the whole of the right foot.

51.Mr. O’Loughlin opined, inter alia:

"In my opinion, Ms Thomas has sustained a soft tissue injury to her right ankle involving structures of the lateral side of the ankle, namely the lateral collateral ligament and possibly damage to the peroneal tendons. She is quite tender in this region and has some degree of laxity of the lateral ligament complex of her ankle. She has developed a complex regional pain syndrome. This is not in the florid state at the moment as there are no obvious temperature changes or swelling, but there does appear to be some sensory alteration in the right foot. This injury has affected Ms Thomas significantly in that it has resulted in her being depressed, she has gained weight and she appears to be dependent on a lot of strong medication (eight panadeine forte tablets per day)”[36]

[32] Transcript page 77. [33] Transcript page 79 [34] Transcript page 83 [36] PCB88

52.Mr. Charles Flanc reporting in August 2006, described the injury under the heading

Summary,

"The mechanism of injury was consistent with a tear of the lateral ligament, but the scans do not show the extent of the disruption of the ligament. A major disruption of the ligament can result in an instability of the ankle, causing falls. There is not enough evidence to make a diagnosis of a complete tear of the lateral ligament."

(iii) - "Chronic pain. She is suffering from pain which is more severe than one would expect from these injuries alone and is appropriate to consider her having a chronic pain syndrome."

"The subtype, known as reflex sympathetic dystrophy, now known as complex regional pain syndrome type 1, is probably present, but to a relatively minor extent."

53.Dr. David McIntosh saw the plaintiff at the request of the defendant’s insurers on 8

August 2003. He opined:

"She sustained a significant ligamentous injury to her right ankle with a subsequent occurrence of complex regional pain syndrome." "Mrs Thomas gives a clear history of a significant inversion injury to her right ankle and a history very suggestive of the development of complex regional pain syndrome or reflex sympathetic dystrophy." He then noted the only positive sign was the restriction of dorsiflexion of her right ankle. "It is likely that her condition will improve considerably over the next six months, but she will probably have some residual limitation of dorsiflexion and therefore some continuing impairment." [38]

[38] DCB182-3

54.Mr. Shannon saw the plaintiff for medico legal purposes at the request of the defendant’s solicitors on one occasion only on 17 August 2009.[39] Mr. Shannon set out his opinion, inter alia as:

[39] DCB 392.

"an inversion injury to her ankle resulting in a strain to the lateral ligament complex". "It was academic because the significant problem that she developed was complex regional pain syndrome secondary to the ankle strain. Fortunately, this condition has now substantially resolved and I do not believe that she has significant ongoing evidence of CRPS." "She has some limitation of ankle movement and subtalar joint movement. There is no colour or temperature change, nor is there any muscle wasting. She does have some local tenderness over the lateral aspect of the joint, but not the hypoesthesia which is typical of CRPS."

55.That is the extent of the medical evidence related to the plaintiff’s claim of physical injury. There are in addition reports from psychiatrists to the effect that the plaintiff suffers from post traumatic stress disorder secondary and separate from the injury to the right ankle.[40] Dr. Carol Newlands psychiatrist saw the plaintiff at the request of her solicitors on 18 June 2008.[41] Dr. Newlands had the various medical reports then available including those from Dr. Blombery. Dr. Newlands noted, inter alia:

[40] Dr. Carol Newlands PCB 96-105 Dr. Stephen Stern DCB 184.1

[41] PCB 96

“She described somatic complaints including diarrhoea and vomiting which might occur if she hurt her foot, for example when she feel over. She stated that she did this a lot. If there were a thunderstorm her foot seemed to ache, and at times would get hot or cold and change colour.[42]”

[42] PCB 102 paragraph 34

56.

Dr. Newlands went on to opine at paragraph 41 of her report: depressed mood. This is evidenced by her change in social activities, her altered mood state, poor energy and motivation and altered grooming. She remains frustrated at her limitations and at times experiences somatic symptoms especially if, for example, she further hurt her foot. Her adjustment disorder is secondary to her underlying physical condition.”

57.The plaintiff was also seen by Dr. Stephen Stern psychiatrist at the request of the defendant’s solicitors on 4 August 2009. It was his opinion that the plaintiff was suffering from a chronic adjustment disorder with depressed mood[43].

58.Prior to the accident the plaintiff had a good work history. Her work involved often hard physical work. In addition she had always led an active sporting life. Not only has the plaintiff deposed to these matters and given sworn evidence and been cross examined but she has been supported by the affidavit evidence of her partner and mother. In cross examination it was put to her that when seeing the various doctors she had exaggerated her symptoms. She denied the allegation emphatically. Her evidence was:

What do you say to the proposition that you are exaggerating your symptoms? ---I'm not. Why would I take the medication that I take? Why would my foot look the way that it looks? Like, why would I have to see the doctors that I see? Like, I've worked my whole entire life and all of a sudden I decide not to work? There's no way.

Can I say to you that with maybe one or perhaps two exceptions, no doctor records temperature change; no doctor records colour change; no doctor records any mottly appearance to the affected site; no doctor records any wasting; no doctor records any swelling and all they have, I think bar Mr Critchley in the first instance, is a report by you of all these symptoms. What do you say to that? ---That's a lie, because there's reports in there. McIntosh has stated there is bone damage, he has stated ligament damage. Blombery has stated colouring in the toes. Blombery has also stated temperature colour. Critchley has also stated different things too. Like, they've all said different things and they've all said the same stuff.[44]

59.In September 2004 the plaintiff was asked to relocate to another winery owned by the defendant. This would have involved a further 18 kilometres of travel each way over and above the 15 odd kilometres already travelled by the plaintiff. She refused to relocate and was made redundant in those circumstances. She said that she refused to relocate because of the difficulty with the extra driving she would be doing having regard to the level and type of medication she was taking.[45] In my judgment on the evidence it is clear that the plaintiff ceased her work with the defendant not because of any injury sustained by her in the accident but because she did not wish to relocate.

[43] DCB 184.1 at 184.5 [44] Transcript page 30 [45] Transcript pages 37-38

60.By the time that the plaintiff left her employment with the defendant she had in fact been back at work albeit on modified duties for just over 4 months. By September she was working 40 hours per week still on modified duties. As I have set out above, the plaintiff did not cease work because of her claimed injuries but because she refused to relocate her place of work having been afforded the opportunity by the defendant. It was put to her that had she been allowed to continue working in the same vineyard on modified duties she would have continued working. She said that she did not know if this would have been the case adding she was not sure her medication would have allowed her to do so.[46]

61.In evidence it became apparent that the plaintiff’s efforts to find employment were at a very low level. She had been asking people she has been dealing with in places like shops and service stations whether there are any jobs available. She agreed she had made no application for a job.[47] She said that she made inquiries through Mission Australia “three or four years ago”[48]. She said that she had responded to advertisements for jobs offered in Shepparton (17 kilometres from her home) and Mooroopna (15 kilometres from her home). Those jobs included library assistant, helping in an old people’s home and at Guide Dogs Australia. She was unable to describe her last application for employment but said it was three or four months ago.[49]

[46] Transcript page 40. [47] Transcript page 43. [48] Transcript page 44. [49] Transcript page 45

Conclusions

62.Mr. Young of counsel on behalf of the plaintiff submits that unless the plaintiff is disbelieved then she should succeed in her applications. In my judgment the issue cannot be so confined. The plaintiff was not an impressive witness. She seemed to me to be totally focused on her complaints and given to exaggeration. I do not suggest she was untruthful but she seemed obsessed with her situation and was given to overstating her symptoms.

63.Before the plaintiff can commence a proceeding claiming damages she must establish that she has sustained a serious injury[50]. The way these applications have been argued the plaintiff must prove on the balance of probabilities she has sustained a “serious injury” within section 134AB(37)(a) of the Act. The plaintiff must therefore satisfy the Court to the appropriate standard that the injury upon which the application is based, namely, a right ankle injury is now causing permanent serious impairment or loss of body function of the right lower leg and that the consequences that are causing the serious impairment or loss of body function are physically based and not caused by psychological or psychiatric consequences[51].

[50] Section 134AB(2)

[51] Mutual Cleaning & Maintenance Pty Ltd v. Stamboulakis (2007) 15 VR 649

64.Here, there is evidence of the plaintiff exhibiting very strange symptoms not consistent with a physical injury. Dr. Newlands described these as “somatic complaints”. The plaintiff gave direct evidence about them. At one point whilst she was showing me her foot in the witness box I left the bench and inspected her right lower leg and foot. Despite the plaintiff’s claim that there was a “blob” in her foot, I could not see it. I set out the plaintiff’s evidence of what have been described as somatic symptoms:

In what way does the weather affect it?---When it rains, it makes my foot swells and it goes red and it hurts and sometimes I just don't have the strength that I would normally have on good days. Then it can just give out for no apparent reason and the rain makes me dizzy and even if I try and have a shower, when I close my eyes, I get really dizzy in the shower as well.[52]

[52] Transcript pages 12-13 evidence of the plaintiff.

Whereabouts do you get the pain in the foot?---I get it right in the very centre, like in the middle of the joint and I get - all the pain comes up the back here, like you can actually see today that it's all bumpy and lumpy from outside because of the rain. It's sort of not - - -

Can we look at the left foot. What do you say about that? ---That's normal, but today, because of the rain, you can actually see there's a big blob there and you can actually feel all the grit in there, if you know what I mean, like the ligaments and all that at the back, and then my toes actually change colour. I don't know if you want to touch my feet. They're clean.[53]

[53] Transcript page 14 evidence of the plaintiff.

Are there any drugs you're taking for any other matters?---I take diarrhoea tablets, like, days like today when it rains because I get a lot of diarrhoea. I've taken Mylanta today as well because I've felt sick as well.[54]

[54] Transcript page 15 evidence of the plaintiff.

HIS HONOUR: Mrs Thomas, do you say that your right foot displays all of the symptoms that you complained about on days - particularly when it's raining?---It varies. Sometimes it's worse than others.

But from what you've observed, just the fact that it's raining will bring out these unfortunate symptoms?---Sometimes, not every time, but it does do it more than what it would do on say a normal day.

What about if it rains, for example, on a warm day in summer? ---I still get all that too. It's hard to explain, like, because it just changes so much. I don't know how to explain it to you. It's something like you can't just say, "Because it's going to rain, it's going to hurt." Sometimes it will, sometimes it won't.[55]

[55] Transcript page 33 evidence of the plaintiff.

Mr. Middleton: Does that mean you don't get symptoms when it doesn't rain? ---No, I still get the symptoms when it doesn't rain. It's just that rain causes a few more extra symptoms.

Causes you to vomit?---Yes, and diarrhoea.
So every time it rains, do you vomit?---No.
How often would you vomit?---Sometimes I might vomit three times a month.
Sometimes it might be twice a week. Sometimes I mightn't for ages. It's just so
different. It just varies so many times.
How long has it been a feature that it causes you diarrhoea? ---ages.[56]

[56] Transcript pages 34-35 evidence of the plaintiff.

65.There is also clear evidence that the plaintiff presently suffers from an adjustment disorder with depressed mood[57].

[57] Reports of Dr. Carol Newlands PCB 96-105 and Dr. Stern DCB 184.1

66.I have considered all of the evidence in this case carefully. I am mindful that prior to the accident the plaintiff had lead an active life and had a good work history. I am also mindful of the affidavit evidence from her partner and mother above referred to.

67.However, there is no objective evidence from any of the medical practitioners of any of finding on examination (Dr. Blombery has seen her on 9 occasions as a treating practitioner) all of the indicia present and necessary for a proper diagnosis of CPRS. In particular the accident having occurred some 7 years ago now, there is still no evidence of wasting in the plaintiff’s right calf area suggesting normal use of the lower right leg.

68.Further, at the time the plaintiff ceased work because she declined relocation to another vineyard the plaintiff was then working forty hours per week on modified duties and had returned to work for four months. Dr. Blombery’s clear evidence in cross examination was that the plaintiff is now capable of performing the work she was performing at the time she was made redundant[58]. In my judgment that is inconsistent with the case now put by the plaintiff[59].

[58] Transcript page 83

[59] Sumbul v. Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292. Stijepic v. One Force Group Aust Pty

69.Mr. Young submits I should accept the evidence of Dr. Blombery and disbelieve Dr. Shannon. In my view the criticisms made of Dr. Shannon by Mr. Young were not justified in this case. Dr. Shannon was straight forward in his evidence and like the other medical practitioners he was unable to find on examination of the plaintiff any of the symptoms necessary for a diagnosis of CPRS. The only person who was prepared to make the diagnosis despite the lack of objective evidence in the form of observable symptoms was Dr. Blombery. I prefer the evidence of Dr. Shannon and act on it.

70.Dr. Blombery who was forced to concede that he had never once observed present in the plaintiff all of the necessary indicia or symptoms for a diagnosis of CPRS. Dr. Blombery I thought was uncomfortable and guarded when challenged and was overly defensive of his diagnosis which he was forced to concede was based on symptoms subjectively based and not objectively found. He became somewhat agitated in cross examination when the whole question of whether CPRS was a diagnosis of a physical injury or a psychological reaction to pain was raised. He did concede, properly in my view, that where no doctors who had been treating the plaintiff had observed the necessary features of CPRS in the plaintiff on clinical examination over a long period of time then one should be concerned about a diagnosis of CPRS if made in those circumstances. Acting on that part of Dr. Blombery’s evidence, I have my doubts as to whether a diagnosis of CPRS in this case can be properly attributable to physical consequences of any injury suffered by the plaintiff in the accident.

71.Here there is clear evidence of the plaintiff claiming a range of somatic symptoms or complaints which bear no relationship to the physical injury claimed. There is also evidence of the plaintiff presently suffering from an adjustment disorder with depression. This is not a case where, on a consideration of all of the evidence, I can conclude the probabilities are that the plaintiff has suffered from a physically based injury with the consequence of impairment which satisfies the statutory test even though identification of the precise quantum of a supervening psychological overlay has not been attempted or which in the real world is impossible60. There has been no attempt here to disentangle the psychological consequences from the physical consequences of the injury alleged. The presence of the somatic symptoms, the nature of them and the fact that for a long period of time there has been very little objective evidence of the presence in the plaintiff of symptoms sufficient to properly make a diagnosis of CPRS leads me to conclude that the plaintiff has not satisfied me on the balance of probabilities that she suffered from a “serious injury” as a consequence of the occurrence of the accident within section 134AB(37)(a) of the Act.

72.The plaintiff not having established that she suffered a serious injury her applications for leave to commence a proceeding claiming damages for pain and suffering and loss of earning capacity are dismissed.

73.The formal order of the Court will be the Originating Motion dated 17 March 2009 is dismissed.

Ltd [2009] VSCA 181 at paragraph 47

60 Jayatilake v. Toyota Motor Corporation [2008] VSCA 167 per Ashley JA at paragraph 19

37 DCB175