Thomson v Crown Melbourne Limited
[2010] VCC 1733
•23 November 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-03495
| JUNELLE THOMSON | Plaintiff |
| v | |
| CROWN MELBOURNE LIMITED | Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9 and 10 November 2010 |
| DATE OF JUDGMENT: | 23 November 2010 |
| CASE MAY BE CITED AS: | Thomson v Crown Melbourne Limited |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1733 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – whether the plaintiff suffered a compensable injury – whether the consequences of the compensable were at least very considerable: section 134AB(38)(c).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms B Knoester | Zaparas Lawyers |
| For the Defendant | Mr P Kozicki | Minter Ellison |
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed on 28 July 2009, by which the plaintiff applies for leave, pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of the course of her employment with the defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering.
3 Ms B Knoester of Counsel appeared for the plaintiff and Mr P Kozicki of Counsel appeared for the defendant.
4 The plaintiff submitted that she had suffered a serious permanent impairment or loss of the function of her neck.
5 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined; •
The plaintiff tendered her Court Book ("PCB"), pages 6-17 and 34-68: Exhibit A;
• The defendant tendered the following evidence:
ƒ The plaintiff’s e-mail to the defendant dated 1 April 2010: Exhibit 1; ƒ Film taken of the plaintiff on 4 November 2004: Exhibit 2; ƒ Film taken of the plaintiff on 2 and 17 March 2010: Exhibit 3; ƒ The defendant’s Court Book (“DCB”) pages 31-37; 56-71: Exhibit 4.
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in subsection (37)(c) of the Act which requires the plaintiff to prove that she has suffered a “serious impairment or loss of a body function”.
7 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 or in the course of her employment on or after 20 October 1999.[1]
(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”.[2]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities.
(d)
Subsection (38)(d) provides that the injury must have consequences in relation to pain and suffering which, when judged with other cases in the range of possible mental or behavioural disturbances or disorders, may fairly be described as being more than "serious to the extent of being severe".
(e)
Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(f)
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 “serious” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33.
8 I am required by section 134AE of the Act 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.
Background
9 The plaintiff was born on 6 February 1979. She is thirty-one years of age. She lives in a domestic partnership. She and her domestic partner have one child, who was born on 29 July 2009.
10 The plaintiff left school after completing Year 11. Thereafter, she pursued employment of various kinds before commencing employment with the defendant in early 2003 as a member of front-of-house staff.
The Plaintiff’s Injury
11 One of the tasks which the plaintiff was required to perform was the use of a telephone. She said she cradled the phone between the top of her left shoulder and her left ear by hunching her left shoulder and twisting her neck to the left to push and hold the telephone between the top of her left shoulder and left ear.
12 The plaintiff used the telephone in the manner described in order to look at a computer screen, and to operate the computer mouse and keyboard, which understandably involved the use of one or both of her hands.
13 In about May 2004, the plaintiff said that she became aware of pain in the left side of her neck extending into her shoulder. The pain extended further and became a shooting pain down the outside of her left arm and into her left little finger.
14 The plaintiff saw Dr Navani, general practitioner, in June 2004. He initially referred her to have physiotherapy, which she had once or twice a week. She found it was unhelpful. She was later sent for x-rays. At about this time, the plaintiff was put on light duties by the defendant. She began to experience frequent headaches and nausea, which led her to stop work for about one week in September 2004.
15 Dr Navani referred the plaintiff to have an MRI scan, which was taken on 17 September 2004. The radiologist concluded that it demonstrated a left paracentral disc bulge/protrusion and osteophyte complex at C5-6, possibly impinging the left C6 nerve root.[3]
[3] PCB 52
16 Dr Navani referred the plaintiff to Mr O’Brien, neurosurgeon.[4] The plaintiff saw him in late 2004. The plaintiff said that Mr O’Brien discussed surgery with her; however, a decision was made that she was not a surgical candidate.
[4] No report was obtained from Mr O’Brien
17 After the plaintiff had one week off in September 2004, she returned to work 4 hours a day, three days a week in the reservations area using a headset to make telephone calls. She gradually increased her hours to the point where she returned to full-time duties in January 2005 for one week. She subsequently reduced her hours to 6 hours per day, five days per week. By March 2005, she returned to full-time duties in reservations and at the front desk.
18 The plaintiff continued seeing Dr Navani. He prescribed her Tramal, slow- release, for pain relief. She was also seeing a physiotherapist. She continued to find the physiotherapy unhelpful. In about the middle of 2005, she stopped physiotherapy altogether because it was aggravating the condition of her neck.
19 The plaintiff also saw Dr Chan, general practitioner, for acupuncture treatment. It provided her with some improvement. Dr Chan moved from the surgery where he provided the plaintiff with treatment in late 2007, after which the plaintiff stopped seeing him. In about July 2008, the plaintiff had myotherapy treatment, which she continues to have.
20 The plaintiff fell pregnant, which led to her ceasing her use of Tramal and Anaprox. Anaprox is an anti-inflammatory used for pain relief. Dr Navani advised the plaintiff to cease using medication while she was pregnant and to use Panadol instead.
21 Following the successful delivery of her child on 29 July 2009, the plaintiff took maternity leave. She returned to work in May 2010, working Tuesdays and Wednesdays in hotel sales from 8:30 am to 5:30 pm.
22 The plaintiff experienced what Dr Navani described as persistent and quite severe exacerbations of the symptoms of pain in her neck. He referred her to Mr D’Urso, neurosurgeon, for a second opinion.[5]
[5] PCB 42
23 Mr D’Urso first saw the plaintiff on 1 September 2008. He was of the opinion that the majority of the plaintiff’s disability related to a cervical spine injury. He was provided with the MRI scan, but recommended that the plaintiff undergo a CT and MRI scan.[6]
[6] PCB 49
24 It is not clear whether Mr D’Urso saw the plaintiff again, but in a report dated 21 October 2008, he referred to an MRI scan taken on 13 September 2008 which he considered was similar in what it demonstrated to the previous MRI scan. He was of the opinion that the MRI scans demonstrated a persistent disc prolapse at C5-6 causing mild impingement of the left C6 nerve root.
25 Furthermore, Mr D’Urso was of the opinion that the plaintiff’s prognosis was guarded, that she was chronically symptomatic in the cervical spine, and that she had a persisting disc prolapse and degenerative changes at C5-6 causing left C6 nerve root compression. Further, he was of the opinion that she was suffering from a chronic incapacity, but was not incapacitated for her former work which she performed with the defendant.[7]
[7] PCB 51
26 At present the plaintiff continues to see Dr Navani for treatment. She continues to be in receipt of prescribed painkilling and anti-inflammatory medication which she uses frequently. She continues to have myotherapy treatment, and relies on self-help treatment.
The Medical Evidence
27 The plaintiff has been examined by a number of medical specialists on a medico-legal basis. On my reading of their opinions, there is very little controversy regarding the diagnosis of the plaintiff’s injury and its relationship with the work which the plaintiff says was a cause of her injury.
28 The preponderance of the medical evidence is that the plaintiff has suffered a disc prolapse at C5-6, an aggravation of the degenerative changes at that level and some nerve root impingement of the left C6 nerve root, which has improved and is now intermittent. The foregoing is the opinion of Mr D’Urso.
29 Mr Brownbill, neurosurgeon, examined the plaintiff on 14 January 2009 and was of a similar opinion,[8] as was Mr Jones, orthopaedic surgeon, who examined the plaintiff for the defendant on 4 November 2004;[9] Mr Battlay, general surgeon, who examined the plaintiff for the defendant on 5 December 2006, 4 March 2008 and 3 December 2009;[10] and Mr Davie, orthopaedic surgeon, who examined the plaintiff for the defendant on 25 February 2009.[11]
[8] PCB 56
[9] DCB 57
[10] DCB 60, 64 and 67
[11] DCB 69
30 There are some differences in the emphasis in the diagnoses made by Mr Battlay and Mr Davie when compared with that of the other medical practitioners; however, what is evident from their opinions is that whilst they do not share the opinion of the others that the plaintiff has suffered a disc prolapse, they are nonetheless satisfied that the plaintiff had a disc abnormality at C5-6 which had been aggravated by her work.
31 When Mr Battlay last saw the plaintiff he was of the opinion that the work relationship was “getting less”.[12] Mr Davie considered that “a fairly minor component” of the plaintiff’s symptoms were work-related.[13] However, neither denied that the work which the plaintiff was performing produced a compensable injury, and indeed, the whole body of medical evidence is to that same effect.
[12] DCB 67
[13] DCB 70
Causation
32 The defendant gave notice to the plaintiff to have Mr Hunt made available for cross-examination.
33 The purpose of the cross-examination was twofold: firstly, to establish that the way in which the plaintiff placed the telephone between her left shoulder and left ear could not produce a compensable injury; and secondly, it was the plaintiff’s gym work which was the cause of her neck injury.
34 Mr Hunt’s evidence was clear on both issues. In his report dated 12 October 2010, he was of the opinion that the plaintiff had suffered a compensable injury, and he made no comment on whether the plaintiff’s gym work, or indeed, any other activity was responsible for her neck injury.
35 Just prior to Mr Hunt being cross-examined, the plaintiff gave evidence of the weight work which she undertook at a gym. The plaintiff said that she lifted dumbbells weighing 5, 6 or 7 kilograms above head level and lifted weights on a bench press of about 40 kilograms. She also used other gym apparatus as part of her gym routine. She denied being a bodybuilder, but rather someone who did gym work for body toning.[14]
[14] Transcript 26-28
36 Whilst Mr Hunt did not exclude the possibility of gym work causing or contributing to a neck injury, he described the biomechanics of the neck, and in particular, the impact upon the plaintiff’s neck of the way she held a telephone between her left shoulder and her left ear:
“It's a matter of biomechanics and biomechanics is a very complicated area and it's not - it's not a commonsense situation in Ms Thomson's situation whether or not the weight lifting or whether or not the position of her head may have caused her symptoms. The reason I say that is I do have some basic understanding of biomechanics, but the cervical spine is extremely complicated when it comes to biomechanical [indistinct], and to hold one's neck to the side for an extended period while cradling a telephone in my view is quite an abnormal posture and could put an asymmetric force on a disc. It could cause closing of the aperture where the disc - where the nerve roots comes out from the nerve root frame at that level. When one is using weights normally one's neck posture is neutral, looking forward, whether the arms are up above or below the head, and I would say that on the basis of her presentation with radicular pain that it's likely that her head being tilted to the side for long periods of time has caused an aggravation of a process that may have already been occurring in her neck, which was degeneration of that motion segment at C5-6, and it seems to me that the probability is that if she spent - spent a long time with her head in that position that the radicular pain that she experiences from irritation of a nerve that has occurred as a result of the abnormal neck posture rather than loading of the neck itself with weights - the neck is actually made, it's designed to withstand compressive load and move, but in my view it was the tilting of her head into an abnormal posture which has brought on her symptoms.”[15]
[15] Transcript 36
37 Mr Hunt referred to his clinical experience in which he has actually seen patients who have suffered postural problems from using a telephone but very few with neck problems caused by weightlifting.[16] His clinical experience reinforced his opinion on causation in the plaintiff’s case.
[16] Transcript 46-47
38 Furthermore, Mr Hunt, when asked whether the probabilities suggested that 5 days a week of weight training was the probable cause of the plaintiff’s neck injury as opposed to the use of the telephone, he said:
“I've already said to you before and I'll say it again, the position and posture of her neck in a lateral flexed position is likely to contribute to the irritation of the nerve at C6, coming out at that level, C5-6 motion segment. In weight lifting the posture of the neck is in a neutral position and in my experience I have seen very few weight lifters who have had trouble with cervical disc prolapses. I have seen – I have seen a number of people in my practice who had issues with their neck from doing reception type work.”[17]
[17] Transcript 46-47
39 I thought Mr Hunt’s evidence regarding the cause of the plaintiff’s injury was particularly impressive. I have no hesitation in accepting it in whole.
40 Mr Kozicki submitted that I should not accept the opinions of the other examining medical practitioners regarding the cause of the plaintiff’s injury because they were not given a history of the extent of the plaintiff’s gym activities. I assume that Mr Kozicki meant that if they had been, their opinions might well have been different.
41 I do not accept that submission. All of the medical practitioners who examined the plaintiff are surgeons of the highest rank. They are bound to be assiduous in their eye for detail. I do not accept that their knowledge of the plaintiff’s gym activities did not permit them to understand what the plaintiff did recreationally, and therefore, they had knowledge of her attendance at a gym and were capable of further enquiries of the plaintiff about that if they considered it was of any significance.
42 In any event, the evidence of Mr Hunt has satisfied me that there was no other cause for the plaintiff’s neck injury except her work and the way in which she used the telephone at work.
43 Mr Kozicki put to the plaintiff that she was motivated to blame her work for the production of her neck injury when it was probable that it was caused by her gym work. The plaintiff emphatically denied that allegation. In that regard, I accept the plaintiff’s evidence that she enjoyed gym work, and had not suffered any musculo-skeletal problem when engaged in it, and certainly not one affecting her neck.
44 I am satisfied, on the plaintiff’s evidence, and that of the examining medical practitioners, that the plaintiff suffered a compensable injury to her neck as a result of the way in which she used the telephone at work.
Serious Injury
45 I find that the plaintiff suffered an injury to her neck consistent with the description of that injury which I have referred to in paragraph 28 above.
46 I find that the injury has resulted in the plaintiff suffering an impairment of the function of her neck, and I find that the impairment is permanent. The foregoing is entirely consistent with the plaintiff’s evidence and the medical evidence.
47 Mr Kozicki submitted that if I was satisfied that the plaintiff had proved her case, bringing me to consider whether the consequences met the statutory test, then there were a number of matters which militated against a finding that the consequences could meet the statutory test.
48 Mr Kozicki submitted that the plaintiff was able to work full-time up until the impending birth of her child, and if it were not for the plaintiff’s desire to be a mother, she would be capable of working full-time now. The plaintiff did not quarrel with that proposition save to qualify it by saying that the variable nature of her neck injury has and will continue to expose her to the prospect of absences from her work.
49 The second matter which Mr Kozicki referred to was the fact that all of the examining medical practitioners found a reasonable degree of movement in the plaintiff’s neck on formal examination. He submitted, therefore, that the plaintiff has pain, limitation of movement and the necessity to use painkilling medication which falls short of what is required to meet the statutory test.
50 Furthermore, Mr Kozicki put particular emphasis on the fact that the plaintiff’s capacity to work full-time is demonstrable evidence of her capacity to function at a reasonable level.
51 Whilst it is relevant to look at the plaintiff’s capacity for work in an application limited to pain and suffering, the fact that the plaintiff is capable of returning to work is not determinative of the issue of whether the pain and suffering consequences suffered by the plaintiff do or do not meet the statutory test.[18]
[18] Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 Ashley and Beach JJA at paragraphs 45-47
52 The plaintiff is a very young woman. She is thirty-one years of age. She now suffers persistent pain in her neck with intermittent pain radiating through her left shoulder into her left arm when she suffers flare-ups of worsening pain. She uses Tramal and Anaprox for pain relief. Indeed, she used it over the days she was at Court because of the extent to which she had to sit around waiting for her case to be called on.
53 The plaintiff suffers persistent pain in her neck, particularly on the left side, with a feeling of tiredness and pressure. She experiences episodes of sharp pain which can last hours. The sharp pain recedes when she is able to sleep, but it might still be there by the next morning. Rapid movements or prolonged bending of her neck can bring on sharp pain. The pain can come on for no particular reason.
54 When the plaintiff suffers the onset of worsening neck pain it can spread to the back of her head and into her left shoulder and left shoulder blade. She has intermittent pain in her left arm, occasionally going down into her left little finger. When the plaintiff suffers headaches, approximately twice a week, the headaches travel to the back of her head and forehead and can last for hours to the entire day.
55 The plaintiff has limited capacity to hold her neck in one position for too long. She has a tendency to walk slowly to avoid jarring her neck. She tries to avoid moving her neck too rapidly. She tends to turn her body rather than turning her neck. She suffers interference with her sleeping pattern. Her posture when sleeping is affected. She finds sleeping on her back more comfortable. Her neck is stiff in the mornings. A hot shower relieves the stiffness. Her use of a blow dryer to dry her hair and the way in which she puts on her clothing is affected by the injury to her neck.
56 The plaintiff’s capacity to undertake domestic chores such as cooking, vacuuming, mopping, cleaning, making beds, hanging clothes on the line and gardening has been affected. Her major recreational interest was attending a gym. She attended five days a week. She stopped going to the gym about three years ago. The plaintiff continued with her attendance at a gym following the occurrence of her injury; however, after doing a 40-minute workout she would pay for it the next day with flare-ups of pain.[19] Her social life attending clubs and bars, and dancing has essentially stopped.
[19] Transcript 66
57 The plaintiff’s capacity to mind and care for her child is also affected. She has relied on the assistance given to her by her parents when they have visited Melbourne from interstate. Her sexual activity with her partner has been affected. Her capacity to relax has been reduced.[20]
[20] PCB 12-13 and 16-17
58 Although the plaintiff conceded that she was able to work full-time before she went on maternity leave, she said that her attendance record was quite poor. On the occasions that she was unable to work, she felt quite bad and nauseous and resorted to using a neck brace to stabilise her neck.[21] Since returning to work following the end of her maternity leave, she has taken some days off work due to her neck injury.[22]
[21] Transcript 65
[22] Transcript 64
59 The plaintiff struck me as being a very straightforward young woman who gave a good account of herself. Although Mr Kozicki quite properly tested the plaintiff’s evidence, it occurred to me that no significant question of the plaintiff’s credit arose, and indeed, Mr Kozicki did not suggest otherwise in his address.
60 The films which I was shown do not alter my opinion regarding the credit of the plaintiff. Overall, they showed the plaintiff driving a car; walking to and from her car; placing her child in her car and removing her child from the car, and in her general movements. None of what I saw of her movements suggest to me that she has a greater level of capacity than she describes and what she described to the medical practitioners who have examined her.
61 I accept the evidence of the plaintiff based on her affidavits and in her oral evidence. I accept that she gave a good account of herself to the examining medical practitioners, and that their opinions are soundly based on a reasonable history of injury and incapacity, and are reliable and that I should accept them in whole.
62 I think that a neck injury which has a discal component and has caused radiating pain through the left shoulder and into the left arm and hand, which is now intermittent, is certainly a major problem for the plaintiff.
63 Furthermore, the plaintiff is reliant upon exercising caution regarding the movements which she can undertake because of the risk she runs suffering flare-ups. Most aspects of her daily life are affected. It cannot be underestimated that enduring pain of that kind daily; having one’s sleep interrupted; being unable to engage in simple domestic tasks, including working after a child, and effectively being robbed of the capacity to engage in a full social, domestic and recreational life at her age is a major problem for the plaintiff.
64 Additionally, the plaintiff is reliant upon the use of medication which, on any view, is significant in terms of the level of pain that it is prescribed to treat, and she has also relied on myotherapy in order to try to maintain her neck in a satisfactory condition to meet the demands of her daily life.
65 I do not accept the fact that the plaintiff is able to work Tuesday and Wednesday, or the fact that she may be able to work increased hours, derogate from the findings I have made. On any view, the work which the plaintiff is now performing, and indeed, the work the plaintiff performed prior to going on maternity leave, was very light work. It is the sort of work which someone with a neck injury has a greater chance of being unable to undertake than say light factory work.
66 The preponderance of the medical evidence supports the conclusion that the plaintiff has an actively symptomatic neck injury of a degree consistent with the nature of the complaints made by the plaintiff of its consequences to her.
67 I consider that the pain and suffering consequences suffered by the plaintiff meet the statutory test comfortably. I have reached that conclusion after having made the necessary comparison which I am called upon to make.
Conclusion
68 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB(16)(b) of the Act to recover damages for bodily injuries for pain and suffering arising out of her employment with the defendant.
69 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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