Tran Thi Minh v Dimmeys Stores Pty Ltd and VWA
[2010] VCC 121
•5 February 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES-COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-07-03845
| THI MINH TRAN | Plaintiff |
| v | |
| DIMMEYS STORES PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 20, 21 and 25 January 2010 |
| DATE OF JUDGMENT: | 5 February 2010 |
| CASE MAY BE CITED AS: | Tran Thi Minh v Dimmeys Stores Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0121 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.134AB(16)(b) serious injury application - general damages and pecuniary loss – Nature and extent of injuries – credit of plaintiff in issue - aggregation of injuries.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A M Malpas | BJT Legal Pty Ltd |
| For the Defendants | Mr N D Chamings | Minter Ellison Lawyers |
| HIS HONOUR: |
1 In this proceeding the plaintiff seeks leave to commence a proceeding seeking damages for the pain and suffering and the pecuniary loss consequences arising by reason of injuries allegedly sustained by her in the course of her employment with the first defendant.
2 In her proposed Statement of Claim in support of this application, the plaintiff alleges that throughout the course of her employment with the first defendant as a hairdresser, particularly on or about 27 August 2001, she was required to perform repetitive and physically stressful work which caused her to be seriously injured.
3 The injuries relied upon by the plaintiff under paragraphs (a) and (c) of the definition of “serious injury” within the provisions of s.134AB(37) of the Accident Compensation Act 1985 (as amended) (“the Act”) are as follows:
(i) aggravation of cervical disc degeneration; (ii) cervical spondylosis and disruption of the structures of the cervical spine; (iii) radiation of pain to the right shoulder and arms; (iv) bilateral carpal tunnel syndrome; (v) anxiety and depression; (vi) psychological reaction to injury; (vii) chronic pain syndrome.
4 The plaintiff relies on two affidavits sworn by her dated 18 April 2007 (“the first affidavit”) and 12 January 2010 (“the second affidavit”). In addition:
(i)
the plaintiff gave evidence in the course of the proceeding and was cross-examined;
(ii) the plaintiff tendered a number of medical reports;[1] and (iii)
viva voce evidence was adduced from Dr Trong Hieu Pham, the plaintiff’s treating psychiatrist.
[1] The plaintiff’s Exhibit A comprises the medical reports found from p.38 onwards of the Plaintiff’s Court Book (“PCB”) .
The Plaintiff’s Evidence
5 In her first affidavit the plaintiff deposes as follows:
• She was born on 19 October 1966. • She completed Years 10 and 11 at Richmond Girls’ High School after migrating to Australia on 23 April 1986. Notwithstanding this education, the plaintiff said that she had difficulty reading English fluently and that whilst she could both speak and understand English, she had difficulty understanding “complicated” English words. 6 The plaintiff qualified as a hairdresser in 1995 and commenced employment with the first defendant on 6 August 1998 as a hairdresser. She described herself as being good at her work and as being a loyal employee.
7 In the last few months of 2000 and early in 2001, the plaintiff described developing tingling in her right arm and hand. As a result of these symptoms she consulted her general practitioner, Dr Chau Le, and underwent nerve conduction studies on 15 February 2001. The plaintiff continued working as a hairdresser with the first defendant until 27 August 2001, when she described an incident in which:
“I suddenly had a worsening of my symptoms. I dropped the scissors and had no control over my right hand. I am naturally right-handed. I was in pain. The pain seemed to start from my neck. It affected the right side of my neck and went down from my shoulder into my right arm. I tried to continue to work that day but I could not do so.”
8 Following this incident the plaintiff was off work until 21 August 2001. She returned to work on restricted hours working restricted duties as a hairdresser. Notwithstanding these modifications to her work practices, the plaintiff described developing symptoms in her left arm, with the result that her duties were altered, such that she ceased cutting hair and commenced working as a sales assistant.[2]
[2] Following her return to employment with the defendant on 21 September 2001, the plaintiff’s hours of work as a hairdresser involved four hours a day, four days a week. Upon the change of her employment duties to those of a sales assistant, the plaintiff continued to work four hours a day, four days a week.
9 The plaintiff described the maintenance of her employment as being financially important to her. She described her sales work as not being easy for her and said that she often found her duties difficult having regard to the symptoms from which she was suffering.
10 The plaintiff’s employment with the first defendant was terminated on 8 August 2003. There is no dispute that the plaintiff’s termination arose by reason of the first defendant’s mistaken belief that she had submitted false timesheets. The precise circumstances of the termination of the plaintiff’s employment with the first defendant were not referred to in detail in the plaintiff’s affidavit or in the course of her evidence. It is not contested however, that the allegation made by the first defendant against the plaintiff which resulted in her termination was subsequently found not to be justified.
11 Following the termination of her employment with the first defendant, the plaintiff was unemployed for some months. She subsequently obtained employment working in a café in Richmond, in which occupation she worked approximately fifteen hours per week. Subsequently, she applied for work as a part-time shop assistant with Voyager Distributing Company Pty Ltd which operates retail clothing outlets in Richmond and in the City. The plaintiff initially commenced employment with Voyager working on average twenty hours per week which was made up of five hours of work, four days per week.
12 At the time at which she deposed to her first affidavit, the plaintiff described her work at Voyager as requiring her to work to the absolute limit of her ability and capabilities. She said that every second day she had to increase her medication in order to cope with her duties and that, notwithstanding the fact that she would like to work more than twenty hours per week, she was unable to do so.
13 In treatment of her injuries the plaintiff deposed to the fact that she underwent a carpal tunnel release procedure which was undertaken on her right wrist on 17 May 2006 and a further similar procedure which was undertaken on her left wrist on 15 June 2006. Whilst she deposed that she believed that both of these operations had been successful, in her evidence the plaintiff qualified that statement by saying that following her surgery she continued to suffer from tingling and numbness on her right-hand side. Although it was put on behalf of the defendants that there was an inconsistency between these two statements, I interpret the plaintiff’s evidence on this issue to the effect that although the surgery upon her arms improved the condition in those limbs, it was not curative.
14 The plaintiff deposed that her symptoms affected her in the following ways:
• She slept badly and woke with pain on most nights; •
She suffered from tingling and numbness in her right shoulder and arm and from neck and shoulder pain;
•
She employed Digesic to control her symptoms, and although she sought to avoid using this medication because it upset her stomach, she was required to take two or three tablets every second day, particularly when she was working;
• She described difficulty in her intimate relationship with her husband. •
She said she had difficulty cooking, that her social activities were restricted and that her injuries prevented her from working on a full-time basis.
15 In her second affidavit the plaintiff described the effect of her injuries in the following terms:
•
She suffered from numbness and tingling on both sides of her body extending from her neck and shoulder down her arms and hands. This sensation was more often present on the right side and was exacerbated by cold weather.
•
She suffered from slight to moderate limitation of movement in her neck and from frequent episodes of pain in her neck which radiated into both shoulders and into her upper arms.
•
She described her symptoms as limiting her ability to cook. She said she was only able to perform light cooking tasks, preventing her from vacuuming or mopping, restricting cleaning duties to light dusting and as restricting her ability to undertake the task of purchasing groceries by reason of the fact that she was unable to carry heavy grocery bags.
•
She made use of Panadeine Forte at a dose rate of one tablet taken three to four times per day.
•
She had difficulty sleeping and was on occasions required to employ sleeping tablets to assist her to sleep.
•
She said that she had been referred to a psychiatrist for treatment of symptoms of depression in February 2005 and that she was subsequently referred for treatment to Dr Sandra Nguyen, a psychologist, who she continued to see once a fortnight. In addition, she attended her psychiatrist Dr Pham, every four to six weeks, who had prescribed Stilnox for her use.
•
She said that she was currently employed as a sales assistant at Ginger Tree. Upon commencing that employment she worked for nineteen hours per week. Her hours of work had subsequently been reduced to fifteen hours per week. The plaintiff said that as the only income earner in her house she would ideally wish to work more hours but that this was beyond her.
16 In the course of cross-examination:
•
The plaintiff maintained that she continued to suffer from numbness and tingling in her right hand.[3]
•
She described her wish to work full-time and the importance of her work as:
[3] Transcript (“T”) 8 – 11
“My life because of stay home and not work at all, you know and
all my life will be shut down.”[4]
[4] The plaintiff had a good relationship with her treating psychologist, Dr Sandra Nguyen. She accepted that she had told Dr Nguyen that upon commencing employment with Voyager she liked her job, that her employment gave her a sense of purpose and that it helped relieve her stress.
(sic)
•
She accepted that in December 2004 she told Dr Nguyen that she was distraught about the fact that her husband had been made redundant. Whilst it was put to the plaintiff that this was a significant source of distress for her, I interpreted the plaintiff’s evidence as being to the effect that the distress associated with her husband’s redundancy was significantly exacerbated by the fact that the plaintiff was restricted in her ability to earn income by reason of her incapacity to work on a full-time basis.[5]
•
The plaintiff said that she enjoyed her work but that in order to perform her work:
[5] T 35 – 36
“I need to use either taking medication or using the oil to help
manage the symptoms”.[6]
[6] T 39
•
The plaintiff described her activities at work as involving light duties. She was asked whether she could reach up with her arms and responded:
“It has to be light, you know, but a light object or something and I
just put it up and bring it down”.[7][7] T 41
•
The plaintiff said that she suffered from numbness in the fingers of both hands, and pain extending from her neck into both her arms, more particularly into her right arm.
17 A number of surveillance films were shown of the plaintiff. It is conceded by the first defendant that the films did not show the plaintiff to be engaged in any activity inconsistent with the plaintiff’s capacity as described in her evidence. The first defendant however, relied on the films as demonstrating that the plaintiff exhibited an apparent unrestricted range of movement in her neck, shoulders and arms, and that she appeared to enjoy her employment. Whilst I accept that this is an accurate description of the activities undertaken by the plaintiff as depicted by the film evidence, I note that the films provide only a glimpse of the plaintiff’s life and I do not consider the activities depicted in the films to be inconsistent with the plaintiff’s level of incapacity as described by her in her affidavits or in the course of her viva voce evidence.
The Medical Evidence
18 The medical evidence relied upon by the parties in this application is set out in the medical reports which have been tendered by them. Whilst I have considered each of the reports in their entirety, I do not intend to refer extensively to the content of those reports in these reasons for judgment, although it is appropriate to summarise briefly the opinions of the various practitioners who have expressed opinions as to the plaintiff’s symptoms and level of disability.
Medical Evidence Relevant to the Plaintiff’s Physical Disabilities
19 Mr Kenneth Brearley, in a report dated 17 February 2007, expressed the opinion that the plaintiff had developed bilateral carpal tunnel syndrome and neck pain, with pain radiating down to the arms and fingers secondary to an aggravation of significant degenerative disc changes in the plaintiff’s cervical spine. He said that these conditions had rendered her permanently unfit for labouring work or work involving heavy or repetitive use of her arms. Having regard to the absence on nerve conduction studies of any ongoing entrapment in the plaintiff’s arms, Mr Brearley expressed the opinion that the plaintiff’s continued complaint of bilateral symptoms emanated from nerve root pressure associated with the aggravation of degenerative changes in her cervical spine.
20 In a further report dated 17 August 2009, Mr Brearley expressed the opinion that there had been no significant improvement or change in the plaintiff’s condition, that her prognosis was not good given that her symptoms had been in place for some eight years, and accordingly, that it was not likely that there would be any change in the plaintiff’s condition in the foreseeable future.
21 Dr Gwen Tchen, an osteopath, in reports dated 4 October 2001 and 9 April 2003, expressed the opinion that the plaintiff’s symptoms were caused by the presence of:
(i) chronic degeneration of the cervical spine; (ii) bilateral carpal tunnel syndrome; (iii) muscular strain of the involved areas; all of which were caused by the plaintiff’s employment with the first defendant
as a hairdresser.22 In her report of 9 April 2003, Dr Tchen opined that the plaintiff was unfit for her pre-injury duties and, that whilst she may regain the capacity with retraining to undertake sedentary non-repetitive work and working at waist level on a full time basis, she described the plaintiff’s present capacity to work as being limited to working for sixteen hours per week performing duties which did not “re-aggravate her injuries”.
23 Mr J T Cummins, a neurosurgeon, in a report dated 29 April 2002, expressed the opinion that the plaintiff suffered from cervical spondylosis which was symptomatic and caused pain radiating to the right shoulder region and that the plaintiff’s forearm and right-hand pain was associated with the presence of mild right carpal tunnel syndrome.
24 Dr Adrian Hubert, an osteopath, expressed the opinion in a report dated 26 June 2006, that the plaintiff was suffering from symptoms associated with the presence of chronic degeneration of the cervical discs and bilateral carpal tunnel syndrome.
25 Mr Brendan O’Brien undertook carpal tunnel decompression procedures upon the plaintiff’s right arm in May 2006 and her left on 15 June 2006. In a report dated 26 June 2006, he stated that the plaintiff complained of the presence of tingling in the ulnar nerve distribution to the fingers of both hands. In a further report dated 1 August 2006, he noted that the plaintiff was presenting with stiffness and soreness in both hands.[8] He expressed the opinion that she had done “very well from her carpal tunnel decompression”.
[8] I consider this opinion to be consistent with the evidence given by the plaintiff as to the incomplete recovery which she made from this surgery to which I have earlier referred.
26 Dr Luu, the plaintiff’s treating general practitioner, in a report dated 6 July 2006, commented that the plaintiff presented with pain, numbness and pins and needles in her right upper arm radiating “up her right side of neck and down towards her hand”. He said that her condition did not improve and similar symptoms developed in her left arm, that the pain and numbness became constant, interfering with her sleep and her activities of daily living. He reported that the plaintiff became depressed and anxious following her retrenchment by the first defendant and that she was referred to a psychologist, Dr Sandra Nguyen. He diagnosed the plaintiff’s condition as involving bilateral carpal tunnel syndrome and reactive depression and anxiety. As at the date of his report, he was of the opinion that the plaintiff had no capacity for work having regard to her recent surgery.
27 In a report dated 17 August 2009, Dr G Antonis, an osteopath, expressed the opinion that the plaintiff was suffering from ongoing sequelae associated with her bilateral carpal tunnel syndrome and secondary muscle pain and spasm of the cervical and thoracic spine. He opined that the plaintiff’s condition had stabilised at its current level having regard to the presence of continuing symptoms for the past eight years.
28 Mr Geoffrey Klug, neurosurgeon, in a report dated 24 August 2007, opined that the plaintiff probably suffered from symptomatic cervical spondylosis and that the symptoms in her neck were consistent with changes noted in her MRI scan.[9] Whilst he expressed the opinion that the plaintiff’s prognosis was guarded, he was of the opinion the plaintiff’s symptoms would wax and wane indefinitely and that her condition should not prevent her continuing with her “current types of employment”. He was of the opinion however, that the plaintiff was incapacitated from employment as a hairdresser. Mr Klug accepted that the plaintiff had symptoms related to her hands and her neck, that these symptoms were “responsible for an incapacity in regard to the question of employment” and, that in view of the length of time during which the plaintiff had suffered these symptoms, it was likely that her impairments were permanent.
[9] Whilst Mr Klug questioned the relationship between the onset of these symptoms and the plaintiff’s work, there is a general acceptance of the causal relationship between the symptoms and the plaintiff’s work process in other of the medical reports relied upon by both parties and I am satisfied as to the existence of that relationship.
29 In a report dated 19 March 2009, Mr Klug opined that the plaintiff’s symptoms of a tingling sensation in both hands could possibly be related to her bilateral carpal tunnel syndrome as it was well recognised that even after technically successful surgery some minor symptoms could persist. He opined that the plaintiff was suffering from symptomatic cervical spondylosis and that this was responsible for the symptoms of which the plaintiff complained in her neck, and to some extent the right upper arm. He opined that it was possible that persisting symptoms related to the plaintiff’s neck condition could interfere with her ability to work as a hairdresser but that these symptoms would not prevent her from undertaking alternate types of employment, such as that in which she was currently engaged. He said that activities requiring the plaintiff to work with her hands above shoulder height, or to maintain her neck in a flexed position for extended periods of time, or those involving excessive physical activity such as repeated lifting with both upper arms, would be unsuitable for her. In this report, Mr Klug maintained his previous position that the plaintiff’s symptoms and impairments were likely to be permanent.
30 Dr Charles Castle, occupational physician, in a report dated 13 January 2006, expressed the opinion that the plaintiff’s “neck problems are an aggravation of her pre-existing condition. The work component of this has not resolved.”
31 In a further report, dated 24 January 2006, he opined that the plaintiff suffered from bilateral carpal tunnel syndrome which required surgical management, that the proposed surgery would be curative of her condition but that successful surgery did not occur in every case and success was directly proportional to delay in surgery.
32 Mr Stanley Schofield, orthopaedic surgeon, in a report dated November 2003, expressed the opinion that an aggravation of the plaintiff’s cervical disc degeneration was responsible for her neck symptoms but it was unlikely, on the evidence, to be causing her bilateral arm symptoms which were likely to be associated with the presence of mild carpal tunnel syndrome which condition was work-related. He expressed the opinion, however, that there was a functional component in the plaintiff’s presentation.
33 I am satisfied that the evidence establishes
•
that the symptoms of which the plaintiff complains in her arms and hands are caused by a combination of her successfully treated bilateral carpal tunnel syndrome, which is not completely resolved, and referred symptoms, particularly to the right arm, associated with the aggravation by her work duties of her previously asymptomatic cervical disc degeneration.
•
that the impairment from which the plaintiff suffers in her upper limbs and hands,[10] and most particularly her right arm, is responsible for the plaintiff being permanently precluded from working as a hairdresser and from working on a full-time basis since August 2001 and has been largely responsible for the pain, disability and symptoms complained of by the plaintiff in her two affidavits.
[10] In the circumstances of this application, I consider it appropriate to adopt the approach taken by His Honour Judge Anderson in Wright v Mount Edisar Pty Ltd [2006] VCC 401 and classify both arms as the one body function given the plaintiff’s occupation as a hairdresser.
Does the Plaintiff’s Application rely upon an inappropriate aggregation of her injuries?
34 Whilst it is submitted on behalf of the defendants that in assessing the impairment associated with the plaintiff’s injuries, it is impermissible to aggregate the effect of the symptoms resulting from the plaintiff’s bilateral carpal tunnel syndrome and those associated with her cervical injury insofar as both cause an impairment of the function of her arms, I do not accept that submission.
35 In this proceeding, the plaintiff asserts that her injury arose over a period of time by reason of inappropriate work practices employed by the first defendant which placed undue pressure upon her cervical spine and her hands. I am of the opinion that in these circumstances, whilst the plaintiff has suffered separate injuries, the injuries have arisen by reason of the one work process, and that in these circumstances, given that the injuries have independently resulted in an impairment in the function of the plaintiff’s upper limbs, it is appropriate to aggregate the effect of those impairments in considering the consequences of the plaintiff’s injuries upon her.[11]
[11] See To Ha Lu v Mediterranean Shoes Pty Ltd & Ors [2000] VSCA 65, per Chernov JA at paragraph 27.
36 In the circumstances, I am satisfied that in considering the physical effect of the plaintiff’s injuries, I should consider the consequences of her cervical injury insofar as it affects the function of her left and right arms and shoulders, together with the consequences of her bilateral carpal tunnel syndrome cumulatively, rather than considering the consequences of each injury separately.
Finding as to the credit of the plaintiff and her reliability as a witness
37 It is clear that whilst there is a range of opinion between the various medical practitioners as to the severity of the symptoms from which the plaintiff presently suffers, the general tenor of the evidence is that the plaintiff has suffered from mild carpal tunnel syndrome and an aggravation of a pre- existing asymptomatic degenerative condition in her cervical spine, the effects of which are sufficient to explain the presence of a level of ongoing symptoms. It is submitted by the defendants that in these circumstances any finding as to the consequences of the plaintiff’s injuries upon her must be heavily dependent upon the acceptance or otherwise of the plaintiff’s evidence as to those consequences.[12]
[12] In this regard, it is the defendant’s submission that the plaintiff is an unreliable witness and that she has chosen not to exercise her full working capacity at the present time for reasons not related to any
38 It is further submitted on behalf of the defendants that there is a discrepancy in a number of medical reports between the examination findings and the complaints which the plaintiff makes as to her levels of pain and capacity to work. It is further put that in expressing their opinions as to the plaintiff’s level of incapacity, many of the medical witnesses have accepted the plaintiff’s complaints at face value, and that closer scrutiny raises real issues as to whether the plaintiff has accurately described her level of symptoms and their effect upon her capacity to work
39 The question arises in these circumstances as to whether the plaintiff is a truthful and reliable historian and whether I should accept the evidence which she has given as to the level of her symptoms and their effect upon her day to day life and her ability to work.
40 It was submitted by the defendants that the plaintiff was a less than satisfactory witness who, in the course of her evidence, adopted a deliberate approach, the purpose of which was to bolster her case rather than to provide frank and truthful answers. I do not accept this submission. To the contrary, the plaintiff impressed me as being an accurate and a truthful witness whose credit was in no way impugned by the attack made upon her in cross- examination. I do not accept that the plaintiff adopted an approach which was deliberately evasive when answering questions. Whilst I accept that in giving her evidence the plaintiff had a tendency at times to stray from the topic, I consider that this was most likely a product of cultural difference rather than deliberate prevarication. I am satisfied that this is the case, having considered all the plaintiff’s evidence in cross-examination which, in my opinion, demonstrates the plaintiff to be a witness who was willing to make appropriate concessions and without prompting to give what appeared to be candid answers which were not necessarily helpful to her case.
41 Further, I consider that the way the plaintiff has conducted herself, both in her employment with the first defendant (both prior to the onset of her symptoms and between the date of the onset of her symptoms and her termination), and in her attitude to employment since her termination by the first defendant, speaks positively to her credit. In this regard, I consider it significantly to the plaintiff’s credit:
(i)
that throughout the course of her employment by the first defendant as a hairdresser she was regarded as a competent and loyal employee;[13]
(ii)
that notwithstanding the continued presence of her symptoms,[14] the plaintiff accepted alternative employment duties with the first defendant and continued to undertake those duties until she was inappropriately terminated by the first defendant. Further, I consider this behaviour by the plaintiff as being consistent with, and supportive of, her evidence that her employment was important to her;
(iii)
that the plaintiff’s employment history since her termination by the first defendant which has involved virtually continuous employment also reflects favourably upon the plaintiff’s credit and her desire to minimise the effect of her injuries upon her.[15]
[13] That plaintiff’s evidence on this issue was not the subject of any challenge.
[14] The plaintiff did not undergo her bilateral carpal tunnel procedures until 2006.
[15] This is particularly so having regard to the fact that during this period the plaintiff was suffering from a condition which required her to undergo bilateral carpal tunnel release procedures in 2006 and which involved symptoms of neck and arm pain as described by her in her affidavits (which were not the subject of real challenge).
42 Further, the plaintiff’s evidence as to the importance of her work and the positive effect it had upon her emotional state[16] was, in my opinion, an answer, the antithesis of one which might be expected from a witness who was not being candid, and was typical of the approach taken by the plaintiff to the giving of evidence in this proceeding.
[16] T 12
43 Finally, whilst the plaintiff was criticised for employing the use of an interpreter in the course of this proceeding, I consider that criticism to be unjustified. The response by the plaintiff to my question as to whether the services of an interpreter should be employed[17] reflected, in my opinion, the response of an honest person doing her best not to prevaricate or delay in the conduct of her litigation. Generally I did not consider the plaintiff’s demeanour whilst giving evidence to be in any way consistent with that of a witness who was seeking to hide behind the inappropriate use of an interpreter.
[17] T 14
Findings as to the Consequences of the Plaintiff’s Physical Injuries with respect to Pain and Suffering
44 Given the period of time during which the plaintiff’s physical symptoms have persisted, I am satisfied that they are permanent within the meaning of that term as employed in the Act. For the reasons I have previously set out, I accept the evidence given by the plaintiff as to the level of symptoms associated with her injuries and their effect upon her capacity to work. Further, the evidence satisfies me that the plaintiff has, since sustaining her injuries, consistently acted so as to attempt to minimise the effect of her injuries upon her life and lifestyle by exercising to the maximum her capacity to work, and that she is doing so at the present time.
45 I am satisfied that the symptoms suffered by the plaintiff in her upper limbs and hands and particularly her right arm, have been primarily responsible for:
•
exposing the plaintiff to the pain and disability described by her in her affidavits, the nature and extent of which was not the subject of real challenge in the course of this proceeding;
•
denying the plaintiff the ability to work in the occupation for which she was trained, namely that of hairdressing;[18]
•
imposing upon the plaintiff the very significant restriction of confining her on a permanent basis to working in part-time employment in circumstances in which it is the plaintiff’s desire and financial need to engage in full-time employment.[19]
[18] The evidence is unequivocal that these symptoms would preclude the plaintiff from full-time work or from working as a hairdresser.
[19] This consequence is not to be under estimated given the fact that the plaintiff is the main breadwinner within her family and her desire to provide her son access to a good education. Whilst I have not considered this consequence alone in arriving at my decision as to the seriousness of the consequences of the plaintiff’s physical injuries, I am of the opinion that in the plaintiff’s circumstances it would, by itself, be sufficient to justify the granting of the leave which is sought with respect to pain and suffering damages.
46 In these circumstances, I am satisfied that the physical consequences of the injuries suffered by the plaintiff are appropriately described as being more than significant or marked and as being at least very considerable, and that the plaintiff has established that she has suffered a serious injury by reason of the impairment in the function of her upper limbs and hands caused by the injuries suffered by her by reason of the duties she was required to undertake in the course of her employment with the first defendant.
Consequences of the Plaintiff’s Psychiatric Injury
47 The medical evidence relevant to the nature and extent of the plaintiff’s psychiatric injury may be summarised as follows.
•
Ms Sandra Nguyen expressed the opinion that the plaintiff suffered from depression, which has resulted in a decline in her mood, concentration, daily functioning and memory. In a report dated 29 June 2006, Ms Nguyen expressed the opinion that the plaintiff was “slowly working on the issues that influence her depression, as well as learning pain management strategies to cope with her shoulder, arm, wrist and neck pain”. In a further report dated 16 September 2009, Ms Nguyen expressed the opinion that the plaintiff was working very hard to overcome her depression, and that whilst she was making good progress, her anxiety and depression had been exacerbated by her upcoming court case. She commented that the plaintiff would benefit from ongoing psychological counselling to help her work through the issues that influenced her depression and to learn strategies to manage her pain.
•
Dr Hieu Pham, in a report dated 28 December 2009, expressed the opinion that the plaintiff had developed depression in the context of changing her career as the result of her workplace injury, and that her depressive symptoms were related to her chronic pain. In the course of his viva voce evidence, Dr Pham expressed the opinion that the plaintiff was unlikely to obtain significant benefit from further psychiatric treatment but that it was most likely that she would continue to benefit from psychological counselling.
48 The evidence to which I referred above represents the high point of the evidence available to the plaintiff as to the nature and extent of her psychiatric condition. I am of the opinion that this evidence, together with the evidence given by the plaintiff as to the level of her depressive symptoms and their effect upon her life, whilst establishing that the plaintiff suffers from a psychiatric condition of some consequence, does not establish that the plaintiff’s psychiatric condition is presently stabilized[20] or that it is appropriate to describe that condition as being “severe” or “permanent” within the meaning of those terms as they are used in the Act.
[20] Rather, the evidence indicates that the prospects exist for improvement in the plaintiff’s condition.
The Economic Consequences of the Plaintiff’s Injuries
49 In assessing the economic consequences of the plaintiff’s injury I am required to consider the economic loss consequences caused by the plaintiff’s physical impairment and the economic loss consequences caused by the plaintiff’s psychiatric impairment independently of each other.
50 The starting point of the analysis required by reason of the provisions of s.134AB(38)(f) is the calculation of the rate of income which most fairly reflects the plaintiff’s earning capacity in suitable employment during the three year period before and after her injury. Relevantly, this involves an analysis of the plaintiff’s income during the three years before and after 27 August 2001.
51 Although following her injury the plaintiff continued in employment with the first defendant initially as a hairdresser and subsequently as a shop assistant, having regard to the plaintiff’s qualification as a hairdresser and her employment by the first defendant in that capacity at the time which she sustained her injury, I am of the opinion that it is appropriate to employ the wage available to a hairdresser during the relevant period as the wage rate which should be applied in this analysis.
52 There is no suggestion that the plaintiff, but for her injuries, would have discontinued her employment as a hairdresser. In these circumstances, I am of the opinion that the wage rate applicable to a hairdresser at the conclusion of the relevant three-year period following the plaintiff’s injury, namely, 27 August 2004, is the figure which should be employed as being representative of the true measure of the plaintiff’s income earning capacity in suitable employment during the period fixed by the provisions of s.134AB(38)(f) of the
Act.
53 I have been provided by the plaintiff with award figures relevant to the employment of a hairdresser which reveal that as at 27 August 2004, the basic award wage for a hairdresser was $561.20. I consider it appropriate to employ this figure, namely $29,182.40 per annum, in calculating the plaintiff’s earning capacity in suitable employment but for the development of her incapacity.[21]
[21] I consider that it is likely that the use of this award represents a conservative figure, in that having regard to the increase in the plaintiff’s experience in the three years which elapsed between the date of her injury and the conclusion of the period under consideration, it is likely that the plaintiff would have been paid above the award rate. There is no evidence, however, that allows me to make a finding that this would have been the case on the balance of probabilities having regard to the particular circumstances which pertained to the plaintiff’s employment. For this reason I am satisfied that it is likely that the plaintiff would have received at least the award rate applicable to a hairdresser by reason of her employment by the defendant and that the use of the minimum figure prescribed by the award as at August 2004, namely, $561.20, is appropriate in undertaking the required calculation.
54 Fixing the level of income which is representative of the plaintiff’s current capacity to earn income in suitable employment requires me to make findings upon the following issues:
(i)
whether the plaintiff, who is currently working only fifteen hours per week, is exercising her full capacity to work;
(ii)
the effect, if any, upon the plaintiff’s employability, between, on the one hand, the impairment caused by the symptoms from which the plaintiff suffers to her arms and hands bilaterally,[22] and, on the other, the impairment associated with the plaintiff’s psychiatric injury.
[22] Which I have found to constitute the relevant physical impairment.
Findings as to the Current Working Capacity of the Plaintiff
55 For the reasons earlier set out, I accept the plaintiff’s evidence:
• that she is making a genuine attempt to minimise the effect of the accident upon her; • that she considers working and her ability to work, to be positively beneficial to her mental state. 56 For these reasons, I am satisfied that the plaintiff is exercising her present capacity to work fully and that this capacity is limited to working only fifteen hours per week.
The Effect of the Plaintiff’s Physical and Psychiatric Injuries Independently
Upon Her Capacity to Work and the permanence of that incapacity57 The evidence adduced on behalf of the plaintiff as to the responsibility for her incapacity to work, of her physical injuries on the one hand and her emotional injuries on the other, provides little assistance in identifying the independent effect of each of these conditions.
58 It was the plaintiff’s evidence that upon commencing her present employment with Voyager she worked for twenty hours per week.[23] There is no evidence as to the date upon which this change took place.
[23] Paragraph 42 of the plaintiff’s first affidavit. In the plaintiff’s second affidavit she deposed to the fact that upon commencing employment with Ginger Tree she worked for nineteen hours per week but that her hours had been reduced back to fifteen hours per week.
59 At page 62 of the transcript, the plaintiff gave the following evidence:
“Q: How many days – could you state your hours of work, and how
many days a week you work now? ---A: Three days a week, Thursday, Friday and Saturday and five hours
a day. So 15 hours a week.Q: Is that the most you can work? --- A:
Yes. I used to be able to do 20 hours but then my physical condition and psychological condition in the head. That’s why the doctor allow (sic) me to reduce it to three days a week.
Q: For how long did you do 20 hours? --- A: I don’t remember. Can you just check the documentation. Q: Did you do 20 hours at some time in 2004? --- A: Yes. Q: Approximately how long did you do that? --- A: Could be three years. Q: No. But how long did you do 20 hours? Did you work 20 hours a
week? ---A: About three years. I don’t remember the details so can you check
the documentation.”
60 Notwithstanding the requests made by the plaintiff that the documentation be checked, no further evidence was adduced as to the date upon which the plaintiff reduced her hours of working from twenty to fifteen hours per week or the reason for that change in the hours she worked. This evidence clearly establishes however, that the plaintiff considered that it was the combined effect of her physical and emotional injuries which was responsible for the reduction in her working hours.
61 The plaintiff’s present income, which is derived from fifteen hours of work per week, is $263.20. I am satisfied that this is truly representative of the plaintiff’s current earnings, and that it represents the plaintiff’s true capacity for work, having regard to the combined effects of her physical and emotional conditions.[24]
[24] In making this finding, I rely specifically on the plaintiff’s evidence to which I have referred at T 63.
62 It is clear that since being referred for psychological counselling by Ms Nguyen, the plaintiff has continued to consult Ms Nguyen. Dr Pham gave evidence that he first treated the plaintiff during the period between 18 February 2005 and 20 May 2005 and that thereafter the plaintiff re-presented to him on 1 April 2009 for the management of stress and depression in relation to the plaintiff’s physical injuries.
63 Although there is no specific evidence upon the issue, it would seem likely that the referral of the plaintiff to Dr Pham came about by reason of an increase in the symptoms of stress and depression which the plaintiff was experiencing.[25]
[25] Dr Pham notes that the plaintiff was referred to him on 1 April 2009 by Dr Lewis Luu for management of stress and depression in relation to her physical injuries sustained during her employment.
64 I have previously stated that I am satisfied that the plaintiff’s physical injuries have stabilized. I am further satisfied, on the basis of the medical evidence tendered by the parties, that the plaintiff’s physical injuries have been stabilised for some time. No attempt has been made on behalf of the plaintiff to provide any material which would allow me to identify the discrete effect which each of the plaintiff’s physical and emotional injuries is having upon her present capacity to earn income. I am satisfied however, that the plaintiff suffers predominantly from a physically-based incapacity which has been stable for some time. This being the case, I am satisfied that it was most probably a decompensation in the plaintiff’s psychological condition which led to the reduction in her working hours from twenty hours per week to fifteen hours per week.
65 In the circumstances, whilst I am satisfied that the plaintiff has established that the effect of the condition of her arms and hands has been such as to reduce her capacity to work from full-time to working twenty hours per week, I am not satisfied that the plaintiff has established that this condition is responsible for the reduction in her hours of work from twenty hours per week to fifteen hours per week, given the plaintiff’s evidence as to the relevance of her psychological condition in this regard.
66 Having regard to the evidence given by the plaintiff in her first affidavit, which was sworn on 18 April 2007, that at that time she was working twenty hours per week, it seems likely that the plaintiff’s gross income for the financial year ended 30 June 2008 in the sum of $20,103 was generated from working regular hours in that range.
67 In the circumstances, I am satisfied that the plaintiff’s present earning capacity in suitable employment, taking into account the effect of her physical injuries alone, is such that the plaintiff would earn a gross income of no less than the income generated by her during the 2008 financial year, namely $20,103. This income well exceeds 60 per cent of the income which I have found is representative of the plaintiff’s capacity in suitable employment but for her injuries as at 27 August 2004.[26]
[26] namely $29,182.40
68 In the circumstances, the plaintiff has failed to establish on the balance of probabilities that she has suffered a loss of earning capacity by reason of her physical injuries of a magnitude sufficient to entitle her to bring a proceeding at common law claiming damages for that loss.
69 I am not satisfied that the evidence establishes that the effect of the plaintiff’s emotional injury has been such as to occasion upon her a loss of earning capacity greater than or equal to that which has been occasioned by the consequences of her physical impairment. Nor am I satisfied that any incapacity associated with the plaintiff’s emotional injury is stabilized at its current level Rather, I am satisfied that the consequences of the plaintiff’s physical injuries have been such that they are primarily responsible for the loss of earning capacity from which the plaintiff now suffers.
Finding
70 I am satisfied that the plaintiff has made out her entitlement for leave to commence a proceeding claiming pain and suffering damages by reason of the impairment of the function her arms and hands caused by the injuries suffered by her in the course of her employment with the first defendant.
71 I am not satisfied that the plaintiff has established her entitlement to leave to commence a proceeding against the defendants seeking damages for the pecuniary loss consequences of those injuries.
72 I will make an order granting leave to the plaintiff to commence a proceeding claiming pain and suffering damages by reason of the consequences to her of the injuries to her arms and hands which she developed during the course of her employment with the first defendant.
73 I will hear the parties as to the precise terms of the orders sought and upon the issue of costs.
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disability or impairment associated with her injuries.
0