Tran v Mars Australia Pty Ltd
[2014] VCC 912
•24 June 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-04854
| THUY THI NGOC TRAN | Plaintiff |
| v | |
| MARS AUSTRALIA PTY LTD (ACN 008 454 313) | First Defendant |
| and | |
| MARS SUGAR AUSTRALIA PTY LTD (ACN 132 457 722) | Second Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6, 7 and 8 May 2014 | |
DATE OF JUDGMENT: | 24 June 2014 | |
CASE MAY BE CITED AS: | Tran v Mars Australia Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 912 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the neck
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Petkovski v Galletti [1994] 1 VR 436; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171
Judgment: Leave granted to the plaintiff to commence a proceeding at common law seeking damages for pain and suffering and economic loss as a result of her employment with the defendants in August 2007.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Clements SC with Mr S Jurica | Zaparas Lawyers |
| For the First Defendant | Mr N Murdoch QC | DLA Piper Australia |
| For the Second Defendant | Mr A Middleton | Lander & Rogers |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) for injury suffered by her and caused by one or both of two discrete injuries which occurred at work in August 2007, and/or cervical injury caused in the course of her employment with the defendants leading up to the discovery of disc prolapse in September 2009.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is injury to the neck. The plaintiff relied upon four affidavits. The plaintiff affirmed three affidavits of 27 May 2011, 29 April 2013 and 24 March 2014. The plaintiff’s husband, Doan Phyung Nguyen, affirmed an affidavit on 24 March 2014. The plaintiff and her husband were cross-examined. I have not summarised the evidence and affidavits of the plaintiff and her husband; however, I will refer to their relevant evidence in my reasoning. In addition, all parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant legal principles
6 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]Section 134AB(19)(a) of the Act
7 In order to succeed, the plaintiff must prove, on the balance of probabilities that:
(a)“the injury” suffered by her arose out of, or in the course of, or due to the nature of, her employment with the defendants;[2]
(b)“the injury”, with its resulting impairment, must be permanent, in the sense that it is likely to continue into the foreseeable future;[3]
(c)“the consequences” to the plaintiff of her impairment to the neck in relation to “pain and suffering” or “loss of earning capacity” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked, and as being at least very considerable”.[4]
[2]Section 134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
[3]Barwon Spinners (supra) at paragraph [33]
[4]Section 134AB(38)(b) and (c)
8 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden to establish:[5]
[5]Section 134AB(19)(b) and 38E of the Act
(a) that at the date of hearing, she had a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;[6]
[6]Section 134AB(38)(e)(i) of the Act
(b) that after the date of hearing, she will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more;[7] and
(c) that even with rehabilitation and retraining, she will still sustain a loss of 40 per cent or more.[8]
[7]Section 134AB(38)(e)(ii) of the Act
[8]Section 134AB(38)(a) of the Act
9 If the plaintiff satisfies the test laid down by the Act in relation to loss of earning capacity, then she is at large to make a claim for damages; that is, both pain and suffering and loss of earning capacity.[9]
[9]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at paragraph [63]
10 Consequently, the Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
11 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[10]
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[11]
[10][2009] VSCA 181
[11](supra) at paragraph [42]
12 The test for “serious”, as set out in paragraph (b) and (c) of s134AB(38) of the Act, is sometimes referred to as the “narrative test”.
13 In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard;[12]
(b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[13]
[12]Section 134AB(38)(j) of the Act
[13] See Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
The issues
14 Counsel for the first defendant informed the Court that causation was an issue. The cervical disc prolapse was not caused by the August 2007 incidents or over the course of her employment, but was caused by a process of degeneration which was of a congenital abnormality and is not work related.
15 In the event the Court determines that there is a causal connection, the first defendant would not argue forcefully that the cervical disc prolapse is not a serious injury.
16 Counsel for the second defendant indicated the first date of employment for the plaintiff with the second defendant is 1 October 2008. There being no specific incident with the second defendant, the claim is over the course of employment, which is not supported by the medical evidence.
17 Further, Counsel for the second defendant submitted that, if the Court determines there is a causal connection, there no serious injury.
Investigations
18 On 15 September 2009, a CT scan of the cervical spine concluded a large central disc protrusion at C3-4, causing severe central canal narrowing and cord compression.
19 On 13 November 2009, an MRI scan of the cervical spine concluded:
“The cervical canal demonstrates central canal stenosis at all levels, due to developmentally shortened pedicles.
C2/3 large disc protrusion causing myelomalacia or oedema at this level with possible subtle enhancement at this level. The high signal on T2 is related to the disc compression. There is also bilateral foraminal narrowing at this level greatest on the left side secondary to disc greater than osteophyte. This would affect bilateral C4 nerves.”
20 On 22 January 2011, an MRI scan of the cervical spine concluded:
“Disc osteophyte complexes as described with multi-level canal stenosis being most prominent at the C3/4 level. Comparison with any previous imaging is recommended in the first instance for any interim change.”
The Plaintiff’s medical reports
Dr Cong K Phan
21 Dr Phan, general practitioner at the Hallam Family Practice, provided five reports dated July 2010, May 2011, May 2012, April 2013 and February 2014. The plaintiff was also treated by other doctors within that practice.
22 Dr Phan said the plaintiff presented in late October 2007 complaining of left shoulder pain for a period of two months after a fall at work as she was trying to catch a falling box. She was referred for an ultrasound, which revealed bursitis in the left shoulder. She was treated with a cortisone injection.
23 In May 2008, she reported significant pain in the shoulder and was referred for hydrodilatation, which did not produce any symptomatic improvement.
24 In June 2009, she was complaining of increased paraesthesia of the fingers and was referred for a nerve conduction test, which revealed mild to moderate median nerve compression. She was treated conservatively with splints.
25 In September 2009, she was complaining of worsening paraesthesia of the fingers and also her legs. She was referred for a CT scan of the neck, which revealed a large disc prolapse at C3-4 level. She was subsequently referred to a neurosurgeon for further management. The plaintiff continued working as a packer but with difficulty, as she experienced ongoing and worsening pain levels. She was retrenched in November 2009.
26 In December 2009, Mr Han, neurosurgeon, performed decompression surgery to the cervical spine. Post-operatively, she was experiencing less numbness, but the pain level was still very high. She was managed with physiotherapy.
27 In February 2010, she fell over as a result of severe neck pain, headache and loss of balance, suffering fractures to her right foot. It was Dr Phan’s opinion that the plaintiff suffered multiple injuries from falls at work. She suffered a soft-tissue injury to her shoulder; initially symptoms overlapping that of a disc prolapse in the neck which was also caused by the fall. The shoulder injury resolved, but the plaintiff is still symptomatic from the decompression surgery. He considered her employment as material in causing her current neck symptoms.
28 In February 2014, Dr Phan reported that in subsequent conversations with the plaintiff, he was told that a few weeks prior to the incident with the box, she had a fall at work, which is when her left arm symptoms started; these symptoms were aggravated by the second incident with the box. He noted that prior to these incidents, she had no past history of either neck nor shoulder pain. He said that her most significant and persistent problem is that of symptomatic aggravation of cervical spondylitis, including a C3-4 disc prolapse with significant cord compression. He thought her accidents at work were consistent with causing her symptoms and the pathology found in her neck. He concluded that her employment caused the development of her symptoms. He said she was significantly disabled by a high level of pain and stiffness in her neck. Given her age, poor command of the English language and lack of any transferable skills, he thought she would never be able to return to work in any capacity. He said she needed ongoing pain management, revolving around a self-managed program of hydrotherapy and home-based exercise. He said this would be ongoing and indefinite. She would also need intermittent short bursts of physiotherapy or osteopathic treatment for any flare-up of her pain. He said her prognosis was poor and she had not improved after surgery. The degenerative nature of her spinal condition means that her symptoms may worsen in time.
Mr Tiew Han
29 Mr Han, neurosurgeon, provided medical reports in November 2009, June 2010 and June 2011. In June 2011, Mr Han reported that he had seen the plaintiff on referral from Dr Phan. She presented with increasing neck pain, paraesthesia in her arm and unsteadiness of gait. The plaintiff reported that in 2007, she was working on a factory line, slipped, and injured her neck and left arm. She had constant pain in the left arm after the fall. Over the years, her symptoms have deteriorated. She described an unusual sensation at the back of her neck and down both arms.
30 Due to the severity of the spinal cord compression, the plaintiff underwent surgery on 16 December 2009. An anterior cervical vertebrectomy and discectomy were performed.
31 The plaintiff was reviewed by Mr Han in January and April 2011. She was suffering increased neck pain, which was persistent, although the symptoms in her arm had improved substantially following surgery. Mr Han said the MRI scan of January 2011 confirmed there was no longer significant compression onto the cord, but there was the presence of a cord signal change at C3-4. This was the result of the injury to the spinal cord, which may not recover. He said there was no pathology elsewhere, other than minor degenerative changes in the disc at C4-5, C5-6 and C6-7 levels.
32 Mr Han said the plaintiff had a fall at work in 2007. She gradually developed neck pain and clumsiness in both hands. Investigations revealed a large disc herniation at C3-4, with severe compression on the spinal cord. Given the injury occurred at work, he believed the condition was work-related and that the plaintiff’s employment had been a significant contributing factor to her condition. He said the diagnosis was a large disc herniation at C3-4 with severe spinal cord compression, resulting in spinal cord damage. He said the plaintiff’s prognosis is guarded. She has evidence of myelopathy. She will not be able to coordinate her arms and legs in a normal manner, as compared to her pre-injury status. He said that spinal cord injuries do not recover and she will have a permanent neurological deficit as a result of the injury. She had no capacity for pre-injury or suitable work.
Dr Clayton Thomas
33 Dr Thomas, consultant in rehabilitation and pain medicine, examined the plaintiff on referral from Dr Phan, general practitioner. In June 2012, in a report to the plaintiff’s solicitor, Dr Thomas reported that the plaintiff was injured in a fall at work. She developed pain in the left armpit. Two weeks later, while at work, she tried to stop a box from falling off the line, the pain was in the same area and was worse than the initial pain. She continued to work, but when she reached forward with her left arm, the pain returned.
34 Dr Thomas said work was a significant contributing factor to the onset of her problem. In view of the long-term repercussions of the very large disc prolapse, work remained a material contributor to her current condition. He said that, as a consequence of disc prolapse at the C3-4 level, the plaintiff developed a partial hemi Séquard-type syndrome due to cord compression. She developed symptoms in both upper and lower limbs, and signs in both. He recommended rehabilitation, which aimed to look towards self-management and support for the plaintiff. He specifically said that rehabilitation was not recommended with a view to her returning to work.
35 In July 2013, Dr Thomas said he had reviewed the plaintiff in October 2012 and February 2013. He said there had been no substantial change, in his opinion. He did not think she had any work capacity, which was indefinite.
The Physiotherapist’s notes
36 The plaintiff received physiotherapy treatment at the Hampton Park Physiotherapy Clinic. She stated that she did not receive physiotherapy treatment at any other clinic.[14] The clinical records from the Hampton Park clinic were a poor quality copy. There are a series of 2002 entries. The notes show that following August 2007, the plaintiff’s first attendance at the clinic was on 4 September 2008. The last entry is on 8 December 2009. The records are difficult to read, but it is clear that the plaintiff was receiving treatment for left shoulder pain and restriction. There are references to the cervical spine and cervical vertebrae during that period.
[14]Transcript 31, L8
Mr Charles Flanc
37 Mr Flanc, vascular and general surgeon, examined the plaintiff at the request of the plaintiff’s solicitors. He provided reports in April and May 2011, October 2012, April and December 2013.
38 Mr Flanc addressed the plaintiff’s injury in respect to her fall and reaching incident in 2007. In his report of April 2011, he obtained a history that in her fall at work she struck her left side. The dominant symptom was initially pain in her left shoulder, which she reported to Dr Phan. Mr Flanc said the fall onto her left side could have caused a significant jarring of her cervical spine. It was his view that it was more likely that the fall of 2007 had significantly contributed to the aggravation of the degenerative condition of the cervical spine which required surgery, and from which the plaintiff was still recovering. He said the area is a specialised field, and an up-to-date opinion from Mr Han, the treating neurosurgeon, should be obtained in relation to her ultimate prognosis and whether she had any neurological abnormality.
39 In October 2012, Mr Flanc provided a further report, having considered the reports of Mr Han, and in particular, Associate Professor Bittar, who referred to a number of neurological abnormalities, which were also observed by Dr Thomas. It was Mr Flanc’s view that the plaintiff’s current condition was significantly related to the two incidents at work in August 2007, which resulted in an aggravation of pre-existing disc degeneration of the cervical spine.
40 Mr Flanc recommended an opinion from a consultant neurologist be sought. A report from Dr Leslie Roberts, neurologist, was obtained.
41 In December 2013, Mr Flanc had available to him reports from Dr John King and Dr Leslie Roberts, both neurologists, reports of Associate Professor Graeme Brazenor, neurosurgeon, and reports of Mr Clive Jones and Mr John O’Brien, orthopaedic surgeons. After considering the reports, Mr Flanc said it was quite possible that the pain in her left shoulder region was principally related to referred pain from the injury to her cervical spine. He accepted that the two incidents which occurred in 2007 played a significant part in the aggravation of a pre-existing degenerative condition of the cervical spine, by making it symptomatic and perhaps initiating a disc prolapse, resulting in referred pain down the left arm. The major contribution to the development of cord compression has been the two incidents which occurred in 2007.
42 Further, if her work after these injuries involved repeated manual lifting and elevation of her arms, then her work over the following two years could be regarded as a further contributing factor, although probably of lesser significance than her falls in 2007.
43 Mr Flanc said if there was an alternative view to his (namely, that in 2007 the dominant injuries were to the shoulder alone), then over the following two years, the contribution of the plaintiff’s work to the development of cervical compression would be greater. That is, the plaintiff’s work over the following two years could have resulted in a gradual aggravation of degenerative change to the cervical spine, producing pain and signs of cord compression.
44 Mr Flanc emphasised that the discussion regarding the contribution of the specific injuries of 2007 and the nature of her work to the development of the neurological problem is complex, and requires the expert opinion of neurologists and neurosurgeons.
45 Mr Flanc said the plaintiff was permanently unfit for any work involving physical activity of her upper limbs or any heavy lifting. He believed she would never return to the type of work she was doing previously. He said she had a theoretical capacity for part-time, light, sedentary duties, but considering her multiple symptoms, poor English and age, he said she had no realistic work capacity.
Associate Professor Richard Bittar
46 Associate Professor Bittar, neurosurgeon, provided reports in June 2011 and July 2012. Associate Professor Bittar diagnosed cervical myelopathy, secondary to a C3-4 disc rupture and prolapse; aggravation of cervical spondylosis; cervicogenic headaches and lumbar spondylosis.
47 It was his opinion that the plaintiff’s cervical myelopathy, aggravation of cervical spondylosis and cervicogenic headaches were a direct result of the incidents which occurred at work in August 2007. He said her employment at that time remains the dominant contributing factor to her ongoing symptoms, disability and requirement for treatment. He said the plaintiff was totally incapacitated for employment, which was permanent. He said her prognosis was poor.
Dr Leslie J Roberts
48 Dr Roberts, neurologist, examined the plaintiff at the request of the plaintiff’s solicitors in March and October 2013. Dr Roberts obtained a history that on 7 August 2007, the plaintiff slipped and fell, landing on the left side of her body with her left arm outstretched to control her fall. She hurt the left arm, particularly in the region of the axilla. Approximately two weeks later, she was working on another machine, she reached to stop a box falling off a line and felt pain in the axillary region in the same position as where she first injured herself.
49 Dr Roberts said that the circumstances of the fall were such that this produced significant trauma to the cervical spine by a whiplash type of mechanism. It was likely that the plaintiff had some pre-existing cervical degenerative disease, but the fall at work is considered to be highly significant and the trigger to the development of the disc prolapse at the C3-4 level. He said this was considered to be the cause of her spinal cord compression and he related this directly to the trauma occurring at work.
50 In October 2013, Dr Roberts provided a further report after reading the respective reports of Dr King, Associate Professor Brazenor, the clinical file of Dr Cong Phan, and re-assessing the plaintiff. Dr Roberts said the plaintiff remains unfit to return to her pre-injury employment, which would continue into the future. He said it may have been possible for her to return to some part-time sedentary duties, but taking into account her limited English, the limited nature of the work she performed, and the fact that her qualifications in Vietnam are not accepted in Australia, he thought it unlikely that alternative duties would be a viable option for the plaintiff.
51 Dr Roberts reviewed the report of Dr King and agreed that their findings and conclusions are similar. He disagreed with Associate Professor Brazenor’s assessment, which did not find a spastic gait or abnormal reflexes. Dr Roberts said the plaintiff does have significant abnormal clinical signs.
52 Dr Roberts said there does appear to be a relationship between the plaintiff’s cervical cord compression at the C3-4 level and her fall. He considered this likely to have developed on the basis of a whiplash-type of mechanism, rather than direct trauma to the neck, which does not seem to have been described by the plaintiff. He said it occurred on the background of pre-existing cervical spine degenerative disease.
53 Dr Roberts was aware that Mr Han recommended further surgery with a spinal fusion. He was not able to say whether that would assist the plaintiff. He said the plaintiff was prepared to consider further surgical intervention.
Mr Thomas Kossmann
54 In August 2011, Mr Kossmann, orthopaedic surgeon, examined the plaintiff at the request of the second defendants’ insurer.
55 Mr Kossmann was informed by the plaintiff that she had a cervical spine injury following an accident in 2007 when she had a fall and that, prior to May 2009, she had symptoms in her left upper limb. The plaintiff reported that she was involved in heavy labouring work with her upper extremities, she developed increasing left upper limb pain and symptoms of numbness and pain in her neck, left arm and left hand. She was treated conservatively.
56 In July 2009, Mr Kossmann said the plaintiff underwent a CT scan which showed a mild diffuse broad-based disc bulge at the L3-L4, L4-L5 and L5-S1 levels, resulting in central canal and neural foraminal narrowing with contact and impingement of the exiting L4 and L5 nerve roots and a CT scan of her cervical spine which showed a large central disc protrusion at the C3‑C4 level, causing a severe central canal narrowing and cord compression.
57 The plaintiff reported she underwent cervical spine surgery in December 2009 and the numbness in her left arm improved; however, the pain increased.
58 In January 2011, an MRI scan of her cervical spine showed a tight cervical spinal canal and myelomalacia at the C3-C4 level. Another operation was recommended.
59 It was Mr Kossmann’s opinion that the plaintiff’s repetitive work as a process worker on a production line, with usage of her upper extremities and frequent movements of her head and cervical spine, had contributed to the cervical spine condition.
Mr Michael Shannon
60 In August 2012, Mr Shannon, orthopaedic surgeon, examined the plaintiff at the request of the second defendants’ insurer. Mr Shannon obtained a history from the plaintiff that her injury occurred in August 2007 when she slipped on a step at work and fell down onto her left hand. She felt pain in the left axilla which was supported by her general practitioner’s letter. She underwent neurosurgery in the form of an anterior cervical fusion and decompression. The plaintiff reported the operation helped the numbness but she still had pain in her neck, back, arms and, to a lesser extent, her legs.
61 Mr Shannon said the plaintiff’s neurological status prior to the surgery was not entirely clear but he thought it appeared, and was confirmed, that she had a significant C3-4 disc prolapse superimposed on pre-existing congenital cervical spinal canal stenosis and resulting in major spinal cord compression. He said there was evidence of a myelomalacia on original MRI scan. He said it could be reasonably argued that her neck was injured in the original fall in 2007, although the history is somewhat vague over the subsequent years. He said it was unrealistic to suggest she had a work capacity, as she is at significant risk of further cervical spinal injury and potential cervical spinal cord injury.
62 Mr Shannon said the risk is partly related to the pre-existing degenerative change and pre-existing stenosis. The plaintiff’s condition has been made worse by the C3-4 disc prolapse which has been accepted as work related.
Dr John King
63 In July 2013, Dr King, neurologist, examined the plaintiff at the request of the first defendant’s solicitor. It was his view that the plaintiff suffered from cervical myelopathy due to permanent damage to the cervical cord at C3-4 as a result of a prolapsed disc at that level. He said she currently complains of symptoms which could be ascribed to her cord lesion at C3-4. Her symptoms are weakness of the arms and legs, stiffness of the back, wobbly gait, bowel and bladder urgency and fatigue. She has neck and head pain.
64 Dr King was asked whether the plaintiff’s condition was related to:
(a)The incident on 7 August 2007 when she fell at work.
Dr King said, on balance, he considered the pain in the left axilla was more likely to have been referred from the cervical spine than due to the left shoulder damage. This was the same pain she experienced in the second event. Shoulder pain is typically felt in the outer aspect of the arm, near the deltoid muscle, and can be reproduced by movements. The second event supported the view that the pain was coming from her cervical spine. He said the fall probably caused a tear in the annular of the C3‑4 disc, with a minor prolapse of the nucleus at that time. A more significant prolapse of disc material occurred in January 2009;
(b)The incident two weeks later when the plaintiff reached for the carton.
Dr King said this action precipitated a further episode of pain. He said the first incident on 7 August 2007 was when the damage occurred;
(c)General conditions and tasks undertaken during the course of the plaintiff’s employment with Kenman Candy.
Dr King said he would relate her current condition to the initial fall on 7 August 2007 and not to her general work conditions and tasks;
(d)Any other factors.
Dr King said her current condition is contributed to by the normal degenerative changes in the cervical spine associated with age and congenitally narrow cervical spine canal.
65 Dr King said the plaintiff has an established cervical myelopathy and ongoing cord compression at C3-4. She has been advised to have further surgery but has refused to date. He said there is a high likelihood of additional cord damage, particularly if she falls again, and there is a definite risk of quadriplegia. Dr King said that despite difficulties in communicating with the plaintiff, he found her responses consistent and with no suggestion of elaboration.
Associate Professor Graeme Brazenor
66 In August 2013, Associate Professor Brazenor examined the plaintiff at the request of the first defendant’s solicitor. Associate Professor Brazenor was provided with various reports by Mr Han, Mr Flanc, Associate Professor Bittar, Dr Roberts, Mr Jones, Mr O’Brien, and the clinical notes of the general practice clinic.
67 Associate Professor Brazenor said that a person who sustains cervical disc prolapse with cord compression will have severe symptoms, with unmistakable time of onset, if the prolapse is sudden. However, such a prolapse can evolve slowly. He did not think it possible to be certain that the fall of 7 August 2007 ruptured the C3-4 disc annulus (and possibly those at C3-4 and C5-6) with gradual subsequent evolution of the protrusion at C3-4. Neither did he think that he could exclude it. In particular, he noted that the treatment directed to the left shoulder did not affect any symptomatic improvement and he thought it entirely possible that the left shoulder pain stemmed from the C3-4 disc injury and prolapse.
68 In his opinion, there was insufficient evidence to exonerate the fall of 7 August 2007 in the production of one or more disc protrusions in the plaintiff’s cervical spine, and the consequent surgery performed by Mr Han. He believed that the incident of 7 August 2007 and the incident approximately two weeks later could have been important in the injury to the plaintiff’s cervical discs.
69 Associate Professor Brazenor thought it highly unlikely that the plaintiff would find employment.
The First Defendant’s medical evidence
Mr Clive Jones
70 Mr Jones, orthopaedic surgeon, examined the plaintiff at the request of the first defendant’s solicitors on 29 November 2012. Mr Jones said that following the events of 2007, the focus was on the plaintiff’s left shoulder. An ultrasound was performed in November 2007 without any conclusive result. He obtained a history of weakness and clumsiness involving her arms and legs which first became noticeable in early 2009, and which progressed, resulting in a discectomy. He said, as the plaintiff did not complain of any neck pain in regard to the events of 2007, and cervical spine problems did not develop until two years later, he thought it unlikely that there was a nexus between the events of 2007 and the development of neck pain in 2009, but accepted that the view of others may be different.
71 In 2013, Mr Jones was provided with further reports from Dr Cong Phan, Dr Clayton Thomas, Mr Charles Flanc and Dr Leslie Roberts. He said the material forwarded to him did not cause him to change his views regarding the extent of the plaintiff’s disability.
Mr John F O’Brien
72 In January 2013, Mr O’Brien, orthopaedic surgeon, examined the plaintiff at the request of the first defendant’s solicitor. He obtained a history of the plaintiff suffering a fall, which resulted in pain in the vicinity of the left axilla, and an incident two weeks later, which resulted in further shoulder pain. He was aware that the plaintiff was treated in 2007 and 2008 in respect to her shoulder pathology by her general practitioner. Later, the plaintiff reported numbness, initially affecting the fingers, followed by more extensive numbness associated with her neck and back. This resulted in investigations of the cervical spine. A C3‑4 interbody fusion was undertaken and the plaintiff reported some change in the severity of the numbness, but reported no change in the extensive distribution of pain.
73 Mr O’Brien concluded, based on the current history and clinical material available, that the cervical pathology was of a degenerative nature, possibly precipitating cervical myelopathy which was not caused, nor is there evidence to suggest this was aggravated by employment.
74 Mr O’Brien was provided further material, namely reports of Dr Cong Phan, Dr Clayton Thomas, Mr Charles Flanc and Dr Leslie Roberts. He said the reports did not change his opinion as expressed in his initial report.
The Second Defendant’s medical evidence
Dr P Clark
75 In November 2010, Dr Clark conducted an independent medical examination at the request of the second defendant’s insurer, QBE, for the purpose of assessing the plaintiff’s requirement for ongoing medical services. He did not think she required ongoing physical therapy, but her general practitioner consultations and prescribed medical needs should continue. He thought she had a current work capacity for suitable duties, and vocational assistance should be commenced.
Credit of the Plaintiff
76 The plaintiff, aged fifty-five, migrated from Vietnam, arriving in Australia in 1992, and gave her evidence through an interpreter. She worked in a Vietnamese bakery for three years, before commencing employment with the Wrigley Company Pty Ltd, previously known as Mars Australia Pty Ltd, in 1998. She was employed as a packer.
77 Counsel for the first defendant submitted that the plaintiff was an unsatisfactory witness. I consider that she answered questions as best she could. At times she found it difficult to confine herself to answering the question asked. On occasions, she elaborated when giving her answers and moved away from a responsive answer. There were no occasions on which she was evasive or argumentative. I accept that her memory of events on occasions was not good. On a number of occasions, she said she could not remember matters. I accepted that as reasonable, given she was being asked questions in 2014 about events as early as 2000 in relation to a motorcycle accident, events in 2007 and 2008, how many visits she had to Vietnam in 2009 and the name of a physiotherapist who treated her.
78 The plaintiff was consistent in the answers she gave. She made concessions. She was consistent in what she told the doctors who treated her about her medical condition.
79 Dr King said:
“Despite the difficulty in communicating, I found her responses consistent with no suggestion of elaboration.”
80 I accept the plaintiff as a witness of truth. I note that a number of doctors had difficulty obtaining a comprehensive history from the plaintiff because she had a poor recollection of events.
81 I also accept the plaintiff’s husband presented as a credible witness. He made concessions. He said he could not remember the date his wife fell at work; he could remember the year 2007. He agreed he could not remember precisely what happened in the incident at work. He said his wife told Dr Chong Phan about tiredness and weakness on the left side of her neck. He could remember Dr Cong Phan asking her where the pain is worse and what area is the most painful.
The First Defendant’s submissions
82 Counsel for the first defendant submitted that the two incidents which occurred in August 2007 did not cause or contribute to the plaintiff’s subsequent cervical disc prolapse. Further, there was insufficient evidence linking the plaintiff’s description of her employment conditions and work processes to the development of her cervical disc prolapse.
83 Counsel for the first defendant relied on:
· the medical reports of orthopaedic surgeons, Mr Jones and Mr O’Brien;
· the absence of any complaint of neck pain by the plaintiff prior to the commencement of neurological symptoms in the months preceding June 2009;
· the plaintiff’s own affidavit evidence as to neck pain is in late June or early July 2009;
· in the plaintiff’s third affidavit, she states that after the second incident in late August 2007, her main problem was left arm pain. She also referred to left shoulder pain and “tiredness and weakness in the left side of her neck”.
The Second Defendant’s submissions
84 The plaintiff’s case against the second defendant in the Draft Statement of Claim is that the plaintiff sustained personal injury as a result of the work process. The second defendant submitted that there was no specific injury or incident of injury while the plaintiff was in its employment from 1 October 2008 until November 2009. Further, on the plaintiff’s own evidence, there was no specific incident or injury. She was protected by her workmates and her supervisor at work, such that she was not performing work which caused or contributed to her neck injury.
Analysis of the evidence
The parties
85 The plaintiff’s evidence was that she worked, performing the one job in the same factory between 1998 and 2009. So far as she was concerned, she worked for the one employer. The fact that there are two defendants in this proceeding is due to a sale of the business between the first defendant and the second defendant. As a result, the first defendant was the plaintiff’s employer from 1998 until 30 September 2009, and the second defendant was the employer from 1 October 2008 until November 2009, when the defendant became redundant.
The incidents in August 2007
86 The plaintiff’s evidence was that on 7 August 2007, she was required to use a stand to perform her work. Two workers occupied the stand. When she got onto the stand, her left foot slipped on the edge and she fell on her left side, putting her left arm out to break the fall. She fell onto the floor and experienced a shooting pain in her left arm and armpit. Approximately two weeks later, on 27 August 2007, she was putting cartons into a box when a carton toppled over the edge of the table. She reached with her left arm to secure the box and suffered further pain in her left armpit. She consulted her general practitioner, Dr Phan, who prescribed medication and arranged an ultrasound of her left shoulder. The plaintiff’s evidence was that the armpit pain was the most serious, but that she experienced neck symptoms two or three weeks after the 27 August 2007, which she described as “tiring and it was very tight”.[15]
[15]Transcript 25, L9; Transcript 34, L27
87 In this proceeding, there are four compensable injuries, being;
· the fall on 7 August 2007;
· the incident on 27 August 2007 when the plaintiff reached for the carton;
· throughout the course of the plaintiff’s employment with the first defendant:
(a) with the first defendant;
(b) with the second defendant
which are variously said to have contributed to the plaintiff’s condition.
88 In AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz,[16] the plaintiff applied for leave to bring common-law proceedings in relation to two separate injuries involving two separate employers. The Court of Appeal set out the principles to be applied. In the case of a pre-existing condition, it said Petkovski v Galletti[17] held that “an analysis must be made of the extent of impairment of a body function before and after the relevant injury”, and the claimed aggravation must itself be a “serious injury”.[18] Injuries that arose from separate incidents cannot be accumulated. Further, Grech v Orica Australia Pty Ltd & Anor[19] dealt with causation issues in the context of a single ongoing condition. More particularly, the Court of Appeal said:
“… [Grech] did not involve two separate injuries arising out of two discrete incidents, where the subsequent injury aggravated the earlier injury. There is nothing in Grech which detracts from the principles in Petkovski.”[20]
[16](2012) 34 VR 309
[17][1994] 1 VR 436
[18](supra) at 444
[19](2006) 14 VR 602
[20]AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (supra) at paragraph [28]
89 It is necessary to consider what the medical evidence is as to the contribution of the various incidents and the course of employment to the plaintiff’s condition. The only medical witness to address the issue comprehensively was neurologist, Dr King, and, to a lesser extent, Dr Roberts.
August 2007 incidents
90 Dr King was asked about the incident on 7 August 2007 when the plaintiff fell at work. He said:
“On balance, I consider the pain in the left axilla was more likely to have been referred from the cervical spine, than be due to left shoulder damage. This was the same pain that she experienced two weeks later. Shoulder pain typically is felt in the outer aspect of the arm, at the level of the insertion of deltoid muscle and can be regularly reproduced by particular movements. Although the ultrasound reports were of bursitis, they were ‘suggestive’ and ‘suspected’ rather than definitive.
After the second episode, the same left axillary pain radiated to the neck and left scapular, further supporting the view that the pain was coming from her cervical spine. The axilla skin is in dermatomes supplied by the T2 and T3 sensory roots, which are well below the level of the lesion at C3-4, so one has to postulate that the pain was caused by irritation of the cord at C3-4, due to a partial disc prolapse at C3-4 in a person with a narrow spinal canal. The fall probably caused a tear in the annulus of the C3-4 disc, with a minor prolapse of the nucleus at that time. A more significant prolapse of this material occurred in January 2009.
The incident two weeks later (reaching for the carton)
Although this action precipitated a further episode of pain, I consider the first incident on 7 August 2007 was when the damage occurred.
91 Dr King said the incident two weeks later, reaching for the carton, may have aggravated the initial damage, but was not the primary event.
92 Dr Leslie Roberts, neurologist, said:
“The circumstances of the fall were such that it is my clinical opinion that this produced significant trauma to the cervical spine by a whiplash type of mechanism. It appears likely that she has had some pre-existing cervical degenerative disease but the fall at work is considered to be highly significant and the trigger to the development of the disc prolapse at the C3-4 level. As such this is considered to be the cause of her spinal cord compression and I would relate this directly to the trauma occurring at her work.”
93 Mr Shannon and Mr Han said the 7 August 2007 fall was causative of the plaintiff’s current condition. They did not refer to the 27 August 2007 incident.
94 Associate Professor Bittar, Associate Professor Brazenor and Mr Flanc said the August 2007 incidents contributed to the plaintiff’s condition, but did not consider each incident separately.
95 Mr Jones and Mr O’Brien, orthopaedic surgeons, expressed a contrary view in relation to the August 2007 incidents. They said that in the absence of any complaint of neck pain by the plaintiff prior to the commencement of neurological symptoms in the months preceding June 2009, the August 2007 incidents were unrelated to her current condition. Mr Jones said:
“I think it is unlikely there is a nexus between the events of 2007 and the development of her neck pain in 2009, but the views of others may be different.”
96 Mr O’Brien said:
“There appears to have been no evidence of symptoms that could be attributed to such pathology until 2009 when numbness was described with more extensive distribution of pain, but indeed unrelated to any described work incident.”[21]
[21]First Defendant’s Court Book at page 27
97 Mr O’Brien went on to say:
“From the current history and clinical material available, I would have to conclude that the patient’s cervical pathology is of a degenerative nature, possibly precipitating cervical myelopathy which was not caused, nor indeed is there evidence to suggest this was aggravated, by employment.”[22]
[22]First Defendant’s Court Book at page 28
98 Subsequently, Mr Jones and Mr O’Brien were provided with Dr Roberts’ report of 26 March 2013, Mr Flanc’s reports of 26 October 2012 and 10 April 2013, Dr Clayton Thomas’ report of 8 June 2012 and reports of the general practitioner of May 2012 and April 2013. As a result of these further reports, both doctors indicated that their initial views remained unchanged.
99 Taking all the evidence into account, I accept the view of Dr King, whose report is consistent with the report of Dr Roberts. He explains his reasoning which is logical and consistent with that of Associate Professor Brazenor, Mr Han and Associate Professor Bittar, neurosurgeons. The neurologists and neurosurgeons are supported by Mr Shannon, Mr Flanc and Dr Pham. Dr King explains the shoulder injury and its connection to the neck injury. Dr King deals with the general practitioner’s medical records.
100 Accordingly, I reject the views of Mr Jones and Mr O’Brien. I accept that the 7 August 2007 incident was causative of the plaintiff’s condition. The second incident on 27 August 2007 was trivial. The ongoing consequences relate to the 7 August 2007 incident.
Whether the Plaintiff’s work over the course of her employment contributed to the Plaintiff’s condition
101 Only three medical witnesses addressed this issue, namely Dr King, Mr Flanc and Mr Kossmann.
102 Dr King said:
“I would relate her current condition to the initial fall on 7/8/2007, and not to general work conditions and tasks.”
103 Mr Flanc said that if the plaintiff’s work after the 2007 injury involved repeated manual lifting and elevation of her arms, then the work over the following two years should be regarded as a further contributing factor, although probably of lesser significance. However, Mr Flanc emphasised the need to obtain expert opinion from neurologists and neurosurgeons on the issue of contribution in this case. Therefore, I prefer the opinion of Dr King, neurologist, over that of Mr Flanc on this point.
104 In August 2011, Mr Kossmann was asked, among other things, to comment on how employment or the injury arising from an incident of 1 May 2009 is still contributing to the plaintiff’s incapacity and medical needs. It was his opinion that her repetitive work as a process worker on a production line with usage of her upper extremities and frequent movements of her head and cervical spine, has contributed to her cervical spine condition. Mr Kossmann did not have a full history of the nature of the plaintiff’s duties. He had the date of the injury as 1 May 2009. He had little or no history regarding the 2007 incidents and the plaintiff’s work duties. Accordingly, I place little weight on his opinion in respect to causation.
105 Dr Roberts, Associate Professor Bittar, Associate Professor Brazenor, Dr Thomas, Mr Shannon and Mr Han did not address the issue.
106 Mr Jones and Mr O’Brien failed to address the issue.
107 Accordingly, on the balance of probabilities, I am not satisfied that the plaintiff’s work over the course of her employment contributed to her injury.
108 The plaintiff relied upon the report of Dr John King, neurologist, which report was obtained by the first defendant. Dr King said the plaintiff suffers from cervical myelopathy due to permanent damage to the cervical cord at C3-4 as a result of a prolapsed disc at that level.
Ansett Australia Ltd v Taylor[23]
[23][2006] VSCA 171
109 Counsel for the plaintiff submitted that the second defendant paid for the plaintiff’s surgery, accordingly, the decision in Ansett Australia Ltd v Taylor applied.
110 It was accepted that the second defendant admitted liability based upon the plaintiff’s claim of September 2009 and paid for the operation on 16 December 2009. This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor:
“… such an admission should ordinarily be regarded as very significant, albeit not conclusive, because a defendant in a particular case might be able to satisfactorily explain its conduct.”
111 The plaintiff’s husband gave evidence that he was present when the physiotherapist rang the claims agent, and informed the agent that the plaintiff would be unable to move if she did not have the operation. Counsel for the second defendant submitted that it was not until the serious injury stage that the significance of the 2007 incidents came to the knowledge of the second defendant. The first medical report obtained by the second defendant was Dr Clark’s report in November 2010.
112 In this case, the issue of causation was complex. The evidence is that the second defendant acted promptly because of the serious condition of the plaintiff. It explained its conduct. I adopt what was said by Hansen JA in Transport Accident Commission v Florrimell:[24]
“… It would be contrary to the efficient administration of the compensation scheme as a whole if the TAC resisted paying for medical procedures that might reduce the pain and suffering of someone injured in a transport accident on the basis that if it did so it would be regarded, at law, as having made an admission.”
[24][2013] VSCA 247 at paragraph [45]
113 In those circumstances, I do not accept that the second defendant’s conduct amounted to an admission of liability on the subject of causation. Accordingly, I accept that there is no injury identifiable against the second defendant.
Serious injury
114 The first defendant made no submissions in relation to whether or not the plaintiff’s injury was serious.
115 The medical evidence is the plaintiff suffers from cervical myelopathy due to permanent damage to the cervical cord at C3-4 as a result of a prolapsed disc at that level. The plaintiff has undergone surgery. Currently, she complains of symptoms ascribed to her cord lesion at C3-4. Her symptoms are weakness of the arms and legs, stiffness of the back, wobbly gait and bowel and bladder urgency and fatigue. She complains of neck and head pain. She has been advised to have further surgery. Dr King says she has a likelihood of additional cord damage, particularly if she falls again and there is a definite risk of quadriplegia.
116 Dr Roberts concluded there was residual evidence of an established myelopathy at C3-4 level. He disagreed with Associate Professor Brazenor’s assessment in respect to the plaintiff’s current condition. Associate Professor Brazenor said the plaintiff does not have significant abnormal clinical signs. Associate Professor Brazenor was in the minority. He was unsure whether further surgery would assist the plaintiff, as recommended by Mr Han.
117 The evidence of Dr Pham was that, prior to the August 2008 incidents, the plaintiff had no past history of pain. A number of the medical witnesses referred to the plaintiff’s injury in terms of involving an aggravation of cervical spondylosis or pre-existing cervical spine degeneration. Accordingly, I accept that at the time of the August 2008 incidents, the plaintiff was symptom free.
118 In determining the plaintiff’s impairment, I must make the assessment at the time of hearing the application. Accordingly, I place greater weight on the most up-to-date medical evidence of Dr Phan, Dr Thomas, Mr Flanc, Dr Roberts, Dr King and Associate Professor Brazenor. All of the medical witnesses accepted the plaintiff had no capacity for pre-injury work. Dr Phan and Dr Thomas said she had no work capacity. Associate Professor Brazenor said she was “highly unlikely to find any work”. Dr King said, given her age, poor English and limited vocational skills, she would not be employed again. Dr Roberts and Mr Flanc thought she could work part-time performing light duties which was theoretical only, given her age, limited English and limited work experience.
119 Accordingly, I accept the plaintiff has no realistic capacity for work, either pre- injury work or suitable work.
120 Given the medical evidence, I am satisfied the plaintiff cannot return to work. The plaintiff is aged fifty-seven years. She has been working since arriving in Australia. She has worked with the defendants collectively for approximately eleven years. The plaintiff impressed me as being a hardworking employee. Despite the injury in August 2007 and the treatment she was having, she continued to work until the surgery was performed in 2009. She conveyed to the Court her distress at being made redundant before the surgery. I accept that her inability to return to work represents a significant loss to this plaintiff. Given the length of time the injury has persisted and the medical evidence as to permanency, I am satisfied the plaintiff’s impairment is permanent.
121 I am satisfied it is fair to describe the consequences of this plaintiff’s loss of earning capacity as being “more than significant or marked” and properly described as “very considerable” when judged by comparison with other cases in the range. The plaintiff, therefore, satisfies the narrative test.
122 In reaching the finding, I have made a comparison with other cases in the range of possible impairments. No element of the mental component is taken into account in this assessment. Indeed, the mental component is required to be excluded by s134AB(38)(h) of the Act.
123 In addition to satisfying the narrative test for loss of earning capacity, the plaintiff must also satisfy the statutory test for loss of earning capacity.
124 Given the medical evidence that the plaintiff has no capacity for work currently, or into the foreseeable future, as a result of her neck injury, I find the plaintiff is effectively out of the workforce for any employment as a result of the neck impairment injury. Accordingly, there is no need to go into an analysis of wages rates, as I do not accept that she has any residual capacity, given the medical evidence.
125 Furthermore, the plaintiff has undergone all rehabilitation that has been offered to her. No medical expert suggested that any form of education would assist the plaintiff. Accordingly, I accept that the plaintiff has complied with the requirements of paragraph (g) of s134AB(38) of the Act.
126 Accordingly, I am satisfied that the plaintiff will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
127 In view of the matters I have described, the plaintiff has discharged the onus with respect to her neck impairment injury regarding her loss of earning capacity.
128 I grant leave to the plaintiff to bring proceedings for pecuniary loss damages.
129 Having made these findings, it is appropriate to make an order granting the plaintiff leave to commence a proceeding at common law seeking damages for pain and suffering and economic loss as a result of her employment with the first defendant arising out of the injury in 2007.
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