Walker v Victorian WorkCover Authority
[2016] VCC 1660
•16 November 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-15-06040
| TINA LESLEY WALKER | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 and 4 November 2016 | |
DATE OF JUDGMENT: | 16 November 2016 | |
CASE MAY BE CITED AS: | Walker v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1660 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the spine – pain and suffering damages only – credit
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Judgment: Leave granted to the plaintiff, pursuant to s134AB(16)(b) of the Act, to commence a proceeding claiming damages for pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram | Verduci Lawyers |
| For the Defendant | Ms F A L Ryan | IDP Lawyers Pty Ltd |
HIS HONOUR:
1 This proceeding was commenced by the plaintiff by Originating Motion seeking leave, pursuant to s134AB(16)(b) of the Accident CompensationAct 1985 (“the Act”), to commence a proceeding claiming damages for pain and suffering only.
2 The plaintiff’s case is that she suffered an injury arising out of, or during the course of, her employment in retail furniture sales with Voyager Interiors in Ballarat, on or about 25 June 2010. The plaintiff slipped on a wet floor and fractured her L1 vertebra (“the incident”). There is no issue between the parties that the plaintiff suffered a compensable injury in the incident. The plaintiff claims that as a result of the incident, and the injury she sustained, she suffers from ongoing permanent impairment of the spine in the lumbar/thoracic region within the meaning of s134AB(37)(a) of the Act.
3 The defendant submits that the injury suffered by the plaintiff is not a “serious injury” within the meaning of the Act.
4 For the reasons that follow, I reject that submission. I have concluded that this application must succeed. The plaintiff is given leave, pursuant to s134AB(16)(b) of the Act to commence a proceeding claiming damages for pain and suffering.
5 The plaintiff bears the onus of proof that the pain and suffering consequences of her injury are “serious” within the meaning of s134AB(38)(c). This issue is to be determined having regard to all of the evidence.
6 To make out a “serious injury” within the meaning of s134AB(37)(a), the plaintiff must establish, on the balance of probabilities, that she suffered a “permanent serious impairment or loss of a body function”. The determination of whether an injury is “serious” is assessed solely by reference to the consequences to the plaintiff of the relevant impairment or loss. Relevantly, in the circumstances of this case, an impairment is not “serious” unless the pain and suffering consequences can, when judged by a comparison with other cases in the range of possible impairments, “fairly described as being more than significant or marked and, as being at least very considerable” within s134AB(38)(c).
7 It is necessary, as in every application of this kind, to examine the evidence in order to decide what injury the plaintiff suffered during the course of her employment and, what consequences (if any) were suffered and continue to be suffered by her. Having examined all of the evidence, I find that the plaintiff has discharged the onus that she bears, of proving on the balance of probabilities that the pain and suffering consequences to her from an injury to her spine may “fairly be described as being more than significant or marked and, as being at least very considerable”, within the meaning of the Act.
8 The plaintiff filed a Court Book. I admitted into evidence as exhibit “B” pages 17 to 81 inclusive (“PCB”). That exhibit includes two affidavits sworn by the plaintiff in support of her application and, an affidavit sworn by her mother, together with an affidavit sworn by her partner, Robert Taylor. Those affidavits were filed for the purpose of supporting the plaintiff’s evidence. Neither of those deponents was required by the defendant for cross-examination. I can therefore accept their evidence as unchallenged. The PCB also contains the medical reports from the plaintiff’s general practitioners, doctors Hinchey and Bongiorno at the UFS Medical Clinic in Ballarat, radiological reports, physiotherapist reports from Ms A Fraser and medico-legal reports from Ms Abbey Pryor, Mr Michael A Khan, Dr James Rowe and Mr Roy Carey.
9 Counsel for the plaintiff, Mr Ingram, also tendered sight unseen video surveillance taken on behalf of the defendant of the plaintiff shopping at a supermarket on 1 October this year. I marked that as exhibit “C”. It was unnecessary that be exhibited as, in my view, it added nothing whatsoever to the evidence led on behalf of the plaintiff.
10 The defendant tended as exhibit 1 a letter dated 28 August 2015 written by Associate Professor Oqueli, a cardiologist, to the plaintiff’s general practitioner. This was tendered in relation to a credit issue in the cross-examination of the plaintiff. I will deal with this issue later.
11 The defendant also tendered as exhibits 2 and 3 respectively video surveillance of the plaintiff on 16 January and 6 March 2016. The defendant places much store in the content of this video footage in order to attack the credit of the plaintiff. In short, the defendant contends that the content of the video surveillance should compel me to question what the plaintiff has deposed to as to consequences from her injury in her affidavits. It argues the plaintiff has exaggerated the consequences to her caused by the injury she suffered in the incident. For reasons which I will later explain, I decline to accept this submission.
12 The defendant also tendered as exhibit 4 the clinical notes of the plaintiff’s general practitioners.
13 There is no real dispute between the parties so far as the medical evidence is concerned. The plaintiff relies upon reports from her treating medical practitioners and other appropriate specialists that have seen her for medico-legal purposes. The defendant has also had the plaintiff medically examined for medico-legal purposes. The dispute between the parties in this application relates to the consequences for the plaintiff from the injury she sustained. The plaintiff contends that I should regard the injury as a “serious injury” within the meaning of the Act. The defendant contends that I should not and, argues that there are serious questions as to the plaintiff’s credibility such that I should not accept the evidence filed by her in her affidavits that relates to the consequences that she claims to have suffered as a result of the injury she sustained.
14 It is convenient that I deal first with the medical evidence which is not in dispute.
15 The plaintiff slipped and injured herself whilst washing the floor at her place of employment on 25 June 2010. She immediately suffered from back pain but anticipated improvement and did not seek immediate medical attention. She attended upon her general practitioner, who at that time was Dr Hinchey, three days after the incident, on 28 June 2010. A medical report from the doctor discloses that on examination, the plaintiff was walking with difficulty and she was noted to have “marked muscle spasm of her dorso-lumbar para-spinal muscles with limited range of movement of her spine”.[1] The report refers to the fact that the plaintiff has for a long time suffered from chronic airways disease. This was said to have been exacerbated by the injury suffered by the plaintiff in the incident but it does not form part of this application.
[1]PCB 39
16 The plaintiff was given a certificate to be off work until 2 July 2010 and x-rays were ordered of her back.
17 On 2 July 2010, the plaintiff again attended her general practitioner where x‑rays were noted to have revealed “a crack fracture of the superior surface of her L1 vertebra”.[2] The general practitioner reported that at that time, the plaintiff’s pain was not well controlled and she was given stronger analgesics and certified as being unfit for work until 19 July 2010. Thereafter, the plaintiff was reviewed by her general practitioner approximately weekly. He noted the plaintiff “to be recovering more slowly than might have been expected”.[3]
[2]PCB 39
[3]PCB 39
18 At review on 3 August 2010, five weeks after the injury, the plaintiff was noted to be keen to return to her work despite not being fully recovered, but she was certified by her general practitioner to return to work on a part-time basis, with restricted light duties.[4] The general practitioner’s report indicates that by 20 September 2010 “she was feeling much more comfortable, was not needing so much analgesia” and, the plaintiff was certified to return to full-time work.[5]
[4]PCB 40
[5]PCB 40
19 However, when reviewed on 14 December 2010, the plaintiff was complaining to her general practitioner of increased pain. A CT scan of the plaintiff’s spine was then ordered. It revealed a crush fracture of her vertebra and she was certified fit only for light duties.[6] The report from the general practitioner reveals that resolution of the plaintiff’s pain was very slow and she continued to require analgesics most days at night. She was unable to do any heavy housework at home or bending or lifting. She was at this stage fit only for light duties not involving any repeated bending or any lifting and was advised to obtain a soft lumbar support to wear to provide some support for her spine.[7]
[6]PCB 40
[7]PCB 40
20 Dr Hinchey last saw the plaintiff on 29 July 2011, at which time he noted that she was still on light duties and her progress had been slow. He noted she had a good range of movement of her lumbar spine without pain. She was still certified only for light duties. Dr Hinchey reports that the plaintiff was not seen again. However, that is not in fact the case, because the plaintiff commenced to see Dr Bongiorno at the same clinic, she having formed the view that Dr Hinchey was overly critical of her smoking habit.
21 In early 2012, the plaintiff ceased employment with Voyager Interiors and undertook studies and completed a course qualifying her to obtain a real estate agent’s license. By March 2012, she had obtained new employment in an estate agency in the field of property management. The plaintiff still maintains a career in real estate and there is no claim for leave to sue for loss of earnings into the future.
22 The plaintiff received physiotherapy treatment on about six occasions commencing in November 2010. The physiotherapist noted on examination, thoracic extension hypomobility, pain with left lumbar rotation and sensitisation to palpation throughout the thoracic spine and central stiffness over L4 – S1.[8] There is no record of the plaintiff having received any further physiotherapy treatment.
[8]PCB 54-55
23 In April 2015, Dr Bongiorno took over the care of the plaintiff as her general practitioner, at which time the plaintiff was complaining of symptoms of sciatica with radiation into her right leg. He ordered imaging of the lumbar spine which demonstrated some sciatica. An x-ray of the thoracic spine was also carried out at this time in view of the plaintiff’s complaint of ongoing discomfort. This showed some degenerative changes.[9]
[9]PCB 50(b)
24 The plaintiff consulted Mr M A Khan, an orthopaedic surgeon, for medico-legal purposes on 31 May of this year. The plaintiff gave a history to Mr Khan similar to what I have set out above. She complained to him of sleep disturbance caused by back pain. She told him that she could sleep deeply for short periods and then was awoken by back pain at about 3 o’clock in the morning, after which she was unable to return to sleep.[10] This is similar to the evidence that she gave before me.[11] I accept that evidence. The plaintiff also told Mr Khan that she could not sit or stand in one position for longer than 15 to 20 minutes. She said she could walk on a flat surface at a slow pace reasonably well. This is consistent with the movements of the plaintiff demonstrated in the video surveillance which I have earlier referred to. The plaintiff told Mr Khan that she takes Panadol Osteo and Voltaren.
[10]PCB 59
[11]T22-23
25 On examination, Mr Khan found that the plaintiff had –
“… persistent stiffness and ache along the midline in her lower thoracic and lumbar spine with flattening of the normal lumbar curve and loss of lumbar lordosis. … She had a satisfactory range of movements of her cervical spine and shoulders. Movements of her thoracolumbar spine were associated with pain in her lower thoracic and lumbar region in the midline.”[12]
[12]PCB 60
26 Mr Khan expressed his opinion in the following terms:
“This 58-year-old, short statured, pleasant, co-operative slim lady has had an injury during the course of her work, as described above, on 25 June 2010 as a result of a fall and landing on her back a bit to the left side, which had resulted in considerable stiffness and pain in her thoraco-lumbar spine, with a history of spasms developing in the back, but no referred pain down her lower limbs, as far as could be ascertained. This has affected her everyday activities including domestic, recreational activities and her work.
Recovery has been slow and she has been left with residual stiffness and pain as an after effect of this injury affecting her lumbar spine. She does not have any complications involving her bladder or bowel function.
At the time of my examination, she is unable to perform activities involving repeated bending, twisting and turning of her spine, keeping her back bent for long periods, lifting weights more than 5 kg a time. She cannot run, repetitively climb up and down stairs, or work in confined spaces with her back bent for long periods.
She has been diagnosed to have some degree of osteoporosis and as a result of the fall had minor compression fractures of L1 vertebra, associated with severe soft tissue or musculo-skeletal and ligamentous injury to her spine. She had been confirmed to have a mild compression injury to L1 vertebral body, but without substantial wedging. There was reported to be a minor collapse of the central to left component of the upper endplate of L1 vertebra, consistent with the diagnosis.
As a result of this, she has continued to require analgesics and medication to control the pain. She has not been referred to an Orthopaedic Surgeon or attended a specific multi disciplinary Pain Management Clinic to my knowledge.
She has managed to return to alternative work with a different employer as she was no longer with her previous employer where the injury had occurred. She is managing reasonable alternative duties with restrictions, the details of which are covered in the body of my report above.”[13]
[13]PCB 62
27 It was Mr Khan’s opinion that the long-term prognosis with regard to the plaintiff is “guarded as she has been left with residual significant after effects of the injuries, associated with persistent symptoms and signs of stiffness, pain and some deformity of her spine in relation to the above injury”.[14]
[14]PCB 63
28 Mr Khan delivered a subsequent report dated 14 September 2016 after having seen the imaging history of the plaintiff. In his subsequent report, he said:
“The detailed assessment of her injuries in my previous medical report dated 28 July 2016 in relation to her injuries on 25 June 2010 has been submitted. As mentioned in my report, she has been left with significant residual after effects of the injuries on 25 June 2010 affecting her spine, resulting in residual stiffness and pain along the lower thoracic and lumbar spine area, but without radiculopathy or signs of nerve root compromise.
Hence, my opinion with reference to her residual disability remains essentially the same. However, after having access to the above investigations, as enclosed by you, I recommend that she requires a DEXA scan of the lumbar spine for osteoporosis.”[15]
[15]PCB 67
29 Dr James Rowe is an occupational physician who saw the plaintiff for medico-legal purposes at the request of her solicitor on 15 September this year. Dr Rowe is of the opinion that the plaintiff’s crush fracture of the L1 vertebral body with 30 per cent compression would be the highest rated impairment as a direct result of the fall and injury. He thought the plaintiff’s prognosis was reasonably good but she does need ongoing treatment.[16]
[16]PCB 72
30 Dr Roy Carey, an orthopaedic surgeon who specialises in “low back pain”,[17] saw the plaintiff on behalf of the defendant’s insurance agent on 2 June 2015 and he reported on that day. In my opinion, the opinion of Dr Carey significantly assists the plaintiff in this case. His opinion may be summarised in the following way;
“My opinion is that Ms Walker sustained an infraction/superior end plate fracture of L1 at the time of her fall in the course of her work [on] 25.6.2010. This progressed with further collapse seen on the CT [of] 15.12.2010.
There was no loss of anterior or posterior vertebral height however.
She now has chronic back and intermittent lower limb symptoms, in the absence of radiculopathy or cauda equine impairment.”[18]
[17]PCB 74
[18]PCB 78
31 In relation to his clinical examination, Dr Carey reported that the range of motion demonstrated by the plaintiff and observed by him at the time of examination “is consistent with her observed behaviour during consultation”.[19] Dr Carey thought that the prognosis for the plaintiff is that of “continued discomfort and some disability into the foreseeable future”.[20]
[19]PCB 78
[20]PCB 79
32 The plaintiff is now fifty-nine years of age. In her first affidavit, after reciting her background and work history, the plaintiff described the events resulting in the incident which are not here in contention. She said after the incident occurred she laid down for a while and was scared to move and she was later assisted by a co-worker. She thought her pain would improve and she finished her shift then went home and rested. The plaintiff returned to work the following Friday, Saturday and, Sunday immediately following the incident, but by Sunday she said she was struggling because of the pain.[21]
[21]PCB 19
33 The plaintiff said that she went to her general practitioner complaining of back pain and back spasms and she said she could barely move. After having the x-ray, she was advised by her doctor to rest and lay on her back for six weeks and she was told the only treatment for her injury was rest and painkillers.[22] In her first affidavit, the plaintiff recites much of the history of consultation with her general practitioner which I have referred to above. She then deals with the consequences to her from the injury. She says that she cannot sit or stand in one position for too long. General household chores are a problem including washing dishes, vacuuming and cleaning or any activity that involves a lot of bending. She included grocery shopping in this category, adding that “walking the dog has become difficult”.[23]
[22]PCB 19
[23]PCB 21
34 The plaintiff has deposed, and there is no evidence to the contrary, that she can no longer umpire netball as she used to and she needs to be careful when playing with her grandchildren. As an example she instances playing on swings which she said is not possible. She cannot lift heavy objects and she complains that her sleep has been affected in the way that I have earlier set out.[24] She takes two Panadol Osteo before going to bed and then a further two tablets upon waking. Occasionally she uses Voltaren. Over exertion results in pain. The plaintiff deposed in her first affidavit she relies upon her partner to do a lot of the housework and to push the shopping trolley and for heavy lifting. The surveillance videos depict the plaintiff shopping with her partner, with the partner pushing the trolley and the plaintiff placing grocery items in it consistent with her affidavit evidence.
[24]PCB 21
35 In her second affidavit, the plaintiff deposed that whilst she is able to work in her current occupation, it requires her to spend more time in a static seated position which causes her increased back pain.[25] Importantly, by the time of swearing her second affidavit, the plaintiff had been prescribed Tramal which she is taking four times per day, 200 milligrams. She is also continuing with Panadol Osteo and Voltaren anti-inflammatory medication twice per day. She continues to have difficulty sleeping, which results in her feeling exhausted during the day.
[25]PCB 24
36 The plaintiff’s complaint is essentially of chronic pain. She concedes she can have good days without pain. However, in paragraph 8 of her second affidavit, the plaintiff related an occasion in August 2015 where she said that she experienced an episode of particularly severe pain that spiked her blood pressure and caused her to collapse. This was at a work social function and colleagues called an ambulance but she was not taken to hospital. She was subsequently referred to Professor Oqueli, a cardiologist. His report went into evidence as exhibit 1. In that report, there is no reference of the plaintiff having related to Professor Oqueli that the cause of her collapse was the onset of severe back pain. The plaintiff was cross-examined about this matter by Ms Ryan, who appeared on behalf of the defendant. The plaintiff at first said that she did not tell the doctor of her back injury or the back pain.[26] When pressed by me in an endeavour to make sure she understood the question, the plaintiff said that she believed she had told the cardiologist.[27] I do not accept that evidence. Given that the plaintiff’s position, advanced in paragraph 8 of her affidavit, is that the central reason for her collapse was the sudden onset of back pain, it defies logic that she did not tell the specialist cardiologist she was referred to.
[26]T34/4
[27]T36/2
37 The defendant argues that the plaintiff has exaggerated her symptoms and the consequences to her from of the injury in both of her affidavits and in her evidence. The defendant relies upon what the plaintiff deposed to in paragraph 8 of the second affidavit as evidence of the plaintiff’s exaggeration. Whilst I understand the way in which the defendant puts its case on this point, I am not satisfied that the plaintiff has deliberately exaggerated her symptoms in paragraph 8 of her second affidavit. There is no proper medical basis to link the plaintiff’s collapse with the injury to her back. But this must be seen, in my view, in light of the fact that the plaintiff has a number of medical ailments. For example her ongoing chronic obstructive airways disease and, her osteoporosis. In my view, in the plaintiff’s mind, that which she deposed to in paragraph 8 of the second affidavit was correct. However, I have formed the view that which is found in paragraph 8 is an incorrect reconstruction of what occurred on the plaintiff’s part. It is not a deliberate ploy by her to overstate the consequences for her from the injury sustained during the course of her employment. Having said that, it follows that I do not accept that the plaintiff’s collapse in August 2015 was in any way related to her well documented back injury.
38 In giving her evidence, the plaintiff did not come across well. She is a relatively unsophisticated type who seemed determined to want to argue with counsel in order to justify her claim. She did not need to do this in my view. Although she has had relatively little treatment for her injury, that is probably because little can be done for her as she explained in her evidence a number of times. She does have a reasonably long history of complaint to doctors of back pain since the injury and, she is supported by the evidence adduced from both her general practitioners and medico-legal opinions. The radiological evidence also supports her case. She has a real injury that is demonstrated radiologically. The plaintiff is taking some prescribed painkilling medication (Tramal) and, she does take other medication (Panadol Osteo and Voltaren). None of this evidence is the subject of contrary evidence.
39 In giving consideration to the plaintiff’s evidence and the manner in which she gave evidence when cross-examined very thoroughly by Ms Ryan, I have formed the view that the plaintiff was a truthful witness given to frustration when she thought that she was not getting her case across to the Court. This led on occasions to a number of lengthy but unresponsive speeches by the plaintiff in answer to what was a perfectly searching but appropriate cross-examination by counsel. However, in my view, this should not be used by me to make an adverse finding in relation to the plaintiff’s credit and I will not do so.
40 Further, the plaintiff has consulted her general practitioner regularly since the incident. It is the fact the clinical records do not record regular complaints of back pain on a number of occasions when the plaintiff might have expected to complain. My impression of the plaintiff as a witness was that she is putting up with her situation of chronic pain and, if anything, she is given to downplay her symptoms and pain and is getting on with her life as best she can. Whilst much of the cross-examination was directed at consultations where there is no note of complaint of back pain, equally it must be said there are notes of a sufficient number of occasions over the years where the plaintiff has in fact made complaint or her back pain has been discussed. Also, her treating general practitioner has seen fit to prescribe Tramal for her. He cannot have done that without complaint from the plaintiff and without having formed the view it was appropriate to give this prescription. I am not prepared to make an adverse finding against the plaintiff on credit on the basis of any absence of regular or consistent complaint by the plaintiff being noted in the medical records.
41 In her second affidavit, the plaintiff repeats that as a result of her injury, she has had to give up umpiring netball. She also says that she is unable to walk long distances. Whereas prior to the injury she regularly walked around Lake Wendouree (7 kilometres), she can no longer do so. She also deposes to being not able to engage in gardening and a lot of physical household work. Activities that she does perform can often result in later pain. The plaintiff deposes to having difficulty performing grooming tasks such as cutting her toenails or bending to put on pants or shoes. I accept this evidence of the plaintiff. In my opinion, for a fifty-eight-year-old woman who is not particularly robust, the consequences she suffers from the impairment to her lower spine are serious injury consequences.
42 Exhibit 2 is video surveillance of the plaintiff on 16 January 2016. In that video the plaintiff and her partner can be seen vacuuming the plaintiff’s car at a local Ballarat car wash. Relevantly, there is a period of about four minutes during which time the plaintiff is seen to be bending into the back seat of the car. The video is unclear as to exactly what it is that the plaintiff is doing, whether it be adjusting the seat covers or actual vacuuming. There is no doubt that that evidence is inconsistent with the plaintiff’s sworn evidence of difficulties with bending which result in pain. Although the plaintiff is depicted bending, the video is somewhat equivocal in my view. It is not clear what the plaintiff is doing and it may be in fact that she was bending into the back seat of the car but resting her arms on the back seat. I do not know. However, in view of the demonstrated injury, the video does not exclude of the possibility that the plaintiff would later suffer from even more pain from having carried out the activity which of itself is fairly innocuous. The remainder of the video evidence in both exhibits 1 and 3 depict the plaintiff doing supermarket shopping. In my opinion, having viewed the evidence, there is nothing demonstrated in the remaining parts of the evidence contained in these two exhibits, or in exhibit C, from which an adverse inference or finding should be drawn against the plaintiff on the issue of her credit.
43 Josephine Francis is the plaintiff’s mother. She has sworn an affidavit dated 1 September 2016 in which she states that since the incident, the plaintiff’s life has changed considerably and that the plaintiff now regularly complains of pain.[28] I place little weight on this evidence even though it was not challenged.
[28]PCB 30
44 Robert Taylor is the plaintiff’s partner. He too has sworn an affidavit dated 3 September 2016 in which he deposes as to the plaintiff’s constant complaints of pain and her difficulties with sleeping and standing for long periods of time. He also deposes as to difficulty the plaintiff has at times in walking and in carrying out household chores. This evidence was not challenged and I accept it.
45 The defendant submits that I should not regard the injury to the plaintiff’s spine as a “serious injury” within the meaning of the Act. The defendant makes four main points in support of this submission. Firstly, it argues that the plaintiff has received no treatment for many years apart from medication. Secondly, and linked to the first point, the defendant points to the fact that the plaintiff has not been referred for any specialist treatment for her back condition. Thirdly, of twenty-one attendances upon her general practitioner in four years between July 2011 and August 2015, clinical notes of the general practitioner reveal only five attendances where there is any record of complaint of back symptoms. Finally, the defendant points to the fact the plaintiff now works full time earning significantly more than she previously was able to.
46 The first two points may be dealt with together. There is no evidence that the plaintiff’s injury and ongoing symptoms can be treated other than the way the plaintiff has been treated, that is conservatively with rest when appropriate and medication. Dr Bongiorno, in the last few months, has prescribed Tramal for the plaintiff. There is no evidence that this prescription is other than appropriate and I would expect that the general practitioner would not have prescribed this medication were it not for the fact that he thought it appropriate for the treatment of the plaintiff for her chronic back pain. There is no suggestion that the plaintiff could benefit from surgery and, none of the doctors to whom the plaintiff was referred for medico-legal purposes has said otherwise. The defendant did not call contrary medical evidence.
47 Whilst it is true that the plaintiff has attended upon her general practitioner on many occasions, this is mainly caused by the fact that she suffers from a number of other ailments. I formed the view that the plaintiff is a somewhat stoic person not given to constant complaint and, I formed the strong view that this in part accounts for her lack of regular complaint to her general practitioner. As to the last submission made by the defendant, the plaintiff does not say that she cannot work. She says that she can work but does so in the pain. Her increase in earnings is probably due to the fact that she improved her qualifications by study and was able to move into an occupation from which she derives a higher income. That is to her credit. But It does evidence an absence of back of pain.
48 I am satisfied that as a result of the incident, the plaintiff suffered an injury in the form of a fracture of the L1 vertebra resulting in pain and limitation in movement of the lumbar spine. I accept and rely upon the opinions tendered from Mr Michael A Khan and Dr Roy Carey that the plaintiff continues to suffer from chronic back pain as a result of her injury. I accept the evidence of the plaintiff that she has suffered from the consequences described by her in her affidavits and in her evidence. I am satisfied that those consequences may be described as being “more than significant or marked and at least as very considerable”. I am satisfied the plaintiff’s injury is permanent in the sense of being likely to last into the foreseeable future. For these reasons the plaintiff will have leave to commence a proceeding to recover damages for pain and suffering.
49 One matter remains for comment. In the course of the trial, Mr Ingram, counsel for the plaintiff, sought an adjournment of the proceeding when Ms Ryan had tendered exhibits 2 and 3 which are the surveillance DVDs. I rejected his application and said that I would give reasons later. These are those reasons. Mr Ingram sought an adjournment for the purpose of showing the DVDs to the doctors who had given medico-legal opinion. He said he wanted them to opine whether or not the plaintiff’s activities, depicted in the surveillance, were consistent with her diagnosed medical condition. I told him that I would treat the surveillance evidence on the basis that the plaintiff is depicted as acting consistently with her diagnosed medical condition.
50 The surveillance evidence is relevant only to the question of the plaintiff’s credit. The question of the plaintiff’s credit is a matter for the trial judge in applications such as this. The opinion of the doctors could not have added to nor, detracted from, what can be seen on the video. On the issue of credit, what is shown on the video must be compared with what the plaintiff claims are the serious injury consequences for her. The opinion which Mr Ingram seeks from the doctors cannot, in my view, assist with that comparison which must be made by myself as the trial judge. It is regrettable, in my view, that counsel saw fit to make the application which, so far as I am concerned, was made without much thought to either the consequences for the Court in fragmenting the trial or, the possible consequences for one or other of the parties so far as costs are concerned. In my view, the Court and counsel both have an obligation to dispose of proceedings like this with as much expedition as possible and at the least possible cost to the parties.
51 I will hear the parties on the question of costs.
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