Xia v Dingming Pty Ltd
[2024] VCC 596
•8 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-04914
| XIUMEI XIA | Plaintiff |
| v | |
| DINGMING PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 and 24 April 2024 | |
DATE OF JUDGMENT: | 8 May 2024 | |
CASE MAY BE CITED AS: | Xia v Dingming Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 596 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering – credit – video surveillance
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013; Evidence Act 2008
Cases Cited:Church v Echuca Regional Health (2008) 20 VR 566; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Petrovic v Victorian WorkCover Authority [208] VSCA 243; TTB SMS Pty Ltd v Reading [2020] VSCA 203; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326
Judgment: Leave granted to the plaintiff to commence a proceeding for pain and suffering damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Stanley SC with Ms A Smietanka | Zaparas Lawyers |
| For the Defendant | Mr B McKenzie | IDP Lawyers |
HIS HONOUR:
Introduction
1As has been said many times, in a civil proceeding the credit of the plaintiff is often of critical importance. But a plaintiff’s credit is not necessarily the start and finish of a civil proceeding.
2The current proceeding is a “serious injury” application in respect to a workplace injury where the credit of the plaintiff, in the context of covert video surveillance, is front and centre.
3The plaintiff in this proceeding, Ms Xiumei Xia, is a 45 year old married woman, with two children aged 22 and nine years respectively. She was born in China where she obtained qualifications and worked as a bookkeeper. She migrated to Australia in 2013 with her husband and then 11 year old son. After migrating, she undertook some English language studies and obtained a Certificate III in Childcare. Her youngest daughter was born in early 2015.
4In 2017, the plaintiff obtained employment with Dingming Pty Ltd (“the defendant”) as a childcare worker at “Snugglepotts Children’s Centre” in Camberwell. Her duties included looking after babies and toddlers. It was permanent part time employment for 15 hours per week, but at times she worked up to 32 hours per week, although according to the defendant, it was for an average of “about” 20 hours per week.[1]
[1] Statement of Ding “Ann” Zhang, Amended Plaintiff’s Court Book (“APCB”) 121.
5In 2018, the plaintiff had a short period of concurrent employment at another pre-school. Then in 2019, she commenced a Diploma of Children’s Services.
6In early 2019, the plaintiff developed low back pain, which she attributed to the amount of bending, twisting, and lifting involved in her work caring for small children. Apparently, she had a discussion with Ding “Ann” Zhang, a director of the defendant, in the early part of 2019 about wanting to work shorter hours because of “back discomfort”.[2]
[2] APCB 121.
7On 30 April 2019, the plaintiff attended on a general practitioner, Dr Jing Yi Shu, with a complaint of back pain, triggered by “long hours standing, seating [sic] or lifting” but no specific recorded reference by Dr Shu to the childcare work.[3]
[3] Report of Dr Shu dated 19 April 2024, APCB 132.
8Next, on 14 August 2019, she underwent a CT scan of her lumbar spine,[4] which was reported as demonstrating “mild diffuse non-compressible bulging discs at L4/5 and L5/S1”. The plaintiff then commenced conservative treatment, including chiropractic treatment.
[4]APCB 73.
9On 5 September 2019, she ceased work for the defendant, in her words, “due to back pain”.[5] By then she had discussed with her employer that the work was causing strain on her back.[6]
[5] Affidavit of the plaintiff sworn 6 April 2023 at [10].
[6] APCB 121.
10After ceasing work with the defendant, the plaintiff continued with conservative treatments, including traditional Chinese massage, physiotherapy, and chiropractic treatment.
11In mid-2021, the plaintiff returned to work with a different employer, at “Little Juniors Childcare and Kindergarten” in Glen Waverley. She said she worked about 23 shifts, but the work aggravated her back pain and she stopped again.
12Since ceasing work with Little Juniors Childcare and Kindergarten, the plaintiff has not engaged in paid employment.
13The plaintiff did not make a claim for compensation at the time she developed back pain with the defendant. On 15 June 2022, she lodged a WorkCover claim for injury alleged to have been suffered with the defendant. That claim was accepted, and she continues to be in receipt of WorkCover weekly payments.
14From approximately June 2022, the plaintiff has attended Dr Stanley Chiang as her general practitioner. He continues to provide WorkCover certificates of total incapacity, and the plaintiff has declared on those certificates that she has not worked for the periods for which she has had certification.
The proceeding
15Against that backdrop, when this proceeding commenced, the plaintiff claimed to have suffered a “serious injury” within the meaning of s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).
16Specifically, the plaintiff claimed to have suffered a “serious injury” by reason of a physical injury to the lumbar spine and separately by reason of a psychiatric reaction. She claimed to have suffered serious pain and suffering consequences and serious loss of earning capacity consequences from one, or the other, of the claimed serious injuries.
17However, at the conclusion of the oral evidence, the plaintiff abandoned the claim based on the psychiatric injury and she also abandoned any claim for pecuniary loss damages. The plaintiff ultimately sought the leave of the Court to commence a common law claim for pain and suffering damages only in respect to a claimed physical injury to the lumbar spine.
18The amendment of the plaintiff’s claim occurred in the context of video surveillance that the defendant played and tendered to the Court during cross-examination, and to which I shall return, but which broadly showed her attending at her husband’s mechanic’s workshop, on several days, and doing odd jobs for the business.
19The proceeding was otherwise conducted in the usual manner. The parties tendered medical reports and documents relied on by them. The plaintiff tendered two affidavits sworn by her, together with an affidavit from her son and an affidavit from her husband. She gave oral evidence. As mentioned, the defendant played in Court and tendered covert video surveillance obtained of the plaintiff.
The issues for consideration
20The legal principles are well known and are not in dispute. In summary, the issues that are in dispute in this proceeding are essentially factual issues relevant to:
(a) whether the plaintiff suffers an ongoing compensable injury to her lumbar spine (“the causation issue”);
(b) the credit of the plaintiff;
(c) the extent of any ongoing impairment and impairment consequences from any ongoing work-related injury to the lumbar spine (“the consequences issue”); and
(d) the overlap between the claimed physical injury and any emotional response (“the disentangling issue”).
The plaintiff’s evidence
21It is convenient to commence with a consideration of the plaintiff’s evidence. That evidence was given initially in two affidavits sworn by her on 6 April 2023,[7] and 3 April 2024.[8]
[7]APCB 28.
[8]APCB 33.
22In her first affidavit, the plaintiff set out the circumstances in which she developed back pain. She went on to set out a range of pain and suffering consequences including interference with sleep, difficulty dressing, cleaning the house, undertaking laundry, gardening, driving, personal relations with her husband and cooking. The plaintiff said that her back injury prevented her from returning to work in childcare or any job with a physical component.[9]
[9]APCB 32.
23Then, in a second affidavit, the plaintiff set out evidence of her ongoing treatment with Dr Stanley Chiang. She provided more detail of her history of treatment, and how her ongoing treatment remained conservative with regular physiotherapy and hydrotherapy. She said she had ceased taking medication because it caused stomach problems “however if the pain becomes unbearable I will take the pain medication”.[10]
[10]APCB 36.
24In the second affidavit, the plaintiff set out in greater detail her ongoing back symptoms. She described pain in her back that at times radiates to the right leg. She described restrictions for housework, gardening and the like. She was more expansive regarding her inability to return to work because of her back injury and described how she struggled to sit or stand for prolonged periods without suffering a flareup. She said she struggled with bending and lifting, and throughout the day there were flareups requiring her to lie down for 30 minutes.[11]
[11]APCB 41.
25The plaintiff was cross-examined about what she had said in her affidavits, which she as true and correct. She acknowledged that Dr Chiang was still writing letters for her to get services from the WorkCover Agent such as taxis and gardening.[12] She confirmed that Dr Chiang continued to provide her with certificates of capacity saying that she had no capacity for work.
[12]Transcript (“T”) 24, Lines (“L”) 16‑25.
26There was appropriate cross-examination about her work history and potential transferable skills, but some of that falls away in circumstances where the claim for pecuniary loss was not pursued, although it is broadly relevant in respect to an assessment of her credit.
27The plaintiff was cross-examined about an activities of daily living assessment and report from B2W Solutions prepared by Preston Ho Chun.[13] She confirmed what had been recorded in that assessment as accurate, including her reported difficulty lifting, that she would need help carrying a bag of 5 kilograms of rice from the supermarket, and how she was able to put the clothes in the washing machine, but to do so required the use of a chair to sit on. She further confirmed as accurate the history given to Preston Ho Chun that she did shopping but required assistance from her family with carrying heavy items “including a jar of milk or a bag of rice”.[14]
[13]Amended Defendant’s Court Book (“ADCB”) 75.
[14]ADCB 80.
28The defendant then played covert video surveillance of the plaintiff obtained at various times on 6 July, 23 August, 24 August, 25 August, 25 September, and 26 September 2023.[15]
[15]Exhibit D1.
29As discussed with counsel, on one view, the video surveillance was remarkable for being unremarkable. It showed that on several days, she engaged in what she ultimately agreed was her regular routine of walking for 30 minutes or so at a park in the morning, before attending at her husband’s mechanic workshop. The video showed that she would spend several hours at a time at the workshop. She accepted that she had not told any doctor or said anything in her affidavits about attending at the workshop. Her explanation for that was:
“Because I did not regard the business of work, so I just, you know, live as a - like a normal day life, you know, just you know, went there to see my husband and to be his company.”[16]
[16]T56, L21‑24.
30The video surveillance showed her doing odd jobs at the workshop such as recording information from customers, taking a fuel can on a trolley to a service station to bring fuel back to the workshop and locking up the workshop early one evening, after her husband had left for the day.
31The plaintiff said that she was not paid for the “work” that she did at the workshop. She accepted that she went to the workshop most days.[17] She said she often goes just to see her husband, but that if he needs help then she provides help.[18]
[17]T62, L30.
[18]T63, L3.
32The plaintiff denied doing any bookkeeping or paid work in the mechanic business.
33I am conscious that the video surveillance must be seen both in time and context. It is also relevant to consider what the plaintiff said about it and whether it had been provided to medical practitioners for comment.[19]
[19] Church v Echuca Regional Health [2008] VSCA 153; 20 VR 566.
34The defendant made an admission that it had the plaintiff under surveillance for a total of nine days from 26 June until 26 September 2023, for a total period of 46 hours, during which 62.5 minutes of video surveillance was obtained, all of which was played in court and tendered.[20] Therefore, I approach the video surveillance that was tendered as the ‘high water mark’ of what was seen over the time that she was under surveillance over the nine days.
[20] T 104, L11-15.
35On my assessment, the video surveillance demonstrated that the plaintiff was able to engage in regular light exercise, consistent with what she had told the doctors and said in her second affidavit that “I walk each day”. It showed that she was able to engage in mundane daily activity such as driving or running errands for her husband without any obvious restriction, save for perhaps one occasion when she bent down to adjust her shoe in a manner that appeared awkward, but whether that was because of a problem with her back is hard to say. Certainly, there was no apparent discomfort or restriction for driving, standing, walking, or wheeling the trolley with the fuel can on it. At other times, she was observed to carry her daughter’s backpack and to carry other small items.
36In isolation, taken as the ‘high water mark’ of the defendant’s attack on her credit, the video surveillance was not devastating. But it calls into question the reliability of some of the plaintiff’s evidence, such as her assertion that she would have difficulty carrying “a jar of milk”.
Credit
37The defendant submitted that the video surveillance demonstrated that the plaintiff was dishonest. It placed emphasis on what the plaintiff was shown to do at the workshop and the complete failure to mention the workshop in her affidavits, or when attending doctors either for treatment, or for medico-legal purposes.
38The defendant submitted that the plaintiff does more than just drop in on isolated occasions at the workshop to visit her husband.[21] It invited the Court to conclude that the plaintiff was working in the business. It highlighted what it said were the glaring deficiencies in the lay affidavits regarding her attendance at the workshop.
[21]T114, L13‑14.
39Next, the defendant submitted that “the plaintiff’s credit is very much in issue in this case, particularly given that benign or borderline nature of the radiology” and that “the surveillance is significant. Not only in relation to the work, but also in – the attendance at the workshop and the defendant’s – the defendant highlights that the plaintiff fills in at the front desk and might do things from time to time”.[22]
[22]T116, L15‑23.
40In short, the defendant submitted that the video surveillance, in the context of the failure to mention the workshop in her affidavits or to any of the medical practitioners, went beyond unreliability to the point of dishonesty.[23]
[23] T111, L17-19.
41On the other hand, senior counsel for the plaintiff submitted that the video surveillance did work against the plaintiff’s credit, but that it was by omission rather than by a positive denial.[24]
[24]T123, L4‑5.
42It was submitted on behalf of the plaintiff that in attending at the workshop she was performing an action which was just part of her daily routine and one which she had not thought necessary to divulge to the doctors in circumstances where she did not regard going to the workshop as work.[25] In that sense, her senior counsel submitted that she was not “positively lying”.[26]
[25]T125, L3‑8.
[26] T 123, L13-14.
43On her behalf, it was submitted that on a consideration of the whole of the evidence, she should be evaluated on her good work record, the history given to doctors, the manner in which she gave her oral evidence and then assess her to see whether the “sin of withholding is worthy to ruin her credit on all matters”.[27]
[27] T 124, L13-18.
44Pausing, it is relevant that the plaintiff gave her evidence via an interpreter and that English is not her first language. It is also relevant that in her oral evidence the plaintiff presented in a reasonably straightforward manner, without embellishment or trying to obfuscate about what was shown on the video. She did, however, present in the witness box as slightly pain-focussed and changed posture on a regular basis and perhaps more than might have been expected based on the video. But overall, I consider her oral evidence to have been reliable.
Conclusion regarding the plaintiff’s credit
45First, to decide the issues for determination I must consider the whole of the evidence.[28] Therefore, even if I concluded there had been a deliberate dishonesty by the plaintiff that does not, of itself, mean that the balance of the evidence is to be ignored.
[28] Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104.
46However, if her credit is impugned, then it flows that any subjective complaint of pain, or of impairment consequences, must be considered in the context of her credit and the reliability of her evidence. In such a scenario the objective evidence, including what was shown on the video surveillance, assumes importance.
47In this proceeding, I conclude that the plaintiff’s credit was impugned by the failure to mention to any doctor, or to say anything in her affidavits about her regular routine of attending at the workshop. So much was acknowledged by her counsel.
48The plaintiff failed to give an accurate description of her physical capacity for the sorts of odd jobs she was seen undertaking at the workshop. For example, the task of wheeling a trolley and using a fuel can appears in conflict with the history she provided of needing to sit on a chair to load items of clothing into the washing machine. Whether that was a deliberate withholding, or an omission because of a genuine, misguided belief that the attendance at the workshop was not “work” does not matter much. Either way, relevant, reliable evidence of her “after injury” impairment and impairment consequences were not provided.
49The fact is that on a regular basis the plaintiff attends at her husband’s workshop, for hours at a time, and when needed, helps with errands, or filling in at the reception desk, and closing the workshop when he is not there. There is no suggestion that it was a one-off attendance, or something that a person might forget. It is hard to escape the conclusion that it was a deliberate withholding of relevant evidence, particularly given the several medico-legal assessments where the examiners clearly asked questions about her daily routine.
50But there is no evidence that attending at the workshop is regular work, or work for which she could reasonably be expected to be paid. I do not accept the submission that she is engaged in work and therefore fraudulently receiving WorkCover payments, noting that she gave evidence with the grant of a certificate under s128 of the Evidence Act 2008.
51I accept the submission on her behalf that the video surveillance does not destroy her case. Most of what it showed her undertaking, such as dropping her daughter at school or going for a walk, had been disclosed in the evidence. The odd jobs for the workshop did not appear to be heavy or onerous. Having said that, her subjective complaints of pain and restrictions for daily activity are more difficult to accept where there has been a failure to provide a true account of a regular activity and physical capabilities for the light odd jobs shown in the tendered video.
52The video surveillance at first blush might appear unremarkable but given some of the evidence of the plaintiff of alleged levels of pain and impairment consequences, it can equally be said to be remarkable. In that context, the video surveillance was a hit to the solar plexus for her claim for pecuniary loss serious injury, which was abandoned, but on the whole of the evidence, I do not consider it to have been a knock-out blow for the claim that was pursued for pain and suffering.
Lay affidavits
53It is convenient at this juncture to consider the lay affidavits upon which she relied. Before doing so, regarding general principles, I note what was said by the Court of Appeal in Petrovic v Victorian WorkCover Authority,[29] including that there may be cases where the failure to cross-examine an independent corroborative witness is significant so far as the weight to attach to such evidence.
[29][2018] VSCA 243.
54But, as was also said in Petrovic, the failure to cross examine a lay witness at other times should be considered for the weight to attach to such lay evidence, because such lay evidence has itself also been poisoned by the challenge to the plaintiff’s credit.
55In fact, in this proceeding, the deficiency of the lay affidavits goes beyond the poison injected during cross-examination of the plaintiff. As I shall discuss in a moment, the lay affidavits are also silent as to the workshop, or the plaintiff attending the workshop. Accordingly, I consider that the lay evidence needs to be considered in the context of the adverse credit findings regarding the plaintiff’s evidence, but also for the obvious shortcomings in the lay affidavits themselves.
Qian Chan
56The plaintiff relied upon an affidavit from her husband, Qian Chan, sworn 9 April 2024.[30] His affidavit set out how they had met, their family life and shared interests. He described the restrictions he had observed of his wife for activity such as driving, fishing, standing and the like. He said he could see his wife struggling with pain. He described how it had interfered with her ability to play with their daughter. He described how his wife rarely did gardening, the effect of back pain on her mood and on their relationship.
[30]APCB 49.
57However, remarkably, the affidavit of the plaintiff’s husband did not state his occupation or that he was a self-employed mechanic.
58Further, his affidavit did not explain that he was running a mechanic workshop that employed a receptionist and three other mechanics and which was sufficiently busy so that from to time his wife had to attend and help with tasks as shown on the video surveillance. He said nothing about her routine of attending on most days for several hours. He failed to say anything about the sort of activity the plaintiff was shown performing when on at least one occasion she closed the workshop for the day when he had already left.
59The plaintiff may not have thought it necessary to describe her regular routine of attending at the workshop. But in the context of her evidence that her husband works long hours, so much so that she goes to the workshop so that she and her daughter can actually see him, it could be expected that he might describe his observations of her back restrictions by reference to what he sees of her at the workshop and for example, explain the circumstances in which he requested his wife to run errands for him, such as fetching fuel.
60In final submissions, I described to the plaintiff’s counsel that the affidavit from her husband was something of an “own goal”[31] because of the unreliability of it, and his failure to mention the workshop. Accordingly, I do not attach much weight to what her husband has said about his observations of his wife and the effect of any back injury in circumstances where he has left out the almost daily, if not daily, observations that he would have of his wife at the workshop and when helping out at the workshop.
[31] T 129, L30.
61The successful credit attack on the plaintiff also casts doubt on the reliability of her husband’s affidavit evidence. In such a scenario, the failure to compel him for cross-examination is of no moment (and was not pressed by the plaintiff).
62Pausing, in so far as I am critical of her husband’s affidavit, I am not seeking to infer that there was some sort of collusion between them to mislead the Court. There was no such suggestion put to her during cross examination. But I am critical of the lack of reliable evidence in her husband’s affidavit.
Yuzhao (“Andy”) Chen
63Next, the plaintiff relied on an affidavit from her adult son, Yuzhao Chen, sworn 5 April 2024.[32] That affidavit also provided corroborative evidence of the plaintiff’s ongoing back pain, including that his mother does not now like to go out. He said, “if I need her to pick me up from somewhere or to collect a parcel for me from the post office, she is very reluctant to do so”.[33]
[32]APCB 46.
[33]APCB 47.
64Once again, that lay evidence seems inconsistent with the video surveillance. His claim that his mother is reluctant to collect parcels on his behalf, does not sit comfortably with the activities she was seen to perform, without any obvious restriction, in the tendered video surveillance.
65Further, in circumstances where he still lives at home and so most likely knows of his mother’s usual, daily routine, it is again remarkable that her son made no mention of the workshop.
66Senior counsel submitted that any failure in the lay affidavit of her son arose as a failure in the drafting rather than something to be used against her.[34] It was submitted that the overall task was to consider whether the Court can trust the plaintiff’s account and “is the absence of something in the son’s affidavit something to wear back onto the plaintiff”.[35]
[34] T 130, L29-30.
[35] T 131, L13-15.
67To be clear, if there was an error in the drafting of an affidavit then I would expect a witness to provide evidence in support of such a submission. In the absence of evidence to form a proper basis that there had been a drafting error, the evidence of the witness is as deposed to. But, again, I do not go so far to conclude there was a deliberate plot between the plaintiff and her son to withhold relevant information.
68Overall, both the plaintiff’s husband and her son provided deficient evidence in their affidavits. They each failed to provide relevant evidence of her regular routine of attending the workshop, where they must each have been aware of the workshop and of the plaintiff attending at it.
69The short point is if the plaintiff’s credit was impugned but not destroyed. I consider that her evidence is unreliable in regard to her description of pain and impairment consequences. The unreliability of the lay evidence is no antidote to the defendant’s credit attack on the plaintiff.
The objective evidence
70Because the plaintiff’s subjective complaints of pain and impairment consequences is unreliable, to prove a “very considerable” pain and suffering consequence, the objective evidence of such pain and impairment consequences must be carefully scrutinised through the prism of her unreliability. But, by the same token, where I consider that her credit was not totally destroyed by the video surveillance, I also consider that I should not ‘throw the baby out with the bath water’ and uncritically reject the medical evidence.
71In this regard, the plaintiff submitted that her evidence (leaving to one side the non-disclosure of the workshop activity) was consistent as to symptoms, including sufficient symptoms to take her out of work in childcare, in the context of the objective medical evidence of “injury”. It was submitted that the interference with her work was “worthy of a pain and suffering consequence” because of her sworn evidence that “she loved childcare work”.[36]
[36] T 134, L12-26.
72Before considering the medical evidence in the context of the submission about her lost work capacity, I note that the other evidence of impairment consequences falls away, to some extent, because of the successful attack on her credit. The objective evidence revealed that the plaintiff can drive as needed, exercise, care for her daughter, run errands for the workshop and help as needed. She takes little or no medication, apart from an occasional over the counter pain killer. Her ongoing treatment is conservative.
73In a consideration not only of what has been lost but also what has been retained, leaving to one side for now the interference for childcare work, the objective evidence supports a conclusion that such impairment consequences as reliably established might be capable of being said to not be trivial, or even “marked” or significant” but not “very considerable.[37]
[37] TTB SMS Pty Ltd v Reading [2020] VSCA 203.
Medical evidence & ability to work in childcare
74Having disposed of the ‘credit issue’ I shall next deal with the evidence relevant for both the ‘causation issue’ and the ‘disentangling issue’ in (hopefully) relatively short compass, as much of it is not in dispute.
75If necessary, I will then return to consider the relevant medical evidence for a consideration of whether “after injury” the plaintiff could work in childcare.
The causation issue
76In summary, I am satisfied that the whole of the evidence establishes that the childcare work with the defendant caused the plaintiff to develop low back pain. There is no suggestion that she had any previous problems with her back before commencing with the defendant. The statement from Ms Zhang[38] corroborates the plaintiff’s evidence that she developed back symptoms at work in early 2019 and provides evidence that the sort of work the plaintiff did with the defendant could cause workers to become symptomatic in the back.
[38] APCB 120.
77Next, effectively, all the expert medical opinions support the conclusion that the work with the defendant caused the plaintiff to aggravate previously asymptomatic degenerative change in the lumbar spine and to continue to have symptoms because of that injury.
78Dr Louise Barberis, occupational physician, provided a report dated 23 January 2023 to the defendant in which it was opined that the plaintiff had suffered the aggravation of degenerative change in her lumbar spine because of her work with the defendant. Dr Barberis further opined that, where the plaintiff had attempted a return to work in 2021, the aggravation from the work with the defendant had ceased. Dr Barberis said that any ongoing back symptoms related to the pre-existing and unrelated degenerative changes as shown on radiology.
79The defendant submitted that the issue of ongoing causation had been “enlivened by Dr Barberis” but acknowledged that Dr Barberis stood alone in that opinion.[39] Sensibly, it did not press the causation issue with any force, instead moving on to highlight issues to do with disentangling and credit.
[39] T106, L19-27.
80Because the defendant did not give up on the causation issue, it is necessary to record that Dr Barberis’ opinion is against the weight of the medical evidence. Her opinion that the plaintiff’s current symptoms are no longer related to the work with the defendant is far from compelling. Dr Barberis does not provide a path of reasoning why she regarded the plaintiff’s attempt to return to work in 2021 as the explanation that any ongoing symptoms now relate to the underlying degenerative change. Dr Barberis does not satisfactorily explain how or when it was the accepted aggravation injury with the defendant ran its course and was overtaken by the underlying condition.
81A consideration of the whole of the evidence leads to the conclusion that the plaintiff aggravated previously asymptomatic degenerative changes in her spine because of the work with the defendant, and that work remains causative of ongoing symptoms.
The disentangling issue
82Next, the defendant submitted that there was a ‘disentangling issue’ (which is really a submission that the plaintiff failed to discharge her evidentiary onus to establish the impairment and impairment consequences referable to the claimed back injury) which arose in this proceeding.
83The defendant highlighted, as an example of ‘disentangling’ the opinion from Dr Hazem Akil, consultant neurosurgeon, who reported to the plaintiff’s solicitors on 17 November 2023.[40] Having obtained a history, conducted an examination and reviewed relevant documents, Dr Akil opined that the plaintiff had features “compatible with aggravation of lumbar spondylosis” and that “having taken into consideration the type of activities that she used to perform at work, I do believe that her work is a significant contributing factor”.
[40] APCB 77.
84Dr Akil then said that he believed there was a “significant psychological component to her presentation”.[41] This, presumably, was the reason the defendant highlighted his opinion as an example of the ‘disentangling issue’.
[41] APCB 79.
85But Dr Akil went on to say that here was “an organic basis of her lumbar spine symptoms as well as a psychological component”.[42] He then set out restrictions for physical activity including for bending, lifting, sitting, pushing or pulling,[43] which can only be restrictions linked to the organic injury and within his area of expertise. Notably Dr Akil did not say there were no restrictions from the identified organic injury, or that he could not appropriately assess any such restrictions because of the co-existent psychological condition.
[42] APCB 80.
[43] Ibid.
86I reject the defendant’s submission that the plaintiff had failed to ‘disentangle’ the ongoing consequences from the organic back injury from any psychologically driven consequences. That is because the medical examiners, such as Dr Akil, who diagnosed an ongoing physical condition have also been able to diagnose the symptoms and consequences from that condition, with the caveat of the reliability of what the plaintiff told them.
87In other words, this is not a proceeding where the physical doctors opined that any ongoing physical injury cannot be assessed because of a co-existent psychological condition.
The consequences issue
88This brings me to the pointy bit, namely the relevant evidence for a consideration of ongoing impairment consequences and the plaintiff’s claim of an inability to work in childcare.
89As a prelude to this topic, it is relevant that none of the medical practitioners were aware of the plaintiff’s regular attendance at the workshop, or of the activities that she performed at the workshop. But several of them were aware of her regular routine of walking. It is also relevant that the video surveillance did not show the plaintiff to do much by way of bending, twisting or lifting, which is the type of activity that she had to do when caring for babies and toddlers.
Dr Stanley Chiang
90The plaintiff’s current General Practitioner is Dr Stanley Chiang and he provided two medical reports. In his first report dated 23 February 2023[44] he commenced by clearly stating why he disagreed with the opinion from Dr Barberis. He went on to say that he considered the degenerative changes were “entirely due to her previous work-related back injury, a fact that cannot, and should not be denied”.[45]
[44] APCB 52.
[45] APCB 53.
91Next, in a report dated 18 December 2023, Dr Chiang repeated his opinion that the plaintiff had an ongoing back injury caused by her work with the defendant. He was then asked if the plaintiff could perform her pre-injury duties, to which he forcibly answered that; “NO. Her injury prevents her from performing any manual, physical duties at present and in the future”.[46]
[46] APCB 55.
92Dr Chiang made pessimistic comments about a possible return to work and described the prognosis as “very poor I am afraid”.[47]
[47] APCB 56.
93The defendant tendered extracts from Dr Chiang’s clinical records, together with items of correspondence he had provided in support of ongoing gardening and taxi services for the plaintiff. His clinical notes suggest that his consultations with the plaintiff have been mainly, if not exclusively, by telehealth. As recently as 4 January 2024 he wrote a letter supporting ongoing gardening services “due to work related pain and disability”.[48]
[48] ADCB 159.
94There is a tenor in the material from Dr Chiang that his impression of the plaintiff’s ongoing pain and impairment is greater than that proven by the video surveillance. There is a flavour that he has accepted what his patient has told him without any doubt about the voracity of her complaints and in my opinion that limits the usefulness of his opinions about impairment consequences and ongoing restriction for work.
Dr Katie Rogers
95Dr Katie Rogers is a pain specialist who saw the plaintiff for treatment and provided a report to Dr Chiang dated 15 May 2023.[49] Her opinions are not particularly supportive of the plaintiff’s claim for a serious physical back injury. Dr Rogers described the plaintiff as having a “somatic focus” and said medication would have more of a role of “managing her mood”.
[49] APCB 57.
Mr Yongzhen (“Hank”) Yu
96Mr Yongzhen (“Hank”) Yu is a physiotherapist who has treated the plaintiff. In a letter dated 4 April 2023[50] he briefly described treatment and treatment goals, and of his efforts to provide the plaintiff with pain education. His report does not otherwise assist much for the issue of identification of impairment consequences from a physical injury.
[50] APCB 67.
97Next, in a lengthier report dated 19 April 2024, Mr Yu set out the ongoing treatment in the setting of the plaintiff’s described restrictions and reported “high level of pain”.[51] He proceeded to diagnose “chronic low back pain with global deconditioning and mental health complications”,[52] before criticising the conduct of the defendant in managing the claim.
[51] APCB 128.
[52] Ibid.
98Mr Yu opined that the plaintiff would have long-term work disability and unable to return to any employment involving mild to moderate physical activity. He noted her tolerance for walking had progressed from 5 to 30 minutes since the commencement of physiotherapy treatment, but that she was at risk of long-term persistent pain.[53]
[53] APCB 130.
99Mr Yu appears to be unaware of the workshop activity, but his description of the plaintiff’s walking tolerance seems to be correct.
Mr Roger Chan
100Mr Roger Chan is a physiotherapist who treated the plaintiff soon after she developed back symptoms. In reports dated 20 December 2019 and 24 January 2020[54] he set out that treatment and how the plaintiff had responded well.
[54] APCB 68 and 69.
Dr Frank Whelan
101Frank Whelan is a chiropractor who treated the plaintiff. He provided reports dated 15 April and 25 June 2021 that described the treatment by him and how it was aimed to allow the plaintiff to maintain “an acceptable level of functional capacity”.[55]
[55] APCB 70-72.
Dr Hazem Akil
102Returning to the medico-legal opinion from Dr Akil relevant to work capacity, in his report of 17 November 2023 he said that he did not believe the plaintiff could return to her pre-injury duties but that a return to work may be possible if she could alternate between sitting and standing.[56]
[56] APCB 79.
Dr Joseph Slesenger
103Dr Joseph Slesenger is an Occupational Physician who examined the plaintiff for medico-legal purposes at the request of her solicitors. In a report dated 6 February 2024,[57] he diagnosed a soft tissue injury of the lumbar spine, aggravation of degenerative disease and chronic lower back pain with right leg radiating features but no confirmed evidence of radiculopathy.[58]
[57] APCB 88.
[58] APCB 96.
104Then, regarding restrictions from the lumbar spine injury, he said that was a difficult question to answer because her pain control to date had been suboptimal and she would benefit from referral to a pain specialist.[59] However, he then went on to say there was likely to be permanent restrictions for activity such as bending, lifting and static postures. He said that he believed the plaintiff “cannot return to her pre-injury role as the job demands lie outside her capacity limits”.[60]
[59] APCB 97.
[60] APCB 97.
105Next, in a supplementary report dated 29 March 2024, Dr Slesenger essentially repeated his earlier opinions but in the context of having been told that the plaintiff did not intend having any pain management treatment. He then mostly repeated his earlier opinions regarding work capacity, save that he added that the plaintiff was then to be considered permanently unable to consistently, or reliably attend for work “after injury”.[61]
[61] APCB 107.
Mr Bruce Love
106The plaintiff tendered a report from Mr Bruce Love, an orthopaedic surgeon who examined the plaintiff at the request of the defendant and reported on 14 July 2022.[62] Mr Love diagnosed early age-related degenerative change in the lumbar spine, causally related to her employment with the defendant.[63] He said she did not have a capacity for pre-injury duties but would have a capacity for suitable sedentary work if that was available to her.[64]
[62] APCB 133.
[63] APCB 137.
[64] APCB 138.
Mr Peter Lugg
107Mr Peter Lugg is an orthopaedic surgeon who examined the plaintiff at the request of the defendant and reported on 11 August 2023.[65] He obtained a history from the plaintiff, conducted a clinical examination and then reviewed radiology and relevant medical reports and documents. Having done so, he produced what I consider to be a careful, balanced, and considered report regarding the plaintiff’s claimed back injury.
[65] ADCB 13.
108Mr Lugg diagnosed mechanical low back pain.[66] He said that the cause of the pain was most likely to be discogenic but that “properly managed, this condition should be kept well under control”.[67]
[66] ADCB 18.
[67] ADCB 19.
109Mr Lugg said that the precise cause of her injury was not clear but that “the probability is that she most likely developed bulging discs due to repetitive lifting during her work at Dingming”.[68]
[68] Ibid.
110Mr Lugg then said that the plaintiff had a work capacity but not for her pre-injury employment, and that was why he thought the vocational assessments were not very useful.
111Pausing, Mr Lugg’s comments about the vocational assessments is a sentiment with which I broadly agree and other than a consideration of what she told the vocational assessors relevant to her credit, I do not propose to deal with that evidence.
112Returning to Mr Lugg, he said he did not believe the plaintiff was deliberately exaggerating her symptoms, but she did have some symptoms that were not purely physical.[69]
[69] ADCB 20.
Dr Dominic Yong
113The final medico-legal report tendered by the defendant was a report from Dr Dominic Yong, Occupational Physician, dated 30 January 2024.[70] He concluded that the plaintiff had suffered a soft tissue injury to her lumbar spine, with persistent lumbar dysfunction but no radiculopathy.[71] He went on to say the nature of her work with the defendant could reasonably lead to the onset of the back condition.[72] He said employment was still a materially contributing factor.
[70] ADCB 23.
[71] ADCB 30.
[72] ADCB 45.
114Dr Yong provided a lengthy analysis of various proffered jobs for the consideration of ‘suitable employment”. It is unnecessary to say much beyond that he thought her pre-injury employment would now likely aggravate or exacerbate her back condition and exceed her capabilities “after injury”. He said that she had a work capacity with various restrictions for bending, twisting, lifting and the like.[73]
[73] ADCB 32.
Analysis of medical evidence and the claim for serious injury
115A consideration of the whole of the medical evidence, causes me to conclude that the plaintiff aggravated or rendered symptomatic, degenerative change in her lumbar spine, because of her work with the defendant.
116Taking into consideration that evidence in combination with the video surveillance, I conclude that the plaintiff has a residual capacity to perform light physical or sedentary employment. It is relevant that the video surveillance did not show her to do anything heavy, repetitive, or inherently inconsistent with the medical opinions I have set out, save that self evidently the doctors did not have the full story.
117In short, I consider that even with the attack on her credit, a consideration of the whole of the evidence is such that she now has what could be called a “light work back”. In that regard, the light work seen on the video is not inconsistent with the opinions of the medical practitioners.
118Consistent with the opinions from Mr Lugg and Dr Young, who both got a reasonable picture of the plaintiff’s residual capacity, I conclude that the plaintiff cannot return to her pre-injury employment in childcare. The activity on the video surveillance was not remarkable and not activity that renders those medical opinions as irrelevant.
119I am conscious that pure loss of earning capacity consequences are not relevant to the assessment of consequences when dealing with an application for leave to commence a proceeding for pain and suffering damages only. I do not consider the actual financial losses. But it is relevant to consider any frustration or loss of pleasure that the inability to undertake the relevant work activity produces.[74]
[74] Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326.
120To recap, in her affidavit sworn 3 April 2024 the plaintiff said that she “loved the job” with the defendant and that she “loved working with children and in childcare” and that “it makes me sad that I have lost this as a career path”. On her behalf it was submitted that the loss of this job that she loved was sufficient for a pain and suffering conclusion.
121I accept that she cannot return to childcare, and that it was a job that the plaintiff enjoyed and that she loved working with children. Her description of loving the work is consistent with the fact that she was pursuing better qualification to continue to work in that industry when she was injured.
122It is relevant that she still has a range of job options open to her, including in sedentary type employment. But there is no real suggestion that she could return to look after children in a work setting and the video surveillance did not prove otherwise.
123Notwithstanding the attack on her credit, I accept her evidence that she wanted to remain in the childcare industry and that she loved the work with the children.
124I have earlier set out what the plaintiff retains. But I cannot ignore what she has lost. I accept that she has a persisting low back condition – the aggravation of previously asymptomatic lumbar degenerative change. I note her relatively young age. I accept that she requires ongoing conservative treatment. I accept that she has a ‘big ticket’ loss of the work in childcare that she loved. When those consequences are synthesised, I consider that she has proven a “very considerable” pain and suffering consequence.
Conclusion
125In summary, a consideration of the whole of the evidence does demonstrate a “very considerable” pain and suffering consequence.
126Accordingly, leave is granted to the plaintiff to commence a proceeding for pain and suffering damages.
127I shall hear from the parties as to consequential orders.
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