Yannopoulos v Australian Home Care Services Pty Ltd
[2013] VCC 20
•4 February 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-12-00043
| JUDY ANN YANNOPOULOS | Plaintiff |
| v | |
| AUSTRALIAN HOME CARE SERVICES PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 and 30 January 2013 | |
DATE OF JUDGMENT: | 4 February 2013 | |
CASE MAY BE CITED AS: | Yannopoulos v Australian Home Care Services Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 20 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – pain and suffering – identity of injury
Legislation Cited: Accident Compensation Act 1985
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33; Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167; Ansett Australia Ltd v Taylor [2006] VSCA 171; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1.
Judgment: Leave granted to bring proceedings for pain and suffering damages only.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Chancellor | Maurice Blackburn |
| For the Defendant | Mr J Batten | Thomsons Lawyers |
HIS HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the defendant between June 2004 and January 2005 due to the nature of her employment; alternatively, a discrete injury suffered on or about 15 June 2004 (“the injury”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only. She brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There “serious” is defined relevantly as meaning “(a) permanent or loss of a body function”.
3 The body function relied upon in this application is the lumbar spine.
4 The plaintiff relied on two affidavits and gave viva voce evidence. She was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Outline of Section 134AB
5 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
6 The plaintiff bears an overall burden of proof upon the balance of probabilities.
7 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being more than “significant” or “marked” and as being “at least very considerable”.
8 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function.[1]
[1]Section 134AB(38)(b) of the Act
9 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[2] in reaching my conclusions.
[2](2005) 14 VR 622
10 The defendant concedes that it accepted liability for an organic injury suffered by the plaintiff in the course of employment on 15 June 2004 but does not concede that such injury meets the requirements of sub-paragraph (a) of the definition of “serious injury” referred to above.
11 The two significant areas of dispute between the parties are:
(a) whether or not the plaintiff has sufficiently identified the physical injury which is said to cause consequences which are “serious” in terms of the legislation; and
(b) whether the consequences to the plaintiff of the impairment can be described as “serious” when judged by comparison with other cases in the range of possible impairments or losses of a body function.
Compensable physical injuries
12 It is common ground that a compensable injury occurred in the course of the plaintiff’s employment as a carer on 15 June 2004.
13 The defendant’s counsel urges that the injury has not been sufficiently identified as being more than a simple musculoligamentous strain, the consequences of which are unlikely to be permanent, and from which there was probably full recovery at or about the time that she was certified for full duties by her treating general practitioner in August of 2004.
14 The plaintiff’s counsel relies, essentially, on the diagnosis of Mr Michael Shannon, general surgeon, retained on behalf of the defendant, in his report dated 5 November 2010.[3] Mr Shannon examined the plaintiff on 3 November 2010 for the purposes of providing an impairment assessment following an application by the plaintiff pursuant to s98C of the Act. He recorded a history that in June 2004, the plaintiff felt a sudden onset of pain in her low back, extending into the buttocks, when rolling a patient onto his side physically. She went back to “light duties” after a few weeks with some assistance but her back did not recover and she remained on those light duties until January 2005. She returned to school to improve her qualifications but resigned in May 2005 and had not worked since because of an inability to do the work. She told him she had had a lot of physiotherapy and had also attended pain management and hydrotherapy.
[3]Exhibit P
15 The plaintiff further described ongoing pain into the low back extending predominantly into the left buttock. An MRI scan of the lumbar spine had shown multilevel mild loss of signal with minor disc bulging but no focal disc prolapse. Mr Shannon considered the plaintiff to be suffering from mechanical back pain associated with multilevel lumbar disc degeneration which had been aggravated by her employment. He thought there would be some permanent aggravation given the continuation of symptoms for some six years up until that time.
16 Mr Shannon thought the plaintiff’s back condition had stabilised and that she was permanently unfit for her normal occupation or other work involving significant bending or lifting. He assessed her at a 5 per cent permanent impairment according to the above standard.
17 This medico-legal opinion was essentially agreed to by both Mr O’Brien, orthopaedic surgeon, in his report dated 18 July 2012[4] and Dr Horsley, occupational physician, in her report dated 10 January 2013,[5] together with Mr Michael Dooley, orthopaedic surgeon, retained on behalf of the defendant, in his report dated 17 July 2012.[6]
[4]Exhibit Q
[5]Exhibit R
[6]Exhibit T
18 Counsel for the defendant submits that these opinions are unreliable, in that they fail to address the “true” histories attested to by the plaintiff in the witness box to the following effect:
(a)The plaintiff’s treating general practitioner certified her fit for full duties in August 2004;
(b)The plaintiff performed her full duties thereafter until January 2005, albeit at reduced hours and with some assistance;
(c)The plaintiff, upon resigning in April of 2005, had no medical treatment for her back condition between September 2004 and January 2006, leading to the inference that she had recovered in that time from the June 2004 injury.
19 The plaintiff, for her part, agrees that there was no medical treatment in the relevant period but there had been no cessation of symptoms which had led her to resign in April of 2005. Because of this failure to recover, she re-attended her general practitioner in January 2006 with a history that she had ongoing pain since the occurrence of the injury in June 2004.
20 Against this background, the first question which arises is whether, notwithstanding the lack of treatment between September 2004 and January 2006, the plaintiff is still suffering from a compensable physical injury at the time when the s134AB(16)(b) application is heard?
21 The second question which arises, if the answer to the first question is “yes”, is whether such injury is, at the time of hearing, “serious” in its pain and suffering consequences. Clearly, the plaintiff carries the burden of proof with respect to both matters.[7]
[7]See Jayatilake v Toyota Motor Corp Australia Limited [2008] VSCA 167 at paragraph [142]
22 The answer to the first question depends, in the view of Ashley JA in Jayatilake v Toyota Motor Corp Australia Limited,[8] upon the nature of the compensable low-back injury which the plaintiff suffered. His Honour stated:
“The possibilities really reduce to three: simple musculo-ligamentous strain; aggravation of pre-existing lumbar spinal degenerative disease …; and lumbar intervertebral disc damage — either internal derangement or prolapse — in the setting of pre-existing lumbar degeneration. In general terms, if the first situation was the case, continuance of physical symptoms over a seven year period would be at least improbable. If the second situation was the case, whether continuance of physical symptoms was probable would sensibly depend upon the extent of the aggravation which was established. If the third situation was the case, it could most readily be concluded that physical symptoms continued.”
[8](supra) at paragraph [143]
23 Where his Honour uses the phrase “in general terms”, it must mean that every case will, of course, turn on its own facts.
24 The plaintiff, in her history to Mr Shannon and in her evidence to the Court, describes ongoing pain in the low back extending predominantly into the left buttock since June 2004. The pain is said to flare intermittently with attacks lasting up to two weeks. If I accept that the symptoms have now remained in this form for some eight-and-a-half years, then I consider this history would be consistent with Mr Shannon’s opinion as already expressed. The plaintiff has been cross-examined by experienced counsel and although I accept that her memory is impaired in certain respects, especially with respect to the occurrence of a back injury which lasted at least from 1989 until 1992, she impresses me as a witness of truth with her credit intact.
25 In addition, the plaintiff relies on the principle set out by Ashley JA in Ansett Australia Ltd v Taylor[9] to the effect that the acceptance of a permanent impairment with respect to the back injury by the defendant is probative evidence of an admission to that effect, although it does not amount an estoppel.[10]
[9][2006] VSCA 171 at paragraph [40]
[10]See Exhibit S
26 Accordingly, I am prepared to find that the plaintiff has discharged the onus of proof that she is still suffering from the compensable physical injury at the date of hearing and that the consequences of such physical injury are permanent, as outlined in the medico-legal opinions referred to.
Pain and suffering consequences – principles
27 As has been set out on a number of occasions, but in particular in the Court of Appeal decision of Sutton v Laminex Group Pty Ltd[11] at paragraph 46:
“The pain and suffering consequences of a compensable injury extend beyond the physical experience of pain to include the debilitating effect on a person’s life.”
[11][2011] VSCA 52
28 The Court of Appeal recited with approval the dicta of President Maxwell in Haden Engineering Pty Ltd v McKinnon,[12] where his Honour recorded:[13]
[12](2010) 31 VR 1
[13](ibid) at paragraphs [9] to [11]
“[T]he ‘pain and suffering consequence’ of an injury encompasses both the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life …
The experience of pain
As to the experience of pain as such, the Court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale “mild/moderate/severe”. Unless the pain is constant, the Court will need also to assess the frequency and duration of the pain episodes.
The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
(b) what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c) what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d) what the objective evidence shows about the disabling effect of the pain.
[47] Relevantly to the issues on this appeal, Maxwell P pointed out that the first evidentiary basis will turn on an assessment of a plaintiff’s credit. He said:
As to (a), the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility. The Court will make its own assessment of the plaintiff’s credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.
[48] An assessment of the fourth evidentiary basis must be tempered by an understanding of the effect of stoicism. Approving what was said in Dwyer v Calco Timbers Pty Ltd (No 2) by Nettle JA, Maxwell P observed:
As to (d), the cases recognise that some plaintiffs may be more “stoical” than others. This means that such a plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injury suffered by the “stoical” plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain. In such a case, the “objective” evidence of the disabling effect may be of less significance than usual.
[49] To identify the disabling effect of pain requires an understanding both of a plaintiff’s pre-injury and post-injury employment and activities, although this does not amount to a simple comparison. As Maxwell P explained:
The disabling effect of pain
As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this Court (per Ashley JA) said in Dwyer (No 2): ‘ … [I]mpairment is concerned with what has been lost. But the significance of what has been lost … may be informed, to an extent, by what is retained.’
As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is to the extent to which ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her].’
[50] Assessing loss of enjoyment of life, in a broad sense, requires an understanding of the effect of the impairment upon numerous aspects of a plaintiff’s daily life and activities. In this respect, Maxwell P said:
Capacity for work aside, assessing the extent to which the pain interferes with the ordinary activities of life will typically involve consideration of its effect on the plaintiff’s:
• sleep;
• mobility;
• cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
• capacity for self-care and self-management;
• performance of household and family duties;
• recreational activities;
• social activities;
• sexual life; and
• enjoyment of life.
Whether and to what extent the matters listed are relevant to the court’s task in a particular case will, naturally, depend on the circumstances of the case.”
Pain and suffering consequences of compensable physical injury
29 The plaintiff has sworn that she resigned her employment in or about April 2005 because of the disabling back pain suffered since the occurrence of injury in June of 2004. In particular, she swears that the sitting during the certificate course and the driving to and from the course was such that she could no longer cope in order to continue. I accept this evidence.
30 I also accept that the plaintiff enjoyed her work and had intended to continue therein but for the said back pain.
31 I further accept that the plaintiff has suffered the following consequences as a result of the said injury:
(a)She has daily pain extending into the left buttock, left leg and foot, necessitating the ingestion of four Panadol Osteo tablets per day, together with one Celebrex;
(b)The plaintiff has placed on the market a 3-acre property and house in Malmsbury which she had designed and intended to live in long term prior to her back injury. The reasons for the sale are to do with the inability to maintain the property, particularly the garden, and she intends to move to a retirement village on account thereof;
(c)She attests to having trouble doing the cleaning, cooking, washing and general maintenance that is required of a large two-storey house. Climbing the stairs is difficult and the garden is in disarray. She has stopped driving a manual vehicle and now drives an automatic vehicle because of the back pain;
(d)She cannot pick up her grandchildren and they have to be placed on her lap for her to hold them;
(e)She is unable to sleep in a campervan purchased by her husband for the purposes of holidays and entertaining grandchildren;
(f)Her sleep is disturbed most nights by back pain, in that she cannot find a comfortable position in which to rest. She states she wakes up in the mornings feeling tired and not rested;
(g)She has undergone a pain management course at the Castlemaine Clinic and was placed on the waiting list for treatment at the Bendigo Orthopaedic Clinic.
Findings
32 Taking into account the plaintiff’s experience of pain and disabilities and her honest presentation, it is my opinion that the pain and suffering consequences to which the physical compensable injury materially contributes are “very considerable” and more than “significant” or “marked”. I consider that her injury to the lumbar spine has met the threshold test for leave to bring proceedings for damages under s134AB(19)(a) of the Act.
33 I will hear the parties as to consequential orders.
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