Serious injury - workplace injury - injury to the back - pain and suffering consequences
Source
Original judgment source is linked above.
Catchwords
Serious injury - workplace injury - injury to the back - pain and suffering consequences
Judgment (4 paragraphs)
[1]
What follows is my oral reasons for decision in this proceeding.
First by way of formalities, this is a serious injury application brought pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). For this proceeding, the plaintiff relied upon injury to her spine suffered in the course of work as a child‑care worker for a company identified in the material as OAC and, in particular, for a period from about 2019 onwards.
The proceeding was conducted in a slightly unusual manner, in that the plaintiff now lives in the United Kingdom and gave evidence via video‑link, but the parties otherwise conducted the proceeding in the usual manner via the tender of documents in court books. The plaintiff presented for oral evidence.
Pausing there, the court books are small and each run to some 70‑odd pages.
The plaintiff relied on two affidavits that she had sworn and, in addition, relied upon reports from a general practitioner questionnaire from March 2022, which is of limited utility, a report from Dr Alyisha Tan, a general practitioner from 20 June '22, a report from Dr Danica Newbold, chiropractor, 21 November '22; some radiology and then a medicolegal report of Mr Ash Moaveni, orthopaedic surgeon, 26 February 2025 and, finally, a letter from the treating orthopaedic surgeon, Mr Peter Wilde, back to a general practitioner on 16 November 2020.
From the defendant's court book, there were reports from Dr Fitzgerald, Dr Barton and Dr Doig that span the period January to December '23, but those reports are not of much assistance for the current issue before the court. Otherwise the defendant relied on a report from Mr Armon Drnda dated 22 December 2024, which was effectively a desktop assessment as he did not personally meet with the plaintiff. The defendant otherwise relied on clinical records from the plaintiff's current osteopath, Dr Bradley Lenard and some email correspondence.
The legal principles are well‑known and are not in dispute. For the plaintiff to be entitled to the leave of the court to commence a proceeding for pain and suffering damages, 'the injury must be quite serious', in the sense of the well‑known 'very considerable' test that extends back to cases such as Humphries v Poljak[1] and has been repeated on many occasions. Of course, the injury must be serious to this particular plaintiff and, in that sense, there is no‑one size fits all.
Counsel for the plaintiff, in closing submission, appropriately emphasised that fact. Counsel also, in my view, appropriately conceded that at first blush, the evidence available in this proceeding might not suggest that the plaintiff had made out a very considerable consequence, but counsel emphasised that the plaintiff was now aged in her mid‑30s, was a woman with a range of restrictions, including for sexual intimacy with her partner, and had concerns about the impact of her back injury and, in particular, how it may impact her ability to care for children, should she and her partner be fortunate enough to be blessed with children. But having said that the Court must, of course, consider the range of potential impairments and impairment consequences and not just those that come before the courts.
The case for that proposition is TTB SMS v Reading.[2]
At first blush when I read the material in the court books and reflected on the oral evidence and counsels' submissions, I thought there was some similarity between this proceeding and the scenario that was before the Court of Appeal in Stijepic v One Force Group Australia Pty Ltd and Anor,[3] although, patently, Mr Stijepic was not a woman in his 30s, but Mr Stijepic was a young man, I think then aged 28, who had a range of impairment and impairment consequences that the Court of Appeal said were 'borderline' but ultimately concluded were not serious.
In any event, in this proceeding, the dispute is simply whether or not the plaintiff has made out a "very considerable consequence".
For the purpose of this proceeding, the defendant conceded that the plaintiff had suffered a compensable injury in the course of her employment with OAC and, in that sense, it did not press the thesis advanced by Mr Drnda that the plaintiff had naturally occurring degenerative change in her spine unrelated to employment.
Mr Ash Moaveni in his report diagnosed a soft tissue injury to the lumbar spine, including protrusions at L4/5 and L5/S1, with nerve root compression. In that sense, leaving to one side Mr Drnda's opinion about causation, Mr Moaveni's diagnosis is very similar to Mr Drnda, who said the plaintiff had what he described as 'a condition of the lumbar spine diagnosed as L4/5 disc degeneration with a non‑compression protrusion and an L5/S1 non‑compressive disc prolapse'.
Pausing, it might be thought that there is a slight difference of opinion between Mr Drnda and Mr Moaveni in the sense of compression versus non‑compression, but it seemed to me that nothing much turns on that in this case where the plaintiff does not, in particular, describe radicular or radiculopathy‑type symptoms. At the end of the day, both Mr Drnda and Mr Moaveni are diagnosing a condition involving the two lower levels of the plaintiff's lumbar spine.
For completeness insofar as a description of the injury or condition, Dr Tan, the treating general practitioner diagnosed 'lower back pain with sciatica, most likely caused by L4/5 and L5/S1/spinal disc bulge with compression and impingement of the descending left S1 nerve root'.[4]
Regarding the consultation with Mr Wilde, in his letter back to Dr Tan's clinic, he reported the MRI findings. He noted at that point the plaintiff had in fact pain in her back, buttock, and had some numbness in her left leg. He described the plaintiff as a sensible young woman with comfortable lumbar movements. He thought she had a classical left lumbosacral disc protrusion. He discussed the role of an epidural or the small possibility of a microdiscectomy procedure. All up, he described the plaintiff as a sensible young woman who he thought back in November 2020 would manage her symptoms without significant trouble in future.
A moment ago when discussing compression, I should have perhaps said this, that there were some sciatic‑type symptoms early on, but on consideration of the whole of the material, that does not seem to be a significant ongoing aspect of her presentation. Rather, it seems to be back pain as such.
In any event, the plaintiff swore two affidavits. Broadly I accept her evidence in those affidavits. But, I would also accept the contention of the defendant that in a couple of aspects, the affidavits were inaccurate. They have been traversed with counsel in Court, but include reasons for not attending a general practitioner.
The affidavits also perhaps omitted to set out the full extent of the plaintiff's recent travel and omitted to set out issues, such as the fact that she still hikes around Devon or engages in long walks that, she said in her oral evidence, were fine. In any event, overall, I do not consider this to be a case in which credit is particularly influential in the result.
In her affidavits, she set out the onset of symptoms. In the first affidavit, she described persistent back pain that varied in intensity, depending on what she was doing and set out a minimum, it was mild pain in the back with some numbness to the outer most side of her left leg.[5] She went on to say at worst it was a throbbing intense pain.
In her second affidavit, she effectively adopted what was said in the earlier affidavit, where she said, '... pretty much all of the pain and suffering consequences, as articulated in my affidavit dated 16 May '24 remain the same.'[6] And she said in summary she continued to suffer from persistent back pain, which varied in intensity, depending on what she was doing. Some numbness in the outermost side of the left leg; continue to be restricted in a range of activity and used the word 'struggle' in the sense of, still able to do things where she said she struggled to lift more than 5 kilograms, sit for more than 45 minutes, stand for more than five minutes, and had difficulty squatting, bending and twisting. She set out how certain tasks such as housework, et cetera, aggravated her pain.
In the second affidavit, she repeated what she had said in her first affidavit, namely, her sex life and intimate life with her partner continued to be impacted and she said sex with her partner aggravated her back pain.
Pausing there, I note the plaintiff was not cross‑examined about that, which I consider appropriate, given such a delicate and sensitive topic. I consider that is evidence that I can accept.
She described how she continued to be upset that she could not look after the children like she did before she hurt her back, how she loved her job and had career aspirations to work her way up to a management role in the child‑care industry. She described having to make adjustments to live her life to avoid aggravating her back pain and said, as some examples, she would knock back an invitation to go bowling or to play golf with her partner.
In closing address, her barrister emphasised that for a young person still with the prospect of children, but with interference with sex life, having to knock back social opportunities, and the like, when all of those were added up, it amounted to a very considerable consequence.
On the other hand, the defendant highlighted the evidence as follows: firstly, that the plaintiff has little or no medication to manage pain. The plaintiff's oral evidence was that once a month, she would use approximately two Panadol tablets, but otherwise uses natural or herbal remedies to try and manage her pain. In fact, in re‑examination, the plaintiff said that about once a month she has a bath which she uses as a form of treatment for back pain.
Next, the defendant highlighted that the plaintiff really had no treatment after she left Australia in mid‑2022 until she resumed osteopathic treatment in late '24. The defendant highlighted that the osteopathic treatment has been approximately once a month, and there is no suggestion that the plaintiff needs any other treatment than that. In fact, I note in his report Mr Moaveni said it was appropriate for the plaintiff to have approximately one year of osteopathic treatment and then to review the situation.
I also note, wandering slightly off topic, that overall, the medical practitioners opine that the best form of treatment for the plaintiff is in fact to be careful with what she does, and avoid tasks that aggravate back pain. That in fact is consistent with the plaintiff's oral evidence where she says that she avoids triggers.
In any event, returning to submissions and a summary of the evidence, the defendant highlighted what the plaintiff had said about her pain.
In the witness box, the plaintiff accepted what had been recorded in some of the medical histories, namely, that her pain is not constant. She accepted that she has pain that comes and goes. She accepted that at times she has described to Dr Lenard, the osteopath, pain that is one or two out of 10.
The defendant submitted that even if the plaintiff has a flare‑up, her evidence of that is that it is approximately once a month. The defendant submitted that the lack of evidence works strongly against a finding of serious injury, and it also highlighted the fact that the plaintiff still has a social life and has been able to engage in regular or relatively regular travel throughout Europe and, in fact, as far as to Thailand or back to Australia to visit her mother.
There was considerable emphasis in closing submission on the fact that the plaintiff, as a woman, is yet to exercise her fertility, but intends to have children and that is a very considerable consequence, in that her enjoyment of raising children is likely to be impacted by her back injury.
About that, I note there is no lay affidavit from the plaintiff's partner which confirms or corroborates her evidence. Secondly, nowhere in the medical evidence is it suggested that the plaintiff should not have children. Third, at its highest, the medical evidence is that the plaintiff will have difficulty with repeated bending, twisting or heavy lifting. That may impact some aspect of raising children, but this is not a situation where the medical evidence goes so far to advise the plaintiff against having children because of the consequences that would have on her injury.
The plaintiff also relied as a relevant loss, the enjoyment that she got from dancing. In her affidavit material, she referred to how she had previously been a professional dancer.
Her evidence about her work as a dancer and what she would be doing but for changing to work in child‑care or having a back injury is incomplete and hard to follow. It appears that the plaintiff had given up any form of professional dancing in 2018, by which stage she was working at least 30‑hours a week with OAC. There is no evidence as to how she fitted in dancing around that work, or what her intentions were about dancing. The evidence is that in 2018, she gave up dancing; she has not returned to it. It may well be that she would have difficulty with some form of, or some types of dancing, but I am not sure I accept that the medical evidence is such that I conclude she can no longer dance.
The loss of her career was said to be a pain and suffering consequence relied on. First, I note that the use a Court can make of the loss of a career for a pain and suffering application is a limited use in accordance with cases such as Ellis Management v Taylor.[7]
Second, I do not accept that the plaintiff has necessarily lost a career. The plaintiff was working hands‑on in child‑care, as it were, but from 2016 commenced tertiary studies to seek qualification as a psychologist, which she ultimately did.
It seems from about July 2021, she had given up work with OAM, which we might describe as hands‑on child‑care because she wanted to pursue other opportunities. Those opportunities arose initially working remotely in Australia for her father's mediation business before she packed her bags and moved to the UK in mid‑2022 and continued to work in that field.
In cross‑examination, the nature of that work was teased out a little. Apparently it involves assisting children through separation involving their parents. It appears to some extent she applies her training as a psychologist, although that is a little unclear, but in any event, in her evidence, she accepted that it was work that she enjoyed and got satisfaction from.
Overall then, any relevant evidence from the inability to work, as it were, hands‑on in child‑care as a pain and suffering consequence, in my view, is limited.
Tying a few threads together, first I accept that the plaintiff has a lower lumbar injury, as diagnosed by Mr Moaveni. I accept that she has intermittent lower back pain, perhaps with some symptoms into the buttock, but no real radicular or radiculopathy: her evidence, doing the best I can, is that the pain is not constant. As demonstrated by the evidence from the osteopath at times, it is one or two out of 10 when it is present. I also accept the plaintiff's evidence that she avoids activity that she described as 'triggers' which will cause a flare‑up and that approximately once a month she has a flare‑up, which requires her to either use Panadol or have a bath. But equally the evidence is that whatever symptoms the plaintiff has in her back, even when triggered, they do not prevent her from travelling when she desires, they do not prevent her from hiking, engaging in long walks, and doing a range of day‑to‑day activity.
Coming back to the start, the injury to this particular plaintiff must meet the test of 'very considerable'.
At the risk of repetition, her barrister emphasised on several occasions that whilst, at first blush, the consequences might not look serious, it should not be forgotten that as a female in her mid‑30s, with interference on sex life, potential interference on her role as a mother, and some interference with hobbies and the like already, that a very considerable consequence was made out.
After some quiet reflection, and in circumstances where I found the plaintiff to be a likeable and straightforward person in the witness box, regrettably for her that is not a submission that I accept.
The test of serious injury is just that, in the sense that the injury must be serious, by reference to the well‑known very considerable test. When the plaintiff has a trigger and has symptoms, they are capable perhaps as being described as significant or marked and certainly not trivial, but in a consideration of the overall range of impairment and impairment consequences and not just those that come before the courts, I do not accept that the consequences to her are 'very considerable'.
It seems to me that weighing heavily against such a finding is the very limited treatment, the intermittent nature of symptoms, the lack of painkillers and the fact that the plaintiff is still able to engage in a range of moderately physical activities and, some might say, fairly physical activities, such as hiking and long walks, together with overseas travel and the like.
Therefore, for a variety of reasons, the injury is simply not, on my assessment, very considerable.
I will hear from the parties as to consequential orders.