IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE / Revised
Not Restricted
Suitable for Publication

CIVIL DIVISION

DAMAGES AND COMPENSATION LIST

SERIOUS INJURY DIVISION

No. CI-13-04226

CAROLYN SUZANNE BENNETT / Plaintiff
v
PENINSULA HEALTH / Defendant
JUDGE: / Judge Jordan
WHERE HELD: / Melbourne
DATE OF HEARING: / 12 November 2014
DATE OF JUDGMENT: / 13 November 2014
CASE MAY BE CITED AS: / Bennett v Peninsula Health
MEDIUM NEUTRAL CITATION: / [2014] VCC

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Subject: ACCIDENT COMPENSATION

Catchwords: Serious Injury – injury to the cervical spine

Legislation Cited: Accident Compensation Act 1985

Cases Cited: Haden Engineering v McKinnon [2010] VSCA 69;

Sutton v Laminex Group [2011] VSCA 52; Aburrow v Network Personnel [2013] VSCA 46; Kelso v Tatiara Meats [2007] VSCA 267

Judgment: Leave granted to bring proceedings for the recovery of pain and suffering damages.

APPEARANCES: / Counsel / Solicitors
For the Plaintiff / Mr T.S. Monti QC
with Mr M. Sellig / Zaparas Lawyers
For the Defendant / Mr N.Y. Rattray / Hall & Wilcox

COUNTY COURT OF VICTORIA JUDGMENT

25 William Street

Melbourne VIC 3000

HIS HONOUR:

1  This application for leave for pain and suffering damages only relies on an injury to the cervical spine and the impairment thereof.

2  The plaintiff was injured in an accident at work on 6 January 2011. A lift closed unexpectedly and in effect sandwiched or crushed her shoulders and upper body. The force was sufficient for her to hear her "bones creaking and clicking" as she referred to it. She could not move. (Plaintiff's court book 17) It was a terrifying incident until the jammed doors somehow released and she was able to free herself.

3  The neck injury is an admitted compensable injury suffered in the course of her food services job. She started that job with the defendant in 2001 at the Frankston Hospital. The sole issue for determination is whether the permanent consequences of the impairment can be fairly described as being at least very considerable. They must be judged by comparing this case with other cases in the range of possible impairments.

4  There was very little, if any, attack at all on the plaintiff's credit in this application. The vast majority of the factual background was not in issue. The night of the accident found the plaintiff tender in the neck and shoulders region and she could not sleep. By the next day she was very sore and stiff. She applied her own treatment by way of heat packs, gels and hot showering. The plaintiff kept working with pain, soreness and stiffness and was hopeful things would improve. The pain radiated down her arms with pins and needles in her fingers. (Plaintiff's court book 17)

5  Improvement did not occur. By 10 January 2011 she attended a chiropractor for treatment and took some time off work. Symptoms continued, so she saw her local General Practitioner, Dr R. Lewis, on 2 February 2011. He had treated her before and has treated her ever since. A good deal of conservative treatment was tried, including a number of prescription medications, massage therapy and physiotherapy. (Plaintiff's court book 18) Dr Lewis also referred her to two specialist neurosurgeons, Professor R. Bittar in July 2011, and Mr B. Kavar in August 2011.

6  I note the repeal of s.134AE of the Accident Compensation Act 1985, and the Second Reading Speech and Explanatory Memorandum that accompanied it. Clear, proper and adequate reasons are still required but it is of little or no use describing all the medical evidence in great detail in this application. Most of it was not in contest. The reports speak for themselves in any event. The more up-to-date opinions are most useful in judging consequences now, almost four years after the plaintiff was injured.

7  The plaintiff was the only witness called. It was of considerable advantage to hear and observe her in the witness box. The plaintiff has managed to return to work in a very light capacity and works 70 hours a fortnight at present. I find she is a very well motivated person with a solid work ethic.

8  The major consequence relied on in this application is constant pain with associated stiffness and restricted mobility.

9  The plaintiff had been made redundant in June 2013, but shortly after she was asked to come back to work and she does almost the same hours as before the accident. The fact that this request was made, in my opinion, speaks volumes about her attitude to her work as observed by her employer.

10  Her old job, while it was not particularly physical, was staff based food supply. She now deals more with patients and it is a somewhat lighter job in terms of functions. For example, she used to push trolleys of food in her former role, but does not do so now. Her altered duties at work are not put as a consequence that of itself would amount to a very considerable one.

11  The plaintiff's application basically rests on what view I take about her constant pain.

12  The plaintiff was asked about previous health problems. She had some treatment for depression, related in particular to a marriage breakdown in the past. It affected her sleep, but her sleep is now worse since the injury occurred to her neck. Her evidence is that she has really suffered over the years no injuries or illnesses prior to January 2011 that have in any way significantly interfered with her capacity to work or to follow her interests and duties in life generally.

13  Medical records of the Peninsula Health Group show she attended in 2000 for an X-ray of the spine and for treatment. Outpatients physiotherapy attendances in August and September 2001 were also put to her. She did not specifically recall these events. Pain in the neck and interscapular areas in the past was suggested to her in cross-examination, but she had no real recollection of these matters. A May 2002 outpatients attendance for physiotherapy at Peninsula Health for neck pain was also suggested to her on the basis of the records, but again she did not specifically recall it. Given how long ago these sporadic attendances occurred, it is no surprise she cannot now recall them.

14  She agreed she attended the chiropractor, Mr T. Sims, for "all different things", pre-accident. (Transcript 16) In 2000, pain in the shoulder blades and neck was put to her from his records, but she again had no specific recollection of it.

15  Mr Sims’ records clearly show attendances by the plaintiff, but she thought at one stage it might have been for some pelvic problem.

16  The records are very sparse. She did not argue that the records that she was shown did not indicate attendances for some neck and interscapular pain, but she just did not remember them with any degree of precision.

17  Overall, I accept her health prior to the accident was generally good. Her affidavit put the proper context about her health pre-accident, when she said:

"My health has always been generally good. I've had some treatment for depression, which was particularly bad around the time of the breakdown of my marriage. I have received treatment over time, and the condition has been well manageable in recent years. Prior to the incident of 6 January 2011, I have never previously suffered from any illness or injury that significantly interfered with my enjoyment of my work and recreational activities." (Plaintiff's court book 16.)

I accept that evidence.

18  In my view the plaintiff's credit was unimpeached in this case. Credit is important in judging a pain and suffering consequences case. It is no surprise she cannot recall these few specific attendances years ago, particularly in light of them causing no real interference in her life.

19  It is worth noting the defendant has been employing her now for nearly 15 years. It has not produced any evidence of absences from work, sick records or any light duties being required nor any restrictions on her work at Peninsula Health due to any health conditions pre-accident.

20  The facts I accept are she has suffered constant pain since the accident in her neck. Its severity can vary. (Plaintiff's court book 19, 23, 25.5) The pain worsens as the day goes on. The pain increases after a day's work. (Plaintiff's court book 25.4) She has had some improvement but only in regards to arm symptoms and not with respect to the neck pain.

21  In terms of her attitude to her pain, I find she did not exaggerate it in any way. If anything, she is rather philosophical about the pain. She goes about her work and as much of her daily life as she can, by putting up with the pain, rather than opting out of work and a lot of daily activities. She is not to be penalised for having a stoical attitude. (See Haden Engineering v McKinnon [2010] VSCA 69 at paragraph 47, Sutton v Laminex Group [2011] VSCA 52 at paragraphs 80-81 and Aburrow v Network Personnel [2013] VSCA 46, paragraph 11)

22  To suffer constant pain, as I find the plaintiff does, must usually be very relevant to a finding that one's enjoyment of life is very considerably diminished. (See Kelso v Tatiara Meats [2007] VSCA 267 and Sutton v Laminex Group at paragraph 91)

23  Her neck condition means she still needs medication that is provided on prescription. At present she takes Voltaren at night, Temazepam to sleep and Panadeine Forte for pain on a daily basis. Side effects have unfortunately resulted from some medications. (Plaintiff's court book 25.5)

24  Her local practitioner of the last 10 years, Dr Lewis, reported three times, and most recently in 2014. He diagnosed the C5-6 and C6-7 discs as the source of pain, and said she could work but with restrictions, including no sudden movement or lifting greater than five kg's. He thought, rather pessimistically:

"Whilst her condition has improved she remains significantly symptomatic and does require ongoing treatment, massage and fortnightly physiotherapy. Leading to a gym program would be the minimum. It is disappointing that after two years Carolyn still has symptoms. It is unlikely that she will receive much more of an improvement. An underlying degeneration will worsen her symptoms." (Plaintiff's court book 34-35)

25  Her problems including daily pain are thus permanent ones in the view of her general practitioner. This doctor is best placed of all to comment in this case, having seen her many times over the years for general health care and management both before and following the accident. I accept his views. His evidence is clear.

26  Professor Bittar, neurosurgeon, has also seen her in a treating capacity as a specialist. He has the advantage of seeing her in 2011, 2012 and again in 2014. He is better placed to comment on her injuries, her prognosis, her progress than doctors who have only seen her once. It is worth reflecting on some of his comments over those years. In 2011 Professor Bittar said:

"At the time of her last review her prognosis appeared reasonably good. It is likely that she will continue to improve with time. However, there is a significant chance that she will suffer from residual symptoms which may persist indefinitely." (Plaintiff's court book 40)

27  When he saw her, almost 18 months later, and reported in 2012 he said:

"Clearly, whilst her condition has improved she does remain significantly symptomatic and does require ongoing treatment. I would not recommend surgical intervention, however, weekly massage and fortnightly therapy would certainly be very reasonable treatment options and I have strongly recommended that she find a way of resuming these treatment modalities." (Plaintiff's court book 43)

28  He thought with respect to prognosis in 2012, as follows:

"…it is my opinion that she will most likely continue to suffer from a significant degree of pain in the long-term." (Plaintiff's court book 44)

29  The mild optimism in 2011 had given way in 2012 to a more pessimistic view about her future.

30  Professor Bittar had the opportunity to see her again in 2014. What he said on that occasion was:

"She had remained significantly symptomatic since her previous review in 2012, and her condition had not improved." (Plaintiff's court book 50)

31  He went on to say:

"In my opinion Carolyn Bennett continues to suffer from aggravation of cervical spondylosis and she also suffers from cervicogenic headaches. I recommended that she continue with her current treatment regimen." (Plaintiff's court book 51)

32  The prognosis he gave in this third report was rather more gloomy than he had said in 2011 and 2012. And he described it thus:

"Given her longstanding symptoms and associated disability it is extremely likely that she will continue to suffer from significant pain and disability into the foreseeable future." (Plaintiff's court book 51)

33  I accept the evidence of Professor Bittar, based as it is on a treating capacity and with the benefit of having seen her over the course of three years.

34  The other treating specialist, Mr Kavar, only saw the plaintiff once and it was over three years ago. His opinion is thus quite out of date. He did not feel surgery was warranted, but conservative treatment such as regular exercise regime, physiotherapy, light gym work and hydrotherapy were recommended. He diagnosed a crushing type injury of the interscapular shoulder girdle and neck musculature. The diagnosis was soft tissue injury. (Plaintiff’s court book 54)

35  He thought back in August 2011 that overall the prognosis should be good. To that extent, Professor Bittar agreed with him in 2011. But things changed, as I have already indicated, in terms of Professor Bittar after he saw her in subsequent years. Mr Kavar's optimism has not proved accurate on all the evidence in this case, but he has not seen her since 2011.