FVI Revised(Not) Restricted

Suitable for Publication

Case No. Cl-12-04U1

Plaintiff

Defendant

Solicitors

Adviceline lnjury Lawyers

Minter Ellison

V

AT MELBOURNEclvtl" DtvtstoNSERIOUS INJURY

CLARE MARIA IACONO

STATE OF VICTORIA

JUPGE:

WHERE HELD:

DATE OF HEARING:

DATE OF JUDGMENT:

ÇASE MAY BE CITED AS:

MFpr uM |IEIIIBAL CTTATTON :

Subject:

Catchwords:Legislation Cited:Cases Cited:

Judgment:

APPEARANCES:

For the Plaintiff

For the Defendant

HER HONOUR JUDGE LAWSON

Melbourne

21 October 2014

24 October 2014

lacono v State of Victoria

Í2014IVCC 1724

REASONS FOR JUDGMENT

Accident compensation Serious injury permanent seriousimpairment or loss of body function - cervical spine.Pain and suffering consequences.s 1 34AB(16Xb) of the Accrde nt Compensation Acf 1 985Haden Engineering Pty Ltd v McQnnon [2010] VSCA 69; Suffon vLaminex Group Pty Ltd (2012) 31 VR 100; Aburrow v NetworkPersonnel l2013l VSCA 46; Dwyer v Calco [Tímbers] Pty Ltd (No 2)

[2008]vscA 260.Leave granted to the Plaintiff to commence proceedings.

Counse!

Mr G Coldwell

Mr lGourlay

COUNTY COURT OF VICTORIA250 William Street, Melþourne

HËR f.ICNOIJR:

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Cfare lacono, SpecÍal Education Teacher, brings this application for leave toproceed in respect to ínjury suffered during the course of her emptoyment on

25 July 2001.

It is not in díspute that on 25 July 2001 the Plaintiff suffered a compensable

injury to her neck as a consequence of striking her head on a low hanging

branch of a tree located in the Spensley Street Primary Schoot grounds whilst

she was on yard duty with her class cleaning up an area of a paved courtyard.

she was diagnosed as suffering from soft tissue injury to the neck and post-

concussion syndrome ("the compensable injury").

As a consequence of the injury Ms lacono claims that she suffers impairment

to her cervica! spine and seeks leave to proceed tc recover damages

pr.u-suant to s'!344.8(16Xb) cf the Accident Gompensa tion A.ct 1gg5 (,'the Act,,).

f n the application she relies upon ân impairment of the function of her cervical

spine as satisfying paragraph (a) of the definition of 'serious injury' contained

in s134.AB(37) of the Act.

The claim ís timited to pain and suffering cansequences on!y.

At the outset, both counsel conceded that this is what is colloquially known as

ä "range case",

The Plaintiff was the only witness to give evidence and be cross-examined.

As is usual in this type of application the parties each tendered affidavits,

medico legal reports and a Medical Panel opinion that were exhibited.

A short amount of surveillance film totalling 13 minutes and 29 seconds was

shown, relating to one day,23 November 2013.lt showed the Plaintiff driving

her car, attending the supermarket wíth one of her sons, crossing a busy road,

attending the JAG clearance warehouse and sitting in a hairdresser's chair.

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The Plaintiffs main complaint is of chronic ongoing neck stiffness and pain. At

times during the film the Plaintiff was shown moving her neck from side to side

without any obvious restriction.

I prefer to rely on the evidence of Dr Lipson her long term General

Practitioner, concerning the nature of the Plaintiffls complaints and its effects

rather than to draw any inferences adverse to the Plaintiff from such a short

snap shot of activities taken on the one occasion.

There was nothing that was shown on the video that undermined the Plaintiffs

credit. I have had regard to the totality of the evidence and find that Ms lacono

was a credible, truthful and reliable witness.

Ms lacono's evidence-in-chief was set out in the three affìdavits filed in

support of her application sworn on 15 May 2012. 1 November 2013 and 14

October 2014.

The factual background is not in dispute. Ms lacono was born on 5 January

1959 and is aged 55 years. She is married and has four adult male sons aged

between 20 and 30 years. One son lives in Vietnam and the other sons live at

home. One of her son's has an intellectual disability. The Plaintiff successfully

completed secondary school and then undertook one year of kindergarten

teaching followed by some travel. She then obtained a Diploma of Teaching

and graduated in 1980. She worked until she commenced her family. ln 1992,

she returned to full-time work and completed a Graduate Diploma in Special

Education. She obtained a job in the Social lntegration Unit at Heidelberg

Heights Primary School, where she worked with children with social and

behavioural problems for six years and, then worked at Coolaroo Primary

School on a short-term contract before she commenced full time at Spensley

Street Primary School in 2000 as a Special Education teacher.

Ms lacono presented as a very impressive witness who did not seek to

embellish or overstate her level of disabiliÇ. She has, for many years,

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followed diligentfy the advice of both the physiotherapists ancl doctors who

continue to manage her ongoing synlptoms. She has applied their advice to

her daily school routine in order to continue in her role without aggravating her

condition.

After six months absence from work, the Plaintiff returned to work in

September 2001 initially on reduced hours with assistance. She returned to

unassisted teaching in 2003 and built up to nine days per fortnight.l Her role

changed to Literacy $upport.z

currently, she takes medícation fcr pain, Lyrica (100 mg per day) and panadol

osteo with Nexium to manage gastric upset related to the use of her

medication.3 She continues to have intensive physiotherapy.4

The Plaintiff deposes in her first affidavit to having some health issues pr-ior tc

the compensable injury. she suffered headaches on a regular basis. she

explained ir¡ her evidence that those heaciaches were cyclical anci were

related to her hormonal eycle.s Those headaches setiled down with

$andamigran and HRT treatrnent.6

! aceept her evidence following injury that the nature of the headaches

changed and those headaches åre more intense than the ones previously

experienced. This is consistent with the clinical observations of Dr Lipson,

Dr Lipson saw the PlaintÍff following injury. lnitiafly, there were concerns about

her cognitive functioning. Dr J Sturm, Neurologist, reviewed her and ordered

further examinations and referred her for a neuropsychologícal assessment.

No brain injury was detected.

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Dr Lipson continues to manage and treat the Plaintiff conservatively

prescribing pain relief for the neck pain and stiffness with referral for intensive

physiotherapy therapy. 7

He has provided a number of reports. Dr Lipson has had the very real

advantage of having reviewed Ms lacono over many years. He attended her

before and after injury. The Plaintiff has consistently complained to him of

cervical tenderness and stiffness following injury. No neurologícal signs have

been evident.

Dr Lipson referred the Plaintiff to Dr M Tellus, Rheumatologist, who arranged

a CT scan of the neck that excluded significant pathology.

Dr Tellus considered that the Plaintiff suffered soft tissue neck syndrome

causing chronic pain.8

Dr Lipson documented that the Plaintiff's initial progress was poor with

continuing complaints of headaches, dizziness and poor concentration.

Treatment involved rest, physiotherapy and medication. He states, in a report

dated 8 July 2013, that:

"There is no question [the Plaintiff's] neck pain and stiffness as well asfrequent headaches relate to her work injury in 2001. She did not havesignificant symptoms prior to the accident."

He stated that over the past 12 months the neck pain and occipital headaches

increased in frequency. He attributed this to a change in the Plaintiffs job

whereby she was spending longer hours seated with her neck flexed teaching

literacy in the classroom.

He confirmed that the increase in the Plaintiffs pain has resulted in increased

reliance on medication, including Endep, Lyrica and Celebrex. This led to an

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increase in gastro and intestinal syrnptoms, including epigastric discomfort

and bloating.s

ln his latest report dated 16 Octobe r 2014 he stated:

"Ms lacono has continued to sr-rffer with neck pain and occipitalheadaches. This conilnues to rest¡.ict hei, both in terms of hei- work,'andactivities of daily living. she is reliant on medication, namely, Lyrica andPanadol, as well as regular physiotherapy.., Fudhãrmore, because ofthe previous extensive use of celebrei to treat her condition, shedeveloped gastritis which was confirmed by gastroscopy in reuruãry2414. She remains on Nexium to treat thÍs piob]em.,,1o

He has confirmed that the Plaíntiff has a chronic condition with no likelihood ofrecovery into the foreseeable future. The Plaintiff is restricted in her work

capacity involving a nine day fortnight and restrictions on report writing. The

ergonomics of her workplace require ongoing diligent review.

Dr Michelle Tellus, consultant Rheumatologisl, also has had a long-term

therapeutic relationship with the Plaintiff. She first reviewed her on 7 May

2003 and has continued to see lrer up until recently. The piaintiff beiieves that

she last saw her in late 2t12.11

When examined by Dr Tellus on 7 May 2OA3, exarnination of the cervical

spine revealed full range of movement in all directions and examination of the

shoulders, eibows and hands were aiso normal, including the neurological

examination. There were some muscle spasms detectable in the cervical

spine.

Dr Tellus concluded that the Plaintiff developed a soft tissue pain syndrome

since the incident at work. She recommended a course of rehabilitation.l2

The report of an MRI of the cervieal spine ordered by Dr Tellus performed on

5 June 2003 states that there was a moderate right paracentral G5-6 disc

protrusion which was not evident on a CT scan which had been undertaken

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prev¡ously. lt was causing a mild central canal stenosis and was most

prominent at the right C5-6 level. Disc bulges were noted at C3-4 and C4-S,

which were non neural compressive and had been seen on the prevíous CT

scan.

Dr Tellus referred the Plaintiff for rehabilitation,

when reviewed on 21 November 2007, Ms lacono reported that she had

undergone a program through Olympia Pain Management Centre but did not

have a very good experience with the program. she was taking Endep (sOml

per night), which helped her with her cognition and sleep pattern and was

attending weekly yoga sessions.

35 On that occasion Dr Tellus's examination revealed no abnormality or

abnormal neurological signs in the upper limbs or lower limbs but, once again,

the Plaintiff had very tight mid cervical neck muscles with spasm evident. Her

movement was restricted in all directions of the cervical spine.13

36 Dr Tellus advised acupuncture and a soft tissue massage with manipulation of

the spine and discharged the Plaintiff back to the care of her general

practitioner.

37 She further reviewed the Plaintiff on 22 December 2011, foltowing an

aggravation of symptoms due to a fall in a car park.

38 Dr Tellus confirmed that the Plaintiff was taking Lyrica (25m9 nocte), which

helped with sleep and radicular pain. She complained of occasional occipital

headaches from the neck and was undergoing physiotherapy with success.la

39 On 16 May 2013, Dr Tellus reassessed the Plaintiff. This was following Ms

lacono changing her role in the workplace to literacy teaching, where she was

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req{l¡red to sit for long periods of time, looking downwards rearling a lot.

while she enjoyed the role significanily, it aggravated her coridition.

Dr Tellus recommended Lyrica (7smg nocte), Nexium (20mg daily) and

Celebrex (100m9 daiiy), to increase the Panadol Osteo to two tablets at night.

She recommended that the Plaintiff continue in her role as a literacy teacher

with ergonomic assessrnent to try and facilitate reduction in neck flexion so

that the Plaintiff was not looking downwards but rather looking in a more

horizontal plane that would reduce pressure on ihe neck and thereby

hopefully relieve some of her symptoms. At that time, the plaintiff was

describing gastrointestinat symptoms.l 5

Recently, a dispute about payment of ongoing physiotherapy expenses was

referred to the Medical Panel. The Medical panel's opinion, dated 4 August

201.4, is that the Plaintiff is suffering from neck dysfunction and paln due to

aggravation of cervical spondylosis with referred symptoms, including

headaches (but no clinÍcal radiculopathy or myelopathy components) relevant

to the claimed neck injury.16

The Fanef's confirmed opinion is that the PlaíntÍff has an incapacig for work

(an inahility to re-turn to her pre-injury employment for her pr"e-injury hours!.

Further, they stated that the Plaintiff could not remain at work if physiotherapy

{up to 16 sessions per year), appropriate analgesics, anti-ínflammatory and

pain medication (as determined by her treating generai practitioner) and

general practitioner consultations (at a frequency to be determined by her

general practitioner) were noi provided.lT

Mr Gourlay, on behalf of the Defendant, accepted that the Medical Panel

decision was a good summary of the bulk of the evidence in this application.

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The general consensus of the medical opinion upon which the Plaintiff relied

is that, as a consequence of the ínjury at work, Ms lacono suffered neck pain

and headaches as a consequence of aggravation of cervical spondylosis.

Professor Richard Bittar, consultant Neurosurgeon, examined Ms lacono on

18 May 2013 at the request of the Plaintiffs solicitors. He recorded her current

symptoms. Those symptoms are consistent with the Plaintiffs evidence. They

are:

"1.Neck pain

This is located in the posteríor cervical region and is generally dull, withsharp exacerbations. Her neck pain is present almost all of the time andradiates into the occipito cervical region, to both shoulders, and into theinterscapular region. The severity of the neck pain varies from 2-8 out of10. Her neck pain is exacerbated by cervical spine flexion, extension ofthe neck, and maintaining the neck in a position other than a fairlyneutral one. lt is also exacerbated by repetitive neck or upper limbactivity and lifting more than four to five kilograms.

2.Headaches.

These are located in the occipito cervical region and vary in severity withthe neck pain.

3.Occasional right arm pain.

She also experiences some pins and needles in the right hand when sheexperiences aching in the arm."18

In his opinion, the Plaintiff suffers from the following:

"l.Aggravatíon of cervical spondylosis with ongoing neck pain.

2. Cervicogenic headaches."l e

He recommended that Ms lacono continue with her current treatment regime,

that is, physiotherapy every one to two weeks, Lyrica, Gelebrex and Panadol

Osteo and that she requires medication on a daily basis. He recommended

review by a Pain'Management Specialist. He noted that Celebrex has been

discontinued because it upset the Plaintiffs stomach'

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Ptofessor Bittar consídered that the Plaintiff remained partially incapacitated

for work as a result of her work-related cervical spine condition and that she

currently worked in a suitable role on sfightly reduced hours.

)U M¡- Thomas Kossmann, orthopaedic sui'geon, reviewed the piaintiff on iOctober 2013 and 17 June 2014 at the request of the Plaintiffs solicitors. He

diagnosed the Plaintiffs condition as an aggravation of cervical spondylosis

related to her work injury. He considered that the present condition is still

related to the compensable injury.21

51 He confirmed that the Plaintiff will require further conserva.tive treatment with

pain medicaiian, anti-inflammatories, physiotherapy, hydretherapy, and

possibÍy acupuncture. He did noi consider that she is a candidaie for surgery.

52 He confirmed the diagnosis at the secçnd review as being discogenÍc and

mechanic pain of the cervical spine on the basis of C5-6 disc pathology with

narrowing of the disc and possible foraminal stenosis, posterior osteophyte

formation at G4-5 and c5-6 leveis with c5 radicular displacement.22

53 Mr Kossmann !ì/as not cross-examined and there is no specífíc indication in

his report as to why he expanded the diagnosis in his second report. I accept

his findings on the face of it, having regard to the fact that he had the

opportunity of reviewing the lvlRl taken on g Decernber 2Ð11, which shows

that the Pfaintiff is suffering from degenerative changes of the cervical spine.

Defence rnedi cal material

54 [t/ls lacono was reviewed by a number of medico-legal specialists on behalf of

the Defendant.

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She was seen for assessment by Mr John Lloyd, Neuropsychiatrist, on 12

November 2002 and Professor Simon Crowe, Neuropsychologist, on g August

2013"

Both doctors' reports confirm that as a consequence of the injury, Ms lacono

suffered an uncomplicated mild traumatic brain injury.

Mr Lloyd considered that there was no evidence of significant head injury and

investigations failed to reveal the presence of any brain damage.23 He

considered that ongoing symptoms were consistent with a psychological

response to the injury.

Professor Crowe, on comprehensive assessment of cognítion, found that the

only demonstrable deficit that featured was a mild compromise of processing

speed-24

He believed that the deficits the Plaintiff features with a mild attenuation of

processing speed came about as a consequence of her emotional response

to the injury, characterised by her somatisation state, as well as previously

noted chronic adjustment disorder with anxious mood previous averted to by

the Medical Panel's report.2s J do not have the report so I cannot comment on

that aspect of his expressed opinion.

Mr Daryl Nye, Neurosurgeon, examined the Plaintiff on two occasions on 22

November 2005 and 15 October 2013. He accepted that as a consequence

of the injury the Plaintiff sustained a non-concussive minor head injury

possibly associated with an extension injury to the cervical spine.

He considered that the head injury had recovered completely and accepted

that there may have been some aggravation of pre-existing degenerative

disease in the cervical spine consequent upon injury. He did not consider

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there was any evidence to suEgest that either injury has been responsible forany structural neurofogical injury or resulting pathology.26

He considered the protracted continuation of the Plaintiff's symptoms to be areflection of reaction whích, in his opinion, is, in the maín, psychological andexacerbated by lack of coping ability.

êf the second revieur', Mr' fJye had the advantage of reviewing radiologicaimaterial, including MRI scans of the cervical spine undertaken on 5 June2003, 4 December 2007 ancl the cr scan of the cervical spine on lsNovember 20OT,

He confirmed, in respect to the cervical injury, that an extension injury to the

cervical spine mav have accCImpanied the incident at work with aggravation of

miid cervical degenerative change which, over the years, has shown miid

progression consisteni with the natural process anci this is unaccompanied by

evidence of radiculopathy oi iriyelopathy.

He, again, expressed the opinion that the continuing symptoms reported

reflected a psychological reaction and a development of chronic pain

Syndrome.2T

He agreed that the Plaintiff's condition had stabilised. Accepting aggravation

of cervical degenerative disease resulting from injury with continuing

symptoms, he agreed that there was a degree of incapacity for employment

contributed to by the injury,28 l.lonetheless, he considered that the plaintiff

has no physical incapaeity that would prevent her from undertaking her pre-

injury duties.

He did, however, state in respect to her physical condition affecting the

cervical spine, that there were restrictions, that is, avoiding use of arms in an

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overhead manner and a lifting limit of five kilograms would be appropriate.

Such should not be conducted to above shoulder height.2e

He agreed that current treatment was appropriate and there was no indication

for surgery.

Dr David Elder, consultant in the speciality of Occupational Medicine,

examined the Plaintiff on 16 December 2003 and 15 August 2013. Following

his reviews, he considered that the Plaintiffls condition was stabilised.

He noted that the PlaÍntiff had been found by a Medical Panel to be suffering

from "non-specific neck pain in the presence of imaging evidence of

degenerative change with referred symptoms to the upper extremities and

headaches but without clinical evidence of radiculopathy".30

He did not consíder that.the Plaintiff had any incapacity for work and stated

that she had a full capacity for work with no need to consider any alternative

duties or retraining. He considered that significant psychosocial aspects

affected her ongoing complaints.3l

The medical material relied on by the Plaintiff supports a finding that she has

a genuine, organic injury and that she suffers discogenic neck pain with

cervico-occipital headaches. ln contrast, the material relied upon by the

Defendant whilst acknowledging the possibility that she may have suffered an

aggravation of her underlying degenerative cervical disease as a

consequence of the injury, supports the contention that any ongoing

symptoms are in the main psychological.

Having regard to the totality of the evidence and, in particular, my acceptance

of the Plaintiffs evidence concerning the nature of her injury and its ongoing

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consequences, I am satisfi*cl on balance that she suffered a neck injury as a

con$equence of the incident at work on 25 July 200"1.

74 The injury has been described as being an aggravation of underlying

degenerative disease namely, ce¡vical spondylosis with ongoing neck pain

and cervicogenic headaches.

7s I am satlsfied that the injury ís permaneni in ihe ielevant sense

I am satisfied that as a tCInsequence of the injury, the Flaintiff suffers

impairment to the function of the cervical spine.

f am satisfied that the Plaintiff suffers the consequences as described in her

three affídavits and that she has suffered significant impacts on her social,

recreational and employment activities in the manner described.

78 I am satisfied that the Piaintiff suffers from a painful and stiff neck with referral

of pain inio her shoulcier blades. As a consequencë, the Plaintíit experiences

difficulties turning her neck or holding it in a fixed position for extended

periods. This impacts upon her ability to be able to perform her work. The

Plaintiff has had to take steps to ensure the ergonomic set-up of her

workspace is appropriate. .She has modified her i¡rork such that she is no

lcnger working fulf-time. She works a nine day fortnight.

7S Ms lacono has had to reduce her involvement at the school insofar as extra-

eurricular aetivities and, as a consequence, has not been able to seek

promotion.

80 I accept that she has experienced chronic pain that has required treatment by

way of medication and extensive physiotherapy.

81 She is dependent on taking her medication to remain at work and to function

generally. She takes Lyrica (100m9 per day) and Panadol Osteo for relief and

is also required to take Nexium for gastric problems associated with

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medication. she has ongoing physiotherapy treatment every fortnight and

occasionally weekly to ensure her symptomatology is controlled such that she

can continue in her role as a literacy teacher at school.

I accept that she continues to work a nine day fortnight with difficulty. The

Plaintíff has now resumed studying part-time for her Masters in Learning

Disability studying two evenings per week for three hours, and her intention is

to be able to up-skill so that she can reduce her hours but be paid at a higher

rate, so that she can manage a reduction in her workforce participation

without consequential fi nancial loss.32

I accept her evidence that she now experiences worse symptoms and that her

efforts to remain at work and study part-time this year have caused her pain

levels to gradually increase and that she is now struggring to cope.t3

I accept that she experiences pain every day which fluctuates in severity and

sometimes the pain is such that she must rest. She experiences ongoing

neck and upper back spasm and experiences sleep disturbance because of

pain and discomfort.

As a consequence of her condition, she experiences difficulty when driving

longer distances and this has impacted upon her ability to be able to tend to

her elderly mother who lives in East Bentleigh.

She experiences difficulty with housework. She cannot mop or vacuum and

has to pay a cleaner or ask family members to clean. She has the assistance

of her son with cleaning and also to help with heavier shopping. She is limited

with what she can do in the garden.

She has a limited ability to be able to undertake exercise. She has stopped

going to the gym which she used to attend three times a week prior to injury.

She swims but can no longer do freestyle. Her ability to exercise is limited to

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light jogging or walking in her local area. She tries to jog for four or five

minutes and then walk for another 10-30 minutes, dependirrg on her pain

tolerance. She loved hiking pre-injury but experienced problems of increased

pain after only a short híke with her cousin necessitating extra

physiother-apy.3o -she tried to hike again in 2013 rn,hen overseas rrhich ceused

extra pain. She planned for it and took Celebrex before and after it and rested

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Her injury has impacted greatly on her social lífe in the manner described

Her injury has impacted upon her personal intimate relationship with her

husband. Sex is now painful and less frequent. She rarely goes out to the

movies, theatre or concerts.

She has been able to go overseas five times since the incident. The trips were

taken in 20û8, 2Gi1,2û13 and 2014. They were to Vietnam on three

occasio¡-rs with o¡le stop oret'iri Kuala Luln¡rur ancl two trips to lndonesia.

The Plaintiff explained in evidence the steps she had taken to manage her

pain whilst travelling taking extra medication and also a special neck support

pillow. She planned extra physiotherapy before and after the trips.36

Her most recent travel in 2014 was to Vietnam where she visited her eldest

son who now lives in Vietnam. Her brother-in-lalv also resides in Vietnam.

She described the degree of discornfort that she experienced during the flights

and also the extreme pain aftenruards" She was required to take extra

medication to which she responded poorfy and, because of her condition, it

was necessary for her to attend the doctor in Vietnam for massage and

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acupuncture.3T She suffered pain and restriction and loss of enjoyment as a

consequence.3s

I gained the impressíon that the enjoyment of those trips was limited and that

a lot of extra care was taken by the plaintiff to manage her pain.

Ms lacono had an excellent work history pre-injury. She combined full time

work with the responsibilities of family including the care of four sons one of

whom has an intellectual disability without any restrictions or impediments.

She was a dedicated staff member at Spensley Street Primary School who

actively participated in school life contributing beyond her class-room

activities.

she enjoyed being fit, going to the gym regularly, was an avid hiker and loved

going to the movies and concerts.

Ms lacono had some health issues as set out in paragraph 11 of her first

affidavit.se However Dr Lipson confirms that she did not have significant

symptoms prior to the work injury in 2001.40

The affidavit of Louisa Gauci sworn 5 November 2013 confirms how the injury

impacted Ms lacono's school involvement.

Ms Gauci knows the Plaintiff through her work at the Spensley Street Primary

School. She is a work colleague whose evidence concerning the changes

observed subsequent to injury were not challenged.

Ms Gauci has confirmed that the Plaintiff is not as capable as she was prior to

injury. Before injury, the Plaintiff was an active and involved member of the

school. She was co-ordinator of various committees, such as the Welfare

Committee, and also the lead of many actívities for professional staff at the

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schoo¡, including Professional Development. She no longer participates to thesame level' Her involvement in the school has decreased and the plaintiff

now seems to be involved in programs directly related to her own classes only

rather than the whole school.al

I have had regard to the approach suggested in Haden Engineering pty Ltd v

McKinnon a2 that was subsequenily endorsed in suffon v Laminex Group pty

Lfd3 and Aburrow v Netwarl< persanne!4

I accept Ms lacono's description af her experience of pain ancl its intensity. I

accept what she says about the need for medicatíon, rest and medical

treatment and intensive physiotherapy.

She sees Dr Lipson regularly and he has continued to prescribe medication to

manage her pain levels, namely Lyriea and panadol osteo, she also sees a

physioiherapist every fortnight and occasionally weekly.

Dr Lipson confirms that Ms lacono suffers from a soft tissue injury to the

cervical spine with symptoms of neck pain, stiffness and headaches related

to the work injury necessitating pain relief medication and regular

physiotherapy. He documents that the neck pain and occipital headaches

have increased in frequency over recer-¡t times with increasing reliance on

medication. ln turn that has caused gastritis and the need to take Nexiurn to

manage those symptoms.

I am satisfied having regard to Dr Lipson's observations recorded over many

years that there is objective evidence that shows the disabling effect of the

Plaintiffs pain.

Ívs lacono has by reason of her ability to resume work, albeit for a g day

fortnight notwithstanding her physical condition, dennonstrated that she is

4l42

4:3

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FCB 32a-32b[2010j vscA 69

QA14 31 VR 100

[24ßI VSCA 46

JUDGMENTlacono v State of Victoria

VCC:SI\ 17

genu¡ne and stoical. I accept that she has taken all necessary steps to

continue in her teaching position and is prepared to endure pain in order to

maintain a desired level of function.

107 This is supported by Dr Lipson's assessment that there has been an increase

in pain likely to be contributed to by a change in her role as a Líteracy teacher

whereby she is spending more time seated with the neck flexed.as

108 As has been stated by the Court of Appeal 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. ln such a case, the 'objective' evidence of the disabling effect

may be of less significance than usual.a6

109 I accept the Plaintiff's evidence about the extent to which the pain limits her

physical functioning and substantially interferes with the ordinary activities of

life in the manner set out in her affidavits.

110 As was stated by Ashley JAin Dvvyer v Calco [Timbers] Pty Ltd (No 2):

"fllmpairment is concerned with what has been lost. But the significanceof what has been lost ... may be informed, to an extent, by what isretained."aT

111 The picture that emerged from the evidence is that for Ms lacono the injury

has had dramatic consequences and she no longer has the capacity to

engage in life to the same extent that she d¡d previously due to the

consequences of her injury. This has impacted on her home life, her intimate

relations with her husband, her social, recreational and employment activities

in the manner described. She has endured this situation for the past 13

years. She faces a continuation of painful symptoms and consequential

inhibítions upon her enjoyment of life for the foreseeable future.

¡15 PcB 4846 Haden Ehgineerìng Pty Ltd v McKnnon (supr4109-10 at paragraphs [46]-[48]47 Dwyerv OalcaTÍmbe¡a Pty Ltd (No 2) (supra) at paragraph [27]. See also Haden Engineering Pty Ltd

v McKinnon (supraþ 4*5 at paragraphs t9l-[14]

JUDGMENTlacono v State of VictoriaVCC:SA

'|8

112 CI* the totality of the evidence I am satisfled that the pain and suffering

sonsequences tc the Flaintiff disclcsedare both nearked and significant.

113 I am satisfied the impaírment or lsss of body function of the cervical splne has

resulted in pain and sufferÍng aonsequences which are, when judged by

compan'son with other casÊs in the rânge of possible irnpairment or losses ofbcdy function, fairly desoribed as belng rnore than signlficant or marked and

as being at least very considerable is.134AB(3g}{c}),

114 Leave to prcceed will be granted.

JUDSMEÄITlaeonov Sþ¡teølVicþrta

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