Meilak v Hunter Leisure Pty Ltd [2012] VCC 1957 (3 December 2012)

Last Updated: 11 January 2013

THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION

Revised Not Restricted Suitable for Publication

DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION

Case No. CI-10-02376

LORRAINE PHYLLIS MEILAK	Plaintiff
v
HUNTER LEISURE PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE BROOKES
WHERE HELD:	Melbourne
DATE OF HEARING:	29 and 30 November 2012
DATE OF JUDGMENT:	3 December 2012 [First Revision]
CASE MAY BE CITED AS:	Meilak v Hunter Leisure Pty Ltd
MEDIUM NEUTRAL CITATION:	[2012] VCC 1957

REASONS FOR JUDGMENT

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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Injury to the left, alternatively the right, wrist or the left or right upper limb – leave sought to bring proceedings for pain and suffering damages and pecuniary loss damages
LEGISLATION CITED – Accident Compensation Act 1985
CASES CITED – Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Stijepic v One Force Group Pty Ltd [2009] VSCA 181
JUDGMENT – Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr I Fehring	Ryan Carlisle Thomas
For the Defendant	Mr I Gourlay	Hall and Wilcox

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 injuries suffered by the plaintiff in the course of her employment with the defendant from between approximately 2002 and December 2007.
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests as mandated by s134AB(37) and (38) of the Act.
3 The plaintiff brings the 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 serious impairment or loss of a body function.”

4 The body function relied upon in this application is the left, alternatively the right, wrist or the left or right upper limb.
5 The plaintiff relies upon three affidavits and she gave viva voce evidence. She was cross-examined. She also relies on the affidavit of her husband, Joseph Meilak, sworn on 31 October 2012. In addition, both parties relied on medical reports and other material which were tendered in evidence. I have read all the tendered material.

Outline of Section 134AB

6 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, sub-sections (19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
8 By sub-s38(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described at the date of hearing as being “more than significant” or “marked” and as being “at least very considerable”.
9 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.
10 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more both at the date of hearing and permanently thereafter. Sub-sections 38(e) and (f) recite the formula by which loss of earning capacity is to be measured. Sub-section 38(g) requires questions of rehabilitation and re-training be considered in determining whether the 40 per cent loss has been established. Sub-section 38(h) provides consequences which are psychologically-based are to be wholly disregarded in paragraph (a) cases.
11 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak [2005] 14 VR at 622 in reaching my conclusions.
12 The defendant in this case does not seriously challenge that the injury, as claimed, arose out of or in the course of employment, despite tendering a report from Mr Murray Stapleton. The plaintiff has been in receipt of weekly payments of compensation and has been subjected to favourable decisions from the Medical Panel, which have been tendered in evidence. However, the defendant does contest that the injury meets the requirements of sub-paragraph (a) of the definition of “serious injury” referred to above.

Compensable Physical Injury

13 The plaintiff was referred to general surgeon, Mr Graeme Thompson, who first saw her on 29 July 2005. At that stage, she presented with a three-year history of symptoms consistent with bilateral carpal tunnel syndrome, worse on the right side. Her symptoms had gradually deteriorated over that period. Nerve conduction studies had been performed on 15 July 2005 and demonstrated bilateral carpal tunnel syndrome worse on the right. Given the duration of symptoms, he advised surgical decompression, but this was initially not accepted. He embarked upon a treatment of steroid injections in the right carpal tunnel. There was initial relief, but the symptoms recurred. Accordingly, surgical decompression of the right carpal tunnel was performed on 3 March 2006, and the plaintiff returned to light duties at the end of that month. On 5 April 2006, she returned with severe right hand pain, which had prevented her from working. Conservative treatment was embarked upon such as Voltaren gel and physiotherapy. A further steroid injection was performed on 3 May 2006 on the left side, where symptoms had emerged, and also this was repeated again in August 2006.
14 At Mr Thompson’s last review on 15 March 2007, there were ongoing symptoms in the right hand and wrist. There were also persisting symptoms of carpal tunnel syndrome on the left, but these were not as significant as the right-sided symptoms. He was concerned that she had ongoing pain on the right side and he referred her to Dr David Freilich for repeat nerve conductions studies.
15 On or about 20 July 2007, neurologist, Dr David Freilich, reported that conduction was not back to normal on the right side, but that the findings were consistent with adequately treated carpal tunnel syndrome on that side at that time. A further study was conducted on or about 1 August 2008, at which time Dr Freilich reported “The right median nerve conduction of the wrist is abnormal”.
16 The plaintiff returned to work on light duties and continued in that vain until approximately December 2007. She had gradually built up to performing light office duties of some seven-and-a-half hours per day. However, increasing symptoms in the left side necessitated a further referral to surgeon, Mr Stephen Tham. Mr Tham, in a report dated 9 March 2011, recorded that he first consulted with the plaintiff on 3 December 2007 on referral from her general practitioner. He considered that clinically the median nerve provocative tests for carpal tunnel syndrome in the left hand were positive, with positive nerve percussion and compression test. In the right hand there was a tendency for a positive provocative test as well. He noted an MRI scan showed evidence of pre-stenotic dilation of the median nerve, just proximal to the right transverse carpal ligament and evidence of flexor tenosynovitis. Following his examination, he felt that the plaintiff suffered with left carpal tunnel syndrome and a degree of ongoing compression of the right median nerve.
17 On 31 March 2008, Mr Tham performed a left endoscopic carpal tunnel release operation. Post-operatively, the plaintiff reported ongoing symptoms. A nerve conduction study showed persistence of abnormality in the right hand, but improvement compared to her pre-operative nerve conduction study. His ultimate diagnosis was one of persistent right carpal tunnel syndrome, despite previous right carpal tunnel release, and left carpal tunnel syndrome.
18 The plaintiff did not return to work and was ultimately reviewed by the Medical Panel, who delivered a Certificate of Opinion and Reasons dated 7 August 2009. That Panel reported that the plaintiff suffered from a degree of permanent impairment resulting from the bilateral carpal tunnel syndrome injury. The plaintiff told the Panel that at that stage, she was continuing to experience pain demonstrated to be in the palmar aspect of the right wrist that extended to the palm of the hand, with numbness in the tips of the fingers. She said she also had similar symptoms in the left hand, but they were a little less severe. The plaintiff said that she was unable to lift heavy weights, could not lift a full kettle of water and experienced difficulties placing items into the oven. She told the Panel that she felt as if she had lost her independence, as she needed assistance with a number of household activities. Relevantly, on physical examination, the Panel noted consistent diminution of sensation to pinprick assessment in the distribution of the median nerve in both hands. The Panel further noted the results of nerve conduction studies dated 20 July 2007 and 1 August 2008 that showed findings consistent with surgically treated right carpal tunnel syndrome with some persisting abnormality of conduction. Nerve conduction studies dated 22 January 2009 showed electrophysiological evidence of continuing mild bilateral carpal tunnel syndrome.
19 In the Panel’s opinion, the plaintiff was suffering from residual dysfunction of both hands due to sensory deficit and pain in the distribution of the median nerve following bilateral carpal tunnel syndrome treated operatively relevant to the accepted bilateral carpal tunnel syndrome injury. The condition at that stage had stabilised. The Panel further noted that its assessment was higher (than normal) on the basis of the Panel’s clinical experience and its examination of the plaintiff on 4 August 2009, with the Panel identifying consistent and reproducible evidence of objective sensory loss in the distribution of the median nerve in both hands, and complaints of sensory symptoms and pain that interfered with activities of daily living.
20 The plaintiff was examined by occupational physician, Dr Robyn Horsley, on 11 February 2010. The plaintiff’s history to her at that stage was that physically she was unable touch type because of her bilateral wrist condition. She was, however, able to use the internet and email, eBay and banking. She complained of symptoms and noted her discomfort varied from three to eight out of ten. This occurs bilaterally, but it occurred with increased frequency on the left side. Once again on examination, there was a “patchy diminution of sensation to pinprick assessment in the distribution of the median nerve in both hands”.
21 Dr Horsley’s diagnosis at that stage was that the plaintiff had developed bilateral carpal tunnel syndrome and there was continuing evidence of mild bilateral carpal tunnel syndrome. She considered that the symptoms were likely to persist and that the plaintiff had reached maximal medical improvement.
22 The plaintiff was examined for the defendant by hand surgeon, Mr Murray Stapleton, on 29 March 2010. He noted the clinical history as referred to above, and also recorded the plaintiff complaining that her symptoms were getting worse with time. There was now more pain on the left side and pins and needles and numbness had shown no change. The plaintiff had shown him a nerve conduction study performed on 22 January 2009 which showed mild bilateral carpal tunnel syndrome. On examination, Mr Stapleton noted that Phalen’s test was positive on both sides. He also recorded that she had ceased work “because her hands created too much of a problem for her”. His diagnosis at that stage was one of bilateral carpal tunnel syndrome, which he believed had impaired her functional capacity to a considerable degree. At that stage, he believed the plaintiff was permanently incapacitated for employment. She was so incapacitated because of a “profound history of carpal tunnel syndrome ... ” – (which, incidentally, he believed was not work-related). He considered, at that stage, she would be capable of undertaking suitable employment:

“... but repetitive activities and flexion of the wrist should not be part of the activities and that does not mean to indicate that she will aggravate the pathology. That means that flexing of the wrist, whether it is done at work or whether it is done at home, and indeed lying in bed at night when the body fluids equalise, the symptoms of median nerve compression are increased. The flexing of the wrist giving rise to nerve compression symptoms does not draw a sensible conclusion that it is aggravating the underlying pathology.”

23 In a further report dated 15 September 2010, Mr Stapleton proffered the following opinion:

“Given the worker’s age, education skills and work experience [it] will provide her with limited opportunities in the future. ... The seasonal work that she performed where this lady reported a work injury ... will be hard to find.”

24 On review by Dr Horsley on 9 February 2011, the plaintiff recited that she did her housework within her physical capacity. She continued to be unable to sweep or vacuum, hang the clothes out or lift heavy pots and pans while cooking. Once again on examination “there was a patchy diminution of sensation to pinprick assessment in the general distribution of the median nerve in both hands”. Dr Horsley considered the plaintiff had ongoing sequelae to the operative relief on the two wrists and nerve conduction studies in 2009 confirmed continuing evidence of mild bilateral carpal tunnel syndrome. She believed that the symptoms were likely to persist.
25 The plaintiff was examined by occupation physician, Dr Gary Davison, on behalf of the defendant, on 1 December 2011. He noted at that stage, she was taking medication as necessary, being Panadeine Forte and Serepax, and the history at that time was “about twice a week”. She also reported the presence of intermittent sensory disturbance involving the tips of all fingers, but most apparent in the second, third and fourth digits. She reported persisting weakness in grip strength on the right side. She reported that her symptoms worsened as she grips for long periods, such as when driving her car. The plaintiff said she avoided heavy lifting and said that in the right hand she sometimes has difficulty lifting a cup of tea. She undertook light cleanings such as bench wiping, cleaning of basins and toilets and some cooking. She does not vacuum or hang out the washing. He also recorded “No pain or illness behaviours were observed”. On examination, he noted there was evidence of slight wasting of the right thenar eminence compared to the left side. He considered that the plaintiff had residual symptoms of carpal tunnel syndrome which were unlikely to resolve. He thought she had a capacity for suitable employment.
26 Accordingly, the overwhelming weight of the evidence appears to be that the plaintiff suffers from residual carpal tunnel syndrome, bilaterally, which has arisen out of or in the course of her employment. I note the contrary opinion from Mr Murray Stapleton, but as outlined earlier, causation was not placed seriously in issue in this case.

Pain and Suffering Consequences of Compensable Physical Injury

27 The plaintiff, in her first affidavit sworn 4 February 2010, outlined the nature of her duties, which she stated required repetitive prolonged use of her hands. She stated that she had not been able to resume employment since termination with the defendant in November 2007. At that time, she was taking Zoloft daily, Panadeine Forte weekly, and Panadol approximately five to six days per week. She noted that she had lost considerable strength in both hands, with the right hand being worse. She was getting numbness and pins and needles in the hands, and they were painful, probably four to five times a week, especially at night. She stated that the surgery on her wrists did improve things a little, but –

“... not a lot and I still have the ongoing problems, particularly the pain, the pins and needles and the numbness.”

28 The plaintiff stated further, because of the pain and pins and needles, particularly at night, she wakes and has difficulty sleeping and probably only gets four to five hours’ sleep a night. She was restricted to driving locally, perhaps about 10 to 15 minutes, and then her hands would get worse. Any activities around the house like vacuuming, cleaning, cooking and washing are now very restricted, and she has to be careful. She reported she could do the lighter things, but cannot do any of the heavier activities. If she tries to do too much with her hands, she gets increased pain and she will drop things because of the weakness in her hands.
29 The plaintiff noted that prior to injury she was a keen craftwork person, she would make and decorate cakes very regularly, and also on occasions leading up to Christmas, she would decorate bottles. She has not been able to do that since the onset of her difficulties. She stated that shopping was restricted and she needed assistance to do any of the heavier large shopping activities. Her mother resided in Hawthorn, whereas she resided in Taylors Lakes and she was unable to regularly visit her mother due to her symptoms whilst driving. She now had far less contact with her mother, which she found quite distressing. She did not believe she could resume any employment and she found that even light and relatively short-term activities would cause increased pain and numbness and pins and needles in the hands.
30 In her second affidavit dated 2 March 2011, the plaintiff reported she saw her general practitioner on a monthly basis and she was requiring Panadol daily and Panadeine Forte two to three times per week for pain relief. She recited that any activity which requires significant use of her hands and wrists was now difficult. She had stopped doing the vacuuming and only does very light sweeping. She could do the washing, but not hang the washing out, and could only do light cooking. She now recorded that she was in pain all the time, particularly in the right wrist, and the pain comes and goes, often for no particular reason. She was having trouble getting to sleep. She recorded that she used to read quite a lot and enjoy it, but now she found that holding a book for any prolonged period of time would increase the pain in her wrists.
31 In her third affidavit dated 31 October 2012, the plaintiff recorded that she was now taking Panadol daily, two to four per day, and Panadeine Forte, two on most days. She continued to have pain in each hand. The pain in her left hand had become worse. It was almost as bad as the pain in the right hand. She now got pins and needles two to three times per week. She stated that –

“... the worst problem I have is a constant pain in both hands and with the right now only slightly worse than the left hand.”

32 The plaintiff stated that the pain in both hands was always present but varies in intensity. The pain is always worse at night. She said that the pain interrupted her sleep and she had great difficulty getting to sleep at night. She said that she usually went to bed about midnight, but often could not stay in bed for more than half-an-hour to an hour. She would then get up and sit in front of the television for a while. She said at that stage, she undertook some of the cooking, but did not lift any pots or baking trays, and her husband peeled the vegetables.
33 The plaintiff’s husband, Mr Joseph Meilak, swore an affidavit dated 31 October 2012. In essence, he corroborated the plaintiff’s complaints of restriction and pain. At paragraph 6 of his affidavit, he stated:

“If it is necessary for Lorraine to do a big shop, and I am not available to go with her ... she rings me and I go and unload the groceries at the checkout, pack them into the car and unload them at home. More often than not I do the larger grocery shopping and Lorraine will pick up bits and pieces.”

Mr Meilak was not cross-examined on his affidavit.
34 The plaintiff was shown some 14 minutes of film taken on 12 July 2010 which showed her shopping in a supermarket and pushing a shopping trolley to her car and unloading the shopping into the boot of the car. She denied that this was typical of her abilities to perform tasks. I will return to this aspect at a later point.

Pain and Suffering Consequences – Principles

35 As has been set out on a number of occasions, but particularly in the Court of Appeal decision of Sutton v Laminex Group Pty Ltd [2011] VSCA 52:

“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.”[1]

36 The Court of Appeal recited with approval the dicta of Maxwell P in Hayden Engineering Pty Ltd v McKinnon [2010] VSCA 69, where his Honour recorded:[2]

“[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 to assess the frequency and duration of the pain episodes.
The evidentiary basis of the pain assessment ordinarily comprise the following:
● (a) shat the plaintiff said 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 said about the extent and intensity of the plaintiff’s pain; and
● (d) what the objective evidence shows about the disabling effect of the pain.
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.’

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)14 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.’

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 the extent to which ‘an area of work which [the plaintiff] enjoyed ha[s] been closed off to [him or her]’.
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.”

The Plaintiff’s Experience of Pain

37 With respect to the actual experience of pain and disability, as already stated, the plaintiff relied upon affidavits sworn by herself and her husband. She was cross-examined, but largely did not concede that her disabilities were being exaggerated. I observed the plaintiff in the witness box for some time under extensive cross-examination, and it is my view that she is an honest witness and was not prone to exaggeration or embellishment.
38 The objective evidence here is that the plaintiff has suffered ongoing bilateral symptoms which, if not getting worse, have not improved. Treatment has been extensive and the medical practitioners have been able to do little to relieve the pain. She endures ongoing pain, and even with the use of medication she is never totally free of pain.
39 The plaintiff has chronically disturbed sleep patterns. Her husband gave affidavit evidence as to the disturbance of her sleep and this was not seriously challenged in cross-examination of the plaintiff.
40 The plaintiff’s pain and disabilities, in my opinion, are more than significant or marked in their pain and suffering consequences. The question remains whether they satisfy the test of “very considerable”. Ultimately, as has been commented upon by the Court of Appeal on a number of occasions, the ultimate test “involves a value judgment in which matters of fact and degree and of impression are operative”.[3]
41 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 compensable injury to each wrist materially contributes are “very considerable.” I consider that the injury to each wrist is a “serious injury” and that the plaintiff has met the threshold test for leave to bring proceedings for damages under s134AB(19)(a).

Economic Loss Consequences of Compensable Physical Injury

42 Both counsel for the plaintiff and counsel for the defendant made very helpful submissions as to the way in which the evidence would be relevant to the criteria to be applied under sub-s38(e) of s134AB of the Act.
43 Without traversing the whole of the evidence and the discussion, it appears to me common ground, that if the plaintiff was not capable of performing in the region of 20 hours per week alternative duties, then she would meet the threshold test under the relevant legislation. The question, in my mind, is whether the plaintiff has a residual capacity to perform something in the order of three to four hours per day of work as discussed by the various witnesses whose opinions have been tendered.
44 The plaintiff, for her part, has tendered in evidence a report from occupational therapist, Ms Margaret Leitch, who reported on 3 March 2011. Relevantly, she noted that the plaintiff had returned to work after the first operation for four hours a day working as an order picker, with another four hours spent working in the office completing filing and routine computer-related tasks, such as data entry and invoice production. It was noted that the plaintiff was able to increase her hours of order picking to five hours per day; however, her symptoms worsened. It was noted that the defendant was unable to continue to provide suitable duties as part of an occupational rehabilitation program beyond March of 2007. It was noted, at s.12:

“Occupational rehabilitation services were provided to facilitate a return to work in a new occupation with a new employer, however they were ultimately unsuccessful.”

45 In essence, Ms Leitch considered that the plaintiff probably had no realistic ability to return to the workforce. The factors leading to this conclusion were as follows:

“She has a low level of formal education.
While she was a touch typist in the 1960s and 1970s she has had little opportunity to practise since. The results of a formal computer keyboard test rate her with a typing speed of 10 words per minute (adjusted for her high error rate).
Her knowledge of computer applications is very basic, for example she can read but not send emails and her knowledge of commonly used office software for word processing and spreadsheet construction is rudimentary.
She would need to commence re-training or redeployment at 57 years of age.
She has not been in paid employment for nearly four years.”

46 In a further consideration of the impact of her reduced functional capacity on work productivity, it was noted relevantly:

“Her capacity to regularly and reliably attend work will most likely be adversely affected by her vulnerability to increased symptoms with sustained activity.
Her bilateral hand symptoms impact on her ability to concentrate with a likely reduction in accuracy and adherence to occupational health and safety procedures.
She experiences disturbed sleep on occasions due to her bilateral hand pain resulting in tiredness and problems remaining focused and alert during the day, and this would impact on her capacity to remain safe in the workplace.
Her limited functional capacity would adversely impact on her ability to respond to requests to perform additional duties in busy periods or due to staff shortages.”

47 At this point it is perhaps relevant to recall the evidence of Mr Murray Stapleton referred to above, where he considered that activities which produced pain were to be avoided, and he considered that the plaintiff was genuine in her presentation.
48 The defendant, for its part, tendered a number of vocational documents, the most relevant of which relate to the plaintiff’s condition post her second operation.
49 In the NES Week 8 Job Seeker Plan dated 5 November 2008, the author noted:

“Mrs Meilak advised on 21 October 2008 that she has been unable to commence active job seeking due to high level pain and incapacitation.”

50 In a further report dated 27 February 2009, the author noted:

“Dr Chris Baker [for the defendant] reported 18 February 2009, ‘I note the occupations of retail assistant and customer service assistant’. I believe these could place too much strain on her hands as I would consider food service assistance would. However, she could work as an enquiry clerk or as an office assistant or receptionist where her work is principally meeting and greeting, answering a telephone and not undertaking associated keyboard work’. “

51 In a further report dated 12 March 2009 the plaintiff’s present condition was noted. The plaintiff described her present symptoms as weakness and numbness in both hands, radiating through the wrists. She advised a difficulty lifting, gripping or carrying even light weights. She advised of a five-minute driving tolerance and limited tolerances for writing, keyboarding or using a mouse. Overall she advised that she was not capable of any repetitive hand or finger movements or repetitive lifting or carrying. She reported at that stage, that due to sleep disturbance, she had little energy, was experiencing fatigue and did not believe that she would be able to attend work on a regular basis. It was noted once again that Dr Baker was of the opinion that she would be able to perform duties that are primarily advisory in nature, such as enquiry clerk, receptionist or office assistant.
52 Relevantly, the final conclusion of this report included the following paragraph:

“However, the independent examiner reported that she has a current work capacity for employment within the following restriction: minimal use of her hands.”

53 In a report from CoWork Pty Ltd dated 14 May 2010, on behalf of the defendant, the authors considered a number of job opportunities for the plaintiff. At page 21 of the report, the authors recorded:

“We agree that Mrs Meilak is suited to customer service positions. However it is our opinion that the three roles identified are outside of her injury capabilities and overall health ability. A service station attendant is required to lift items to restock shelves and car accessories that would possibly aggravate her condition. Secondly a book packer is required to perform repetitive movements similar to her pre-injury employment. Thirdly the role of a security guard would require to undergo re-training which is unnecessary as she is adequately qualified for alternative roles.”

54 It was still the author’s view that she would be able to pursue employment as either a sales assistant or an administration clerical worker, or a call or contact centre operator. However, it was noted at page 22 of the report, that the duties of a sales assistant, for example, included:

“Demonstrating ... to customers the establishment’s goods and services.
Assisting with the ongoing management of stock such as product inventories and participating in stocktakes.
Stacking and displaying goods for sale and wrapping and packing goods sold.”

55 Further, in considering the job of a call centre operator, at page 25 of the report, the duties were noted to include:

“Updating data bases to reflect changes to the status of customers and prospective customers.
Arranging the despatch of goods, information kits and brochures to customers and interested parties.
Undertaking clerical duties such as faxing and filling out paperwork and liaising with other departments associated with completing the customer contact.
Issuing invoices and receiving electronic payments for goods and services provided.”

56 It was also noted at page 26 of the report:

“Employers desire experience in customer service, good communication skills and the ability to use a keyboard when seeking newer applicants.”

57 In my view, the plaintiff does have a lack of sophistication and not an easily transferrable skill in this regard.
58 Ultimately, if one accepts the plaintiff as an honest historian, I do not believe that the 14 minutes of film as shown and as recited above, would transfer into an ability to perform work of a nature referred to above for a period of three to four hours per day.
59 In my view, the plaintiff has discharged the onus of proof with respect to s134AB(38)(e) of the Act and leave to issue proceedings will be granted accordingly.
60 I will hear the parties on the question of costs.

Orders

61 Leave is granted to the plaintiff pursuant to s134AB of the Act to commence proceedings at common law in respect of pain and suffering damages and pecuniary loss damages in respect of the injury to her suffered during the course of her employment with the defendant.
62 By consent, the defendant is to pay the plaintiff's costs, including any reserved costs, on County Court Scale “D” of the County Court Scale of Costs up to 31st August 2011, and thereafter on the County Court Scale of Costs to be assessed by the Costs Court in default of agreement.
63 Certify for counsel to receive judgment fixed at $450.00.
64 Certify for the preparation, filing and service of the plaintiff's Court Book, one copy at scale and any additional copies to be assessed by the Costs Court.
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[1] at paragraph 46

[2] ibid at paragraphs 46 to 50

[3] Stijepic v One Force Group Pty Ltd [2009] VSCA 181, [41]