IN THE COUNTY COURT OF VICTORIA
AT Melbourne (Zoom)
COMMON LAW DIVISION	Revised
Not Restricted
Suitable for Publication	
Serious Injury List

Case No. CI-21-02952

MARY CASSAR	Plaintiff	
		
v		
		
VIP PLASTIC PACKING PTY LTD	Defendant	

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JUDGE:	HIS HONOUR JUDGE PURCELL	
WHERE HELD:	Melbourne (Zoom)	
DATE OF HEARING:	23 February 2022	
DATE OF JUDGMENT:	11 March 2022	
CASE MAY BE CITED AS:	Cassar v VIP Plastic Packing Pty Ltd	
MEDIUM NEUTRAL CITATION:	[2022] VCC 177		

REASONS FOR JUDGMENT
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Subject:	ACCIDENT COMPENSATION
Catchwords: 	Serious injury application – pain and suffering consequences – injury to the cervical spine – psychiatric injury
Legislation Cited:	Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:	Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260; Petkovski v Galleti [1994] 1 VR 436
Judgment:	Leave granted to commence a proceeding for pain and suffering damages

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Ms F Ryan SC with
Ms S Lean	Ryan Carlisle Thomas	
			
For the Defendant	Mr J Batten	Wisewould Mahoney	

HIS HONOUR:

Introduction
1	Many significant events occurred in 1989, including the removal of the Berlin Wall, the first release of Microsoft Office and the birth of singer Taylor Swift.  1989 was also significant for the plaintiff, Mary Cassar.  In 1989, she commenced employment with VIP Plastic Packaging Pty Ltd (“the defendant”) as a machine operator at the defendant’s Laverton North factory.  Thirty-three years later, the plaintiff continues to perform full-time work for the defendant.  Her duties include monitoring machines, packaging plastic bottles into boxes, and stacking boxes of plastic bottles onto pallets.  It is a job that she loves.
2	The plaintiff is now fifty-eight years of age.  She lives with her husband in their home in Melbourne’s western suburbs.  They have three adult children and six grandchildren.  The plaintiff was born in Malta and migrated to Australia when she was eighteen years of age.  She obtained a packing job before the job with the defendant, as already described.  
3	The plaintiff had suffered a range of health problems over the years, for which she attended a clinic operated by IPC Health at Wyndham Vale.  Among the doctors she saw at that clinic was a Dr Mai Ying Pang.  The plaintiff was a regular attendee at Dr Pang’s clinic, including for symptoms of dizziness, vertigo, and headache.  Her past medical history is an issue in this proceeding, to which I shall return.
4	The plaintiff was working for the defendant on 7 November 2016 when her hair became caught in a machine (“the incident”).  The happening of the incident is not in dispute.  It was the subject of an investigation report, which identified that a shroud was missing from the machine.  The plaintiff described the incident in an affidavit sworn by her on 19 February 2021, as follows:
“On or about 7 November 2016 at approximately 9:40pm, I was working on the P15 machine. This machine makes bottles. I was holding sticky tape in my hand, which I was using for the boxes containing bottles. At one point, I dropped the sticky tape. I therefore bent down to pick it up. As I stood up, I hit my head on the motor of the leak tester and my hair became caught in the motor. The machine pulled my head very forcefully and ripped a chunk of hair from my head. I was unable to reach the stop button, as I was trapped under the machine. I therefore screamed for help, however others could not initially see me. When they eventually saw me, they stopped the machine. I was then assisted to the onsite Medical Centre. The incident was terrifying.
 At the time of my injury, the machine did not have a guard. The following day, a guard was put onto the machine. If the guard had been on the machine, this would have prevented my injury. I don’t know who removed the guard, however I understand that a number of machines did not have guards. I haven't seen the machine used since my injury.”
This proceeding
5	This is a “serious injury” application brought pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) by the plaintiff, in which she seeks the leave of the Court to commence a common law proceeding for pain and suffering damages.
6	Specifically, the plaintiff relied upon a claimed physical injury to the cervical spine, with related consequences, including secondary headache, as the “serious injury”.  In the alternative, should I conclude that the plaintiff’s current complaints of pain were psychiatrically based and not due to an organic injury to the cervical spine, then the plaintiff relied upon a psychiatric injury as the “serious injury”.
7	In response, the defendant indicated that the issues in this proceeding were – 
(i)	firstly, the identification of injury, particularly in the causal sense regarding the claimed cervical spine injury;  
(ii)		secondly, the identification of impairment and impairment consequences 		referable to the claimed “serious injury”; and
(iii)	thirdly, whether the plaintiff could identify “very considerable” impairment 		consequences, either in respect to a claimed physical injury or a claimed 		psychiatric injury, bearing in mind, of course, that a physical injury must 		be “serious”, and a psychiatric injury must be “severe”.
8	The matter proceeded in “the usual manner”.  The plaintiff tendered two affidavits sworn by her and an affidavit sworn by her daughter.  In addition, she tendered various medical reports, radiological reports and claim documents.  She was required for cross-examination and gave oral evidence as to the contents of her affidavits and other relevant matters.  The defendant tendered relevant medical reports and clinical records.  I have considered the tendered evidence and the transcript of the plaintiff’s oral evidence, but I shall only refer to the evidence to the extent necessary in these reasons.
9	Otherwise, the relevant legal principles are well known and are not in dispute.
The plaintiff
10	I have briefly mentioned the plaintiff’s background, work history and family situation.  She gave her evidence in English, although an interpreter had been sworn, as English is her second language.  The impression I formed of her is that of a loyal employee to the defendant.  She gave her evidence in a straightforward manner.  At the conclusion of the evidence, the defendant did not suggest that any credit issue arose in this proceeding.  The plaintiff gave candid evidence, including evidence that could be said to be against interest.  An example of that (which also supports my impression that the plaintiff is a solid citizen) is when it was put to her in cross-examination that, before November 2016, it had been a worry all her life that she would lose her job with the defendant, she said that she always worried and was scared that she would lose the job.  I understood that to mean that she was an unskilled worker concerned about her job security in circumstances where she has performed what some people might consider to be fairly menial work for over thirty years but, to her, is a job she loves and is part of her social fabric.
11	Turning to her affidavit evidence, in her first affidavit, the plaintiff provided a broad history of the injury, treatment since the injury, and consequences.  In that affidavit, she said she experienced pain in her neck, head, shoulders, and ears.  She described the pain as often feeling like a burning and/or grinding pain, and that it increased with activity, and was usually worse after working.  She described restrictions to day-to-day activity and work.  Relevant to the issue of causation, the affidavit is silent as to when the plaintiff developed symptoms.
12	The plaintiff swore a further affidavit on 12 January 2022.  That affidavit also sets out, broadly, matters to do with her past health, treatment, progress, and consequences.
A neck injury?
13	Much of the defence to the plaintiff’s claim for “serious injury” was directed to the issue of whether the plaintiff injured her neck in the incident. The defendant submitted there was a lack of a contemporaneous complaint of a discrete neck injury, as opposed to her complaint of symptoms down the back of the head and neck.  I will discuss this issue in due course when dealing with the medical material.  The point to be made at this stage is that the plaintiff’s affidavits do not assist in the resolution of that issue.  The affidavits are silent as to when she developed symptoms in her neck.  
14	The plaintiff was cross-examined at length based on clinical records from Dr Pang’s clinic.  She was cross-examined about attendances prior to the incident, including for matters such as dizziness, vertigo, and headache.  The plaintiff accepted the accuracy of the clinical records and what was recorded in them about pre-existing matters.  She said she now has headaches which create a sensation of grinding and pain at the back of her head and were not frontal headaches of the type she had before the incident.  In respect to symptoms before the incident, she said her understanding was that they related to “the change of life”.
15	The thrust of the cross-examination was to suggest to the plaintiff that she did not complain of a discrete neck pain, or discrete neck injury, after the incident, until approximately August or September 2017.  I shall discuss this later in these reasons.
16	As previously mentioned, the plaintiff’s affidavit evidence does not deal with the issue of when the plaintiff developed neck pain.  Further complicating my task is that the clinical records from Dr Pang are difficult to interpret, include repetition and appear to record matters taken from other documents available to Dr Pang; they are not necessarily a direct history obtained from the plaintiff.  
17	The first attendance on Dr Pang after the incident was on 14 November 2016 and, to illustrate the point, Dr Pang’s entry of that date incorporates matters referred to in earlier clinical entries.  Dr Pang recorded a history of the plaintiff’s hair being caught and pulled hard. There was an examination finding of tenderness and hair loss over the scalp on the upper part of the back of the head.  Dr Pang recorded the plaintiff as having headache, dizziness and anxiety following the incident and “likely post-traumatic stress disorder”. 
18	The plaintiff then returned to Dr Pang on 21 November 2016.  The history recorded there included intermittent headache and a pulling sensation.  Next, the plaintiff returned to see Dr Pang on 28 November 2016.  Again, symptoms such as dizziness and headache are recorded.  On 6 December 2016, the plaintiff re-attended Dr Pang and again, there is recorded symptoms of dizziness.  
19	There were then further attendances on Dr Pang with similar complaints recorded in the doctor’s notes before the plaintiff re-attended on 9 January 2017, where the doctor there recorded a “pulling sensation of her head - occurs at different sites on different occasions, sometimes radiates from the back of her head to the back of her neck, occurs on most days”.  
20	That symptom of a pulling sensation is then recorded in further attendances, which are unnecessary to set out, as the notes speak for themselves, until an entry on 25 September 2017, where Dr Pang recorded, not only the “pulling sensation”, but also neck stiffness.
21	Pausing here, it is this specific entry of “neck stiffness” which highlights the way the defendant challenged the plaintiff, namely that the absence of such a clear reference to neck symptoms until then brings into question whether there was a neck injury, or whether unrelated symptoms (perhaps due to underlying pathology) caused the onset of neck symptoms at this later time.
22	In cross-examination, it was squarely put to the plaintiff that she never complained of pain in her neck to Dr Pang, as opposed to a burning pain from the back of the head down the back of her neck before the attendance on 25 September 2017.  In response, she said “No, I did complain” and that “I did complain.  I had sensation, pulling sensation, it took me three months to brush my hair”. 
23	As mentioned, I consider the plaintiff a credible witness.  I accept her evidence that she did complain to Dr Pang of symptoms in her neck as described.  I consider it to be semantics to criticise the language used by the plaintiff when attending her doctor.  On any view, she had symptoms in the back of her neck.
24	By the time the plaintiff attended Dr Pang on 25 September 2017, she had already been referred to Dr Malcolm Ong at Advanced Healthcare.  Dr Ong’s precise qualifications are unclear from his reports but include a claimed specialty as a “pain management program and rehabilitation program consultant”.  He first consulted with the plaintiff on 9 August 2017.  In a report dated 20 September 2019 to the plaintiff’s solicitors, Dr Ong lists among the presenting complaints as “pain in neck”.  That complaint prompted Dr Ong to refer the plaintiff for a CT scan of her cervical spine, which was undertaken on 10 August 2017.  The report of the scan describes findings consistent with degenerative change in the cervical spine.
25	The plaintiff underwent a multidisciplinary assessment at Advanced Healthcare on 14 August 2017 by a physiotherapist, Michael Strintzos, a psychologist, Tyson Sharp and Dr Ong.  The assessment recorded subjective examination findings, including that approximately three months ago the plaintiff had developed increasing neck pain and that there had been a recent CT scan.  During cross-examination it was suggested that the history of increasing neck pain was taken by a physiotherapist, Mr Mathew Foreman, at Advanced Healthcare, sometime in early 2020, by reference to his report of 24 April 2020.  That suggestion is clearly wrong.  Mr Foreman’s report incorporates the multidisciplinary assessment findings and is not a reference to increasing neck pain in 2020.  
26	Pausing again, unscrambling the issues in this case is also not easy because of the duplication of material from Advanced Healthcare and the way the reports from that organisation have been prepared.
27	However, by August 2017, the plaintiff had made an unambiguous complaint of neck pain to Advanced Healthcare as well as providing a history of increasing neck pain over the previous three months.  Before then, the plaintiff had described to Dr Pang the pulling sensation extending down the back of her head and neck, even if she had not described symptoms of a discrete “neck injury”.
28	The incident that caused significant force to be applied to the plaintiff’s head and neck area was sufficient to pull a chunk of hair from her scalp.  She was trapped for a time with her hair caught in an operational machine.  Soon after the incident, she described symptoms including the sensation down the back of her neck.  It is relevant, in my view, that English is not her first language, even if she has a reasonable grasp of it.  I would not expect someone with the plaintiff’s background to articulate her symptoms with legal precision when attending her doctor.  I agree with the submission made on her behalf that the evidence discloses a contemporaneous reporting of symptoms down the back of the neck consistent with an injury to the neck.  
29	The medical evidence tends to the conclusion that she did injure her neck.  This is consistent with the history obtained at Advanced Healthcare in August 2017 of three months of increasing neck pain.  At the risk of repetition, it was not a description of the recent onset of neck pain.  At the multidisciplinary pain management assessment, the medical practitioners recorded that the plaintiff “does not have an understanding of the diagnosis”, which supports a finding of someone who may not have articulated her complaints perhaps as well as the lawyers might have liked.  Since then, she has a well-documented complaint of symptoms in language that suggests a discrete neck injury.
30	Before moving on to deal with the balance of the medical evidence, I note for completeness that in early 2017, the plaintiff was referred by Dr Pang to Dr David Freilich, a neurologist, who she had attended back in 2013 with, in his words, “vertigo which had settled and not recurred”.  After the re-referral in early 2017, Dr Freilich reported back to Dr Pang by letter dated 16 January 2017, recording the plaintiff as describing a “pulling feeling at the back of the head and also over the neck”.  In my view, that history to Dr Freilich provides further support for the conclusion that there were symptoms in the neck, consistent with an injury to the neck, from the time of the incident.  
31	Further, Dr Pang provided a referral for the plaintiff to undergo psychological counselling on 25 January 2017.  That referral records, amongst other things, a history of the plaintiff having a “pulling sensation” of her head.  I also consider that history to be consistent with an injury to the neck.
Dr Malcolm Ong
32	Dr Ong provided several reports regarding the plaintiff.  There is considerable information and repetition in those reports.  His most recent report is dated 2 November 2021.  In that report, he diagnosed, among other things, a “[c]hronic cervical pain syndrome from musculoskeletal and soft tissue injury with inflammatory and myofascial conditions, and discogenic and neuropathic components”.  He set out the treatment provided to the plaintiff, which had principally been by way of the multidisciplinary pain management program.  He opined that the plaintiff was fit for work, but with restrictions.
33	Returning for a moment to the evidence from the plaintiff, she said that she continues to be employed by the defendant.  She works her usual afternoon shift from 3:00 PM to 11:00 PM, although recently she had been assisting with half an hour’s overtime each day for COVID testing.  She gave compelling evidence that before the incident she worked regular overtime, including up to twelve hours per day.  The claim form she completed after the incident records her regularly working eight hours overtime per week.  She now avoids working on some of the busier machines and there was no challenge to the suggestion that, despite working full time, it is to some extent modified, and that she is not working the overtime that she did pre-incident. I accept this evidence and it was not challenged.
34	The balance of the material from treating practitioners does not really assist the resolution of the issues in this case.
Mr Thomas Kossmann
35	Turning, then, to the medico-legal evidence from practitioners who have assessed the plaintiff’s neck injury, Mr Thomas Kossmann is an orthopaedic surgeon who assessed her on two occasions and provided reports dated 27 July 2020 and 20 January 2022.  In his second report, he repeats much of what was contained in his first report, including that the plaintiff had suffered from headaches and pain in her cervical spine since the incident.  In his words, the plaintiff “was finally diagnosed to suffer from cervical spondylosis”.  He described the plaintiff’s prognosis as guarded and that she might benefit from further pain medication, physiotherapy and hydrotherapy.  He described an incapacity for employment which would continue into the foreseeable future.  
36	The plaintiff’s evidence is that her current treatment includes regular attendance for hydrotherapy and home-based physiotherapy exercises, consistent with the recommendations of Mr Kossmann.
37	The defendant submitted that Mr Kossmann’s report did not assist the Court because he had the wrong history, namely of neck pain since the incident.  As should be clear, a consideration of the whole of the evidence does, in my view, establish that there was neck pain following the incident and, accordingly, I do not accept the submission that Mr Kossmann has the wrong history.
Mr Rodney Simm
38	The defendant tendered two reports from Mr Rodney Simm, an orthopaedic surgeon.  In his first report of 19 May 2021, Mr Simm obtained a history of the incident, but in his report, he has intertwined what the plaintiff told him with what he had extracted from a consideration of the clinical records, medical reports and other documents provided to him, such as correspondence from Dr Freilich.  From reading his report, it is unclear whether he asked the plaintiff what her symptoms were following the incident or if he relied on other documents to obtain a history.  Therefore, it is perhaps not surprising that he described the original physical injury as a “traction injury to the hair and scalp” and that the “contemporaneous medical record did not document signs and symptoms of a cervical spine injury”.  He then concluded as follows:
“I concluded that she suffered soft tissue injuries, from which she would have recovered quite soon after the incident, and that her ongoing symptom complex relates to non-organic and/or psychological factors, which have led to a chronic pain condition and an ongoing emotional disturbance, which needs to be evaluated by a Psychiatrist.”
39	In his first report, Mr Simm opined that the plaintiff’s condition in relation to the incident was “entirely functional or psychological”.
40	Mr Simm then re-examined the plaintiff on 2 December 2021 and provided a report of that date, in which the history of injury replicates the history in his earlier report.  He took a history of ongoing symptoms and the consequences.  He was asked to provide an up-to-date diagnosis, considering further documentation that he had been provided, including the relevant clinical records from IPC Health.  Having done so, he said as follows:
“4.	Please provide an up-to-date diagnosis of the worker’s current presentation.
The diagnosis remains unchanged.  She suffered substantial soft tissue trauma, particularly to the scalp, in the frightening work incident.  She developed the early onset of symptoms of post-traumatic stress and anxiety following this incident.  Symptoms in the neck and left trapezius became part of the symptom complex after the incident and although there were no recorded signs and symptoms in the neck immediately after the incident, it is possible, as a result of a soft tissue strain of the cervical spine, there was some aggravation of the pre-existing and previously symptomatic degenerative pathology in the cervical spine.  However, on both occasions I have examined her, there have been minimal or no clinical (sic) of impairment of the cervical spine.”
41	In the second report, Mr Simm described the plaintiff as presenting in an entirely straightforward manner and he was prepared to accept her subjective complaints as genuine.  He was then asked a question under the heading of “Disentanglement”, as follows:
“Do you detect the presence of any functional component or psychological reaction to the plaintiff’s physical condition, and if so, please describe the extent of that reaction and how it manifests itself.
She did not present the clinical features of functional overlay, although I suspect her symptoms are generated, perpetuated and amplified by non-organic and/or psychological factors.  Dr Ong, the treating specialist, refers to the condition being due to central sensitisation.  This diagnosis now falls outside the field of orthopaedics and is in the field of chronic pain.  The contribution to her clinical course, including her symptoms from the psychological distress of the incident, would have to be determined by a Psychiatrist.”
42	The defendant submitted that I should prefer Mr Simm’s opinion to that of Dr Ong and Mr Kossmann, because of the lack of contemporaneous reporting of signs and symptoms in the cervical spine.  Broadly, counsel for the defendant submitted that Mr Simm had the most accurate history, as he had been provided with all relevant documents and, in the absence of contemporaneous reporting of neck symptoms after the incident, his opinion should be preferred.  But that submission glosses over the opinion in Mr Simm’s second report that although, in his view (and I disagree) there were no recorded signs and symptoms in the neck immediately after the incident, it was possible, because of a soft-tissue strain of the cervical spine, that the plaintiff had some aggravation of the pre-existing and previously symptomatic degenerative pathology in the cervical spine.  That concession by Mr Simm is, in my view, significant.  In other words, he does not exclude that there could have been aggravation of the degenerative pathology in the cervical spine, even if there was no contemporaneous complaint of neck symptoms.
43	When Mr Simm’s opinion is considered by reference to the conclusion I have already expressed, namely that the plaintiff did injure her neck in the incident – which he accepts was a possibility – then his opinion is ultimately not dissimilar to that of Dr Ong and Mr Kossmann, namely that in the incident, the plaintiff injured her neck by way of the aggravation of pre-existing degenerative change.
44	In my view, on a consideration of the whole of the evidence, the plaintiff has causally established injury to the cervical spine.
Impairment consequences from the neck injury
45	The next task is to analyse the impairment consequences from the identified physical injury to the cervical spine.
46	Firstly, and of some consequence to the plaintiff, there is the pain and headache which she now experiences, with the grinding and burning sensation down the back of her head and into her neck.  There is no suggestion in the material that those symptoms will abate.  The plaintiff is fifty-eight years of age and so she will be forced to put up with those symptoms for some considerable period.
47	Next, and again of some significance, is the impact on the plaintiff’s work.  While she does not (and cannot) rely upon the pecuniary loss consequences, I am still able to consider the interference with her job, being a job that she loved, as a relevant pain and suffering consequence, even if that is a more limited consideration than the actual pecuniary loss.
48	Related to the previous point, I accept the plaintiff’s evidence that her energy is now taken up at work and that she is finding work hard, and that she cannot do the overtime she did pre-injury.  I accept her evidence that she is usually in pain when she gets home after a day’s work.  I consider the plaintiff as somewhat stoic, putting up with the pain and pushing on at work.  That should not be held against her.
49	The impression from the plaintiff’s evidence is that her life pre-injury was taken up with her work and with her home and family.  True it is that she is still able to look after her granddaughter and contribute to the house by way of cooking, cleaning, shopping, and driving a car, but equally, I accept the evidence in her affidavits that she now gets help from her husband and has difficulty with heavier domestic activity.  That evidence, to some extent, is confirmed in the affidavit of her daughter, Ms Mandy Francalanza, who provided an affidavit sworn 15 February 2022 that, buried among inadmissible hearsay evidence, does confirm some of the plaintiff’s evidence. 
50	Further, I consider the ongoing conservative treatment and the fact that the plaintiff requires some medication to manage her symptoms, even if that medication is limited and at the lower end of the range.
51	This is not an application in which the plaintiff relies on one “big ticket” item as a pain and suffering consequence.  Nevertheless, in my view, the combination of the ongoing pain, headache, interference with work, interference with domestic activity and the requirement for ongoing conservative treatment, is such that the plaintiff does have a “very considerable” pain and suffering consequence.
52	While the injury to the neck may be an aggravation injury, there is no evidence that the pre-existing degenerative change caused the plaintiff incapacity for work or domestic, social, or recreational activities.  In that sense, I am satisfied that the contribution from the aggravation is, of itself, the cause of her current symptoms and restrictions.
53	Accordingly, for the reasons given, I am satisfied that the plaintiff has established an entitlement for leave to commence a proceeding for pain and suffering damages in respect to the injury to her neck suffered at work on 7 November 2016.
54	Given my conclusion regarding physical injury, it is unnecessary to deal with the alternate claim for “serious injury” based on a psychiatric response to the incident.  I accept that the incident was very frightening and has caused psychological symptoms, but consistent with how her senior counsel opened the case, the secondary psychological symptoms do not explain the plaintiff’s complaints of neck pain and therefore any psychiatric injury is not “severe” and does not in isolation produce a “very considerable” pain and suffering consequence.
55	I shall otherwise make consequential orders in respect to costs after hearing from the parties.
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