Acik v Demos Property Services (Australia) Pty Ltd
[2013] VCC 551
•24 May 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-02726
| ZOHRE ACIK | Plaintiff |
| v | |
| DEMOS PROPERTY SERVICES (AUSTRALIA) PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 and 8 May 2013 | |
DATE OF JUDGMENT: | 24 May 2013 | |
CASE MAY BE CITED AS: | Acik v Demos Property Services (Australia) Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 551 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Compensable injury to the neck – pain and suffering consequences of the neck contributed to by both the impairment of the function of the neck and from a secondary psychiatric condition – the need for so-called disentangling – whether, after disentangling, the pain and suffering consequences were “serious” – credit and reliability of the plaintiff
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Jayatilake v Toyota Motor Corporation [2008] VSCA 167
Judgment: The plaintiff’s originating motion is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A MacTiernan | Zaparas Lawyers |
| For the Defendant | Ms M Tsikaris | Lander & Rogers |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed 5 June 2012, by which the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injury suffered by her arising out of the course of her employment with the defendant.
2 The plaintiff seeks leave to bring such a proceeding for pain and suffering.
3 Ms A MacTiernan of Counsel appeared for the plaintiff and Ms M Tsikaris of Counsel appeared for the defendant.
4 The injury suffered by the plaintiff for which leave is sought is an injury to the neck.
5 The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered her Court Book (“PCB”), pages 6-22, 40-59.1, 60-82: Exhibit A;
· The defendant tendered its Court Book (“DCB”), pages 20-73, 80-85: Exhibit 1.
6 The application is brought under the definition of “serious injury” contained in ss(37)(a) of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
The statutory scheme
7 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that she has a suffered a compensable injury, that is, an injury which he suffered arising out of or in the course of her employment on or after 20 October 1999.
(b) The injury and the impairment must be permanent, that is, permanent in the sense that it is likely to last for the foreseeable future.
(c) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked” and as being “at least very considerable”.
(d) Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(e) In conformity with Barwon Spinners Pty Ltd & Ors v Podolak,[1] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[1](2005) 14 VR 622
Background
8 The plaintiff was born in January 1970 in East Turkey. She completed her primary and secondary education in Turkey, and then attended a university in Istanbul. She obtained a Bachelor’s Degree in Education with an emphasis on counselling and psychology. The degree course was five years in duration. Her degree was conferred in 1995.
9 The plaintiff was introduced to the notion of travelling to Australia when she was living with housemates in England. After working as a counsellor/psychologist at a private secondary school in Turkey in 1999, she won an award which entitled her to travel to England. She then took up work with English counsellors and social workers. She worked in England in that capacity from 9 August 2005 to 12 April 2006. She then returned to Turkey. She subsequently took up work as a counsellor/psychologist at a private secondary school.
10 On 5 September 2008, the plaintiff travelled to Australia, and settled in Melbourne. She returned to Turkey to visit her father who was ill and to obtain her academic transcripts from the university from which she obtained her Bachelor’s Degree. She returned to Melbourne and subsequently enrolled at Latrobe University to study a Bachelor’s Degree in Science, concentrating on the discipline of Psychology.
The Plaintiff’s injury
11 The plaintiff commenced employment with the defendant on 20 April 2009. Essentially, the plaintiff was required to perform cleaning work at the ANZ Bank call centre. In her affidavit sworn 9 August 2011, she described the nature of the physical tasks involved in her work.[2]
[2]PCB 8-9 and 14-17
12 In about November 2009, the plaintiff experienced pain in her neck, radiating into both of her shoulders. The pain she was experiencing persisted. On 26 November 2009, she saw Dr Baglar, general practitioner, for treatment. He recorded that the plaintiff was lethargic and had restricted neck movements. On examination, he found restriction in her neck movements, and discomfort in her arms when moved to extreme ranges of movement.
13 The plaintiff saw Dr Baglar again on 4 December 2009. She complained of the same neck problems. He referred her to have a CT scan, which was taken on 9 December 2009.[3] The CT scan disclosed that at C5-6, there was a minimal central posterior disc prolapse with some associated osteophyte formation causing minimal impingement only upon the anterior aspect of the spinal theca, and at C6-7, there was a slightly larger but again small central posterior disc prolapse causing some minor impingement upon the anterior aspect of the spinal theca but with no nerve root entrapment.
[3]PCB 58
14 Dr Baglar examined the CT scan. It would appear that he accepted the radiologist’s opinion of what the CT showed. He said that “it was plausible” that the disc prolapses were work-related, but he did not accept that the osteophytes could be attributed to her work, considering that she had only worked for the defendant for a very short period of time.[4]
[4]PCB 41
15 Dr Baglar provided the plaintiff with a certificate that she was unfit to her engage in her pre-injury work. He referred her to have physiotherapy. He considered that the plaintiff had improved with conservative treatment. He must have certified her as fit for modified duties, because the plaintiff returned to work. It would appear that the plaintiff stopped work at around the time she had the CT scan. She returned to work on 13 September 2010. She worked for one-and-a-half months before stopping work altogether.[5]
[5]PCB 11
16 Dr Baglar referred the plaintiff to Mr Bittar, neurosurgeon. The plaintiff saw Mr Bittar on 9 April 2010. The plaintiff told him that she was suffering from neck pain and bilateral arm numbness. Mr Bittar reviewed an MRI scan taken on 12 March 2010.[6] He was of the opinion that the plaintiff had suffered an aggravation of cervical spondylosis. He recommended that she continue with physiotherapy and analgesia and that she be referred to a multidisciplinary pain clinic for assessment and treatment.[7] The plaintiff did not see him again.
[6]PCB 59.1
[7]PCB 54
17 Dr Baglar referred the plaintiff to Dr Merory, neurologist. The plaintiff saw Dr Merory on 20 April 2010. The plaintiff told him that she had a one-year history of pain on the right side of her neck and later developed a headache, which radiated bilaterally around her head and included the occipital, parietal and temporal regions. She also told him, among other things, that she had paraesthesia in both hands at night and on waking. He arranged for the plaintiff to have nerve conduction studies, which were performed on 29 April 2010, and he prescribed her Amitriptyline for her headache. He reviewed her on 4 May 2010. He was unable to make a clear diagnosis, but considered there were no neurological signs present. He suspected she had developed fibromyalgia and possibly a cervicogenic or tension-related headache. He recommended she see a rheumatologist.[8]
[8]PCB 57
18 It would appear that the plaintiff returned to the care of Dr Baglar. In a report dated 22 October 2010, he referred to the plaintiff’s attempt to return to work in about October 2010. He referred to the fact that she had stopped working. It was his opinion that she was unfit for work. He then said that it appeared to him that the pain she was experiencing was taking a chronic form, and that he was considering referring her to a pain management program.[9] In subsequent reports dated 3 October 2011[10] and 18 March 2013,[11] Dr Baglar referred to the treatment he subsequently provided the plaintiff. In his last report, he referred to the plaintiff continuing to have physical treatment, prescription of medication, and referral to a psychologist. He also referred to the plaintiff having attended a short pain management program in 2012, describing it as having a less than ideal outcome.[12]
[9]PCB 44
[10]PCB 45-47
[11]PCB 48-50
[12]PCB 49
19 Dr Baglar was ultimately of the opinion that the plaintiff was suffering from chronic neck pain due to prolapsed discs at C5-6 and C6-7 and also from a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. He was aware that the plaintiff was reaching the end of her university studies at Latrobe University. He considered that the employment which she could obtain using that qualification would be compatible with her limitations because it would enable her to work at her own pace.[13]
[13]PCB 49-50
20 The plaintiff continues to be treated by Dr Baglar. She is not seeing any other medical practitioner at present. She is prescribed Lyrica, Endone and Panadeine Forte for pain relief, and Cymbalta to treat her psychiatric condition. The plaintiff said that she uses Endone once or twice a week when the pain is bad. She takes one Lyrica and Panadeine Forte per day. She takes one Cymbalta per day for stress relief.[14] It would appear that Dr Lim is prescribing the Lyrica, and the other medication is prescribed by Dr Baglar.
[14]Transcript 89-92
The medico-legal opinions
21 The medico-legal opinions relied upon by the plaintiff appeared to be largely consistent with the conclusion reached by Dr Baglar, Mr Bittar and Dr Merory.
22 Mr Hunt, orthopaedic surgeon, examined the plaintiff on 11 August 2011. He was of the opinion that the plaintiff was suffering from symptomatic cervical spondylosis, that she was unfit for her pre-injury employment and that she was fit for work which was light and sedentary in nature.[15] He recommended that the plaintiff undergo a rehabilitation program which she ultimately underwent in 2012, according to Dr Baglar.
[15]PCB 64-65
23 Mr Flanc, general and vascular surgeon, examined the plaintiff on 20 February 2013. He expressed a similar opinion to Mr Hunt. He was of the opinion that the plaintiff had suffered a significant aggravation of a pre-existing mild degenerative condition affecting the plaintiff’s cervical spine, but that her symptoms were being influenced significantly by non-organic factors particularly a Chronic Pain Disorder probably associated with a psychological disorder. He noted that her symptoms were not consistent with a specific dermatome pattern and that there were no objective neurological abnormalities detected on examination.
24 Mr Flanc was of the opinion that her symptoms were influenced by a Chronic Pain Syndrome. He noted that she had attended Dr Lim, physician, who specialised in that area. He considered that she was not fit to return to work involving repeated or heavy lifting or repeated elevation of her arms or holding her neck in one position for long periods of time. He considered that she could do part-time office work and could continue with her university studies.[16]
[16]PCB 73-74
25 Mr Brownbill, neurosurgeon, examined the plaintiff on 19 March 2013. He expressed a similar opinion to Mr Hunt and Mr Flanc. He was of the opinion that the plaintiff had suffered an aggravation of pre-existing asymptomatic cervical spine degenerative changes. He expressed a similar opinion to Mr Hunt and Mr Flanc regarding the plaintiff’s capacity to return to work. He was to give an opinion limited to the physical injury suffered by the plaintiff, by putting aside any mental or behavioural aspect which might be contributing to her perception of her symptoms. He did that, and was of the opinion that the plaintiff’s pain, restriction, disability and incapacity derived from her physical or organic injury to a marked degree, and that she would continue to suffer the consequences of incapacity from her physical injury into the foreseeable future.[17] He did not make any reference to whether the plaintiff could undertake suitable employment, and whether she could undertake work using her university qualifications.
[17]PCB 79
26 Mr Kossmann, orthopaedic surgeon, examined the plaintiff in April 2013. His opinion differs from Mr Bittar, Mr Hunt, Mr Flanc and Mr Brownbill in that he considered that the plaintiff had suffered discogenic pain in her cervical spine due to disc prolapses at C5-6 and C6-7. However, his opinion otherwise does not differ much from those other medical examiners. He was of the opinion that she would suffer pain in her cervical spine “from time to time”. She might have flare-ups, for which she would need treatment in the form of medication, physiotherapy, hydrotherapy and possibly acupuncture, and would only require surgery if she suffered a catastrophic disc prolapse with neurological symptoms. He was of a similar opinion to Mr Flanc regarding the work restrictions which should be placed upon the plaintiff. Like the opinion of Mr Brownbill, there is no reference to whether the plaintiff could undertake suitable employment, and whether she could undertake work using her university qualifications.
27 The first medical practitioner to examine the plaintiff for the defendant was Mr Kierce, orthopaedic surgeon, who examined the plaintiff on 27 January 2010. On examination, he found numbness in her right middle finger, and hyper reactivity in her biceps, triceps, supinator reflexes, and quadriceps, ankle and plantar reflexes. He was of the opinion that the plaintiff had suffered an aggravation of cervical spondylosis. However, he was of the opinion that many of the plaintiff’s symptoms, such as numbness in her face, both arms and legs, were non-organic in nature and related to psychosocial factors. He was of a similar opinion to Mr Flanc regarding the work restrictions which should be placed upon the plaintiff.[18]
[18]PCB 88-91
28 Dr Yong, occupational physician, examined the plaintiff on 11 June 2010. He was of the opinion that the plaintiff had suffered an aggravation of cervical spine degenerative condition. He considered that she was slowly responding to the conservative treatment which she was receiving. He expressed a similar opinion to Mr Flanc regarding the work restrictions which should be placed upon the plaintiff.[19]
[19]DCB 24-27
29 Dr Bowles, occupational physician, examined the plaintiff on 24 March 2011. He was of the opinion that the plaintiff was suffering from “some” residual mechanical neck complaints. He considered that she should only have treatment by way of self management comprising stretching and neck strengthening exercises, and that she should walk and swim. He was critical of her use of Lyrica. He considered that the aggravation of her cervical disc degeneration had resolved, and that she could work in alternative duties and her pre-accident hours with the defendant or a different employer. However, he considered that some work restrictions should be placed upon her relevant to neck flexion, repetitive neck extension and no lifting more than 5 kilograms.[20]
[20]DCB 32-34
30 Mr Troy, surgeon, examined the plaintiff on 12 May 2011. He was of similar opinion to Dr Bowles. He was of the opinion that the work contribution to the plaintiff’s injury had ceased. He appears to have been very sceptical of the plaintiff’s complaints of pain and disability. Otherwise, the purpose of his examination appears to have been directed to an impairment assessment which is of no consequence in this application.[21]
[21]DCP 38-40
31 Dr Poppenbeek, occupational physician, examined the plaintiff on 20 December 2011. He was not convinced that the plaintiff had suffered a frank disc protrusion in her cervical spine. He considered that it was possible that she had aggravated pre-existing cervical spine disc degeneration, but he considered that whether she had or not was clouded by what he perceived to be abnormal illness behaviour on the part of the plaintiff. He did not consider that her employment continued to contribute to her neck problems, and that the plaintiff’s pain symptoms may be psychologically mediated.[22]
[22]DCB 67-70
32 Dr Wodak, neurologist, examined the plaintiff on 29 August 2012. On examination, he observed that the plaintiff moved her neck normally and spontaneously, but when formally examined, there was a limited range of movement in all directions. She told him that her most distressing symptom was a burning sensation of the lower cervical area posteriorly. He considered that her symptoms and what he found on clinical examination did not support a finding of an organic neurological condition. He considered that her symptoms had a psychological origin.[23]
[23]DCB 81
33 Mr M Dooley, orthopaedic surgeon, examined the plaintiff on 16 November 2012. His opinion is similar to the opinions of Mr Hunt, Mr Bittar, Mr Flanc and Mr Brownbill. He considered that the plaintiff had suffered an aggravation of underlying degenerative disc disease in her cervical spine. He considered that the disc prolapses commented on by the radiologist and CT scan were mild disc bulges which were part of the degenerative process, and otherwise considered that there was no traumatic structural change to the plaintiff’s cervical discs. He considered that she had developed a Chronic Pain Syndrome. He lastly considered that the plaintiff had a capacity to carry out a range of light physical work such as clerical duties. He expected that she would note some intermittent cervical spine and shoulder girdle pain which he considered would not be significant.[24]
[24]DCB 84-85
34 I have left the opinions of the psychiatrists to last. Dr Nathar, psychiatrist, examined the plaintiff on 11 April 2013. He diagnosed that the plaintiff was suffering from a mild to moderate degree of Chronic Adjustment Disorder with an Anxious and Depressed Mood. He considered that the psychiatric state would adversely impact upon her capacity to continue with her studies and even to complete her studies, and furthermore, that the impact upon her psychiatric state of her neck injury had resulted in her having to re-plan her pursuit of her university studies. He considered that it was reasonable for her to have psychological support over the next two years, and to use an anti-depressant such as Cymbalta. [25]
[25]PCB 81.12-81.13
35 Dr Kornan, psychiatrist, examined the plaintiff for the defendant on 24 May 2011 and 18 July 2011. On the first occasion he examined her, he was of the opinion that the plaintiff was suffering from a Major Depressive Disorder and an Adjustment Disorder with Anxiety. He considered that the psychiatric state was in the upper level of chronic, mild severity, but that it had been of moderate severity at times. He would appear to have based the severity of the plaintiff’s psychiatric state on a description given to him by the plaintiff of symptoms, which he set out in the body of his report. I do not propose to set it out in these reasons. It is sufficient to say that the plaintiff described serious symptoms affecting nearly every aspect of her daily functioning.[26]
[26]DCB 48-51, and in particular at DCB 48
36 Dr Kornan’s opinion did not change in any material way on the second occasion that he examined the plaintiff. However, he suggested that her treatment be reduced from seeing a psychologist twice a week, to once a week, for a further six to nine months. He did not consider that her psychiatric state would interfere with her capacity to undertake university studies and ultimately university lecturing and research work in the future.[27]
[27]DCB 58-61
37 Dr Jager, psychiatrist, examined the plaintiff on 13 December 2011. He was of the opinion that she had suffered a mild Major Depressive Disorder. He did not consider that she could return to her pre-injury work because of emotional distress and reduced energy, but that she had the capacity to work three hours a day, five days per week within her physical restrictions. He considered that she needed cognitive behaviour therapy and/or anti-depressant medication.
The Plaintiff post injury
38 The plaintiff commenced an intensive English language course which commenced on 12 November 2009 and finished on 5 February 2010. The plaintiff attended five days per week. The course commenced at 9:00am each morning and ran through to 3:00pm each day. There was a two-hour interruption to the course. Therefore, the plaintiff was engaged in formal tuition for over four hours each day.
39 Despite suffering an injury and being unable to work, the plaintiff was able to continue with the English language course until it finished, and subsequently, enrolled and attended lectures at Latrobe University from February 2010. She finished her Bachelor’s Degree at the end of 2012. She was then offered an Honours’ position at Latrobe University at its Bundoora campus. She declined the offer, because it required her to study on a full-time basis, which she believed she could not do because of the condition of her neck. However, she took up an offer of a postgraduate course at Ballarat University, which required her to attend its Ballarat campus. The postgraduate course she has taken up is a Masters Degree, which she attends part time. The plaintiff travels to the Ballarat campus by car.
Serious injury
40 I have read the transcript of the plaintiff's evidence, the medical reports and I have considered the addresses of Ms MacTiernan and Ms Tsikaris, and also their written submissions. On the basis of the foregoing, I am not satisfied that the impairment of function of the plaintiff’s neck is “serious”.
41 Although some of the medical evidence suggests that the pain and disability contended for by the plaintiff are no longer contributed to by the injury to her neck, that position was not pressed by Ms Tsikaris.
42 Essentially, Ms Tsikaris submitted that the consequences contended for the plaintiff are, firstly, that I should not accept the plaintiff is a creditworthy or reliable witness; secondly, that her pain and suffering consequences are contributed to by both the impairment of the function of her neck and from her secondary psychiatric condition; and thirdly, that the pain and suffering consequences are not “serious”.
43 There were aspects of the plaintiff’s evidence which I found very disquieting, and which have had a significant effect upon my view of her credit and the reliability of her evidence overall.
44 Firstly, the plaintiff was unable to work from December 2009 until she attempted to return to work in September 2010 because of the pain and disablement produced by the injury to her neck. However, the plaintiff was able to attend an intensive English course, which commenced on 12 November 2009 and continued after she suffered injury until 5 February 2010. It commenced at 9:00am and ran through to 3:00pm with a two-hour break. It meant that the plaintiff attended tuition for over four hours each day. I assume that the tuition involved the plaintiff sitting at a desk paying attention to written materials as well as lectures. The plaintiff was assessed as having reached a level of proficiency in English.[28]
[28]Transcript 39-40
45 The plaintiff said little about the English course in her first affidavit. What she said was that, when she enrolled at Latrobe University, she was told that she needed to undertake a further fifteen weeks of study in academic English. She did not say when that English course began and that it ran through to the commencement of the academic year in February 2010. It very probably exposed the plaintiff to having to adopt a posture which was likely to place stress on her neck at around the time when she had only recently suffered injury to her neck.
46 Secondly, the plaintiff commenced her Bachelor’s Degree at Latrobe University in February 2010, and although she was given credits for the degree she obtained in Turkey, she completed the requirements of the Bachelor’s Degree by the end of 2012. The plaintiff complained of interference with her concentration produced by the medication she has taken over time and the pain she experiences in her neck, yet she was able to satisfy the requirements of the University to have a Bachelor’s Degree conferred upon her.
47 The plaintiff said that she was only able to complete two subjects each semester, and that she was unable to cope with a full-time study load. She also described having difficulties concentrating, attending lectures, taking notes, having to resort to recordings of lectures, and having to study while lying down propped up on pillows because studying at a desk or sitting on a chair made her head feel quite heavy. She also said that she was worried about sitting exams, but it is clear from her success in obtaining the Bachelor’s Degree that she was able to meet all the assessment requirements of that course of study. Indeed, the plaintiff said that she obtained good marks, being an “A” in one subject and “Bs” in other subjects. She described some of the mode of assessment as being by group projects.[29]
[29]Transcript 94
48 Upon completing her Bachelor’s Degree at Latrobe University, she immediately commenced a Master’s Degree at Ballarat University in 2013. She said that she met the standard required by Latrobe University to do postgraduate study, and obviously the standard required by Ballarat University.[30]
[30]Transcript 95
49 The plaintiff’s male partner drives her to Ballarat on a Tuesday, and on the other day she attends Ballarat University she travels there in a car pool. She said she has never driven to Ballarat since being a student at Ballarat University.[31]
[31]Transcript 96-97
50 Fourthly, the plaintiff has engaged in intrastate, interstate and overseas travel since she suffered injury. She has travelled on the Great Ocean Road in Victoria, to Bendigo, Sydney, the Gold Coast, New Zealand and Turkey.[32]
[32]Transcript 81-82
51 The plaintiff was cross-examined about her capacity to travel to Ballarat University, and to engage in the travelling referred to in the last proceeding in contrast to what she said in her first affidavit:
“31I live in a share house with three other students. I am lucky because one of my housemates likes cleaning and looks after our house and everyone else contributes to washing their own dishes etc. Our house is quite small and there aren’t any heavy tasks I have to perform.
32Prior to injuring my neck, I was quite energetic and would describe myself as a go-getter. Now, I often prefer to stay at home or in bed so I do not experience the pain in my neck when I am up and doing things. My sleep is often disturbed because of the pain in my neck and I do not feel I have a restful sleep."[33]
[33]PCB 12
52 It was put to the plaintiff that what she said was blatant exaggeration because she is able to travel to Ballarat University, has a partner with whom she has holidayed, and is capable of engaging in pleasurable travel. The plaintiff denied that what she said in her affidavit amounted to exaggeration. She said that there are occasions when her neck becomes like concrete, and when that happens, she puts on her pyjamas and stays home in bed. She added that she has bad days which caused her to physically struggle when they occur.[34]
[34]Transcript 85-86
53 I am not convinced that the level of disablement experienced by the plaintiff is as bad as she described in her affidavit and in her oral evidence when she was asked to explain those two paragraphs in her affidavits. The fact that she is able to travel to Ballarat University and engage in the undoubted difficulties associated with those academic disciplines, and has been able to travel reasonably extensively, seems to be at odds with someone who is so disabled. Furthermore, the medical evidence does not point to the plaintiff being so disabled that her neck becomes like concrete and she has to resort to significant periods of bed rest.
54 The medical evidence, at its highest, comprises the opinion of Mr Kossman. He obtained a history from the plaintiff of pain rated at seven or eight on a scale of one to ten; however, he considered that she was not so disabled as to be struck down by pain to the degree described by the plaintiff.
55 Otherwise, the medical evidence which favours the conclusion that the plaintiff suffered an injury to her neck does not support the plaintiff’s claim that she is in so much pain and is so disabled to equate with what she swore to in her affidavit and in her oral evidence. The explanation for this might lie in the medical evidence that the plaintiff is demonstrating abnormal illness behaviour or suffers from a Chronic Pain Syndrome, which I take to mean a syndrome contributed to by both physically-based pain and a secondary psychiatric reaction to that pain.
56 Fifthly, the plaintiff was not entirely frank about the activities in which she has been able to engage in since she suffered injury. It came out during cross-examination that the plaintiff had worked for two organisations: one was Academic Link Education and Migration Services, and the other was Southern Cross.
57 Academic Link Education and Migration Services was a business conducted by a husband and wife. The plaintiff’s association with the business came about when the female partner of the business gave the plaintiff tuition in English. She helped the husband and wife out with their business. The husband and wife returned to Turkey in 2011. The plaintiff was nominated as a contact person on the website of the business. She kept an eye on e-mail traffic received by the business and communicated with the husband and wife when they were overseas. The plaintiff said that she worked as a counsellor with students. The plaintiff said that she did not work full time. I gained the impression that she worked from time to time, but her answers were equivocal to questions about the job, which I think she could have answered far more directly. Later in her evidence, she said she worked one or two days a week.[35]
[35]Transcript 73-76 and 102
58 The plaintiff worked on a Wednesday with an organisation known as Southern Cross between September and November 2012. It involved marketing work relevant to international students who wanted to enrol in courses of tertiary study. The plaintiff said that she was needed more often than she was capable of working. It was advanced by her as a reason why she was unable to continue with that work. She was paid up to $20 per hour.[36]
[36]Transcript 77-78 and 101-102
59 I have read the plaintiff’s evidence regarding the work she did with Academic Link Education and Migration Services and Southern Cross carefully. It was my impression that her evidence regarding the work she was doing with those two organisations was vague. Now, having read the transcript, it appears to me that she could have been far more responsive than she was. I was left with the impression that the plaintiff was determined to describe a very significant level of disability. It is disquieting that she did not refer to the work she undertook in her affidavits. It could not have gone unnoticed by her that part of the process of determining whether her pain and suffering consequences meet the statutory test is the extent to which she has retained a capacity to function physically and intellectually.
60 Sixthly, there are aspects of what the plaintiff swore to as constituting pain and suffering consequences which cannot be sustained. One is a reference by the plaintiff to riding a bicycle three or four times a week, but not since November 2009. However, during cross-examination, she conceded that she rode a bicycle about twice a week in her village in Turkey. The manner and context of what she swore to in her affidavit could only lead the reader to conclude that temporally she was referring to riding a bicycle in Australia.[37]
[37]Transcript 81
61 The second is a reference by the plaintiff to swimming, walking and trying to stay active. She said that she cannot walk or swim for as long as she could before. The plaintiff did not say how long she had previously walked nor the distances she had walked. During cross-examination, she said that she has been advised to walk regularly, and engages in energetic walking for fifteen or twenty minutes, and sometimes longer.[38] She did not suggest that walking as she described caused her any difficulty. In relation to swimming, the plaintiff attended a pool at a university, but her description of how often was equivocal. The impression I gained is that she was swimming with some frequency. The impediment to the plaintiff continuing with her swimming habit is that she no longer has a pool nearby.[39]
[38]Transcript 81-82
[39]Transcript 82
62 Seventhly, the plaintiff is able to attend a university course, maintain a relationship with her male partner, travel, and maintain a regime of physical exercise through walking, and swimming when she has access to a pool, which suggests a capacity for a reasonable level of physical capacity.
63 Eighthly, the only medical practitioner who was asked to put aside any mental or behavioural aspects of the plaintiff’s presentation was Mr Brownbill. He was of the opinion that the plaintiff could return to work in a graded fashion so long as she avoided activities requiring heavy lifting, forced cervical spine mobility or holding her neck in a fixed position. He did not comment on whether the plaintiff could exploit her academic achievements in working in the broad field of psychology and counselling.[40] Otherwise, Mr Kossman, who appears to have ignored any mental or behavioural aspects, was of the opinion that the plaintiff would have no impediment in being able to pursue a career in psychology.[41]
[40]PCB 79
[41]PCB 81.4
Conclusions
64 I accept that the plaintiff suffered an injury to her neck as a consequence of her work. The preponderance of the medical evidence discloses that the plaintiff suffered an aggravation of pre-existing degenerative changes in her neck. The preponderance of medical evidence does not support the conclusion reached by Dr Baglar and Mr Kossman that the plaintiff has suffered a discal injury.
65 I prefer the preponderance of the evidence that the plaintiff in all probability suffered an aggravation of pre-existing degenerative changes to her cervical spine. I also prefer the preponderance of the medical evidence that the plaintiff has a secondary psychiatric condition which has resulted in her suffering what has been described as abnormal illness behaviour or a Chronic Pain Syndrome.
66 If I work on the basis of the opinions of Mr Brownbill and Mr Kossman, who expressed opinions without taking into account any mental or behavioural aspects, then the plaintiff is unfit for her pre-injury employment, but would otherwise be fit for work with restrictions, but is fit for work in the fields for which she is qualified by her academic achievements in Turkey, and in Australia.
67 As to the other pain and suffering consequences relied upon by the plaintiff, it seems very clear that her bicycle riding was something in the past, and not something which she undertook in Australia of any significance. She has a reasonable capacity to walk, and does so frequently. The reason she is not swimming is because she does not have access to a pool.
68 Balanced against that is the plaintiff’s claim of very significant pain, interference with her studies, interference with her social, domestic and recreational pursuits, interference with her capacity to sleep, and the necessity to resort to medication. I have dealt with most of these matters, except for the plaintiff’s interference with her sleep and the necessity for her to resort to medication. I do not accept that her sleep is interrupted to the extent which she says it is. It seems to be less likely to be so considering her level of functioning. She has studied, travelled, and has been able to increase her walking significantly, and otherwise would still be able swim if she had access to a pool. I do not accept that her use of medication results in the sort of interference she describes.
69 I think there is something in the submission made by Ms Tsikaris that it is for the plaintiff to undertake the so-called disentangling to demonstrate what pain and suffering consequences flowed from the impairment of the function of her neck. I am cognisant of what Ashley JA said in Jayatilake v Toyota Motor Corporation[42] of the approach which a trial judge should take in assessing the evidence to determine whether the so-called step of disentangling is required.[43]
[42][2008] VSCA 167
[43]paragraphs 24-29
70 I am satisfied that the pain and suffering consequences contended for by the plaintiff are contributed to by the impairment of the function of her neck and from the secondary psychiatric condition from which she suffers. I think that is evident in the preponderance of the medical evidence, except for the opinions of Mr Brownbill and Mr Kossman. Even after applying the process of disentangling and relying solely on the opinions of Mr Brownbill and Mr Kossman, I am not satisfied that the impairment of function of the plaintiff’s neck has consequences which are “serious”.
71 In summary, I am not satisfied that the plaintiff gave her evidence in a creditworthy or reliable manner. I am disquieted by, not only what the plaintiff did not say in her affidavits regarding her general activities, but also the fact that some of what she said her affidavits is not correct, for example, walking, cycling and swimming. It also seems to me that the plaintiff has had no difficulty in real terms in undertaking an intensive English course, undertaking the pursuit of a Bachelor’s Degree, followed by a Master’s Degree, and being able to travel intrastate, interstate and overseas. All the foregoing gives me the impression that the plaintiff has some interference with her general activities and studies by reason of the impairment of function of her neck, but that the larger part of her impairment is either because of abnormal illness behaviour or a Chronic Pain Syndrome which I must not take into account.
Conclusion
72 On the basis of the foregoing reasons, findings and conclusions, I order that the plaintiff’s Originating Motion be dismissed.
73 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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