Ager v Transport Accident Commission
[2024] VCC 676
•17 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No.CI-23-05407
| NATALIE AGER | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 April 2024 | |
DATE OF JUDGMENT: | 17 May 2024 | |
CASE MAY BE CITED AS: | Ager v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 676 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – traffic accident – injury to spine after motor vehicle accidents – disentanglement – young plaintiff – plaintiff reliability – conflicting expert reports – consequences of impairment – whether those consequences meet the threshold test of a “serious injury”
Legislation Cited: Transport Accident Act 1986
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129
Petkovski v Galletti [1994] 1 VR 436
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab SC with Ms R Dal Pra | Slater and Gordon |
| For the Defendant | Mr W R Middleton KC with Ms K Karadimas | Solicitor for the Transport Accident Commission |
HER HONOUR:
1Natalie Ager was in a transport accident on 30 July 2019 (“the July 2019 accident”), when she was 23 years old.
2She says that, as a result of injuries arising from that accident, she has a serious long-term impairment or loss of a body function, being a lumbar spine injury, pursuant to s93(17)(a) of the Transport Accident Act 1986 (“the Act”).
3She seeks leave to issue proceedings for the recovery of damages at common law, pursuant to s93(4)(d) of the Act. In order to be granted that leave, she must establish that the pain and suffering and loss of enjoyment of life consequences, including any pecuniary disadvantage consequences, can be “fairly described as at least ‘very considerable’ and certainly more than ‘significant’ or ‘marked’”,[1] when compared with other cases in the range of other possible impairments or losses. She filed her application for leave on 23 October 2023.
[1]Humphries and Anor v Poljak [1992] 2 VR 129
4Prior to the July 2019 accident Ms Ager was involved in a high-speed collision in December 2013 (“the December 2013 accident”). Ms Ager filed an originating motion, seeking leave to bring proceedings for damages for injuries sustained in the December 2013 accident, on 18 December 2019.
5Those two applications were listed to be heard together.
6At the commencement of the hearing of the applications, counsel for Ms Ager informed the court that Ms Ager no longer pursued leave in relation to the December 2013 accident.
Issues
7The issues that must be determined are:
(a) Has the plaintiff identified the consequences that were caused by the July 2019 accident?
(b) If so, do the consequences of the July 2019 accident meet the test of “at least very considerable”?
8For the reasons set out below, I am not satisfied that the most significant consequences for Ms Ager, being the degree of her back pain and her inability to work as a “bedside” nurse, can be attributed to the July 2019 accident. Of the consequences I am satisfied can be attributed to the July 2019 accident, I am not satisfied that they meet the test of “at least very considerable”.
9Accordingly, Ms Ager’s application for leave to commence common law proceedings is dismissed.
Background
10At the time of the December 2013 accident Ms Ager was seventeen years old and had just finished Year 11 at high school. She taken by ambulance to Kyneton Hospital and from there, transferred to the Royal Melbourne Hospital. She was discharged after one night. She describes being in “severe pain” in her low back, neck and across her shoulders after that accident. She relied on family members for assistance with activities of daily living. She had ongoing pain and restriction in her low back and struggled to sit for long periods or to carry a heavy bag. She struggled to return to her former activities of dance and gym. She took Panadol and Nurofen often. She had days that were better than others but generally managed her pain herself.
11She says she had hip pain from the time of the December 2013 accident and in 2017 was referred for a hip x-ray.
12Throughout her final year at high school in 2014, she worked casually 6-10 hours on Saturdays at a café in Macedon.
13In 2015 she undertook a six-month pathology course and continued working in hospitality. She was restricted in some aspects of employment, such as lifting, because of her back pain. She worked between three and four days a week and her shifts varied between six and eight hours. The pathology course required attendance at two classes a week, but the rest was online.
14In 2016 she started a course at the Australian Catholic University to become a Division 2 nurse. She found aspects of the course difficult, including sitting for long periods, because of her back pain. The course required in-person attendance three days a week. She continued to work in hospitality as a barista. She also started to work as a personal care attendant (“PCA”) while still studying. She enjoyed that role but found the work difficult because of her low back injury.
15In 2017 she began to work as a PCA at Edith Bendall Lodge, an aged care service provider in Pascoe Vale, while also studying. She worked three, nine-hour shifts a week. In addition, she started working as a personal carer for a particular client, Lucas, who was quadriplegic.[2] Her duties with Lucas included feeding, showering, domestic chores and pushing his wheelchair. She used a hoist for lifting Lucas.
[2] Transcript (“T”) 20 Line (“L”) 3
16She worked with Lucas two shifts a week, and her hours varied between 4 to 10 hours per shift.
17In 2018, after completing her Division 2 nursing studies, she worked as an “Enrolled Nurse” in a “hands on position”.[3]
[3] Plaintiffs Court Book (“PCB”) 25, Affidavit of Plaintiff dated 26 April 2022, para 33
18In September 2018 she moved from the hands on enrolled nurse position to a clinical role at St Vincent’s Care Services , an aged care facility (“the St Vincent’s aged care job”).[4] She worked four shifts a week, and 7.5 hours per shift. She continued working with Lucas during this time, although in her affidavit she says she commenced with Lucas in December 2018. I am satisfied that she had commenced work with Lucas by 2017. She says in her affidavit that she ceased work with him in mid-2020 due to her back pain[5] and in her oral evidence she said she had worked with Lucas for between three and five years.[6] She accepted in her oral evidence that she was already working with Lucas by 2018.
[4] PCB 25, Affidavit of Plaintiff dated 26 April 2022, para 39
[5] PCB 28, Affidavit of Plaintiff dated 26 April 2022, para 74
[6] T20 L25-29
19She attended her general practitioner in January 2018 and again in April 2018 with back pain but she generally managed her symptoms herself with yoga and stretching.[7]
[7] PCB 25, Affidavit of Plaintiff dated 26 April 2022, para 35
20She was involved in a second transport accident on 23 February 2018. She described this as “minor”[8] and she attended her general practitioner with some neck pain. She says that pain settled. She has not brought any claim in relation to that accident.
[8] PCB 25, Affidavit of Plaintiff dated 26 April 2022, para 37
21She said that the St Vincent’s aged care job and her work with Lucas was “extremely heavy” but she managed.[9]
[9] PCB 25, Affidavit of Plaintiff dated 26 April 2022, para 42
22She described her low back pain during this period as a constant 3 to 4 out of 10 on a daily basis. She had bilateral hip pain but did not have leg pain.[10]
[10] PCB 26, Affidavit of Plaintiff dated 26 April 2022, paras 45 and 46
23In around July 2019 she obtained a graduate position at the Epworth Hospital (“the Epworth job”) in the theatre recovery department. She explained that this position was “crucial to nursing employment”[11] and would mean she was likely to have an ongoing job as a nurse after completion of the graduate year. She worked three shifts of 10 to 12 hours a week. She also continued to work with Lucas.
[11] T25 L8-19
24She went to the gym about three times a week, 45 minutes a session and did weights and exercise. She was taking Panadol every second day.
25On 30 July 2019 she had the July 2019 accident.
26On that day she was the driver, although in her affidavit she has said she was the front seat passenger. She was stopped at lights and was struck “heavily from behind”.[12]
[12] PCB 26, Affidavit of Plaintiff dated 26 April 2022, para 52
27She said the car was jolted forward. The airbags did not deploy. No police or ambulance were called, and she drove home afterwards. She says “that night my low back was in agony”[13] but she did not consult a doctor. She resumed work a “few days”[14] later. She says that as she had only recently started the Epworth job she felt she had “no choice but to push through the pain”.
[13] PCB 26, para 54
[14] PCB 26, para 55
28In her affidavit Ms Ager says she was struggling with low back pain and had pain across her low back that was much worse than she had suffered before. She said she now had constant pain down her right leg, pain that could be sharp in her right buttock and leg and she would also get pins and needles and tingling in her buttock and down her right leg into her foot.[15]
[15] PCB 26, para 57
29Ms Ager says she attended Capital Physiotherapy on 12 September 2019. In her affidavit she said she continued to attend for physiotherapy.[16] If she attended physiotherapy beyond that initial attendance those records are not in evidence.
[16] PCB 27, para 63
30On 11 November 2019 she underwent an assessment by Huay Jiun Lim for the purposes of determining whether she was fit for work in the Epworth job. It is unclear why she had this assessment on 11 November 2019 as she had returned to the Epworth job a few days after the July 2019 accident.
31Dr Lim notes the injury as lower back pain. He diagnosed “chronic lower back pain, discogenic +/- sciatica symptom occasionally”. She was noted to have capacity to work as an intensive care nurse and to be “able to go through medical care, personal care assistance”. She was noted to be able to undertake transfer and monitoring if the patient she was assigned was “1A or I”. I take that to be if the patient was designated as a “one assist” or “independent” patient. As I understand it, this means that a patient is able to undertake transfers independently or with one person assisting. She was noted to “be fine” for “behavioural support, emergency management and admin tasks”. She was noted to be able to perform all duties except heavy transfers and prolonged sitting/standing/leaning over more than one hour.[17]
[17] Plaintiffs Supplementary Court Book (“PSCB”) page 3-4
32She says that this assessment was a “fit to practice” assessment to see whether she could do theatre nursing. The team at Epworth “said it would be fine”.[18]
[18] T28 L17-19
33Ms Ager says in her affidavit that she decreased her shifts with Lucas following the July 2019 accident as she was “really struggling to do this work with low back pain”. However, it is not clear when this reduction occurred. In her oral evidence she says that she had continued working as she previously was, that is three days at the Epworth job and two shifts with Lucas per week, after the July 2019 accident until 16 November 2019.
34On 17 November 2019 she fractured her right ankle. She agreed that it was her ankle fracture that caused her to cease the Epworth job and that ceasing the Epworth job had “nothing to do with” her back.[19]
[19] T25 L20-31
35She did not return to the Epworth job. She said that after her ankle injury she had a “moon boot” and could not do theatre nursing with her ankle injury. She said the Epworth wanted her to do “a desk job or ward nursing” which she could not do because of back pain.[20] She said she could not sit for long periods as she was experiencing lower back pain.[21]
[20] T28 L21-22
[21] T28 L29-31
36She was able to return to work with Lucas after the ankle injury. She says she tried to do day shifts with him as they were lighter and did not require as much attendant care.
37She enrolled in a Bachelor of Nursing degree at Charles Darwin University in 2020. Although she had previously worked as a Division 2 nurse, a qualification as a Division 1 nurse would entitle her to do “higher things in nursing, like cosmetics”.[22]
[22] T29 L31 – T30 L1
38She said that she did the Bachelor of Nursing degree so that she could take on a different role in nursing, being cosmetics, as that role requires a qualification as a registered nurse.
39In her affidavit Ms Ager said that she found it difficult to sit for long periods to undertake her studies.[23] She said the combination of working, studying from home and working with Lucas meant she was suffering from more significant back pain and was not coping. She said Lucas needed “more of me as a Carer” which she could not provide because of her low back injury.[24] As a result she ceased working with Lucas in mid-2020. She says this was a significant financial loss to her, as well as the loss of a role she really enjoyed.[25]
[23] PCB 27, Affidavit of Plaintiff dated 26 April 2022, para 72
[24] PCB 28, Affidavit of Plaintiff dated 26 April 2022, para 74
[25] PCB 28, Affidavit of Plaintiff dated 26 April 2022, para 74
40She continued to do community nursing through an agency in 2020, and then in November 2020 obtained a role with a client in an Aged Care facility as a community nurse. She provided assistance with nursing and other personal care. She continued with this client until May 2021 while also pursuing her studies.
41In February 2021 she started work with a cosmetic doctor, Dr Tass, while still undertaking her studies and working as a community nurse. She worked two to three shifts a week with Dr Tass.[26] In March 2021 she registered her business, Cosmetika, and obtained an ABN.
[26] PCB 29, para 77
42In May 2021 she commenced working four shifts a week in the Radiology department at St Vincent’s (“the St Vincent’s radiology job”). She said that this was a lighter role than Attendant Care. At the time of swearing her first affidavit on 26 April 2022 she was studying her nursing degree fulltime, working two to three shifts a week with Dr Tass doing skin therapies and assisting with “injectables” and working four shifts a week in the St Vincent’s radiology job.
43She stopped the St Vincent’s radiology job in November 2022. She said she gave up this role as St Vincent’s did not have a role for her as a registered nurse.[27]
[27] T57 L4
44In her second affidavit she says after completing her Bachelor of Nursing degree she applied for several hospital-based jobs without success. She believed she was unsuccessful because of her back injury.[28] In oral evidence she said that after completing her degree she was looking to do cosmetic nursing.[29]
[28] PCB 32, Affidavit of Plaintiff dated 22 December 2023, para 11
[29] T57 L5
45At some point either in late 2021 or early 2022 she moved from working with Dr Tass to working as a subcontractor doing injectables with Dr Green. She says she commenced working with Dr Green as a subcontractor through her registered business, Cosmetika.
46She stopped working with Dr Green in about January 2023 to open up her own clinic. She opened clinics in Albert Park, Kilmore and Essendon. She subsequently closed Albert Park and Essendon and opened a clinic in St Kilda. The timing of the opening and closing of these clinics is not in evidence.
47Ms Ager said she currently works about 20 hours a week in her clinics and she also works one to two days a week providing homecare nursing to a client, “Ross”. She starts her shift at 6.45 or 7.00am and then attends to whatever needs Ross may have. Ross organises his own roster of care attendants and Ms Ager said she will provide her availability directly to him. If she is available for two shifts she will be rostered for two shifts. She said that those shifts are four-hour shifts.
Medical treatment
48In 2010 she had two medical attendances relating to her back. The first was in March for upper back, neck and shoulder pain.[30] The second was in October after a fall at the gym.[31] She was noted to have had three to four weeks of mild diffuse lumbar spine pain.
[30] Defendant’s Court Book (“DCB”) 114)
[31] DCB 91
49In 2013 she attended Kyneton Hospital after the December 2013 transport accident. She was noted to have walked in to the hospital on this occasion.[32] She was transferred to the Royal Melbourne Hospital where the hospital notes a complaint of lower back pain.[33]
[32] PCB 44
[33] PCB 46
50On 8 January 2014 she attended her general practitioner with diffuse low back pain.[34]
[34] DCB 92
51On 14 March 2015 she attended her general practitioner with chronic diffuse lumbar backache and tenderness after an acute backache when unloading fifteen 1.5 kilogram boxes of chips from a truck.[35]
[35] DCB 93
52On 16 July 2017 she attended her general practitioner complaining of pain in both hips.[36]
[36] PSCB 14
53On 13 January 2018 she attended her general practitioner with gastroenteritis and back pain.[37]
[37] PSCB 13
54On 23 February 2018 she attended her general practitioner after a transport accident where she fell asleep at the wheel. She had headache and neck pain.[38]
[38] PSCB 14
55In June 2018 she attended her general practitioner complaining of “unstable hips” since 2014 with “lof [lot of] cracking noises” and some soreness. The medical record notes “no lumbar spine pain”.[39]
[39] PSCB 15
56In September 2018 she attended her general practitioner for gastroenteritis. Her general practitioner has noted “On going [sic] back pain since RTA in 2014- affects her at work- doing a lot of lifting. Lower back pain– keen to engage in PT or Chiro”.[40]
[40] PSCB 16
57On 30 December 2018 she attended her general practitioner for a medical certificate due to an upset stomach. Her general practitioner has noted “also chronic lower back stiffness getting worse” and referred her for a lumbar spine CT scan, noting “lower back pian and [pain and] stiffness long time getting worse now”.[41]
[41] PSCB 18
58About four weeks after the July 2019 accident, on 29 August 2019, she attended her general practitioner. Her general practitioner has recorded:
“Back pain radiating to leg
Back pain on and off
LOWER BACK PAIN
lifting
pushing no trauma
no feve [scil fever]
rno (reports no) bladder, bowel symptoms
no numbness ro [scil or] weakness of the legs
ex[amination]
tem [scil temp] normal
lower back –slight tenderness
no lumps
brief neurological ex is normal
IMP mechanical pain
REST
ANALGESICS WILL REVIEW IF NOT GETTING BETTER INFORMED, EXPLAINED RED FLAGS
Actions:
Imaging request … MRI LUMBOSACRAL (LOWER BACK PAIN ? CAUSE).”[42]
[42] PSCB 19
59She was referred for an MRI which showed mid-lower lumbar spondyloarthropathy, the L4-5 disc showing degenerative changes with small posterior disc protrusion and annular fissure.
60During a follow up with her general practitioner on 31 August 2019 she was advised that she had spondyloarthropathy, an annular fissure and disc bulge and was provided with a care plan for physiotherapy and chiropractic treatment.
61On 3 September 2019 she attended her general practitioner with back pain and was referred for physiotherapy.
62On 19 September 2019 her general practitioner has noted “Natalie says that she has car accident which aggravated her back pain”. This is the first mention of the July 2019 transport accident.
63There are no further general practitioner attendances in relation to back pain.
64A report from Capital Physiotherapy dated 20 September 2019 notes Ms Ager attended with chronic lower back pain. On assessment she was noted to have weakness in her core, hip and back and poor education history of lower back injury and back pain. She was noted to have “signs of yellow flag with chronic pain issues”. The treatment provided was education on lower back injuries, the importance of strengthening and reducing avoidance activities, deep tissue work on back and gluteal muscles. She was given stretches and a self-massage ball for pain management and the plan was to “progress to more active rehab when possible”. There is no evidence of any further attendance for physiotherapy.
65Following her ankle fracture in November 2019 she attended Epworth Healthcare on 19 November 2019.[43] She was referred to the Alfred Hospital for follow up care.
[43] DCB 97
66She attended Sports and Exercise Medicine Registrar, Dr Hussain Khan, on 17 January 2020 for her ankle fracture. She was noted to have no pain on walking, no significant swelling and no restricted range of movement.[44]
[44] DCB 149-150
67She attended Dr Khan again on 31 January 2020 and was noted to be going well, with pain “pretty much settled now”.[45] She was referred to Mr Harviner Bedi for surgical opinion.
[45] DCB 149
68She saw Mr Bedi in May 2020.[46] No details of that consultation are in evidence.
[46] T26 L28
69She attended Dr Khan again on 7 May 2020 for her right ankle. She was noted to have recovered well and to have no pain at rest, though she had pain around anterior and posterior aspects of the distal fibula and intermittent swelling.[47]
[47] DCB 148
70She consulted an exercise physiologist, Slav Tortevski, on 17 February 2020 in relation to her ankle fracture. She saw Mr Tortevski on 15 occasions in 2020 in relation to her ankle injury. The following are attendances on Mr Tortevski that also mention her back.
71On 17 September 2020 Mr Tortevski has noted “Lower back pn [pain]- Aching sensation R [right] side, feeling weakness around hips and R [right] leg Sharp sensation present with bending and twisting Feels R [right] side weakness is contributing to ankle stiffness and pn [pain]”.[48]
[48] DCB 132
72On 15 October 2020 Mr Tortevski has noted “Lower back pn [pain]- aching sensation– Increase sitting with work Needs to offload and stretch back daily aching still present”.[49]
[49] DCB 133
73On 17 November 2020 Mr Tortevski has noted “Lower back feeling tightness however feeling less pn [pain] with work and functional activities= overall improving”.[50]
[50] DCB 134
74On 24 November 2020 Mr Tortevski has noted nil issues with standing for long periods and repeated the entry from 17 November 2020 in relation to her lower back. He provided treatment of a self-massage program for the lower back.[51]
[51] DCB 135
75On 15 December 2020 Mr Tortevski noted “Lower back improving– nil issues at work”.[52]
[52] DCB 136
76Between January 2020 and February 2024 she attended a myotherapist, Ilias Paliopoulos, on nine occasions. Her first attendance on 15 January 2020 was in relation to her right ankle injury. There is no note in relation to her back.[53]
[53] PSCB 55
77On 21 December 2020 Mr Paliopoulos notes dull constant ache in her lower back, iliolumbar associated with SIJ pain. Waking up with pain. Finding it hard to get through some days.[54]
[54] PSCB 54
78On 9 February 2021 she attended Mr Paliopoulos, who noted ankle pain associated with the back issue causing biomechanical change. She was noted to have “the same pain with some improvement in movement” though it is not clear whether this related to the ankle or back.[55]
[55] PSCB 53-54
79On 12 July 2022 she was noted to have sensitivity and a dull constant ache in the lower back and to be the same as a few months ago with no significant change even after strength work.[56]
[56] PSCB 53
80On 22 December 2022 she was noted to have improvement in her ankle pain and loading. Her SIJ pain was still evident though it had improved. She reported still feeling discomfort after a long day at work.[57]
[57] PSCB 52
81On 23 February 2023 she returned to revisit the back issue. She reported that it had subsided a little but that she had got used to the pain and was living with it. She was noted to have pain in the morning and at work. Standing and awkward lifting was an issue.[58]
[58] PSCB 51
82On 8 June 2023 Ms Ager was noted to have lower back cramping. Exercise had not helped. She was noted to be feeling “helpless”. Mr Paliopoulos noted “inflamed facet irritation” on findings.[59]
[59] PSCB 50
83On 6 November 2023 Ms Ager’s lower back was noted to have settled but to still feel uncomfortable at work and in the morning.[60]
[60] PSCB 49
84On 16 February 2024 Ms Ager attended with neck pain and stiffness and a right shoulder hike associated with left hip shift. She was noted to have lower back sensitivity.
85On 16 October 2023 she attended her general practitioner about her right ankle, as she had a “flare up” of pain. She was referred back to Dr Hussain Khan but said in evidence that she did not take up the referral.[61]
[61] DCB 146
86Apart from some physiotherapy and intermittent myotherapy, Ms Ager has received no treatment for her back injury. She has not consulted any doctor, apart from medico-legal attendances, in relation to her back pain since September 2019.
87Ms Ager says she uses Paracetamol, Ibuprofen and Naproxen on a regular basis, taking up to 30 Panadol tablets, 8 to 10 Nurofen tablets and 2 to 3 Naprogesic tablets a week. She says she also takes Glucosamine and Magnesium as a muscle relaxant daily on the advice of a Chinese herbalist.
Expert Opinion
Professor Richard Bitter, neurosurgeon
88The plaintiff relied on two reports of Professor Richard Bittar dated 15 February 2022 and 19 December 2023.
89At the time of providing his reports, Ms Ager was claiming in relation to both the December 2013 and July 2019 accident. His reports deal with both accidents.
90In his report of 15 February 2022 Professor Bittar notes the following complaints reported by Ms Agar:
(a) Constant lower back pain, dull in character, predominantly right sided with a severity of 3-4/10 and a maximum severity of 6-7/10. He notes bending, twisting, sitting for more than 45 minutes, walking for more than an hour and standing for more than three to four hours exacerbates her pain.
(b) Intermittent right leg pain radiation through her right buttock into her hamstrings and calf. This pain occurs two or three times per day, typically lasting one to two hours on each occasion.
(c) Intermittent numbness and pins and needles in the same distribution as pain in her right leg.
(d) Occasional neck discomfort.
(e) Social activities are not significantly affected. Significant impact on her recreational activities, especially running which is limited since the July 2019 accident due to pain.
(f) Sleep is severely impacted. Frequently experiences day-time tiredness.
(g) Domestic activities are slightly impacted.
(h) Overall, her quality of life is moderately diminished.
91He notes that she reported that her lower back pain was present most of the time following the December 2013 accident but was not associated with sciatica. Following the July 2019 accident she had a flare up of pain which worsened the following day and radiated down her right leg. This pain has persisted.
92On examination she was noted to have tenderness over the right lumbosacral facet joint and sacroiliac joint without muscle spasm. There was no evidence of radiculopathy or myelopathy.
93Professor Bittar diagnosed lower back pain and right leg pain secondary to traumatic injury to lumbar spine. He considered the most likely diagnosis as facet joint injury. He considered that the two accidents in December 2013 and July 2019 were the cause of her lumbar spine condition and the most significant contributing factor to her lower back pain and disability was the July 2019 accident.
94He recommended further investigations:
(a) a standing weightbearing MRI;
(b) a lumbar SPECT/CT to look for increased radiotracer uptake in the facet or sacroiliac joints; and
(c) review by pain specialist for consideration of diagnostic blocks. He considered she may be a candidate for radiofrequency denervations.
95He considered she would continue to experience pain and disability for the foreseeable future.
96He thought she had work capacity for a full-time, light physical role, but did not have capacity for a role that required repetitive bending or twisting, forceful pushing or pulling, or heavy lifting.
97In answer to specific questions, he considered the diagnosis from the December 2013 accident was “non-specific injury to the lumbar spine” with a differential diagnosis of injury to facet joints or intervertebral discs.
98His diagnosis from the July 2019 accident was most likely an aggravation of lumbar spondylosis or discrete injury to the facet joints.
99He noted she had arthritic change which was unusual at her young age and those changes were likely contributed to by one or both of the accidents. Given that the facet joint changes were seen on the MRI scan performed one month after the July 2019 accident and considering that such changes usually take months or years to develop, he considered the facet joint changes were more likely a result of the 2013 accident.
100He considered both the 2013 and 2019 accidents to have a significant impact on her work capacity and both accidents had resulted in an inability to undertake any heavy physical work and would preclude her from working in an unrestricted capacity as a registered nurse, engaging in patient handling.
101He attributed her inability to engage in some recreational activities to both accidents. He considered the 2019 accident had the greatest impact upon this. He did not consider either accident had impacted her ability to engage in activities of daily living or social activities.
102In his report of 19 December 2023, he noted her complaints of the following symptoms:
(a) Lower back pain. She reports constant lower back pain, which varies between stabbing and aching in character. The back pain has an average severity of 3/10 and a maximum severity of 7/10. Her lower back pain is bilateral. It is exacerbated by a variety of activities including bending, twisting, sitting for more than 60 minutes, walking for more than 40 to 60 minutes and standing for more than two to four hours. It improves with frequent postural changes, heat packs, gentle exercise and medications.
(b) Right sciatica. She continues to experience intermittent pain radiating through her right buttock, into her hamstrings and calf. Right leg pain occurs two to four times per day, typically lasting 30 to 60 minutes on each occasion. It varies in character between sharp and burning. It has an average severity of 1/10 to maximum severity of 7/10. It has similar precipitating factors as those which exacerbate her lower back pain, in particular sitting for more than 60 minutes. I previously noted that standing with a lead apron on (which was required in her previous role) would precipitate her leg pain. She experiences ongoing numbness and pins and needles intermittently in the same distribution as her leg pain.
(c) Occasional mild neck discomfort.
103Professor Bittar was unable to carry out an examination as the attendance was by telehealth. His diagnosis and assessment of causation remained unchanged from his earlier report.
104His recommendation for investigations remained unchanged from his earlier report.
105Taking into account each transport accident alone, he provided the following assessment:
(a) As a result of the transport accident of December 22, 2013, she would experience episodic lower back pain which would require treatment with analgesic medications for such episodes. Activity modification was another important part of managing injuries arising from the 2013 transport accident.
(b) As a result of the transport accident on July 30, 2019, her symptoms and treatment requirements have increased. She experiences more severe lower back pain and leg pain, with more constant symptoms and increased treatment requirements. Her treatment requirements are outlined in the current treatment section.
106He considered that, as a result of each of the transport accidents, she was likely to be restricted in relation to employment or activities involving:
(a) pushing, pulling or lifting;
(b) repetitive pushing, pulling or lifting;
(c) repetitive and/or prolonged sitting, standing and walking; and
(d) overhead activities.
107He considered the December 2013 accident had a less significant impact on these activities and the July 2019 accident had a more significant impact on these activities.
108He considered that each accident alone would restrict her in relation to social, domestic and recreational activities. The December 2013 accident minimally impacted her social and domestic activities and slightly impacted her recreational activities.
109The July 2019 accident had a much more significant impact on those activities.
110He considered her prognosis in relation to the December 2013 accident to be fairly good. She could have expected to experience occasional lower back pain which would be successfully treated with modification of activities and simply analgesia. He considered her prognosis from the second accident to be more guarded and she is likely to continue to experience more significant pain and require more onerous treatment. It is not clear from his report if this is because of a compounding effect of both the accidents, or whether the aggravation in and of itself is productive of the guarded prognosis.
111He considered she was unlikely to be at risk of developing arthritis on the basis of the December 2013 accident. He considered she was at higher risk of developing arthritis over the next one to three decades as a result of the July 2019 accident.
112He did not consider any interventional treatment was required following the December 2013 accident. He considered assessment by a pain specialist and consideration of diagnostic blocks and possibly radiofrequency denervations was required as a consequence of the July 2019 accident.
Associate Professor John Laidlaw, neurosurgeon
113The defendant relies on two reports of Associate Professor Laidlaw dated 19 February 2024 and 12 March 2024.
114In his first report Associate Professor Laidlaw notes the following relevant history:
(a) In July 2019 she commenced her graduate year with Epworth Hospital, working 0.8 EFT. She was doing 10-12 hour shifts at that time. She was also continuing to work as a PCA with Lucas through that time. In November 2019 she fractured her ankle while dancing, causing her to stop working at Epworth Hospital. She said she did not finish her graduate year because of the ankle injury. She said Epworth offered to get her some other role that she could do with her ankle injury, involving mainly sitting, but she said she could not do that because of both her ankle and “long standing back and disc problems” which she said she had for many years.
(b) Natalie informed me that since the 2019 Motor Vehicle Accident her problems have been predominantly pins and needles in the right hamstring and less often in the right lateral leg and occasionally going into the lateral border of the right foot, sharp pains in the back, right buttock, and right lower limb (usually involving the hamstring region only), and also some numbness (loss of feeling) intermittently involving the two little toes of the right foot.
115He noted her report that the “hierarchy of problems” was her lower back pain, her right lower limb pain, pins and needles and numbness (intermittent), and anxiety.
116He noted her self-report that bending, twisting and leaning were “trouble” and caused lower back pain. Carrying, lifting, pushing, pulling and climbing were “ok” but caused pain.
117She said she could ride for an hour but after that would have trouble. She reported difficulty falling asleep and often woke in pain because of back discomfort. She can drive up to an hour without problems.
118She reported walking her dog daily and attending yoga. She otherwise had limited activities and attended social activities rarely.
119On examination she had normal posture and movements, no paravertebral spasm, a good range of active spinal movement, no neurological deficit, mild subjective hyperaesthesia in the lateral border of the right foot, no evidence of radiculopathy or myelopathy and no clinical evidence of peripheral nerve deficit.
120Associate Professor Laidlaw considered that the December 2013 accident caused a soft-tissue lower back strain which, on the clinical documentation, appeared to have rapidly improved spontaneously.
121He considered the July 2019 accident caused aggravation of chronic intermittent low back pain associated with chronic degenerative spondylosis.
122He considered that none of the imaging demonstrated evidence of traumatic injury. The MRI of 29 August 2019 demonstrated degenerative disc disease or spondyloarthropathy with associated small disc protrusion and annular fissure. He notes that these degenerative changes are often not associated with symptoms but could also be consistent with Ms Ager’s episodic back pain presentations to doctors that were precipitated by events other than the transport accidents. These presentations occurred in 2010, 2015 and 2018. He could find no basis on radiology or on examination for the intermittent right lower limb pain, pins and needles and numbness.
123He did not consider there was a need for surgical or interventional treatment but considered physiotherapy and exercise would be beneficial.
124He considered her transport accident-related injuries had largely resolved and that she continued to have intermittent symptoms of her pre-existing back pain that was likely to be related to her degenerative lumbar spondylosis. He did not consider that either the 2013 or 2019 transport accident-related injury impacted on Ms Ager’s current ability to work. He did not think the transport accident significantly impacted on her activities of daily living, her social or recreational activities. However, he did consider that her chronic intermittent back pain caused by her (suspected) degenerative spondylosis appeared to compromise her enjoyment of these activities.
125Her capacity to work was impacted by her underlying degenerative spondylosis, which he considered to be a significant factor in her chronic pain. He considered her underlying condition was the most likely cause of her back pain symptoms.
Findings on expert reports
126Both experts accept that Ms Ager has pain, and there is no suggestion that she is exaggerating her symptoms.
127Associate Professor Laidlaw considers the pain is a result of an underlying degenerative disease, and that the aggravation to that disease occasioned by each of the accidents has resolved. His reasoning is based on the “clinical documentation”. It is unclear what he means by this. Doing the best I can to interpret his report I think he means that, as there were no regular medical attendances or investigations for low back pain following the December 2013, it is likely that any aggravation of spondylosis associated with that accident settled. His assessment is, in fact, based on a lack of clinical documentation.
128Similarly, I assume that because she did not present for investigations or medical treatment in relation to the July 2019 accident, apart from an attendance on her general practitioner and an MRI, and a follow up of that MRI, there is no clinical documentation to support ongoing injury.
129He therefore assumes that the cause of her ongoing pain is an underlying spondylosis. However, if I am correct that his reasoning is that a lack of clinical documentation means there is no condition, then there is no real support for a finding that she has underlying spondylosis. The radiology shows minor changes at most, which apparently do not account for the degree of pain she experiences.
130Therefore, the diagnosis of an underlying spondylosis must be based, at least in part, on her reports of pain.
131As she reports constant daily pain after the December 2013 accident and increased constant daily pain after the July 2019 accident, applying Associate Professor Laidlaw’s own analysis that pain is the predominant feature of her condition, it seems likely that one or both of the accidents are at least partly a cause of her ongoing pain, together with an underlying condition.
132I do not accept his opinion that her pain from each of the accidents resolved, as this is not in accordance with her presentation, which he accepts as being genuine.
133However, I am not provided with much assistance by Professor Bittar’s reports which are confusing and at times contradictory. In his first report he diagnoses a facet joint injury and says both the December 2013 accident and the July 2019 accident were responsible for her lumbar spine condition but that the July 2019 accident more significantly contributed to lower back pain and disability.
134He said that her risk of developing arthritis as a result of the December 2013 was low. However, he also said that she had arthritic changes shown on MRI shortly after the July 2019 accident which most likely arose as a result of the December 2013 accident, because such changes would take months or years to develop. I cannot reconcile these apparently contradictory statements.
135In his first report Professor Bittar said both accidents had resulted in an inability to undertake any heavy physical work and would preclude her from working in an unrestricted capacity as a registered nurse, engaging in patient handling.
136In his second report he said that each of the accidents had restricted her ability to undertake:
(a) pushing, pulling or lifting;
(b) repetitive pushing, pulling or lifting;
(c) repetitive and/or prolonged sitting, standing and walking; and
(d) overhead activities.
and that the July 2019 accident had the more significant impact.
137He considered each of the accidents to have an impact on her social, domestic and recreational activities but the December 2013 accident’s impact to have been minimal. He also considered her prognosis from the December 2013 accident to be good, with no interventional treatment required.
138He also says that all of her lower back related impairment is due to the transport accident of 2019 with no contribution from the previous transport accident or from any unrelated conditions.[62]
[62] PCB 118, Report of Professor Bittar dated 22 February 2022
139Again, it is difficult to reconcile this with his opinion that both accidents, taken separately, restricted her ability to undertake the activities outlined above, and both accidents precluded her from working in an unrestricted capacity as a registered nurse. It is also impossible to reconcile this with his opinion that the arthritic changes seen on MRI are a consequence of the December 2013 accident.
140He does not explain why he attributes a greater significance to the July 2019 accident. I am left to infer that it is because of her reports to him of her experience of pain. However, he has recorded that her pain was “present most of the time following her 2013 accident”[63] but was not associated with sciatica and she generally managed it by modifying her activities and taking “analgesic medication occasionally”[64]. However, he also says that as a result of the December 2013 accident Ms Ager would experience “episodic lower back pain which would require treatment with analgesic medications for such episodes”.[65] It is not apparent why he opines that she would have had episodic lower back pain, when he had reported her instructions that the back pain was present most of the time. This is also not consistent with her affidavit evidence that she had daily constant pain of 3-4/10 after the December 2013 accident.
[63] PCB 116 – 117, Report of Professor Bittar dated 22 February 2022
[64] PCB 116
[65] PCB 125, Report of Professor Bittar dated 19 December 2023
141Doing the best I can, on the basis of the confusing and contradictory expert evidence, I make the following findings:
(a) Ms Ager probably had some preexisting spondylosis or a degenerative condition of the spine, given attendances on her treating doctors prior to 2013.
(b) If she did have a pre-existing condition, that manifested in intermittent flare-ups and was not symptomatic on a daily or constant basis.
(c) The December 2013 accident caused her an injury to her lumbar spine. This might have been an aggravation of a pre-existing condition.
(d) Ms Ager had arthritic changes in her lumbar spine prior to the July 2019 accident which were most likely caused by the December 2013 accident.
(e) The July 2019 caused a further aggravation to her lumbar spinal injury.
(f) That aggravation has increased the level of pain she suffers.
(g) Both accidents resulted in restrictions on her ability to undertake heavy physical work.
(h) Both accidents resulted in her being unable to work in an unrestricted capacity as a registered nurse.
(i) She may be at an increased risk of developing arthritis as a consequence of her underlying condition and both transport accidents.
Was Ms Ager a reliable witness?
142On the morning of the hearing, counsel for Ms Ager informed the Court that Ms Ager no longer pursued her application for leave in relation to the December 2013 accident and relied only on her physical injuries in respect to her the July 2019 accident.
143Presumably upon receipt of Professor Bittar’s reports and his attribution of the more significant part of the consequences and the entirety of the lower back impairment to the July 2019 accident, the decision was made not to “muddy the waters” by pursuing the application for leave in relation to the December 2013 accident.
144However, this means that the task of disentangling the consequences of the December 2013 accident from the July 2019 accident falls to the Court, in circumstances where both Ms Ager’s affidavit material and the expert reports attribute consequences to both accidents.
145In her affidavit Ms Ager says that she moved to the St Vincent’s aged care job in September 2018 because she was struggling with “hands on” nursing due to back pain prior to the second accident.[66] She agreed in her oral evidence that, prior to the July 2019 accident, she was struggling with hands on nursing because of back pain.[67]
[66] PCB 25, Affidavit of Plaintiff dated 26 April 2022, para 39
[67] T21 L29-30
146In her affidavit she said that her low back pain was affecting her employment. She says that “I really loved doing hands on nursing, particularly in Aged Care, but I understood that it was not a long term option by reason of my back injury.”[68]
[68] PCB 25, para 33
147This was prior to the July 2019 accident.
148She said that the St Vincent’s aged care job was “a much better position than hands on nursing, which I was struggling with due to back pain”. The St Vincent’s aged care job was described as a clinical role.
149It appears from this evidence that, at the time she moved to the St Vincent’s aged care job, “hands on” nursing was already causing her aggravation of her back pain and she did not consider it a long-term option.
150In cross-examination she denied that, prior to the second accident, her work with Lucas caused her back pain, but in her affidavit she says that, prior to the second accident, the work with Lucas did cause pain in her low back but she really enjoyed the work and it was well remunerated.[69]
[69] PCB 25, para 41
151In oral evidence she said she did not have pain every day prior to the 2019 injury.[70] However, in her affidavit she said that, after the December 2013 accident, she had “low back pain of 3-4/10 on a daily basis which was constant. I did not have leg pain”.[71] She also gave this history to Professor Bittar.
[70] T65 L17-18
[71] PCB 26, Affidavit of Plaintiff dated 26 April 2022, para 45
152In her affidavit she says that the Epworth job “worked in terms of my back pain. I didn’t have to bend and lift and I coped with the role”.[72]
[72] PCB 26, Affidavit of Plaintiff dated 26 April 2022, para 49
153However, in oral evidence she said that heavy transfers, prolonged sitting, standing and leaning over greater than one hour were “essential”[73] to the Epworth job and that after the second accident she found it “hard” and “felt annoying” having to ask colleagues for assistance.[74]
[73] T60 L21
[74] T61 L2-8
154I am not satisfied that the heavy transfers were essential to the Epworth job, given her evidence that the job did not require bending and lifting.
155The plaintiff said she would not now be able to perform the Epworth job.[75] However, she managed to perform that job for the four or so months after the July 2019 accident until she broke her ankle in November 2019.
[75] T59 L4
156She said “nothing is different” in her back condition since the July 2019 accident and the present day, but she would not be offered the Epworth job now because of her back injury.[76] Not being able to do a job is not the same as not being able to obtain a job.
[76] T59 L26-28
157When asked by her own counsel how she was coping with the Epworth job after the July 20109 accident but prior to her ankle fracture she said “I was okay”.[77]
[77] T59 L31
158However, she later said that after the July 2019 accident, she did not think she was going to be able to continue with the Epworth job because of her back pain, and that she was often at home “crying in pain” after a shift.[78] There is no mention of this consequence in her affidavit.
[78] T62 L30
159It is difficult to reconcile this evidence with the fact that she continued in that role until the ankle fracture. The fact that she managed to perform the work for about four months after the July 2019 accident with minimal medical assessment or treatment supports her evidence that she was coping with that work “okay”. She agreed that the reason she left the Epworth job was nothing to do with her back pain, suggesting that she would have continued in that role had it not been for the ankle fracture.
160There is no satisfactory explanation as to how she managed for the four months after the accident, until the ankle fracture, but could not manage the tasks now. Her evidence that the difference is that she would not now be offered the job may reflect the true state of affairs.
161In her affidavit she says she was “really struggling” with her work with Lucas after the second accident because of low back pain and decreased her shifts with him to one shift a week.[79] However, the timing of the reduction in her shifts with Lucas is unclear. In her oral evidence she says she continued with her regular shifts in the Epworth job and with Lucas until her ankle fracture.
[79] PCB 27, Affidavit of Plaintiff dated 22 April 2022, para 63
162She gave evidence that she undertook her Bachelor of Nursing in 2020 in order to go into cosmetics because she had to be a registered nurse to undertake that work.[80] However, she also said she did not consider becoming a cosmetic nurse until she commenced working with Dr Tass in 2021. The date she decided to go into cosmetics may not be a crucial aspect of her claim. However, her contradictory evidence about why she undertook her Bachelor’s degree does raise a question as to what, if any, impact the July 2019 accident had on her decision.
[80] T63 L26
163She explained that, as a registered nurse or Division 1 nurse, she had more options available to her than as an enrolled, or Division 2 nurse. As a Division 1 nurse her qualification would have given her the opportunity to do, as she put it “higher things in nursing” including cosmetics. However, given her evidence that she did not decide to go into cosmetics until 2021, I cannot be satisfied that she decided to undertake her Bachelor of Nursing because the July 2019 accident had rendered “bedside” nursing unavailable to her. It may be, as she says in her affidavit, that she had identified that hands on nursing was not a long-term option for her, prior to the July 2019 accident.
164In her second affidavit she said she applied for several hospital-based nursing roles in 2023 after completing her Division 1 qualifications but was unsuccessful. She believes her lack of success was because of her back injury. That may be correct. However, it is difficult to understand why she applied for such roles if she did not consider she would have capacity to perform them. It is possible that she applied for Division 1 roles that were not “bedside” or “hands on” nursing, I simply do not know. If the positions were not “hands on” or “bedside” then she would have capacity for those roles, given her ability to work on non-hands on nursing roles including the Epworth job, the St Vincent’s radiology job and as a community nurse since the July 2019 accident.
165Ms Ager’s evidence was at times confusing and contradictory. In some respects it was unreliable. I do not consider the unreliability to be a result of any deliberate attempt to dissemble or mislead. Rather Ms Ager was attempting to give evidence in circumstances where her case had recently changed. Her evidence often consisted of single word answers which gave the impression that she was trying not to say the wrong thing. This was particularly evident when she was asked by her counsel how she coped with the Epworth job after the July 2019 accident and she said it was okay. It was not until further prompting that she volunteered that it was “hard” and that she felt “annoying” having to ask colleagues for help.
166If I accept Ms Ager’s oral evidence, I must also find that some of what she said in her affidavit was incorrect. If I accept her affidavit, I must find that some of her oral evidence was incorrect. This is particularly relevant in relation to her contradictory evidence about her experience of daily pain prior to the July 2019 accident.
167I suspect that it was genuinely difficult for Ms Ager to recall with any degree of precision what pain and consequences she had prior to July 2019 compared with post-July 2019 and I appreciate the task of disentangling those consequences can feel artificial.
168However, this is the task that must be undertaken in order for me to assess her application.
169My findings about Ms Ager’s reliability mean that I look to other evidence to assist me to make findings about the consequences for Ms Ager. Unfortunately, the other available evidence does not greatly assist me to disentangle the consequences.
What are the consequences of the July 2019 accident for Ms Ager?
Inability to be a “bedside” nurse
170Ms Ager’s primary submission is that, as a consequence of the July 2019, she is unable to pursue her ambition to work as a “hands on” or “bedside” nurse.
171She gave evidence that she had aspired to be a bedside nurse after being a patient in the first accident. When asked what sort of satisfaction she obtained from bedside nursing, she said “so much satisfaction”. She said if she did more work than her current hours she would “suffer later on” from pain, and that her inability to do bedside nursing makes her feel “so upset”.[81]
[81] T63-64
172It is not clear to me whether the St Vincent’s aged care job or the Epworth job were the kind of “hands on” or “bedside” nursing that Ms Ager says is now no longer an option for her.
173On the evidence it appears that the St Vincent’s aged care job was more manageable than a “hands on” job, and the Epworth job was more manageable than the St Vincent’s aged care job because it did not involve bending and lifting.
174She was able to cope with the St Vincent’s radiology job with her injuries but said that was not bedside nursing.
175However, in submissions counsel suggested that, whatever category the Epworth job might fall into, it was of a type of nursing that Ms Ager can no longer undertake.
176I am not satisfied that it was the July 2019 accident that has prevented her from hands on or bedside nursing. It is more likely that she was either already precluded from such nursing, or that it is a combination of the December 2013 and the July 2019 accidents that has resulted in her inability to undertake hands on or bedside nursing.
177I make this finding because:
(a) Although she said her pain was “much worse”[82] after the July 2019 accident, after the December 2013 accident she at various time said she had daily constant pain of 3-4/10 [83]or 2-3/10[84]. After the July 2019 accident she said she had daily constant pain of 3-4/10 with maximum pain of 6-7/10[85] or which she reported to Professor Bittar was 3/10 and can be “up to 6/10” on a daily basis.[86]
(b) After the December 2013 accident she was taking Panadol every second day. After the July 2019 accident she was also taking Panadol every second day but added in Nurofen and naproxen.
(c) After the December 2013 accident she developed arthritic changes in her spine as demonstrated on MRI in August 2019. These changes were likely symptomatic given that she reports constant daily pain.
(d) Prior to the July 2019 accident she sought work that did not involve bending and lifting and that was better for her back pain than a hands on position.
(e) Prior to the July 2019 accident she had recognised that hands on nursing was not a long term option.
[82] PCB 26, Affidavit of Plaintiff dated 22 April 2022, para 57
[83] PCB 26, para 45
[84] PCB 29, para 86
[85] PCB 115, Report of Professor Bittar dated 15 February 2022
[86] PCB 29, para 86
178If the Epworth job was not hands on or bedside nursing, but was nevertheless in a category of nursing that is now no longer open to her, I am not persuaded that this is a consequence of the July 2019 accident in circumstances where she was able to continue with that job until her ankle fracture, and where she was assessed in November 2019 as being fit for that role.
179Professor Bittar’s report confused the overall picture. He concluded that the December 2013 accident made no contribution to her ongoing impairment, but also found that, taken separately, each of the December 2013 and July 2019 accidents prevents her from unrestricted nursing work. As noted above I am unable to reconcile the contradictions in his opinion and cannot be satisfied that it is the July 2019 accident that precludes Ms Ager from working as a bedside nurse.
Level of pain
180Ms Ager mentioned back pain to doctors sporadically both before and after the July 2019 accident. There has been no increase in consultations or in complaints of back pain to medical practitioners since that accident, and indeed in 2018 she had more consultations where back pain was mentioned than in any other year. In December 2018 she reported to her general practitioner that she had long-standing back pain which was getting worse.
181I accept that a person with long standing pain may not necessarily seek medical treatment or mention it to medical practitioners at each attendance, particularly if they do not believe there is any treatment option available and they are managing their condition satisfactorily. However, in circumstances where a witness is unreliable, the absence of corroborative medical attendances such as a noticeable increase in medical consultations where back pain is mentioned, might assist in disentangling the pain before and after the July 2019 accident. That evidence is absent in this case.
182I do not accept her account of the difficulties she was having with the Epworth job after the July 2019 accident and prior to the ankle fracture given that she did not seek medical attention for a month after the accident, and she did not mention the July 2019 accident to her doctor when she did seek medical attention in August 2019. This suggests to me that her back pain after the July 2019 accident was of a similar type and severity to the pain she had experienced on a daily basis prior to the July 2019 accident, albeit that she had worse flare ups from time to time.
183Notwithstanding her evidence that her back pain was much worse after the July 2019 accident, her reports to Professor Bittar and her affidavit material report her pain as about 3-4/10 before that accident, and an average of that same level of pain but with an increased maximum level of pain after the accident. This suggests that the pain, while worse, was not significantly worse. This in turn is supported by the relative lack of medical attendances for back pain and her ability to resume work in and carry out her job in the same manner shortly after the 2019 accident.
Leg pain
184I accept that her leg pain and pins and needles in her buttocks and right leg are consequences of the July 2019 accident. Dr Lim has recorded this pain as being “sciatica symptom occasionally”.
185She reported her leg pain to Professor Bittar as being an average 1/10 and a maximum of 7/10 occurring two to three times a day. Associate Professor Laidlaw has recorded this as being intermittent pain.
186She says in her affidavit material that the leg pain is constant. I accept that she has a degree of relatively mild leg pain constantly or almost constantly, which is occasionally more severe, but it is not sufficiently severe that it has interfered significantly with her ability to study and work more than fulltime hours.
Medication
187The over-the-counter medication she takes since the July 2019 accident now includes Nurofen and Naproxen. She was already taking Panadol every second day.
Snowboarding and skiing
188I am not satisfied that her inability to pursue snowboarding and skiing was a consequence of the July 2019 accident.
189In her first affidavit Ms Ager does not mention snow skiing or snowboarding. In her second affidavit she says “I used to snowboard and ski. My friends still snowboard but I have stopped because of my injury and my fear of having a fall and injuring my back. Also those activities are quite bumpy and would aggravate my pain, so I have avoided engaging in them”.[87]
[87] PCB 33, Affidavit of Plaintiff dated 22 December 2023, para 18
190However, in her oral her evidence it was apparent that she had been skiing and snowboarding at most three times in her life. She was unsure whether she had ever engaged in either activity after the December 2013 accident, but if she had, she had not engaged in either activity for at least a few years prior to the July 2019 accident. She did not go skiing or snowboarding because she was afraid of falling. She said that the July 2019 accident was, nevertheless, responsible for her no longer skiing because she would have loved to go “at some point”.
191I do not accept that Ms Ager’s current lack of skiing or snowboarding arises from the July 2019 accident, given that she had not skied well prior to that accident and possibly had not skied after the December 2013 accident.
Exercise
192She said she had “got back to some running” after the December 2013 and had resumed going to the gym but that she struggles “with these activities now”.[88]
[88] PCB 29, Affidavit of Plaintiff dated 26 April 2022, para 91
193On her evidence she now attends the gym two to three times a week. She does weights, squats and lunges. She also does yoga.[89]
[89] T45 L30 - T46 L6
194I accept that she no longer runs since the July 2019 accident.
Driving
195I am not satisfied that Ms Ager’s difficulties with driving are a consequence of the July 2019 accident. A consequence of the December 2013 accident was also to make Ms Ager an anxious passenger and an anxious driver. She said she was highly anxious about getting her licence. She said the memory of the accident “continues to haunt”[90] her whenever she is in a car, that at the time she thought she had broken her back, and that she breaks down and cries whenever she talks about it. That car accident was objectively a more traumatic accident than the July 2019 accident. It involved a head on collision with another vehicle at over 100 kilometres an hour, in comparison with a rear end collision where airbags were not deployed, and she was able to drive herself home afterward and did not require immediate medical attention.
[90] PCB 32, Affidavit of Plaintiff dated 22 December 2023, para 7
196When asked what currently impeded her driving long distances her first response was “anxiety” followed by “and sitting for a long period of time”.[91]
[91] T46 L17
197The defendant relied on video footage taken over multiple days showing Ms Ager getting in and out of a car and driving without any obvious difficulty. I am satisfied that any difficulty she has with driving, aside from anxiety occasioned by the December 2013 accident, relates to long distant driving which requires her to sit for a long period. This may be somewhat worsened since the July 2019 accident.
Loss of ability to work with Lucas
198Ms Ager says that she was unable to continue working with Lucas because his needs exceeded her capacity to meet them after the July 2019 accident.
199As set out above it is not clear when her work with Lucas reduced after that accident. It appears on her evidence that it was after her ankle fracture.
200At some point she stopped working with Lucas altogether, although she continued to do attendant care work, including in the disability sector, and currently works with Ross.
201Ms Ager says that the loss of her work with Lucas was “a significant financial loss” but provides no details around finances in relation to any of her work and I am unable to assess the quantity of that loss.
202It may be that the July 2019 accident reduced her capacity to work with Lucas, though I am unable to determine when this occurred, and whether it was after the July 2019 accident, or after the ankle fracture. I am also not able to conclude that she is entirely precluded from working with Lucas as a result of the July 2019 accident.
Ability to work longer hours
203Ms Ager says if she was not restricted by her back pain she could work “five or six days a week and be fully booked” in her cosmetic business.[92] On her evidence she currently works between 14 and 28 hours a week, made up of 10-20 hours in her business “Cosmetika” and 4- 8 hours in community nursing.
[92] T39 L26-30
204She says that “even after two days of work, I can sometimes feel that I’m in a lot of pain and have to cancel some clients.”[93]
[93] T39 L29-30
205However, there is a significant gap in her evidence about how she was able to:
(a) work thirty to thirty-six hours a week at Epworth Radiology (30 to 36 hours a week) plus an additional eight to twenty hours a week with Lucas after the July 2019 accident but before her ankle fracture[94]; and
(b) study full time while working two to three shifts with a cosmetic doctor (whether Dr Tass or Dr Green) and working four shifts at St Vincent’s radiology after her July 2019 accident and after her ankle injury;
but is now only able to work between 14 and 28 hours a week.
[94] T20 L17-18
206Her reasons for working shorter hours now than she was working while also studying fulltime have not been explained. She says that her back condition is no different now than it was in the period immediately after the July 2019 accident when she was working at the Epworth.
207Her affidavit evidence and her history to Professor Bittar and Associate Professor Laidlaw also support a conclusion that her pain has not changed or worsened since the July 2019 accident to the present day.
208I therefore do not accept that her present reduced working hours are a result of the July 2019 accident.
Sleep
209Professor Bittar notes that Ms Ager reports her sleep is severely impacted and she frequently experiences daytime tiredness.
210In her affidavit of 22 December 2023 she says that her sleep is “not great” and that she sometimes wakes in the middle of the night in pain. In her affidavit of 26 April 2022, she says that she had issues with sleep following the December 2013 accident but they are worse since the July 2019 accident and she finds she wakes with pain.[95]
[95] PCB 29 Affidavit of Plaintiff dated 26 April 2022 para 94
211I accept that she has had sleep issues since the December 2013 accident and these are worse since the July 2019 accident, though there is no evidence of the degree and frequency of sleep issues before and after the July 2019 accident.
Findings on consequences
212I am required to disentangle those consequences Ms Ager sustained as a result of the July 2019 from those sustained as a result of the December 2013 accident.[96]
[96] Petkovski v Galletti [1994] 1 VR 436
213I have taken into account the following matters when forming my assessment of the consequences on Ms Ager of the July 2019 accident:
(a) She did not seek any medical attention until four weeks after the accident.
(b) She did not mention the July 2019 accident to her general practitioner at that attendance.
(c) She has attended sporadically to her general practitioner complaining of back pain both before and after the July 2019 accident. There has been no increase in medical attendances reporting back pain since the July 2019 accident.
(d) She has had eight myotherapy sessions for her back pain over five years.
(e) She had one session of physiotherapy. If there was other physiotherapy it was not in evidence.
(f) She has otherwise had no treatment either before or since the July 2019 accident.
(g) She has been able to work and study on a more than fulltime basis both before and since the July 2019 accident.
214As a result of my findings about the reliability of Ms Ager’s evidence, I have looked to other evidence to support her claim. The dearth of medical treatment since the July 2019 means I cannot readily apportion symptoms and consequences to one accident or the other.
215The following are the consequences I am satisfied can be attributed to the July 2019 accident:
(a) right leg and buttock pain, on an intermittent basis with associated numbness and pins and needles, with an average of 1/10 severity, and a maximum of 7/10 severity;
(b) back pain which is on occasion worse than her pain prior to the accident and which achieves a higher maximum severity than before the accident but which is otherwise similar to the pain she had prior;
(c) some additional disturbance in her sleep;
(d) an increase in her medication by the addition of Nurofen and Naproxen;
(e) she has not returned to running.
216I accept that she has constant pain, and that bedside nursing of the type she aspired to is not available to her. However, I am unable to attribute those consequences to the July 2019 accident. On the evidence from Ms Ager and the confusing picture presented by the expert material, I cannot sufficiently disentangle the consequences of the July 2019 accident from the December 2013 accident in relation to that work.
217Ms Ager was very young at the time of both the December 2013 and the July 2019 accidents. She will live with the consequences of her injuries for longer and that this is a more severe consequence for her than for an older person. I accept that her condition is now stable and likely to persist.
218I accept that she is at a somewhat increased risk of developing arthritis in the future. While this alone may be sufficient to meet the test for a very considerable consequence, I am not able to conclude that this increased risk arises from the July 2019 accident and not the December 2013 accident, or a combination of the two. Given the appearance of arthritic changes on the August 2019 MRI and the relative severity of the two accidents, I cannot understand Professor Bittar’s conclusion that the risk of arthritis primarily attaches to the July 2019 accident. He discloses no basis for his reasoning in relation to this issue and I therefore do not accept it.
219It is likely that both transport accidents had a role to play in her present condition, particularly given the findings on MRI in August 2019 and I am unable to make any findings about the additional risk of arthritic change occasioned only by the July 2019 accident.
220Of the consequences I am able to attribute to the July 2019 accident, I am not satisfied that they meet the test for “at least very considerable” having regard to other cases in the range of possible cases. When assessed against the range of cases, an:
(a) increase in the maximum pain level experienced,
(b) increase in sleep disturbance,
(c) increase in over-the-counter medication; and
(d) an inability to pursue running, where there is limited evidence as to the importance of running to this plaintiff,
are not sufficient to satisfy me that the consequences are more than severe or marked.
221Even if I were able to conclude that the July 2019 accident did increase Ms Ager’s risk of developing arthritis, I am not able to conclude anything about the degree or extent of that increased risk. I form this view on the evidence that at the time of the July 2019 accident she already had arthritic changes. This means I am unable to conclude that, when combined with the other consequences I have attributed to the July 2019 accident, Ms Ager meets the test of “more than severe or marked and at least very considerable”.
222Accordingly, Ms Ager’s application for leave to commence common law proceedings is dismissed.
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