Akkorlu v Transport Accident Commission
[2013] VCC 397
•15 April 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-11-05037
| FEHIME AKKORLU | Plaintiff |
| v | |
| TRANSPORT ACCIDENT CORPORATION | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 and 13 March 2013 | |
DATE OF JUDGMENT: | 15 April 2013 | |
CASE MAY BE CITED AS: | Akkorlu v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 397 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT – Serious injury application
Catchwords: Impairment of cervical spine – psychiatric injury – whether or not consequences are “serious” or “severe”
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited: Richards v Wylie (2000) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Church v Echuca Regional Health (2008) 20 VR 566
Judgment: Application for serious injury in respect of the cervical spine and psychiatric injury dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B W Collis QC with Mr D Gibson | Ellis Palmos & Co Lawyers |
| For the Defendant | Mr D Masel SC with Ms B Myers | Wisewould Mahony Lawyers |
HIS HONOUR:
1 This is an application brought by Originating Motion dated 21 October 2011. The plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages from injuries suffered by her arising out a transport accident which occurred on 4 November 2005 (“the said date”).
2 Section 93(6) of the Act provides a Court must not give leave under ss4(d) unless it is satisfied that the injury is a “serious injury”.
3 The definition of “serious injury” relied upon by the plaintiff is under s93(17):
“(a) serious long-term impairment or loss of a body function; or
…
(c) severe long-term mental or severe long-term behavioural disturbance or disorder”
4 In this application, the plaintiff, in effect, has two separate applications for serious injury. Under s93(17) of the Act, the plaintiff seeks serious injury certification by the Court for:
(i)loss of body function of the cervical spine; and
(ii)serious long-term severe mental or behavioural disturbance or disorder.
5 The inquiry under s93(17) of the Act focuses attention first, upon whether the injury has produced an organic impairment or loss of body function, and then, by reference to the consequences of that impairment, to determine whether it is serious and long term.
6 The serious injury defined by ss(a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of the body function.[1]
[1]Richards v Wylie (2000) 1 VR 79
7 In forming a judgment as to whether the consequences and the injury are serious, the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and “more than significant” or “marked”?[2]
[2] Humphries & Anor v Poljak [1992] 2 VR 129
8 A “serious injury” under s93(17)(c) requires the level of impairment to be “severe”.[3]
[3]Mobilio v Balliotis [1998] 3 VR 833
9 The plaintiff swore and relied upon two affidavits dated 17 June 2011 and 20 December 2012. The plaintiff also relied upon an affidavit sworn by her daughter, Nefice Akkorlu, affirmed on 13 February 2013. The plaintiff gave evidence and she was cross-examined. Nefice Akkorlu also gave evidence and she was cross-examined.
10 In addition to the affirmed affidavits and evidence given by the plaintiff and her daughter, both parties relied upon medical reports and other material which were tendered during the course of the proceeding. I have read all of the tendered medical material.
11 The tendered evidence in this proceeding was as follows:
·Exhibit A, letter from Skylight Bus Lines to the plaintiff dated 18 September 2009
·Exhibit B, the Plaintiff’s Court Book (“PCB”) pages 7 to 116
·Exhibit C, clinical notes of Dr Anne Sari, Defendant’s Court Book (“DCB”) pages 46 to 145
·Exhibit 1, DVD surveillance footage dated 1 May 2012
·Exhibit 2, DVD surveillance footage dated 20 January 2013
·Exhibit 3, DCB, excluding pages 7 and 8.
12 The issues in this application are as follows:
(a)What injuries did the plaintiff suffer to her cervical spine as a result of the transport accident? This issue includes whether the aggravation of any previous injury to the plaintiff’s neck occurred as a result of the transport accident;
(b)Whether the injuries or consequences for the plaintiff as a result of the injury to her neck are properly described as in “the range” of cases considered as a whole to be a serious injury under the Act;
(c)The credit of the plaintiff;
(d)Whether the plaintiff suffered any psychiatric condition as a result of the transport accident;
(e)Whether the plaintiff’s psychiatric condition meets the “severe” test as required under the Act.
The Plaintiff’s background
13 The plaintiff was born in October 1954 in Cyprus. She is now aged fifty-eight years of age.[4]
[4]PCB 7
14 The plaintiff originally migrated to Australia in 1980 and then returned to Cyprus in 1992. She then returned to Australia in 2001.[5] She was educated to Year 11 level in Cyprus. She has three children. The youngest of her children, Nefice Akkorlu, lives with her at the family home.
[5]PCB 14
15 Upon her return to Australia, the plaintiff, after having surgery on both her wrists for Chronic Pain Syndrome, commenced work with Skylight Bus Lines in 2003. She remained employed with Skylight Bus Lines until September of 2009, when her employment was terminated. The job she had at Skylight Bus Lines was a light duties job caring for children. The plaintiff has not worked since ceasing employment with Skylight Bus Lines in September 2009. She is currently a Disability Pensioner in receipt of benefits from Centrelink.
The transport accident involving the Plaintiff
16 The plaintiff described the accident in her affidavit on 17 June 2011 in the following terms:
“On 4 November 2005, we had completed the morning run. I then obtained a lift from my sister, Emine Fahri, in order to go home. … At about 9.30 a.m. whilst we were stationary at the intersection of Western Highway and Station Road, Deer Park, another car crashed into the back of us. This was a sudden and unexpected impact. Our car was pushed forward and shook. I was thrust back and forth within the confines of my seat belt. I felt very shocked and shaken by the accident. Afterwards my neck felt very stiff and I had a lot of pain at the back of my neck and radiating up the back of my head, and I generally felt dizzy and upset.”[6]
[6]PCB 8 and 9
17 The plaintiff was unable to say what amount of damage was done to the rear of her sister’s car. The plaintiff attended upon her general practitioner, Dr Ansari, shortly after the accident. She then returned to her work at 2.00 pm and continued working.
The Plaintiff’s impairment or loss of body function
The cervical spine
18 The loss of body function that the plaintiff claims resulted from the transport accident is the injury to her neck. The plaintiff had a history of neck complaints and symptoms prior to the transport accident on 4 November 2005. The plaintiff’s claim is further complicated when it comes to assessing the effect of the transport accident in relation to the function of her neck by the fact that she had a subsequent fall at work which occurred on 22 November 2007.
19 The plaintiff’s cervical spine symptoms commence in her medical history in 1986. On 3 June 1986, the plaintiff had an x‑ray of her neck. The x‑ray was ordered by the plaintiff’s general practitioner, Dr Ansari. The report of the x‑ray to the cervical spine read as follows:
“Anterior osteophytic lipping is present at the C5-6 level with minimal narrowing of the disc space. The disc space and vertebral bodies elsewhere appear normal as do the intervertebral foramina.”[7]
[7]DCB 319
20 The plaintiff continued to complain of neck symptoms at that time and was referred to the physiotherapist, Ms Vicky Talbot, by Dr Ansari. In her report dated 3 October 1986, Ms Talbot stated:
“On initial examination, she presented with central headaches, bilateral arm pain (right greater than the left) and central neck pain. Palpation revealed tenderness over C4 and T1. Neck movements (except both rotations) were full range, with pain at the end of the range.”[8]
[8]DCB 143
21 It is clear from these pieces of evidence that as long ago as 1986, the plaintiff was experiencing pain and symptoms in her neck.
22 In 1988, the plaintiff’s neck symptoms flared up again. The plaintiff re-attended Ms Talbot on referral from Dr Ansari. On 8 February 1988, Ms Talbot reported to Dr Ansari as follows:
“She said her pain has been largely unchanged since her last visit to physiotherapy (Sept, 1986) and that she had been off work the whole time. Her pain is worse across the upper thoracic spine with bilateral arm pain and weakness to the wrist.
Neck movements were all limited by pain and stiffness and she had multiple levels of stiffness on palpatory examination. Unfortunately, Mrs Akkorlu has complained of increased neck pain since restarting physiotherapy (3.2.88) despite very gentle mobilisation.”[9]
[9]DCB 144
23 It is clear from this report that Ms Talbot, the physiotherapist, obtained a history from the plaintiff clearly setting out that the neck symptoms had continued and had in fact deteriorated in the period between 1986 and 1988.
24 Later in the same year, that is 1988, the plaintiff attended Dr R G Newnham. Dr Newnham had originally seen the plaintiff on 10 July 1986.[10] In 1988, Dr Newnham had diagnosed the plaintiff with right carpal tunnel syndrome. In his report dated 11 November 1988, he noted:
“Examination was characterised by a good deal of overstatement and overplay. Cervical spine range was good but she whistled and complained of discomfort from the right suprascapular area on movement.”[11]
[10]DCB 135
[11]DCB 135
25 Dr Newnham stated that on his examination when he reviewed the plaintiff on 28 July 1988, he made the following observations:
“Cervical spine range was good but there was apparent discomfort on movement and tenderness to palpation across the neck and shoulder girdle.”[12]
[12]DCB 136
26 In his examination of the plaintiff on 28 October 1988, Dr Newnham made the following comment:
“She complained of neck pain, headaches, insomnia, increasing fatigue, mood changes and a general failing in her ability to cope at home.”[13]
[13]DCB 136
27 It is clear from the plaintiff’s attendance on her general practitioner, the physiotherapist, Ms Talbot, and Dr Newnham, that in 1986 through to 1988, the plaintiff had complaints of considerable neck symptoms and pain.
28 The plaintiff left Australia to live in Cyprus in 1992. The plaintiff did not return to live in Australia until 2001. There is no evidence or medical reports in relation to the condition of the plaintiff’s neck in the period 1992 until 2001.
29 On 5 December 2001, the plaintiff had nerve conduction studies performed on her right and left wrists.[14] Dr Ansari referred the plaintiff to Mr Patrick Lo, neurosurgeon, in the early part of 2002. At that time, the plaintiff was complaining of hand paresthesia, and Mr Lo reported to Dr Ansari on 12 March 2002. Mr Lo stated:
“Her most recent MRI identified significant degenerative cervical spine disease extending from C5 to the C7 vertebral levels. However, only minimal encroachment of the foramina bilaterally was noted. So, given the findings of the nerve conduction study and the MRI, she may well be suffering from bilateral carpal tunnel syndrome only.”[15]
[14]PCB 98
[15]PCB 99
30 A copy of the MRI scan report referred to in Mr Lo’s report dated 12 March 2002 was not included in the materials in this application. It is clear the plaintiff’s neck condition had deteriorated further by the time of the MRI scan examination in 2002 from the original neck complaints made in 1986.
31 Mr Kevin Siu, neurosurgeon, examined the plaintiff on behalf of the defendant on 22 February 2012. In his report dated 22 February 2012, Mr Siu states:
“When questioned about her medical history, she indicated she is receiving treatment for high blood pressure. There has been no investigations as to why she felt dizzy.
I pointed out that there was a report from Patrick Lo, neurosurgeon at Western Hospital, with whom Mrs Akkorlu had consulted in 2002, but she claims she had no memory of that at all.
Importantly, I must refer to the letter of Dr Patrick Lo to the family doctor dated 12 March 2002 and Dr Lo referred to significant degenerative cervical spine disease extending from C5/6 vertebral level.”[16]
[16]DCB 3
32 I find that it is unusual for a patient to forget a procedure such as an MRI scan in the context of her continuing neck complaints commencing in 1986 and continuing while she lived in Australia up until the current time.
33 On or about 8 September 2004, the plaintiff attended at the Western General Hospital. At the time of her attendance at the Western General Hospital, the plaintiff’s complaint was relating to her right Chronic Pain Syndrome symptoms. The following notation appears in the Western General Hospital notes:
“Present Illness
PC: 50 female with right carpal tunnel syndrome
- Problem started 3 years ago
- Assd – fx - neck pain
- numbness, paresthesia in both hands
- ++ weakness
- Saw neurosurgeon Mr Laidlaw – MRI spine – degen spin disease C5‑C7”[17]
(sic)
[17]DCB 41
34 This entry in the hospital record is confirmation by the plaintiff that she had neck symptoms going back some three years. The reference in the notes to Mr Laidlaw, neurosurgeon, may be a reference to Mr Lo, neurosurgeon. I do not conclude that there were two neurosurgeons involved in her treatment at the Western General Hospital in the period prior to the transport accident.
35 In 2004, the plaintiff attended on her general practitioner, Dr Ansari, on three occasions for neck symptoms. Those attendances were in the months of February, March and June of 2004. Mr Collis QC, on behalf of the plaintiff, addressed the Court on these matters.[18] The fourth treatment for the plaintiff relating to her right carpal tunnel syndrome and complaints of neck pain was in September 2004 at the Western General Hospital.[19] I conclude that this is indicative of the persistent neck symptoms that were troubling the plaintiff in 2004.
[18]Transcript (“T”) 85
[19]DCB 41
36 In September 2004, the plaintiff had surgery on her right wrist to alleviate the symptoms of the right carpal tunnel syndrome, and on 23 December 2004, the plaintiff had surgery on her left wrist for the symptoms for carpal tunnel syndrome in that wrist. The plaintiff has made a reasonable recovery from these operations for the both of these conditions which are unconnected and unrelated to her neck symptoms.[20]
[20]PCB 17
37 The plaintiff was a passenger in a vehicle when it was involved in a rear-end collision on 4 November 2005. This is the transport accident the subject of this application. On the day of the accident, the plaintiff attended her general practitioner, Dr Ansari. She was given Panadol by way of treatment for her complaints of pain. The plaintiff then returned to work on the same day to do the second part of her shift in supervising the children on the bus. In short, she resumed her normal duties. The plaintiff continued with her normal duties until she was injured in a separate work accident on 22 November 2007.
38 The plaintiff’s general practitioner sent her for an x‑ray of her neck on 9 March 2006. The x‑ray report concludes:
“Conclusion
1. C5/6 and C6/7 disc space narrowing – ? multilevel disc prolapse. If clinically indicated, this may be confirmed on CT of the cervical spine.
2. Moderately severe lower cervical spondylosis.
3. Mild right C6/7 osteophytic foraminal stenosis.”[21]
[21]PCB 30
39 The plaintiff’s general practitioner then referred the plaintiff to Dr Alex Stockman, rheumatologist. In his report dated 20 April 2006, Dr Stockman stated:
“Examination reveals some restriction of movement of the neck associated with muscle spasms at the back of the neck. X-rays showed pre-existing significant degenerative changes in the lower cervical region.”[22]
[22]PCB 41
40 Dr Stockman referred the plaintiff off to physiotherapy with Mr Takyar. The plaintiff was advised to continue with paracetamol for pain relief. In the period of April through to August 2006, the plaintiff continued to receive physiotherapy treatment from Mr Takyar.[23] The plaintiff continued to see Dr Alex Stockman in this period and in his report dated 16 August 2006, he changed her pain medication to Panadol Osteo, two tablets twice a day.[24] In his report dated 27 September 2006, Dr Stockman noted:
“She continues to complain of constant neck pain. Unfortunately, she cannot tolerate Panadol-Osteo as this causes nausea. Examination reveals limited movement of the lumbar spine especially extension. The posterior structures in the neck are diffusely tender.”[25]
[23]PCB 10
[24]PCB 42
[25]PCB 43
41 Dr Stockman then prescribed the plaintiff Endep, 10 milligrams, to assist with her pain relief. On 27 September 2006, he infiltrated some local anaesthetic and steroids around the tender muscles on both sides of the plaintiff’s neck.[26] Dr Stockman subsequently recommended that the plaintiff attend the Pain Clinic at the Western General Hospital.
[26]PCB 43
42 The plaintiff gave evidence that Dr Stockman had referred her to an acupuncturist. She stated that she saw the acupuncturist just once in January of 2007 and noted that she did not obtain any benefit from that treatment and hence did not continue with it.[27]
[27]PCB 10f
43 In a report dated 19 July 2007, Dr Andrew Jeffreys, a consultant anaesthetist, reported to Dr Alex Stockman in relation to the plaintiff.[28] Dr Jeffreys noted, on examination:
“… neck movements were restricted in all directions by pain. She was most tender in the mid-cervical region particularly over the C4-6 facet joints on both sides.”
[28]PCB 50
44 Dr Jeffreys’ recommendation was that it would be reasonable to proceed with therapy directed at her facet joints. That therapy, if appropriate, would then proceed to radio-frequency denervation if the facet joint therapy proved positive.[29]
[29]PCB 50
45 Unfortunately for the plaintiff, she was involved in a work accident on 22 November 2007. The plaintiff was off work between 22 November 2007 and 30 January 2008. The plaintiff was certified for restricted duties at 30 January 2008. The plaintiff returned to work in January 2008 and continued to work at her place of employment until she was terminated on 18 September 2009.[30]
[30]Exhibit A and T10
46 The plaintiff was referred back to Dr Alex Stockman in July 2008. On 30 July 2008, Dr Stockman reported to the general practitioner, Dr Ansari. In his report he noted:
“She continues to complain of rather generalized neck pain, occipital headaches and lately low back pain after fall in a bus.
…
She had rather diffuse tenderness in the neck and trapezius muscles. Movement was slightly reduced. There were no neurological abnormalities in the upper limbs.”[31]
[31]PCB 46
47 Dr Stockman then again treated the plaintiff by infiltrating local anaesthetic and steroids around the lower paravertebral muscles in the cervical region. He also prescribed her Endep, 10 milligrams, to ease the chronic pain and improve her sleep pattern. On 16 April 2009, Dr Stockman again saw the plaintiff. He noted that examination revealed slight limitation of movement of the cervical and lumbar spine and diffuse tenderness throughout the spine. At that stage, he had not heard from the Western General Hospital Pain Clinic.[32]
[32]DCB 37
48 On 27 November 2010, the plaintiff was referred for an MRI scan of her cervical spine by her general practitioner, Dr Ansari. The conclusion of the report is as follows:
“Conclusion
1. Posterocentral disc prolapses at C2/3, C3/4, C4/5 and broad circumferential disc osteophyte complexes at C5/6 and C6/7. Mild to moderate multilevel cervical canal stenosis at these levels.
2. No definite vertebral fracturing. If vertebral fracture is suspected then correlation with CT scan of the cervical spine recommended.
3. No evidence cord oedema or myelomalacia.
4. Osteophytic foraminal encroachment, moderate on the right at C5/6. Mild to moderate bilateral C6/7 (indistinct) associated with C6/7 nerve root compression at these levels.”[33]
[33]PCB 31
49 The plaintiff had been referred to Linda Roglic, psychologist, in September of 2011 by her general practitioner. The plaintiff, in her affidavit dated 20 December 2012, states that she received psychological counselling on a weekly basis for some time and then monthly until June or July 2012 from Linda Roglic.[34] At that time, Dr Ansari then referred her to Mr Ramzi Mohammad, psychologist. The plaintiff was cross-examined about her attendance on Linda Roglic and was unable to give an explanation as to why there was no report from Linda Roglic in the plaintiff’s supporting materials.[35] I note that in Dr Alex Stockman’s report to Dr Ansari dated 2 September 2009, he referred to the plaintiff complaining of physical problems, and also that she had ongoing psychological problems with her husband which were worrying her considerably.[36]
[34]PCB 19
[35]T47
[36]DCB 34
50 In June of 2012, the plaintiff was referred to Mr R Mohammad, psychologist, by Dr Ansari. The referral of the plaintiff to psychologist was at the suggestion of Dr Weissman, psychiatrist, who had examined the plaintiff for medico-legal purposes on 3 September 2010. I shall return to the psychiatric and psychological conditions later on in these reasons.
Medical opinions
Dr Ansari, General Practitioner
51 Dr Ansari prepared two reports for this proceeding, dated 29 March 2010 and 8 November 2012. In his first report, Dr Ansari noted that the plaintiff attended his practice on the day of the transport accident at approximately 9.10am. He described the injury as a whiplash injury and that the plaintiff was complaining of pain in her neck, mainly at the back of her neck, with pain radiating to the side of the neck.[37]
[37]PCB 33
52 In the history section of his report, Dr Ansari states that the plaintiff did not have any operations on her hands.[38] It is clear from the evidence of the plaintiff and the medical reporting in this case, that the plaintiff did in fact have two operations in relation to her hands in 2002.
[38]PCB 35
53 Dr Ansari diagnosed the plaintiff’s condition as follows:
“Cervical spondylosis and musculo-ligamentous strain of the cervical spine with aggravation of existing degenerative disc problem.”[39]
[39]PCB 36
54 In his second report dated 8 November 2012, Dr Ansari has a history from the plaintiff as follows:
“Unfortunately, since my last report to you, the patient continues to have pain in her neck with tenderness on both sides of the neck and restricted range of movements. The pain extended to both her shoulders with cramping in her neck. She also stated that she had difficulty looking down as this exacerbated her neck pain. She further reported headaches and dizziness as well as tiredness, fatigue and insomnia.”[40]
[40]PCB 37
55 Dr Ansari noted in that report that the plaintiff had attended him on a monthly basis for her neck claim from 29 March 2010 onwards. He noted that the medication the plaintiff was taking was Panadol Osteo for pain relief, and Pristiq for her depression.
56 In his final report, Dr Ansari does not descend to giving any opinion as to his diagnosis. Dr Ansari, however, does say that the plaintiff is unable to work. He does not attribute the plaintiff’s inability to work to either psychological/ psychiatric reasons or for the physical injury reasons.
Dr David Fish, Consultant Occupational and Environmental Physician
57 The plaintiff was examined by Dr David Fish for medico-legal reporting. Dr Fish provided two reports, dated 12 May 2010 and 10 December 2010. Dr Fish noted that the plaintiff was unable to give any detail of the level of damage to the car she was a passenger in when involved in the transport accident. He noted that the car the plaintiff was travelling in was driveable after the accident.
58 In his first report, he noted that the plaintiff reported to him:
“In terms of her neck pain, she says that the pain is severe when she is sitting up and she has restricted motion particularly in flexion and extension. She has trouble turning side to side, as this aggravates her neck pain as well. The pain radiates from the neck to the trapezii and upper back and into the base of the head.”[41]
[41]PCB 60
59 Dr Fish examined the plaintiff and made the following observations:
“On the physical examination I note the presence of widespread tender points over the neck, trapezii, upper back, anterior chest wall, upper arms, thoracic spine, lower back, and buttocks. Specifically in the neck, there was increased tenderness at the base of the neck. On observation during the interview phase, she had a full normal rotation of the neck but appeared restricted in flexion/extension and lateral flexion. On formal assessment, there is uniform restriction of cervical motion in all directions.”[42]
[42]PCB 61
60 Dr Fish noted that the plaintiff had complained of dizziness during the course of the assessment and needed to lie down at some stage. Her blood pressure had remained at the same level.
61 In conclusion, Dr Fish stated that the plaintiff was suffering from an aggravation of cervical spondylosis relevant to the transport accident.[43]
[43]PCB 62
62 It is to be noted that Dr Fish was not given the MRI scan of the plaintiff’s neck which was performed in 2002. Dr Fish requested access to that MRI scan and suggested that a more up-to-date MRI scan examinations take place.[44]
[44]PCB 62, 63
63 In his latest report dated 10 December 2010, Dr Fish had available to him the MRI scan of the plaintiff’s cervical spine which was reported on 27 November 2010.[45] He noted that that MRI scan revealed widespread and significant degenerative spondylosis of the cervical spine. In his opinion, Dr Fish thought that the appropriate diagnosis was an aggravation of cervical spondylosis consistent with the accident.[46]
[45]PCB 65
[46]PCB 65, 66
Mr Kenneth Brearley, Orthopaedic Surgeon
64 Mr Kenneth Brearley prepared two reports in respect of this application by the plaintiff, dated 31 October 2012 and 15 February 2013. Mr Brearley noted the plaintiff’s current status as follows:
“She says she has constant pain in the back of her neck which radiates to both shoulders. She has difficulty moving her shoulders and neck movements are limited. She says her neck pain is made worse by any significant activity as in lifting and leaning forward. She becomes dizzy on some neck movements. She says she has to frequently lie down when she is giddy.”[47]
[47]PCB 68
65 Mr Brearley noted that the plaintiff was having no physical treatment for her injuries to her neck. He noted that she was receiving psychological counselling and was on anti-depressant medication Pristiq.[48]
[48]PCB 68
66 In terms of pain management, Mr Brearley noted that the plaintiff was taking five Panadol Osteo per day.[49]
[49]PCB 68
67 On examination, Mr Brearley found:
“Neck
There is no tenderness or deformity. There is slight restriction of movements which are through 80% of the normal range in all directions. She complains of pains at the extremes.”[50]
[50]PCB 69
68 Mr Brearley diagnosed the plaintiff as follows:
“The diagnosis is aggravation of pre-existing degenerative changers throughout the cervical spine. In addition there has been intradisc injury to the C3/4 and C4/5 intervertebral discs in particular where there is some protrusion. At the C3/4 level there is also an annular tear as shown on MRI.
The injury to the discs has not resolved and she is having ongoing neck pain which is quite disabling. She also complains of ongoing headaches and dizziness.[51]
…
Her neck injury is quite consistent with the rear end collision which she describes. Slow or no resolution at all is the common outcome with such severe soft tissue injuries to the neck.”[52]
[51]PCB 70
[52]PCB 71
69 Mr Brearley noted that the plaintiff complained that she was no longer able to walk for exercise. This statement becomes relevant when considering the video surveillance of the plaintiff.
70 Mr Brearley’s final report is dated 15 February 2013. Mr Brearley notes the report of Mr Patrick Lo dated 12 March 2002 and Mr Lo’s comments about the MRI scan of the plaintiff’s neck in 2002 as follows:
“… significant degenerative cervical spine disease extending from C5 to C7 vertebral levels. However only minimal encroachment of the foramina bilaterally was noted.”[53]
[53]PCB 72
71 Mr Brearley also had the MRI scan dated 27 November 2010 to review, and he concluded that it showed more definite and severe degenerative changes throughout the cervical spine. He concluded that there clearly had been an advance in the degenerative changes form 2002 to 2010.[54]
[54]PCB 72
72 Mr Brearley concluded:
“There has been definite progression between the two MRI examinations.
…
The progression would be in considerable measure due to the passage of eight years, ie natural progression with age. The accident of 4th November 2005 certainly resulted in the aggravation of these degenerative changes as a result of which she developed symptoms. Probably, although it is difficult to be certain of the extent, there would be some contribution made to that progression but it would be relatively minor compared with the deterioration resulting from the natural age processes. It is not possible to quantify it further.”[55]
[55]PCB 73
73 I conclude from this opinion of Mr Brearley, that the plaintiff is now suffering from the natural progression of her previously existing and proven degenerative processes in her neck. The transport accident of 4 November 2005 may have caused an aggravation of this process in the degenerative changes, but Mr Brearley refers to them as being relatively minor. The plaintiff has the onus of proving the level and degree of the aggravation of her injury to her cervical spine. The evidence from Mr Brearley does not assist the plaintiff in that regard.
Mr Kevin Siu, Neurosurgeon
74 Mr Kevin Siu examined the plaintiff on behalf of the defendant and prepared reports dated 22 February 2012 and 8 March 2013. Mr Siu obtained a history from the plaintiff, where she stated:
“She went on to say that she has pain everywhere, pain every day, pain every minute and would get dizzy.”[56]
[56]DCB 2
75 In taking the history from the plaintiff in respect of the bus accident which occurred in 2007, the plaintiff stated that the fall in the bus had in fact made the pain in her neck worse.[57] Mr Siu noted on examination, that the plaintiff had marked limitation of rotation, flexion, extension and lateral flexion of her neck.[58] Mr Siu noted the plaintiff was tender everywhere. She was tender to light touch on any minimal pressure on any part of her body, from the upper limbs to the trunk, to the thighs.[59] Mr Siu gave the following opinion:
“I would suggest that she has sustained a minimal soft tissue ligamentous injury in this car accident.”[60]
[57]DCB 3
[58]DCB 3
[59]DCB 4
[60]DCB 4
76 Mr Siu notes:
“She brought alone the MRI of 2011 organised by her GP which shows progression of those degenerative changes since 2002. This was described as severe and certainly is now maximal at C4/5. The radiologist describing the MRI of 27 November 2010 talked about end plate oedema inferiorly at C4 and superiorly at C5.”[61]
[61]DCB 4
77 In Mr Siu’s opinion, this was an ongoing process and the accident of 2005 would have not contributed to the ongoing progressive degenerative changes. It is part of wear and tear.
“The plaintiff’s overall presentation is a case of marked functional overlay.
…
I would expect a degree of discomfort and neck pain and some restriction in movement because of the degenerative changes present but they are not the sequelae of the injury.”[62]
[62]DCB 5
78 In his later report dated 8 March 2013, Mr Siu noted that the plaintiff had a significant improvement in her range of movement from the first time when he examined her in February 2012.[63] Mr Siu noted that the plaintiff had, in his opinion, adopted a sick role and this made her prognosis difficult.[64] Finally, Mr Siu noted his opinion as follows:
“If you read Mr Brearley’s opinion on page 5, he talks about aggravation of a pre-existing condition and he then went on to say the resolution of such soft tissue ligamentous injury can take a long time. …
Therefore I would agree that there has been an aggravation of a pre-existing condition at a clinical level.”[65]
[63]DCB 6c
[64]DCB 6d
[65]DCB 6e
79 Mr Siu noted, after a comparison between the 2002 MRI scan conducted by Mr Lo and the more recent MRI scans, that there was no obvious radiological degeneration. Mr Siu was of the opinion:
“… the plaintiff has significantly exaggerated the level of disability and while soft tissue ligamentous injury can take a long time, it is unlikely to see no improvement, especially with cessation of work.”[66]
[66]PCB 6e
80 It is to be noted that Mr Siu did not have the advantage of seeing the final report of Mr Brearley dated 15 February 2013. It is clear from a reading of the whole report of Mr Siu that he was of the opinion that there is a soft-tissue ligamentous injury to the plaintiff which was an aggravation of a pre-existing condition in the plaintiff’s neck.
81 I conclude, on the basis of the medical evidence in this case, that the plaintiff has failed to establish, on the balance of probabilities, that the symptoms in her neck have been aggravated to the extent which could be called “serious injury” under the legislation.
Psychiatric and psychological injury
82 In the plaintiff’s application for serious injury certification, she relies upon permanent severe mental or permanent severe behavioural disturbance or disorder. The test for serious injury certification and the principles relating to it are set out in Mobilio v Balliotis.[67]
[67]supra
83 The transport accident involving the plaintiff in this application occurred on 4 November 2005. The plaintiff had been sent to Dr David Weissman for psychiatric impairment assessment in September of 2010. At that stage, the plaintiff had not received any treatment for a psychological or psychiatric disorder. In late 2011, Dr Ansari referred the plaintiff to Linda Roglic, a psychologist.[68] The plaintiff continued to see Ms Roglic until June or July of 2012. She was then transferred to psychologist, Ramzi Mohammad. The plaintiff continues to receive treatment from Mr Mohammad, the psychologist. In short, it is some five to six years between the time of the transport accident and the first referral or treatment or psychological and psychiatric disorder.
[68]PCB 19
84 The plaintiff is currently receiving medication in the form of Pristiq which is prescribed by her general practitioner, Dr Ansari. The plaintiff is not receiving any, and has never received any, psychiatric treatment either in the form of counselling and psychotherapy or medication prescribed and controlled by a psychiatrist.
85 In her affidavit dated 20 December 2012, the plaintiff sets out her symptoms for psychiatric and psychological conditions as being very teary and feeling very stressed.[69] The plaintiff sets out that her self-esteem and self-confidence has been very badly affected by her injury. The plaintiff states that her concentration and short-term memory have been badly affected as a result of her condition.[70] The plaintiff complains of bad dreams of accidents and having a fear of an accident when being a passenger in a car.[71]
[69]PCB 20
[70]PCB 22
[71]PCB 23
Medical opinions
Mr Ramzi Mohammad, Psychologist
86 Mr Ramzi Mohammad prepared a report dated 14 January 2013 in support of the plaintiff’s claim for serious injury. Mr Mohammad states that he first saw the plaintiff on 4 June 2012 on referral from her general practitioner, Dr Ansari. The conditions he was to treat the plaintiff for was Mixed Anxiety, and depressive manifestations. In his report, Mr Mohammad notes that the plaintiff complained that prior to the transport accident, she had often taken walks with her husband but since her injury was no longer able to participate in any of those social activities.[72] The surveillance film shown of the plaintiff, which I will refer to later in these reasons, clearly shows her in May of 2012 enjoying a day out with both her husband and daughter and grandson.
[72]PCB 53
87 Mr Mohammad notes the symptoms reported by the plaintiff as follows:
“1 She described feelings of being scared and upset when she thinks of her present health status and of being a burden upon her family members.
2 She feels she is ready for quarrels with no apparent cause or provocations.
3 She is irritable toward her family in particular, and feelings of guilt follow and she becomes tearful.
4 She is isolated and is increasingly developing an aversion to being in public places and social gatherings. She is becoming increasingly distracted and lacking in focus.
5 She suffers from reactive insomnia.”[73]
[73]PCB 54
88 Mr Mohammad attributes the pain complained of by the plaintiff as a physical-related injury which impacts upon her daily activities. On the psychological front, Mr Mohammad has diagnosed the plaintiff as follows:
“Mrs Akkorlu has developed secondary psychological conditions such as mixed anxiety and depressive manifestations as she anticipates no positive end to her injury and not restoration of her normal daily activities as to her pre-injury life. Mrs Akkorlu’s injury is the sole contributing factor to her psychological conditions. She will remain essentially in need of medical and psychological care.”[74]
[74]PCB 55
89 I note, in this conclusion by the psychologist, Mr Mohammad, that he does not discuss the back injury that the plaintiff has suffered, nor the loss of work through termination, rather than injury, or the condition of her husband, which she has complained to Dr Stockman about.
90 I note, for completeness, that in the course of diagnosing the plaintiff, Mr Mohammad administered a psychometric assessment conducted in January 2013, known as the Beck Depression Inventory. The inventory referred to in his report appears at pages 56 and 57 of the PCB. In that inventory, which was answered by the plaintiff, Question 18 asks about changes in appetite. The plaintiff has marked 3(b) as the appropriate answer. This answer is: “I crave food all the time.” The answer in the Beck Inventory referred and made on 14 January 2013 is to be compared with the statement made in the plaintiff’s second affidavit dated 20 December 2012, where she states:
“3(d)The ongoing pain I suffer in my neck, the headaches and restrictions on my life continue to cause me to feel very stressed, with the result that I cry most days and generally do not have much appetite and do not feel like eating. I have lost several kilograms over the last year or two.”[75]
[75]PCB 21, 22
91 These two statements cannot be reconciled when made within three weeks of one another. The inconsistency in these statements undermines the history given by the plaintiff to her treating psychologist. The treating psychologist relies entirely upon the history given by the plaintiff in order to arrive at a diagnosis. Whilst the plaintiff was not cross-examined about this contradiction in histories, in the course of the application, the Beck Inventory was tendered on her behalf to support her claim in this application.
Dr David Weissman, Psychiatrist
92 Dr David Weissman has interviewed and assessed the plaintiff for the purposes of this application for serious injury. He has prepared two reports, dated 3 September 2010 and 31 October 2012. In relation to the plaintiff’s work history, particularly around the time of the transport accident and subsequent back injury event in 2007, Dr Weissman has an incorrect history from the plaintiff. The history I refer to is:
“In fact the claimant continued working up until 22 November when she had a fall on the bus (at work) due to dizziness. She does not know exactly what happened. She told me that she fell on the floor behind her. I asked her whether the fall exacerbated or aggravated her pain and she replied “Too much … I did not hurt my head … but all my body”. She has not returned to any work since then.”[76]
[76]PCB 76, 77
93 The evidence in this case is that the plaintiff continued to work until her employment was terminated by her employers in September 2009. In his first report, Dr Weissman diagnosed the plaintiff as suffering from the following conditions:
“1 mild, but not insignificant, “primary” or direct post-traumatic stress and anxiety symptoms and features, but not full blown Post Traumatic Stress Disorder (PTSD)
…
2 a chronic Adjustment Disorder with Depressed and Anxious Mood; and
3 a chronic pain disorder associated with psychological factors and a general medical condition.”[77]
[77]PCB 81
94 Dr Weissman goes on to state that his prognosis is that the plaintiff would seem to be at least partially incapacitated for work on the purely psychiatric grounds alone.[78]
[78]PCB 84
95 In his later report in October 2012, Dr Weissman notes that the content of the plaintiff’s thinking revealed moderately severe mixed reactive depressive and anxiety symptoms, themes and features, with marked pain focus and pain preoccupation and worries.[79] On this occasion, Dr Weissman obtained a correct history in relation to the plaintiff’s employment; that is, that she had continued to work up until 8 September 2009 when her employment was then terminated. Dr Weissman diagnoses the plaintiff in the following terms in his later report:
“1 mild post-traumatic stress and anxiety symptoms and traumatisation features;
2 chronic Adjustment Disorder with Depressed and Anxious Mood of moderately severe intensity or severity; and
3 a severe Chronic Pain Disorder associated with psychological factors and a general medical condition.”[80]
[79]PCB 92
[80]PCB 95
96 Dr Weissman then goes on later in his report, and states that the plaintiff is suffering from:
“… at least a moderately severe group of accident-related psychiatric, psychological, emotional and behavioural symptoms, signs and features and disturbances including mild post traumatic stress, moderately severe depression and anxiety and severe Chronic Pain Disorder features.”[81]
[81]PCB 96
97 Dr Weissman states that on purely psychiatric grounds alone, the plaintiff remains totally incapacitated for all work for the foreseeable future associated with significant pecuniary disadvantage.[82]
[82]PCB 97
98 The opinion of Dr Weissman in this regard is not based on a full set of facts. Nowhere in his reports does he note why the plaintiff ceased working on 8 September 2009. The reason for her ceasing work on that day was her employment was terminated. It was not as a result of any symptoms to her neck or psychiatric related issues.
99 I note that the test for psychiatric and psychological conditions is that the condition must be “severe”. Dr Weissman very carefully uses the combination of words “moderately severe” to describe the conditions of the plaintiff. I do note that he does refer to the plaintiff suffering from severe Chronic Pain Disorder features. I am not satisfied on the evidence in this case that the plaintiff’s psychological condition or depression is of the requisite standard to be regarded as a severe condition as required under the Act.
100 The length of time between the transport accident and the fact that the plaintiff continued working for as long as she was allowed to by her employer after that accident, mitigates against drawing that conclusion. It is approximately five years after the accident before any complaint of depression or psychological issues are made to her general practitioner to the extent where she is then referred to a psychologist. Further, the lack of a report from the original psychologist who saw and treated her from late in 2011 until June of 2012, leads me to conclude that such a report would not be of assistance to the plaintiff’s claim in this case.
101 I conclude, based on the medical evidence alone, that the plaintiff has failed to satisfy the requisite standard required under the Act to prove that she suffers from a severe mental disturbance.
Consequences
102 The plaintiff, in her affidavit, sets out that she has suffered a number of consequences as a result of the injury she received in the transport accident.
Sleep
103 The plaintiff complains that her sleep is disturbed as a result of the pain coming from her neck.[83] During the course of the evidence, and in the medical reports, there are consistent complaints from the plaintiff about pain in her back, as well as a result of the accident which occurred in 2007. It is to be noted that the plaintiff had no time off work as a result of her neck injury resulting from the transport accident in this application. However, in relation to her accident which occurred on 22 November 2007, she was certified unfit for duties for approximately two months. I do not accept that the plaintiff’s allegations of disturbed sleep as a result of her neck complaints is the reason for her disturbed sleep.
[83]PCB 14
Pain
104 The plaintiff complains of pain in her neck, which radiates up into her head.[84] The plaintiff, in her evidence, stated that after the transport accident, her pain was severe. She stated that it was not intermittent pain and that she was taking medication which numbed the pain.[85] The assessment of pain which affects the plaintiff is to be looked at in light of her complaints to doctors, what she actually does about the pain and what, if any, limitations that pain gives her. The plaintiff takes Panadol Osteo for pain relief. The pain medication is not any more significant than Panadol Osteo. This is an over-the-counter pain relief medication. It was said on the plaintiff’s behalf, and her evidence supported it, that she reacted to most pain medications.
[84]PCB 13 and 14
[85]T12, L29 – T13, L4
105 The plaintiff had been offered, on a number of occasions, pain clinic treatment at the Western General Hospital. The plaintiff has not followed up this offer of treatment and I find that this is indicative that the pain for her is not as significant as she is stating, both to the doctors and to this Court.
106 I have also seen the video of the plaintiff’s actions on 1 May 2012. I accept that it is only for a relatively short period of time, but it is quite clear that the plaintiff is active and able to do many movements with her head, neck, shoulders and arms with no apparent restriction. Her evidence was that she had taken painkilling medication so that she could enjoy the day. I will return to this later in my reasons, but it appeared to me on the video that the plaintiff was enjoying her day out and was very active in moving her neck and head around without limitation, either of range of movement or of desire to move her head and neck.
107 In conclusion, I accept that the plaintiff does suffer some pain in her neck area, but it is not of such significance that amounts to a significant consequence for her.
Medication
108 The plaintiff currently takes Panadol Osteo for pain relief. In the past, she has been prescribed Endep by Dr Stockman. Her general practitioner prescribes her with Pristiq for control of her depression symptoms. The fact that the plaintiff is prescribed and does take medication, of itself, is not a significant consequence.
Ongoing treatment
109 The plaintiff has ongoing treatment in the form of psychological consultations with Mr Mohammad. She also sees her general practitioner for certification for her injury to her neck and the prescription of Pristiq. There is no physical ongoing treatment for her neck. I do not accept that these ongoing treatments amount to a significant consequence for the plaintiff.
Lack of mobility
110 The plaintiff complains of lack of mobility to her neck. However, in cross-examination she was asked this question:
“Q: What restriction do you say you have of your neck, can you turn from side to side?---
A: I can turn my neck from side to side but it’s painful and I can’t keep it that way for too long and I can also do up and down same way with pain.
Q: You have seen the video footage of yourself, haven’t you, you have seen a DVD of yourself on a day when you went for a work (sic) and picnic?---
A: Yes.
Q: And that video shows you moving your neck, doesn’t it, side to side and looking down?---
A: Yes, I did do that for a short time, I was with my grandchild. I did that because of the love for my grandchild, I only have the one grandchild as it is but it wasn’t for a long period because when I do it for too long that’s when my pain increases.”[86]
[86]T18, L18 – T19, L1
111 I have previously noted that the medical practitioners have determined that the plaintiff has a reasonably full range of movement with pain at the extremes of the movement range. Alternatively, the plaintiff showed that she could not move her head at all. I do not accept that the plaintiff has proved that there is any lack of mobility in relation to the use of her neck and head other than what is a result of her underlying degenerative changes to her neck.
Activities of daily living
112 Both the plaintiff and her daughter, Nefice Akkorlu, gave evidence that the daughter, Nefice, now does most of the housework. The thrust of the evidence was that the reason the daughter now does the housework is that the plaintiff was unable to do so. The plaintiff had previously stated that she was able to do some housework and I accept that that is the case. I do not accept the plaintiff’s evidence that she has proven on an appropriate standard that the consequence of the injury to her neck is of such significance in respect of her activities of daily living.
Work
113 The plaintiff alleges that she can no longer work due to her injuries. This allegation is at odds with the fact that the plaintiff continued to work up until the time her employment was terminated. The termination took place after she had been injured in a separate accident, which affected both her back and her neck. The plaintiff was certified unfit for work from 22 November 2007 until 30 January 2008 on the basis that her low back was the reason for not being able to work.[87] I do not accept that the alleged physical injury to the plaintiff’s neck is the reason that she is unable to work.
[87]T36, L22-29
The credit of the plaintiff
114 In these reasons, I have previously referred to discrepancies between what the plaintiff has told certain medical practitioners and what she deposes to as her evidence. I will not repeat those discrepancies on the issue of her credit in this section of the reasons. The main discrepancy is that the plaintiff has failed to tell the treating medical practitioners and the assessing medical practitioners the true situation in relation to her previous ongoing complaints about her neck injury to doctors, commencing from 1986 through to 1992, when she went to Cyprus, and her complaints upon her return from Cyprus prior to the transport accident in 2005. These complaints of pain and symptoms in her neck are consistent with the radiological evidence on the MRI scans of 2002 and 2010. The MRI scans clearly map a progression of a degenerative neck condition for the plaintiff.
115 The Court of Appeal has, in the authority of Church v Echuca Regional Health,[88] set out the caution with which video surveillance films are to be approached when assessing the credibility of a plaintiff. I take into account the comments and directions set down in that authority when assessing the plaintiff in this case.
[88]supra
116 The defendant showed video surveillance film of the plaintiff in the course of the application for serious injury. The first surveillance film taken of the plaintiff was taken on 1 May 2012. This DVD was Exhibit 1. The total film taken was for a period of one hour and fifteen minutes. The period of time this extended over was from 11.21 to 15.18 on that day. That is a total time of approximately four hours. The total surveillance time on 1 May 2012 was nine-and-a-half hours, some of which was conducted at an incorrect address for the plaintiff.
117 The defendant admitted to engaging surveillance activities on the plaintiff on 30 April 2012 and 5 May 2012. On 30 April 2012, the total surveillance was for a period of one hour and forty-five minutes. The investigators on that day were at an old and incorrect address for the plaintiff. Not surprisingly, no film of the plaintiff was taken on that occasion. On 5 May 2012, the surveillance of the plaintiff’s premises was for a total of five hours between 1400 and 1900. On that occasion, the plaintiff was not observed at her premises.
118 The second film of the plaintiff shown in this application was for two minutes and sixteen seconds in length. The film was taken on 20 January 2013. This observation was the only film of the plaintiff in a total of eight hours’ surveillance on that day.
119 The plaintiff was also surveilled on 31 January 2013 for eight-and-a-half hours. A further attempt at surveillance by the defendant was made on 5 February 2013 for three hours. On the latter occasion, the plaintiff was not observed or filmed.
120 In summary, the plaintiff was placed under surveillance by the defendant for six days. On two of the remaining five days, film of the plaintiff was taken. On three of the five days, the plaintiff was not observed by the investigators. It is fair to describe the film taken, that is one hour and fifteen minutes on 1 May 2012 and two minutes and sixteen seconds on 20 January 2013, as a small window of observation of the plaintiff’s total activities over the relevant five days of surveillance.
121 The film of the plaintiff in this case is significant in two ways: The first is in relation to the range of movement the plaintiff displays of her neck, while being filmed. The second matter is that the film does show activity and movement that the plaintiff had reported to medical practitioners was no longer possible for her. Whilst the film is only for a short period of time, it does cast a shadow over the plaintiff’s credit.
122 On 1 May 2012, the plaintiff is filmed for a total period of one hour and sixteen minutes. At 11.21am, the plaintiff boards a vehicle driven by her daughter. The plaintiff does not have a “special pillow” with her. This special pillow is referred to in her affidavit. The ride in the car lasts for approximately half-an-hour from her home to the destination of a park near Altona beach. There was no apparent restriction in her movement to get into the car.
123 The plaintiff, at 11.59am, leans over the pram with her grandchild in it. The plaintiff then, in crossing the road, looks to her left by turning her head to the left in an unrestricted manner. The plaintiff continued to cross the road and into a park where a market was underway. The plaintiff walked or “ambled” around the market stalls and footpaths, looking down at items on display by flexing her neck forward and looking about her by turning to her left and right without any apparent restriction in her neck movement. The plaintiff was in the company of her daughter, grandson (in the pram) and her husband.
124 I find that any casual observer would not find any restriction of neck movement displayed by the plaintiff. I certainly did not see any such restriction of movement by the plaintiff. The plaintiff stated in her evidence that she took a lot of painkillers to assist her engage in such activity.[89] The plaintiff agreed that she was walking in a fairly brisk manner and turning her head around looking at what was around her.[90]
[89]T22, L30-31
[90]T24, L17-20
125 On 1 May 2012, the film moves on at 12.55pm to display the plaintiff leaving the market area of the park and going to a picnic area in the same park. The plaintiff gave evidence that this occasion was the first time she spent a day together with her family.[91] This was a reference to her husband, daughter and grandchild born on 5 September 2011, some eight months prior to the filming. The plaintiff said the film will not show her pain and that the medication gets her through the day.[92]
[91]T 25, L10-11
[92]T 28, L4-11
126 In the picnic area of the park, the film showed the plaintiff:
(i)12.58
· leaning forward over the pram adjusting the child’s clothing;
· standing near the pram, turning her head and neck in an unrestricted manner;
· picking up an item that fell from the pram and putting it back in the pram;
(ii)13.19
· playing “peek-a-boo” with child. This was a clear and unrestricted movement of her head and neck to do this. In the course of cross-examination of the plaintiff on this point, this particular part of the film was shown three times to the plaintiff before she responded by saying she lifted her bottom in order to move in that way;[93]
[93]T 27
(iii)13.24
· standing at swings looking around using her head and neck without apparent restriction. The plaintiff also looked down toward the ground. In her evidence, the plaintiff said she could look down;[94]
(iv)13.28 and onwards
· carrying her grandchild and moving her head forward towards the grandchild to rub noses with the baby. This movement required the plaintiff to be holding the baby up and her moving her head and neck in a forward motion;
(v)13.31
· while seated on the bench, bouncing the baby up and down on her lap using her arms and shoulders without restriction;
(vi)13.33
· The plaintiff now has her back to the table and is sitting on the bench and whilst in conversation, throws her head back and then forward in laughter. This is free and unrestricted movement of her head in a forward and backward motion. The plaintiff stated in her evidence on this particular part of the film, “I try not to show my pain to others”;[95]
(vii)13.50
· The plaintiff leaves picnic table area and wanders and ambles down the beach boulevard with her family group in an unrestricted and normal slow walking manner.
[94]T 27, L28, 29
[95]T 29, L31
127 The described events shown on the film of the plaintiff are not extreme. The plaintiff, as a fifty-seven-year-old grandmother, is clearly enjoying a day out with her husband, daughter and grandson. The plaintiff does not show any physical restriction in respect of the movement of her neck or head in the film. In her evidence, the plaintiff says she can move in the manner shown on the film but “the pain and aches are within me”.[96]
[96]T 26, L3
128 I find the plaintiff has relatively unrestricted movement of her neck and head. I have dealt with the pain consequences elsewhere in these reasons.
129 The second piece of surveillance film is only two minutes and sixteen seconds in length. The day of the surveillance in 20 January 2013. This DVD was Exhibit 2. The film shows the plaintiff:
(i)opening the car door and leaning forward, reaching into the passenger side of the car;
(ii)standing upright and throwing some rubbish (which appeared to be breadcrumbs or similar) into the garden;
(iii)leaning into and looking in a downward direction at the seat or floor of the car on the passenger side.
130 The limited time that this film displays the plaintiff would make it insignificant in terms of the observations of the plaintiff. However, the plaintiff, in an affidavit sworn on 20 December 2012 (one month prior to filming), stated:
“3(b)I try to avoid leaning forward, as I have found that it tends to set off an episode of pain in my neck and in particular of a cramping feeling, like a knot in the back of the left side of my neck. I also try to avoid looking down as I tend to suffer a dizzy episode, if I do this.”[97]
[97]PCB 21
131 The plaintiff would not engage in the activities filmed on 20 January 2013 if the statement made in her affidavit on 20 December 2012 was correct. The actions displayed, albeit for a very short time, are clearly voluntary and not under any urgency or reactive position by the plaintiff. In simple terms, the plaintiff’s actions filmed on 20 January 2013 are inconsistent with her sworn affidavit on 20 December 2012.
132 In conclusion, the surveillance film of the plaintiff in Exhibit 1 and Exhibit 2 did not support the plaintiff’s claim of loss of body function, in particular to her neck. The surveillance film is only part of the total evidence I am required to consider in this application for serious injury, and I find that the plaintiff as filmed on the two occasions in question shows that the plaintiff has a greater capacity for movement and activity than she deposes to in her affidavits and evidence and the history she gives to the relevant medical practitioners.
Conclusion
133 In conclusion, I find that the plaintiff has failed to satisfy the test that the aggravation of the symptoms and consequences of pain and suffering to her as a result of the transport accident are “very considerable” and “more than marked or significant”. I find, based on the evidence, the plaintiff suffered pain of a mild to moderate level on an intermittent basis to her cervical spine but such pain is due predominantly to the underlying and pre-existing degenerative change that was taking place dating back to 1986. Consequently, the plaintiff has failed to satisfy the “very considerable” test under the Act.
134 I conclude that the level of psychiatric or psychological disorder suffered by the plaintiff is not severe as required under the Act. The treatment regime for her psychological complaints as set out by Mr Mohammad do not support a finding for serious injury. Whilst the plaintiff is recommended to take 100 milligrams of Pristiq as medication, she is not under the treatment or control of a psychiatrist. The opinion of Dr Weissman and his diagnosis does not support the level of disability of the plaintiff as being severe, which is required under the Act.
135 The plaintiff’s application for serious injury certification for psychiatric and psychological disorder is dismissed.
136 The application for serious injury certification in respect of the physical injury to the plaintiff’s neck as a result of the transport accident is also dismissed.
137 I will hear the parties on costs.
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