Akkus v Transport Accident Commission
[2012] VCC 1293
•17 September 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-04122
| AYLIN AKKUS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29, 30 and 31 August 2012 | |
DATE OF JUDGMENT: | 17 September 2012 | |
CASE MAY BE CITED AS: | Akkus v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1293 | |
REASONS FOR JUDGMENT
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SUBJECT: ACCIDENT COMPENSATION
CATCHWORDS: Transport accident – injury to the lower back – impairment said to produce serious injury consequences – credit – secondary psychiatric consequences – extent to which the consequences of a secondary psychiatric injury constitute a consequence of the impairment of the function of the lower back
LEGISLATION: Transport Accident Act 1986, s93(4)(d)
CASES: Richards v Wylie (2000) 1 VR 79 and Transport Accident Commission v Kamel [2010] VCC 314 (5 May 2010)
JUDGEMENT: The plaintiff has leave to bring a proceeding at common law to recover damages for the claimed injuries
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Gorton SC with Mr J Valiotis | Zaparas Lawyers |
| For the Defendant | Mr R Meldrum QC with Mr C Madder | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed on 16 September 2010 by which the plaintiff applies for leave pursuant to s93(4)(b) of the Transport Accident Act 1986 (“the Act”) to bring a proceeding to recover damages for injuries suffered by her arising out of a transport accident which occurred on 29 May 2006.
2 Mr J Gorton SC appeared with Mr J Valiotis of counsel for the plaintiff and Mr R Meldrum QC appeared with Mr C Madder of counsel for the defendant.
3 The application is brought pursuant to s93(4)(d) of the Act. Subsection (6) provides that a court must not grant leave under sub‑s(4)(d) unless the court is satisfied that the injury is a “serious injury”.
4 The definition of “serious injury” relied upon by the plaintiff is under sub‑s(17):
“(a) serious long term impairment or loss of a body function.”
5 The injury suffered by the plaintiff for which leave is sought is an injury to the lower back.
6 The following evidence was adduced at the hearing of the plaintiff’s proceeding:
· The plaintiff gave evidence and was cross-examined
· Dr Tang, general practitioner, gave evidence and was cross-examined
· From the Joint Court Book (“JCB”) the plaintiff and the defendant tendered pages 7-20 and 25(a)-169: Exhibit A[1]
[1]Mr Gorton and Mr Meldrum applied to tender different parts of the Joint Court Book, however, considering that it was a Joint Court Book, I have given the documents tendered by each of them one exhibit number
· The plaintiff tendered the clinical notes and extracts from the clinical records of Dr Tang's medical practice: Exhibit B
· The defendant tendered film taken of the plaintiff on 15 and 16 December 2011: Exhibit 1
· The defendant tendered film taken of the plaintiff on 24 and 25 January 2012: Exhibit 2.
The Background Facts
7 The plaintiff was born on 28 April 1982. She is now twenty-six years of age. The plaintiff is separated from her husband. She has a son by that marriage who is now six years of age. She has the substantial care of her son. She is now in a second relationship. At the time of the trial, she was pregnant. Her pregnancy has advanced into its fourth month.
8 The plaintiff attended Mentone Girls School. She completed Year 11. After she left school, she first worked in a supermarket for about six months, and then in other occupations, before commencing a hairdressing course with an organisation known as “Pivot Point Hairdressing Academy” over a period of four months. She completed the course.
9 Subsequently, the plaintiff obtained a position with a hairdressing salon where she worked for some months without pay. She then obtained an apprenticeship. Her apprenticeship was interrupted when her employer sold the hairdressing business and went overseas.[2] The plaintiff then fell pregnant. She has not returned to hairdressing. The only occasion when she has undertaken any hairdressing was when she attempted to cut her cousin’s hair. She found that her attempt to do so exacerbated her lower back pain and left‑leg pain.[3]
[2]Transcript 13 and 18-19
[3]JCB 11
The Transport Accident
10 On 29 May 2006, the plaintiff was a passenger in the rear seat of a car driven by her husband. Her infant child was seated beside her. The car in which she was a passenger was being driven along Kingsclere Avenue, Keysborough. A car driven by another party entered onto that roadway through a ‘give way’ sign. The plaintiff alleges that the car was travelling at high speed. It collided into the left side of the car in which the plaintiff was a passenger.
The Plaintiff's Medical Treatment
11 On 30 May 2006, the plaintiff attended the Parkmore Medical Centre for treatment. She saw Dr Loh, general practitioner. Within a couple of days of the transport accident, the plaintiff said that she began to experience lower back pain. I infer, therefore, that she was not suffering from lower back pain when she saw Dr Loh, although it was while she was sitting in Dr Loh's waiting room that she observed an advertisement on a television for Dr Oorloff, chiropractor, who provided treatment for spinal injuries.[4]
[4]JCB 15-16
12 The first treatment the plaintiff says she obtained for lower back pain was from Dr Oorloff. In his report dated 20 October 2011, he says that he treated the plaintiff for neck, shoulder, arm and lower back pain from 31 May 2006. He examined the plaintiff's neck, mid back and lower back. However, he only diagnosed a problem with the paraspinal musculature, which he described as hypertonic bilaterally. Hypertonic, meaning that the musculature had increased pain or tension, and in this context, muscle spasm.[5]
[5]JCB 37-38
13 Dr Oorloff provided the plaintiff with a medical certificate directed to the defendant dated 3 May 2006, that is, about five days after the occurrence of the transport accident. He referred to the plaintiff suffering lumbosacral subluxation, and on a diagram of a human body, he placed two crosses at what would appear to be the lower thoracic and upper lumbar regions of the plaintiff's lower back.
14 The plaintiff said that Dr Oorloff referred her to have an x-ray, which was taken on 1 June 2006. It has not been reproduced in the Court Book. He suggested that she have chiropractic treatment. She said that she attended twice a week until about 2008, and then reduced the treatment to about four times a month. The plaintiff continues to obtain treatment from Dr Oorloff.[6]
[6]JCB 16
15 The plaintiff continued to attend the Parkmore Medical Centre. She saw Dr Shuijers, general practitioner, at that medical Centre some time in March 2008. He referred the plaintiff to have a CT scan, which was taken on 17 March 2008. At that time, the plaintiff said that she was suffering from pain in her lower back, radiating into her left thigh. According to the radiologist, the CT scan demonstrated the following:
“An anterior spondylolisthesis of L5 on S1 with bilateral L5 pars defect. Broad based posterior disc bulge at L5/S1, minimally indents the thecal sac.
There is a broad based disc bulge at L4/5 which contacts the thecal sac.”[7]
[7]JCB 39
16 The plaintiff commenced seeing Dr Lee, general practitioner, from early 2007. It would appear that she saw Dr Lee while she was also seeing medical practitioners at the Parkmore Medical Centre. She experienced a worsening in her lower back pain in about July 2008. She saw Dr Lee. He referred her to Mr Drnda, neurosurgeon. In his letter of referral dated 10 July 2008, he described the plaintiff as suffering a relapse of chronic low-back pain which had troubled her for months, and that she described sciatic pain in her left leg. He enclosed the CT scan in the letter of referral.[8]
[8]JCB 26
17 The plaintiff saw Mr Drnda on 14 July 2008. He referred the plaintiff to have an MRI scan, which was taken on 23 July 2008. According to the radiologist, the MRI scan demonstrated the following:
“Moderate sized central disc extrusion and protrusion at L5/S1 ascending above the inferior endplate L5 in the midline posteriorly. No neuro-compression results however.”[9]
[9]JCB 40
18 Mr Drnda saw the plaintiff again. He referred to seeing her for the first time on 19 August 2008 which is obviously incorrect. I assume he meant that he had seen the plaintiff on 14 July 2008, and again on 19 August 2008 to discuss the MRI scan. He saw her for review on 26 October 2009 and then for medico‑legal purposes on 28 February 2012.[10] In his report dated 12 November 2009, he described the injury suffered by the plaintiff as an L5-S1 disc protrusion with spondylolisthesis and arthropathy at L4-5. He repeated that diagnosis in his last report dated 29 March 2012, but on that occasion made a diagnosis that the plaintiff was suffering from a Chronic Pain Syndrome with chronic low-back pain. He did not consider that she could work full-time. He considered that she would need vocational training. He noted that her condition was being potentiated by depression.[11]
[10]JCB 29-32
[11]JCB 31-32
19 According to the plaintiff, Dr Lee sold his practice. The successors to his practice would not treat patients with transport accident claims. She continued seeing medical practitioners at the Parkmore Medical Centre. She then commenced seeing Dr Tang, general practitioner, at the Springvale South Medical Centre in about mid 2010. In her affidavit sworn 2 April 2012, the plaintiff said that she commenced seeing Dr Tang in early 2011,[12] however, his clinical notes demonstrate that she first saw him on 12 June 2010.[13] I assume that she continued seeing medical practitioners at the Parkmore Medical Centre until early 2011.
[12]JCB 17
[13]Exhibit B
20 Dr Tang was called to give evidence. Mr Meldrum cross-examined Dr Tang at length. The cross-examination had two themes: the first was that the clinical notes do not disclose attendances by the plaintiff consistent with someone with a persistent and painful lower back condition; the second was that the plaintiff was prescribed modest levels of medication for lower back pain, and that some of the prescriptions of painkillers were to treat other conditions, which I will refer to below.
21 An examination of the clinical notes demonstrates that the occasions when Dr Tang made a note of a complaint of a lower back problem, or the note implies a consultation relevant to a complaint of a lower back problem, were relatively infrequent: 12 June 2010; 21 March 2011; 13 May 2011; 14 November 2011; 22 November 2011; 2 February 2012; 21 March 2012 and 17 July 2012.
22 An examination the clinical notes also demonstrates that the plaintiff was suffering from gynaecological problems of real significance: 24 August 2010; 6 November 2010; 1 December 2010; 14 November 2011; 9 May 2012; 11 May 2012; 14 May 2012; 17 May 2012 and 23 May 2012. The consultations of 9 May 2012; 11 May 2012; 14 May 2012; 18 May 2012 and 23 May 2012 relate to the plaintiff's recent pregnancy.
23 Included in the clinical notes is a discharge summary of Southern Health which demonstrates that the plaintiff was admitted to a hospital on 29 January 2012 for severe abdominal pain. She was discharged on 30 January 2012.[14]
[14]Exhibit B
24 An examination of the clinical notes also demonstrates that the plaintiff developed a depressive disorder for which she sought treatment from Dr Tang on 21 March 2011. He prescribed her Lovan for treatment of depression at the dosage of 20 milligrams. The dosage of Lovan did not alter. Dr Tang described it as a low dosage. On 28 March 2011, he provided the plaintiff with a letter of referral to a psychologist at the plaintiff’s request.[15]
[15]Exhibit B
25 Whilst Mr Meldrum did not directly attack the credit of Dr Tang, he did expose some potentially unusual aspects of the way in which Dr Tang went about his treatment of the plaintiff. Firstly, that Dr Tang admitted that at no time had he undertaken an examination of the plaintiff’s spine.[16] Secondly, he admitted that the incidents, in the clinical notes, of complaints by the plaintiff of lower back pain are limited to those referred to above.
[16]Transcript 104. Relevant to Dr Tang’s evidence-in-chief at Transcript 103
26 The plaintiff entered and left the witness box walking with short steps, slowly, partially bent over and with all the appearances of being in significant pain. The whole time that the plaintiff sat and stood in the witness box she held herself in a manner consistent with someone experiencing a significant level of pain. At times she gave the impression that she was barely able to tolerate being in the witness box. Mr Meldrum asked Dr Tang whether he had observed something similar. It was during that part of the cross examination that Dr Tang described vivid observations of the plaintiff behaving in a manner consistent with her being in significant pain:
Q.“Given that you've not recorded on any occasion that she's got a limp, or she's unduly stiff, or she can't sit or she can't stand, it's unlikely that she presented on any occasion with any of those sorts of symptoms isn't it?---
A.Correct.”[17]
[17]Transcript 128
27 However, in answer to the next question, when Dr Tang was asked about the plaintiff's conduct entering the witness box, he said the following:
Q.“At any time that you've seen her, has she been walking – this is up to this period and before coming here to court – has she been walking with slow, short, laboured steps?---
A.Yes, she has from memory.
Q.When?---
A.I can't tell you, just vague recollection of occasionally she would be taking shorter steps complaining of back pain.
Q.What I'm describing is shorter steps, that is not striding out. Perhaps if I come across to where you are in order that I might demonstrate. Has she at any stage walked at a pace with about the steps of the size I am, where the heal barely gets past the toe and has moved this slowly in any of the time you've been treating her?---
A.Yes, she has.
Q .How often? Once, twice tops, three times?---
A.More than two, three times, less than 10.
Q.Why not record it?---
A.Because, every time I see her, she's in pain.
Q.‘Because every time I see her, she is in pain’. Where are your notes that say that's your observation?---
A.I don't have them, I'm telling you from recollection.
Q.It's a vague recollection at best, isn't it, whether this has occurred twice or three times or five times in the years you've treated her?---
A.It's a handful of times, that's all I can say.
Q.A handful?---
A.Yes.
Q.And beyond that, it's vague?---
A.Yes.
Q.Or even up till that stage it's vague?---
A.Yes.”[18]
[18]Transcript 128-129
28 Dr Tang also gave the following answers a little later during cross-examination:
Q.“I asked you only about her gait. When she would come for examinations with you, she would ordinarily be seated in the patient's chair?---
A.Sometimes seated, sometimes on the examination bed.
Q.Sometimes you'd ask her to be on the bed?---
A.Sometimes she's been in pain and she's walked in and got straight onto the bed.
Q.Oh, you can actually recall, although you made no note at all, that she's in such pain today, she lay down for the consultation. Is that what you're telling us?---
A.Yes.”[19]
[19]Transcript 129-130
29 Dr Tang gave the same evidence during evidence-in-chief, and at the commencement of the cross examination of him:
Q.“You have suggested most consultations have been for back pain?---
A.No, most – she had back pain most consultations, but some consultations were for, mainly for other things.”[20]
[20]Transcript 104
30 Whilst it is true that Dr Tang's clinical records are very brief and do not record each occasion when he observed the plaintiff to have apparently been in pain, or when he was told by her that she was in pain, I do not accept that the absence of such notations means that I should not accept his evidence. What is clear enough to me is that Dr Tang briefly recorded the purpose of the attendance and the treatment which he provided the plaintiff, but was not in the habit of recording any reports which the plaintiff made of ailments which were secondary to the specific purpose of the attendance.
31 I think it is unreasonable to expect a general practitioner to record reports of other ailments. That amounts to suggesting that that clinical notes should be minutes of each and every ailment reported by a patient irrespective of whether it is centrally relevant to the actual purpose for the attendance. Mr Meldrum did not suggest that Dr Tang was not telling the truth when he referred to receiving reports of pain and observing the plaintiff to apparently be in pain in his clinic.
32 It seems to me that what I can accept is that when the plaintiff first attended Dr Tang's clinic, she informed him that she had been involved in a transport accident and had suffered an injury to her lower back. He recorded her complaints of lower back pain on occasions, but was otherwise aware that it was a persistent problem for the plaintiff. In the end, I considered that Dr Tang gave his evidence in a straightforward and entirely believable manner. I accept that he did speak to the plaintiff on occasions when she told him that she was still suffering from lower back pain and that he did observe her to be apparently in pain when she was in his clinic.
33 A fair amount of time was expended in examining whether the plaintiff actually received prescriptions of medication, and in particular, Panadeine Forte, in the quantity she referred to in her affidavit sworn 2 April 2012. She said that she takes Panadeine Forte three times a week, Panadol Osteo tablets in the morning and the evening, and sometimes a further two during the day, or at night if she is not taking Panadeine Forte. She also takes Mobic and Voltaren (both anti-inflammatories) taking one or the other each day.[21] Mr Meldrum questioned the accuracy of the plaintiff's evidence. He challenged the plaintiff's account that she has been taking that medication in those quantities, and also made that challenge when he cross-examined Dr Tang.
[21]JCB 18
34 After Dr Tang completed his evidence he was asked to provide a schedule of the prescriptions he provided the plaintiff. He did so overnight. The schedule was included in Exhibit B. Mr Gorton submitted that an analysis of the schedule supported the evidence of the plaintiff. The relevant entries are as follows:
· 12 June 2010 – Panadeine Forte, 100 tablets with one repeat of 20 tablets[22] – 120 tablets.
[22]The evidence of Dr Tang was that the quantity of tablets in one prescription of Panadeine Forte is 20 tablets
· 22 July 2010 – Panadeine Forte, 100 tablets with one repeat of 20 tablets – 120 tablets.
· 6 November 2010 – Panadeine Forte, 60 tablets with one repeat of 20 tablets – 80 tablets.
· 13 May 2011 – Panadeine Forte, 20 tablets.
· 14 November 2011 – Panadeine Forte, 100 tablets.
· 17 July 2012 – Panadeine Forte, 60 tablets.
35 Between 12 June 2010 and 17 July 2012 (a period of about thirteen months), Dr Tang prescribed the plaintiff 500 Panadeine Forte tablets. In the period between 12 June and 22 July 2012 (a period of forty days), the plaintiff had 120 tablets, which is three per day. In the period between 22 July and 6 November 2010 (a period of 106 days), the plaintiff had 120 tablets, which is just over one per day. In the period between 6 November 2010 and 13 May 2011 (a period of 180 days), the plaintiff had 100 tablets, which is about one tablet every two days. In the period between 13 May and 14 November 2011 (a period of 185 days), the plaintiff had 20 tablets, which is about one every nine days. In the period between 14 November 2011 and 7 July 2012 (a period of 205 days), the plaintiff had 100 tablets, which is about one every two days.
36 In undertaking the exercise I have just referred to, I am not suggesting that the plaintiff consumed all of the tablets in between prescriptions, but I have undertaken that exercise merely to demonstrate how many tablets the plaintiff had for her use in between prescriptions.
37 Mr Gorton made the point that the plaintiff was not only using Panadeine Forte, she was also using Mobic, Voltaren and Panadol Osteo. She was prescribed those medications as follows:
· 24 June 2010 – Mobic, 30 tablets with three repeats of 30 tablets – 120 tablets.
· 22 July 2010 – Mobic, 30 tablets with three repeats of 30 tablets – 120 tablets.
· 22 July 2010 – Voltaren, 20 tablets.
· 29 September 2010 – Voltaren, 50 tablets with three repeats of 50 tablets – 200 tablets.
· 21 March 2011 – Voltaren, 50 tablets with three repeats of 50 tablets – 200 tablets.
· 21 March 2011 – Mobic, 30 tablets with three repeats of 30 tablets – 120 tablets.
· 28 March 2011 – Mobic, 30 tablets with three repeats of 30 tablets – 120 tablets.
· 14 November 2011 – Voltaren, 50 tablets with three repeats of 50 tablets – 200 tablets.
· 14 November 2011 - Panadol Osteo, two lots of 96 tablets, that is, 192 tablets with five repeats of 96 tablets – 672 tablets.
· 14 November 2011 – Mobic, 30 tablets with three repeats of 30 tablets – 120 tablets.
38 Between 24 June 2010 and 14 November 2010 (a period of about sixteen months), Dr Tang prescribed the plaintiff 1,892 tablets of the kinds just referred to. I do not intend to do the same exercise as I did with the Panadeine Forte by breaking down the prescriptions and the period in between prescriptions because I think that is unnecessary. What seems to me to come out of this analysis is that the prescriptions for Panadeine Forte decreased in volume from 6 November 2011, but the plaintiff was in receipt of prescriptions for significant volumes of Voltaren, Panadol Osteo and Mobic from November 2011, and indeed, 992 tablets of that kind.
39 I have been forced to make this analysis because of two aspects of the cross-examination conducted by Mr Meldrum of the plaintiff and Dr Tang. Mr Meldrum submitted that the plaintiff's lower back injury was not the only reason why she was prescribed Panadeine Forte, and in that respect, he is correct, because on a fair reading of the clinical notes, the plaintiff was prescribed Panadeine Forte when she suffered from gynaecological problems specifically to treat the pain produced by those problems. However, I think all I can draw from the analysis of the medication prescribed to the plaintiff is that she was in receipt of prescriptions for painkilling medication and anti-inflammatory medication in significant volume from about June 2010 to July 2012.
40 The volume of the medication seems to me to be consistent with the plaintiff's evidence that she was in receipt of prescriptions for painkillers and anti-inflammatory medication which she took at the intervals described in her affidavit sworn 2 April 2012. She may not have been taking Panadeine Forte primarily for her lower back injury at times, but the only evidence before me is that the Mobic, Voltaren and Panadeine Osteo were taken by her to treat lower back pain only.
41 The entry in Dr Tang’s clinical notes for 21 March 2012 refers to a letter of referral being prepared for the plaintiff to see Dr Clayton Thomas, consultant in rehabilitation and pain medicine. Dr Thomas saw the plaintiff on 18 June 2012. On examination, he noted that the plaintiff had fairly diffuse pain in her lower back. Her spinal movements were grossly limited. There was no neurological deficit in her legs. He said he examined MRI scans of 2008 and 2011.[23] His impression was that the plaintiff was suffering from non-specific lower back pain. He was aware that the plaintiff was pregnant. He did not consider that in her “current situation”, which I infer is a reference to her state of pregnancy, rehabilitation or interventional procedures would be appropriate.[24]
[23]The only radiology produced by the parties in the Joint Court Book is the radiology I have referred to in the body of these reasons. There is no second MRI scan
[24]Exhibit B
42 The plaintiff has had psychological counselling provided by Mr Catanese, psychologist, in 2008. He treated her over six sessions.[25] She was later given psychological counselling by Ms Ahmet, psychologist, commencing on 7 February 2012.[26] Mr Catanese provided a very short report dated 15 December 2008, in which he diagnosed that the plaintiff was suffering from moderate anxiety relating to a Post-Traumatic Stress Disorder which he associated with the transport accident. Ms Ahmet, in a lengthy report dated 23 August 2012, described the plaintiff’s symptoms in detail, diagnosing that the plaintiff was suffering from extremely severe symptoms of anxiety, depression, post-traumatic stress and chronic pain.
[25]JCB 32(a)
[26]JCB 38(c)- 38(i)
The Plaintiff's Credit
43 In addition to the attacks on the plaintiff's credit regarding the occasions when she saw Dr Tang and the prescription medication and what it was for, Mr Meldrum attacked the plaintiff's credit through two diaries which the plaintiff kept.
44 Before specifically dealing with the basis of that attack, it is relevant to set out some background information. The plaintiff's first marriage was stormy and at times violent. She is now separated from her first husband. The stormy nature of their relationship has not ceased. It was my impression that there is a struggle over parenting of their son. The plaintiff has retained solicitors to represent her. She was advised by the solicitors to keep a diary of events which might become relevant to litigation in the Family Court.
45 The diaries reveal entries made by the plaintiff about the state of her lower back injury. The entries of that kind were only occasional.[27] Particular entries seized upon by Mr Meldrum during his cross-examination of the plaintiff are entries on 23 January, 16 March and 23 June 2012 made by the plaintiff of more severe pain. It was put to the plaintiff that she only made entries concerning pain in her lower back when it was severe, and that the few entries to which he was referred were the only occasions when she had suffered severe pain. The plaintiff denied that she made those entries on that basis, and that the entries she was referred to were not a demonstration of the pattern of the occurrence of more severe lower back pain.[28]
[27]The cross-examination regarding the plaintiff's diaries is at Transcript 64-74 and 85-95
[28]Transcript 94-95
46 There were many other entries in the diaries to which the plaintiff was referred. Some were relevant only to her son, and others relating to visits to her current medical practice and psychologist. On my reading of the transcript of the plaintiff's evidence regarding the diaries, it seemed to me that the dominant purpose of the diaries was to record events which were relevant to the parenting dispute, but intermittently there were references to other things such as the plaintiff's son; visits to treating practitioners; references to the range of medical problems which the plaintiff has suffered, and to a much lesser extent, references to her lower back injury. I am not convinced that I can really take much from the diaries in the context of them being used as an attack upon the plaintiff’s credit.
Other Medical Evidence
47 Professor Davis, neurologist, examined the plaintiff in November 2008. He was provided with a report of Mr Drnda and the first MRI scan. He obtained a history from the plaintiff of pain in her lower back with associated stiffness and some radiation of pain of a variable degree in her left buttock and both anterior and posterior aspects of the left side to her knee. He was of the opinion that the plaintiff had anatomical abnormalities in her lumbosacral spine which were rendered symptomatic by the jolting injury produced by the transport accident. He did not discount that the plaintiff may have suffered some disc damage at L5-S1. He considered that there were no objective neurological findings which he could make. He considered that she had a Chronic Pain Syndrome with some radiculopathy clinically, but no objective signs of radiculopathy or neural compression on the MRI scan.
48 Mr Flanc, vascular and general surgeon, examined the plaintiff on 10 November 2008, 14 October 2009, 24 June 2011 and 13 June 2012. Mr Flanc was provided with the radiology and a number of other medical reports on the last occasion on which he examined the plaintiff. He was of the opinion that the plaintiff had suffered a very significant aggravation of pre-existing degenerative changes in the L5-S1 intervertebral disc. He added that the severity of her lower back pain was enhanced by a Chronic Pain Syndrome associated with a psychiatric issue. However, he was of the opinion that despite the presence of the psychiatric issue, there was a significant underlying physical condition related to the aggravation of pre-existing degenerative changes which were related to the transport accident.[29]
[29]JCB 43-68, and in particular at 66
49 Mr Hunt, orthopaedic surgeon, examined the plaintiff on 1 August 2011. He provided a report dated 1 August 2011 and a second report dated 29 March 2012. Mr Hunt had available further radiology, namely, an MRI scan taken on 19 September 2011, and an x-ray and CT scan taken on 6 December 2011. In his second report, he considered all of the radiology and considered that the radiology confirmed pathology at L5-S1 which he believed to be the ongoing cause of her symptoms. He diagnosed a symptomatic lumbar spondylosis with L5-S1 spondylolisthesis with a superimposed central disc prolapse at the lumbosacral junction with bilateral lower limb pain symptoms.[30]
[30]JCB 99-100
50 Mr O'Brien, orthopaedic surgeon, examined the plaintiff for the defendant on 14 July 2010 and 23 July 2012. He obtained a history from the plaintiff that she suffers severe pain. On formal examination, she was unable to move her thoracolumbar spine. He observed what he described as a demonstration of significant variability in her movements when a comparison was made between her behaviour on formal examination and when she was unconscious of being observed. He concluded that the plaintiff had a well-established Chronic Pain Disorder, suggesting a poor prognosis, that she is probably reasonably active, and to an extent he relied upon the history she gave that she is now married and pregnant, and he did not believe that she was significantly restricted in her general, social, domestic and recreational activities.[31]
[31]JCB 167-168
51 It is abundantly clear that Mr O'Brien's opinion is in the most dramatic and stark contrast to the opinions of Dr Tang, Mr Flanc and Mr Hunt. Mr O'Brien did not have the benefit of the further radiology which Mr Hunt had.
52 The plaintiff was examined by Dr Nathar, psychiatrist, on 9 December 2008 and 26 April 2012. On the second occasion he examined the plaintiff, he had a significant quantity of medical reports, radiology and other material, but not the reports of Mr O'Brien. He was of the opinion that the plaintiff had suffered a chronic Post-Traumatic Stress Disorder with phobic anxiety, a Chronic Pain Disorder and a Chronic Adjustment Disorder with Anxious and Depressed Mood. He considered that the psychiatric problems would remain moderately severe. He considered that she would benefit from taking anti-depressant medication again. The last prescription for Lovan was on 14 November 2011 when the plaintiff was provided with 28 tablets and five repeats of 28 tablets.[32]
[32]Exhibit B
53 Dr Ingram, psychiatrist, examined the plaintiff for the defendant on 16 June 2010. He was provided with a report of Mr Drnda and the first report of Dr Nathar. On the history he obtained from the plaintiff, he was of the opinion that she was suffering mainly from a Chronic Adjustment Disorder with Depressed Mood. He considered her phobic symptoms relevant to driving were residual symptoms of a Post-Traumatic Stress Disorder.[33]
[33]JCB 157-158
The Films
54 The first film shown to the plaintiff was taken on 15 and 16 December 2011. The film taken on 15 December 2011 commenced at about 9.00 am. It showed the plaintiff entering a car fluidly and without any apparent restriction. She drove to her child's school. She got out of the vehicle fluidly and without any apparent restriction. She walked at a slow pace into what appeared to be her child's school. The film taken on 16 December 2011 was of no consequence. It lasted a matter of seconds.
55 The second films were in contrast to the first films. They were taken on 24 and 25 January 2012. The plaintiff appeared to be walking in and around a garden area, and around her car at about 8.09 am. She appeared to walk at a slower pace. At about 8.11am, she was beside her car. She appeared to bend into the open door, opening in a guarded manner. She picked up what appeared to be a handbag. Her movements were not as fluid and appeared to be somewhat restricted when compared with the earlier films.
56 Mr Meldrum cross-examined the plaintiff about whether she was aware that she was being filmed on 24 and 25 January 2012. She denied that she was aware of being filmed. No evidence was adduced by the defendant to suggest that the investigator who took the film had a basis for belief that the plaintiff was aware of his/her presence with a camera.[34]
[34]Transcript 58-59
57 When cross-examined about her movements in the first films, the plaintiff described how she appeared on 15 December 2011. She was specifically asked whether she had many days when she was able to move as freely as she was seen moving in that film. She said that she is able to move that freely when she has good days.[35]
[35]Transcript 58-59
Findings
58 Both Mr Meldrum and Mr Gorton made extensive, detailed and helpful submissions on the evidence. I have considered their submissions. I do not intend to set out each and every one of them, but rather to go to those which I consider warrant particular attention because they figure prominently in my consideration of this application.
59 Firstly, I find that the plaintiff was a rear seat passenger in a car when it was involved in a major transport accident. It was as a consequence of the transport accident that she suffered an injury to her lower back.
60 Secondly, whilst there might be some disparity in the plaintiff's evidence regarding when she obtained medical treatment following the occurrence of the transport accident, I do not consider that to be at all material to the matters I need to consider. The plaintiff attended Dr Loh on 30 May 2006 for treatment for injuries she suffered as a result of the transport accident, with the first level of treatment for the lower back provided by Dr Oorloff on 31 May 2006. Thereafter, there seems to be a fairly consistent pattern of complaints by the plaintiff of pain in her lower back, and treatment specifically directed to it.
61 Thirdly, after Dr Shuijers referred the plaintiff to have a CT scan on 17 March 2008, it became apparent that the plaintiff had three abnormalities in her lower back: an anterior spondylolisthesis of L5 on S1; a disc abnormality at L5-S1, and a further disc abnormality at L4-5. The subsequent MRI scans and x‑rays, and the examinations by Mr Drnda, Mr Flanc and Mr Hunt confirm those abnormalities, and in particular, that the disc abnormality at L5-S1 was the principal injury suffered by the plaintiff as a result of the transport accident, and the cause of her ongoing symptoms.
62 Fourthly, I accept the evidence of Dr Tang that it was his impression throughout the time he treated the plaintiff that she had an actively symptomatic lower back. I also accept his evidence that he did observe the plaintiff with an unusual posture and gait on occasions, and that he had observed her to lie on the examination bed while waiting to see him, and on occasions had entered his consulting room and then laid down on the examination bed. I accept that it was his practice to only note the specific substance of the reason for the consultation.
63 Fifthly, the referral to Dr Thomas occurred in circumstances where, I infer, that Dr Tang was concerned enough regarding the plaintiff's ongoing complaints of lower back pain to obtain the opinion of a consultant in rehabilitation medicine. Dr Thomas saw the plaintiff on 18 June 2012. The clinical notes do not suggest that there was some event around that time which triggered the referral, but rather it would appear to be Dr Tang's interest in treating an ongoing problem endured by the plaintiff.
64 Sixthly, the plaintiff was in receipt of prescriptions for a large volume of painkilling and anti-inflammatory medication. There is no evidence to suggest that the plaintiff did not fill out the prescriptions and take all of the medication up in between prescriptions. The volume of medication is confirmatory of the plaintiff’s need for medication to treat persisting pain.
65 Seventhly, it is clear that the plaintiff had a gynaecological problem which required a significant number of attendances on Dr Tang, and his colleagues, and was the cause of pain which was treated by the prescription of medication, such as Panadeine Forte. However, I am not persuaded that it was the major medical condition troubling the plaintiff, but rather it required immediate attention and, to some extent, made the treatment of the plaintiff's lower back injury secondary at various times and to varying degrees.
66 Eighthly, the first two days of film do show the plaintiff moving fluidly, but that is in contrast with the third and fourth days of film which showed the plaintiff moving, but with some degree of restriction. The difficulty with film shown to a judge, when it has not been shown to any medical practitioners, is that I am to undertake something akin to a clinical assessment of the plaintiff. There are certainly occasions when film shows unrestricted movement in dramatic conflict to a plaintiff's evidence, but I am not convinced that this is one of those occasions. I accept the plaintiff's evidence that she was unaware of being observed when the third and fourth days of film were taken. I think the only logical way I can resolve what I have seen in the films is that the plaintiff has a capacity to move fluidly, but is also restricted in her movements as well. In the end, I am not persuaded that the films upset the credit of the plaintiff.
67 Ninthly, the plaintiff's behaviour in Court, and in particular, in the witness box, was of a person who walked slowly with short steps and partially bent over as she made her way to and from the witness box. She sat sometimes on the edge of the chair in the witness box and grimaced often as if in significant pain. I was not sure whether the plaintiff was over dramatising the pain she tends to experience, and until the evidence of Dr Tang was given, that he had observed similar behaviour on the part of the plaintiff in a clinical setting, I was inclined to be less accepting of the plaintiff's behaviour in Court as being produced by the pain that she was experiencing. The plaintiff's behaviour in Court needs to be put into the context of all of the evidence. The evidence points to her having suffered, among other things, a discal injury which is confirmed by radiology and the opinions of a number of eminent specialists.
68 Tenthly, I prefer the evidence of Dr Tang, Mr Drnda, Mr Flanc and Mr Hunt to the evidence of Mr O'Brien. The former medical practitioners were able to assess the plaintiff without much difficulty. It is perplexing when an eminent specialist arrives at an opinion, as did Mr O'Brien, when other eminent specialists, for example Mr Flanc and Mr Hunt, were able to determine the pathology which they considered was the cause of the plaintiff's complaints of pain and disablement. They each examined the plaintiff in 2012. Added to the opinions of Mr Flanc and Mr Hunt are the opinions of Dr Tang, Professor Davis and Mr Drnda which are supportive of the conclusion that the plaintiff has pathology which they also considered, to varying degrees, to be the cause of the plaintiff's complaints of pain and disablement. In the end, I am not persuaded that I should prefer the opinion of Mr O'Brien.
Conclusions
69 I have paid due regard to the evidence, and in particular, to the helpful submissions made by Mr Meldrum and Mr Gorton. The submissions focused on the major issues which fall for my consideration.
70 I am satisfied that the plaintiff has suffered a serious long-term impairment of the function of her lower back.
71 I am satisfied, based upon my analysis of the evidence and the submissions of Mr Meldrum and Mr Gorton, that the plaintiff has suffered the three abnormalities demonstrated in the first CT scan which were commented upon by Dr Tang, Mr Drnda, Mr Flanc and Mr Hunt. On balance, I prefer the opinions of Mr Drnda and Mr Hunt that the confirmed pathology at L5-S1 is the likely cause of the plaintiff's persistent symptoms.
72 I accept the evidence of Dr Tang, that he was in receipt of persistent complaints by the plaintiff of pain in her lower back, these complaints are corroborated by the large volume of medication which he prescribed for the plaintiff’s use and his later referral of the plaintiff to Dr Thomas for an opinion on rehabilitation.
73 I consider the foregoing to be persuasive of the plaintiff's case in the face of the well structured attack undertaken by Mr Meldrum on the plaintiff's credit. I simply refer to my analysis of the credit issues, rather than repeat them here.
74 The consequences to the plaintiff are made plain in her affidavits and in her oral evidence. She has pathology which explains the nature and extent of her symptoms. She has persistent pain. She is now limited in her capacity to engage in physical activities which involve placing stress and strain on her lower back. That inevitably impacts upon her capacity to engage in social, domestic and recreational pursuits, as well as vocational pursuits. Although the plaintiff's venture into the world of hairdressing was short, it was a vocation which she hoped to pursue. I think that a lower back injury of the kind suffered by the plaintiff will inevitably impact upon her capacity to stand for long periods of time and to adopt the sorts of postures which hairdressers must in order to attend to the needs of clients.
75 The plaintiff has suffered a significant secondary psychiatric problem. It is prohibited to combine impairments, but it is legitimate to treat the development of a secondary psychiatric disorder as a consequence, but limited in the manner it may be used by what was said in Richards v Wylie[36] and Transport Accident Commission v Kamel.[37] It is clear from the fact that the plaintiff was prescribed Lovan that she developed an ensuing psychological disorder. It is also clear from the opinions of Dr Nathar and Dr Ingram that the plaintiff has suffered secondary psychiatric problems directly related to the transport accident and the occurrence of the lower back injury.
[36](2000) 1 VR 79 at 86-88
[37][2010] VCC 314 (5 May 2010) at paragraphs 61-65, and in particular at paragraphs 80-82
76 In the circumstances, I find that the consequences to the plaintiff of the impairment of the function of her lower back easily meet the statutory test of seriousness.
Orders
77 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law.
78 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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