Ameti v Transport Accident Commission
[2016] VCC 752
•7 June 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-02677
| MINA AMETI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 May 2016 | |
DATE OF JUDGMENT: | 7 June 2016 | |
CASE MAY BE CITED AS: | Ameti v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 752 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Injury to the neck – transport accident – struck from behind – neck pain – headaches – s93 (4) (d) – serious injury – difficulties with sleep – back pain – depression.
Legislation Cited: Transport Accident Act 1986 (Vic); Evidence Act2008 (Vic)
Cases Cited:Barlow v Hollis [2008] VSCA 26; Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317; Philippiadis v Transport Accident Commission [2016] VSCA 1; Mazevska v Transport Accident Commission [2014] VSCA 178; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timber (No 2) [2008] VSCA 260; Richards v Wylie (2000) 1 VR 79; Stijepic v One Force Group Australia Pty Ltd & Anor [2009] VSCA 181
Judgment: Application refused
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram Ms M Pilipasidis | Shine Lawyers Pty Ltd |
| For the Defendant | Mr P Elliot QC Ms D Manova | Solicitor to the Transport Accident Commission |
HER HONOUR:
Preliminary
1 This is an application for leave to bring proceedings pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”).
2The plaintiff alleges she suffered injury to her neck in a transport accident which occurred on 4 December 2011. Her car was stationary, waiting to make a right hand turn, when she was struck from behind. The collision caused her car to spin a number of times, and she struck her head on the steering wheel (“the accident”). She claims to have suffered neck pain and headaches since that time.
3Mr A Ingram appeared with Ms M Pilipasidis for the plaintiff and Mr P Elliot QC appeared with Ms D Manova for the defendant.
4The plaintiff claims she suffered a neck injury in the transport accident, and the body function said to be lost or impaired is the functioning of the cervical spine. The application is brought pursuant to sub-section (a) of the definition of “serious injury” contained in s93(17) of the Act.
5Only the plaintiff was called to give evidence and she was cross-examined. In addition, numerous medical reports and other documents were tendered. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this Judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions referred to in this Judgment.[1]
[1]See Barlow v Hollis [2000] VSCA 26 per Chernov J at [14]-[16], and the “pathway of reasoning” per Ashley JA in Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 at [38]
6 The plaintiff has the burden of proving the impairment of her cervical spine is both serious and long-term. The test for serious injury is subjective, in that it is the effect on the individual plaintiff that must be considered. However, that determination must be made by me objectively, in considering the seriousness of the impairment. [2]
[2]Philippiadis v Transport Accident Commission [2016] VSCA 1
Background
7 The plaintiff is 48 years of age and lives with an adult child and her former husband, whom she refers to as her husband (“her husband”). She migrated to Australia in 1985. She has three adult children and two grandchildren.
8 Following her arrival in Australia, the plaintiff worked initially for a milk-powder company and then later for Ingham’s Chickens (“Ingham’s”). Whilst at Ingham’s, she suffered a workplace injury to her lower back.
9 The plaintiff has not worked as an employee since finishing with Ingham’s in about 1987, when she gave birth to her second child.
10 The plaintiff was involved in a motor vehicle accident in November 2005. The accident occurred at the same intersection as where she was subsequently injured in this accident. At that time, she suffered an increase in lower back pain, as well as some neck pain and headaches.
11 The plaintiff had longstanding health issues prior to the accident the subject of this claim, including:
· Lower back pain since at least 2003. She regularly attended her general practitioner, Dr Demirtzoglou, about her back pain from 2003 until January 2008. She complained of referred symptoms into her legs, including numbness. She related this back pain to the heavy lifting she did at Ingham’s.
· Depression since at least 2004. At that time she was separated from her husband. There is a record from Dandenong Hospital in February 2004 that she had taken a drug overdose, following a fight with her ex-husband, in the context of worsening depression. There were subsequent attendances upon Dr Demirtzoglou for depression from July 2004 to June 2007.
· Some difficulties with sleep, related to back pain and emotional problems.
· Right knee pain in 2010.
· Problems with weight gain.[3]
[3]Plaintiff’s Court Book (“PCB”) 4
12 Relevant to this claim, the plaintiff also complained of headaches on numerous occasions from 2001 until August 2008. Over that period she was, at times, prescribed medication including Panadeine Forte and Endone. In August 2008, Dr Demirtzoglou arranged a CT scan of the cervical spine to investigate her headaches and it was reported as normal.[4]
[4]Exhibit 3 – clinical records of the Dandenong Medical Centre
13 The plaintiff also complained of some neck pain following the 2005 accident. However, she said this improved soon after, and the notes of Dr Demirtzoglou indicate there was no complaint of neck pain beyond the initial attendance in November 2005.
The injury and its consequences
14 The transport accident occurred on 4 December 2011 at approximately 7.00am. The plaintiff was driving to her husband’s flower business, to help cover for him that day. Her car was stationary in Sydney Road, Coburg, waiting to make a right-hand turn into Suvla Grove, when it was hit from behind. The impact caused the plaintiff’s car to spin around, and she hit her head on the steering wheel.
15 The plaintiff complains that she felt immediate pain following the transport accident.
16 The plaintiff’s husband then took her to Dandenong Hospital, and she was discharged a few hours later.
17 On 5 December 2011, the plaintiff attended upon her general practitioner, Dr Demirtzoglou, at the Dandenong Medical Centre. His notes record that she had a left frontal head bruise, neck pains and upper shoulder pains.[5]
[5]PCB 16
18 She re-attended upon Dr Demirtzoglou on 7 December 2011, complaining of right neck pain and right-sided headaches. At that stage, he arranged a CT scan of her neck and head. This was performed on 7 December 2011 and was reported as normal.[6]
[6]PCB 16
19 The plaintiff continued to attend upon Dr Demirtzoglou regarding neck pain, pain radiating into her arms and hands, together with leg pain, headaches, stress and insomnia. Dr Demirtzoglou prescribed Topamax for her headaches.
20 She was then referred to neurologist, Dr Punchihewa, whom she consulted on 15 May 2012.[7] She complained to him of hand and leg paraesthesia, together with headaches. Dr Punchihewa felt that her symptoms were musculoskeletal, and he organised an MRI scan and nerve studies. He also prescribed Amitriptyline for her headaches.
[7]PCB 17
21 The plaintiff then re-attended on Dr Punchihewa on 16 October 2012, at which time she was advised that the MRI scan of her head was normal, but that the MRI of her neck showed a C6‑7 paracentral protrusion, with possible irritation of the C7 nerve.[8]
[8]PCB 17
22 The plaintiff saw Dr Punchihewa again on 19 February 2013, regarding her chronic headaches. She was prescribed Topamax.
23 In approximately late 2013 and early 2014, the plaintiff travelled overseas to visit her mother and other relatives in Macedonia. She was away for approximately four months.[9]
[9]Transcript (“T”) 45, Line(s) (“L”) 21
24 When she returned from overseas, she again attended upon Dr Demirtzoglou regarding ongoing neck pain. A CT scan was performed on 29 April 2014, and it was reported as consistent with the previous MRI scan.[10]
[10]PCB 17
25 The plaintiff also complained to Dr Demirtzoglou regarding depression, as she felt she did not want to leave the house and was getting angry easily.[11] He prescribed her some short-term relaxants and an anti-depressant which she took over a period of time, with no major improvement in her psychiatric state.
[11]Exhibit 3
26 In October 2015, Dr Demirtzoglou referred the plaintiff to another neurologist, Dr Seneviratne, whom she consulted on 27 October 2015. Dr Seneviratne considered that the plaintiff was suffering cervicogenic headaches and cervical radiculopathy.[12] Dr Seneviratne recommended an injection into the cervical spine. The plaintiff was concerned about the risks associated with that procedure, and elected not to undergo it. Instead, she elected to trial Lyrica, which Dr Seneviratne had also recommended. Unfortunately, she felt it made her dizzy, and so a reduced dose was trialled. Dr Seneviratne did not review the plaintiff again.
[12]PCB 21
27 Dr Demirtzoglou arranged a further MRI scan of the cervical spine, on 24 February 2016. It demonstrated minor cervical disc degeneration, with no evidence of neural compression, fracture, or dislocation.[13]
[13]PCB 19
28 The plaintiff continues to see Dr Demirtzoglou regularly. He is of the opinion that her injuries have stabilised, she will require ongoing pain relief, and that her injuries affect her capacity to look for employment.[14]
[14]PCB 18
Medico-legal evidence
29 The plaintiff’s solicitors arranged for her to be examined by general surgeon, Mr Peter Mangos. In December 2012, Mr Mangos took a history that other than restless legs syndrome, and problems with her weight, the plaintiff had been in good health prior to the accident. He did not obtain a history of the prior lower back pain, nor of the 2005 accident and her experience of neck pain at that time.[15]
[15]PCB 45
30 Mr Ingram tendered the letter of instruction from the plaintiff’s solicitor to Mr Mangos, which included the clinical notes of Dr Demirtzoglou.[16] The plaintiff’s prior medical history was detailed in those clinical notes, and it is clear to me from Mr Mangos’ report that he did not read those records. In cross-examination, the plaintiff could not recall what history she gave him. Given the failure by Mr Mangos to record any prior history of relevance, I consider it probable that the plaintiff did not tell him about her prior lower back pain, the 2005 accident, or her prior neck pain and headaches.
[16]Exhibit c – letter of instruction from Plaintiff solicitors to Mr Mangos dated 3 October 2012
31 Mr Mangos’ examination revealed restriction of movement in her cervical spine, but no evidence of radiculopathy.[17] He considered that she suffered soft tissue injuries of her neck and back, and persistent occipital headaches.
[17]PCB 46-47
32 In April 2016, Mr Mangos re-examined the plaintiff and concluded that her condition had altered little since he last saw her in 2012.[18] He noted that a C7 nerve root injection had been recommended to the plaintiff, but he considered it would be unlikely to substantially improve her condition. He considered she suffered chronic and severe pain.
[18]PCB 54
33 The plaintiff’s solicitors also arranged for her to be examined by neurosurgeon, Mr David Brownbill, in April 2016. He obtained a history that she had been involved in a motor car accident several years ago, but did not sustain any ongoing injuries. He noted that she had otherwise been well, without any accidents, illnesses injuries or operations. He further noted that there had not been any past neck injury or pain, and that she had not received any medical treatment for her neck.
34 When asked about this in cross-examination, the plaintiff agreed that this history was not correct.[19]
[19]T15, L13-27
35 The letter of instruction to Mr Brownbill was also tendered, and it showed that Mr Brownbill had been provided with extensive medical reports, including the history of prior lower back pain, neck pain and headaches.[20] This was not detailed in his report.
[20]Exhibit B
36 Mr Brownbill reviewed the radiology, including the MRI scan of February 2016. On examination, Mr Brownbill found restriction in the cervical spine, but no signs of radiculopathy. He was of the opinion that in circumstances where there had been no ongoing neck pain before the accident, and in which there had been the onset and continuation of pain following the accident, that the accident had caused intervertebral disc derangement, possibly on pre-existing asymptomatic degenerative change. He considered her headaches were probably cervicogenic in nature, following the injury to the cervical spine.
37 The defendant’s solicitors arranged for the plaintiff to be examined by orthopaedic surgeon, Mr Gerard Powell, in May 2016. He noted that the plaintiff suffered left-sided neck pain with referral of the pain into the left arm but without radiculopathy.[21] He noted she suffered headaches on a daily basis. He further noted that she had an exacerbation of her lower back pain. He was of the opinion that her lower back injury had resolved to its pre-accident state, but it was possible the accident caused some acceleration of the degeneration in her cervical spine, and such aggravation has not resolved.[22]
[21]PCB 19
[22]PCB 21
38 In addition to the medico-legal opinions as to the plaintiff’s physical injury, the plaintiff and defendant also relied upon medico-legal psychiatric opinions. The plaintiff tendered three medical reports from consultant psychiatrist, Dr Albert Kaplan, following examinations in December 2012, May 2013 and February 2016. In his most recent report, Dr Kaplan characterised the plaintiff as suffering from adjustment disorder with mixed anxiety and depressed mood.[23] He was of the opinion that the plaintiff requires psychotherapy treatment.[24]
[23]PCB 42
[24]PCB 43, 34
39 The defendant tendered a medical report from consulting psychiatrist, Dr Timothy Entwisle. He examined the plaintiff in December 2014, and was of the opinion the plaintiff was suffering from adjustment disorder with depressed mood.[25]
[25]Defendant’s Court Book (“DCB”) 30
Credibility
40 The plaintiff’s credit was directly in issue in this case. Mr Elliot described the plaintiff as non-responsive and evasive. Mr Ingram sought to excuse her evidence on the basis that English was her second language, and that she did not properly understand what was put to her.
41 The plaintiff was born in Macedonia, and is Albanian. When she first came to Australia she spoke no English. She has learnt it over the years. In her first affidavit, which was sworn with the assistance of an interpreter, she said that her English speaking skills were good, and that her reading and writing skills were fair to poor.
42 Her second affidavit was sworn on 4 May 2016, without the assistance of an interpreter. That affidavit was witnessed by her solicitor. At the commencement of the hearing, Mr Ingram indicated that he had conferred with the plaintiff that morning. He said that she could understand English, provided it was spoken slowly, and that she did not require an interpreter to give evidence. The plaintiff was cross-examined for just under two hours. It was only during re-examination that Mr Ingram expressed his concern as to the plaintiff’s capacity to understand what she was being asked.
43 The plaintiff said that she could not read English, and that she did not have her glasses with her in court. This made it hard for her to look at those extracts of the medical records which Mr Elliot referred her. Mr Elliot therefore read the extracts to her, often on more than one occasion.
44 Mr Elliot was often required to restate or reformulate a question. For example, when the plaintiff did not understand a reference to the word “occupation” in the TAC claim form, Mr Elliot explained that it meant “job”.[26]
[26]T21, L14-22
45 In cross-examination, when asked by Mr Elliot about the contents of numerous medical records and histories, the plaintiff frequently replied “I do not remember”. In re-examination, she said she believed Mr Elliot was asking her about the specific dates, rather than the substance of the medical record. While that may explain her answer to an occasional question, it does not overcome her repeated refusal to acknowledge matters that I consider she would reasonably be expected to remember. Examples of this are as follows:
(i) The plaintiff was asked about taking an overdose of medication, resulting in attendance at Dandenong Hospital in February 2004. She said that she could not remember this incident. She later said she did not like to think about this period of her life, but still did not acknowledge this incident.[27]
[27]T29, L31, T30, L1-18, 64, L4-8
(ii) The plaintiff was asked about doing computer work, or a computer course whilst on Centrelink. This was noted in Dr Demirtzoglou’s clinical note of 23 March 2006. The plaintiff acknowledged that she was on Centrelink, but when asked several times about the computer work, she said she could not remember it.[28]
[28]T37, L1-12
(iii) The plaintiff was asked about complaining to Dr Demirtzoglou about long-standing back pain, and said she could not remember. This was noted in several entries in Dr Demirtzoglou’s records. Mr Elliot asked the plaintiff about this several times. Mr Elliot’s questions as to this issue made no reference to the to the specific date, but whether or not she could recall complaining about it generally. An extract of the evidence that supports my statement in this regard is as follows:
“It says ‘Persisting back pain five years at least.’ You had pain on standing and sitting for long periods. Five years at least of back pain. Do you see that? Can you remember having five years of back pain up to 2004?‑‑‑Not really. I can't remember nothing.
You can't remember having five years of back pain?‑‑‑No.”[29]
(iv) The plaintiff was asked about being referred to specialist, Mr Hooper, in April 2004, regarding her lower back pain. She said she could not remember this.[30] A report from Mr Hooper detailing his attendance on the plaintiff on 8 April 2004 was tendered.[31]
[29]T35, L12-17
[30]T35, L9-11
[31]Exhibit 2
46 I consider these to be examples of the plaintiff being a non-responsive witness. I do not accept it was a result of an inadequate understanding of English. I am satisfied that the plaintiff understood the questions being asked of her, and the answers that she provided.
47 The plaintiff’s evidence in relation to the extent of the work she claimed to do in her husband’s flower business was also inconsistent, and varied greatly.
48 In the plaintiff’s first affidavit she said “I usually spent a day or two a week …”[32]
[32]PCB 2
49 In re-examination, the plaintiff said she worked there three to four days a week, for eight hours a day.[33]
[33]T52, L3-4
50 Mr Mangos recorded that the plaintiff worked there from time-to-time, but that she was ordinarily at home.[34]
[34]PCB 45
51 Dr Brownbill noted that the plaintiff worked in the florist, but not how often.[35]
[35]PCB 56
52 Dr Kaplan recorded that the plaintiff filled in for her husband at times.[36]
[36]PCB 27, 29
53 Mr Powell noted that the plaintiff had been out the workforce for over 25 years.[37]
[37]DCB 20
54 Dr Entwistle recorded that the plaintiff helped in the business on occasions.[38]
[38]DCB 29
55 In the TAC claim form, the plaintiff answered that she was not gainfully employed.[39]
[39]DCB 7
56 The plaintiff was cross-examined extensively on the completion of this claim form. It had both typed and hand-written answers. She said the handwriting was not hers, save for the signature on the back page of the form. She said that the form was witnessed by her sister-in-law.[40] In re-examination, she said that the questions in the form were read to her by a solicitor, but she could not say when.[41]
[40]T22, L12
[41]T49, L10-14
57 The handwritten answers included details of her bank account, and her prior neck injury and the treatment she received for it. The question about her employment situation, had a hand marking indicating she was not gainfully employed.
58 I am satisfied that the plaintiff understood what was asked of her in the claim form, and that she provided the answers which it contained. I cannot reconcile her written answer that she was not gainfully employed, with her viva voce evidence that she worked up to four days a week, eight hours a day in her husband’s business.
59 I accept that she was driving to the business at the time of the accident. She told Dr Kaplan she was filling in for her husband, as he was unwell.[42] That is more consistent with the work being occasional, than the near full-time employment, of up to 32 hours a week, as she claimed in re-examination.
[42]PCB 27
60 There was no affidavit from her husband detailing her involvement, if any, in the business.
61 There were no taxation or financial records tendered to show what, if any, income she received from this work.
62 Upon examining all of the evidence relating to the plaintiff’s alleged work with the flower business, I do not accept it was regular employment. I consider her evidence to the contrary to be a gross exaggeration, made in an attempt to assist her claim.
63 If each of these matters were considered separately, they would not, in my view, be sufficient to tarnish the plaintiff’s credibility. However, when considered collectively, I have significant reservations about the plaintiff’s reliability as a witness. In these circumstances, I have only accepted her evidence where she gave concessions against her interest or where her evidence was corroborated by objective evidence or contemporaneous documents.
Aggravation
64 The MRI scan taken in October 2012 demonstrated a C6‑7 paracentral protrusion, with possible irritation of the C7 nerve, whereas the MRI scan in February 2016 demonstrated minor cervical disc degeneration, with no evidence of neural compression, fracture, or dislocation.
65 The doctors are in agreement, and I accept, that the plaintiff suffers degenerative changes in her cervical spine. Dr Demirtzoglou, Mr Mangos and Dr Powell are of the opinion that the plaintiff suffers neck pain and headaches as a consequence of the accident. Mr Brownbill and Dr Seneviratne consider that her headaches are cervicogenic in origin.
66 The plaintiff had previously suffered headaches, on various occasions, until August 2008, as well as some neck pain in late 2005. However, after those dates, there were no further reports of pain to Dr Demirtzoglou, and I accept that she had no further symptoms until after the accident.
67 I accept the plaintiff suffers aggravation of degenerative changes in her cervical spine as a consequence of this accident. Given this condition was asymptomatic for at least three years prior, I am satisfied that during this period, her pre-existing injury did not result in any impairment. Therefore, in assessing her impairment from this accident, I can have regard to the totality of her aggravated condition.
Long term
68 In order to satisfy the definition of serious injury, the plaintiff must prove the injury and its consequences are both serious and long-term.
69 I am satisfied that the plaintiff’s injuries and the consequences which flow from it are long-term. The injury was suffered over four years ago. The plaintiff is unwilling to undergo the cervical injection, and no other treatment is recommended.
Are the consequences serious?
70 As stated above, I am not satisfied that the plaintiff was working regularly in her husband’s flower business prior to the accident.
71 Mr Ingram referred me to the Court of Appeal decision of Mazevska v TAC[43], in which the plaintiff claimed pecuniary disadvantage from injuries which prevented her returning to work in her family business. In that case, the plaintiff had worked in the business for some 20 years, and she tendered affidavits from her husband and two adult children, detailing the nature of her work duties, and her inability to return to such pre-injury employment. There is no such evidence in this case.
[43][2014] VSCA 178
72 The plaintiff said that she returned to the flower business after the accident, but only lasted a few months.[44] She said that she was too traumatised going back to the location of the business, as it was close to where the two transport accidents had occurred. It was only upon further questioning by Mr Ingram as to whether her physical pain played a role in her stopping work that she referred to pain in her neck and shoulder.[45] Given that I am not satisfied she worked regularly in the flower business before the accident, this evidence is of minimal significance.
[44]T52, L11-12
[45]T52, L23-24
73 Given my finding that her attendance at her husband’s business was only occasional, and that she had not been employed for over 25 years, I am not satisfied that any impairment from her neck pain and headaches results in any pecuniary disadvantage.
74 I will now consider her pain and suffering consequences, excluding pecuniary disadvantage, and determine if they satisfy the “very considerable” test.
75 In Haden Engineering Pty Ltd v McKinnon,[46] Maxwell P said:
[46](2010) 31 VR 1
“In its accepted interpretation, the ‘pain and suffering consequence’ of an injury encompasses both the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life. (I will refer to the second element as ‘the disabling effect’ of the pain.)
As to the experience of pain as such, the court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale mild/moderate/severe. Unless the pain is constant the Court will need also to assess the frequency and duration of the pain episodes.
The evidentiary basis of the pain assessment will ordinarily compromise the following:
(a)what the plaintiff says about the pain (both in court and to doctors);
(b)what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c)what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d)what the objective evidence shows about the disabling effect of the pain.
As to (a) the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility. The Court will make its own assessment of the plaintiff’s credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.”[47]
[47]Ibid para [9]-[12]
76 The plaintiff claims her neck pain is aggravated if she twists and turns, or holds her head in the one spot for too long.[48] She is able to drive, but has some difficulty twisting her neck to check the traffic. She said she has difficulty sleeping because of her neck pain. She is able to look after her grandchildren but said she cannot do as much with them as she would like. She is still able to cook and do the house work, but does it slower than before.[49]
[48]PCB 10
[49]T41, L24-27
77 In her first affidavit the plaintiff stated that her sleep was affected, “to a lesser extent by headaches.”[50] In her most recent affidavit, sworn 4 May 2016, there is no mention of headaches.[51] She was not asked about, and made no reference to, headaches in her viva voce evidence.
[50]PCB 3
[51]PCB 9-11
78 The plaintiff complained about headaches to Dr Demirtzoglou, on a frequent basis from June to November 2015. I accept Dr Demirtzoglou’s records as direct evidence of the headaches, as such records were contemporaneous to the plaintiff’s complaints.
79 There are no further records tendered beyond November 2015, and Dr Demirtzoglou’s report of 8 May 2016 provided no further detail on the frequency of the headaches.
80 The plaintiff also complained to Dr Seneviratne about the headaches, although her report did not state how often the plaintiff suffered headaches. The plaintiff also complained to Mr Mangos, Mr Brownbill, Dr Kaplan and Dr Powell about her headaches. I accept the plaintiff’s complaints of headaches to Dr Seneviratne and the medico-legal doctors, as admissible pursuant to s64 of the Evidence Act 2008.
81 Considering all the evidence which relates to the plaintiff’s headaches, I accept that she has suffered some headaches since the accident. However, there is insufficient evidence to satisfy me that she suffers headaches on a daily basis, or very frequent basis. Given my concerns as to the plaintiff’s reliability as a witness, I give minimal weight to her complaint of daily headaches to the medico-legal doctors.
82 I give more weight to the plaintiff’s complaints of headaches, recorded by Dr Demirtzoglou and Dr Seneviratne, as she attended them for treatment and advice, not for the purpose of an assessment for her legal claim. However, neither doctor details the frequency of the headaches.
83 Besides the brief reference to headaches in her first affidavit, the plaintiff did not expressly refer to her headaches, in either her subsequent affidavit or in her viva voce evidence. The purpose of an updated affidavit in Serious Injury Originating Motions such as this, is for the plaintiff to update her evidence as to the consequences of her injury. If the plaintiff suffers daily headaches, I would have expected a more comprehensive explanation of the frequency of the headaches and the manner in which they affect her. For example, if she suffers daily headaches, I would have expected these to sometimes interfere with her ability to take or collect her grandchildren from school, or require her to lie down and rest for part of the day. The absence of such complaints or details of any consequences of headaches in her recent affidavit, leads me to have reservations about the extent of her headaches. I consider that any headaches she now suffers, must be less frequent and less troublesome than in 2015.
84 In relation to the plaintiff’s complaints of neck pain, given my unwillingness to accept her evidence without objective corroboration, I will now have regard to the clinical records of Dr Demirtzoglou.[52]
[52]Exhibit 3 – clinical records of the Dandenong Medical Centre
85 He recorded her complaining of neck pain on four occasions in the six weeks following the accident. On two of those occasions she complained of headaches. There is then a series of attendances in 2012 in which she complained of headaches. The next attendance regarding neck pain is in November 2012.
86 She then attended upon Dr Demirtzoglou on 14 January 2013, and reported that she had been involved in a car accident in December, and that her car was a write-off. She reported some sudden blurred vision in the three months prior. She complained of a headache.
87 This later accident was not referred to in any of the medico-legal reports, nor in the plaintiff’s affidavits. She was not asked about it in cross-examination. I note it for the sake of completion. I will disregard it, as with no further evidence about it, I can make no findings as to whether it has any causal significance on the plaintiff’s current impairment.
88 The plaintiff next complained about neck pain, with shoulder pain, on 19 March 2013. There is no further attendance at the clinic until 11 February 2014. There is no mention of neck pain or headaches at that time.
89 On 23 April 2014, she attended upon Dr Demirtzolglou. He noted she had recently returned from overseas. She complained of neck pain, which was getting worse and radiating into her left arm.
90 She then attended on three occasions, between July and September 2014, complaining of neck pain, with pain into the left arm. There is then no further complaint of neck pain until August 2015, and then again in November 2015.
91 The subpoenaed records are current as to 16 November 2015.
92 I also note that since the accident, Dr Demirtzoglou prescribed numerous medications, including Tramadol, Endep, Imovane and Lyrica. When she saw Dr Entwistle in December 2014, she was taking Tramadol (200 mg) and Endep (50 mg).
93 In her most recent affidavit, the plaintiff said she now takes Panadeine or Panamax Plus on a regular basis. She said she had cut back on Panadeine Forte following her doctor’s advice. She does not say how many tablets she takes on a daily, weekly or monthly basis.
94 The amount of pain medication she presently takes and how often she takes it, is unclear. In any event, Panadeine and Panamax Plus medications are not as strong as the Tramadol and Endep the plaintiff previously took. I consider this an objective indication that the plaintiff’s pain levels are now less than they were in December 2014.
95 The plaintiff also complains that her neck pain causes her difficulty sleeping. In her most recent affidavit she said “ I have trouble getting to sleep because of neck pain and then at times the pain wakes me.”[53] She complained to Mr Mangos, Dr Kaplan and Dr Entwistle about her difficulties sleeping. There are also some reported complaints to Dr Demirtzoglou about difficulties sleeping after the accident, but these complaints are only occasional. I accept her neck pain interferes with her sleep some nights.
[53]PCB 10
96 In assessing what the plaintiff has lost, I should also have regard to what she has retained.[54] The plaintiff admitted in cross-examination, that she sees her grandchildren most days, and sometimes takes them to school or picks them up.[55] She said that she is restricted in what she can do with them,[56] but does not identify what those restrictions are.
[54]Dwyer v Calco Timber (No 2) [2008] VSCA 260
[55]T 43, L18-21
[56]PCB 11
97 She is still able to drive. She is able to do her housework, she just needs to do it slowly.[57] She has her husband’s help with the heavier tasks. She is still able to cook. She enjoys socialising with her girlfriends, sisters and extended family.[58]
[57]T41, L25-26
[58]T71, L18-24, T40, L20-28
98 Given I am not satisfied that the plaintiff was working regularly before the accident, a comparison of her activities before and after the accident, reveals little difference.
99 In considering the impact her injuries have had upon the ordinary activities of life, the effect on the plaintiff appears modest. I accept that she experiences some pain when she undertakes these activities, but she still does them. Given my conclusion about her credit, I give minimal weight to her account of pain. I am not satisfied that it is constant as she claims, and I am not satisfied that it is more than moderate.
100 I can also have regard to the impact her physical injury has had upon her psychological condition, as this can be an indication of the seriousness of the physical impairment, as permitted by Richards v Wylie.[59] I note that Dr Dermitzoglou’s records indicate that she attended upon him with complaints of depression on five occasions from January 2015 until June 2015. At the first two attendances she could not identify the cause for her depression, but in the later attendances she related it to her neck pain, headaches and insomnia. She was prescribed Mirtazapine on two occasions.
[59](2000) 1 VR 79
101 In her most recent affidavit she said she takes Avanza for depression, as well as a sleeping tablet.
102 Dr Kaplan diagnosed her as suffering an adjustment disorder with mixed anxiety and depressed mood. He noted that she had become socially withdrawn. That is inconsistent with the evidence she gave in cross-examination.
103 I accept that she has suffered some psychological upset as a consequence of her neck pain. However, it has not significantly impacted on her social interactions with her family, and friends.
Conclusion
104 In assessing the plaintiff’s claim, I am mindful that I must consider the broad spectrum of cases which this Court sees. As was noted by Ashley JA and Beach AJA in Stijepic v One Force Group Australia Pty Ltd & Anor[60]:
[60][2009] VSCA 181
“this includes cases which do not end up in litigation - because, it may be supposed, the consequences are glaringly apparent one way or the other.”[61]
[61]Ibid at [42]
105 Further, it was stated:
“…this involves a value judgment, in which matters of fact and degree, and of impression are operative.”[62]
[62]Ibid at [41]
106 Like Stijepic, the circumstances of this case are, “on the borderline”.[63] I accept the plaintiff suffers some pain and suffering consequences which might be described as marked and significant. I accept that she suffers some neck pain, some headaches, has some problems sleeping and also some psychological upset. However, I am not satisfied that her pain is as constant, nor as significant as she claims. Further, looking at what she has retained, I am not satisfied that the consequences to her are serious.
[63]Ibid [43]
107 I therefore refuse the plaintiff’s application.
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