Anastasiou v Transport Accident Commission

[2022] VCC 1763

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-21-04310

NEOPHYTA ANASTASIOU	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE ENGLISH
WHERE HELD:	Melbourne
DATE OF HEARING:	2 June 2022
DATE OF JUDGMENT:	19 October 2022
CASE MAY BE CITED AS:	Anastasiou v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2022] VCC 1763

REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT

Catchwords:              Serious injury – impairment of the neck, back, spine, right shoulder – leave sought for pain and suffering – a severe long term mental or severe long term behavioural disturbance or disorder

Legislation Cited:      Transport Accident Act 1986, s93(4)(d)

Cases Cited:              Humphries and Anor v Poljak [1992] 2 VR 129; Richards v Wylie [2000] 1 VR 79; Petkovski v Galletti [1994] 1 VR 436; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Mobilio v Balliotis [1998] 3 VR 833; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181

Judgment:                  Leave granted to the plaintiff to bring a proceeding at common law.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A D B Ingram KC with Ms A Bannon	Zaparas Lawyers
For the Defendant	Mr S Pinkstone	Solicitor to the Transport Accident Commission

HER HONOUR:

Introduction

1This is an application for leave to bring proceedings for the recovery of damages pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) by the plaintiff, Neophyta Anastasiou, in respect of injury sustained in a motor vehicle accident on 1 September 2018.

2The plaintiff alleges she has a “serious injury” as defined by s93(17)(a) of the Act; namely, a serious long-term impairment or loss of a body function, being the function of the spine and a secondary aggravation of a mental disturbance.

3The plaintiff claims for pain and suffering.

4The onus of proof is on the plaintiff.  In Humphries and Anor v Poljak,[1] the question whether an injury is a “serious injury” considers, when regard is had to the consequences, can the injury, when judged by comparison with other cases in the range of possible impairments and losses, be fairly described as at least “very considerable” and certainly more than “significant” or “marked”?

[1][1992] 2 VR 129 at 140

5The plaintiff relied on Richards v Wylie[2] that:

“… a mental or behavioural component can affect the question whether a physical injury is serious and long-term.”[3]

[2] [2000] 1 VR 79

[3]        Ibid at paragraph [89]

6In determining the severity of injury to the spine, it is permissible to consider the psychological consequences of the injury.  The plaintiff argued she has a persisting organic injury and an aggravation of her long-standing underlying psychiatric condition.[4]

[4]Transcript (“T”) 75

7The defendant indicated range was in issue, and argued the consequences of her injuries do not meet the statutory definition of a “serious injury”.  As an aggravation injury, in accordance with the principles of Petkovski v Galletti,[5] the aggravation itself has to be a “serious injury”.

[5][1994] 1 VR 436

8The defendant further submitted the plaintiff suffers physically from a minor soft tissue injury and predominantly from a psychologically-based pain syndrome, which cannot be disentangled from the pain consequences of her organic injury.

9The application proceeded in the usual manner.  The plaintiff gave evidence and was cross-examined.  She provided two affidavits in support of her application, sworn 4 August 2020 and 14 April 2022.  Her husband also prepared an affidavit dated 6 May 2022.

10By way of background, the plaintiff is fifty years old.  She is married and has two adult sons.  Since 1998 she has been her husband’s carer.  She also assisted at her son’s restaurant.

The accident

11On 1 September 2018, the plaintiff was the driver of a vehicle with her adult son as passenger.  A car travelling in the opposite direction crossed over the median strip towards her.  She swerved to avoid a collision and hit a pole.  She managed to get out of the car through the window.  Ambulance officers attended and she was conveyed to Footscray Hospital.  She was in the emergency department for a few hours and discharged with pain-relief medication.

Medical treatment

12The plaintiff reported in the months following the car accident she struggled with neck pain.  Although she tended to avoid medical attention, she ended up crying each night in pain, and, as the pain was “getting worse and worse every day”,[6] she went to see her GP, Dr Aejaz Sheriff, in St Albans on 5 March 2019.  She noted she should have had medical attention earlier and the delay affected her recovery.[7]

[6]T17

[7]Plaintiff’s Court Book (“PCB”) 14

13I pause here to note a causation issue was raised by the defendant: in a medico-legal report by Dr Robert Lefkovits, dated 4 April 2022, the history includes the following:

“She continued to assist her son in the kitchen at the restaurant until March 2019 when whilst performing some of these duties, she suddenly felt a step up in discomfort in the cervical spine region with pain radiating towards the right shoulder.”[8]

[8]Defendant’s Court Book (“DCB”) 21

14This passage was paraphrased to the plaintiff in cross-examination by Counsel for the defendant, who suggested to the plaintiff there was an “incident” at the restaurant.[9]  She agreed she experienced the sudden step up in discomfort in her neck with pain going into her right shoulder,[10] but denied injuring herself or that there was any incident in the restaurant, where she was doing light duties.[11]  I accept her evidence on this point.  Although her work at her son’s restaurant was mentioned in the other tendered medical reports, there is no suggestion in any of them that this was a workplace injury.  I am of the view Dr Lefkovits is an outlier in this respect.

[9]        T17, Line (“L”) 19

[10]T16

[11]T17

15Following her appointment with Dr Sheriff, on 12 March 2019 she had radiology of her neck, thoracic and lumbar spine.  He diagnosed her with soft tissue injuries of the shoulder, neck, cervical, dorsal and lumbar spine.[12]  On his referral, on 7 May 2019, she commenced physiotherapy treatment with Sandy Aggarwal, an occupational therapist and acupuncturist, and attended three sessions in 2019.  The plaintiff did not find the therapy helpful.[13]  She found the needle treatment (acupuncture) painful, and the cup treatment did not help.[14]  Dr Sheriff also suggested hydrotherapy, which was not possible during the pandemic.  In his report dated 14 January 2022, he noted, despite the fragmented management, he had no doubt she has genuine symptoms of radiculopathy of her neck and back post-trauma, and she has also aggravated anxiety neurosis and depression.[15]

[12]PCB 34

[13]T25

[14]T25

[15]PCB 41

16She was referred to psychologist, John Karamanos, whom she sees fortnightly.  She resisted Dr Sheriff’s proposed prescription of Lyrica as she does not like the side effects of strong pain medication.  She takes Panadol Osteo as required for pain.[16]

[16]        PCB 14

17Dr Sheriff also referred her to Dr Gavin Weekes, pain specialist, who reviewed her once on 29 March 2022.[17]  He discussed diagnostic root nerve blocks and has also prescribed a trial of new pain medication, Baclofen.[18]

[17]        PCB 55

[18]        PCB 56

18I accept the plaintiff’s explanation as to why she did not see her GP until six months after the transport accident.  Although unusual, I accept she is not a frequent user of medical services; she describes herself as someone who avoids seeking medical attention,[19] and I accept her evidence the pain continued to worsen over the ensuing months until she took action. In her evidence she stated:

“I didn’t want to go through all this trouble and waited to see if it’s going to go away but it was getting worse and worse every day.”[20]

[19]PCB 14

[20]T73

19Her subsequent reluctance to engage in proposed treatments perhaps also reflects this reticence towards the medical profession and medical treatment.

Evidence of the consequences of injury

20In her first affidavit dated 14 July 2020, the plaintiff described neck pain throughout the day, which is worse at night.  The pain is often sharp and causes pins and needles.  She also has sharp lower back pain.[21]

[21]        PCB 15

21Because of the pain, she cannot sit longer than 40 minutes and cannot stand longer than 20 minutes.  She used to be fit and active and walk a lot but does not go out much now.  She can drive for only 30 minutes.[22]

[22]        PCB 15

22She can care for herself, but it takes her longer.  She now finds the tasks of caring for her husband, such as cooking and cleaning, very hard.[23]

[23]        PCB 15

23She struggles to lift the laundry, and her mother, in her mid-sixties, now does that task.  Her son, when he would visit, would do the heavier household tasks such as mopping, vacuuming and cleaning.[24]

[24]        PCB 15 and 16

24Pre-accident, her greatest interest was her garden; however, she can now only do 10‑minute stints.[25]

[25]        PCB 16

25She cannot sleep through the night, wakes two to three times a night in pain, and is tired during the day.  The pain is worse in cold weather.[26]

[26]        PCB 16

26She can no longer go to the gym for water aerobics, her fitness has suffered, and she has gained 10 kilograms in weight.[27]

[27]        PCB 16

27In her second affidavit, sworn 14 April 2022, the plaintiff noted her pain is worse in the neck and lower back with numbness in both hands.  Her hands are numb for 10−20 seconds every day.  She describes that she continues to be greatly impacted by her injuries.

28Dr Sheriff prescribed Mersyndol, an analgesic pain relief, and Panadol Osteo.  Dr Weekes has prescribed Baclofen.  She is considering Dr Weekes’ proposed treatment of needles.[28]  She still sees her psychologist, Mr Karamanos, once a month.

[28]        PCB 56.  Dr Weekes refers to discussing diagnostic nerve root blocks.

29Her sitting tolerance is down to 20 minutes at a time, and she can only walk for up to 5 minutes.

30She cannot put on her shoes or socks.  Her husband now helps her with this task.  Her mother now does the bathroom cleaning and vacuuming, as her son, who has moved away, is no longer able to assist.  In cross-examination, the plaintiff indicated her mother comes to her house every day and did the “heavy stuff” around the house, like cleaning and vacuuming, whilst she could cook and wash dishes.[29]  Her mother helps her with the grocery shopping.

[29]T28

31She cannot do anything in the garden, and a neighbour mows the lawns.

32She still has trouble sleeping, and wakes due to neck pain.  She also gets anxiety during the night, and wakes in a panic thinking someone is choking her.

33She is also anxious and hypervigilant in cars.  She has trouble driving on the freeway with large vehicles nearby and avoids busy roads.

34She has panic attacks two to three times a week.  She avoids watching the news on TV in case a car accident is reported.

35The plaintiff described her symptoms of anxiety and depression as changed subsequent to the transport accident.  Her mood and patience are now poor.  She stated she now cannot control her feelings, she is not happy, and nothing makes her happy anymore.  She always feels down and does not see a future for herself.[30]

[30]T36

36Her prescription of Zoloft has increased to 150 milligrams in 2022.  This was because the plaintiff’s panic attacks were worse, her depression and anxiety were worse.[31]

[31]        T37

37The plaintiff described her problems as starting after the car accident.  She is depressed from the pain, she cannot help around the house, and this was her life:

“I used to do everything, make my husband happy, my kids, and now with this situation I can’t do – I can’t offer much for them and that makes me depressed, and the pain that I have when I can’t sleep at night-time worsen the – my situation.”[32]

[32]T38

Psychological/psychiatric condition

Pre-accident

38The plaintiff has had psychological treatment since 2004 as a result of family issues.  She was diagnosed with an adjustment disorder and prescribed Zoloft, an anti-depressant, for many years.  She had monthly panic attacks in 2004.  Prior to the transport accident her evidence was her psychiatric condition was getting better with medication.[33]

[33]T9

39When her father died in 2013, her Zoloft was increased to 75 milligrams.  In 2019, her son was diagnosed with multiple sclerosis and her Zoloft increased to 100 millgrams.  She agreed her psychiatric condition deteriorated.

Post-accident

40The report by her treating psychologist, Dr Karamanos, noted the plaintiff denied she had any depression, anxiety, or Post-Traumatic Stress Disorder prior to the motor vehicle accident on 1 September 2018, and the plaintiff denied any history of clinical depression or anxiety in her immediate family.[34]  At the time of writing his report, 5 May 2022, Dr Karamanos had seen the plaintiff some thirty-four times.  He noted her psychological treatment had yielded short-term gains that have not been sustained in the long term “as a result of her ongoing physical pains, functional restrictions and disability … anxiety and unpredictable panic attacks and loss of confidence and self-esteem”.[35]  Dr Karamanos diagnosed the plaintiff with Adjustment Disorder with Mixed Anxiety and Depressed Mood.  He noted she also suffered from a Chronic Pain Syndrome and she “is also experiencing post-traumatic stress symptoms” and that:

“The motor vehicle accident was and remains a significant contributing factor to the onset and maintenance of your client’s psychological symptoms.”[36]

[34]T22

[35]PCB 50

[36]PCB 51

41He noted her prognosis to be poor and that she had no psychological capacity for work now or in the future.[37]

[37]PCB 51 and 52

42Dr Nicholas Ingram, consultant psychiatrist, prepared a medico-legal report dated 6 May 2022 and used a guide to evaluating psychiatric impairment.  In his assessment, the plaintiff’s “overall psychiatric impairment is 20%”.[38]  He diagnosed her as suffering from a Major Depressive Disorder, noting up to 3 per cent impairment is pre‑existing, 2 per cent relating to concerns about her sons, and 10 per cent is a “secondary consequence of the accident and her subsequent chronic pain and limitations”.[39]  Residual symptoms of PTSD accounted for 5 per cent direct psychiatric impairment.  He noted she had no work capacity, and although her condition had not stabilised she would be incapacitated for the next year at least.

[38]PCB 75

[39]PCB 75

43Dr Ingram’s 20 per cent assessment was not challenged by the defendant, and is useful when considering the comparison between the plaintiff’s physical impairment and her psychological impairment.  Dr Ingram diagnosed a Major Depressive Disorder, and a 20 per cent psychiatric impairment, a major part “is a secondary consequence of the accident and the development of chronic pain in Ms Anastasiou’s neck and back”.[40]

[40]PCB 76

44The defendant’s consultant psychiatrist, Dr Timothy Entwisle, prepared a report dated 26 April 2022.  He diagnosed the plaintiff with an accident-related condition that is an aggravation of pre-existing Depression and Panic Disorder.

45I note Dr Entwisle states, “Throughout her adult life in Australia Ms Anastasiou has never worked”.[41]  Despite this, he describes her focus on caring for her husband and children and managing the home, reporting she keeps the house clean and that she is “an energetic person who has cared for others with little time for herself”.[42]  Dr Entwisle also notes her psychiatric condition impacts her “recreational and leisure activities, but not to a great degree: She has always lived a home-bound existence.”[43]

[41]DCB 29

[42]DCB 27

[43]DCB 29

46Aside from Dr Entwisle’s narrow view of what constitutes work, I am of the view his report does not support the defendant’s submission that the plaintiff’s psychiatric problems dominate her presentation, namely, that they are “very, very significant”.[44]  

[44]T50

47The defendant also supported this position with reference to her Chronic Pain Syndrome; however, neither consultant psychiatrist, Dr Ingram, nor Dr Entwistle diagnose this condition.  Whilst Mr Russell Miller diagnoses a Chronic Pain Syndrome, he is an orthopaedic surgeon, and whilst the defendant argues it is a psychological or psychiatrically-based condition,[45] I am not of the view an orthopaedic surgeon is qualified to make that diagnosis.  There is evidence of the plaintiff having a Chronic Pain Syndrome, as her treating psychologist, Dr Karamanos, includes this in his diagnosis, along with post-traumatic stress symptoms.

[45]T55

48The plaintiff had a pre-injury mental health history and had been prescribed Zoloft.  She also had other contributing personal factors, such as her father’s death and her son’s illness.  It is surprising that Dr Karamanos, who has seen her over thirty times, was not aware of her pre-existing mental health history (particularly when it is referred to in the other tendered medical reports).  Whilst I cannot rely on his opinion regarding any aggravation of her pre-existing condition, I do accept his opinion that her lack of psychological improvement has been affected by her ongoing physical pain and functional restriction.

49In my view, his opinion, that the Adjustment Disorder is the secondary or reactive component of the injuries arising from the motor vehicle accident, is consistent with Dr Ingram’s assessment. Dr Karamanos goes on the specify that she does not suffer from severe psychiatric conditions arising from the injuries in the transport accident.[46]  I accept Dr Ingram’s assessment she has a 20 per cent psychiatric impairment, which is not inconsistent with Dr Entwisle’s diagnosis and findings.

[46]        PCB 51

50I accept the secondary psychological injury to be an aggravation of a longstanding pre-existing condition.  I accept the plaintiff’s evidence, supported by the above medical opinions, that the pain from the injury is the main cause of her Depression.  I find her psychological condition is not the dominant injury, and as such can be drawn on to support the sub-paragraph (a) physical injury claim to the extent permitted by Richards v Wylie.[47]  The seriousness of sub-paragraph (a) can be measured in part by a mental response to a physical impairment[48] which the plaintiff has developed.

[47] [2001] VR 79

[48] [2001] VR 79 at paragraph [17]

Physical impairment

51In 2007, the plaintiff had a CT scan for recurrent neck pain.  She was told it was a torn shoulder muscle and stated, “it wasn’t something serious that I needed treatment”.[49]  She described having “niggles with my neck in the past and had some scans but no treatment that I recall”.[50]

[49]T10

[50]PCB 13

52In 2015, she had some lower back pain and right shoulder pain.  She saw a doctor and had a scan.[51]

[51]        PCB 13

53She said that prior to the accident, she was in pretty good condition and would help her son in his restaurant.  She did not have continuing pain, and if she had pain, it was not that serious that she could not do regular things every day.[52]

[52]T12

54When her son opened his restaurant, family members helped him with food preparation, and the plaintiff would assist making the Greek salads.  The business closed in December 2018.

55Prior to her accident, her life involved caring for her husband, which she described as helping him put his shoes and socks on, helping him with showering and shaving,[53] seeing her family, cooking, cleaning, gardening, driving and shopping and helping out in her son’s restaurant.

[53]T7

Is the injury a “serious injury”?

What injury was sustained in the transport accident?

56Medical evidence from treating practitioners comprised the plaintiff’s general practitioner, Dr Sheriff; occupational therapist, Mr Sandy Aggarwal, who saw the plaintiff three times, and psychologist, Mr Karamanos.  Dr Weekes, pain specialist, was also a treating doctor.  The other tendered medical reports were for the purposes of the serious injury application.

The Plaintiff’s medico-legal reports

57Mr Ash Chehata, orthopaedic surgeon, examined the plaintiff and prepared a report dated 10 December 2021.  He assumed a direct relationship between the development of the whiplash phenomena in both the neck and back as a result of the motor vehicle accident.  The defendant submitted Mr Chehata was unaware of the six-month gap from 1 September 2018 when the accident occurred and the plaintiff seeing her general practitioner on 5 March 2019.  I have previously noted I have accepted the plaintiff’s explanation for her delay after the accident in seeking medication and treatment, and I accepted her evidence her pain continued to worsen in the months following.  Whilst Mr Chehata does not list physical symptoms suffered by the plaintiff, he does state: “She is no longer fully independent to be able to care for her husband.”[54]

[54]PCB 82

58In his medico-legal report dated 26 April 2022, Dr Graeme Doig, orthopaedic surgeon, summarised the plaintiff as having soft tissue injuries to the neck and lower back in the high impact transport accident.[55]  He noted the plaintiff is restricted from performing social, domestic and recreational activities and requires assistance performing the heavier tasks around the home and garden.[56]

[55]PCB 65

[56]        PCB 64

59Pain specialist, Dr Gavin Weekes, diagnosed the plaintiff with “cervical spondylosis, lumbar spondylosis, cervicogenic headaches with some migrainous features, possible bilateral C5 radicular pain”.[57]  Her refers to the MRI scan showing evidence of bilateral C4, bilateral C5 and bilateral C6 nerve root impingement.[58]  In his opinion, whilst there was some aggravation of her pre-existing cervical and lumbar spondylosis, the transport accident in September 2018 was the primary cause of the injuries diagnosed.[59]  He noted she was unfit for employment for the foreseeable future.

[57]PCB 56

[58]        PCB 55

[59]PCB 56

60Dr Richard Sullivan, interventional pain specialist and specialist anaesthetist, noted the plaintiff had sustained an aggravation injury of pre-existing cervical spondylosis, lumbar spondylosis and intrinsic pathology within her right shoulder.  He diagnosed post-traumatic chronic pain condition, and opined she had aggravated pre-existing psychological conditions of depression and anxiety.[60]  He opined her impairment was caused by the transport accident on 1 September 2018.[61]

[60]        PCB 69

[61]PCB 70

Joint medico-legal report

61In his report dated 17 February 2020, Mr Russell Miller, orthopaedic surgeon, noted the plaintiff’s:

(i)    pre-existing disease and pre-existing symptoms in the neck, low back and right shoulder;

(ii)   aggravation of that injury and superimposed injury in the motor vehicle accident; and

(iii)   subsequent development of a Chronic Pain Syndrome.

62He noted the current clinical status of the neck, back and right shoulder are regarded as being substantially accident-related.[62]

[62]PCB 90

The Defendant’s medico-legal reports

63Dr Robert Lefkovits, consultant physician, prepared a report dated 4 April 2022.  He was an outlier amongst the medical opinions, referring to her reporting increasing pain whilst performing activities in her son’s restaurant and that it was most unlikely the injuries sustained in the road traffic accident were relevant to the plaintiff’s subsequent and current symptomatology and deterioration, and that it was most likely degenerative disease unfolding with the passage of time.

64I have already referred to Dr Lefkovits’ report, and, in my view, his opinion is an outlier.

65I prefer the weight of the medical opinions supporting the finding that the plaintiff has sustained the injury to her neck and back, which has an organic basis, in the transport accident on 1 September 2018.

Serious injury

66As mentioned above, whether the plaintiff’s injury is “serious” depends upon the consequences of the injury in respect of pain and suffering and whether the consequences are “at least very considerable” and certainly more than “significant” or “marked”.[63]  This assessment “involves a value judgment, in which matters of fact and degree, and of impression, are operative”.[64]

[63]See Humphries and Anor v Poljak (supra) at 140.  Also see Mobilio v Balliotis [1998] 3 VR 833

[64]Stijepic v One Force Group Aust Pty Ltd and Anor [2009] VSCA 181 at paragraph [41]

67The consequences of the injury must be serious to the applicant, and I must take into account the broad range of impairments and impairment consequences, not just those which come before the Court.

68I take into account the methodology in Haden Engineering Pty Ltd v McKinnon[65] for evaluating the “pain and suffering” consequences.

[65](2010) 31 VR 1

69The defendant argued the injury was not a serious injury, but a minor soft tissue injury to the spine.  I note the defendant’s arguments: firstly, the plaintiff did not seek medical attention for her neck symptoms until at least six months after the traffic accident.  Secondly, with respect to impairment, whilst the plaintiff has reported and demonstrated a reduced range of motion in her neck, the defendant submits the doctors have, by and large, found the full range of motion of both shoulders, no wasting or other problems, or some tenderness only.  Further, the pain level reported by the plaintiff is inconsistent with the treatment options she has pursued, namely her sum treatment is Panadol Osteo, a script of Baclofen, and she has not pursued further physiotherapy or other treatments offered such as needling and hydrotherapy.  Finally, the consequences for the plaintiff are minimal because the “before and after picture here is very, very similar”.  The defendant argues the plaintiff was “housebound” prior to her transport accident and the present situation is “pretty similar”.[66]

[66]T70

Impact on daily activities

70I found the plaintiff to be a credible, if unprepossessing, witness.  Her credit was not impugned.  The defendant cautioned some of her evidence was unreliable, an example being the disparity between her reportage of her pain as compared to what she did about it, tending to prove it has a psychiatric focus, as per Mr Miller’s opinion.  That is one inference: there are other explanations which I consider below.  I am not of the view the plaintiff was an unreliable witness.

71The consequences of the injury are such that the plaintiff is in constant pain, which is worse at night.  She finds it difficult to look after her husband in her role as his carer or do other household tasks.  Her sleep is disrupted.  She can only sit or stand for short periods, and the length of time she can drive is affected.  House chores take much longer than previously, her day-to-day routine is disrupted, and her mother has to assist with any heavy household tasks.  Her treating psychologist, Dr Karamanos, states her domestic life, “is likely to remain subdued and poor in the foreseeable future”.[67]

[67]        PCB 53

72I note the plaintiff is not yet old, being still in her early fifties.[68]  Other than a historical report from Mr Aggarwal from 2019 that her prognosis was promising, the weight of the medical opinion is that her prognosis is poor, and she is incapacitated for the foreseeable future.  This is supported by Mr Karamanos,[69] Dr Weekes,[70] Dr Doig,[71] Dr Sullivan,[72] Dr Ingram,[73] and Mr Chehata.[74]  Mr Miller notes her injuries have stabilised and her treatment and her current conservative regime is appropriate and will need to continue indefinitely.[75]

[68]See Stijepic v One Force Group Aust Pty Ltd and Anor (supra) at paragraph [43], although in that case I note the plaintiff was only twenty-eight

[69]PCB 53

[70]PCB 58

[71]PCB 65

[72]PCB 71

[73]PCB 76.  Incapacitated for the next year at least, currently totally incapable of work.

[74]PCB 83

[75]PCB 90 and 91

73In this case, the plaintiff’s pre-injury life revolved around her role in the home and family, and her identity was linked to her role as carer for her injured husband, mother to her two sons, and support for her extended family.  In assessing the consequences of the injury for the plaintiff, she has enjoyed and valued a traditional role in the household which is very significant to her, although it might not be for others similarly injured.

74The physical pain and suffering consequence for the plaintiff also has a psychiatric consequence as she is depressed, largely as a result of the pain and restrictions that has imposed on her life.  The pain and suffering consequences are chronic and real, and her pain inhibits her ability to take an active role in life and take pleasure as she did pre-injury, and the evidence supports this is likely to remain so at least for the foreseeable future.

How the pain is managed

75The plaintiff only takes Panadol Osteo and had a recent script of Baclofen to manage her pain.  This minimalist or conservative approach is consistent with other aspects of her medical management: her reluctance and delay in seeking medical attention about her neck pain (her appointments with Dr Sheriff were sparse: 5 March 2019, 13 November 2019 (for review of her radiology), 18 May 2020, 15 October 2020 and 6 December 2021), being scared of injections, finding needle treatment and cupping at physiotherapy painful,[76] not pursuing hydrotherapy, and rejecting the recommendation for opioid-based pain relief.

[76]        T25

Other evidence of the disabling effect of pain

76In the context of the plaintiff’s pre-injury world, the consequences of her injury have been dramatic: aside from her pain, her mother now attends daily to assist with heavy housework, her husband now assists her with putting on her shoes and socks.  She cannot walk longer than five minutes, nor sit or stand for long periods, and cannot drive beyond the locality.  Her lack of activity has led to significant weight gain.  The psychological sequalae to the transport accident has made her nervous when in a car with her husband, and she suffers flashbacks.  She has panic attacks and disrupted sleep.  She can no longer enjoy time in the garden, and a neighbour now does the mowing.

77What was previously, albeit narrowly defined, an amenable life, governed between the compass points of her household, the shops and her assisting family members, is now shrunk and circumscribed by the injury.  The consequences inhibit her ability to tend to her universe: her household, her garden, to care for others and find pleasure or happiness.

78In addition, her husband has sworn an affidavit in which he describes her pre‑accident as happy and active, doing most of the household tasks, cooking, washing, cleaning and gardening.  Now she struggles to do all these things, and is in pain, grimacing, and has difficulty walking.  She struggles to act as his carer, and her mother now has to assist.  He confirms the aspects of her restricted activities described in her evidence.  He also refers to her being “very down”, moody and irritable, suffering panic attacks and in fear that someone will hurt her, with frequently disrupted sleep.[77]

[77]        PCB 23 and 24

79Taking all the evidence into account, I am satisfied, on the balance of probabilities, the combined consequences of the injury are serious to the applicant, when judged by comparison with other cases in the range of possible impairments and losses and are at least “very considerable” and certainly more than “significant” or “marked”.

80Leave is granted to the plaintiff to commence common law proceedings for injuries suffered in the transport accident on 1 September 2018.

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