Anderson, Annette Maree v TAC
[2009] VCC 1455
•7 September 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT LATROBE VALLEY
CIVIL DIVISION
DAMAGES-COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-00762
| ANNETTE MAREE ANDERSON | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Latrobe Valley |
| DATE OF HEARING: | 27 August 2009 |
| DATE OF JUDGMENT: | 7 September 2009 |
| CASE MAY BE CITED AS: | Anderson, Annette Maree v TAC |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1455 |
REASONS FOR JUDGMENT
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Catchwords: Transport Accident Act 1986 – Section 93 – serious injury – impairment of the lumbar spine.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with | Slater & Gordon |
| Mr J Goldberg | ||
| For the Defendant | Mr P D Elliott QC with | Solicitor for the Transport |
| Mr J Batten | Accident Commission | |
| HER HONOUR: |
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to Section 94(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 30 December 2003 (“the said date”).
2 Section 94(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied
that the injury is a serious injury.”
3 The definition of serious injury relied upon by the plaintiff is under Section 93(17)(a):
“Serious long term impairment or loss of a body function.”
4 The body function relied upon by the plaintiff in this case is the lumbar spine.
5 The inquiry under sub paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
6 The serious injury defined by sub paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can itself constitute or be the producer of the impairment of a body function: see Richards v Wylie (2000) 1 VR 79.
7 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”?: see Humphries v Poljak [1992] 2 VR, at 140-1.
8 The plaintiff relied on three affidavits and gave viva voce evidence. She was cross examined. The plaintiff also relied upon an affidavit of her partner, Robert Radosavijevic, sworn on 27 August 2009. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
9 The plaintiff is presently aged forty four, having been born on 23 June 1965.
10 The plaintiff is currently in a long term relationship with her partner, Robert Radosavijevic. They each have three children. The plaintiff’s youngest child, a fifteen year old boy, lives with the plaintiff and her partner. Her older children are aged twenty three and twenty four. One lives in Melbourne and the other in Traralgon. The plaintiff sees them regularly.
11 Mr Radosavijevic has access to his children, aged between ten and sixteen, every second weekend and every Wednesday night.
12 The plaintiff was educated to Year 11 and thereafter worked in a number of retail and banking jobs. She then did two years of a teaching degree but did not finish it.
13 The plaintiff then completed a Diploma of Frontline Management and a Certificate III in Human Resources. She is currently employed fulltime in customer service at Centrelink.
14 The plaintiff agreed that prior to the accident she had had some health problems with her kidneys and she had seen a specialist at the Monash Medical Centre. The plaintiff could not remember complaining in October 2003 to the specialist, Dr Stambe, of numbness in her right leg, but said if that is what his records indicated that was what she had told him.
15 On the said date the plaintiff was involved in a head-on collision on the Princes Highway near Rosedale. It was a violent collision with the impact on the driver’s side of her car (“the accident”).
16 Following the accident, the plaintiff was taken to La Trobe Hospital where she was an inpatient overnight. She had pain in her neck, lower back and numbness in her right leg, as well as general bruising.
17 Following discharge from Hospital, the plaintiff attended her usual general practitioner, Dr Naidoo, and was referred for physiotherapy with Mr Robert Stevenson.
18 In cross examination, the plaintiff said that her leg was very numb for quite some time after the accident, and as the sensation returned then her back pain started. She could not honestly remember when the back pain came on, whether it was a week or a month after the accident.
19 On 4 May 2004, the plaintiff was sent for a CT scan of her back. She was then referred to a specialist, Dr Verrills, whom she initially saw on three occasions between May and August 2004.
20 During that period Dr Verrills gave the plaintiff an x-ray guided epidural into her back to try and give her some relief from right sciatica, but the injection did not give her any lasting relief. She then resumed seeing Dr Naidoo and continued with physiotherapy.
21 The plaintiff has undertaken hydrotherapy, completed a gym program and undertaken swimming as part of her rehabilitation. She has had various disputes with the Transport Accident Commission (“TAC”) about payment for treatment and it no longer pays for any of her exercise regime.
22 The plaintiff continued with physiotherapy and swimming at her own expense. She had physiotherapy treatment until the end of 2007. The plaintiff would have more frequent treatment but for the fact that she has to pay for it. This year she attended Mr Stevenson on a couple of occasions, at which time he suggested she do further exercise which she has done on and off.
23 In cross examination, the plaintiff said that as part of her TAC funded physiotherapy program in 2004 she swam at the local pool. She would do forty laps of the twenty five metre pool, not swimming laps but doing a mixture of swimming and exercises.
24 Mr Stevenson also worked out a gym program for the plaintiff which was funded by the TAC. When the TAC was funding the program the plaintiff would aim to go to the gym three to five times a week and swim twice a week.
25 The plaintiff confirmed that she filled out a treatment questionnaire when she saw Mr Stevenson and that at times her level of pain varied. She had no involvement in the scoring system that was noted on the questionnaire.
26 Mr Stevenson had advised the plaintiff that with her pain at six to eight out of ten, he did not think it was going to get any better, and there was no more he could do for her. He thought it would be best if the plaintiff went back to see Dr Verrills, which she did in early 2008.
27 The plaintiff continues to have lower back pain, the level of which fluctuates. There is always a level of low grumbling pain; however it can increase sharply and at times be acute and is affected by her activities. It can flare up for no reason.
28 When the pain in the lower back is severe, it goes into her right buttock and into her leg, and sometimes she experiences numbness in her foot. On other occasions she has a dull aching pain in her right lower leg.
29 The plaintiff demonstrated the site of her pain. It was in the middle of her lower back and across her thigh and down her buttock on the right side to the middle of the thigh. She also got like a numbness in her foot that comes and goes.
30 The pain was there all the time before she had another needle. “It is just a matter of degree during the day when it gets worse, so by evening it is quite painful.” The leg pain is a bit worse than the pain in her back.
31 Since the accident, the plaintiff has continued to use medication, including Nurofen Plus and Panadeine Forte, to ease her symptoms. She tries to stay off medication for as long as possible, putting up with pain rather that becoming dependent on medication. As she explained in cross examination, her brother is addicted to prescription medication resulting from a back condition and she is “really trying to stay away from that path” that is why she “prefers needles”.
32 Over the last few years the plaintiff’s back pain has been consistent but not got better. It is now probably consistent at five to eight out of ten, whereas originally it was at ten and she has worked hard to get it to its consistent current level.
33 The plaintiff continues under the care of Dr Verrills, most recently seeing him on 18 August 2009 for an injection. Dr Verrills has given the plaintiff four injections since April 2008.
34 The relief the plaintiff gets from the injections varies, sometimes lasting for a couple of days to a couple of months until the pain returns and she cannot handle it anymore and then needs a further injection.
35 The plaintiff relies on Dr Verrills. She “trusts him, he is a nice guy”. The plaintiff goes to Melbourne for these procedures which involve her lying on her stomach and Dr Verrills puts her under a machine like an ultrasound and injects into the nerve.
36 The plaintiff last had an injection two weeks ago. The plaintiff has had a little bit of pain over the last couple of days but nothing like what she generally suffers, so she has had pretty good relief. She presently has a little bit of pain in the buttocks and thigh “but not compared to how it will gradually build up”.
37 The plaintiff presently works one hundred and fifty hours a month at Centrelink, with her hours varying from week to week.
38 The plaintiff’s current job suits her as she allocates work for others and just assists. Her work enables her to sit and stand as she pleases. She does believe she would be physically unable to do her job if she could not sit or stand as she wished.
39 In cross examination, the plaintiff explained one of the reasons she moved from the call centre to her present office job was because of pain sitting at the call centre all the time which considerably aggravated her back. Therefore, when a position became available in the office she “put her hand up” and moved over there because it gave her the ability to move around a lot more.
40 At the time of the accident the plaintiff used to get up most mornings about 5.30 or 6.00 am and go for a run for about five to ten kilometres. She found running therapeutic, given her domestic commitments. It was something she really enjoyed. One night a week, although not a club member, the plaintiff ran with the local Harriers Club.
41 The plaintiff now goes walking with a friend two or three times a week early in the morning for about forty five minutes. Going for a walk is not the same as going for a run. She prefers to walk outside and not on the treadmill at home.
42 The plaintiff tries to walk five days a week for about four to five kilometres and probably walks two to three days a week if she has time and if she is able to.
43 The plaintiff tried playing basketball after the accident for a couple of seasons but the pain in her back and not being able to control were the reasons she stopped playing. She played once a week, last playing in 2008 in D Grade, the lowest women’s competition in Traralgon. She did not have to train to play at this level.
44 The plaintiff sometimes has “a hit of tennis” with family members. She watches her son play football. She does not go to the gym with her partner. The plaintiff’s social life is mainly based around her family.
45 In 2008, the plaintiff did circuit training with a personal trainer once a week over a four to five week period. She did not do any running and the program was essentially exercises.
46 The plaintiff was cross examined about a further car accident in which she was involved in December 2006. She agreed it was not a different injury. Mr Stevenson had told her it was just a little bit of an aggravation. The plaintiff went to Casualty following the accident. She could not remember telling her general practitioner about back pain in December 2006.
47 The plaintiff’s partner is self employed as a finance broker. He works from about 9.00 am to 6.30 pm most days and sometimes earlier or later if he has more appointments. Ninety per cent of the time he does the heavier housework and the plaintiff gets the boys to do a lot of things that she cannot do. Whoever gets home first does the cooking.
48 The plaintiff drives her son to her work from where he then catches the train to school. She then drives him home. The plaintiff did some of the driving when she and her partner drove to Sydney for a birthday party earlier in the year.
49 The plaintiff moved house about six weeks ago. She moved herself with the help of family and brothers and sisters. They carried the heavier items and she could move some things. However, she did have problems with her back doing so.
Lay Evidence
50 The plaintiff’s partner, Robert Radosavijevic, swore an affidavit on 27 August 2009. He and the plaintiff have been in a relationship since about 2004.
51 He does the majority of housework, including all the heavy work.
52 The plaintiff goes for a walk two to three times per week but occasionally her back flares up and she puts her walks off for a week or so. Although the plaintiff is not one to complain, he sees her inability to participate in regular exercise distresses and depresses her.
53 Mr Radasavijevic is still quite active, playing local football, tennis and attending the gym.
54 He confirmed the plaintiff’s problems driving or sitting for prolonged periods. The plaintiff’s pain is clearly worse at night time and most nights he sees her moving around trying to get comfortable and cringing in pain. The injections are helpful but they do not take away her pain completely.
The Plaintiff’s Medical Evidence
55 Dr Naidoo of Mid Valley Family Medicine saw the plaintiff on a number of occasions in January 2004 following the accident.
56 He noted she was admitted overnight to the La Trobe Regional Hospital with residual weakness in the right leg and head. X-rays and a CT scan were taken, as well as observations, and analgesia was prescribed.
57 The plaintiff presented to Dr Naidoo with headaches, left elbow pain, neck pain on the right side, pain and numbness of the right leg which radiated from the sole of the right foot which she said had started since the accident when she lost feeling in her right leg. She also had pain in the right hip.
58 Dr Naidoo diagnosed right L5 radicular pain and treated the plaintiff with analgesics and referred her for physiotherapy, hydrotherapy and to Dr Verrills.
59 Dr Naidoo last reported following an examination of the plaintiff in June 2006. The plaintiff was then complaining of pain in the right buttock but not as much as previously. Dr Naidoo considered her prognosis was good. He thought at that stage she should make a complete recovery, although he thought she would benefit from ongoing physiotherapy. He noted there were no pre- existing conditions.
60 Mr Stevenson, physiotherapist, first saw the plaintiff following the accident on 24 February 2004.
61 Mr Stevenson noted early treatment consisted of electrotherapy, mobilisation, hydrotherapy and exercise prescription. A swim and gym program was added as exercise tolerance improved.
62 He noted the plaintiff’s scores in objective examination showed an improvement but certainly not a full resolution of both the neck and lumbar regions.
63 On review on 19 May 2006, he noted the plaintiff reported as achieving fulltime work as a team leader. She had returned to her gym program two to three times a week involving up to five kilometres on the treadmill which he noted would precipitate leg pain which was her most common ongoing symptom.
64 On 22 May 2006, Mr Stevenson requested a “burst of treatment” from the TAC as self management had ceased to result in improvement. This request was denied.
65 Mr Stevenson saw the plaintiff on five further occasions in 2006, the costs of treatment being met by her. He also saw her seven times in 2007.
66 Mr Stevenson saw the plaintiff on 20 October 2008, at which time she told him she felt like she was going backwards.
67 The plaintiff was referred to Dr Verrills by Dr Naidoo and initially assessed on 25 May 2004. At that time Dr Verrills thought the plaintiff might have some mild right L5 radicular pain. Examination demonstrated a good range of movement with normal straight leg raising and normal neurological finding. He noted the plaintiff was minimally tender over the lumbosacral junction.
68 He reviewed the plaintiff’s imaging and the CT scan which, in his view, was essentially normal except for a subtle right paracentral disc bulge at L4-5 to the right which may be contacting the right L5 nerve root.
69 He carried out a caudal epidural injection of the plaintiff’s lumbar spine and noted on review on 5 August 2004 that the plaintiff had made a substantial improvement.
70 The plaintiff was referred back to Dr Verrills on 21 November 2007 by Dr Apostol. Dr Verrills assessed the plaintiff on 20 March 2008, not having seen her for four years.
71 The plaintiff told him that her physiotherapist felt that all physical therapy treatment options had been exhausted. She had commenced doing circuit training with a personal trainer, although she avoided running.
72 The plaintiff was frustrated by her right knee, right leg and now buttock and back pain which were intrusive in her way of life and capacity to work. He noted she had changed jobs from a fulltime sitting position to a job where she had the option to move around more. Further, the plaintiff complained of some numbness in the right leg or at least a dullness to sensation compared to the opposite leg.
73 He thought the MRI scan of August 2004 was essentially within normal limits and did not explain the plaintiff’s symptoms.
74 On examination, the plaintiff had a good range of movement with normal power. He noted the right leg felt somewhat dull to sensation but she still had sensation present. Palpation over the right sacroiliac joint significantly reproduced the plaintiff’s leg pain, and right hip movements and Faber tests reproduced some leg pain.
75 His concern at that stage was whether the plaintiff’s pain may actually be arising from the right sacroiliac joint.
76 On 1 April 2008, Dr Verrills undertook a right sacroiliac joint intra-articular and deep interosseus ligament block. He noted that the plaintiff’s back pain gradually reduced from five out of ten down to two out of ten the next day and stayed down to around one out of ten until day eight. Further, her buttock pain reduced down to two out of ten and stayed at that level until day eight. The leg pain reduced from three out of ten down to one out of ten initially and then fluctuated between one to two out of ten over the next two weeks.
77 Dr Verrills concluded this was a partially positive response and recommended the plaintiff undergo a controlled block to see if a clearer determination could be obtained as to what component of her pain arose from the sacroiliac joint.
78 He noted if the plaintiff had good relief with the control block of her sacroiliac joint then she may be a candidate in the future for radiofrequency neurotomy of the joint.
79 The plaintiff underwent a right sacroiliac joint intra-articular and deep interosseous ligament block on 1 July 2008. The plaintiff reported to Dr Verrills in February 2009 that she had had seven months’ relief from that second sacroiliac joint injection.
80 TAC approved a further injection which was undertaken on 2 April 2009. Dr Verrills noted the plaintiff’s back pain once again went from five out of ten to zero out of ten immediately and stayed around zero out of ten to one out of ten for the first two days, and then zero out of ten to two out of ten for the first nine days. Further, her buttock pain reduced immediately from eight out of ten down to two out of ten, and she scored it at zero between two and four hours when the Marcaine was working maximally. By day fourteen, her back pain had increased to three out of ten and her buttock pain was back to four out of ten.
81 The plaintiff had another right sacroiliac joint injection on 18 August 2009, of which Dr Verrills did not have the results.
82 Following these procedures, it was Dr Verrills’ view that the diagnostic confidence of the plaintiff having sacroiliac joint pain was greater than ninety per cent. He considered that the pain arose from her sacroiliac joint complex as a direct result of the precipitating event of the accident.
83 Further, he considered the plaintiff’s prognosis was guarded to the extent that her pain was likely to be recalcitrant and recurrent and require intermittent injections with Celestone or other steroid and anaesthetic or, alternatively, be treated with radiofrequency neurotomy incorporating the L5 dorsal ramus and lateral branches of S1, 2 and 3.
84 He noted the treatment may last in the order of nine to eighteen months and may then need to be repeated on or about an annual basis for some time.
85 Mr Stanley O’Loughlin, orthopaedic surgeon, examined the plaintiff on 18 August 2009 for a medico-legal assessment, having previously seen her on 18 September 2007.
86 On the recent examination, the plaintiff told him that she had a low level of back pain present to some degree all the time. Prolonged sitting aggravated the pain as did any activity involving bending. The pain was situated in the lumbar area and into the right buttock and sacroiliac area and down the posterior right thigh to knee level.
87 The plaintiff told Mr O’Loughlin that she had difficulty driving for any distance. She was able to do the housework but did not do gardening. She had difficulty mopping and doing anything involving bending or lifting.
88 She told him that she always used to be fit and run approximately five kilometres every morning which she cannot do now and that she tries to keep fit through swimming.
89 She told him that she is much better at working at the office than the call centre as she has some flexibility to move around and does not have to sit in the one position for extended periods of time.
90 Examination of the lumbosacral spine revealed some tenderness in the mid to lower lumbar area on deep pressure. There was also tenderness over the right sacroiliac area. There was some restriction of lumbar movement and straight leg raising and both lower limbs were normal as was neurological examination.
91 Mr O’Loughlin confirmed the plaintiff had MRI scan evidence of a disc injury at L4-5 with a disc bulge, particularly to the right. He thought most of her symptoms came from this area, particularly the irritation of the lumbosacral nerve roots on the right. He considered the plaintiff may also have a degree of sacroiliac joint strain as the repeat sacroiliac joint injections under x-ray control she has had produced some level of relief.
92 In his view, because her discomfort had been going on for six years, he did not think the plaintiff would get a lot better. He noted fortunately she was well- motivated, exercised herself and got on with her life. He noted she was better doing her best not to let the pain affect her psychologically too much but it did to some degree.
93 Mr Brendan Dooley, orthopaedic surgeon, examined the plaintiff on behalf of the defendant on 6 October 2008.
94 On examination, he noted the plaintiff had mild to moderate limitation of movement in the lumbosacral spine. Straight leg raising to the right was limited to thirty degrees compared to eighty degrees on the left which produced no pain. He could detect no abnormal neurological finding, although the numbness the plaintiff complained of was in the distribution of the fifth lumbar nerve root on the right side.
95 He noted the plaintiff brought along no x-rays with her but commented that the CT scan apparently showed a right paracentral disc bulge at L4-5 level contacting the right fifth lumbar nerve root.
96 Mr Dooley believed the plaintiff was genuine in her complaints and that she suffered from an organically-based condition of prolapse of the L4-5 disc with irritation of the fifth lumbar nerve root as the cause of her sciatica. He considered there was nothing to suggest that there was any functional overlay or exaggeration of symptoms or disability and he thought it was unlikely operative treatment would be indicated in the future.
97 Mr Dooley considered the plaintiff’s back pain and right sciatica stemmed from the accident and related to the disc prolapse as the cause of her persisting pain and disability. He considered the treatment now advised and indicated, namely radiofrequency denervation for her back pain and right sciatica was reasonable given the good response to the two injections. He thought there was a reasonable chance of over fifty per cent that she would get good temporary long term relief for twelve months or so following her treatment.
98 Mr Dooley provided a supplementary report in November 2008, having seen the plaintiff’s affidavits, Mr O’Loughlin’s report, Dr Verrills’ report and the La Trobe Regional Hospital notes relating to the plaintiff’s attendance following the transport accident on 21 December 2006.
99 Mr Dooley presumed the only reason the plaintiff did not mention the accident in 2006 was because she did not sustain any further injury or aggravation to her lower back or pelvic area in that accident. He noted it was a relatively minor accident and the only injury sustained was a bruised head from which the plaintiff must have quickly recovered.
100 Mr Dooley confirmed, he agreed with Mr O’Loughlin that the plaintiff’s problem related to the lumbosacral disc injury at L4-5 on the right side.
101 The plaintiff was examined by Dr Serry, consultant psychiatrist, in February 2008 for the purposes of an AMA assessment.
102 Dr Serry noted that the plaintiff was initially very traumatised by the accident. Over time she had remained traumatised and she had also struggled to cope with weight gain and exercise limitations. She pushed herself to be active.
103 The plaintiff told him about her brother’s addiction to prescription medication which had strongly influenced her approach to her injury.
104 Dr Serry noted there was no pre-existing psychiatric illness. In his view, the psychiatric illness resulting from the accident was a Chronic Adjustment Disorder with anxiety, depression and features of traumatisation.
Investigations
105 A CT scan of the lumbosacral spine was carried out on 7 May 2004. It showed the lower two disc spaces were degenerated with prolapses noted which were more marked at L4-5 level and less marked at L5-S1 level. The disc at L4-5 level was central and also prolapsing in both posterior lateral directions. There was no neural exit foramen encroachment present over both lateral recesses which were reduced in size, particularly on the right side, where there were also hypertrophic facetal changes. No bony lesion was demonstrated and the sacroiliac joints were normal.
Overview
106 I accept the plaintiff suffered injury to her lumbar spine in the accident.
107 There is no real dispute as to a diagnosis of an organically-based condition of prolapse of the L4-5 disc with irritation of the fifth lumbar nerve root causing right sciatica.
108 The issue is whether the impairment is serious and long term.
109 The impairment to the lumbar spine must have consequences in relation to each of pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, as at the date of the hearing, as being more than significant or marked, and as being at least very considerable.
110 The term “serious” requires the impairment and its consequences to be viewed objectively and also judged on an external comparative basis against possible impairments not necessarily in the same category. See Humphries v Poljak [1992] 2 VR 129, at 170, and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441. See, in particular, Chernov JA at paragraph 29.
111 In addition to being “serious” the impairment must be long term.
112 I accept the plaintiff was an honest, credible witness who did not overstate her problems and was prepared to make concessions as to improvement in her condition at various times.
113 There was no real challenge or attack on the plaintiff’s evidence as to her level of pain and disability. Her evidence was supported by the affidavit evidence of her partner which was unchallenged.
114 Whilst there was reference in the specialist’s notes of the plaintiff having some numbness in her right leg before the accident, I note that Dr Naidoo, in his report, commented that the plaintiff had no pre-existing problems.
115 I do not accept that the second motor vehicle accident in 2006 has any bearing on the plaintiff’s present condition. When Mr Dooley examined the plaintiff on behalf of the defendant he had available to him a report from La Trobe Hospital relating to an attendance after that accident. He made no comment as to any relevant injury in his report and noted the plaintiff probably did not mention it to him because nothing had really happened. In any event, there is no evidence of any claim being made by the plaintiff to the TAC in relation to that accident.
116 I accept that the plaintiff has continued to have pain of varying intensity in her back and right leg since the accident, more significant in her leg. The pain is intrusive in all aspects of her daily activities and is more than occasional discomfort.
117 The pain is such that the plaintiff requires injections on an ongoing basis and will continue to do so to enable her to function effectively at work and at home. The need for these injections and the benefit the plaintiff has obtained from them was confirmed by Mr Dooley.
118 The plaintiff also underwent appropriate treatment in the form of
physiotherapy until her treating physiotherapist, Mr Stevenson, advised her he
was no longer able to assist.
119 The plaintiff continues to take medication, albeit non-prescription Nurofen and Panadeine Forte for pain and is not keen to take prescribed medication because of her brother’s addiction to painkillers.
120 The plaintiff at all times has been motivated to improve her physical condition, undergoing a gym and swimming program whilst it was funded by the TAC. She has been willing and eager to participate in rehabilitation and exercise regimes. She has showed a high level of motivation and at times paid for various services herself after TAC ceased funding.
121 Prior to the accident, the plaintiff was very fit and active – sport meant a lot to her, even in later life like so many people in the country, and her partner is still a very active sportsman, playing football in his forties.
122 The plaintiff is no longer able to go running, an activity she really enjoyed. She described herself as a fanatic, running up to ten kilometres a day before the accident. Whilst not a club member, she also ran once a week with the local Harriers. Although she walks regularly, as she explained in cross- examination, “walking is not the same as running”. She has put on weight due to her inability to exercise without restriction and she has lost the self-esteem, enjoyment and satisfaction her sporting and recreational activities provided her with before the accident.
123 The plaintiff played basketball at D Grade in the local women’s league for a number of seasons but had to cease last year because of back pain.
124 I do not accept that the plaintiff is running her household. Whilst she is still able to do her housework, her partner does the majority of housework and all the heavier tasks, and she also gets assistance from her children.
125 Since the accident, the plaintiff has to be cautious to not aggravate her back pain. She cannot participate freely in normal activities requiring lifting and bending. She recently had a flare-up in her back and leg pain after having assisted in moving house.
126 The plaintiff has problems driving for prolonged periods and experiences pain after sitting for an hour or so.
127 Whilst the plaintiff has continued to work fulltime, one hundred and fifty hours per month without medical restriction, she was keen to move from call station work to her present job in the office as it enables her to walk around more freely. The plaintiff does not believe she could physically do her old job because of the amount of sitting involved.
128 I accept the plaintiff’s approach to her pain has been to make a very concerted effort to get on with her life and she has shown a determination to do as much exercise as possible.
129 Because the plaintiff has got on with her life she should not be treated less favourably than a person who has simply resigned herself to her injury - Nettle JA in Dwyer v Calco Timbers Pty Ltd No 2 (2008) VSCA 260, at para 4.
130 As the plaintiff’s back pain has persisted now for six years, I consider that it is likely to be long term.
131 In all the circumstances, I am satisfied that as a result of the accident the plaintiff has a serious and long term impairment of her back.
132 Accordingly, I grant leave to the plaintiff to bring proceedings for damages in relation to the accident.
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