Bain (a pseudonym) v Transport Accident Commission
[2024] VCC 2025
•18 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-01715
| GEORGIA BAIN (A PSEUDONYM) | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE MANOVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 April 2024 and 3 October 2024 | |
DATE OF JUDGMENT: | 18 December 2024 | |
CASE MAY BE CITED AS: | Bain (a pseudonym) v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2025 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury application – pelvic fracture injury – reliability and credibility – plaintiff’s use of medication – pain and suffering
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Richards & Anor v Wylie (2001) 1 VR 79; Rowe v Transport Accident Commission [2017] VSCA 377; Palmer Tube Mills (Aust) Pty Ltd & Anor v Semi [1998] 4 VR 439; Johns v Johns v Oaktech Pty Ltd [2020] VSCA 10
Judgment: Application Dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms T Skvortsova (Victorian Bar Pro Bono Scheme) | |
| For the Defendant | Mr P Bourke (8 April 2024) Ms V Katotas | Solicitor to the Transport Accident Commission |
HER HONOUR:
Introduction
1Ms Georgia Bain[1] is a 43-year-old unemployed mother of four children, one of whom is still a minor. She is also a grandmother. In this proceeding, Ms Bain claims she suffered a serious injury to her pelvis and surrounding soft-tissue areas in a transport accident on 25 April 2013.
[1] A pseudonym
2On that day, Ms Bain was a pillion passenger on a motorcycle which her then partner was riding. The motorcycle hit a curb on Eleanore Crescent in Hallam, when the rider took the corner at a fast rate of speed and Ms Bain came off the motorcycle suffering injury (“the transport accident”).
3Ms Bain suffered a fractured left pelvis, which was treated conservatively. She claims she has had continuous pain in her perineal area since the time of the accident.
4The hearing proceeded in the usual way. Ms Bain was the only witness to give oral evidence and be cross-examined. The parties otherwise tendered various reports from a Joint Court Book.
5Ms Skvortsova appeared on behalf of Ms Bain pro bono under the Victorian Bar Pro Bono Assistance Scheme. She provided considerable assistance to Ms Bain in the presentation her case, including the drafting of an affidavit.
6Ms Katotas appeared on behalf of the defendant.
The relevant legal principles
7The legal principles are well known and not in dispute. For convenience, they have been reproduced below in outlining how the Court must approach its analysis in determining whether to grant or dismiss Ms Bain’s application.
8The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s 93(17) of the Transport Accident Act 1986 (Vic) (“the Act”).[2]
[2] See s 93(6) of the Act
9Ms Bain relies on a pelvic fracture which was said to affect the function of the “pelvis and surrounding areas being hip, groin buttock and thigh”,[3] pursuant to subparagraph (a) of the definition of “serious injury” contained in s 93(17) of the Act, which states:
“serious injury means––
(a) serious long-term impairment or loss of a body function;”
[3] Transcript (“T”) 2 and T88
10In order to succeed in her application, Ms Bain must prove, on the balance of probabilities, that on the day of hearing of her application:
(a) the “injury” claimed in the application was a result of the transport accident;
(b) when compared with the range or spectrum of comparable cases, the claimed injury is objectively serious;
(c) the seriousness of the injury is to be judged by reference to the consequences relating to pecuniary disadvantage and/or pain and suffering, and it must be “more than ‘significant’ or ‘marked’” or “at least as very considerable”;[4] and
(d) “serious injury”, as defined in sub-paragraph (a), can have its seriousness measured, in part, by a mental response to a physical impairment. However, the mental disorder cannot, itself, constitute or be the producer of, the impairment of a body function.[5]
[4] Humphries & Anor v Poljak [1992] 2 VR 129 at 130
[5] Richards & Anor v Wylie (2001) 1 VR 79
11In Rowe v Transport Accident Commission,[6] the Court of Appeal said that it is not sufficient for a plaintiff to show that the transport accident was a cause of his/her current total condition:
“… As s93 of the Act requires, and as this Court has made plain in Petkovski, Skorsis Fillipowicz and De Agostino, the task of the judge hearing an application under s93(4)(d) of the Act requires the judge to identify an injury that occurred as a result of the transport accident in question and then to determine whether that injury is serious in the defined sense.
That is not to say, however that earlier traumas are not relevant. An exacerbation of an earlier injury may itself have consequences which meet the statutory test. Similarly, conditions, symptoms or consequences that arise later in time (and perhaps after a later trauma) may be relevant if those later conditions, symptoms or consequences can be said to result from the transport accident in respect of which leave is sought to commence proceeding.”[7]
(Footnotes omitted.)
[6][2017] VSCA 377
[7] Ibid at paragraphs [82]-[83]
The issues before the Court
12There is no dispute that in the transport accident, Ms Bain suffered a fracture of her pelvis, on the left side.
13The Transport Accident Commission (“TAC”) disputed Ms Bain’s current complaints were attributable to the accident.
14The TAC also disputed any pecuniary loss consequences on the basis there are a range of other non-accident-related reasons why Ms Bain has not, in the past, and cannot now, return to employment.
Background
15Ms Bain has had a sad and tragic life. She has been the victim of childhood abuse, domestic violence, drug abuse, homelessness, and her children have been placed in kinship placements, by the Department of Human Services (“DHS”), as it was then known.
16Ms Bain was born in 1981 and is currently 43 years old.
17She left school in Year 9 when she was 15 years old. Her first child was born in 2000 when she was 18 years old, and she became a stay-at-home mum.
18A year later, Ms Bain had her second child.
19It is not clear when, but sometime after 2001 when her second child was born, Ms Bain attended a beauty school in Dandenong and qualified as a beautician. She worked as a beautician for a number of years until 2006, when her third child was born. She has not worked since.
20In January 2013, Ms Bain’s fourth child was born. He was less than three months old at the time of the transport accident.
21Ms Bain has struggled with drug and alcohol abuse throughout her adult life. She has used opiate medication prescribed by her doctor, as well as a range of drugs purchased on the “black market”. She has been treated for depression, back pain, Scheurman’s disease and problems with her teeth.
22On the day of the transport accident, Ms Bain presented to the Emergency Department at Dandenong Hospital[8] and was assessed by Dr Clara Yip. She was discharged after x-rays of her pelvis were performed.
[8]Joint Court Book (“JCB”) 310; the Emergency Department notes suggest Ms [Bain] was able to walk away from the accident and presented to the Emergency Department with left hip and buttock pain, but her affidavit suggests she was taken by ambulance to the hospital (JCB 8). The hospital records suggest the trip in the ambulance was on 27 April 2013, when she was picked up from a factory in Moorabbin (JCB 239).
23On 27 April 2013, two days after the accident, Ms Bain returned to the hospital. A CT scan was performed and a left-sided pelvic fracture was diagnosed.[9] Ms Bain spent approximately one week in hospital and was discharged home with analgesic narcotic medications.
[9] JCB 247
24For some months after her discharge, Ms Bain had trouble walking and was using a wheelchair and crutches. Her treating doctor prescribed pain-relieving medications.
25Following the accident, Ms Bain had difficulty coping as she was responsible for four young children, one of whom was a newborn baby. Ms Bain was also using illegal drugs, was homeless and living out of her broken-down car. Eventually, the DHS became involved with the children and they were placed in kinship placements.
Ms Bain’s evidence
Treating medical practitioners
Dr John Pantazopoulos, Chiropractor
26On 20 June 2007, Dr Pantazopoulos reported to Ms Bain’s general practitioner (“GP”) that he had assessed her in one consultation for chronic back pain and weakness. She had failed to attend for follow-up care.
Dr Clara Yip, Dandenong Hospital Emergency Department
27On 26 April 2013, Dr Yip reported to Dr John Pragastis that Ms Bain had been assessed following the transport accident. She was complaining of left-sided buttock and hip pain. An x-ray of her pelvis was taken and she was discharged with Panadeine Forte.[10]
[10] JCB 310-311
Dr John Pragastis, GP
28On 9 December 2016, Dr Pragastis reported to the TAC about his treatment of Ms Bain following the transport accident. Between 2 August 2013 and 10 November 2016, she attended frequently with complaints of pelvic pain, for which he prescribed Endone. Dr Pragastis considered Ms Bain “has persistent pelvic pain. She has been deteriorating, her sex life is affected and … these injuries are permanent”.[11]
[11] JCB 188
Dr Chien Kow, neurosurgery registrar, Monash Health
29In February 2021, Dr Kow reported to the Stud Road Medical Centre that Ms Bain had been referred for “low back pain and pain after having a fall”, but she was not contactable and no MRI scan could be performed.[12]
[12] JCB 315
Dr Martin Hill, GP, Stud Road Medical Centre
30On 1 October 2024, Dr Hill reported that since Dr Pragastis retired, Ms Bain had been “attending this clinic to continue her prescription of Pregabalin … for ongoing neuropathic pain related to lower back pain and right sided sciatica”.[13]
[13] JCB 429
31The parties also tendered progress notes of Ms Bain’s attendance at the Dandenong Hospital and on four clinics:
(a) Cleeland Street Medical Centre between April 2000 and October 2018;[14]
(b) Stud Road Medical Centre between March 2014 and June 2023;[15]
(c) Dandenong Superclinic between December 2021 and May 2024;[16] and
(d) South Eastern Deputising Service for three consultations between 22 May 2022 and 15 July 2023.[17]
[14] JCB 150-187
[15] JCB 191-234
[16] JCB 407-425
[17] JCB 426-428
32I will refer to relevant parts of the notes from these clinics where relevant, under the section headed “Analysis”.
Ms Bain’s medico-legal experts
Mr Douglas Gardiner, orthopaedic surgeon
33On 21 June 2016, Mr Gardiner provided a report to Ms Bain’s then solicitors and the TAC.[18]
[18] JCB 26
34Mr Gardiner noted a prior history of chronic back pain, as well as substance abuse.
35On examination, Ms Bain complained of ongoing right upper lateral pain and pain in the depths of her right groin. Following the transport accident, she had not noted any increase in her chronic back pain.
36Her treatment had been analgesics which included Oxycontin, Endone and Panadeine Forte.
37Mr Bain considered two investigations, a CT IVP undertaken on 27 April 2013, and an x-ray of the pelvis undertaken on 11 June 2016.
38The CT IVP demonstrated:
“Comminuted mildly displaced fracture of the left superior pubic ramus, with likely adjacent pelvic haematoma in the retropubic space of Retzius and adjacent to the left lateral wall of the bladder. … .
Comminuted, minimally displaced fracture of the left sacral ala with likely adjacent pelvic haematoma in the presacral space. … .”[19]
(Emphasis added.)
[19] JCB 145
39The x-ray report demonstrated a healed superior and inferior pubic rami on the left and no evidence of skeletal injury on the right.
40Mr Gardiner commented that the x-ray report had confused the location of the fracture as having been on the right, rather than the left.
41Mr Gardiner considered he could provide no diagnosis for the alleged impact injury to the right side of the pelvis, as there was no appropriate imaging, such as an MRI scan. He considered Ms Bain’s complaints of right hip pain were not entirely consistent with the examination findings. The degree of disability was moderate, because Ms Bain was able to do some of her daily household chores.
42On 9 April 2019, Mr Gardiner again reported to Ms Bain’s then solicitors and the TAC.[20]
[20] JCB 88
43The progress notes of Ms Bain’s treating GP had been provided to Mr Gardiner. He noted a 16-year history of degenerative spine disease and Scheuermann’s disease. A note dated 26 February 2013 provided that Ms Bain had been engaged in heavy lifting and was suffering from right buttock pain with a sciatic recurrence.
44At this assessment, Ms Bain is recorded to have complained of left groin and perineum pain. The report refers to her previous presentation to Mr Gardiner with right-sided pains. Mr Gardiner recorded complaints of lower back pain, left-sided pelvic pain and right-sided discomfort in the buttock and right sacroiliac joint. There were also pains recorded in the left buttock, left thigh and left sacroiliac joint, with left perineum pains.[21]
[21] JCB 89-90
45An MRI scan of the pelvis had been provided to Mr Gardiner. The report concluded that the right hip was unremarkable and the articular cartilage was normal without effusion. There was no labral tear visible. The lumbar spine at L5-S1 was affected by degenerative changes and a disc bulge at L5-S1 causing impingement on both the exiting nerve roots and the traversing nerve roots. It confirmed that the left side of the pelvis had been fractured, contradicting the original Dandenong Emergency Department report.[22]
[22] JCB 91
46Mr Gardiner diagnosed fractures to the left superior and inferior pubic rami and the left ala of sacrum not involving the left sacroiliac joint. There was also an impact injury to the right side of the pelvis, with no abnormality of the right hip. He further reported that, according to the Discharge Summary from the original hospital presentation, Ms Bain also had a soft-tissue injury to the perineum and the existing degenerative disease affecting L5-S1 had been slightly aggravated, resulting in a disc bulge partly compressing the traversing and exiting nerve roots.[23]
[23] JCB 92
47Mr Gardiner noted there had been a confusion associated with Ms Bain’s presentation between his two assessments. On this occasion, Ms Bain was complaining of left-sided pain in her pelvis with lower back pain radiating to her left lower extremity. She also had right-sided pain associated with the soft-tissue structures of her right hip, all of which were causing significant disability with domestic and social activities.[24]
[24] Ibid
48Mr Gardiner reported that the pelvic and perineal pains were likely to continue into the foreseeable future. He had some doubts about whether the transport accident aggravated her previous lower back discomfort, as her midthoracic spine was affected by Scheuermann’s disease.[25]
[25] JCB 93
49Mr Gardiner considered there was also strong evidence Ms Bain had suffered from lower back pain and left lower-extremity pain prior to the transport accident. He confirmed the diagnosis in his previous report and said any aggravation of the pre-existing condition was not major. He was unable to attribute any impairment to the transport accident.[26]
[26] Ibid
50Mr Gardiner was asked to comment on the relationship between the transport accident and the diagnosed conditions. He reported that:
“The road traffic accident resulted in pelvic fractures as described and the current pelvic and perineal pain from which Ms [Bain] currently suffers. I do not believe that Ms [Bain] suffers from any other injuries aggravated by the transport accident. However, the entire cause of the pelvic injury is the road traffic accident.
…
… she would be fit for sedentary duties.”[27]
[27] JCB 94-95
51Mr Gardiner considered Ms Bain did not require any further treatment. She would continue to suffer from moderate pelvic and perineal pain in the foreseeable future and no specific treatment would alter this prognosis.
Mr Russell Miller, orthopaedic surgeon
52On 6 September 2019, Mr Miller reported to Ms Bain’s then solicitors. When he examined Ms Bain, her main complaint was lower back pain radiating into the buttocks, groin and thigh, predominantly on the right. There was also diffuse ache, discomfort and pain in the buttocks, groins and thighs. Ms Bain had difficulty walking on uneven ground and occasionally walked with a limp. Her symptoms fluctuated, causing sleep disturbance and difficulties with daily activities. She was taking a range of over-the-counter painkillers, as well as OxyContin.
53Examination of the thoracolumbar spine revealed diffuse tenderness without muscle spasm. Her hips had normal range of movement and she walked with a normal gait.
54Mr Miller also viewed the imaging which had been provided to Mr Gardiner (x-ray of the pelvis, CT scan of the abdomen and pelvis and an MRI scan of the right hip).
55Mr Miller diagnosed an injury to the lumbosacral spine, which included musculoskeletal ligamentous strain and aggravation of degenerative disease. There was no evidence of radiculopathy, neurological deficit or structural injury. Ms Bain had developed a chronic pain syndrome from this injury.[28]
[28] JCB 101-102
56Mr Miller reported there had been a pelvic injury involving a fracture of the left superior pubis ramus and left sacral ala, but without evidence of arthritic disease and with a good prognosis.[29]
[29] JCB 102
57Mr Miller said the relationship between the spinal injury and the accident was complex and multifactorial. It included the pre-existing disease, the described injury and the subsequent development of a chronic pain syndrome, but her “current clinical status [was] regarded as being substantially accident related”.[30] He reported that the ongoing Scheuermann’s disease was not relevant to the claim, Ms Bain was unlikely to benefit from surgery, and the development of arthritic disease was low. He also stated she would have difficulty performing work which involved large amounts of prolonged standing, walking, twisting, turning, kneeling, squatting, walking on uneven ground and climbing, and she had difficulty with domestic and gardening activities.[31]
[30]Ibid
[31] Ibid
The TAC’s medical evidence
Mr Kevin Siu, neurosurgeon
58On 17 March 2022, Mr Siu was asked by the TAC to provide a report dealing with Ms Bain’s medical history and her post-accident treatment. He was provided a copy of Ms Bain’s clinical file maintained by her treating GP. He was asked to comment on the alleged injuries of pelvis/bilateral hips and groin and spine.[32]
[32] JCB 102-104
59On 1 April 2022, Mr Siu reported to the TAC.[33] At the time of assessment of Ms Bain, nine years had passed since the transport accident.
[33] JCB 431
60Mr Siu recorded a history of chronic back pain for five years prior to the transport accident.
61Mr Siu had access to a CT scan and the clinical notes from the Dandenong Hospital dated 26 April 2013. The CT scan reported a fracture of the left superior pubic ramus with likely adjacent pelvic haematoma in the retropubic area.
62Mr Siu reported:
“I need to emphasise presently [Ms] [Bain] told me the main problem is pain down the right side.
…
Presently she has pain in the midthoracic region with pain down the right lower limb. However, the pain is intermittent. She would get pain down the right lower limb maybe three of four times per week. She would take Lyrica and the pain would subside in an hour … she actually sees her general practitioner on a monthly basis to get Lyrica. … .”[34]
[34] JCB 105
63On examination, Ms Bain had a normal gait, could forward flex to midcalf, her lateral flexion was equally good and her lower limb reflexes were all present. Neurological examination of the left lower limbs was normal.
64Mr Siu considered he was not qualified to comment on the fractured pelvis and recommended an opinion be sought from a general surgeon. As for the lumbar spine, Mr Siu considered she likely suffered a torsional injury to the lumbar spine when she was thrown off the motorbike, however the imaging suggested degenerative changes, and the clinical features did not suggest any nerve root irritation. There was no radiological evidence of any damage to the lumbar spine or discs.[35]
[35] JCB 106
65Mr Siu concluded Ms Bain had:
“… chronic pain of a nonspecific nature … .
There are pre-existing symptoms of back pain … there is no relationship between her symptoms prior to the motorbike accident and her current symptoms. … .
…
… her main problem is pain in the pelvis and the groin, especially on awakening.
…
… The back pain down the right leg is occurring approximately three or four times per week, lasting for one hour. This is not the picture of nerve root irritation.”[36]
[36] JCB 108
66Mr Siu further reported that he could see no reason why she could not return to appropriate employment.[37]
[37] JCB 108-109
Dr Anthony Menz, consultant orthopaedic surgeon
67On 22 August 2022, Dr Menz provided an impairment assessment to the TAC. He had been provided with a number of documents, including the MRI scan of the right hip dated 21 February 2019[38] and the progress notes of Ms Bain’s treating GP.[39]
[38][39]68Dr Menz reported that Ms Bain’s ongoing problems related to left anterior thigh pain and pain around the left hip joint, which Ms Bain rated as 10/10 level pain.[40]
[40] JCB 150-187
69On examination of the left hip, all movements were painful and limited. Putting her leg into a figure-four position revealed a sacroiliac joint dysfunction. Examination of the right hip was normal with pain-free range of movement.[41]
[41] JCB 114
70Following his review of the GP progress notes, Dr Menz said:
“…she has been extensively investigated with multiple radiological investigations and no significant abnormality [had been] found.
…
The diagnosis is a fracture of the right superior pubic ramus and a fracture of the left sacral ala. These injuries have resolved.”[42]
[42] JCB 115
71Dr Menz said:
“I do not consider there is any ongoing radiological support for Ms [Bain’s] serious and current complaints. She complains of 10 out of 10 pain but that was not the impression I had today and certainly the fracture she sustained at the motor vehicle accident of some nine years ago could not explain ongoing pain of that nature.
…
I do not consider my findings on examination are consistent with Ms [Bain’s] current complaints of injury and disability.
…
… there is a significant functional component associated with [Ms Bain’s] perpetuation of her symptoms. … .”[43]
[43] JCB 116-117
Ms Bain’s evidence
72Ms Bain made two affidavits in support of her application. The first was sworn on 17 April 2019 and the second was sworn on 22 July 2024.
73In her first affidavit, Ms Bain provided details of her prior medical history[44] and deposed to the following pain and suffering consequences arising from the “injuries to [her] hips, groin, pelvis and lower back”[45] arising from the transport accident as follows:
[44] JCB 117
[45] JCB 12-14
(a) significant pain immediately following the accident due to the initial misdiagnosis, thereafter, significant restriction in walking and difficulty in looking after her baby and other children, having to rely on crutches and a wheelchair;
(b) continuing to experience back, groin and pelvic pain;
(c) in August 2013, her GP prescribed strong painkillers called Zydol and she was continuing to experience back and pelvic pain;
(d) over “the next few years”, the GP continued to prescribe strong painkillers;
(e) she eventually left her partner with her four children “because of the accident” and became homeless for a period, sleeping in her car parked in her mother’s driveway. During this period, she could not afford medication;
(f) in late 2016, she was prescribed Oxycontin and Endone, she was also using amphetamines and DHS became involved with her children and placed them in kinship placements;
(g) (as at 2019), her medication regime was over-the-counter medications with OxyContin, 10 milligrams, for when she really needed it;
(h) prior to her accident, if the records of her doctor show she was being prescribed strong painkilling medication, it was not for her, it was for her husband, but she obtained it as it was cheaper on her healthcare card;[46]
(i) her symptoms (as at 2019) were pain in her back radiating into her buttock and hips. The back pain restricted her ability to stand, sit and walk for prolonged periods, and she was unable to play games with her grandsons due to back pain;
(j) the back injury impacted her intimate life with her partner, her ability to sleep and to do housework. Basic self-care tasks were difficult due to back pain. She has been unable to enjoy her hobbies of camping and riding dirt bikes;
(k) due to the back injury, she could not return to work;
(l) she also had intermittent pain in her pelvic area, which impacted on her abilities to do housework and play with her grandsons. It also affected her relationship “in the same way that [her] back injuries do”; and
(m) she had a fear of driving, felt low and struggled with her mood.
[46] JCB 8
74In her second affidavit, Ms Bain deposed that the purpose of the affidavit was to “try to focus as best as [she] can on the effect of the pain in [her] hips (which [she referred] to as pain in [her] hip and pelvic pain and to provide an update as to how this pain affected [her] life. In particular, the following consequences of the “pain [her] hips or in [her] pelvis” were said to be:
(a) constant pain on the left side of her pelvis (in the front of her pelvis and around to the back);
(b) constant sciatica pain in the right rear of the pelvis. which travelled down her right leg;
(c) after separating from her first partner, her next partner was Marcus;[47] who was violent, abusive and with whom she used drugs, which “helped [her] stop thinking about how bad the pain [she] was feeling was, and how much it had and was affecting [her] life”;[48]
(d) around six years ago, she separated from Marcus and stopped using drugs;
(e) her current partner is Aaron,[49] with whom she has been in a relationship for five years. He provides care and support;
(f) she continued to suffer constant pain in her pelvis, which meant she needed help to get out of bed each morning; her sleep was disrupted; she found it hard to find a pain-free position; she needed help with daily chores and she found it painful to do housework, such as dishes, laundry and sweeping the floor;
(g) the pain affected her intimate life;
(h) she now walked with a limp to avoid pain;
(i) she found it difficult to play with her grandchildren due to her pelvic pain;
(j) currently, she takes Lyrica, 300 milligrams daily, for the pelvic pain; and
(k) she felt unable to return to work as a beautician because of the amount of standing required.
[47] A pseudonym
[48] JCB 14
[49] A pseudonym
75Ms Bain also tendered affidavits of her daughter and partner in support of her application.
76In cross-examination, Ms Bain said:
(a) she could not recall why she had been prescribed regular pain medications between 2008 and 2009 and could not recall if it was prescribed for her back;[50]
[50] JCB 340-341
(b) before the transport accident, she had longstanding back pain in her upper back (and she had been diagnosed with Scheuermann’s disease in 2007);[51]
[51] T7-8
(c) she went to the chiropractor, Dr Pantazopoulos, in 2007 only once, because she did not feel comfortable with him;[52]
[52] T8
(d) she could not recall if she had sciatica pain in February 2013 as a result of moving heavy things;[53]
[53] T10
(e) between January 2014 and May 2016, there were no complaints of pain recorded by Dr Pragastis, and she was not being prescribed medication, as she bought Panadol from the supermarket, and was buying Oxycontin and Valium on the streets, and using heavy drugs;[54]
[54] T13
(f) doctors were refusing to give her pain medication because she was taking illicit drugs;[55]
(g) she had not engaged in any work since the accident, and any medical certificates suggesting she was unfit for work were possibly obtained for court or Centrelink, rather than for employment-related reasons;[56]
(h) she has not received any physiotherapy or other treatment for the pelvis or hip, because she did not know she could claim it through TAC, and also thought she had to pay for it herself and then the TAC would reimburse her, but she had no money to pay for it herself;[57]
(i) her main injury now was on the left side under her bottom, and sciatica down the right, which she had before the accident, but the left side is worse now.[58] She also has pain in her left buttocks and groin area;[59]
(j) when asked why she had undergone an MRI scan to her right hip, Ms Bain said it was because she gets sciatica pain down the right side and pelvis pain down the left;[60]
(k) ever since the accident, she had always had problems with her lower back;[61]
(l) she was buying Lyrica on the street because Dr Pragastis (in January 2016) only put her on 75 milligrams and she had been buying 300 milligrams on the street;[62]
(m) currently she takes Lyrica for her pelvic pain, prescribed by Dr Mohammad Jabbar;[63]
(n) Ms Bain did not accept she had provided incorrect information in her affidavit when she said she had been on pain medication continuously since the accident, because, even when the doctor was not prescribing pain medication for her, she was buying it on the street;[64] and
(o) Ms Bain did not accept Dr Hill was prescribing Lyrica for her back and sciatica, she said “it was for my pelvis”.[65]
[55] T16-17
[56] T19
[57] T20-22
[58] T33-34
[59] T28
[60] T38
[61] T40
[62] T45
[63] T47
[64] T49
[65] T49-50
77In re-examination, Ms Bain said:
(a) her longstanding back pain affected her midback where her bra strap sits, that is where her Scheuermann’s disease is;[66]
(b) prior to the accident, she had no memory of ever being prescribed pain medication for her pelvis/hips;[67]
(c) any pain she might have nominated in February 2013 went away prior to the transport accident;[68]
(d) when she was taking illicit drugs[69] and prescription medicine purchased on the street, these were helping with her pain;[70]
(e) she was planning to return to work after her last child went to school;[71]
(f) any pain she had described as being in her “groin area” was really pain in her “vagina area” and she told her GP, Dr Pragastis, about it as she had a good relationship with him, but no such relationship with other male doctors, given her childhood issues. She had never asked for a female doctor;[72]
(g) she also had pain in her left buttocks and sciatica pain in her right leg starting from her buttock and going down her thigh;[73] and
(h) she knew a doctor would prescribe Lyrica for her if she said she had sciatica.[74]
[66] T51
[67] T53
[68] T53-54
[69] T55
[70] The evidence of Ms [Bain] was that for about two years prior to 2016, she used intravenous heroin.
[71] T57
[72] T60
[73] T61 – T64 and T66 – T67
[74] T32 and T58
Submissions of the parties
78Counsel for the TAC submitted as follows:
(a) Ms Bain had to disentangle the consequences of various other non- accident-related conditions from the claimed consequences of her pelvic injury, including the reasons why she was taking Lyrica.[75]
(b) according to the current treating GP Dr Hill, Ms Bain was receiving prescriptions for Lyrica for her back pain and right-sided sciatica, not her pelvic pains;[76]
(c) there were discrepancies between Ms Bain’s affidavits and her evidence. The first affidavit focused on lower back pains, which alleged injury has now been abandoned, and the second affidavit focused on pelvic pains;[77]
(d) Ms Bain had not deposed to her previous drug problems, which impacts on her credibility;[78]
(e) her claim for constant medication use in her affidavit was inconsistent with the medical records;[79]
(f) there was no clear causal link between the accident and Ms Bain’s current complaints. The prescription for Lyrica appears related to the lower back pain, rather than pelvic pain, and therefore Ms Bain does not meet the serious injury threshold;[80]
(g) there was a significant functional element to Ms Bain’s presentation as found by Dr Menz and her claims of pain are not supported by the objective radiological investigations;
(h) there is no evidence from any treating doctor supporting Ms Bain’s claim and no evidence of referral for specialist treatment for her pelvic injuries;[81] and
(i) any inability to work was attributable to Ms Bain’s drug use and mental health issues, there was no physical impediment to her returning to work.
[75] T67
[76] T86
[77] JCB 429
[78] T71 – T73
[79] T71
[80] T83
[81] T71 and T79
79Counsel for Ms Bain submitted as follows:
(a) the degenerative changes and L5-S1 nerve root impingement are not an injury that is relied on for the purposes of the application;[82]
(b) Ms Bain suffers from a diagnosable pelvic condition directly caused by the transport accident and supported by radiological investigations taken at the time of the accident;
(c) it was conceded there was no radiological or medical opinion evidence linking the sciatica and hip pains to the pelvic fracture;[83]
(d) Ms Bain’s treating GP had documented pelvic pain consistently between 2013 and 2018;
(e) Mr Gardiner’s opinion provides support for the proposition that the transport accident caused the pelvic pains which continue today. Even if the progress notes of the current GP make no reference to the pelvic pains, I ought to accept Ms Bain’s evidence on oath;[84]
(f) Dr Jabbar noted pelvic and other neuropathic pains during consultations;[85]
(g) the consistency of Ms Bain’s reporting of pain complaints was supported her credibility. Any variations in her account reflected the evolving understanding of her condition, rather than dishonesty or exaggeration;[86]
(h) Ms Bain consistently sought treatment from her GP for her pains. Any purchase of drugs on the black market was an attempt to manage inadequately-treated pain and explains her infrequent visits to the doctor for pain medications;[87]
(i) Dr Hill’s report ought not be given much weight, because Ms Bain said she does not have as good a relationship with him as she had with Dr Pragastis;[88] and
(j) Any lack of specialist treatment is to be explained by the circumstances of Ms Bain, including that she was not overly sophisticated or able to be a good advocate for herself.[89]
[82] T83 – T84
[83] T97
[84] T89
[85] T99 – T101
[86] T101 – T106
[87] T91 – T92, T105 and T116
[88] T117
[89] T127 ꟷ T128
Analysis
Injury
80There is no dispute Ms Bain suffered a fracture on the left side of her pelvis in the transport accident. Radiological investigations confirmed Ms Bain suffered a mildly-displaced comminuted fracture of the left sacral ala, with likely adjacent pelvic haematoma in the presacral space.[90]
[90] JCB 125
81I therefore accept the submission on behalf of Ms Bain that she had a diagnosable pelvic condition caused by the transport accident and supported by the radiological investigations.
82I also accept the submission on behalf of Ms Bain that between 2013 and 2018, her GP frequently documented complaints of pelvic pain. So much is recorded in his notes, which are discussed below.
83However, the state of the evidence is such that it is difficult to determine what the consequences of the pelvic injury are at the date of the hearing and whether they will continue into the foreseeable future.
84In particular, there is no evidence in support of the submission that the pains associated with the “hips, groin, buttock and thigh” are attributable to the pelvic fracture.
85Prior to the transport accident, Ms Bain had treatment for an injury affecting her lower back, and after the transport accident there has been an inconsistency in the localisation of pain complaints recorded by doctors. Even her affidavits have emphasised different injuries at different times. The first affidavit focused on the lower back, which was later abandoned, and the second affidavit focused on the pelvis, which was only a minor feature in the first.
86Counsel for Ms Bain appropriately conceded there was no radiological or expert medical evidence linking the sciatica to the pelvic injury, however, sought to rely on Ms Bain’s evidence of the continuity of her pains and her in-court demonstration of her pain being “right buttocks, circling around the hip and then down the front of her right leg”.[91]
[91] JCB 145
87I do not accept that submission.
88The weight of the evidence contradicts it. Further the totality of the expert evidence supports an unambiguous separation of the consequences of the pelvic fracture from the pains associated with the lower back, sciatica and hip.
89The notes of Dr Pragastis show that, in the months prior to the transport accident, Ms Bain was treated for recurrence of right sciatica and right buttock pain, and was prescribed Codalgin Forte and Naprosyn.[92]
[92] T91
90Mr Gardiner observed, in 2019, that Ms Bain’s lumbar spine was affected by a disc bulge at L5-S1, causing an impingement on the exiting and traversing nerve roots.[93] This likely explains her pain and sciatica, which Ms Bain experienced prior to the transport accident.
[93] JCB 175-177
91Mr Miller diagnosed a lumbar spine injury (aggravation of degenerative disease) without radiculopathy, but with a chronic pain syndrome. He diagnosed a separate pelvic injury.[94]
[94] JCB 91
92Mr Siu expressly chose to make no comment on the fractured pelvis, but diagnosed a “torsional injury to the lumbar spine”, with degenerative changes and without nerve root irritation.[95]
[95] JCB 101-102
93Dr Menz diagnosed a left sacroiliac joint dysfunction. Separately, he considered the pelvic fracture and said it had resolved, and there was currently no radiological explanation for the current complaints.[96]
[96] JCB 108
94Based on the totality of the medical evidence, I consider there is no basis on which to make findings that the buttocks, hips, thigh or sciatica are in any way affected by the accepted pelvic injury.
95Ms Bain’s application expressly abandoned any back injury or disc prolapse which might have been said to have been aggravated by the transport accident and focused solely on the pelvic injury.
96I will therefore consider the pelvic fracture injury alone to determine whether Ms Bain’s pain and suffering consequences arising from that injury meet the statutory test as at the date of hearing.
97Counsel for Ms Bain submitted it was possible to put together a combination of circumstances which support the existence of ongoing pelvic pain since the time of the accident. The cornerstone of the submission relies on the Court’s acceptance of Ms Bain’s evidence about the continuity of her pelvic pains from the date of the accident to the present.
98For reasons which follow, I do not accept Ms Bain’s evidence as I find her to be an unreliable witness.
Credit or reliability
99In an application such as this, the credit or reliability of a plaintiff is often of great importance, both directly and indirectly. The opinions of medical witnesses and other experts depend upon what they have been told by a plaintiff and upon a plaintiff’s behaviour and performance on examination, and on testing.[97]
[97] JCB 115
100Credit or reliability is also important, because the Court must be satisfied of the alleged consequences and their impact on a plaintiff’s residual capacity.
101It is undesirable to form a view of the credibility or reliability of a witness by reference to their evidence alone. Credibility and reliability impressions are best tested against the entirety of the evidence, including incontrovertible facts or uncontested testimony. In particular, the contemporaneous notes and objective evidence plays a significant role in my assessment of important aspects of Ms Bain’s evidence.
102Counsel for the TAC submitted Ms Bain was forthcoming about her use of illegal drugs, but otherwise provided misleading evidence in her affidavits when she claimed she had been on pain medications for the transport accident injury from the time of the accident.[98] Further, there had been other significant inconsistencies in her affidavits which did not add up, one of these was the lack of treatment for the pelvic condition.
[98]Palmer Tube Mills (Aust) Pty Ltd and Another v Semi [1998] 4 VR 439 at 448 (per Brooking JA); Johns v Oaktech Pty Ltd [2020] VSCA 10 at paragraph [76].
103Counsel for The TAC also submitted the records showed Ms Bain had not been continuously prescribed pain medication for the transport injury and Lyrica medication had been prescribed for her back and sciatica, which was not a claimed injury.[99]
[99] T73
104Ms Bain’s counsel submitted that I can and ought to rely on Ms Bain’s evidence.
105Resolution of this aspect of Ms Bain’s evidence is complex.
106My impression of Ms Bain as a witness was that she appeared to be doing her best to tell the truth. I accept she made admissions about her illicit drug use which were generally supported by the contemporaneous evidence. However, her evidence about the ongoing (and current) pelvic pains and treatment with Lyrica was not supported by the contemporaneous evidence.
107I have considerable sympathy for Ms Bain’s tragic life circumstances and difficulties. The evidence shows her history of drug use has impacted negatively on her life. It appears she has lost almost all of her teeth due to drug use.[100] At times, she has been homeless and her children have been placed with others. She has had relationship and other difficulties, doubtless, drugs have featured in those difficulties.
[100] Ibid
108I consider all of these matters have likely played a significant role in Ms Bain’s perception of events, her ability to recall them and her ability to retell them accurately in Court.
109There were also aspects of her evidence which I found difficult to reconcile, either due to inconsistency with other evidence or because it made no sense.
Use of opiates prior to the transport accident
110Prior to the transport accident, Ms Bain was frequently prescribed Panadeine Forte and a range of other strong medications by Dr Pragastis.[101]
[101] JCB 71
111Unfortunately, most of his notes do not reveal the reasons for the prescriptions, and perhaps, unsurprisingly, Ms Bain, in her oral evidence, could not recall why those prescriptions were provided to her. In particular, she could not recall whether they had been prescribed to her for back pain, she thought maybe some of them were for her teeth and others for haemorrhoids.[102]
[102]Between 5 July 2000 and April 2013, Dr Pragastis frequently prescribed, Panadeine Forte, Codeine
Linctus, Tramadol Hydrochloride, and Codalgin Forte. The notes also show prescriptions for other
strong medications such as Crysanal, Tenuate Dospan, Duromine, Valium and Temaze (JCB 150- 176).
112However, Ms Bain’s first affidavit painted a different picture. In that affidavit, Ms Bain deposed that prescriptions of Panadeine Forte and Panamax prior to the accident were not for her. She was obtaining the prescriptions for her husband, who was working and therefore not eligible for a healthcare card. She used her healthcare card to fill the prescriptions at a significant discount.[103]
[103] T8 ꟷ T9 and T11
113Ms Bain’s oral evidence was that, prior to January 2018 when Dr Pragastis first prescribed Lyrica for her, she had been buying 300-milligram tablets of Lyrica “off the streets”[104] and had not been to a doctor seeking prescriptions.
[104] JCB 14
114I had difficulty understanding why, prior to the accident, Ms Bain would obtain prescriptions for, and purchase, pain-relieving medication for her husband on her healthcare card “at a significant discount”, but after the accident, did not use the same card to obtain prescriptions for herself.
115It made no sense she would purchase the Lyrica on the black market instead of getting it at a discount from her doctor. It is improbable the back-market price of Lyrica would be less than the ”significant discount” available on her healthcare card.
116I raised this issue with both parties. Counsel for Ms Bain submitted the explanation could be found in the evidence of Ms Bain, that she was using illicit drugs in the two years between January 2014 to June 2016 (and not going to the doctor for prescriptions).[105]
[105] T47
117I do not accept that submission. During that period, Ms Bain attended Dr Pragastis on a number of occasions and prescriptions were provided to her, including a prescription for Zydol.[106] During the same period, Ms Bain also attended the Stud Road Medical Centre frequently and some of the records suggest she was “asking for Panadeine Forte”.[107]
[106] T117 ꟷ T118
[107] JCB 178-179
118I found this aspect of her oral evidence made no sense. The oral evidence and the affidavit cannot both be correct.
119If what Ms Bain deposed in her affidavit is correct, one has to wonder what history Ms Bain was providing to her doctor which caused him to prescribe her strong medication which she did not need.
120What Ms Bain said in her oral evidence cannot be correct.
121Dr Pragastis’ notes show that a variety of strong medications were being prescribed for Ms Bain over a significant period of time. Had Ms Bain wanted Lyrica for her pain, it is likely Dr Pragastis would have prescribed it and there would have been no need for her to purchase it on the black market.
122It is inherently improbable Ms Bain would buy Lyrica on the black market when she had a healthcare card and her GP was apparently willing to prescribe strong medication to her.
Use of Lyrica and obtaining prescriptions from multiple clinics
123The evidence from three clinics attended by Ms Bain shows that from approximately 2021 onwards, Ms Bain was obtaining regular monthly prescriptions for Lyrica from two clinics at a time.
124Evidence from a fourth clinic shows that during the same time, she also attended seeking Lyrica for reasons such as a lost prescription or sciatica pain.
Cleeland Street Medical Centre (Dr Pragastis)
125The progress notes of the Cleeland Street Medical Centre show that Ms Bain attended on Dr Pragastis between 2000 and 2018.
126In August 2013, Dr Pragastis began prescribing Zydol, 50 milligrams, to Ms Bain in relation to back pain and fractured pelvis due to the transport accident.[108]
[108] JCB 357-358
127Between January 2014 and July 2018, Dr Pragastis noted various pains, including pelvic pains following the transport accident and frequently prescribed Endone 5 milligrams; OxyContin, 10 milligrams and Codalgin 500, 30 milligrams. In January 2018, Dr Pragastis prescribed Lyrica for “pelvic pain” and “right sciatica”.[109]
[109] JCB 177
Stud Road Medical Centre
128In August 2013, Ms Bain commenced attending at Stud Road Medical Centre.
129There was therefore an overlap of five years (between 2013 and 2018) when she was attending both Cleeland Street and Stud Road Medical Centres.
130From time to time, doctors at the Stud Road Medical Centre prescribed Panadeine Forte, Maxigesic and Endep, and in 2020 began prescribing Lyrica for “[n]europathic pain”. These prescriptions commenced at 75 milligrams on 8 December 2020, increased to 150 milligrams on 18 December 2020 and then to
131300 milligrams in April 2021, decreasing to 75 milligrams on 24 February 2022, and increasing to 150 milligrams on 13 July 2022. Thereafter, the prescriptions for Lyrica continued at that dosage until 14 February 2023.[110]
[110] JCB 183
132On 8 December 2020, Ms Bain received a prescription for Lyrica from the Stud Road Medical Centre for “neuropathic pain”. The progress note of Dr Abolfazl Pourhossein records the following history:
“Developed back pain for the first time a couple of years ago due to lifting heavy things up.
Pain comes and goes since then depend on her activities.
For the past 2 days again developed pain because of heavy activity. It is mainly in the lower back and mid line.”[111]
[111] JCB 349
133From December 2021, the Dandenong Superclinic was providing Ms Bain with prescriptions of Lyrica, 300 milligrams, on a monthly basis to June 2023 (almost three years). The notes refer mostly to back pain, hip pain, sciatica and “chronic pain” and “neuropathic pain”.[112]
[112]Dandenong Superclinic
134Between 31 December 2021 and 13 May 2024, Ms Bain was attending the Dandenong Superclinic, which is the clinic where she consults with Dr Hill.
135There was therefore an overlap of about two years when Ms Bain was attending Dandenong Superclinic and Stud Road Medical Centre. She was receiving monthly prescriptions for Lyrica at both clinics in the period of the overlap.
South Eastern Deputising Service
136Between 22 May 2022 and 15 July 2023, Ms Bain attended this clinic on three occasions, asking for Lyrica “for her sciatica pain” or “for lower back pain”, or because she lost her prescription provided by her regular doctor, Dr Hill.[113]
[113] JCB 414-424
Conclusion – reasons for taking Lyrica as demonstrated by the notes of multiple clinics
137The objective evidence from the four clinics shows Ms Bain obtained Lyrica prescriptions for “neuropathic pain”, “sciatica”, and “lower back pain” or “back pain”.
138Ms Bain said in re-examination, that she was aware a doctor would prescribe Lyrica for her if she said she had sciatica.[114]
[114] JCB 426-428
139Ms Bain’s evidence that she has been prescribed Lyrica for the pelvic pains is disproved by the objective evidence.
140This is significant. If Lyrica has been prescribed for other conditions, there is then no evidence of any current medication being prescribed to Ms Bain for the pelvic complaints.
141Therefore, I consider her evidence that Lyrica is prescribed to her for the fractured pelvis is not supported by the contemporaneous medical records.
142If I am wrong about my conclusion, I consider the evidence that Ms Bain is obtaining Lyrica from multiple sources demonstrates that she may have other reasons for using the medication. That also calls into question whether any pains are genuinely being treated with Lyrica, or whether Ms Bain is misusing the medication.
Do the pain and suffering consequences of the pelvic fracture injury meet the statutory test?
143Ms Bain’s counsel appropriately conceded there was no record of ongoing pain in the pelvic region from the time of the accident to the time of the application. In particular, counsel accepted that the records of Dr Pragastis document such pain up to around 2018, and thereafter there are very few mentions of pelvic pain in any of the clinical notes. His 2016 report to the TAC confirms the permanence and ongoing nature of the pelvic pains.
144The Stud Road Medical Centre notes document pelvic pain or back pain in September 2018 and November 2020.
145The Dandenong Superclinic notes commence in December 2021 and contain frequent references to neuropathic pain, lower back pain and sciatica. On 13 May 2024, pelvic pain was also mentioned and a CT scan of the pelvis was requested by Dr Hill, however this entry stood alone among the others.
146Dr Hill’s report confirmed the prescriptions for Lyrica were given for ongoing neuropathic pain, related to lower back pain and right-sided sciatica.[115]
[115] T67
147I do not accept the submission little weight should be given to this opinion of Dr Hill because the doctor/patient relationship was not as good as it had been with Dr Pragastis.
148The records show Ms Bain attended the clinic approximately monthly and saw a variety of doctors, including Dr Hill. The notes reveal disclosure by Ms Bain of a variety of medical complaints, including intensely personal matters about her childhood, and these were also disclosed to Dr Hill.[116] This suggests the doctor/patient relationship involves a significant degree of trust by Ms Bain.
[116] JCB 429
149In June 2016, Mr Gardiner’s report refers to Ms Bain’s right-sided, upper lateral pain and pain in the right groin. Mr Gardiner was unable to provide any diagnosis relating to these complaints, as the available imaging related to the left side only. He requested additional imaging relating to the right side, but commented that the complaints of right hip pain were not entirely consistent with the examination findings.
150These complaints are consistent with the June 2016 records of Dr Pragastis, which also refer to pelvic pain.
151In April 2019, Mr Gardiner’s report recorded left groin and perineum pain, lower back pain, left-sided pelvic pain and right-sided discomfort in the buttock and sacroiliac joint. Mr Gardiner considered the contemporaneous medical notes and imaging and diagnosed a fracture of the left superior and inferior pubic rami, with an impact injury to the right side of the pelvis. He considered the pelvic and perineal pains were likely to continue into the future.
152There is no corresponding attendance by Ms Bain at any clinic during 2019 for back or pelvic pain.
153In September 2019, Mr Miller’s report records complaints of right-sided lower back and buttock pain.
154In March 2022, Mr Siu reported Ms Bain’s main problem was pain down her right side. At the time of assessment, the pain was in the midthoracic region and down the lower right limb.
155The Stud Road Medical Centre notes contain corresponding attendances for “chronic back pain” and “right sciatica”.
156In August 2022, Dr Menz recorded complaints of left anterior thigh pain and left hip joint pain.
157There are no corresponding notes from the Stud Road Medical Centre for August 2022, but the notes for the surrounding period refer to “sciatica” and “neuropathic pain”. Ms Bain was also attending the Dandenong Superclinic during this time, and the notes of that clinic refer to “sciatica”, “cannot sit on the bum on R side” and “LBP”.[117]
[117] JCB 149
158A review of the totality of the clinical evidence supports a finding that, until 2018 (approximately five years after the transport accident), Ms Bain attended on Dr Pragastis at least monthly and frequently complained of pelvic pains. This is consistent with Ms Bain’s presentation to Mr Gardiner.
159During this period, the records of the Stud Road Medical Centre suggest Ms Bain’s main complaints were her lower back, right hip and right-sided sciatica. This is consistent with her presentation to Mr Siu.
160In February 2019, an MRI scan of the right hip was requested by Dr Pragastis, with the indication “[r]ight side pelvic pain”. The MRI scan was reported as finding that the right hip was unremarkable, but there was a disc protrusion at L5-S1, causing impingement of bilateral exiting nerve roots.[118]
[118] JCB 179
161From approximately 2021 onwards, when Ms Bain was attending two clinics, the main recorded complaints were lower back pain, right hip pain and right-sided sciatica.
162Based on my findings regarding her unreliability and the evolving nature of the recorded complaints in the contemporaneous evidence, I do not accept the submission made on behalf of Ms Bain that any evidence of continuous or ongoing complaints of pelvic pain can be pieced together from the time of the transport accident to the date of this serious injury application.
163I accept the submission made on behalf of the TAC that the evidence discloses a range of non-accident-related ailments (back injury, sciatica and neuropathic pain) are producing the pain and suffering consequences Ms Bain attributes to the pelvic injury.
164I also accept the submission Ms Bain is unable to work for reasons other than the pelvic injury.
Does the pelvic injury prevent Ms Bain from returning to employment?
165There is no expert evidence which supports Ms Bain’s assertion she is unable to return to work by reason of the pelvic injury.
166The transport accident in 2013 was but one of many problems in Ms Bain’s life. At the time of the accident, she had a one-month-old baby and three other children, one of them a teenager with her own baby.
167Ms Bain suffered a pelvic fracture which impacted on her mobility and on her ability to bond with, and care for, her baby. Her domestic circumstances were extremely difficult and traumatic for her, she was homeless and living in her car, her best friend was murdered, and she was using a variety of illegal and prescription drugs.
168In addition, Ms Bain had mental health problems and was a victim of domestic violence. She had forensic involvement including criminal charges and community correction dispositions.
169That combination of circumstances was likely in existence well prior to the accident.
170Although it was not specifically put to Ms Bain, the Emergency Department notes suggest that two days after the accident, Ms Bain had been living in her car, which was parked at a factory in Moorabbin. Drug paraphernalia had been found in the vehicle, together with baby bedding and toys, by ambulance officers who attended to take her to hospital.[119]
[119] JCB 239
171I consider the combination of these circumstances which existed at the time of the transport accident made any prospective return to work in the foreseeable future unlikely.
172Ms Bain has now been out of the workforce for almost twenty years, during which time she has been in receipt of welfare benefits. She has limited training and education, and has not sought to update her skills. Her current back and sciatica complaints also impact on her mobility and her ability to function from day to day. These complaints also impair her ability to return to work.
173There is no evidence that any accident-related pelvic fracture impairs Ms Bain from returning to work. On the contrary, the medical evidence supports a conclusion that the fracture has healed and as at the date of hearing, there are no ongoing consequences from it.
Conclusion
174Ms Bain has not discharged her onus of establishing that, as at the date of hearing, the pain and suffering consequences of her pelvic fracture are “more than ‘significant’ or ‘marked’”, or “at least as ‘very considerable’”.
175Her application is dismissed.
176I will hear the parties with respect to costs.
---
JCB 109; a supplementary report provided by Mr Siu on 27 July 2023 considered additional material
from Dr Menz and Associate Professor Peter Doherty, and confirmed that his opinion was unchanged
by the additional information.
JCB 149. N.B: The MRI report is in evidence. Under “Clinical Details” the report refers to “Right side
pelvic pain”.
JCB 386. Lyrica was also prescribed on various dates between 18 December 2020 and 14 February
2023 (JCB 387-390), and on 20 June 2021 (JCB 392-398).
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