Benitez v Transport Accident Commission
[2023] VCC 41
•31 January 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-21-04949
| ZULMA NOEMI BENITEZ (aka ZULMA NOEMI BENITEZ ALONZO) | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE MAGEE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 and 11 November 2022 | |
DATE OF JUDGMENT: | 31 January 2023 | |
CASE MAY BE CITED AS: | Benitez v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 41 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury application – left leg injury
Legislation Cited: Transport Accident Act 1986 (Vic)
Cases Cited:Dressing v Porter [2006] VSCA 215; Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67; Victorian WorkCover Authority v Brassington [2021] VSCA 236; Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin SC with Ms S Fernando | Ellis Palmos & Co. |
| For the Defendant | Mr M K Clarke | Lander & Rogers |
HER HONOUR:
Introduction
1In this application, the plaintiff claims that the pain and suffering consequences of her left leg injury satisfy the definition of “serious injury” pursuant to s93(17)(a) of the Transport Accident Act 1986 (Vic) (“the Act”).
2Ms Benitez (also known as Ms Zulma Noemi Benitez Alonzo) claims that since a transport accident on 11 October 2016 (“the transport accident”), she has had pain in her left knee and leg, as well as other parts of her body.
3The legal principles are well known and are not in dispute in this case:
(a) the plaintiff must establish she has a permanent serious impairment or loss of body function;
(b) the impairment must have consequences in relation to pain and suffering, which, when judged by comparison with other cases in the range of impairments, may be fairly described as being “more than significant or marked” or as being “at least very considerable”;
(c) in assessing the seriousness of the claimed impairment consequences, the Court is required to consider both the effects of the impairment and those aspects of the affected body function which remain unaffected;
(d) the claimed impairment consequences must be properly separated from the consequences attributable to any other transport accident injury or any other unrelated condition[1] (“the Peak issue”).
[1]Dressing v Porter [2006] VSCA 215 at paragraph [47] and Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67
4For the purposes of this proceeding, the Transport Accident Commission (“TAC”) conceded that the accident occurred, and that the plaintiff suffered injury.
5However, the nature of the injury, or injuries, sustained in the transport accident and, relevantly, the consequences of any such injury are in dispute.
6The plaintiff initially claimed impairment to the following body functions pursuant to s 93(17)(a):
· Injury to both lower limbs, including but not limited to deep vein thrombosis (“DVT”)
· Injury to the chest, including but not limited to pulmonary embolus
· Chronic or persistent pain syndrome.
7In addition, the plaintiff initially relied upon a severe long-term mental or severe long-term behavioural disturbance or disorder, pursuant to s93(17)(c) of the Act, consisting of a chronic or persistent pain syndrome.
8In the course of the hearing, Senior Counsel for the plaintiff refined the case to rely upon injuries and subsequent impairment to the left lower limb only as being the relevant loss of body function pursuant to s93(17)(a) and abandoned any reliance on s93(17)(c).
9For the reasons set out below, I am unable to identify the relevant impairment consequences which are said to flow from the claimed left leg injury and, as a result, I am unable to determine whether such consequences meet the “serious injury” test.
10I therefore dismiss the plaintiff’s application.
Relevant Issues to be determined
11There are two issues to be determined in this application:
(a) What left leg injury did the plaintiff sustain in the transport accident?
(b) What are the impairment consequences of any transport accident-related left leg injury?
The hearing
12The application proceeded in the “usual way”, in that the plaintiff tendered five affidavits, medical reports and radiology reports.
13The plaintiff relied upon five affidavits: Three affidavits of the plaintiff, the first dated 18 August 2020 which was unsworn due to the COVID pandemic (“the plaintiff’s first affidavit”), a second affidavit sworn 30 May 2022 (“the plaintiff’s second affidavit”) and a third affidavit sworn 21 October 2022 (“the plaintiff’s third affidavit”);[2] an affidavit of the plaintiff’s daughter, Mariana Fatima Corrales Benitez, affirmed 25 May 2022,[3] and an affidavit of the plaintiff’s daughter, Luciana Yinet Wallis, sworn 21 September 2022.[4] The plaintiff adopted her three affidavits in evidence-in-chief.[5]
14The defendant tendered medical reports, extracts of clinical records from the Carnegie Central Medical Centre and a series of still photographs extracted from Facebook.
15The plaintiff was the only witness to give viva voce evidence and be cross examined.
16I have read the tendered documents as well as the transcript of the proceedings.
17I shall not refer to all the material in the course of this judgment, but rather to those parts of the evidence and the reports which I consider necessary to give context to and explain the conclusions reached in my judgment.
[2]Exhibit P1, the plaintiff’s first affidavit at Plaintiff’s Further Supplementary Court Book (“PCB”) 7-11; the plaintiff’s second affidavit at PCB 12-17, and the plaintiff’s third affidavit at PCB 161-167
[3]Exhibit P2, at PCB 18-20
[4]Exhibit P3, at PCB 155-160
[5]Transcript (“T”) 16
Background
21The plaintiff is now seventy-three years of age. She was born in Uruguay, where she worked as a nanny. In 1992, she came to Australia with her then husband and two daughters.
22She subsequently separated from her husband and divorced and since approximately 2010, she has lived on her own.
23The transport accident occurred on 11 October 2016, when the plaintiff was crossing the road at the intersection of Arawatta Street and Koornang Road, Carnegie. She was on her way to attend her general practitioner at the Carnegie Central Medical Centre in Koornang Road, Carnegie.
24She was struck by a vehicle on her left side and fell to the ground. It was a low-speed collision.
25The plaintiff was taken by ambulance from the accident scene to The Alfred hospital where she remained overnight.
26The records from The Alfred hospital record that she presented with chest pain[6] and grazes to both knees, and her left elbow,[7] as well as swelling and tenderness of the left lateral calf.[8]
[6] Exhibit P5, The Alfred Emergency Nursing Notes, PCB 72
[7] Exhibit P5, The Alfred Emergency Nursing Notes, PCB 73
[8] Exhibit P5, The Alfred Emergency Discharge Summary, PCB 78
27After she was discharged from hospital, the plaintiff stayed with her daughter, Luciana Yinet Wallis, and her son-in-law, at her daughter’s home in Rosanna.
28It is unclear, but it appears the plaintiff stayed at her daughter’s home for a period of several weeks and spent a considerable time resting in bed – perhaps up to three weeks.
29The plaintiff attended her general practitioner (“GP”), Dr Mark Demian, at the Carnegie Central Medical Clinic, due to post-accident pain – initially in her chest and ribs on 14 October 2016 and 18 October 2016.
30Relevantly, on 28 October 2016, she attended Dr Demian with left calf pain and ongoing chest pain.
31Dr Demian arranged an ultrasound which was performed on 29 October 2016. The ultrasound revealed a DVT in the left calf and on the same day, the plaintiff attended the Emergency Department of the Monash Medical Centre.
The injury
32The impairment to the plaintiff’s left leg was claimed to be as a result of a pain syndrome triggered by soft-tissue injury to the left leg and/or the development of DVT in the left leg.
33The plaintiff asserted that the two injuries to the left leg could be aggregated for the purpose of determining whether the plaintiff satisfied the serious injury test.[9]
[9]Victorian WorkCover Authority v Brassington [2021] VSCA 236
34It is now settled law that if a limb is injured in two or more places in one specific incident and the function of that limb is impaired, there is no reason why the injuries cannot be aggregated for the purposes of determining whether the injured person has an impairment of the relevant limb that satisfies the statutory definition of “serious injury”.
Pre-existing conditions
35Prior to the transport accident, the plaintiff had suffered from asthma, hypertension, eczema, gastro-oesophageal reflux disease, hypothyroidism, left knee pain (for which she had an arthroscope in approximately 2001), psoriatic arthritis, neurocysticercosis and cerebral calcifications.
36Further, the plaintiff had been diagnosed with, and treated for, bilateral varicose veins. She has continued to have treatment for that condition. The most recent treatment appears to have been in early 2022, when she underwent bilateral leg vein sclerotherapy.[10]
[10]Exhibit P11, leg vein duplex scan, PCB 154
37In addition, she has ongoing generalised arthritis, which manifested in several ways, including with thoracic pain.
Consequences
38It was submitted that the relevant consequences for the plaintiff included ongoing left leg pain which interfered with mobility/walking, sleep, her capacity to undertake domestic duties, her ability to socialise and to engage in community activities and participate in the care of her grandchildren.
39I have considered what the plaintiff says about the consequences, what she has done about the consequences and what other witnesses (lay and expert) say about the consequences.
Pain
40The plaintiff’s evidence was that chest pain and left leg pain impacted upon her activities of daily living. Her right leg pain contributed, but to a lesser extent.
41In her first affidavit, the plaintiff said that her left-sided chest pain and lower leg pain had a very considerable adverse impact upon her life.
42In that affidavit, she noted she had daily pain in the left side of her chest, which was aggravated by activities, including washing her hair, undertaking household duties such as mopping, sweeping or vacuuming and tying her shoes. She had problems putting on a seatbelt and, among other things, getting in and out of bed. She said she was taking medication to assist her sleeping because of her chest pain, and that the chest pain interfered with her activities at her seniors’ club, including dancing, because she was unable to move her arms properly.[11]
[11]Exhibit P1, the plaintiff’s first affidavit at PCB 9, paragraph [9]
43In that affidavit, the plaintiff also described suffering a daily dull ache in her lower leg, which was exacerbated by physical activity. She said she could not walk as fast, or as often, as she did prior to the accident, and when she did walk, she would need to take breaks. She asserted her leg pain was worsened with prolonged sitting, and she felt a tightness in her left calf.
44The plaintiff attributed restrictions in undertaking domestic chores to both her left leg and her chest pain, and she said her lower left leg pain also impacted upon her ability to dance. She said she was taking two Panadeine Forte twice a day, Neurontin twice a day and Endep, one per day, for her accident-related chest and left leg pain.[12]
[12]Exhibit P1, the plaintiff’s first affidavit at PCB 9-10, paragraphs [10]-[11]
45In her second affidavit, the plaintiff stated that she continued to experience constant chest pain, predominantly on the left side, with physical restrictions. She said she experienced a constant dull ache in her left leg and was experiencing similar problems of pain and restriction in her right leg.
46Significantly, in her second affidavit, she stated:
“… I have pain when transferring from chairs or the bed. I attribute half of my problems to my left leg, and the other half to my chest.”[13]
[emphasis added]
[13]Exhibit P1, the plaintiff’s first affidavit at PCB 16, paragraph [30]
47This 50/50 attribution was confirmed in cross-examination.[14]
[14] T53, Line/s (“L”) 8-9, 12-13
48In her third affidavit, the plaintiff deposed that she continued to have pain in her chest, but it was no longer constant, but when she had the pain, it was quite sharp, and she said:
“… Accordingly, the pain in my chest is significantly more manageable than the pain in my left leg, which is constant, and extremely limiting regardless of how careful I am.”[15]
[15]Exhibit P1, the plaintiff’s third affidavit at PCB 164, paragraph [8]
49The plaintiff’s viva voce evidence as to the nature of her pain was consistent with her first and second affidavits.
50The plaintiff’s viva voce evidence about taking pain medication was confusing and contradictory.
51In cross-examination, she agreed that she took Panadeine Forte to deal with pain in her back and legs,[16] but later, said that she was not currently taking Panadeine Forte.[17]
[16]T45, L15-16
[17]T49, L12
52She said that she had been prescribed cannabis oil but that she only took it when the pain was “too severe”[18] and that she took the cannabis oil to deal with pain in her ribs, her legs and sometimes the back.[19]
[18]T49, L13-15
[19]T50, L13-17
53The plaintiff elaborated further and said that without medication, her chest pain and her left leg pain cause restrictions on a daily basis.[20]
[20]T53, L16-22
54When describing the chest pain in oral evidence, she said:
“And the chest pain if I move too quickly it’s terrible. It’s terrible pain.”[21]
[21]T53, L24-25
55I find that the plaintiff regularly experiences pain in her left leg and daily fluctuating significant chest pain, as well as occasional pain in her right leg and lower back, and that her self-assessment of a 50/50 spilt between left pain and chest pain is accurate.
Sleep
56In her first and second affidavits, the plaintiff attributed sleep difficulties to her chest pain.[22]
[22]Exhibit P1, the plaintiff’s first affidavit at PCB 9, paragraph [9]; at PCB 16, paragraphs [25] and [29]
57I find that any interference with the plaintiff’s sleep is unrelated to her left leg.
Domestic Duties
58The plaintiff is restricted in domestic duties including heavier chores such as vacuuming, mopping, sweeping, gardening, laundry, and household shopping.[23]
[23]Exhibit P1, the plaintiff’s second affidavit at PCB 16, paragraph [30]
60I find that the restrictions to such duties are due to the combination of her left leg and chest conditions, and, to a lesser extent, her right leg restrictions.
61Given her description of significant chest pain which interferes with many aspects of the domestic duties, I am unable to find the extent to which her left leg pain has interfered with such duties.
Hobbies, mobility, community access and social activities
62The plaintiff’s hobbies and pastimes have also been affected by her chest and left leg problems and, to a lesser extent, her right leg.
63In May 2022, she identified activities such as attending social clubs, walking, going to the beach, attending meals and dancing. She relevantly stated:
“… The limits on my pastimes are attributable to my chest and leg conditions in equal amounts.”[24]
[24]Exhibit P1, the plaintiff’s second affidavit at PCB 16, paragraph [31]
64The plaintiff relies upon restrictions on her social life including what she described as reduced attendances at a Spanish Club in Clayton and a Seniors’ Club in Oakleigh and reduced activity whilst at these clubs.
65In her affidavits, she initially attributed the restrictions primarily to her chest condition;[25] then to both her chest and left leg in equal amounts.[26] In her third affidavit, the plaintiff attributed these restrictions to her left leg only.[27]
[25]Exhibit P1, the plaintiff’s first affidavit at PCB 9, paragraph [9]
[26]Exhibit P1, the plaintiff’s second affidavit at PCB 16, paragraph [31]
[27]Exhibit P1, the plaintiff’s third affidavit at PCB 161-162, paragraph [2]
66In her third affidavit, she deposed to difficulties using public transport because of her leg (presumably her left leg).[28]
[28] Exhibit P1, the plaintiff’s third affidavit at PCB 161-162, paragraph [2]
67The Facebook photographs produced by the defendant merely confirmed the plaintiff’s evidence that she is still able to socialise but with less frequency than prior to the transport accident.
68I find that this consequence relates to a combination of restrictions arising from the plaintiff’s multiple health problems. I am unable to find the extent to which that her left leg pain has interfered with such duties.
Grandparenting
69Whilst the plaintiff did not have any grandchildren at the time of the transport accident, it was said that she had an expectation that she would be involved in the care of her future grandchildren.
70The plaintiff now has two grandchildren, aged approximately two years old and one several months old.
71While I accept that the loss of potential grandparenting activities could of itself be a significant consequence, I am unable to attribute that loss to the left leg condition alone.
72I find that this consequence relates to a combination of restrictions arising from the plaintiff’s multiple health problems. I am unable to find the extent to which that her left leg pain has interfered with such duties.
Comment on the Plaintiff’s evidence
73Whilst I find that the plaintiff was an honest and straightforward witness who made appropriate concessions in cross-examination, I am unable to reconcile the inconsistencies between the second and third affidavits, given that they were sworn only five months apart.
74The second affidavit dealt with the chest and left leg problems and psychiatric consequences consistent with the way in which this application was framed at the time as discussed at paragraphs 6 and 7 above.
75I have considered the reliability of the plaintiff’s evidence in the third affidavit in the context of the whole of the evidence.
76The third affidavit appears to be an attempt to minimise the chest and psychiatric problems and the right leg problems.
77I have serious reservations as to the accuracy of the plaintiff’s third affidavit, given the plaintiff’s self-assessment of pain and the late recasting of the case to rely upon impairment to the left leg only, and therefore find the third affidavit was unreliable as to the extent of her current left leg impairment to the exclusion of other impairments.
78I conclude that little weight should be given to the third affidavit because of the unexplained inconsistencies with the first and second affidavits and the concessions made by the plaintiff in cross-examination referred to above.[29]
[29] Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8
Other lay evidence
79The plaintiff relied upon an affidavit affirmed by her daughter, Mariana Benitez[30] and an affidavit sworn by her daughter, Luciana Yinet Wallis,[31] neither of whom were cross-examined.
[30]Exhibit P2, PCB 18-20
[31]Exhibit P3, PCB 155-160
80Mariana Benitez’s affidavit affirmed on 25 May 2022 is consistent with the way in which the plaintiff’s case was framed at that time (see paragraphs 6 and 7 above). She commented on the difficulties she observed her mother encountered as a result of left-sided chest pain and left leg pain. I accept her evidence as to these observations, but they do not assist me in determining the extent of the left leg consequences alone.
81In the immediate post-accident period, the plaintiff stayed at the home of her daughter, Luciana Yinet Wallis. Ms Wallis’ affidavit sworn on 21 September 2022 described the initial period of immobilisation and referred to difficulties she observed her mother encountered in walking and looking after her grandchildren. I accept her evidence as to these observations, but they do not assist me in determining the extent of the left leg consequences alone.
The Plaintiff’s medical evidence
82The plaintiff relies principally upon the medico-legal opinion of Dr Peter Blombery, consultant physician, contained in his reports dated 8 April 2022 and 9 September 2022.[32]
[32]Exhibit P8, reports of Dr Blombery dated 8 April 2022 at PCB 128-132 and 9 September 2002 at PCB 151-153
83In his first report, Dr Blombery noted that the plaintiff was complaining of pain in both legs with intermittent swelling of the calves and thighs.[33]
[33]Exhibit P8, report of Dr Blombery dated 8 April 2022, PCB 130
84On examination, he found tenderness over both medial calves and a little tenderness over the lateral side of the calves. He found diffuse tenderness over both thighs, particularly on the left.[34]
[34] Exhibit P8, report of Dr Blombery dated 8 April 2022, PCB 131
85Dr Blombery expressed the opinion that:
“… at least some of the pain that she experiences in her legs is caused by the effect of recurrent venous thrombosis with venous congestion occurring in various parts of the legs, particularly during the acute phases that occur.”[35]
[emphasis added]
[35]Exhibit P8, report of Dr Blombery dated 8 April 2022, PCB 131
86Dr Blombery also opined that there was a “complaint of a pain syndrome” present, which was not complex regional pain syndrome. He said there was sensitisation of pain nerve pathways triggered by soft-tissue injuries to the legs as a result of the transport accident without explaining how this has occurred.
87Dr Blombery did not provide any path of reasoning to support his diagnosis of a “pain syndrome”. The absence of a path of reasoning on this point was conceded by Senior Counsel for the plaintiff.[36]
[36] T93, L27-31; T94
88Whilst Dr Blombery asserted that there was a pain syndrome, it is difficult to see what, in fact, Dr Blombery meant by this generic descriptor.
89It is noted that it was his opinion that the plaintiff had a pain syndrome in both legs.
90Dr Blombery also considered that the plaintiff had recurrent venous thromboses in both legs and noted that it was unusual for a patient to develop recurrent venous thromboses, all of which have been fairly minor, after one episode of trauma and one initial venous thrombosis.
91Despite those reservations, Dr Blombery was prepared to say that all the consequences arose as a result of the transport accident.
92In his supplementary report dated 9 September 2022, he was told by the plaintiff that the pain in her left calf was much more severe than the pain in her right calf, but that the pain in both calves began immediately after the accident. On clinical examination, she was tender in both calves, more particularly on the left.[37]
[37] Exhibit P8, report of Dr Blombery dated 9 September 2022, PCB 151
93Dr Blombery commissioned a duplex scan undertaken on 8 September 2022.[38] He considered that the scan revealed evidence of chronic left soleal vein thrombosis on the left leg, with evidence of saphenofemoral incompetence, which was part of the pre-existing varicose vein condition. On the right leg, he said the scan showed no evidence of venous thrombosis, but evidence of saphenofemoral incompetence, once more, consistent with the longstanding varicose veins.
[38]Exhibit P11, PCB 154
94Dr Blombery accepted that the plaintiff’s bilateral varicose veins were unrelated to the transport accident and stated that there were other factors contributing to the pain in her legs, including the left soleal vein thrombosis in the left leg which had stabilised. He said this was “likely to be contributing to her current left lower limb symptoms”.[39] He did not indicate the extent to which the soleal vein thrombosis was contributing, despite the fact he noted that such thrombosis was a relatively minor thrombosis.
[39]Exhibit P8, PCB 152
95Insofar as Dr Blombery diagnosed a pain syndrome, I reject that opinion, given that there was no path of reasoning in his reports upon which I could rely to be satisfied that currently the plaintiff continues to suffer a transport accident-related pain syndrome arising from relatively minor injuries sustained in 2016.
The Defendant’s medical material
96The defendant relies upon the opinions of Dr John Vidovich, vascular surgeon, and Associate Professor Evange Romas, consultant rheumatologist.
97Dr Vidovich, in a series of reports, agreed with a number of opinions expressed by Dr Blombery. He agreed that the plaintiff’s first DVT (October 2016) was causally related to the transport accident[40] – the relevant link being the plaintiff’s immobility in the immediate post-accident period.
[40]Exhibit D1, report of Dr Vidovich dated 2 October 2022, Defendant’s Further Amended Court Book (“DCB”) 11
98In his final report of 28 October 2022,[41] he also had the opportunity to consider the venous duplex scan of 8 September 2022. He agreed with Dr Blombery that the chronic non-occlusive thrombosis revealed in that scan was probably a recurrence of the transport accident related DVT, which had stabilised. He did not accept that the plaintiff required ongoing anticoagulant medication.
[41] Exhibit D1, report of Dr Vidovich dated 28 October 2022, DCB 90-91
99Dr Vidovich’s opinion was that the plaintiff’s left leg venous condition had stabilised.
100The defendant also relied upon the opinion of Associate Professor Romas contained in two medico-legal reports dated 15 June 2022 and 19 October 2022 respectively.[42]
[42]Exhibit D2, report of Associate Professor Romas dated 15 June 2022, DCB 14-19; report of Associate Professor Romas dated 19 October 2022, DCB 92-93
101Associate Professor Romas did not accept that the October 2016 DVT was causally related to the transport accident. He specifically formed that opinion as he believed that the plaintiff had not been confined to bed or immobilised for any lengthy period after the transport accident. He was very careful in expressing that opinion and added a caveat saying it was a factual matter as to whether the plaintiff was immobilised or not.
102The post-accident immobilisation was confirmed in December 2016 by Dr Indu Raman, Registrar, of Monash Health[43] and by her GP, Dr Demian.[44]
[43] Exhibit P5, PCB 64
[44] Exhibit P5, PCB 82
103The plaintiff’s evidence and that of her daughter, Ms Wallis, was uncontested on this point.
104I find that the plaintiff was immobilised for a two to three-week period after the transport accident. This finding negates Associate Professor Romas’ opinion that the October 2016 DVT was not related to the transport accident and, consequently, his opinion was of little assistance to me.
Reconciling the medical evidence
105Dr Blombery and Dr Vidovich disagreed on three important issues:
(i) whether there is any ongoing physical disability or incapacity related to the left-sided soleal vein thrombosis;
(ii) whether there is any relationship between the transport accident and any subsequent DVTs (other than October 2016);
(iii) whether the plaintiff requires intermittent use of anticoagulants.
106Dr Blombery had been told by the plaintiff in March 2022 that she had bilateral rib pain when she moved quickly but it was “very much less severe if she moved slowly”.[45] He re-examined the plaintiff in September 2022. He was not told on either occasion that the plaintiff suffered from significant chest pain.
[45] Exhibit P8, report of Dr Blombery dated 8 April 2022, PCB 130
107Dr Vidovich examined the plaintiff on one occasion and was not told that she suffered from significant chest pain.
108I have carefully considered the medical opinions given my findings as to the level of the plaintiff’s pain and restrictions as set out above and I have considered the whole of the evidence to ascertain whether it is possible to reconcile these differences.
109Neither Dr Blombery or Dr Vidovich were called to give evidence, and insofar as there remains a divergence of clinical opinion between the experts, I am unable to reconcile those opinions.
110The two differing opinions of Dr Blombery and Dr Vidovich are equally valid. The plaintiff has not satisfactorily persuaded me that I should prefer Dr Blombery’s opinion over Dr Vidovich and I find that I am not in a position to prefer one over the other.
Submissions
111Counsel were specifically invited to fully address the Peak issue.
112Senior Counsel for the plaintiff submitted that the relevant consequences were “a chronic pain on the left leg which affects mobility”[46] together with the need for medication from time to time and a decrease in activities which were principally caused by the left leg, with the chest also being related to such decrease.[47]
[46] T107, L6-7
[47] T115, L2-16.
113I am unable to accept this submission given the plaintiff’s viva voce evidence assessing a 50/50 split between her left leg and chest pain impacting upon her pain and activities.
114Despite the submissions put on her behalf, the plaintiff did not say that her left leg condition alone impacted upon or caused the relevant consequences.
115Counsel for the defendant submitted that the plaintiff had not properly distinguished which consequences flowed from what injuries, in particular compensable versus non-compensable injuries.[48] I accept that submission.
[48] T68
116Counsel for the defendant submitted that the plaintiff was an unreliable historian, which impacted upon her presentation generally.[49] I accept that submission.
[49] T89, L30-31, T90 L1-2
Summary of findings
117I make the following findings:
(a) the plaintiff suffered a soft tissue injury to her left leg and an injury to her left soleal vein which led to a DVT in October 2016;
(b) the plaintiff did not develop and does not have a pain syndrome related to the soft tissue injury;
(c) the plaintiff has multiple health problems which cause various restrictions and pain;
(d) the plaintiff’s self-assessment of a 50/50 split regarding her left leg pain and chest pain is accurate;
(e) any interference with the plaintiff’s sleep is unrelated to her left leg;
(f) given (d) above, I am unable to determine the extent to which her left leg pain interferes with her domestic duties, mobility, community access, social activities or grandparenting duties.
Conclusion
118I accept that the plaintiff suffers restrictions and pain in her daily life.
119However, considering the evidence as a whole, those restrictions appear to be a result of a combination of the plaintiff’s pre-existing conditions, her left chest injury and other comorbidities, as well as her left leg.
120It has not been possible for me to determine, considering the whole of the evidence, the extent of the plaintiff’s consequences arising from the transport-accident-related left leg injuries.
121The application for leave is refused.
122I will hear the parties in relation to costs and any consequential orders.
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