Bertenis v TAC
[2025] VCC 607
•16 May 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-21-02817
| KATERINA BERTENIS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 May 2025 | |
DATE OF JUDGMENT: | 16 May 2025 | |
CASE MAY BE CITED AS: | Bertenis V TAC | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 607 | |
RULING
DELIVERED EX TEMPORE
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering – loss of enjoyment of life - spinal injury
Legislation Cited: Transport Accident Act 1986
Cases Cited:Richards v Wylie [2000] VSCA 50
Judgment: The plaintiff is granted leave to commence common law proceedings for pain and suffering for spinal injuries sustained in the transport accident on 22 October 2019.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards Mr B Cooper | Shine Lawyers |
| For the Defendant | Mr S Jurica Ms R Boyce | Lander & Rogers |
HER HONOUR:
1The plaintiff seeks leave to issue proceedings for the recovery of damages at common law pursuant to s93(4)(d) of the Transport Accident Act. She claims she suffered an injury to her spine on 22 October 2019, which meets the definition under s93(17)(a).
2To be granted that leave she must establish the pain and suffering and loss of enjoyment of life consequences can be fairly described as at least very considerable and certainly more than significant or marked when compared with other cases in the range of possible impairments or losses.
Issues
3The parties agree that the claimed spinal injury is an aggravation of underlying degenerative disease. The primary physical consequence Ms Bertenis claims is an increased level of pain. Where the main claimed consequence is pain the reliability of the plaintiff's evidence is particularly important. This requires me to assess Ms Bertenis' credibility and decide whether any successful attack was made on her credit such that the reliability of her evidence is called more generally into question. I must also analyse Ms Bertenis' pre- and post-injury level of functioning to determine whether I am satisfied that those consequences which I find result from the motor vehicle accident meet the test of 'very considerable'.
Background
4Ms Bertenis was born in 1954 in Greece and came to Australia aged 19. She worked as a cleaner and as a picker and packer and retired about 10 years ago at the age of 60. At the time she stopped working she was suffering from significant depression and she received a disability support pension primarily for her psychiatric condition. She had depression for many years, she says arising largely from a difficult marriage and difficulties associated with her son, who has a mental illness. She was prescribed antidepressants, including Cymbalta.
5Prior to the motor vehicle accident she was taking 60 milligrams of Cymbalta a day. She had counselling from a psychiatrist and a psychologist.
Relevant past medical history
6In 2013 and 2017 she had mild strokes. In her affidavits she says that after the strokes she had weakness which did not have any impact on her life. In oral evidence she says she got much better after doing a lot of physiotherapy and she estimates she got back to 90 per cent of her pre-stroke condition. She says she still has weakness but that the weakness does not bother her and although it occasionally causes her to limp, it is the pain caused by the motor vehicle accident that is the problem for her. She says that her weakness and the effects of the stroke did not impact on any of the things she likes to do.
7She had chiropractic treatment between 2008 and 2014 for shoulder and neck pain. A CT scan in 2014 showed moderate to severe canal stenosis in the cervical spine. She was referred to a neurosurgeon with persistent numbness in her finger and upper arm. Neurosurgical review in 2016 noted there was no change in her symptoms from earlier scans and she was not requiring any analgesia. The numbness in the finger may have resolved in relation to the stenosis. Her evidence is that the tingling in her hands was present in 2014 and 2015 and subsequently settled down. Mr Gary Grossbard, who examined the plaintiff for the purposes of this case, said that the symptoms from the stenosis had resolved prior to the motor vehicle accident in 2019. However, she how has numbness in her fingers caused by carpal tunnel syndrome.
8Prior to the motor vehicle accident she had intermittent neck and back pain which was regular enough for her to take Endep for pain before the accident. She gave a history to Professor Bittar in the context of this case that the neck pain prior to the accident occurred about once or twice a week at a level of about four out of 10 and that she was having back pain occurring about twice a month at a level of about five out of 10.
9For at least part of 2017 and 2018 she was prescribed Valium for insomnia.
10In 2018 she also had chronic left knee pain which was attributed to osteoarthritis and a ruptured anterior cruciate ligament. She attended physiotherapy for her ruptured anterior cruciate ligament and obtained a disability parking permit. She says that the disability parking permit was only for one year during the period of the difficulty that she was having with her anterior cruciate ligament.
11She had some other issues with shortness of breath and was referred to an ear, nose and throat specialist in May 2018.
12In October 2018 medical records record that she had had shoulder pain for a couple of months and that she was not sleeping well at night as a result. An ultrasound revealed a partial tear of the supraspinatus and she continued taking or she was prescribed Endep for that and she was continuing to take Endep in August 2019.
13In October 2019 at the time of the motor vehicle accident, she was on Cymbalta, Endep and occasional Valium.
The Motor Vehicle Accident
14On 22 October 2019, her car was struck by another car which was merging into her lane. The car merging struck the left side of her car. She was conveyed by ambulance to Footscray Hospital and admitted for two days. She had CT scans which showed a possible undisclosed fracture of the C5 spinus process, which was longstanding rather than acute.
Medical treatment after the motor vehicle accident
15She attended her general practitioner on 29 October 2019, complaining of neck pain, which was not being helped by Panadol and Nurofen and she was prescribed Palexia for that. MRI on 31 October 2019 showed multi-level degenerative disease but no C5 fracture. She was referred for physiotherapy.
16In November 2021 she was referred to pain specialist, Dr Ramaswamy, who arranged further scans. In February 2022 Dr Ramaswamy changed her medications, upping her dose of Endep and prescribing twice-daily duloxetine and slow-release tramadol. Since then she has had various consultations with pain specialists and in subsequent years, various scans, which confirmed the findings of degenerative disease in the spine. She was recommended to undergo nerve block procedures for her lumbar spine, but did not proceed with that.
17From time to time in the years since the accident, her medication has altered although the overall picture has been of consistent doses of analgesic medication.
18In January 2024, she had a fall at home and a hospital admission as a result of that. This exacerbated her neck pain, because she hit her head on the wall and says that she felt a pain in her neck. She had scans at the time and she says another scan just recently which showed that there was no change in her neck condition. She was told she had a ligament injury and wore a neck brace for a period. She had three days in hospital and took additional medication for neck pain, but she says that subsequently her pain has returned to pre-fall levels.
19She has been diagnosed with carpal tunnel syndrome in both wrists, which results in numb index finger and thumb. In relation to the pain in her wrists and hands, she said, if she does something to pull, she gets pain but that she usually doesn't have pain. She agreed that she would wear a brace on her wrists and that as late as April 2025, she was still wearing the brace, but she said she stopped wearing it because, 'I don't feel the pain, occasionally have pain if I use a lot my hands, I have pain'.
20In March 2025, she had an eight-day ketamine infusion as part of a pain management program. She says she had some improvement which she estimates was about 20 per cent, although Dr Ramaswamy has recorded an improvement of 25 to 30 per cent in her level of pain. Around the time of her ketamine infusion, her other medication was reduced. She says that this was because her doctors wanted her to reduce the medication, but the lower level of medication is no longer sufficiently controlling her pain and she says she wants to increase her dosage but cannot do so until she has consulted her doctors.
21She did not agree with the proposition that her pain has improved since the ketamine infusion.
Credit.
22The defendant attacked Ms Bertenis' credit and suggested she had exaggerated her pain and her limitations and had not fully disclosed the extent to which she is able to undertake her former activities. The defendant relied on four excerpts of film. In total, there was 53.25 hours of surveillance prior to January 2022. The defendant relied on a single excerpt of surveillance from the 13 January 2022 showing Mrs Bertenis walking around Cherry Lake with a friend, completing the circuit in about 42 minutes.
23There was a further 22 hours of surveillance footage taken prior to February 2025. The defendant relied on two excerpts of film from the 15 February showing Mrs Bertenis shopping and then at her car in a car park and a further excerpt of film from the 24 February 2025 showing Mrs Bertenis unpacking shopping into her car.
24My own assessment of the video evidence is that it did not show her doing anything she said she could not do. It did show her keeping her torso very straight and stiff, including, for example, where a person without pain would be expected to bend as when she was transferring bags of shopping from her trolley to her car and on one occasion where she picked up and opened up a bag from the trolley. I noted that she did not bend her torso to do this task, but brought the bag up to a level where she could do it without bending.
25The video surveillance footage at the shops was consistent with her evidence that she does small shops getting just a bag or two of groceries at a time.
26The video surveillance of Mrs Bertenis walking around Cherry Lake suggested that, at least in 2022, Mrs Bertenis could manage a 42-minute walk. Although she says this was with breaks, she was either walking very fast and had breaks or at a moderate pace with no breaks to be able to complete the 3.5‑kilometre circuit in about 42 minutes. Either way, this supports a finding that Mrs Bertenis had a capacity at least on some days and at some times, to walk slightly more than she has said.
27However, having regard to her evidence about her capacity, which I accept has changed over time, I am not persuaded that her credit is significantly impugned by the video evidence, which otherwise generally supports her evidence.
28In relation to her evidence about how far, fast and often she can walk, the defendant says her first affidavit is completely at odds with everything she says after. The defendant submits her subsequent affidavit is a reformer affidavit in which she says different things. Her evidence is entirely unreliable and I should not accept it in relation to her alleged difficulties with walking and standing.
29In 2020 her physiotherapist, Mr Saunders, noted that she reported that her pain was exacerbated walking for more than five minutes. By December 2020 Mr Grossbard has recorded that she can walk for about 10 minutes but was stopped because of lower back pain. In 2021 Dr Ramaswamy noted that she was unable to walk any length of time because of back pain. In her affidavits she says that walking is difficult for more than 20 minutes and then she has to rest. She says walking three kilometres takes an hour with rest breaks due to lower back pain and leg pain. In 2021 she says she struggled to walk more than about a hundred to two hundred metres. In oral evidence, she says it was pain, not the weakness in her leg that caused her difficulties. Her oral evidence in relation to her limp was at contrast with evidence in the affidavit which suggested that the limp was due to back pain.
30In her 2022 January affidavit, she said that she could sometimes walk for up to 20 minutes but then has to rest. In her oral evidence she said that every day she walked a bit and increased by five minutes and got up to 45 minutes. She agreed that she had had improvement. She said that the concessions or alterations she had made to her evidence about her capacity to walk in subsequent affidavits was not made because she was aware of the existence of the film, although that existence of the film had been brought to her attention by her solicitors, but because it was the truth.
31In July 2020, she noted that she could walk for 20 minutes, she could push herself to walk for 30 minutes but that caused pain. She disagreed with the proposition that is suggested in her affidavit that she could complete a circuit of Cherry Lake in 30 minutes and said that she has ‘never been able to do that', and that it takes her 45 minutes. She said that she definitely could not do it in 30 minutes. She explained this by saying she might have misunderstood what was said in her affidavit. She says she has never walked around the track in one go. I note that walking around a 3.5-kilometre track in 30 minutes would represent a very brisk walking pace.
32In July 2022, she said she was able to walk to the creek and back, which was about a 20-minute round trip, although she said she sometimes rested halfway, that she was doing that about twice a week and that she was walking around the lake two to three times a week.
33Also in 2022 she told Professor Bittar that her back pain was worse after 20 minutes of walking and he had reported that pain prevented her from walking for more than two kilometres. Professor Bittar also recorded that she told him that she had increased back pain if she stood for more than 10 minutes but that she could go for 30 minutes if she was able to move or lean on something.
34She maintains that she can only stand still for a very short period but can stand for about 30 minutes if she is able to lean or change her position.
35In October 2023, Dr Sadeghi recorded that she was walking every day and that she had a pain reduction which improved her walking distance and her sleep.
36In her final affidavit she says that she had stopped walking with friends and that as a result she was not walking as often because she lacked motivation. It was put to her that her walking had improved because her pain improved. She said, 'Walking comes better but the pain doesn't improve, the pain is there'. She said that the back and neck had not improved. She said, 'My walking gets better but my pain, I have to take painkillers to start walking and when I come home, but I have to walk otherwise I will lose my legs if I do not walk'.
37She did agree that walking has reduced the number of flare ups and she did ultimately agree that it had improved her back pain slightly. She also agreed that her reduction in walking now is because her friend is sick agreed that her reduction in walking was not so much because of back pain.
38The defendant says that her evidence in her affidavits tended to be in absolute: that she could not maintain a garden; that she could not do household chores; that she has no social life, and says that she gave similar histories to her doctors. The defendant says that in fact the evidence is quite different: that she does manage gardening and household chores; she continues to socialise, having coffees with friends and going to church.
39The defendant points to the following:
(a) Dr Sadeghi's report, 'Cannot do cleaning or gardening',
(b) Dr Habib the general practitioner's report in 2022, 'Pain so severe unable to perform any social activity',
(c) Dr Bittar's report, 'Difficulty going out for coffee, needs to rest hand on tables for support', and
(d) her psychologist Dr Karaboukas' report, 'Feels trapped in the house',
and says that this evidence is all unreliable.
40The defendant says this evidence contrasts with her evidence that:
(a) most of the time when she goes out for a walk she has a coffee afterwards;
(b) she does maintain some plants in her garden, and does some light weeding; and
(c) manages light household chores.
41In response to these matters, Ms Bertenis:
(a) maintained that it was difficult to sit for coffee and that she has to rest her hands on the table so that it takes the weight off her back;
(b) says she needs to lean somewhere when standing and I note that in court when she stood, she stood leaning on either the back of the chair or the edge of the witness box;
(c) said she did feel trapped in her house;
(d) said that going for walks and coffees, 'wasn't my social life'. She said, 'I feel to go for a coffee, I didn't think it as a social life. Social life, be in a group of people and help people'.
(e) said she could not plant tomatoes and zucchinis. She said, 'No, you have to bend too long and I can't do that. I'm not going to plant one zucchini or one tomato'. She agreed she could manage stringing the tomatoes when they were grown but not when they were small seedlings;
(f) said before the motor vehicle accident she had about 20 tomato plants that she would use to make a sauce and to give to family and friends.
(g) said she could no longer mow her large front and back lawns, which she used to do.
(h) said she could dust and cook and fix her bed but she could not clean the bathrooms, vacuum or do mopping.
42The defendant submits that the plaintiff's evidence was given in an exaggerated fashion, and there were inconsistencies in her own affidavits and in the history she has given to treating doctors and experts. The defendant says her manner in court was argumentative, that she failed to make reasonable concessions and that she tended to give explanations and reasons in her answers and refused to acknowledge that she had improvement with her symptoms.
43The defendant submits all these matters render her evidence unreliable.
My findings on credit
44There is some inconsistency in Mrs Bertenis’ affidavits and her oral evidence and where there is inconsistency I prefer her oral evidence. I do not consider the inconsistencies significantly impugn her credit. Despite a great deal being made about the differences between her various accounts to doctors and her affidavits, careful examination reveals a general picture of some improvement from the time of the accident in her capacity to walk, which is consistent with her evidence that her walking got better but the pain did not.
45Statements such as that to Dr Ramaswarmy that she cannot do “any amount of walking” are in my view not literal statements to her doctor as the plaintiff was at no times in a wheelchair or requiring any sort of walking aid. I take this statement to be that any amount of walking caused her pain, not that she could not walk at all. She may have exaggerated her restriction in walking but I did conclude she did so to mislead the court. The exaggeration was not of a serious or extreme kind, father a difference of 10 or 20 minutes in her assessment of her capacity.
46I accept the plaintiff's evidence that she does not consider five tomato plants a garden, particularly in comparison with her pre-injury garden.
47I accept the plaintiff's evidence that she did not have in mind going for a coffee after a walk as a social life when she swore her affidavit.
48Similarly, her capacity to do some light housework in comparison with doing, 'everything around the house', before her motor vehicle accident I think explains her affidavit evidence that, since the accident, she has struggled with housework.
49I did not find the plaintiff to be argumentative. I consider she made appropriate concessions and agreed with propositions where she accepted the proposition put.
50To the extent that she gave justifications and explanations, I did not conclude that was argumentative but was her attempt to clarify her evidence. I note she made admissions about the degree of her neck and back pain prior to the motor vehicle accident.
51I am satisfied that the plaintiff was generally reliable and I do not consider her credit was impugned in such a way that it would cause me not to accept her evidence more generally or would cause me to look elsewhere for corroboration of her evidence.
Did the motor vehicle accident cause an injury?
52As set out at the beginning, this is an aggravation case. Dr Keogh says that the degeneration of her spine is not attributable to the motor vehicle accident. He diagnoses a chronic post-traumatic pain injury in the neck and low back following the motor vehicle accident.
53Professor Bittar diagnoses an aggravation of an underlying spondylosis. It is not clear to me whether he is saying that the spondylosis itself has got worse or whether the aggravation is that the spondylosis is now productive of more pain than it was before the accident. In either scenario it is the motor vehicle accident which is the cause of the increased level of pain.
54Dr Wood diagnosed a maladaptive pain response which cannot be ascribed to any structural change. He does, however, accept that her injury is related to the motor vehicle accident because of the temporal relationship between the two.
55I am satisfied that the motor vehicle accident caused an aggravation of an underlying degenerative disease in the plaintiff's spine. This is because:
(a) although she previously had pain in her spine there is no record of any ongoing neck and back pain after 2015, although she had intermittent pain in both neck and back prior to the accident;
(b) there is a documented immediate onset of neck pain;
(c) there is a documented onset of low back pain two to three weeks after the motor vehicle accident; and
(d) all the experts have determined that Mrs Bertenis' pain injury is related to the motor vehicle accident.
What are the consequences of the injury attributable to the motor vehicle accident?
56The next issue that falls to be considered is what consequences are attributable to the motor vehicle accident.
57The defendant submits that there were numerous pre-existing issues affecting Mrs Bertenis which caused significant consequences and that, in light of these, I cannot be satisfied that the consequences meet the test having regard to what has been lost as well as what has been retained.
The claimed consequences
Pain
58The defendant says that Mrs Bertenis had substantial neck pain and back pain prior to the motor vehicle accident. Dr Keogh, the pain specialist, notes the pre-existing pain issues and in particular points to the general practitioner, records that document pain in the neck, stenosis, anxiety, depression and right shoulder pain. Prior to the accident Mrs Bertenis was taking Endep, 10 milligrams.
59Mrs Bertenis says that the pain was there, three to four out of 10 when it occurred but afterwards “it is going to eight out of 10”. She says that now she cannot really turn her neck properly and has to turn her body. She says, 'Only me can understand it. I can't make you understand what I'm going through. I have severe pain most of the time and if you see me walk freely it's, yeah, I have some good time on the day. I can't stay the whole day out on my legs'.
60She says now her lower back pain occurs multiple times a day. It is generally seven out of 10 and at a maximum, nine out of 10. It improves with frequent change of posture, recumbency and medication.
61The defendant says I ought to accept the evidence of Dr Ramaswamy that she had significant improvement in her pain following the ketamine infusion of about 25 to 30 per cent. Mrs Bertenis agrees that things improved after the ketamine infusion but says that improvement did not persist.
62She says the pain is still there, as strong as it used to be. 'As time passed I don't think it done anything', she said. She disagreed that she estimated the improvement as 25 to 30 per cent and says she told Dr Ramaswamy 20 per cent. She says about four or five days a week the pain is so severe that she cannot do much. She describes the pain as the worst thing you can give to someone and she would not wish it on her worst enemy. Mrs Bertenis rejected the suggestion that her pain before and after the accident was similar.
63I find that she did have some significant pain prior to the accident which was sufficient to justify multiple MRI investigations and to warrant prescription analgesic medication. However, I accept her evidence that her pain is substantially increased since the motor vehicle accident. This is because:
(a) she had a significant increase in her dosage of Endep and Cymbalta. I note that Cymbalta can be used as both a psychiatric and pain relief medication. To the extent it was used for pain relief it increased after the accident, albeit that both of those medications reduced after her ketamine infusion.
(b) I accept her evidence that since the ketamine infusion, her pain has returned to pre‑infusion levels and the lower level of medication is no longer sufficient to control her pain.
(c) She has added Panadeine Forte three to four times a week, a fairly high rate of usage of opioid medication.
(d) She takes tramadol daily, a new addition to her medication regime.
(e) I accept her evidence that her pain is more frequent after the accident, that flare‑ups are more frequent and that there are a number of times a week where she is significantly debilitated by pain.
Other consequences
Shopping
64She says that she is okay lifting bags of shopping and okay using a trolley, but she now never does a big shop and just gets a little bit each time she goes. She says she shops once a week and that since her son moved to Werribee, she goes alone and can cope fine with a couple of bags.
Cooking
65She can still cook, but before the motor vehicle accident she enjoyed her cooking. The difficulty that she finds now is standing and bending, so she does not do complicated cooking as she used to do. She used to do moussaka, tomatoes, zucchinis and “all of that”. She says, 'I was a typical Greek mother, always cook meals morning, lunch and dinner. Now I cook once in two days and have to make do with that'. She says she cannot stand a long time and she does not want to bend and accelerate her pain.
66She explained, for example, in relation to moussaka that it is time consuming to prepare all the ingredients and that it requires her to stand too long and that exacerbates her pain. She says she is no longer making the sweets she used to make before the motor vehicle accident. She now does easy stuff: “steak, chips, quick soups, like that”. I accept her evidence about cooking and that her inability to cook in the way she used to is a matter of significance for her.
Gardening
67I have already dealt with her evidence about gardening. I accept that her inability to maintain a vegetable garden and to mow her lawns, notwithstanding that she can manage a few tomato plants, is a significant loss to her.
Social life
68In relation to her social life, she says that she socialises less. She goes out for coffee most days after a walk, and she will go to the café and stay between 30 and 60 minutes, sometimes more, sometimes less. I accept that this represents a reduction in her social life that is a loss for her.
Housework
69She says that her housework is affected by her pain and that she can now only do light housework. She agreed that she has always been able to do the lighter housework since the motor vehicle accident apart from on days when her pain is so severe she cannot do anything. She says before the motor vehicle accident, she did everything. She did all the housework, cutting trees, everything was on her. She was very, very active. 'Because of all this that has happened', she said, 'that is why I feel trapped in the house'.
70She said that she feels the level of housework that she now performs does not comprise “house chores”, and I accept that her inability to maintain her house in the way that she used to is a significant loss to her.
Church attendance
71In relation to church, she can still attend church and she goes for the hour service. She finds sitting in the pews difficult, but she can sit and stand as required. She drives there and it is a short drive of only five minutes, which she can manage. She says that after about 10 minutes, she has to stand up in the church.
72Her attendance at church itself has not changed, but what has changed since the motor vehicle accident is her duties after church. She says now she only just goes for the church service. Before, she was cooking for the homeless, she was involved in the church community and she would prepare food to give to centres where the homeless go for lunch. She says she cannot do that any more because of the standing involved in cooking and she cannot do the baking that she used to. I accept her evidence about her curtailed activities at the church.
Sleep
73In relation to sleep, she says that her sleep is disturbed because she finds it difficult to get a comfortable position. She agreed that she had longstanding insomnia before the motor vehicle accident, but she said that this was a different problem, that she used not to be able to sleep because of her thoughts, she would take Valium because she was upset with her husband, and now she is not thinking those thoughts anymore and what is stopping her from sleeping is her pain.
74She disagreed that her sleep situation was similar pre‑ and post‑accident. She said that she sleeps for three to four hours at best, and then she has to get up, stretch, and maybe she can get another couple of hours of sleep. She is not able to get a good night's sleep.
75It is possible that the causes of her insomnia which she suggested were her stress and anxiety about her husband and her concern about her son may have lessened since her husband's death and her son moving into community care.
76I accept that her sleep is now interrupted by pain and that this has, to some extent, replaced the problem with insomnia she might have been having before the motor vehicle accident. I am not able to conclude overall whether the post-accident sleep quality or quantity is markedly different.
Medication
77In terms of medication, she was on Endep before the motor vehicle accident of 10 milligrams a day. This was increased to 25 milligrams. She was on Cymbalta 60 milligrams. This increased to 180 milligrams, although it is subsequently dropped back to 60 milligrams.
78She takes Panadol Osteo now, she says, two to three times a week, sometimes as much as four times a week. There is a difference between her oral evidence about this and the affidavit which suggests it is every two to three weeks. She maintains that the affidavit is not correct. I accept her oral evidence about that. Given the degree of pain and the other medications she is on, I am satisfied it is more likely she is taking this medication several times a week rather than a couple of times a month.
79She takes Panadol Forte when necessary up to about four times a week. Her affidavit says two to three times a week. In response to this, she said it depends on the days. There might be a day that she does not take any. I accept that she takes Panadol Forte between two and four times a week. She also now takes tramadol every day, 50 milligrams morning and night, amounting to 100 milligrams a day.
Defendant’s submissions on consequences
80The defendant's submissions on the consequences are that she had prior neck and back pain, she had depression, she has unrelated carpal tunnel syndrome, she had had two strokes, she had gout, she had a knee injury and a shoulder injury. She had retired at age 60 but went on a disability support pension because of issues unrelated to the motor vehicle accident. The defendant submits that there are a lot of comorbidities at play and when assessed, the before and after condition of her life is similar.
81The defendant says that the quality of her life before the accident is substantially the same as the quality of the life after the accident in terms of her capacity to engage in walking, church activities, socialising with friends and maintaining activities of daily living. Having regard to all these matters, the defendant says I could not be satisfied that the consequences of the motor vehicle accident are at least very considerable.
Plaintiff’s submissions on consequences
82The plaintiff's submissions are that the motor vehicle accident had a serious impact on her, that she has daily pain, albeit that the pain is not constant, that the doctors are all of one voice in relation to the causes of the pain, and that she has also had an exacerbation of a previous major depressive disorder caused by her pain and that the impact of that pain on her life is a factor that I ought to consider, having regard to the case of Richards v Wylie.
83The plaintiff also submits that Mrs Bertenis had not complained of neck or back pain for a period of about three years prior to the motor vehicle accident and has subsequently become somebody who is in constant contact with doctors and has also had a significant treatment of a ketamine infusion.
Findings on consequences
84I am satisfied of the following consequences:
(a) a significant increase in Mrs Bertenis' level of pain, evidenced by:
(i)medication of tramadol and Panadeine Forte;
(ii)an inpatient stay for a ketamine infusion in March 2025,
(iii)her own evidence about her increased pain, which I accept, notwithstanding her concession about her pre-existing neck and back pain.
(iv)the uncontested evidence of her daughter; and
(v)my own observations of the plaintiff moving frequently in the witness box, alternating between sitting and standing and leaning on the back of the chair or the side of the witness box when standing.
(b) a reduction in her social activities, in particular she is not as active in the church as she was;
(c) an inability to cook in the way she used to;
(d) an inability to manage a vegetable garden, notwithstanding that she can manage a small number of tomato plants, and;
(e) an inability to maintain her house in the way that she previously did.
85Having regard to the consequences that I am satisfied arise from the motor vehicle accident and compared with the range of cases I am required to consider, I am satisfied that the plaintiff has sustained consequences that meet the test of at least very considerable. Accordingly, she has leave to bring common law proceedings for pain and suffering.
86I will make orders that the plaintiff have leave to bring common law proceedings for pain and suffering, for injuries sustained to her spine during her transport accident on the 22 October 2019. I will hear the parties on costs.
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