Bezzina v Transport Accident Commission
[2013] VCC 1765
•19 November 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-00194
| MICHELLE BEZZINA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 and 25 October 2013 | |
DATE OF JUDGMENT: | 19 November 2013 | |
CASE MAY BE CITED AS: | Bezzina v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1765 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Transport accident – serious injury – whether the consequences of injury to right shoulder and mental and/or behavioural disturbance or disorder were, when compared with other cases in the range of possible impairments or losses, fairly described as “at least very considerable”.
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited: Humphries & Anor v Poljak [1992] 2 VR 129
Judgment: Leave to the plaintiff to commence a proceeding claiming damages in respect of injuries suffered in a transport accident on or about 4 March 2006.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B W Collis QC with Mr A Ingram | Verduci Lawyers |
| For the Defendant | Ms J Dixon SC with Ms B Myers | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 On or about 4 March 2006, Michelle Bezzina was a passenger in a motor vehicle which was involved in a transport accident (“the collision”). She alleges that as a consequence of the collision, she has suffered physical and non-physical injuries.
2 She seeks the leave of the Court to issue a proceeding to recover damages in respect of those injuries.
3 Her right to do so is governed by the provisions of s93 of the Transport Accident Act 1986 (“the Act”). In order to obtain such leave, Ms Bezzina must satisfy the Court that she has suffered a “serious injury”.[1]
[1]Section 93(6) of the Act
4 The term “serious injury” is defined in s93(17) of the Act (insofar as is relevant to this application) as:
“(a) serious long-term impairment or loss of a body function; or
…
(c)severe long-term mental or severe long-term behavioural disturbance or disorder.”
5 In order that an injury be considered “serious”:
(a)the consequences of the injury must be serious to the particular applicant;
(b)those consequences may relate to pecuniary disadvantage and/or pain and suffering;
(c)the question to be asked is whether the injury, when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described as “at least very considerable and more than merely significant or marked”.[2]
[2] Humphries & Anor v Poljak [1992] 2 VR 129 at [140]
6 Ms Bezzina alleges that the consequences of her physical and non-physical injuries satisfy the threshold test as being “at least very considerable”. The defendant denies that this is so. It is this issue which falls to be determined.
Background
7 Ms Bezzina is aged thirty-six. She is married with three children currently aged between nineteen and seven. All live at home with her and her husband.
8 She left school part-way through Year 12 when she fell pregnant with her eldest child. At the time, she was aged seventeen. She has done some short post-school courses in flower arrangement, computer work, book keeping, data entry and a MYOB accounting program course. Her first paid employment commenced in 1996 when she was employed as a shop assistant in a bakery, where she worked for about two years. She later worked as an administrative assistant and sales assistant. She ceased work in November 2003 just prior to the birth of her third child. She has not subsequently been employed.
9 In about 1999, Ms Bezzina’s husband was injured in the course of his employment. In 2003, Ms Bezzina applied for and received a Carer’s Pension in respect of the care provided by her to her husband. Her fourth child was born in November 2005.
10 Until the subject transport accident, Ms Bezzina enjoyed good health. She had no problems with her right shoulder and had no behavioural or mental disturbance or disorder.
The collision and its aftermath
11 On 4 March 2006, Ms Bezzina was a front-seat passenger in a motor vehicle driven by her husband.
12 Following the collision, she was taken by ambulance to Sunshine Hospital and admitted overnight. X-rays of her cervical and lumbar spine were taken. These demonstrated no abnormality. She was discharged home the following day.
13 Within two or three days, Ms Bezzina attended on her regular general practitioner, Dr Parbhoo. She complained of a sore back, neck and shoulder. He referred her for physiotherapy and acupuncture and prescribed analgesia.
14 Over the following years, Ms Bezzina continued to see Dr Parbhoo, who referred her to a number of specialists in relation to problems concerning continued pain to her neck, low back and shoulders.
15 In February 2007, Ms Bezzina was referred to Mr Russell Miller, orthopaedic surgeon. The history taken by him at that time was of pain involving the neck and the thoracic and lumbar areas of the spine with radiation into both legs. He considered that low-back pain was the dominant feature at that time.[3] Mr Miller referred her for an MRI scan of her lumbosacral spine, which was reported as being normal.[4]
[3]Plaintiff’s Court Book (“PCB”) 39
[4]PCB 25
16
In March 2007, Ms Bezzina attended Dr Parbhoo complaining of ongoing back and leg pain. Dr Parbhoo suggested attendance at a back rehabilitation program and referred her to Dr Clayton Thomas at the Dorset Rehabilitation Centre. She attended upon Dr Thomas on 27 April 2007, seeing him only on the one occasion. The history recorded by Dr Thomas is that following the collision, she had suffered upper back and shoulder pain. At the time of the attendance, Dr Thomas noted that her shoulder and neck was now “fine” but her lower back was sore. At that time, he noted that she was prescribed
Di-gesic, Panadeine Forte (taking up to eight per day) and Prothiaden (an anti-depressant).[5] It appears that Dr Thomas did not conduct any examination of either of her shoulders.
[5]Defendant’s Court Book (“DCB”) 52
17 In November 2009, Ms Bezzina was referred by Dr Parbhoo to Dr Alex Stockman, rheumatologist. The referral related to neck pain and right shoulder pain.
18 In March 2009, Dr Parbhoo referred Ms Bezzina to a psychologist, Ms Jude Western. She took a history from Ms Bezzina that her pain was expanding and that the severity of her pain had been increasing over time.[6] She saw her for psychological management of a Post-Traumatic Stress Disorder on a number of occasions from March 2009 until early 2010.
[6]PCB 85
19 In March 2010, Dr Stockman administered a subacromial steroid injection into the right shoulder under ultrasound guidance. This produced a mild response only and for two days. In April 2010, Dr Stockman again noted continued complaints of neck pain, headaches, pain in the right shoulder and low back pain.
20 In May 2010, Dr Stockman requested an MRI of Ms Bezzina’s right shoulder. This was reported as showing an abnormal signal consistent with a small partial thickness tear of the subscapularis tendon. Other tendons were said to be normal in appearance. The partial thickness tear was described as “tiny”.[7]
[7]PCB 28
21 An ultrasound of the right shoulder on 15 November 2010 was said to reveal contour flattening of the supraspinatus tendon, but no discrete tear was seen. The subscapularis tendon was said to be intact. On that occasion, she had a further corticosteroid injection into the right shoulder.
22 In February 2011, Mr Miller performed surgery consisting of a right shoulder arthroscopic subacromial decompression with excision of the subacromial bursar. At the same time, he injected her coccyx, which was painful but presumably unrelated to any right shoulder problem.
23 Ms Bezzina gave evidence that her right shoulder condition has deteriorated since the surgical procedure.
Diagnosis of injuries
Physical injury
25 Counsel for the defendant pointed to the absence of complaint of shoulder pain in the notes of the Sunshine Hospital. However, in the ambulance notes made earlier on the same day, there was a record of a complaint of shoulder pain. Likewise, when Ms Bezzina saw Dr Parbhoo three days later, she complained of shoulder pain. I accept that for some time after the collision her primary complaint was of back and neck pain and they probably over-shadowed her shoulder pain.
24 In September 2006, Dr Parbhoo did not express a view as to the nature of injuries suffered but indicated that he considered that a full recovery was anticipated.
25 By June 2012, Dr Parbhoo was of the view that Ms Bezzina had ongoing symptoms of capsulitis (also known as frozen shoulder) and that her prognosis was poor. He also noted ongoing pain in the upper thoracic spine and in the region of the sacro-coccyx. He further considered she had significant and chronic anxiety and depression symptoms. Dr Parbhoo expressed the view that her capacity for work remained very restricted and that her future capacity remained guarded, as this would be determined by her ongoing physical and psychological difficulties. He thought it was a complex issue and noted that she found it difficult coping with general domestic work and had “a poor social life as a result of ongoing pain, relationship issues at home and poor social skills”.[8]
[8]PCB 37
26 In his most recent report of November 2012, Dr Parbhoo noted ongoing pain in the right neck and shoulder, restricted movements of the right shoulder and restricted movements in the thoraco-lumbar spine. He also considered she was very anxious. He thought her capacity for work remained restricted. He thought the functional capacity of her injured shoulder was a limiting factor. Her anxiety and depression was also contributing to her future capacity for work.[9]
[9]PCB 37(b)
27 Dr Parbhoo retired in December 2012. From that time, Ms Bezzina has consulted Dr Michael Hocking of the same medical clinic as her general practitioner. In September 2013, Dr Hocking reported that Ms Bezzina had a Chronic Pain Syndrome involving the neck, right shoulder and lower back, complicated by secondary depression. He noted that she was continuing to be treated with opiate analgesia and anti-depressant medication and thought that there would not be any expected further improvement in her condition.[10]
[10]PCB 105(a)
28 Mr Russell Miller made no mention of any shoulder injury or symptoms in his reports of May and September 2007 following the first referral to him. However, she was referred back to him in late 2010 and underwent an arthroscopic subacromial decompression in February 2011. He noted that there had been no pattern towards improvement and symptoms had not been improved by surgery. In his report dated May 2012, he noted a history from Ms Bezzina that she had shoulder symptoms since the time of the accident.[11] His diagnosis at that time was that she had developed an injury to the right shoulder in the form of an impingement syndrome. There had been a poor response to the subacromial decompression surgery and he thought she then had features suggestive of ongoing residual capsulitis. He thought the prognosis for the shoulder was fair to poor.
[11]PCB 45
29 Mr Miller also considered that she had suffered an adverse mental state reaction to the accident and had developed a secondary Chronic Pain Syndrome which complicated the assessment and management of her condition. On the history given to him, he concluded that the symptoms of the right shoulder and of spinal pain were accident related. In relation to capacity for work, he considered that she would have difficulty with work that involved repetitive arm actions, use of the right shoulder in the above shoulder position, and of lifting weights more than five kilograms. He considered that problems relating to her lumbar spine would result in difficulty with work involving repetitive bending and lifting, and lifting of weights of more than five kilograms. He believed that the primary determinant in her capacity to return to work was the development of probable Chronic Pain Syndrome.[12]
[12]PCB 48
30 In January 2013, Mr Miller reported that the plaintiff had features of an established Chronic Pain Syndrome. It was his view that there was an organic basis to her spinal problems and shoulder problems with a superimposed overlay of Chronic Pain Syndrome which made it “difficult or indeed impossible to disentangle those factors”.[13]
[13]PCB 50(b)
31 In his report of August 2013, Mr Miller expressed the same views. He said:
“To the extent I am able to it is my view that approximately one half of the shoulder and spinal disease is based on organic disease and approximately one half is based due to psychological factors leading to symptom magnification.”[14]
[14]PCB 50(c)
32 It remained Mr Miller’s view that the organic disease led to significant restrictions in Ms Bezzina’s capacity for work, social and domestic activities.
33 Dr Clayton Thomas saw Ms Bezzina on one occasion in April 2007 on referral from Mr Miller. He concluded that her primary problem was a soft tissue injury to her lumbar spine. He made no diagnosis concerning her right shoulder
34 Dr Stockman saw Ms Bezzina on several occasions between 2009 and June 2012. Initially, he took a history of the following:
“Constant neck pain, headaches associated with nausea, pain in both trapezius muscles, more recent pain in the left shoulder, tremor in the right hand, low back pain including pain in the coccyx and pain in the front of both thighs.”[15]
[15]PCB 51
35 He initially diagnosed Ms Bezzina as having widespread pain which was probably a pain syndrome. By November 2009, Dr Stockman considered that although Ms Bezzina had a Chronic Pain Syndrome, examination of the right shoulder was consistent with a rotator cuff lesion.
36 Dr Stockman arranged for an ultrasound of her right shoulder in October 2008 which showed some bunching of supraspinatus on adduction and some minor changes of tendinopathy. Ultrasound of the left shoulder showed similar findings. The relevance of these findings is not clear.
37 He thought she might require a further steroid injection into the right shoulder.[16] He described her condition as bilateral rotator cuff tendinopathy.[17]
[16]PCB 54
[17]PCB 55
38 In his later reports, Dr Stockman opined that Ms Bezzina had rather widespread pains to the neck, right shoulder, lumbar spine and coccyx consistent with a Chronic Pain Syndrome. In addition, there was a mild rotator cuff tendinopathy of the right shoulder confirmed by MRI scan. He expected that her pain would remain, possibly indefinitely. He thought there were psychological and social problems involved, and noted she was on anti-depressant medication for depression. He thought that the Chronic Pain Syndrome was likely to be the “major cause of pain” and that her work should be confined to light employment.[18]
[18]PCB 64
39 Ms Bezzina was examined by Dr Helen Sutcliffe, an occupational physician, at the request of her solicitors in November 2011 and again in May 2013. On the first occasion, Dr Sutcliffe obtained a history from Ms Bezzina of an onset of pain in the neck, low back and right shoulder as a result of the collision, and that she had been referred to Mr Miller for assessment of back and shoulder pain. This is not entirely correct. She was not referred to Mr Miller initially for shoulder pain but only for back pain. It was only in late 2010 that she was referred back to Mr Miller in relation to shoulder pain. Likewise, Dr Sutcliffe refers to her being referred to Dr Clayton Thomas with persisting pain but does not nominate where that pain was experienced. It is clear from Dr Thomas’s report that the referral to him was only in relation to back pain.
40 In May 2013, Dr Sutcliffe considered that Ms Bezzina was continuing to experience persisting pain of a neurological nature in her neck, low back and right shoulder as a result of the collision. She thought the impairment was permanent but did not attempt to distinguish between the contributions made by the three separate areas of injury.
41 Dr Sutcliffe considered that further MRI investigations were required in respect of the lumbar spine and neck. Dr Sutcliffe had made reference to the finding by MRI scan of a tear in the subscapularis tendon. I do not accept that the scan confirmed such a tear and there is no mention of a tear being found in Mr Miller’s operation note.[19]
[19]PCB 105
42 Mr Rodney Simm, orthopaedic surgeon, examined Ms Bezzina in August 2012 at the request of the defendant. The history he took from her at that time was that she suffered from constant pain which was equally severe in the neck, right shoulder and lower back. He thought that she had probably suffered a soft tissue injury to the right shoulder, complicated by a chronic adverse pain response. He thought she currently presented with non-specific clinical signs in relation to the shoulder with equivocal signs of subacromial impingement. He did not consider that any further surgery would be successful. He thought she had features of a Chronic Pain Syndrome in that no physical pathology had been identified to explain her neck, right shoulder or back symptoms. He expected her condition to persist with no improvement.[20]
[20]DCB 20-21
43 He thought that her prognosis was related to the development of a Chronic Pain Syndrome with associated depressive illness. There having been no improvement for several years, he thought the condition would persist. He thought that the chronic pain (that is, to the neck, shoulder and back) limited her capacity to undertake sustained physical activities and that she would be confined to light employment. He thought that she presented in an entirely genuine manner and accepted that the pain experience was a reality for her.[21]
[21]DCB 21
44 On the basis of the medical evidence referred to, I consider that Ms Bezzina suffered a soft tissue injury to her right shoulder in the collision and, since surgery, has developed tendonosis and signs of capsulitis (or frozen shoulder). Further, her shoulder symptoms have become complicated by the development of a Chronic Pain Syndrome.
45 I am not satisfied on the evidence that there was a tear of the sub-scapularis tendon or any rotator cuff lesion. Although a tiny tear of the tendon was suggested in the report of the MRI of May 2010,[22] no frank tearing was found by Mr Miller when he performed the decompression surgery in February 2011.[23]
[22]PCB 28
[23]PCB 105
46 The situation is confused by additional injuries to her neck and low back. When she saw Mr Simm in August 2012, Ms Bezzina described the pain from her neck, low back and right shoulder as being about equal. I am not permitted to aggregate the various injuries suffered by her in the collision in determining whether or not she has suffered a serious injury.[24] Accordingly, I must ignore the injuries to the neck and low back and concentrate on the nominated injury to her right shoulder in making that determination.
[24]Lu v Mediterranean Stores Pty Ltd (2000) 1 VR 511
47 I find that Ms Bezzina suffers from a chronic pain syndrome that amplifies her right shoulder pain along with her neck and low back pain.
48 I find that the pain syndrome is a non-physical condition and is secondary to the physical injuries to her neck, low back and right shoulder. That is, I find that the soft tissue injury to her right shoulder is a cause of her chronic pain syndrome.
Non-Physical Injury
49 In relation to non-physical injury, Ms Bezzina was referred by Dr Parbhoo to a psychologist, Ms Jude Western, in March 2009. In her report, dated July 2009, Ms Western opined that Ms Bezzina was suffering a Post-Traumatic Stress Disorder and Chronic Major Depressive Disorder in accordance with the criteria set down in DSM-IV. Further, she considered she was suffering chronic pain requiring significant adjustment and change to her lifestyle and had considerable grief with the limitations her physical injuries now present.[25] She concluded her report by stating that the collision had had wide reaching effects on the life of Ms Bezzina and her family. She was trying to come to terms with a life lived in persistent pain and grieving for many previously enjoyed pursuits in which she can now not participate. Ms Western’s report is dated more than four years ago.
[25]PCB 91
49 Counselling with Ms Western continued through until early 2010, at which time funding for that treatment was ceased. No further report from Ms Western was tendered.
50 It is clear that the chronic pain to which Ms Western refers includes pain to Ms Bezzina’s low back, sciatic pain to the legs, severe headaches and pain to both shoulders.[26] Ms Western did not attempt to distinguish between Ms Bezzina’s various injuries as to the extent they contributed to her overall condition.
[26]PCB 86
51 Dr Paul Kornan, a psychiatrist, examined Ms Bezzina at the request of her solicitors on two occasions – in October 2011 and in June 2012. On each occasion he considered that she presented with:
(a) a Chronic Pain Disorder associated with psychological factors;
(b) features of a Post-Traumatic Stress Disorder, but not the full syndrome;
(c)ongoing specific phobias consisting of fear of car accidents and further injuries.
52 He thought her psychiatric condition was of chronic, moderate intensity and that her prognosis seemed to be poor.
53 Professor Richard Ball examined Ms Bezzina in September 2011 at the request of the defendant. He had been provided with various medical reports, including that of Ms Western in July 2009. He concluded that it was clear that things had improved for Ms Bezzina since that report. On my reading of Professor Ball’s report, he does not provide any specific diagnosis of her condition. Under the sub-heading of “Diagnosis” he stated:
“There is a small primary component relating to the nature of the accident, and a secondary component relating to her perceived physical injuries and their consequences.”[27]
[27]DCB 8
54 He refers to her having psychiatric problems but does not detail what those problems are or provide any diagnosis of any particular psychiatric or psychological illness. Nevertheless, he plainly considered that she did suffer from a degree of depression.[28]
[28]DCB 11
55 On the basis of the reports of Ms Western, Dr Kornan and Professor Ball, I find that Ms Bezzina has suffered from some features of a Post-Traumatic Stress Disorder, a Chronic Pain Syndrome and some features of phobia concerning the accidents and injuries. It is likely that she suffers from some depression.
Consequences of injuries
56 A physical injury can have its seriousness measured in part by a mental response to a physical impairment.[29] Accordingly, I consider that where a worker suffers a physical injury which leads to a Chronic Pain Syndrome, I would be able to take into account the pain syndrome and its effect when considering the consequences of the physical injury. It follows that a physical injury, when looked at alone, may not have very considerable consequences for the worker, but when the resultant pain syndrome is taken into account, as a consequence of the physical injury, the consequences of the physical injury may satisfy the threshold test.
[29]Richards & Anor v Wylie [2000] VSCA 50 at [17].
57 The situation is more complicated where the medical evidence is that the worker suffered a number of physical injuries to different parts of the body, and that those injuries have lead to a pain syndrome which has lead to an amplification of pain experienced in relation to each of those injuries. In such a case I consider that the worker is entitled to bring into account any such amplified symptoms of the subject injury. Amplification of symptoms relating to other injuries would not be able to be brought into account.
58 Here, there is medical evidence that Ms Bezzina has suffered from a Post-Traumatic Stress Disorder. Her Counsel conceded that such a condition was a primary one caused by the collision and which would come to be considered under part (c) rather than part (a) of the definition of “serious injury” in s134AB(37) of the Act. It would not be considered as a mental response to a physical injury which could be taken into account when considering the consequences of a physical injury under part (a) of that definition.
59 As stated above, I find that Ms Bezzina has suffered a soft tissue injury to her right shoulder in the accident with resultant symptoms of pain that lead to unsuccessful surgery. I am satisfied that that injury was a cause of the chronic pain syndrome that developed in the years that followed the collision.
60 Ms Bezzina’s credit was not in issue at the hearing. I found her to be a genuine and truthful witness. I find no reason to doubt her description of her symptoms or the consequences of the injury alleged by her. There was no suggestion that she suffered from any problems with her right shoulder before the collision.
61 On the basis of her evidence and the evidence of medical practitioners whose reports were tendered, I find that the consequences to her of the injury to her right shoulder resulting from the collision are:
(a) She experiences constant pain in her right shoulder.
(b) Her pain was such as to warrant invasive treatment twice by way of cortico-steroid injections and later by way of decompression surgery – unsuccessful as it turned out.
(c) She suffers from a degree of depression and accompanying mood swings. Her depression has continued to date and requires prescribed anti-depressant medication.
(d) Her sleep is disturbed, unsurprisingly, by shoulder pain.
(e) She is limited in performance of a range of domestic tasks. She receives a great deal of assistance from her daughter.
(f) She has difficulty with gardening activities.
(g) She previously owned and enjoyed riding a trail bike. She has had to cease this activity and sell the bike.
(h) She and her partner enjoyed 4-wheel drive activities on unmade roads. She has had to cease these.
(i) General dexterity with regard to right arm activities is reduced. For instance she is unable to wipe herself with her dominant right hand after toileting.
(j) She appears to have developed a degree of capsulitis (or frozen shoulder) since the surgery.
(k) Her right shoulder has been left slightly lower than the left. This is not a gross deformity but a subtle one.
(l) She has reduced grip power on the right.
(m) The range of employment opportunities open to Ms Bezzina, should she be able to return to work, is reduced. She would have difficulty performing work involving repetitive arm actions, work above shoulder level, and work involving lifting of weights in excess of 5 kilograms.
(n) At the time of the collision she was aged twenty-nine. She is now thirty-six. On any view, she has many years of life ahead of her. Although there was no expert evidence concerning life expectancy, I consider it likely that she will experience these symptoms for a further forty to fifty years.
62 In her affidavits, Ms Bezzina referred to an inability to stand or sit for long as a consequence of her injury; however, I consider this problem is more likely to relate to her low back or neck injury rather than the injury to her shoulder.
63 Counsel for the defendant pointed to the relatively minor radiological changes to the shoulder. Whilst this is the case, I do not consider that it follows that the injury or its consequences for Ms Bezzina must be minor.
64 Taking all of the evidence into account, I am satisfied that Ms Bezzina has suffered a serious and long-term impairment of the function of her right shoulder. I am satisfied, by reason of the consequences as set out above, that the injury, when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described as at least very considerable and more than merely significant or marked.
65 In relation to part (c) of the definition of “serious injury” in s134AB(37), I am not satisfied that Ms Bezzina has suffered a severe long-term mental or severe long-term behavioural disturbance or disorder as a consequence of the accident. Whilst I accept that she has symptoms of Post-Traumatic Stress Disorder with depression and some anxiety, I am not satisfied that these, on their own, could fairly be described as severe.
Conclusion
66 For the reasons expressed above, I am satisfied that Ms Bezzina has suffered a serious injury in the collision as that term is defined in s93(17) of the Act.
67 Accordingly, pursuant to s93(4)(d) of the Act, there is leave to Ms Bezzina to bring proceedings to recover damages in respect of injuries suffered by her in a transport accident which occurred on or about 4 March 2006.
68 I shall hear the parties in relation to costs.
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