Biernacki v Transport Accident Commission
[2021] VCC 1200
•27 August 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-02798
| LUCI RYSZARDA BIERNACKI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 to 7 July 2021 | |
DATE OF JUDGMENT: | 27 August 2021 | |
CASE MAY BE CITED AS: | Biernacki v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1200 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – whether injuries caused by transport accident – credit of plaintiff – whether consequences of transport accident “serious” – relevant principles – paragraph (a) case
Legislation Cited: Transport Accident Act 1986, s93(4)
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Demmler v Transport Accident Commission [2018] VSCA 284; Petkovski v Galletti [1994] 1 VR 436; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Hunter v Transport Accident Commission [2005] VSCA 1; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Halpin v Wilson Transformer Co Pty Ltd [2012] VSCA 235; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison QC with Mr B House | Henry Carus & Associates |
| For the Defendant | Ms D Manova with Ms J E Clark | Solicitor to the Transport Accident Commission |
HER HONOUR:
1This is an application for leave to bring proceedings for damages pursuant to s93(4) of the Transport Accident Act 1986 (“the Act”) for injury suffered by the plaintiff in a transport accident which occurred on 17 November 2015 (“the transport accident”).
Relevant legal principles
2Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
3The application is brought pursuant to ss(a) only of the definition of “serious injury”. That definition is set out in s93(17) of the Act, which states relevantly, as follows:
“Serious injury means—
(a) serious long-term impairment or loss of a body function; … .”
4The plaintiff’s case is that by reason of the transport accident, she has suffered injury to the function of her spine and to her shoulders bilaterally.
5In forming a judgment as to whether the consequences of an injury are “serious”, the question to be asked is “can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’”.[1] It has been held that the relevant consequences to a plaintiff will relate to pecuniary disadvantage and/or pain and suffering.[2]
[1] Humphries & Anor v Poljak [1992] 2 VR 129 at 140
[2]Humphries & Anor v Poljak (ibid); see also Demmler v Transport Accident Commission [2018] VSCA 284 at paragraphs [52] and [56]-[57]
6In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of a “serious injury”, as set out in s93(17), the relevant injury must also be long term.
7The plaintiff bears the burden of proof on the application. The standard of proof is on the balance of probabilities.
8The Court must assess whether the injury is “serious” for the purposes of the Act, as at the time the application is heard.[3] In assessing the “consequences” of the injury, the Court is required to consider the consequences to this particular plaintiff, viewed objectively, arising from the transport accident.[4] The task of assessing the pain and suffering consequences of an injury is largely a question of impression and value judgment.[5]
[3]See s93(6) of the Act, which states that leave must not be given by a court unless the court “is satisfied that the injury is a serious injury”. I take that expression to mean that the injury is “at the time at which the application is heard,” a serious injury for the purposes of the Act
[4]Petkovski v Galletti [1994] 1 VR 436 at 442; Demmler v Transport Accident Commission (supra) at paragraph [52]
[5]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
9The Court must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[6]
[6]See generally HuntervTransport Accident Commission [2005] VSCA 1 at paragraphs [23]-[26]
10It is well understood that a person who is injured is to be compensated only for such injuries as are proven to have resulted from the relevant accident.[7]
[7]Petkovski v Galletti (ibid)
11Applying the principles set out in Petkovski v Galletti,[8] in an application like this, where it is alleged that the plaintiff may have had a relevant pre-existing condition, it is the consequences of any additional injury or aggravation of any pre-existing injury, which must be assessed. To undertake this task, the plaintiff must establish what injury was caused by the transport accident. I must then determine the consequences of that injury to the plaintiff, by comparing the plaintiff’s condition before and after that injury.[9] If I am satisfied that the consequences of any additional impairment are “serious” and “long term,” then the plaintiff will have demonstrated that she is suffering from a “serious injury” under the Act.[10]
[8](ibid) at 443
[9] (supra) at 444
[10] Supra
12The plaintiff relied upon two affidavits, gave viva voce evidence and was cross-examined. The plaintiff also relied upon an affidavit from her partner, Mr Craig McNamara. Mr McNamara was not required to attend for cross-examination.
13In addition, both parties relied upon medical reports and other materials which were contained within Court Books tendered in evidence.[11] The defendant did not require any of the plaintiff’s treating medical practitioners or medico-legal experts to attend for cross-examination.
[11]The Plaintiff’s Court Book was marked as Exhibit (“Ex”) P1; the Defendant’s Court Book was marked as Ex D1
14I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered materials.
The Plaintiff’s background and medical history
15The plaintiff was born in July 1958 in Poland. She migrated to Australia with her parents when she was a baby. She is presently sixty-three years of age. She is right handed.[12] She completed her high school education at Malvern Girls High School. After school, she worked in various jobs in sales and as an interior designer. Between 2004 and 2012, she worked with Wyndham Vacation Resorts (“Wyndham”) as a quality assurance representative on a full-time basis. Her role included customer relations and preparing contracts and other pieces of paperwork. She returned to Wyndham in 2014, working in the same position. She was made redundant due to the COVID-19 pandemic and associated effects on the tourism industry. She recently obtained employment with IAG, working in a call centre, advising on insurance policies. She has been able to do this work from home.[13]
[12]Ex P1, P9
[13]Ex P1, p9
Pre-existing injuries
16In about 1996, the plaintiff suffered some minor back pain. She cannot recall the treatment she received. She did not have any lasting issues. In about 2014, she experienced some further lower back pain. She attended her general practitioner for regular check ups and her physiotherapist on a few occasions. Otherwise, she did not experience any ongoing pain.[14]
[14]Ex P1, p10
17Save for the matters referred to above, prior to the transport accident, she was fit and well. She was not taking any regular medication prior to the transport accident.[15]
[15]Ex P1, p10
Post transport accident workplace injury
18On or about 1 April 2017, the plaintiff fell over at work and landed on her knees and elbows. She also jarred her right shoulder.[16]
[16] Ex P1, p12
19In July 2017, she consulted Mr Harry Clitherow, orthopaedic surgeon. Mr Clitherow informed the plaintiff that she had suffered a tear in her right shoulder as a result of the fall at work. He recommended surgery, which was undertaken in about September 2017.[17]
[17] Ex P1, p12
20Following this surgery, the plaintiff noticed a significant improvement in her pain and range of movement in her right shoulder. She continued to suffer from neck and back pain, and noticed that the symptoms in her left shoulder increased.[18]
[18] Ex P1, p12
The transport accident
21The plaintiff described the transport accident in the following terms:[19]
“On 19 July 2015, at about 6:30pm, I was driving home from work along Kingsway in Southbank. All of a sudden, the car in front of me came to an unexpected stop. I had to brake very quickly and managed to stop my car just in time. Seconds later, a car crashed into the rear of my vehicle. The impact violently threw me forward and then back into the car seat. I felt immediate pain in my mid back, neck and shoulders.
I got out of my car and checked the rear for damage. There were three other cars behind me all of whom had crashed. Shortly after the incident the police arrived. A police officer asked me if I was injured in the accident. I advised the officer that I was fine, although, in retrospect I was probably in shock and did not completely register the extent of my injuries.
After I had spoken with the police officer, I called my daughter and asked her to come and pick me up and take me home. When I got home, within hours of the incident, I developed severe pain in my entire spine, particularly in my neck. I also developed an ache in my thighs, sore shoulders and a pins and needles sensation in my right hand. I also developed a bruise under my right eye, although I cannot recall hitting my head in the accident.
At some point in the evening, I cannot recall the precise time, I called Monash Clayton to see if I could get an appointment. I was told that there was going to be a long wait and rather than waiting in the emergency department, I decided to call a Locum general practitioner that I found in the telephone book.
The Locum general practitioner arrived at my house at about midnight. The general practitioner advised me to see my usual general practitioner as soon as I could and to contact the Transport Accident Commission. I was also prescribed Panadeine Forte for the pain. Unfortunately, I cannot recall the name of the general practitioner.”[20]
[19]Ex P1, p10
[20]Ex P1, p10
Evidence of the Plaintiff
22As referred to above, the plaintiff swore two affidavits. The evidence as to the pain and suffering consequences from which the plaintiff presently suffers as a result of the transport accident, is as follows:
Experience of pain
Spinal pain
(a) The pain in her spine is the most significant aspect of her injuries. She feels as if her condition has worsened in her back and neck as time has gone on. She suffers from fluctuating pain in her waist around her lower to mid back. The pain that she suffers is a dull and burning-type sensation, although she occasionally experiences a stabbing pain.[21] While some days are better than others, the pain is always present. The pain in her lower back also has a burning-type sensation and can radiate down into her legs (mostly into her thighs);[22]
[21]Ex P1, p13
[22]Ex P1, p29
(b) The pain she is experiences in her neck is an aching dull pain and also occasionally a sharp pain. The left side of her neck is more painful than the right. She is restricted in the range of motion of her neck and if she moves her head too far to either side, she experiences pain. She also hears a cracking sound when she moves her neck to the side. The cracking sound is incredibly unnerving and she is worried she is doing damage to her neck when she moves it. The pain that she suffers extends to the back of her head and down into her shoulders and into the middle of her spine;[23]
[23]Ex P1, p13
(c) She suffers from a numbness and tingling sensation in the fingers of both hands. She assumes that this comes from her neck;[24]
[24] Ex P1, pp15 and 29
Shoulder
(d) In relation to her right shoulder, she has had persistent pain and weakness since the car accident. She has undergone several hydrodilatations, with only very minor improvement, if at all, for her pain. Before her workplace accident in April 2017, she had great difficulty lifting her arm at a right angle to her body. She could not lift things and protected her right arm at all times. It was like having a dead weight that she could not use. After the surgery, which occurred following the workplace accident in April 2017, she had an improvement in her right shoulder range of motion, however, this improvement has not taken her shoulder function back to where it was prior to the transport accident;[25]
[25]Ex P1, p15
(e) In relation to her left shoulder, it has never been as bad as her right shoulder, but she still feels pain and has limited movement;[26]
[26]Ex P1, p15
Sleep
(f) Since the transport accident, she has suffered from impaired sleep. She estimates that she gets approximately four to five hours of unbroken sleep a night. She has great difficulty getting to sleep because of her neck and back pain, and also as a result of her bilateral shoulder pain. When she is finally able to get to sleep, she is quickly woken again by her neck and back pain. As a result, when she gets up in the morning, she feels drowsy, unrested and irritable. Her back is also very stiff in the morning and her pain is so intense that she feels it in her ribs. She takes up to three Dothep, 25 milligrams, a night, to assist with sleeping;[27]
[27]Ex P1, p15
Medication and treatment
(g) She tries to avoid taking medication if at all possible. Instead, when the pain is bad, she will take a hot bath or maybe take some over-the-counter pain medication. She also tries to manage her pain with frequent postural changes, heat packs and low-impact exercise, such as walking;[28]
[28]Ex P1, p14
(h) She remains under the care of her general practitioner at Airlie Women’s Clinic. She is prescribed Mobic (15 milligrams as required) and Dothep (50 milligrams, up to three at night). She also takes Advil and Panadol. When the pain is bad she will take Tramadol (50 milligrams). She continues to take HRT medication, Coversyl and Nexium;[29]
[29]Ex P1, p28
(i) She has not found many effective ways to reduce her pain. She finds that stretching will relieve the pain to a very small degree. She also gets some relief from using the TENS machine, but only on her lower back. She uses the TENS machine on her lower back several times a week. She tried the TENS machines on her shoulders, however, unfortunately she did not get any relief;[30]
[30]Ex P1, p30
Activities of daily living
(j) The pain that she suffers in her back and neck is exacerbated by bending, twisting or lifting. As a result, she is now severely limited in performing even the most mundane of activities that she previously took for granted. For instance, she now experiences pain when she gets in and out of chairs. When she is watching television in the evening after work, she has to alternate between sitting and lying down on the couch. Sometimes, if she cannot get comfortable on the couch, she will lie on the floor, rather than sit down;[31]
[31]Ex P1, p14
(k) As a result of her neck and back injuries, she is now limited in the extent to which she can sit and stand without experiencing an exacerbation of her pain. She estimates that she can sit for around fifteen to thirty minutes before she starts to experience pain. She estimates that she can stand for around ten minutes before she starts to experience pain. Her sitting and standing tolerance impacts her ability to drive long distances and also interferes with her work;[32]
[32]Ex P1, p14
(l) She has purchased a Bluetooth headset to take telephone calls at home, which means that when she is not typing or using the computer, she can stand up and move around;[33]
[33]Ex P1, p28
(m) She now suffers from headaches at least three times a week. She has noticed an increase in her headaches recently because of her new job. Her headaches usually coincide with an aggravation of neck or back pain and can last for up to an hour or longer. She has had a number of headaches of such intensity that she felt genuinely worried that she was suffering from some other condition, such as an aneurysm;[34]
[34]Ex P1, p14
(n) As a result of her injuries, she now has significant problems performing household domestic chores. At one stage, she had a house cleaner to assist her with the heavier work. The cleaner came once a week for two hours and did the floors, bathroom and kitchen. She has tried to do the heavier cleaning tasks herself, however, notices an aggravation in her back and neck pain, particularly in the following few days. Any activities that require sustained bent postures, such as scrubbing, are a “real problem” for her;[35]
(o) She now has to rely on her partner, Craig, to do the heavier household tasks such as gardening, mowing the lawn, vacuuming, cleaning bathrooms, cleaning her car, doing the dishes, and anything that requires reaching above shoulder height. Her partner does not live with her and does this work on the weekends when he comes over to visit. She finds this incredibly distressing because she hates asking for help and it tends to eat into their time together. She tries to do what she can around the house but is significantly limited in what she can do;[36]
(p) She finds showering and drying her hair, and any activity which requires her to bend her neck or back causes her pain. As a result of her injuries, she believes she has lost muscle and balance in her back and neck, and as a result, she now gets dressed sitting down;[37]
(q) She has modified how she performs the grocery shopping by limiting the weight of the items that she buys so as not to aggravate her neck and back pain, and her shoulder pain. She tries to use a trolley whenever possible;[38]
(r) As a result of her injuries, although she still tries to do some exercise, she has become far more sedentary and inactive and has gained about 10 kilograms. As she is only 157 centimetres tall, the extra weight is very noticeable and has been a source of great frustration, embarrassment and anxiety for her;[39]
(s) She is a grandmother of three young boys aged two, five months and two weeks. She is very limited in the way in which she can interact with her grandsons. She would like nothing more than to be able to pick up her grandchildren, give them a cuddle or to be able to play with them without feeling pain. About a month ago, she picked up her middle grandson, who was four months’ old at the time, and went to walk him to the car, when she suffered from an incredible sharp debilitating pain in her back and shoulders. The pain lasted for two weeks before settling down. Her eldest grandson has now learned that she cannot pick him up and instead he goes to her partner for cuddles. This is a huge loss for her;[40]
(t) Her social life has been limited by her injuries and the pain that she suffers. She pushes herself to go out and see her friends and family or to go out with her partner, but she finds her motivation for these activities is incredibly low, and she is limited in what she can do as a result of her pain. In about 2018, she went on a holiday to Vietnam for about ten days. On the flight, she made sure she was sitting in the aisle seat so that she could move around as much as required. She also organised a tour and made sure that the tour operators knew that she was very limited in the activities she could participate in;[41]
(u) As a result of her limited sitting capacity, she is limited in a lot of social and recreational settings. She cannot, for instance, go to the cinema without experiencing significant pain and discomfort. She is also limited in the distances she can walk. Before the transport accident, she used to go for long walks, which she can no longer do; [42]
(v) She used to go out dancing with friends prior to the transport accident. She used to love dancing. Now, as a result of her injuries, she is extremely limited in her ability to dance, because the movements aggravate her pain;[43]
(w) Prior to the transport accident, as she progressed into her retirement, she had planned on taking up golf, learning to play tennis or maybe taking some dancing lessons. These plans are all now lost to her;[44]
[35]Ex P1, p14
[36]Ex P1, p29
[37]Ex P1, p14
[38]Ex P1, p14
[39]Ex P1, p15
[40]Ex P1, p29
[41]Ex P1, p29
[42]Ex P1, p30
[43]Ex P1, p29
[44]Ex P1, p31
Emotional effects arising from the pain
(x) Psychologically, she is a completely different person. The unrelenting pain in her neck, back and, to a lesser extent, her shoulders, has taken a toll on her. Prior to the transport accident, she was a happy and bubbly person and loved her job. She had a great social life. She has lost a lot of tolerance and is easily irritable. She feels as if the accident has aged her prematurely. She suffers from anxiety, particularly when driving;[45]
(y) She has lost a lot of her motivation and spark for life. She now has to really push herself just to go out and do things. She is constantly worried that her injuries are negatively impacting her relationship with her partner. It is not fair on her partner to just stay in at home, so she pushes herself to go and do social things, but this is a struggle.[46]
[45]Ex P1, p16
[46]Ex P1, p31
23Under cross-examination, the plaintiff gave the following evidence.
(a) She recalled seeing a physiotherapist called Carolyn Lockman in October 2012 in relation to discogenic back pain and referred pain into her left leg.[47] She agreed that she had seen Ms Lockman on several occasions in relation to this issue. She agreed that she had reported to Ms Lockman that she had fallen over in customs and thought that might have been the cause of her pain. She also recalled that she had told Ms Lockman that she fell over while she was dancing in late October 2012. She could not recall what type of dancing she had been engaged in;[48]
[47]Transcript (“T”) 13-14
[48]TT14-15
(b) She agreed that in October 2012, she also reported that she had fallen over in the supermarket and jarred her back slightly;[49]
[49]T17, Lines (“L”) 2-5
(c) She agreed that she had attended Ms Lockman again for a period in 2013. Details of the attendances were put to her, although she could not remember them. These details included that at that time, her pain was aggravated by walking and eased by sitting;[50]
[50]T18, L21-28
(d) It was put to her that she had attended her present general practice in December 2014 in relation to lumbosacral spinal pain, for which she had a CT scan. She was unable to remember anything about such a consultation;[51]
[51]TT20-21
(e) At the time of the transport accident, she was working forty to forty-five hours at Wyndham “Probably closer to the 45 than the 40 at that point in time”;[52]
[52]T22, L14-17
(f) Sometimes she would work a dayshift where she would finish about 6.00pm and other days she would begin at 2.00pm and finish at midnight.[53] She agreed that as a result of her work hours, some of her social activities were quite limited prior to the transport accident, in that if she was going out on a Saturday night, she would have to make sure that she was home by a reasonable hour, in order to get up early the next morning;[54]
[53]TT22-23
[54]T23, L8-23
(g) She did not travel anywhere overseas between 2012 and 2015. In June 2012, she had a ten-day trip to Indonesia and in September 2012, she went to the United States. Her next trip was in August 2015 to the United States. This post-dated the transport accident;[55]
[55]T24, L1-14
(h) She agreed that at the time of the transport accident, her car was moving slowly. She was able to avoid the car in front of her, however, cars behind her were unable to brake to avoid hitting her. The airbags in her car did not deploy. No ambulance was called for anyone involved in the accident. At the time, her main concern was damage to her car;[56]
[56]T25, L1-19
(i) In relation to her back condition, she denied that following the transport accident and up until the present date, her pain has been “intermittent”. She said that she has “pain all the time,” and that this has been the case since 2015;[57]
[57]TT26-27
(j) She said that references to “intermittent back pain” in the Court Books “would probably refer to … that sometimes it’s worse and sometimes it’s better … but it’s always there”;[58]
[58]T27, L6-15
(k) She had an incident at work where she fell over and hurt both of her shoulders, tearing her right rotator cuff. She agreed that the employer’s agent had accepted that claim in relation to her right shoulder;[59]
[59]T28, L5-17
(l) She said that she “possibly” could have told Dr Bruce Low that her lower back pain was “on and off” and that she had no radiation into her legs. She said she could not recall seeing Dr Low. She said that if, at that moment that is what she felt, then that is what she would have told Dr Low;[60]
[60]TT29-32
(m) It was put to her that after her third hydrodilatation on 16 February 2017, she reported a “marked improvement in her right shoulder symptoms, and she felt overall better in herself”. She said that she may have felt like that on the day. She noted that after each hydrodilatation, it did feel better, but then her shoulders got worse again. She did not believe that her shoulders were getting any better as a result of that treatment;[61]
[61]TT32-33
(n) She denied having occasional left shoulder pain from back in 2005. She said she could not remember such a thing. She only remembered experiencing tennis elbow on her left side;[62]
[62]TT34-35
(o) She said that her right shoulder is now better since the operation to repair the torn rotator cuff “but it is a long way from perfect. I still get pain in it; I have a limited movement, but it is not as bad as when I first had the car accident;”[63]
[63]T35, L14-18
(p) The medication that she takes is for “everything”;[64]
[64]T35, L29
(q) She does not presently do any exercises for her neck or back. She was going to the gym and had some exercises there specifically for those purposes, but she has not been to the gym since COVID started;[65]
[65]TT37-38
(r) She can sometimes move more than at other times, but said that if she “move[s] too much, I will probably suffer the next day for it”;[66]
[66]T38, L14-18
(s) She agreed that she has stopped taking Mobic and Tramadol regularly and only takes them as needed. She said that she might take Mobic twice a week. She does not take Tramadol if she does not have to: “Its … very rare.” She only takes that medication if the pain is excruciating, to the point that she cannot move around or sleep at all;[67]
[67]T40, L2-13
(t) She was taken to a reference in the Court Book which suggested that she had demonstrated, during a particular medical examination, a good range of motion in her neck and lower back and straight leg lifting. She was asked whether it was the case that she had been able to move her neck and lower back and legs without pain on that occasion. She said that she did not remember that particular consultation but that she may have been able to move her head and move her legs as described:
“I might do things. There is pain … you have got to live. You’ve got to live; you’ve got to do things. But you have to be careful what you do because there’s always going to be consequences of it. If I do something now, I have to be wary that it means tomorrow I am not going to be moving.”[68]
[68]T41, L4-28
(u) She agreed that she had been to Hawaii about a month after the transport accident. She agreed that she had been to Thailand in 2016, America in July 2017 and Vietnam in November 2018. She agreed she had also travelled within Australia, for instance to Sydney in December 2018;[69]
[69]TT43-44
(v) She said that she has been out with her partner to observe ballroom dancing. She said she might have got up to do a slow dance, but she would otherwise not be dancing;”[70]
[70]T47, L14-24
(w) Numerous photographs from her Facebook page were shown to the plaintiff depicting her at various functions over a space of five or six years. It was suggested to her that this was inconsistent with what she had deposed to in her affidavits, namely that she is significantly limited in her ability to socialise. In response to this, she pointed out that the very few occasions which were depicted on her Facebook page were over a five or six-year period and said “I have a partner who deserves to go out … and I will go out to make sure that [he is] not going to sit at home with me every weekend, because I would not have a partner … and when I do go out, I will put a smile on my face”;[71]
[71]T48, L16-25
(x) She is still able to cuddle her grandchildren, but she cannot pick them up;[72]
[72]T50, L9-21
(y) Prior to the transport accident, she was not a keen cyclist;[73]
[73]T51, L6-7
(z) She agreed that it had been “a while” since she had been prescribed Tramadol. She acknowledged that it may have been back in August 2018 that she last received a prescription;[74]
[74]T55, L2-11
(aa) She agreed that the last prescription for Panadeine Forte may have been on 11 January 2016;[75]
[75]T55, L24-31
(bb) She did not agree either with the proposition that her spinal pain has got progressively better over time, or with an assertion that she has not needed strong pain medication since August 2018;[76]
[76]T56, L11-15
(cc) She takes Tramadol once every four to five months;[77]
[77]T57, L7-8
(dd) Her spinal pain is debilitating, in that she cannot go about her normal business without changing posture or taking some tablets to manage it. She said that she would describe her spinal pain as debilitating “every day”, because every day to some degree she has to manage her lower back pain. She said that the pain in her neck is a different type of pain:
“… it just means I cannot move my … neck and my head as much, I can hear the creaking and there’s pain there all the time. Again, I manage it, I try not to move and I try to make sure that … when I do move, I move in a way that’s not going to make it any worse.”[78]
[78]TT58-59
(ee) She effectively has to protect her neck by being careful of her posture and how much she moves her head. This is a need that she has all the time. It was affecting her while she was sitting and giving evidence to the Court. When she was standing up and sitting down again in Court, that was the type of changing of posture that she was talking about for her lower back pain;[79]
[79]T60, L18-27
(ff) Her spinal pain is much worse now that she does not go to the physiotherapist, pilates or the gym;[80]
[80]T61, L1-12
(gg) She has not been doing pilates because she had exercises that she could do at the gym which could help her pain. She has not been to the gym since they closed because of COVID, because the classes are still quite limited. It was suggested to her that the reason that she did not go to the gym was that in fact the pain she experiences is “not that bad”. To this, she replied “I would have to disagree”. It was suggested to her that her spinal pain was intermittent and that this is the history she had given to a number of doctors. In response to this, she replied “I still disagree”;[81]
[81]TT62-63
(hh) She reported to Mr Myron Rogers, neurosurgeon, in February 2021, that she had intermittent pins and needles down her arms, and intermittent burning sensation along her forearms and that sometimes her mid back “locks up”. She agreed with all of these propositions. She said that when her mid back locks up, she means that she gets a “very sharp spasm across [her] back and [she] can’t move at that point in time … that can last for days”. When asked what she does to alleviate that problem, she said “You lie down”;[82]
[82]T64-65
(ii) She said that the part of her shoulder which was repaired is only sore when she lies on it at night. She said it is the rest of her “neck and my arms. The shoulder itself, the actual repair itself is not so much of a problem …;”[83]
[83]TT66-67
(jj) She agreed that her weight gain may possibly be associated with menopause and taking hormone replacement therapy;[84]
[84]T70, L12-16
(kk) She agreed that in the past, she had had some menopause-related symptoms that affected her sleep: “Yes, that was the hot flushes … That was in the beginning until they put me onto the program that I’m on now;”[85]
[85]TT70-71
(ll) When asked how often hot flushes wake her up at nighttime these days, the plaintiff replied:
“Rare … They are reasonably well controlled, I am still on Livial. It does not wake me at night. I do take two or three Dothep at night to keep asleep … for sleep disturbance and for pain … if I wake up, I possibly … feel the hot flush at that stage. The hot flushes are still there, they have calmed down a bit.”[86]
[86]TT76-77
(mm)She said that if she does not take the Dothep at night, she will not sleep at all. “I will be moving around due to … The pain in my upper back along the spinal cord, the shoulders and the back pain … I wake up because of the pain.” She said that it is not hot flushes that wake her up “it will be the pain”;[87]
(nn) She agreed that straight after the transport accident, she was working her old job which involved travelling for forty-five minutes to get to work and forty-five minutes to get home;[88]
(oo) She agreed that she was coping reasonably well with the work at this time, “they supported me a lot”;[89]
(pp) She explained that the reason why her income was much higher in 2016 than in 2014 and 2015, was because there was a bonus system at work which meant that if you and your team performed well at the job, then bonuses would be paid. She had three people in her team and all of them were paid the same bonus, even if only one of them was the person doing the good job;[90]
(qq) She agreed that her income went down to $64,000 in 2018 and up again to $84,000 in 2019. Her income fell again in 2020 due to the pandemic. She is presently working for IAG Insurance. Her income is $50,560, working seven-and-half hours per day, five days a week on a rotation;[91]
(rr) When she was prescribed Tramadol in June 2018, the quantity of tablets that was prescribed was twenty;[92]
(ss) She recalled being told by Dr Jayaratne, who ran the plaintiff’s pain management course, to “keep away from Tramadol and Mobic on a regular basis and stick to Dothep for the time being”;[93]
(tt) Her last prescription for Tramadol was one month after Dr Jayaratne gave her this advice.[94]
[87]T77, L1-17
[88]T79, L18-23
[89]T80, L3-5
[90]TT83-84
[91]TT83-85
[92]T91, L24-29
[93]T92, L6-31
[94]T93, L3-15
The Lay witness
Mr Craig McNamara
24The plaintiff’s partner, Mr Crag McNamara, gave the following relevant evidence in an affidavit sworn on 7 June 2021:
(a) He usually spends weekends with the plaintiff at her house. When he is with the plaintiff, he assists her with the following tasks:
(i)gardening, including lawnmowing and pruning of plants;
(ii)vacuuming;
(iii)moderately-heavy cleaning, such as bathrooms and car;
(iv)lifting heavy dishes in and out of the oven or from the stovetop;
(v)reaching above shoulder height to retrieve items from shelves.[95]
(b) The impact which the transport accident had upon the plaintiff’s ability to perform domestic activities became apparent to him after the plaintiff’s cleaner stopped working at the beginning of the COVID pandemic. For a time, the plaintiff’s daughter and son-in-law lived with her and assisted her with domestic activities, until November 2020, when they moved into their own home. Since that time, the plaintiff has been unable to conduct the full range of home cleaning and maintenance duties by herself. Most of those tasks are now performed by him, even though he does not live at the residence;[96]
(c) He has observed that the plaintiff takes a mild sedative in order to get to sleep. She frequently moves around during the night with difficulty trying to get comfortable. In the mornings, she rolls out of bed into a kneeling position and then struggles to stand. It takes some time for the plaintiff’s body to “begin the day”;[97]
(d) He often sees the plaintiff stretching, sometimes on the floor, in order to ease the pain. She occasionally uses a heat pack and also uses a TENS machine to provide pain relief;[98]
(e) After a long day of having been seated or a day which was stressful, he observes that the plaintiff has shoulder, back and neck pain. From what he has observed, working at a desk “takes a toll”;[99]
(f) She enjoys physical activity, but the plaintiff has to take care with what activities she takes on. For instance long walks bring on pain, particularly up and down hills. The plaintiff does not run. She loves to dance, but this can only be for a limited time and with care not to strain her neck, shoulders and back;[100]
(g) The plaintiff is a devoted and loving grandmother, but he observes her to be in pain after each visit with them. She nurses the children best when she is seated with her arms supported by an arm of a chair. She recently suffered two weeks of intense upper back/shoulder pain after carrying her two-year-old grandson to the car. The accident has diminished the plaintiff’s ability to “fully relish” her growing family;[101]
(h) Generally, the plaintiff is a happy and bubbly person, however, she becomes grumpy when her pain levels increase and becomes very down and dejected when the pain is persistent.[102]
[95]Ex P1, p25
[96]Ex P1, p26
[97]Ex P1, p26
[98]Ex P1, p26
[99]Ex P1, p26
[100]Ex P1, p26
[101]Ex P1, p26
[102]Ex P1, p26
Medical evidence
25There were numerous medical reports contained in the tendered material. Both sides filed reports from medico-legal experts. A précis of the relevant medical materials is set out below.
The Plaintiff’s medical reports
26The plaintiff relied upon five reports from Dr Yael Kipen, rheumatologist. In a report dated 9 September 2015, Dr Kipen recorded that as a result of the transport accident, the plaintiff developed lower back pain and leg pain, and neck pain with pain radiating down the right arm associated with paraesthesia. Since that time, there was some improvement in her lower back pain, but she continues to be troubled by significant pain in her neck and shoulders, with the right arm being more affected than the left. Dr Kipen observed “She has had intermittent parasthesias (sic) and numbness in the right upper limb and in the right perioral region”.[103] A CT scan taken of the cervical spine demonstrated narrowing of the C3-4, C4-5, C5-6 and C6-7 discs. Dr Kipen noted that there was encroachment of the intervertebral foraminae bilaterally at C4-5 and C5-6, and on the left at C3‑4. She said that there was compromise of the right C5 and C6 nerve roots, and on the left the C4, C5 and C6 nerve roots. She noted that there was multilevel facet joint arthropathy. She said that an MRI scan of the cervical spine on 6 August 2015 demonstrated widespread disc degeneration. There was chronic left C3-4 foraminal stenosis and bilateral C4-5 and C5-6 foraminal stenosis. There was mild C5-6 central canal stenosis.[104]
[103]Ex P1, p72
[104]Ex P1, p72
27In a report dated 29 June 2016, Dr Kipen noted that the plaintiff had recently undergone a CT-guided corticosteroid injection to the right C5 nerve root without improvement in her upper limb symptoms. She said that the plaintiff then underwent a CT-guided corticosteroid injection to the right C6 nerve root, but once again, did not have any improvement in her right upper limb symptoms. Dr Kipen noted that the plaintiff had ongoing right-sided neck discomfort and stiffness, more prominent than on the left side. She said that the plaintiff’s lumbar and thoracic symptoms are at a level which the plaintiff can manage. Dr Kipen recorded that currently the plaintiff was taking Mobic, 15 milligrams daily, with Nexium, Dothep, 50 milligrams at night, and Tramal, 50 milligrams SR at night as required.[105]
[105]Ex P1, p80
28In a report dated 23 February 2017, Dr Kipen noted that the plaintiff’s right shoulder symptoms had deteriorated and she had proceeded with hydrodilatation on 16 February 2017. The plaintiff reported “marked improvement” in her right shoulder symptoms and overall felt better in herself following that treatment. Dr Kipen noted that the plaintiff continued to be “troubled by intermittent pain in the cervical, thoracic and lumbar spines. She also has mild intermittent symptoms in the left shoulder. She does not have sleep disturbance.” Dr Kipen noted that the range of movement in the plaintiff’s cervical spine was globally reduced. She reported tenderness over the cervical, thoracic and lumbar spines. She noted that the plaintiff’s lumbar spine movements were reduced.[106]
[106]Ex p1, p84
29In a report dated 18 May 2017, Dr Kipen recorded the fact that the plaintiff had been involved in a fall at work about six weeks earlier onto her knees and elbows, and that she had jarred her right shoulder in that fall. Since that time, the plaintiff reported increasing pain and restricted range of motion in the right shoulder and also discomfort in the left shoulder, which occurs with certain movements. She noted that the plaintiff’s cervical, thoracic and lumbar spine symptoms were reasonably-well controlled with medication.[107]
[107]Ex P1, p86
30The plaintiff relief upon three reports from Mr John McMahon, neurosurgeon. In the most recent of those reports, dated 22 October 2018, Mr McMahon noted that following the transport accident, the plaintiff felt:
“… severe pain involving her entire spine including her neck, thoracic region and lumbar region. The pain also generally radiated to her upper and lower limbs bilaterally. She … noted the onset of right sided numbness within a few days and bilateral weakness, which was worse on the right side. Since the time of the accident her symptoms tended to continue and she mainly reported neck pain, neck crepitus, pain radiating into her shoulders bilaterally, bilateral shoulder pain which had required hydrodilatation on the right side and a cortisone injection associated with a decreased range of shoulder movement, right arm and forearm pain and numbness of all her fingers.”[108]
[108]Ex P1, p93
31On examination, Mr McMahon noted that the plaintiff had a decreased range of neck movement due to neck pain. He said there was a decreased range of shoulder abduction due to the onset of shoulder pain bilaterally. Neurological examination of the plaintiff’s upper limbs was normal.[109] Mr McMahon diagnosed the plaintiff as having suffered the following injuries in the transport accident:
“1. Cervical, thoracic and lumbar spine strain injury;
2. Musculoskeletal pain syndrome (whiplash injury);
3.Bilateral shoulder injury including the development of frozen shoulders;
4. Spinal spondylosis including facet joint degeneration and nerve root irritation.”[110]
[109]Ex P1, p93
[110]Ex P1, p94
32Mr McMahon recorded that the cervical spine investigations revealed generalised spondylosis, as well as foraminal stenoses at the C4-5 and C5-6 levels. He said that her right-sided upper limb symptoms could be due to the right C5 and the right C6 nerve irritation. He noted that she had undergone nerve root cortisone and local anaesthetic injections. Depending on the result of this treatment, he had raised the possibility of a surgical option on the plaintiff’s neck at the C4-5 and C5‑6 levels.[111] Mr McMahon said that when he last reviewed the plaintiff on 20 January 2016, the plaintiff had ongoing symptoms which were mildly to moderately affecting her activities of daily living and these mainly included ongoing neck and right upper limb pain, as well as decreased shoulder movement. Her current symptoms were affecting some of her personal, domestic and recreational activities, as well as her ability to obtain employment. He thought that the plaintiff’s long-term capacity for employment was quite variable.[112]
[111]Ex P1, p94
[112]Ex P1, pp94-95
33The plaintiff was examined by Mr Steven Csongvay, orthopaedic surgeon, in or about December 2015. Mr Csongvay recorded that the plaintiff presented with bilateral shoulder pain, as well as neck and back trouble. He said that she injured her neck, back and shoulders in a transport accident which occurred on 19 July 2015. He said:
“Ever since the accident she has had increasing bilateral shoulder pains particularly worse on the right side. She describes pain as referring down into the upper arm aggravated by activity including elevation as well as pain at night. She has had a subacromial injection of steroid into the right shoulder a couple of months ago with partial symptomatic relief and since then she has had hydrodilatation of the right shoulder approximately 5 weeks ago and the same procedure in the left shoulder approximately 3 weeks ago. She has noticed some improvement in both shoulders but she continues to have ongoing shoulder irritability but less symptoms at night.”[113]
[113]Ex P1, p99
34The plaintiff was examined for medico-legal purposes by Mr Douglas Gardiner, orthopaedic surgeon. In a report dated 24 November 2017, Mr Gardiner noted that soon after the transport accident, the plaintiff began complaining of pain in her neck, back, both shoulders and both upper extremities. He noted that she experienced:
“… pins and needles from the level of her nose down to all of her trunk and all extremities. She was somewhat frightened by this scenario and consulted her general practitioner the next day. Scans were taken on 20 July 2015 which reportedly showed extensive cervical disc and facet joint degeneration, with multilevel osteophytic encroachment on nerve root canals, with apparent nerve root compromise. No fracture was evident.”[114]
[114]Ex P1, p106
35Mr Gardiner noted that despite the multiple significant symptoms described, the plaintiff continued to work in quality assurance and administration of contracts in a timeshare agency. He noted that a:
“… second incident is reported to have occurred on 1 April 2017 in the normal course of … [the plaintiff’s] duties. She stated that she was in a large room with a long table and that a chair was in the way of some people trying to walk past. She moved the chair but somehow lost balance and landed on both elbows and both knees on a carpeted concrete floor.
She described immediate severe pain in the right shoulder which she could not move and less pain in the left shoulder and both knees … Unfortunately, [the pain] did not resolve and on 18 May 2017 an ultrasound scan of the right shoulder showed a large full-thickness tear of the supraspinatus tendon with significant retraction of the tendon.
… [The plaintiff] was referred to Mr Harry Clitherow, orthopaedic surgeon, who performed an arthroscopic repair of the right rotor cuff … .”[115]
[115]Ex P1, p106-107
36Mr Gardiner reported that the plaintiff told him that her right shoulder was definitely better than it was after the fall, but that the rest of her symptoms regarding her neck, left shoulder and the entire length of her spine were still disabling. He noted that the plaintiff exhibited a normal gait without illness behaviour. She told him that the whole length of her spine from the back of her head to the lumbosacral region was still painful. He noted that she demonstrated a normal posture and exhibited no significant muscle spasm on palpation or movement. He diagnosed the plaintiff as having suffered the following injuries in the transport accident:
“1.Traumatic exacerbation of spondylosis and soft tissue injury of cervicothoracic spine;
2. Traumatic exacerbation of mid pre-existing thoracolumbar spondylosis mostly at the lower levels;
3. Traumatic exacerbation of pre-existing lumbosacral degenerative changes;
4.Left shoulder possible adhesive capsulitis according to radiological reports but there is no evidence of adhesive capsulitis on today’s examination as one can see from the range of movement figures;
5.Pre-existing partial-thickness tear of the right rotator cuff;
6.Full-thickness retracted tear of the right rotator cuff following the work-related injury of 1 April 2017.”[116]
[116]Ex P1, p111
37Mr Gardiner said that it was evident from the radiology that the plaintiff suffered from “degenerative changes throughout her spinal column prior to the subject road traffic accident on 19 July 2015. Most of this was in the cervical spine and to a lesser extent in the thoracolumbar and lumbosacral regions.”[117] Mr Gardiner considered that the spinal condition will continue unabated and may undergo further degenerative change in the future. He thought that the progress of the cervical and lumbosacral degeneration would be greater than it would have been had the transport accident not occurred. He thought that the work-related right shoulder injury was of “overwhelming significance” and stated that he considered that the transport-accident-related aspects of the right shoulder condition were “rendered irrelevant” by the intervening workplace injury.[118] He said that both her bilateral shoulder injury and full-length spinal injury significantly interfered with her ability to carry out domestic chores and prevents her limited capacity for exercise during her long working week. He thought that the plaintiff will continue to have partial incapacity for the foreseeable future. He thought that for any type of activity requiring prolonged sitting, standing or walking, her spinal injury was likely to cause discomfort during such activities in the foreseeable future.[119]
[117]Ex P1, p111
[118]Ex P1, p112
[119]Ex P1, p113
38The plaintiff was examined for medico-legal purposes by Professor Richard Bittar, neurosurgeon, on 10 September 2020 via a Telehealth consultation. In a report dated 10 September 2020, Professor Bittar reported that the plaintiff complained of the following symptoms:
“1.Neck pain. She reports constant neck pain, which varies in character between sharp and aching. The left side of her neck is more painful than the right. Her neck pain radiates to the back of her head, into her shoulders, behind both shoulder blades, and into the thoracic spine. It radiates into both arms. Her neck pain has an average severity of 6/10 or 7/10, and a maximum severity of 8/10. It is exacerbated by sudden or repetitive neck movements, maintaining her neck in a fixed position for prolonged periods, repetitive arm movements, using her arms above shoulder height, and any sudden or sustained neck extension, flexion, or rotation. It worsens if she sits, stands, walks, drives, or uses a computer for more than around 30 minutes, or lifts more than around 3 kg. It improves with recumbency, frequent postural changes, gentle exercise, heat packs, and medications. Her neck pain has a significant impact on her ability to read as much as she wishes and causes marked difficulty with concentration.
2. Bilateral brachialgia (sic) (arm pain). She experiences constant pain radiating into both arms. Her arm pain varies in character between burning, throbbing, and aching. Her right arm is more painful that her left. Her arm pain radiates through her triceps into her forearms and hands, and is associated with tingling and pins and needles in her hands. Her arm pain has an average severity of 4-5/10, with a maximum severity of 7/10. It has the same exacerbating and relieving factors as her neck pain.
3. Headaches. She experiences significant headaches around twice a week, and these can last for one hour or longer. Her headaches typically occur when her neck pain flares up. They radiate from the back of her head to the vertex.
4.Lower back pain. She reports constant lower back pain, which varies in character. It is frequently sharp, but is often dull or burning. Her back pain has an average severity of 7/10, and a maximum severity of 8/10. It is exacerbated by bending, twisting, lifting, as well as sitting, standing, or walking for more than 30 minutes. It worsens if she lifts more than a few kilograms. It improves with recumbency, frequent postural changes, gentle exercise, heat packs, and medications.
5. Leg pain. She experiences intermittent pain radiating into her legs, with her right leg being more affected than her left. These episodes vary significantly in frequency and duration, often appearing several times per day, and typically lasting around 30 minutes on each occasion. Her leg pain is described as being aching in character and is predominantly through her lateral thighs. It has an average severity of around 4/10, and has similar exacerbating factors as her lower back pain.
She states that her symptoms are progressively worsening, particularly her headaches.”[120]
[120]Ex P1, p133
39Professor Bittar thought that the plaintiff had suffered the following injuries in the transport accident:
“1.Aggravation of cervical spondylosis with ongoing neck pain and arm pain and cervicogenic headaches.
2.Aggravation of lumbar spondylosis with ongoing back pain radiating into her legs.
3. Aggravation of thoracic spondylosis with thoracic back pain, which was constant and located in the region of her ‘bra line’. It was difficult to quantify the severity of her mid-back pain, as it was often associated with extension of her neck pain.”[121]
[121]Ex P1, p135
40Professor Bitter was of the opinion that the transport accident was a significant contributing factor to the plaintiff’s presenting injuries. He said that she had continued to experience neck pain and back pain since the transport accident, indicating that she had not made a substantial or complete recovery.[122] He thought that she was likely to continue to experience significant pain and disability into the foreseeable future.[123] Professor Bittar did not think that the subsequent work accident on 1 April 2017 which resulted in a right shoulder injury, had any lasting impact on either her neck or back condition.[124]
[122]Ex P1, p135
[123]Ex P1, p136
[124]Ex P1, p136
41The plaintiff was examined for medico-legal purposes by Mr Ash Chehata, orthopaedic upper limb surgeon, on 21 October 2020. In a report dated 28 October 2020, Mr Chehata noted that the plaintiff now suffered from:
“… constant neck pain which radiates from the occipital portion of her head … to both shoulders, down the shoulder blades and near to the posterior aspect of the bra strap. She continues to find [that] any continuous sitting, standing, walking or driving … aggravate[s] the neck symptoms and constantly tries to change her posture, utilising heat packs, medication and [gentle] exercise to improve the symptoms.
She is suffering from bilateral brachialgia, pins and needles and neuropathic symptoms running down both the arms and into the hands, as well as recurrent and significant headaches radiating from the top [of] the head down to the vertex.
She has ongoing lower back symptoms which are aggravated by any bending, stretching or twisting and is constantly trying to manoeuvre her position to better alleviate the constant back pain, as well as developing intermittent and bilateral leg symptoms.”[125]
[125]Ex P1, p159
42Mr Chehata said that in terms of medication, the plaintiff has suffered a deterioration in her mental health requiring Dothep (an antidepressant) and that the plaintiff is also on hormone replacement therapy. He said that the plaintiff had recently attempted to stop her Panadol and anti-inflammatories, but has now restarted this medication. He noted that she requires this medication about twice per week.[126] Mr Chehata said that the plaintiff’s social life had contracted and her recreational pursuits, such as dancing and taking long walks, had now been significantly hampered. He said that she struggles with insomnia, as well as domestic duties such as cleaning, shopping, mopping and cleaning her bathroom. Although she is able to do light housework cleaning, she can no longer lift heavy bags of shopping. He noted that on examination, the plaintiff was suffering from widespread diffuse pain on all rotations of her cervical spine, both in flexion and extension, as well as rotation. He said she had limited flexion both in the thoracic and lumbar spine, as well as rotation up high into the thoracic spine.[127]
[126]Ex P1, p159
[127]Ex P1, p160
43Mr Chehata diagnosed the plaintiff as suffering from a –
“… severe aggravation of cervical spondylosis, thoracic and lumbar spondylosis, coupled with the tearing of the rotator cuff on the right shoulder and then subsequently aggravated by a further work injury worsening the torn right rotator requiring surgical intervention.”[128]
[128]Ex P1, p161
44Mr Chehata thought that there was a clear relationship between the plaintiff’s neck, back and bilateral shoulder pain and the transport accident. He noted that in the past, while she had had intermittent periods of back and shoulder pain, “these have not been longstanding”.[129] He thought that the plaintiff’s capacity for employment had been partially affected in the long term.[130]
[129]Ex P1, p162
[130]Ex P1, pp162-163
45The plaintiff was examined for medico-legal purposes by Dr Gregory White, psychiatrist, on 9 October 2020, via a Telehealth interview. In a report dated 12 October 2020, Dr White diagnosed the plaintiff as suffering from a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. He thought the condition had resulted from chronic pain and physical disability following the transport accident in 2015.[131]
[131]Ex P1, p146
The Defendant’s medical reports
46The defendant relied upon four reports from Mr Harry Clitherow, orthopaedic surgeon, in relation to the repair of the plaintiff’s work-related right rotator cuff injury. In a report dated 16 March 2018, Mr Clitherow noted that the rotator cuff repair had “not fully taken”.[132] In a report dated 8 June 2018, Mr Clitherow noted that the plaintiff was then nine months post the right shoulder rotator cuff repair and that the plaintiff had done –
“… quite well now. She is sore when she lies on it but otherwise does not have pain during the day … She can elevate the shoulder because her humeral head is abutting against the acromion which gives her a point to lever around. There is a chance she may develop cuff tear arthropathy but we will cross that bridge if and when we come to it … .”[133]
[132]Ex D1, p16
[133]Ex D1, p17
47Mr Clitherow said that he would not plan on re-operating on the plaintiff and that the plaintiff is very keen to avoid any further surgery.[134]
[134]Ex D1, p17
48The defendant relied upon a report from Dr Daya Jayaratne, consultant physician in rehabilitation medicine, dated 24 May 2018. In that report, Dr Jayaratne noted that ever since the transport accident, the plaintiff had been experiencing “widespread body pain … headaches, cervical pain, pain throughout the length of the spinal column, bilateral shoulder pain and some leg pain”.[135] Dr Jayaratne said that the plaintiff feels pain in the neck, sometimes radiating down the upper limbs, and her hands are numb at times. The plaintiff had recently stopped taking Mobic and Tramadol on a regular basis and only took them on an “as-needs” basis. Dr Jayaratne noted that examination indicated a good range of motion of the cervical spine in all directions and also the lumbar spine. She said that the plaintiff had agreed to participate in a pain management program when she came back from her holiday to Vietnam, in around the end of June 2018.[136]
[135]Ex D1, p18
[136]Ex D1, pp18-19
49The defendant relied upon a report from Dr Bruce Low, orthopaedic surgeon, dated 21 June 2017. In that report, Dr Low said that the plaintiff reported:
“… neck pain and, in particular, right shoulder pain. She also has left shoulder pain which is not as bad and right arm pain with pins and needles in the right hand, particularly the dorsum of the hand in the dorsal cleft between the index finger and the thumb. The pins and needles in the hands and the fingers keep her up at night … She had no pain in her neck, right shoulder or low back prior to the motor vehicle accident in 2015, at which time she sustained quite significant injuries and took three weeks off work … .”[137]
[137]Ex D1, p166
50Dr Low noted that at that time, the plaintiff’s biggest complaint was her right shoulder pain.[138] He said that the plaintiff’s lower back pain is “on and off” and is non-radicular. He noted that she has had dry needling and physiotherapy for her lower back.[139] Dr Low was of the view that until the plaintiff had effective treatment of her right shoulder injury, it would be “ongoing indefinitely”.[140]
[138]Ex D1, p166
[139]Ex D1, p168
[140]Ex D1, p171
51The plaintiff was examined for medico-legal purposes by Dr Peter Boys, consultant orthopaedic surgeon, on 18 August 2017. In a report dated 23 August 2017, Dr Boys provided an opinion in order to assist the insurer to make a decision about whether or not it would fund the plaintiff’s request to meet the reasonable costs of surgery to her right shoulder.[141] As part of the section entitled “Past Medical History”, Dr Boys noted that the plaintiff had been in a transport accident, in which she suffered injuries which led to symptoms associated with the neck, shoulders and lower back.[142] Dr Boys said the surgery was proposed to address the full thickness disruption of the supraspinatus tendon of the right shoulder with associated retraction. He thought surgery was appropriate to address that work-related condition.[143]
[141]Ex D1, p178
[142]Ex D1, p180
[143]Ex D1, p183
52The plaintiff was examined for medico-legal purposes by Dr Majid Rahgozar, consultant occupational physician, on 18 April 2018. In a report dated 20 April 2018, Dr Rahgozar said that the plaintiff reported a transport accident that resulted in a whiplash injury around 2014 to 2015, which was covered under the TAC scheme. The plaintiff had developed chronic neck pain and back pain, and had continued to take analgesics and do physiotherapy and Pilates. Dr Rahgozar noted the occurrence of the April 2017 fall at work, in which the plaintiff further injured her right shoulder. The plaintiff stated that after this injury and because of the increased reliance on her left shoulder, she had also developed left shoulder pain at this time. It was noted that that the plaintiff had been diagnosed with a rotator cuff tear, for which she received arthroscopic surgery in September 2017. Dr Rahgozar noted that the plaintiff –
“… continues to take Dothiepin and Mobic for her neck pain and low back pain and is not taking any medications for her shoulders these days. She attends physiotherapy … for the neck and back and has also been receiving some education and exercises for the right shoulder.”[144]
[144]Ex D1, p190
53The plaintiff was examined for medico-legal purposes by Mr Myron Rogers, neurosurgeon, on 19 February 2021. In a report of the same date, Mr Rogers set out the plaintiff’s current symptoms as follows:
“(i) pain at the back of the neck
(ii) pain around the lateral aspect of both shoulder girdles, it is more pronounced on the left
(iii) intermittent pins and needles radiating down both arms into all of the fingers
(iv) intermittent burning sensation radiating along the medial aspect of both forearms
(v)episodes of her mid-back ‘locking up’, these are intermittent (they occur once every couple of months)
(vi) constant midline pain in the thoraco-lumbar region
(vii) intermittent ‘locking up’ of her low back (one or twice every couple of months)
(viii) pain in the legs which is intermittent, it shoots down both legs toward the feet.”[145]
[145]Ex D1, p21
54Mr Rogers noted that the plaintiff was currently taking Mobic (15 milligrams as required); Dothep (50 milligrams nocte); Coversyl (5 milligrams daily); Livial (2.5 milligrams daily); Somac (20 milligrams daily) and Panadol (as required).[146]
[146]Ex D1, p22
55Mr Rogers noted that in relation to her activities of daily living, the plaintiff can undertake all aspects of her self care, drives a car and does her own cooking, washing and shopping. He said that she finds it difficult to perform heavy cleaning, such as cleaning bathrooms and vacuuming carpets. He noted that until the early part of 2020, the TAC had funded a cleaner who came to her house once a week to perform these tasks. He notes that she does not presently undertake any regular exercise, at most she walks for twenty to thirty minutes once or twice a week. He said that prior to the transport accident, she had enjoyed all forms of dancing, but has been unable to undertake this activity since the transport accident.[147] On examination, Mr Rogers noted mild midline tenderness to the cervical spine without muscle spasm. He said that:
“Movements of the cervical spine were reduced in all directions, but were symmetric … Movements of the lumbar spine were all severely restricted and there was dysmetria. There was generalised tenderness to palpation in the midline from the mid-thoracic region to around the level of the sacrum.”[148]
[147]Ex D1, p22
[148]Ex D1, p22
56In Mr Rogers’ opinion, the transport accident resulted in aggravation of previously asymptomatic changes in the cervical spine and previous symptomatic changes in the lumbar spine. There was no evidence of radiculopathy in the cervical or lumbar regions. He said that symptoms in the cervical, thoracic and lumbar regions have persisted since the transport accident. He noted that since the plaintiff’s symptoms had been present for over six years, he expected they would persist indefinitely.[149]
[149]Ex D1, p24
57The plaintiff was examined for medico-legal purposes by Mr Garry Grossbard, orthopaedic surgeon, on 15 April 2021. In a report dated 20 April 2021, Mr Grossbard noted that the plaintiff experiences pain at the back of her neck, described as a constant dull ache with occasional sharp exacerbations. The level of pain tends to vary. The plaintiff was uncertain as to what activities brought the pain on. She felt that the medication was helpful. She told Mr Grossbard that the neck pain does radiate into her arms affecting all of her fingers. Her shoulder pain is across the back of the shoulders and radiates into the left side. This is constant pain. She said that since the right shoulder surgery, the left-sided pain is now more troublesome than the right side. The plaintiff told Mr Grossbard that the whole of her spine was painful. She described a constant dull pain with intermittent sharp episodes. There was occasional leg pain occurring each couple of weeks and lasting for about half an hour at a time. This pain improves when she lies down. The plaintiff was able to drive, she can walk for about half a kilometre, but then “runs out of steam” because of multiple issues. She is able to sit, but needs to move around regularly and she can only stand for about fifteen minutes at a time. The plaintiff is able to dress and toilet herself. While her pre-injury activities were limited by the long hours of work that she undertook, she did enjoy socialising and dancing, but is no longer able to undertake those activities. The plaintiff said that her partner comes and helps her with many of the household activities. Much of the home maintenance, including the gardening, is undertaken by her eighty-five-year-old mother. She is able to go shopping with her partner and they share the hanging of the washing.[150]
[150]Ex D1, p30
58In Mr Grossbard’s opinion, as a result of the transport accident on 19 July 2015, the plaintiff suffered an aggravation of pre-existing degenerative change in the cervical spine and at the lumbosacral level. Despite conservative treatment, there have been ongoing symptoms of neck pain radiating into both shoulders and lower back pain. There was a development of bilateral rotator cuff symptoms with associated capsulitis. These were managed by a series of hydrodilatation. On the right side there had been a further injury, resulting in an extension of the rotator cuff tear, requiring surgical correction. The surgery has resulted in an overall improvement of the right shoulder, but there are ongoing symptoms on the left side. Mr Grossbard regarded the present situation with the plaintiff’s symptoms as “stable and unlikely to change significantly in the foreseeable future”.[151]
[151]Ex D1, p32
59In addition to the medical reports referred to above, the defendant relied upon the plaintiff’s medical records and record of her pilates treatment, which reveal the following pre-existing issues with her spine:
(a) a CT scan dated 4 April 1996, which showed early degenerative lipping at L4‑5;[152]
[152]Ex P1, p45
(b) treatment undertaken by the plaintiff for a painful lumbar spine with somatic referral into the left leg in 2012[153] and 2013,[154] including the following:
[153]Ex D1, pp144-146
[154]Ex D1, pp147-148
(i)thigh and calf pain and spine pain;
(ii)lumbar spine pain radiating into her left lateral thigh;
(iii)pain aggravated from falls prior to the transport accident, the first at customs in the United States, a second while dancing and a third in the supermarket.
(c) Additional treatment and investigations undertaken in December 2014, viz:
(i)A CT scan of the lumbosacral spine taken on 1 December 2014, which showed foraminal disc bulging at L5-S1 compressing on the left L5 nerve. The reason for the investigation is recorded as: “back L[eft] hip Ok tender sacro illiac (sic) ??refer[r]ed pain down l[eft] leg ct l[umbo]s[acral] spine”;[155]
(ii)the fact that on 12 December 2014, Panafcortelone was prescribed to the plaintiff on account of the investigation.[156]
[155]Ex D1, p96;
[156]Ex D1, p97; Ex P1, p47
The Issues
The Plaintiff’s credit
60The plaintiff was challenged on many aspects of what she said were the consequences to her of the injuries she had sustained in the transport accident. In particular, it was put to the plaintiff that rather than being constant and unremitting, her pain is intermittent. In addition, it was suggested to the plaintiff that her pain is not so severe as to require strong medication. This was said to be evidenced by the fact that she has not been prescribed Tramadol since August 2018, and the fact that she only takes it every four to five months, when the pain is “bad”. She was challenged in relation to her evidence that she has not found many effective ways to reduce her pain, when she had also said that physiotherapy, Pilates, pain management and gym work had all helped with her pain. Lastly, it was suggested to her that she is able to socialise much more than she had deposed to in her affidavits and that she had overstated the extent of her previous involvement in dancing as a recreational activity. It was also suggested to her that she did not have much of a social life prior to the transport accident, because of her work commitments.
61In relation to each of these issues, as set out above, the plaintiff offered reasonable explanations which were consistent and cogent. She maintained this evidence throughout the cross-examination. In relation to the degree and constancy of her pain, she said that “sometimes it’s worse and sometimes it’s better … but it’s always there”.[157]She maintained this evidence when pressed, and disagreed with the proposition that her pain is now “not that bad”. She frankly acknowledged that at times she undertook activities which she knew may give her problems later, but added: “You’ve got to … do things. But you have to be careful what you do because there’s always going to be consequences of it. If I do something now, I have to be wary that it means tomorrow I am not going to be moving.”[158] She said that she would describe her spinal pain as debilitating “every day”, because every day to some degree she has to manage her lower back pain. She must also always be careful to manage her neck pain appropriately.[159] In relation to her ability to socialise, she said that she does it for her partner who “deserves to go out”. She gave evidence which indicates that she modifies the activities which she undertakes. If she overdoes things, such as carrying one of her grandchildren, she “pays for it” later. As to the state of her social life prior to the transport accident, while she acknowledged that she previously had worked long hours, her evidence did not indicate any particular curtailing of her pre-accident social life, only that she needed to be aware of the need to go to bed at an appropriate hour to ensure she was ready for work the next day. As to her need for medication, her evidence from the outset was that she tries to avoid taking medication if at all possible. Instead, when the pain is bad, she will have a hot bath or take some over-the-counter pain medication. She also tries to manage her pain with frequent postural changes, heat packs and low-impact exercise, such as walking. She agreed that she has stopped taking Mobic and Tramadol regularly and only takes them as needed. She said that she might take Mobic twice a week. She does not take Tramadol if she does not have to. She only takes that medication if the pain is excruciating, to the point that she cannot move around or sleep at all. There was no evidence before the Court which would lead me to conclude that the plaintiff’s evidence in relation any of these matters was inaccurate.
[157]T27, L12-13
[158]T41, L25-28
[159]T59
62Both the histories set out in the medical reports and the content of the affidavit from the plaintiff’s partner, Mr Craig McNamara, corroborate the plaintiff’s account of the ongoing consequences which she has experienced since the transport accident in 2015.
63Having had the benefit of observing the plaintiff while she was giving evidence to the Court, I formed the view that she was a cooperative witness who did her best to give accurate responses to the questions asked of her. During cross-examination, she gave her evidence openly and made appropriate concessions, which at times were against her interests.
64Furthermore, I find that the plaintiff’s account of events has remained constant throughout the period during which she has seen her treating medical practitioners, consulted with the medico-legal assessors and provided evidence to this Court.
65After a consideration of all of the evidence, in particular the evidence of the plaintiff as corroborated by her partner, Mr McNamara, together with the histories she gave to various medical practitioners, I consider that she was a credible witness, in the sense of being a truthful person.
Stoic Plaintiff
66I have also formed the view that the plaintiff is very stoic in relation to her condition. An analysis of the evidence demonstrates that she has suffered constant, daily pain in her entire spine, since the transport accident in July 2015.
67Despite this, I find that she has made a concerted effort to continue to work and has modified the way that she carries out her duties, in order to achieve this. I find that she has engaged in gym work and other forms of rehabilitation in an effort to alleviate the pain that she experiences.
68I find that she has attempted to maintain her social life and independence, even though she needs to modify these activities and that at times, these attempts cause her pain. I find that she continues to try and engage with her grandchildren and to undertake social activities for the benefit of her partner, even though at times, those activities cause her pain.
Compensable injury
69The details of the occurrence of the injury are not in dispute.
70Similarly, there is not dispute the plaintiff is suffering injuries as a result of the transport that are organic in nature.
71On that basis, relevantly to this application, I am satisfied that as a result of the transport accident, the plaintiff suffers from the following injuries:
(a) an aggravation of pre-existing degenerative change in the cervical and lumbosacral spine;
(b) bilateral rotator cuff symptoms with associated capsulitis.
Is the compensable injury “long term” for the purposes of the Act?
72Having considered the relevant reports, in particular the reports from Mr Gardiner,[160] Professor Bittar,[161] Mr Chehata,[162] Dr Low[163] and Mr Grossbard,[164] I find that the plaintiff is likely to continue to suffer from the injuries sustained in the transport accident for the foreseeable future. Given this, I find that the injuries to the plaintiff’s spine and shoulders suffered by the plaintiff as a result of the transport accident, are “long term” for the purposes of the Act.
[160] Ex P1, p112
[161] Ex P1, p136
[162] Ex P1, p162-163
[163] Ex D1, p171
[164] Ex D1, p32
Are the consequences to the Plaintiff of the transport accident “serious”?
73During closing addresses, Senior Counsel for the plaintiff conceded that on the basis of the evidence, and taking into account the need to disentangle the cause of various consequences, it would be hard to argue that the plaintiff’s shoulder injuries alone, could fairly be described as “very considerable” or more than “significant” or “marked”. In those circumstances, I will consider the consequences to the plaintiff of the injury to her spine.
74Having regard to all of the relevant evidence, I find that as a result of the injury to her spine alone, the plaintiff suffers from the following consequences:
(a) constant, daily pain in her lower back and neck, which, while it varies in intensity, is always present;
(b) stiffness in her back, requiring frequent stretching. She has difficulty getting out of bed in the mornings;
(c) some interruption of her sleep;
(d) the need to take medication in order to fall asleep and try to stay asleep;
(e) a restricted range of motion in her low back and neck during the day;
(f) a cracking sound in her neck which she finds alarming;
(g) difficulties with bending, twisting and lifting;
(h) difficulties with getting in and out of chairs;
(i) difficulties with watching television;
(j) difficulties with sitting and standing for prolonged periods;
(k) difficulties with walking long distances;
(l) difficulties with driving long distances;
(m) the need to modify the way in which she performs her work, including the use of a headset for taking and making telephone calls and the need to stand up and walk around whenever she can do so;
(n) headaches two to three times per week, associated with flare ups in her neck and lower back pain;
(o) the need to utilise pain management strategies on a daily basis, such as postural adjustment, application of heat and the use of a TENS machine;
(p) the need to take medication on a frequent basis, including Mobic, Dothep and over-the-counter medication. The need to take Tramal occasionally, when the pain is “excruciating”;
(q) difficulties performing heavier cleaning tasks such as gardening, mowing the lawn, vacuuming, cleaning bathrooms, cleaning her car, doing the dishes and anything that requires reaching above shoulder height. She now relies on her partner to perform these activities, which she does not like doing;
(r) difficulties with her grooming, such as showering and doing her hair;
(s) the need to modify the way in which she does her shopping, to accommodate her inability to lift and carry heavy items;
(t) a restriction in her ability to socialise and her enjoyment of this activity. She still goes out for the sake of her partner, but is not as social as she used to be. She has lost a lot of her motivation and spark for life. She now has to really push herself just to go out and do things;
(u) an effect on her personality and emotions. The unrelenting pain in her spine has “taken a toll” on her. Prior to the transport accident, she was a happy and bubbly person. She has lost a lot of tolerance and is easily irritable. She suffers from anxiety. She is constantly worried that her injuries are negatively impacting her relationship with her partner; and
(v) an impairment in her ability to interact as she would like with her grandchildren.
75In Haden Engineering Pty Ltd v McKinnon,[165] the Court of Appeal made observations about the task of evaluating the pain and suffering consequences of an injury. In particular, Maxwell P observed that the consequences of pain and suffering encompassed both the plaintiff’s experience of pain, as well as the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.[166] Part of the process is for the Court to assess the intensity of pain which the plaintiff experiences, together with the frequency and duration of pain episodes. As set out above, ultimately, the question of whether an injury satisfies the relevant test under the Act is one of impression or value judgment. The weight to be attached to the plaintiff’s account of the pain experienced will depend upon an assessment of the plaintiff’s credibility.[167] It has been observed by the Court of Appeal that once it is accepted that the appellant is a truthful witness and especially where the plaintiff has been found to be stoic, there is no reason to reject her ongoing descriptions of the pain suffered by her.[168]
[165] (2010) 31 VR 1
[166] Haden (ibid) at paragraph [9]
[167]Haden (ibid) at paragraph [12]; see also Halpin v Wilson Transformer Company Pty Ltd [2012] VSCA 235 at paragraph [44]
[168] ibid
76I have already made observations about the plaintiff’s demeanour and presentation in Court. In particular, I have found that the plaintiff was both a witness of credit and also stoic in her presentation and attitude to managing her injuries.
77An analysis of the evidence clearly demonstrates that by reason of the consequences of her spine injury alone, many aspects of the plaintiff’s life have been adversely affected.
78In particular, the plaintiff endures permanent, daily pain in her neck and back, which causes significant discomfort and restrictions in various aspects of her life. She has difficulty standing, sitting, walking or driving for long periods. She is unable to bend, lift or twist without aggravating her spinal pain. Her spinal pain causes her some interrupted sleep and has impacted upon her mood and her motivation and spark for life. The level and nature of her spinal pain is such that she is required to engage in pain-relieving activities on a daily basis. She takes medication frequently, including in order to help her get to sleep and stay asleep. Her activities of daily living, including her ability to interact as she would wish with her partner and grandchildren, have been adversely affected.
79The fact that after the accident, the plaintiff has been prepared to keep working, is not a matter that tells against the granting of his application. To use the words of Nettle J A in Dwyer v Calco Timbers Pty Ltd (No 2):[169]
“… it would be unfortunate, and in … [our] view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[169] [2008] VSCA 260 at paragraph [3]
80Taking into account all of the evidence, I am satisfied that the pain and suffering consequences of the plaintiff’s injury to her spine alone are “very considerable” and certainly more than “significant” or “marked” and therefore satisfy the relevant test for “serious injury” as set out in the Act.
Conclusion
81For the reasons set out above, I am satisfied that as a consequence of the accident which occurred on 19 July 2015, the plaintiff has suffered a “serious injury” to her spine, as that term is defined in the Act. The application is granted.
82I will hear the parties in relation to the question of costs.
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