Bindley v TAC
[2019] VCC 761
•31 May 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-04515
| KATHERINE BINDLEY | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8-9 April 2019 and 24 May 2019 | |
DATE OF JUDGMENT: | 31 May 2019 | |
CASE MAY BE CITED AS: | BINDLEY v TAC | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 761 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious Injury Application – transport accident - Injury to the cervical spine – credit
Legislation Cited: Transport Accident Act 1986 (Vic)
Cases Cited:Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260;
Humphries v Poljak [1992] 2 VR 129; Hunter v TAC & Anor [2005] VSCA 1; Petkovski v Galletti [1994] 1 VR 436; Richards & Anor v Wylie (2000) 1 VR 79.
Judgment: Leave granted to bring a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram SC with Mr J Valiotis | Arnold Thomas & Becker |
| For the Defendant | Mr G Lewis QC with Ms V Katotas | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1 The plaintiff makes application for the grant of a serious injury certificate in order to commence proceedings for damages at common law as a result of injury sustained in a transport accident that occurred on 28 December 2016. The application is made pursuant to s 93(4) of the Transport Accident Act 1986 (“the Act”). The plaintiff relies on paragraph (a) in that the injury to her cervical spine has resulted in severe restrictions to her neck with significant pain and suffering consequences. The plaintiff has experienced a mental response as a result of the transport accident.[1]
[1]Richards & Anor v Wylie (2000) 1 VR 79 is authority for the proposition that it is not inconsistent with Humphries v Poljak [1992] 2 VR 129 that seriousness as defined under para (a) of the definition of serious injury can have seriousness measured in part by a mental response to a physical impairment. See also: TAC v Garcia [2015] VSCA 225 at [27].
The plaintiff
2 The plaintiff is 47 years of age. When she was about nine years of age she fell from a monkey bar. There is a reported history of fracture to the cervical spine.[2] She has one child, a boy. She lives with her husband on a 13 acre property in Ventnor on Phillip Island.
[2]Associate Professor Stark says there is no evidence on imaging of the hairline fractures and he was the first to report on it. Mr Wilde and Mr Miller both subsequently said that there is no indication that this plays any current role in the condition of her neck at all. I discount it as having relevance.
3 In about 1989, having completed schooling to Year 12, the plaintiff commenced work for a signage company. She has also completed certificates of graphic design and a certificate in marketing. In 2005, she set up her own business, initially trading under the registered business name “The Happy Chappy”, but subsequently changed to “Mongrel Creative”. The business designed logos and websites for customers. It was a commercial enterprise and one consistent with the plaintiff’s tertiary qualifications and her work experience. She conducted the business as a sole operator and on a freelance basis. She also assisted in the maintenance of the 13 acre property which she ran with her husband. He had commenced a motorcycle repair and spare parts business called “Imoto” in 2009. The plaintiff helped out at Imoto by attending to telephone calls, taking bookings, dealing with accounts and the like. The plaintiff said that following the accident, she was unable to do so any longer and the business ultimately closed in November 2017.
4 The plaintiff says that as a result of the transport accident, her life has been seriously impacted. She is unable to work on their property to the extent she had been able to before the transport accident. She experiences a consistency of pain requiring the ongoing use of painkilling medications. There are interferences to her life as a mother to her son and, very substantially, the diminution of her pursuit of dressage and horse competitions and her passion for acting. There are also the adverse effects on her ability to maintain her graphic design business. Collectively, the plaintiff argues this amounts to a sufficient basis to find that she has suffered very considerable consequences as a result of the motor vehicle accident.
5 The plaintiff’s attribution of some of the consequences to her injury was squarely put in issue by the defendant. The effects on the plaintiff’s graphic design business, and on her husband’s business in particular, was a matter of contention. The defendant argued that the plaintiff’s association of her injury to the substantial decline in Creative Mongrel and the deterioration and eventual closure of Imoto was exaggerated.
The transport accident
6 The defendant did not contest that the plaintiff suffered injury as a result of a transport accident within the meaning of the Act. The transport accident was a significant motor vehicle accident. It occurred on 28 December 2016. The circumstances reveal its dramatic nature. The plaintiff was travelling just below 100 kilometres an hour on the South Gippsland Highway when she was hit by a car coming from her right, which forced her car to spin 180 degrees and it ended up in a ditch, landing on its roof. In the car with her at the time was her young son. He was secured in a child restraint and was not injured. Incidentally the plaintiff featured in a TAC advertisement highlighting the value of such restraints. Following the accident, the plaintiff was transported by ambulance to the Dandenong Hospital. Head and neck CT scans were conducted. No fractures were detected. The plaintiff was discharged. She attended her general practitioner, Dr Head, at the San Remo Clinic and analgesic medication was prescribed, together with rest. The plaintiff has since had periods of physiotherapy and osteopathic treatment. Her regime has been non-invasive and comparatively benign.
7 Mr Peter Wilde examined the plaintiff. In a report dated 26 February 2019, he said it was not unexpected that she would suffer the injuries she did, or present with the complaints she did, given the circumstances of the accident.
8 On 19 April 2017, an MRI scan showed distinct pathology of the plaintiff’s cervical spine. The report of the MRI by the radiologist referred to:
“Conclusion:
1. Moderate left neural foraminal narrowing C5/6, contacting the exiting left C6 nerve root. Mild right neural foraminal narrowing at this level.
2. Moderate broad-based disc bulge asymmetric in the left paracentral region at C6/7.”[3]
[3]Plaintiff’s Court Book (“PCB”) 28
9 The defendant relied on a report of Dr Donovan Strachan, osteopath, dated 14 September 2017.[4] Senior Counsel for the plaintiff, Mr Ingram, in opening the plaintiff’s case, characterised part of Dr Strachan’s report that, “prior to the accident Ms Bindley suffered from chronic postural strain of the upper back and neck which the accident aggravated” and that “this impacted on her ability to carry out her normal occupational duties” as either an erroneous interpretation of the plaintiff’s history or a misunderstanding of it. The defendant relied on the report by Dr Strachan and the plaintiff was cross-examined about it, including that she had previously experienced pain and stiffness in the upper thoracic area and upper cervical area as a result of working at her desk, and “the accident no doubt aggravated this”. The plaintiff denied that she had suffered chronic problems with her upper back or neck. I am not persuaded to accept this aspect of the history recorded by Dr Strachan and I prefer the plaintiff’s account when she said, that “it goes a long way back , and, as I’ve said, you know, I’ve experienced in my lifetime where I might have had a stiff neck or a sore back, but it wasn’t ever something I’ve sought treatment for”.[5] There is nothing to corroborate that prior to the transport accident, the plaintiff had been impeded in her ability to carry out her normal occupational duties. Her condition was asymptomatic.
[4]Defendant’s Court Book (“DCB”) 15-16
[5]Transcript (“T”) 15
10 In November 2017, the plaintiff commenced working for Westernport Water. This date coincided with Imoto ceasing to trade. She initially undertook full-time office work, five days a week, but she could not cope because of increased neck pain. In April 2018, she commenced in her current position as a meter reader, working three days a week recording water usage of households. She has been able to cope with the work, although she says that it does bring with it occasions of pain. She said she had not aspired to be a meter reader.
Plaintiff’s Evidence
Life before and since the accident
11 The plaintiff’s evidence consisted of two affidavits dated 9 May 2018 and 28 March 2019. She adopted them as true.
12 The plaintiff said that the qualitative nature of the life she now leads is starkly different and worse than it had been before the transport accident. She said she had been looking forward to the stage in her life when her son had reached an age where he was more self-reliant and she would be free to pursue her interests more fully. These included her enduring involvement with her horses, her love of participating in competitions and building up her graphic design business. Given the plaintiff established her business in 2005 and maintained it over the years since, and given her undoubted interest in horses, her expectations for her life were not unreasonable, and the loss of her capacity to realise them was not speculative, but in my judgement, sounds strongly as a component of pain and suffering consequences from her transport accident.
13 The consequences detailed by the plaintiff in her affidavits identify a significant limitation of movement in her neck and resulting pain. She deposed that she experiences neck spasm and, when she does, is unable to move her neck. She said that she cannot drive for longer than 45 minutes due to neck stiffening and resulting pain and, if she has to do so, it is only with the assistance of Panadol or Ibuprofen. Her ability to source and service clients in Melbourne for Creative Mongrel is restricted by the limitations on her driving tolerance.
14 The plaintiff said that before the accident she was able to perform heavy lifting on and around her property, including lifting fencing poles, but that since the accident she avoids heavy lifting. She said she is unable to undertake heavy work around the farm, as she used to, and she can no longer do fencing which is what she was able to do prior to the accident. She says her husband is required to help her with heavy lifting, such as bags of horse feed and hay bales. She said that heavy lifting and overworking affects her physically and results in her, on occasions, getting numbness, pain and headaches. The plaintiff was not challenged about these physical impositions in not being able to any longer perform these tasks on the property.
15 The plaintiff said that she can no longer carry her son inside from the car if he falls asleep in the back seat. At the time of her first affidavit, he was six years of age and weighed approximately 24 kilograms. She lamented being unable to go into the paddocks and play with him due to her pain and that these limitations causes her great sadness. Her account was not challenged.
16 The plaintiff said she can no longer sleep on her left side as almost every night she wakes up in pain when she rolls over in her sleep. As a result, she experiences fatigue. Her account of experiencing disturbed sleep was not challenged.
17 Prior to the accident, the plaintiff enjoyed riding horses and would compete in dressage, which she described as her favourite activity. She is no longer able to participate in her enjoyment of horse riding and competing in dressage to anything approximating what it amounted to before the accident. Following the accident, she was unable to ride for eight to nine months, and she said that when she does so nowadays she must limit her rides, but even so, at the end of the day, she will be in pain, which is not the situation she faced prior to the accident.
18 As to Creative Mongrel, the plaintiff said that following the accident, she could not work in the business for the first six to eight months and, when she attempted to return to work in January 2017, she found that for the first two weeks she was struggling and would have to have to lie down because of dizziness.
19 The plaintiff maintained that her business has been severely impacted because, as its sole operator, she had been unable to maintain it after the accident. She in fact deposed that because of this “I gave away my business”.[6] However, the truthfulness of that statement gave rise to a concentration about the plaintiff’s broader credibility. In cross-examination, the plaintiff explained that what she meant when she said that she had given away her business, was not that she disposed of it in a commercial sense, or ceased its operations, but that it had continued at a significant loss to her. She said that she has been required to limit her design work to small projects and there was some evidence to this effect. She said that previously her briefs for design work had included a mix of larger and smaller projects. She said that prior to her son being born in 2001, the business, which by then had been up and running for six years, undertook work that had been “really variable”. She said there had been small projects for local businesses, which might involve making flyers for promotional activities, and there was a project for a UK company and projects for a Melbourne business involving the design of a website.[7] The plaintiff said that at the time of the accident she was doing approximately 20 to 25 hours per week with Creative Mongrel, whilst also being present at Imoto and looking after her son. I do not accept the defendant’s characterisation that the plaintiff intended to give a false impression of the effect on her business from her injury. I am satisfied that the language used could have been better applied, but I have treated her evidence as a turn of phrase, that essentially endeavoured to capture the reality that the effort that she had been able to apply to the business was no longer feasible because of her physical constraints and pain.
[6]Plaintiff’s affidavit 9 May 2018, para 17, PCB 3
[7]T51
20 The plaintiff said that the consequences of her transport injury have had a significant impact on both her and her husband as they have been required to change their lives completely since the accident. He is now required to take on the bulk of the activities at home, such as grocery shopping and the washing, and to ferry their son to the typical array of appointments such as tennis and swimming, and she feels guilty that he has been required to take on so much since the accident.
21 The plaintiff described how, before the accident, she had acted in TV commercials and short films and would attend auditions at least once a week in Melbourne, or sometimes twice a week.[8] She described acting as a passion and something she thoroughly enjoyed, but that she is very restricted in being able to drive to Melbourne for auditions because of the distance involved and the aggravation of her pain and anxiety. She deposed that driving makes her anxious, and she is hesitant when other cars approach intersections and startled when being on the road. She said that she suffers from flashbacks and nightmares two to three times a week. The plaintiff said that since the date of her first affidavit she has been to two or three auditions in the past 12 months.
[8]Plaintiff’s affidavit 28 March 2019, para 14, PCB 7
22 The plaintiff described a life that had been busy in which she was involved in two businesses, rearing a child, tending to a 13 acre property and being actively engaged in training with horses and participating in dressage. She had three horses and would engage in dressage one to two times a month, as well as training and exercising them three to four times per week for approximately one to two hours at a time. She said she had been riding horses since the age of four and her involvement with them has spanned many decades and constituted a significant aspect of her life. I accept the plaintiff’s evidence.
23 The plaintiff said that her involvement with dressage has continued, and that competition is relatively straightforward and is over in between six to eight minutes. She said there is a warm-up beforehand and the amount of training that she now does is limited to her sitting tolerances. She said she would spend approximately 1.5 hours involved in training and competing, as opposed to before the accident when her riding, training, grooming and competition would have occupied her for up to 10 hours at a time.[9] She described having missed events that she would normally not miss and she said these changes are a significant loss to her.
[9]Plaintiff’s affidavit 28 March 2019, para 15, PCB 8
24 The plaintiff said that over time her neck has not improved and she has difficulty getting comfortable and continuing difficulty getting to sleep, which results in fatigue.
25 The plaintiff does not receive any active therapy. She is not being reviewed by her current general practitioner, Dr Yaser. She undertakes clinical Pilates exercises every morning. She takes either Panadol or Nurofen every day, up to four tablets a day, and up to ten Voltaren tablets per week. She finds that the Voltaren tablets make her feel unsettled and so she limits the intake of them.[10] She does not take any prescription medication for pain.
[10]Plaintiff’s affidavit 28 March 2019, para 12, PCB 7
26 The plaintiff commenced seeing Ms Beverley Brain, psychologist, on 10 July 2017 and she continues to consult with her once a month.
The plaintiff’s medical evidence
27 Mr Russell Miller, orthopaedic surgeon, in the first of two reports dated 28 May 2018,[11] said that the plaintiff suffered an injury to the cervical spine, including muscular ligamentous strain and aggravation of degenerative disease. He thought her prognosis to be fair and “her current clinical status is satisfactorily explained by defined organic disease”.[12] As to the relationship of her presenting condition to the accident, he said it was complex and multifactorial, and that it was likely there was a pre-existing “but minimally symptomatic disease in the cervical spine”,[13] which he thought likely had been aggravated and further superimposed by the transport accident injury. He thought the plaintiff’s clinical status as one properly regarded as “substantially accident related”.[14]
[11]PCB 12-17
[12]PCB 15
[13]PCB 15
[14]PCB 16
28 Dr Yaser has provided two reports about the plaintiff. The plaintiff presented initially on 4 January 2017 complaining of neck pain and headache, which symptoms she had suffered since the motor vehicle accident. He said that before the accident the plaintiff had not experienced issues with her neck or head. He went on to say that her neck symptoms are quite severe and that she stopped working as graphic designer. He said she is unable to do computer work. He said she has limited neck movement and often has tingling and numbness to the left forearm.
29 The plaintiff’s last appointment with Dr Yaser was on 11 July 2018, but it was a consultation unrelated to her claim. Dr Yaser reported that the plaintiff’s treatment since the accident had been relatively benign treatment including osteopathy, massage and painkillers. It was not submitted by the defendant that a lack of ongoing need to attend her general practitioner for treatment was evidence to suggest that the plaintiff was not seriously affected by ongoing consequences from her injury.
Defendant’s medical evidence
30 Associate Professor Richard Stark is a neurologist. In a report to the defendant dated 6 March 2018,[15] he said that the plaintiff had told him that in the weeks following the accident her principal concern related to impaired balance or vertigo, and he pointed out that the plaintiff had been unable to ride horses or tend to her property in consequence of the same. That is a consistent history. He referred to her attendance on her general practitioner and that no specific treatment was provided. He reported that the plaintiff became aware that her left arm was becoming numb and tingling and that this occurred especially if she would rest on her left side. He reported that although the plaintiff’s dizziness improved, it was eight months before she was able to ride horses again. He referred to her previous work as a graphic designer undertaking freelance work and assisting in her husband’s business. He said the plaintiff returned to work straight away after the accident, but it was definitely at a reduced efficiency as it was difficult for her to sit at her desk for any period of time.
[15]DCB 4-8
31 Associate Professor Stark described the plaintiff’s current complaints as numbness in the left arm with some tingling, which occurs especially if she sleeps on her left side. He said that when she wakes with the tingling sensation, it can last for an hour or two.
32 Associate Professor Stark said that her cervical spine is much improved and he noted the plaintiff sees her osteopath and attends Pilates, which appears to help. He reported that the plaintiff’s vertigo or dizziness is much improved, although sometimes there is a feeling of imbalance or veering to one side, made worse when she lunges her horses.
33 On clinical examination, Associate Professor Stark found the plaintiff’s power in her limbs was normal. Reflexes were symmetrical and normal. He found the range of neck movements was full with no palpable spasm or guarding. He referred to the provision of CT scans of the brain and the cervical spine from 28 December 2016, which appeared to be normal. He referred as well to an MRI scan of the cervical spine dated 19 April 2017, and the radiologist’s report of some disc bulging at C5/6 causing some moderate left-sided foraminal narrowing and some disc bulging at C6/7 asymmetrical to the left. He agreed with those findings.
34 In terms of diagnosis, Associate Professor Stark accepted that the plaintiff suffers genuine problems arising from the transport accident including disequilibrium, cervical spine symptoms and intermittent sensory symptoms in the left upper limb, but that they have all been subject to improvement and he thought there to be no objective abnormality on neurological examination.
35 Of the plaintiff’s lifestyle and his assessment of it, Associate Professor Stark reported that she had returned to “virtually normal”[16] activities in the areas of work and home activities. In terms of her leisure activities, she had returned to equestrian competition.
[16]DCB 8
36 Mr Peter Wilde is an orthopaedic surgeon. He provided a report to the defendant dated 26 February 2019,[17] following examination of the plaintiff on 25 February 2019. He said he found the plaintiff to be a reliable witness to both history and on clinical examination. He undertook his examination in the context of having been supplied with substantial material which she outlined and these included:
[17]Report Peter Wilde dated 26 February 2019, DCB 9-14
·TAC Claim for Compensation Summary Form, dated 2 February 2019;
·CT brain and cervical spine report, dated 28 December 2016;
·MRI cervical spine report, dated 19 April 2017;
·Dr Carol Head, general practitioner, San Remo Medical Clinic, dated 12 May 2017;
·Dr Urooj Yaser, general practitioner, San Remo Medical Clinic, dated 22 May 2018;
·Dr Uroo Yaser, undated;
·Dr Donovan Strachan, osteopath, dated 14 September 2017;
·Ambulance Case Sheet dated 28 December 2016
·Coastal Health clinical notes;
·San Remo Medical Clinic Patient Health Summary; and
·Monash Health Patient Record.
37 Mr Wilde’s report is the most recent in time. In addressing the plaintiff’s symptoms, he noted her complaint of discomfort across the left side of her neck into her left shoulder and upper arm, and that some days she is quite comfortable with pain levels that do not register and on other days she wakes with a spasm in her neck that refers into the left shoulder and which she estimates at 3 to 4/10. There was no description of neurological symptoms into her upper limbs, although he noted the plaintiff said that if she lies on her left side she sometimes wakes with tingling down the left arm and numbness, even in her fingers. She recognised that if she is under tension or stress, these symptoms tend to be worse. The plaintiff exhibited this sensation and described it in the course of her re-examination.
38 Mr Wilde wrote that in her activities of daily living, that despite pain, she continues to work and manages quite well. She is able to manage activities of daily living including dressing, showering, cooking, ocean swimming and housework. He wrote that more recently she has returned to horse riding dressage; a long time hobby she has enjoyed over many years which he saw as a notable improvement since the date of accident.
39 Mr Wilde said that the MRI of the cervical spine dated 19 April 2017 demonstrated a disc prolapse at C5/6 and early foraminal narrowing on the left at C6 nerve root. He said there was no central stenosis at this motion segment. At C6/7 there was a moderate broad-based disc bulge not causing neural compression.
40 Mr Wilde wrote that prior to the transport accident, the plaintiff had not complained of neck pain or other musculoskeletal symptoms, and after the motor vehicle accident she was immediately aware of pain across her scalp and neck[18]. He said that despite the passage of time and the intervention of osteopathy and physiotherapy, the plaintiff continues to experience symptoms across her neck and into her left shoulder, although the symptoms are gradually improving with time. He noted the plaintiff has been required to alter her work to accommodate her symptoms and she told him that, as a consequence, she and her husband closed the family motorcycle repair business to allow her to find alternative work in order to “spare her neck”.[19] He reported that certain tasks such as computer work, looking down and twisting aggravated her neck.
[18]His reference to a lack of an interfering history is an example of Dr Strachan’s report of such being an outlier
[19]DCB 11
41 Mr Wilde concluded that the plaintiff had sustained an injury to the cervical spine in the transport accident on 28 December 2016 and sustained an injury to the C5/6 disc with an associated small prolapse. The high speed accident was one in which she sustained multiple lacerations to her scalp, forehead and a significant strain to the cervical spine and left shoulder. He did not question the validity that the mechanism of the motor vehicle accident at such speed was sufficient to have caused the injuries and that her symptoms are consistent with the motor vehicle accident.
42 He thought it likely that the plaintiff had pre-existing degenerative cervical spondylosis at C5/6 and C6/7, but that the changes were not symptomatic prior to the motor vehicle accident. The aggravation, as he described it, had not resolved to the pre-accident state and the plaintiff continued to report symptoms in her neck and left shoulder which have continued unabated since the accident on 28 December 2016. He said that with the passage of time and appropriate physical therapies and modification of the plaintiff’s lifestyle, the symptoms have been shown to improve substantially.
43 Mr Wilde reported that effects of the motor vehicle accident impact minimally on the plaintiff’s activities of daily living. He noted that whilst initially she was quite restricted, she has with time again returned to horse riding and dressage. He said she had told him that although she has difficulty managing heavy tasks required of managing a horse if she takes them slowly she is able to cope. He thought her prognosis good, although he considered that she may never be completely free of all symptoms in her neck, and she may need to take a painkiller from time to time or apply a hot compress if her neck is stiff and sore.
Discussion of evidence
44 I am satisfied that the plaintiff has made a good recovery from a very dramatic transport accident. However, that recovery does not necessarily gainsay the plaintiff having been left with an impairment to the function of her neck that satisfies the serious injury test. Whether the impairment consequences of her injury are serious, one should consider not only what symptoms there are, and what the plaintiff is precluded from doing by way of inhibitions upon her activities, because what she has retained can be insightful.[20]
[20]See: Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
45 The plaintiff said that the work she had been undertaking in graphic design has been closed off to her to the extent in which she had been engaged in it before the accident. I accept that this is so. I appreciate that the plaintiff has obtained work since November 2017, initially five days a week and since April 2018 working as a meter reader three days a week, and that this is work that she is able to physically manage, and of course impacts on her pursuit of design work, but I am satisfied that but for her inability to work in her design business as she had before the transport accident, she would not have undertaken the water work. It is entirely inconsistent with the trajectory she was on before 28 December 2016.
Diminution in the quality of the enjoyment of life
46 In advancing its thesis that the plaintiff has retained more than what she has lost, so that overall her injury is not serious, although it may be marked, the defendant relied on the following considerations:
·the plaintiff said that she had driven to South Australia for a weekend motorbike event with her husband and slept in the car, and although sore afterwards, managed to undertake the journey despite her impairment;[21]
·the plaintiff is back to regularly riding horses and manages the maintenance of three horses;[22]
·the plaintiff continues to work in her graphic design business;
·the plaintiff works three days a week as a metre reader;[23]
·the plaintiff performs at equestrian events;[24]
·the plaintiff can engage in trail rides around her 13 acre property;[25]
·the plaintiff rides at the Ventnor Reserve and lunges horses;[26] and
·the plaintiff retains her role as Secretary of the Phillip Island Riding Club.[27]
[21]T18 (the plaintiff said she drove in shifts with her husband and was the worse for the wear of it)
[22]T27
[23]T31; PCB 4 and 6
[24]T32
[25]T21
[26]T34-35
[27]T32
47 I am required to consider all of the evidence. Whilst these facts suggest a picture that the interference to the plaintiff from the injury she suffered may be marked, but when assessed against the range of impairments, not serious, I do not agree.
48 A determination of whether to grant a serious injury certificate cannot be decided by a totting up of entries in a ledger to see if there are more credits than debits. The task is more nuanced. Undoubtedly, the plaintiff has recovered a good deal and has regained a capacity to engage in aspects of her life that existed before the accident, but by no means all of them, and, moreover, the quality of the activities that she has recovered is not the same and is significantly less. In my judgment, they are very marked and more than considerable. They are serious.
49 The loss of the plaintiff’s ability to engage in previously enjoyed activities of horse riding competition and the time she is able to spend doing so, without being left with a legacy of pain at the end of a day, is significant.
50 The plaintiff’s career as a freelance graphic designer utilising her skills and experience to the extent that existed before the transport accident and being able to manage variable levels of project work, and her frustration at that loss of capacity to do so, is relevant too, in assessing the plaintiff’s pain and suffering. Although the plaintiff has not lost her career in her chosen field, it is significantly impacted, and I am not satisfied that what she retains of it amounts to a sufficient amelioration of her pain and suffering.[28] The plaintiff said that it had been her intention to commit more time and energy into her business once her son commenced school. I accept her account. I accept the consequence of her injury has forestalled that from being brought to fruition. I am not satisfied that it is met by the defendant suggesting, as it did, to the plaintiff that it might have proved otherwise had she considered adopting a standing desk arrangement for carrying out her graphic design work and in assisting her husband in her duties at Imoto. The plaintiff testified about the closeness of the work required to be done when working on a design and that she had tried other means to alleviate neck pain caused by such close work. I accept that the pain she was met with in the work she performed was such that it has prevented her from continuing the business as it had been, and as she hoped with some reason to believe, it could be. As to whether her work helping her husband in Imoto and at Creative Mongrel could have been done by standing at a desk with adjustable height, she answered:
“I did – I did and still try to vary standing and sitting. I don’t – I don’t find doing 30 hours of coding standing was how I worked for 15 years. I’m certainly – yep, I know that standing and changing my position is part of that, but designing a logo or something, where you’re focused on something right here… I’d just always be sitting for that.”[29]
[28]See for example, Hunter v TAC & Anor [2005] VSCA 1 at [34] and [40]
[29]T30
51 The plaintiff was asked whether if she had the option of standing and sitting in taking the strain off any flexion of her neck in a manner that permitted her to look directly at her work what she would think about it and she said, “I can honestly say, I did not stop that lightly.”[30] She said she recalled setting an alarm so that once every hour she went for a walk around the block for 10 minutes to try and increase blood flow. She said:
“I held on to it too tightly; I felt like I was gripping with my fingernails to keep doing what I felt passionate about. If there was an option that made it better – as I said, I did book work wearing a neck brace standing up at the front counter, which is really not how I wanted to present myself to the world”.[31]
[30]T30
[31]T30-31
52 Therefore, contrary to Mr Ingram’s final address, the plaintiff was confronted with the suggestion that alternative means might have been available for her to have continued with her graphic design business to a capacity or to an extent comparable to that which she had been doing, and which she expressed her ambition to continue doing, but for the accident. In any event, there is no evidence that would enable me to find that had such apparatus been adopted, the plaintiff would have been able to continue and pursue her business undeterred by pain.
53 The defendant submitted that there was no reason shown why the plaintiff cannot continue with her graphic design business or indeed increase the type of work and the quality of the work because she had in fact worked in the business after the accident. The plaintiff deposed that she was unable to undertake larger graphic design website projects. I have accepted her evidence of this point. There is no evidence that she undertook larger projects after the accident and nor was she cross-examined to suggest that she had.
54 Even though the plaintiff’s alternative employment with the water company has apparently eliminated any financial loss, that is not determinative, and the plaintiff may be able to show that the pain and suffering consequences are despite this, “very considerable”. Her return to alternative work three days a week as a meter reader is a factor that might tend against a conclusion of serious injury, but I must make my determination on the basis of all of the evidence, including the plaintiff’s loss of potential for future career opportunities with her own business. Whether the plaintiff could have achieved her ambition of growing Creative Mongrel is not the question, because I am satisfied that her opportunity to do so was more than merely speculative, and her desire to do so was consistent with the lengthy time she had been conducting her business prior to the accident.
Credit
55 As I have already noted, the plaintiff was subjected to an attack on her credit. It was put against her that she had exaggerated the cause of the decline in, and subsequent closure of, her husband’s business as due to her injury and inability on her part to continue to assist him. The language used in the plaintiff’s affidavit and adopted by her as being true was unfortunate. It is an exaggeration on the plaintiff’s part, but I have not assessed her as intending to give false evidence. As well, the defendant said that the plaintiff had been untruthful when she said that she had not drawn wage from her husband’s business. She said in cross-examination that “it was my husband’s business, we built it from the ground up together, and I worked in it every single day with him. I didn’t draw a wage, but I nonetheless felt like I supported him 50% in the business”.[32] The plaintiff’s tax returns for 2016 and 2017 showed declared income from Imoto of $3,418 and $4,367. When asked about this, the plaintiff said that she thought for a period of about 12 months she did draw a wage, but she went on to say that it was too administratively burdensome to have continued with it and thereafter no wage was drawn. The tax returns are for two years, but the amounts were not great and they were for a limited time over the period when one considers Imoto began in 2009. I am not satisfied that this evidence by the plaintiff was an attempt by her to lie.
[32]T21
56 The plaintiff deposed in her first affidavit that her husband closed Imoto in November 2017 as he could not sustain it without her support.[33] I accept the defendant’s submission that the plaintiff had not made a complaint to her general practitioner, or to Dr Strachan, or to her psychologist Ms Brain, that the consequences of her injury led to the closure of Imoto.
[33]Plaintiff’s affidavit 9 May 2018, para 18, PCB 4
57 I am not satisfied that Imoto ceased trading because the plaintiff could no longer provide assistance to it, but neither am I satisfied that she may not genuinely have believed that her lack of ongoing assistance was a contributing factor among other financial concerns it faced. When asked by Mr Lewis in cross-examination, the plaintiff agreed that the reason Imoto ceased was because of family and financial pressures.[34] I do not treat the plaintiff’s evidence as an effort to give false evidence or to paint the consequences of her impairment as more serious than they are as the defendant submitted. The defendant referred to Imoto encountering pressures and referred to an impending renewal of the lease of the premises. The logic of her husband hiring a bookkeeper or someone to take up the slack left by the plaintiff, as suggested by the defendant as a possibility in cross-examination of the plaintiff, is arguably problematic if the business was under financial constraints in any event.
[34]T26
Surveillance
58 The footage shown in court was some 55 minutes of the plaintiff on 19 January 2019. The plaintiff is seen astride one of her horses and undertaking a canter or trot. The plaintiff said she had saddled the horse herself and she is observed lunging and cleaning the horse’s hooves. I found nothing about the surveillance footage that is inconsistent with the plaintiff’s evidence.
59 The plaintiff said that she “had no idea” why Mr Wilde referred to her managing her activities of daily living including “ocean swimming” and she said that in fact “I don’t actually like going to the beach”.[35]
[35]T32
60 The plaintiff was cross-examined about the finding made on examination by Associate Professor Stark in March 2018 that she had a full range of neck movement. The plaintiff did not quarrel that if the report was to that effect then it must have been so, but she said that her pain “depends on a whole bunch of circumstances.”[36] When Associate Professor Stark’s finding that she had exhibited on examination a full range of neck movement was put to her, the plaintiff accepted that it could indeed have been so.[37] Mr Miller’s findings on examination of the plaintiff’s cervical spine in which he detailed his measurements on flexion were recorded as follows:
[36]T22
[37]T23
Flexion 40°
Extension 40°
Rotation left 40°
Rotation right 35°
Lateral flexion left 40°
Lateral flexion right 35°
61 In any event, it was not the plaintiff’s case that her pain or restriction of neck movement is constant, but rather that it is a chronic condition that afflicts her.
62 The plaintiff said that she retains the position as Secretary of the Phillip Island Riding Club and the role requires her to “take minutes as monthly meeting, which is essentially us having dinner, and then we chat about club things. And, if somebody enquires about the club, I would get an email, so I might send them some information”.[38] She described a role that was manageable with her limitations and pain tolerances.
[38]T32
63 The plaintiff can do low level jumping on horses but she said that a Facebook photo of her doing so was in truth a jump of some 45 centimetres on a horse of some 16.2 hands.[39] She accepted that there has been a return to riding.
[39]T33
64 She was asked if she had been involved in any three day horse events but said she had not although she would love to “but cross-country is out of my scope”.[40]
[40]T33
65 She said that there are “monthly rallies which is when an instructor comes in gives us a lesson” and she said she does not do “every rally”. But that she would “maybe” once a month frequent the Ventnor public reserve with her horses.[41]
[41]T34
Absence of evidence
66 The defendant submitted that there was a deficit in the sufficiency of the plaintiff’s case because no evidence had been adduced from her husband. The plaintiff was not challenged about the absence of her husband. The findings I have made about the impact of the impairment of the plaintiff’s function to her business, on her capacity as a mother, and her involvement in horse competition and her passion for acting are not matters about which the plaintiff’s testimony was lacking in reliability such that it required corroboration by her husband. Her attribution of her impairment as causative of the closure of Imoto is not, in any event, a matter about which I have been satisfied. Overall, I am satisfied that the plaintiff was a credible witness. She recognised and accepted criticisms levelled at aspects of expression of her affidavit evidence, but these are not matters that have persuaded me that the plaintiff’s credit was impugned such that I do not accept her evidence of the consequences she experiences from the transport accident. On matters of evidence, I accept her account of the impositions and consequences of impaired function to her daily activities.
Conclusion
67 I am satisfied that the plaintiff has established a serious long term impairment within the meaning of paragraph (a) of the definition. It is permanent, in that it will prevail for the foreseeable future and has been caused by the transport accident. I have had regard to the mental response of the plaintiff to her physical impairment, but I have remained conscious of and not allowed her mental response to it to masquerade as being productive of the impairment to her body function. The plaintiff’s anxiety in driving, for example, is an understandable result of her response to the trauma of the accident, as is her reaction to the loss of freedom brought on by pain and her loss of involvement in many activities and pursuits that have been caused by the transport accident. Her mental response has not caused in her the impairment to the organic function and the related consequences of pain and suffering from the injury. The clinical notes from Ms Brain introduced into evidence by the defendant do not establish otherwise.
68 The impositions caused by the injury to the plaintiff has impacted her capacity to undertake the work on the property she lives at with her husband and child to the extent that prevailed before the accident. The consequences to her capacity to mother her son as she was able to do before the accident, not just by being able to physically lift him when having dozed off in the car, but also by playing with him in the paddocks on the property and bussing him to the varied activities typical of a young school lad, are not insignificant and neither are her responses to the physical limitations she faces that require so much of what she previously managed around the home to be left nowadays to be performed by her husband.
69 To the opinions expressed in medical opinions of Mr Wilde and Associate Professor Stark that the plaintiff has recovered to the extent of managing her activities of daily living and that there is virtually minimal impact, including that the plaintiff has returned to undertaking “ocean swimming”, I am not persuaded to accept when contested by the plaintiff. No account of ocean swimming, for example, is referred to in any other history. The plaintiff’s account of her daily activities involved in family shopping, the needs of tending to her son, the inhibitions to work on and about the property and the ongoing long term use of painkilling medications are indicative of. and consistent with, a finding of pain and suffering of a serious level and not a finding that she has returned to her activities of daily living with only minimal impact as the reporting suggests. To the extent then that the reporting is to the contrary, I prefer and accept the plaintiff’s evidence.
70 I am satisfied that before the accident the plaintiff had asymptomatic changes to her spine but that the transport accident alone has caused pain and suffering consequences to the plaintiff that are serious to her.[42] I am aware that the objective medical evidence is of comparatively modest organic injury, but I am satisfied it has resulted in a long term impairment of function to the plaintiff. The plaintiff’s condition has reached the stage that her injury has not resolved and it will continue to need to be managed with painkillers and she will likely never be completely pain free. For a still relatively young woman to be lumbered by ongoing pain that impedes her life in a substantial fashion by bringing with it the range of disruptions, including as to sleep with resultant fatigue, and warranting a steady and ongoing use of painkillers, is such that after having made the relevant comparison with a range of like impairments, as I am required to do, I am satisfied the plaintiff’s injury is a serious injury.
[42]Petkovski v Galletti [1994] 1 VR 436
71 I will hear the parties as to the need for any ancillary orders to give effect to my decision.
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