Bonanno v Transport Accident Commission
[2018] VCC 391
•6 April 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-02732
| ROSAMARIA BONANNO | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 and 5 March 2018 | |
DATE OF JUDGMENT: | 6 April 2018 | |
CASE MAY BE CITED AS: | Bonanno v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 391 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – injury to the neck
Legislation Cited: Transport Accident Act 1986
Cases Cited:Transport Accident Commission v Katanas [2017] HCA 2017; Humphries & Anor v Poljak [1992] 2 VR 129; Abbas v Transport Accident Commission [2015] VSCA 217; Transport Accident Commission v Zepic [2013] VSCA 232
Judgment: The plaintiff’s Originating Motion be dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Nightingale with Mr E Makowski | Arnold Thomas & Becker Pty Ltd |
| For the Defendant | Mr J Gorton QC with Mr T Storey | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1 The plaintiff suffered injury to her neck and mid back in a transport accident which occurred on 25 August 2013. She claims that the injury to her neck has resulted in a serious long-term impairment or loss of the function of her neck.
2 Mr M Nightingale and Mr E Makowski of counsel appeared for the plaintiff. Mr J Gorton QC and Mr T Storey of counsel appeared for the defendant.
The transport accident
3 The plaintiff was riding a motorcycle on the Western Ring Road when she was sideswiped by a car as she was exiting the Western Ring Road at the Tullamarine turnoff.
4 The plaintiff was knocked off her motorcycle. She slid along the roadway, and as that was happening, the helmet she was wearing on her head made contact with the roadway.
5 The plaintiff was removed from the scene of the transport accident by ambulance. She was taken to the Royal Melbourne Hospital. She was later discharged. At the time of her discharge, she was not experiencing any neck pain.
The Plaintiff’s work history
6 The plaintiff and the defendant concentrated a fair bit of attention on the plaintiff’s work history as one yardstick of whether the plaintiff’s consequences deserve to be described as “serious”. It is necessary to set that work history out in some detail because it adds the context to the observations made by a number of examining medical practitioners, and the medico-legal consultants who later examined the plaintiff.
7 At the time of the transport accident, the plaintiff was employed by COASIT as a receptionist. She described the work she did as switchboard, reception “and like work”. At the time she ceased working for COASIT in December 2016, she was performing administrative and accounting work.[1] Her hours of work were from 8.30am to 5.00pm, five days per week.[2] The plaintiff’s position was made redundant in December 2016.
[1]Plaintiff’s Court Book (“PCB”) 7 and Transcript 8
[2]Transcript 8
8 The plaintiff had a couple of days off work after the transport accident. She returned to the same duties and continued to perform those duties until December 2016. She said that she was unable to do her work properly, but continued doing it in the best way she could.[3] Later in her evidence, she said that she was in a lot of pain every day while performing her work.[4] Her workstation was assessed and modifications were undertaken which involved providing her with a special chair, raising her computer to eye level, providing her with a headpiece and earpiece to speak on the telephone and a footstool.[5]
[3]Transcript 10
[4]Transcript 49
[5]Transcript 48-49
9 The plaintiff said that had her position not been made redundant she would have continued working for COASIT.[6]
[6]Transcript 9
10 The plaintiff then obtained employment with ITALCARE. She worked 10 to 20 hours per week depending upon the demand for her services. She was required to provide care for elderly Italian people. It involved a variety of tasks, such as doing their shopping, administering their medication, helping them to shower and preparing meals.[7] It sometimes involved doing heavier domestic duties such as making beds and cleaning.[8] This is in contrast to what the plaintiff said in her first affidavit that “much of the work is supervisory”, which I take to mean little or no hands-on work.[9]
[7]Transcript 17
[8]Transcript 20
[9]PCB 9
11 The plaintiff completed an application for employment form relevant to the job she obtained with ITALCARE.[10] She agreed that she lied on the application form when she said that she had no pre-existing injury which could affect her work duties.[11] She agreed that she indicated that she would be available to work from 8.00am to 5.00pm.[12] However she said that it was her understanding that she was to be available to do work during those hours, but not work those hours as if it was a shift.[13]
[10]DCB 48-49
[11]Transcript 18
[12]DCB 50
[13]Transcript 19
12 The plaintiff worked with ITALCARE for about six months for up to 20 hours per week. She left that job because she was not getting enough work.[14] She probably left that employment around May 2017.
[14]Transcript 19-20
13 The plaintiff then obtained employment with Henry’s Café at the Northern Hospital in May 2017. She informed her employer that she had suffered injuries in the transport accident, which led him to accommodate her limitations. She described her work as on the service side with some restocking and only a very limited amount of food preparation.[15] Under cross-examination, she agreed with what is recorded in the report of Advance Healthcare[16] of the tasks that she was required to perform and the postures that she was required to adopt in performing those tasks.[17]
[15]PCB 13
[16]PCB 44-51
[17]PCB 45 and paragraph 14 below
14 The plaintiff is now working for Real Pet Food Company as a casual factory worker. She commenced that job on 22 February 2018. At the time of the hearing of this application, she is working eight-hour shifts, five days per week. In her affidavit, she said that she left the café job because she was not coping with the pain in her neck, presumably because of the task that she was required to perform. Under cross-examination, she said that the tasks she performed caused her problems with her neck, but she does her best.[18]
[18]Transcript 23
15 The plaintiff’s new job involves working on a packing line removing light pet foodstuffs from a belt which she then packs. She also performs packing of foodstuffs into bags, and works in a different section doing some stamping and sealing.[19]
[19]Transcript 23
16 In May 2015, the plaintiff commenced a massage course at the Sage Institute. She completed the course in early 2016 despite some difficulties in getting through the course.[20] The plaintiff was cross-examined on extracts of her LinkedIn entry and her Facebook entries comprising ninety-six pages of material. From that material it emerged that the plaintiff set up a massage business known as “RB Massaging Therapist”. Some of the entries point to the plaintiff having transacted some massage work, but after reading the transcript, I was left with the impression that her so-called business was a business more in name than substance. She also set up an internet business selling candles and soaps which likewise was more a business in name than substance.[21]
[20]PCB 11
[21]Transcript 16-17, 34-35, 44-45, 55
17 However, the point made under cross-examination was that the plaintiff undertook the course successfully and took the steps to set up a business while she was working for COASIT and ITALCARE.
The Plaintiff’s medical treatment
18 The plaintiff saw Dr Al-Sharifi, general practitioner, on 31 August 2013. He recorded that she was complaining of pain in her lower cervical spine mainly over C6. She had bruising over her body, and a painful right knee. He referred her to have an x-ray which demonstrated that she had spondylosis and kyphosis, but no other abnormality in her neck.[22]
[22]PCB 105
19 Dr Al-Sharifi’s diagnosis was that the plaintiff had suffered a soft tissue injury to her neck, limbs, lower back and right knee. He prescribed her Brufen for pain relief and referred her to have physiotherapy.
20 The plaintiff also complained of pain in her right elbow and lower back. She was referred to have an ultrasound of her right elbow, a CT scan of her lower back and an ultrasound of her left shoulder. I merely refer to those complaints and investigations at this stage to note them. Those complaints dissipated over time. Counsel for the defendant expressly disavowed any reliance upon these injuries as constituting concurrent impairments.
21 The plaintiff continued to see Dr Al-Sharifi through 2014. He referred her to have an MRI scan which was taken on 2 August 2014 because she continued to complain of pain in her neck and mid back. Dr Al-Sharifi interpreted the MRI scan to demonstrate a reduction in disc space height at C5-6 and C6-7 with minor central disc bulging at C5-6 and C6-7. He described the injury to the plaintiff’s neck as a disc prolapse at C5-6 and C6-7.
22 By the time Dr Al-Sharifi wrote his first report dated 27 January 2015, he considered that the plaintiff had slight restricted movement in her neck. He noted that she was feeling depressed because of her neck pain. He considered that she was stable at that stage, but was awaiting the opinion of the her treating physiotherapist.[23]
[23]PCB 28-30
23 The plaintiff commenced physiotherapy treatment on 13 September 2013. Initially, the treatment was directed rather more to her knee and lower back. However, on 20 May 2014, the physiotherapist noted soreness to palpation over C5 and C6 and stiffness over the C4-5 facet joints. She suggested to Dr Al‑Sharifi that the plaintiff undergo scanning of her neck. By that stage, the physiotherapist treatment focused on the plaintiff’s neck and middle back.
24 The last two entries in the Physiotherapist’s report dated 18 December 2017[24] demonstrate that the focus of her physiotherapy treatment of the plaintiff was her neck, mid back and lower back. On 11 September 2014, she gave the plaintiff a “cervical home traction unit” for the plaintiff to use at home. She also noted on 24 March 2015 that the plaintiff experienced a slight increase in neck pain with increased work.[25]
[24]PCB 23-27
[25]PCB 26
25 The physiotherapist noted that she had not seen the plaintiff for nearly three years when she wrote her report. She said, however, that on the last occasion she saw the plaintiff that she was “functioning in a general sense quite well with intermittent flare ups being her main concern”[26].
[26]PCB 26
26 The plaintiff continued to see Dr Al-Sharifi until March 2015, when another general practitioner at the same clinic, Dr Ala Alethan, took over her treatment. Dr Alethan provided a medical report dated 31 August 2016.[27] He repeated his diagnosis that he considered that the plaintiff had suffered a disc prolapse in her neck at C5-6 and C6-7. He appears to have aggregated the ongoing symptoms of the plaintiff’s neck and lower back when he referred to her “suffering from severe pain from the above state[d] injuries”, and there he was referring to both the plaintiff’s neck and lower back. The balance of his opinion relevant to the plaintiff’s capacity to work appears to be directed to the plaintiff’s lower back, although, that is not all that clear.[28]
[27]PCB 31-32
[28]PCB 32
27 Dr Alethan provided a report in response to a request from solicitors for the plaintiff. Then provided a further report which is also a response to a request from solicitors for the plaintiff for a medical report.[29] The second is also undated. It is also a response to a request from the solicitors for the plaintiff for a medical report.
[29]PCB 33-35
28 Parts of both medical reports are a repetition of the opinion previously provided by Dr Al-Sharifi. There are a number of observations made by Dr Alethan which do not appear to be strictly correct. At the time he wrote his last report he referred to the plaintiff “suffering from severe pain” and that she was receiving “ongoing regular physiotherapy and analgesics”. The plaintiff did not put her pain in the “severe” category at any time. According to the physiotherapist, she has not received physiotherapy treatment for about three years. According to the plaintiff, she has not used Brufen nor Panadeine Forte since January 2014.
29 In his last report, Dr Alethan repeated the diagnosis made by Dr Al-Sharifi that the plaintiff had suffered disc prolapses in her neck at C5-6 and C6-7, and a disc prolapse in her lower back at L4-5. Like Dr Al-Sharifi, he appears to have aggregated the ongoing symptoms of the plaintiff’s neck and lower back when he referred to the plaintiff needing to avoid heavy lifting and repetitive movements. He then referred specifically to the plaintiff’s lower back and the need for her to be “very careful” when engaging in bending or physical activity, following which he considered that the plaintiff was fit for light duties, referring to her need for a “special work chair” when undertaking work in a seated position.[30]
[30]PCB 38
30 Dr Alethan was asked to consider the consequences to the plaintiff of the injury to her neck on her employment, social, recreational and domestic activities. He answered that broad question in this way, that the plaintiff was “Constantly suffering from Pain which is causing dizziness, headache, nausea vomiting & insomnia”.[31]
[31]PCB 39
31 Dr Alethan referred the plaintiff to a Mr Maarten’s, neurosurgeon, specifically for treatment for her neck injury. The plaintiff did not see him. Dr Alethan then referred the plaintiff to Dr Hamza, rehabilitation pain physician, at a medical organisation known as Advance Healthcare.
32 The plaintiff first saw Dr Hamza on 7 August 2017. He noted the “issues” with the plaintiff were, among other things, a “whiplash associated disorder” and “widespread pain with myofascial components suggested of central sensitisation”. He recommended that she undergo a multidisciplinary approach to deal with the issues.[32]
[32]PCB 40-41
33 Dr Hamza referred the plaintiff to undergo an ultrasound and a bone scan. He considered that the bone scan demonstrated “mild centrally based disc increased uptake at C5-C6 and C6-C7 with no other osteoblastic activities”. He considered that she should have nerve conduction studies undertaken.[33]
[33]PCB 42
34 Dr Hamza wrote to Dr Alethan on 20 November 2017 informing him that the plaintiff “is improving with the pain management program”, and he added that the plaintiff told him “that her widespread pain [was] better by 50% so far.”[34]
[34]PCB 43
35 Advance Healthcare produced a multidisciplinary pain management assessment. This was sent to Dr Alethan under cover of a letter dated 10 August 2017 from Mr Richards, physiotherapist, who is one of the multidisciplinary assessors. The report is very long and not written in the style of a conventional medical report. It appears to me to be more in the style of clinical notes relevant to the clinicians who were part of the assessment.[35]
[35]PCB 44-51, and a differently formatted version signed by Mr Richards at PCB 53-72
36 Under cross-examination, the following history noted in the assessment was put to the plaintiff:
“Several months ago she has changed to working as a cafe worker which she feels is overall a positive change, for 20-30 hours per week doing the following duties:
·Serving customers
·Making sandwiches
·Cleaning tables
·No washing dishes
·Prolonged standing/walking
·Light to moderate handling only (no emptying bins)
·Repetitive and/or sustained forward bending
·Repetitive upper limb activity.
… .”[36]
[36]PCB 45
37 The plaintiff described the hours of work she performed at the café being between 11 and 30 hours per week. At first she disagreed that working at the café was “a positive change”, but later agreed that it was. She also agreed that she was coping with the work, but added that there was always the presence of pain in her neck.[37] The only task which she said she could not perform was lifting heavy rubbish bags.[38]
[37]Transcript 21-22
[38]Transcript 22
38 Mr Richards appears to been impressed by the plaintiff’s capacity to perform work at the café because he used it as something of a yardstick to measure the plaintiff’s functional capacity:
“Ms Bonanno was working as a receptionist full time at the time of the accident and was later made redundant. She has since managed to find new work and was working 10-30 hours in casual café work at the time of discharge. Given this history, it is difficult to be clear as to the impact of the injury on her ability to perform her work. She is currently managing moderately physical work in a café and up to 30 hours some weeks which is positive.”[39]
[39]PCB 72
39 However, relevant to her nonworking activities, he also made the following observations:
“As detailed in the history, Ms Bonanno was active in riding a bicycle to and from work, riding a motorbike for up to 2 hours in the country or on trips of 4-5 days, socialising and dancing mostly on weekends and watching her daughter play sport. At the time of finishing the pain management program, Ms Bonanno had returned to riding her motorbike for up to 1.5 hours, however her tolerances for usual social and recreational activity overall we yet to return to the pre-injury levels.”[40]
[40]PCB 72
The medico-legal opinions
40 Mr Kierce, orthopaedic surgeon, examined the plaintiff on 15 September 2015[41] and 30 May 2017.[42] After examining the plaintiff on 30 May 2017, Mr Kierce observed that the plaintiff continued to suffer from the effects of an aggravation of cervical spondylosis, and that her condition had not altered significantly from the occasion when he first saw her. Therefore, I will concentrate on his examination of the plaintiff on 30 May 2017.
[41]PCB 91-102
[42]Defendant’s Court Book (“DCB”) 22-30. He provided a report at PCB 103-104
41 Mr Kierce recorded that the plaintiff complained that she was suffering from pain which was throbbing, burning and tingling in character; it was constant and intermittently radiated into her left arm; that it was worsening; that it interfered with her sleep every night; that it interfered with her capacity to sit and stand while working, that it was worse in cold weather, and it was stiff in the mornings.[43]
[43]DCB 25
42 Mr Kierce also recorded that the plaintiff had returned to riding a motorcycle, and he recorded that she told him that she had ridden to Lakes Entrance, but wears a soft collar to stabilise her neck when riding. Otherwise she was able to cope with her housework, shopping, cooking, and could drive a car for an hour.[44]
[44]DCB 25
43 After examining the plaintiff and the radiology, he concluded that the radiology demonstrated significant pre-existing cervical spondylosis; that his examination findings were consistent with the plaintiff’s complaints of injury and disability, and that the condition of her neck did not affect her capacity to attend to her activities of daily living or her capacity to perform her normal day-to-day activities.[45] He then offered the following opinion relevant to the plaintiff’s capacity to work:
“It is my opinion that Mrs. Bonanno’s current condition does not affect her work capacity other than she would not be able to be involved in heavy manual work which would involve lifting weights greater than 15 kilograms, … nor would she be fit for any job involving prolonged bending or lifting.”[46]
[45]DCB 28-29
[46]DCB 29
44 The context in which the latter expressed opinion must be seen is Mr Kierce’s understanding that the plaintiff was working at a café, working 15 hours plus per week. Furthermore, that she was having little or no medical treatment except for the use of anti-inflammatory gel every day, presumably on her neck, and one tablet of Nurofen each morning. He considered that the she did not require any further treatment except for self-managed exercise, such as walking and swimming.[47] He considered that her neck condition would make her more vulnerable to further injury, and there was likely to be an acceleration of degenerative changes in her neck.[48]
[47]DCB 29
[48]DCB 29-30
45 Mr Russell Miller, orthopaedic surgeon, examined the plaintiff on 28 September 2016[49] and 22 December 2017.[50] After examining the plaintiff on 22 December 2017, Mr Miller recorded that the plaintiff considered that her symptoms were much the same as when he first examined her. On 22 December 2017, he recorded that the plaintiff’s major complaints were continuing neck pain and discomfort radiating into her shoulders, and in particular, her left shoulder, with pain radiating down into her left arm.[51]
[49]PCB 75-82
[50]PCB 83-90
[51]PCB 85
46 After examining the plaintiff on 22 December 2017, Mr Miller observed that his opinion had not changed from that formulated after he first examined the plaintiff. He considered that she had suffered a musculoligamentous strain to her neck and an aggravation of pre-existing degenerative disease in her neck. He did not consider that the radiation of pain into her left shoulder and arm suggested radiculopathy or a neurological deficit. He described her response to conservative treatment as only moderate, and that her prognosis for her neck was only fair.[52]
[52]PCB 87
47 Mr Miller also recorded that the plaintiff had difficulty driving a car for long distances; difficulty walking long distances; an inability to run; difficulty with heavy domestic and gardening activities, an ability to return to riding a motorcycle “in a very small way”, and an inability to return to gym activities.[53]
[53]PCB 89
48 Mr Miller considered that the plaintiff required ongoing conservative treatment and perhaps additional pain management and rehabilitation. He did not consider that she would develop arthritis, contrary to the opinion of Mr Kierce. In relation to her capacity to work, Mr Miller considered that the plaintiff would have difficulty engaging in work which involved large amounts of repetitive bending, lifting and lifting of weights of more than 10 kilograms. He added that she would need to shift her posture on a regular basis. He noted that she had returned to office work and was able to cope with work in the café.[54]
[54]PCB 88
49 Dr Clayton Thomas, consultant in rehabilitation in pain medicine, examined the plaintiff on 25 January 2018.[55] Dr Thomas recorded that the plaintiff’s main complaint was neck pain and shoulder girdle pain. He recorded that the pain radiated into the back of both shoulder girdles; it was constant; that on a good day it was 3 out of 10 and on a bad day it was 10+ out of 10.[56]
[55]DCB 38-43
[56]DCB 40
50 After examining the plaintiff, Dr Thomas concluded that she had suffered a whiplash and associated disorder. He considered that she had only a mild residual disability resulting from the neck injury. He then noted that the plaintiff was managing her pain “very well” by learning to manage it, and that she had made “the necessary adjustments” presumably to accommodate the pain she was experiencing. He added that she was coping well with her residual symptoms, was independent in her personal, domestic and community activities of daily living, was able to work and had the ability to work full time in an appropriate position.[57]
[57]DCB 42
51 Dr Thomas’ prognosis was for mild residual ongoing neck pain which was unlikely to be progressive and unlikely to worsen over time.[58]
[58]DCB 43 and his report dated 1 March 2018
The claimed consequences
The Plaintiff’s work
52 The plaintiff has worked consistently since the transport accident. She was absent from her work with COASIT for only two days. After having the conservative treatment provided by her general practitioners, physiotherapist and pain management through Advanced Healthcare, she has tolerated the work she has performed without incident.
53 The work with COASIT appears to have been reasonably light office work. The real aspect of the work which created problems for her was working at a computer, and that seems to be so because attention was given to her workstation by the provision of a more ergonomically friendly workstation.
54 The work the plaintiff performed with ITALCARE was probably heavy physical work performed up to 20 hours per week. Again, she coped with that work without incident.
55 The move to the café occurred because she wanted more hours, not necessarily because it was work that was less likely to provoke pain in her neck. The work, in fact, was heavier work. I think it is a fair conclusion that it was heavier, given the description of the work in the report of Advance Healthcare.
56 The new work the plaintiff is performing is factory work which involves the plaintiff standing at a belt doing repetitive packing work. That must involve not only standing, but leaning forward, reaching, and some levels of lifting and carrying. It is work which the plaintiff presently considers she can perform eight hours a day, five days per week.
57 The plaintiff’s complaints that she is disabled by pain do not appear to me to fit with the work she has performed since the transport accident. For example her own subjective assessment of the degree of pain she suffers recorded by Dr Thomas would have it that she sometimes suffers pain at 10+ out of 10.[59] If that were so, it would surely seriously impede the plaintiff from working. Despite suffering pain of that severity, she has not been absent from employment for one day since she returned to work within the week of the transport accident.
[59]DCB 40
Pain
58 The plaintiff was prescribed Panadeine Forte and Brufen for pain relief. She has not used either of those two forms of medication since January 2014.[60] The plaintiff has given different accounts of the medication she is presently taking. In her affidavit sworn 11 May 2017, the plaintiff said that she was taking three or four Panadeine Forte tablets per week. Under cross-examination, she said that was a mistake and that it should have read Panadol.[61] Dr Thomas recorded that the plaintiff told him that she uses Brufen, which is clearly wrong.[62]
[60]Transcript 11
[61]Transcript 13
[62]DCB 39 and Transcript 26-27
59 I am not prepared to conclude that the plaintiff was exaggerating how much medication she has taken and the type of medication she is taking. What is clear, however, is that she is taking over-the-counter medication which she described in her affidavit sworn 14 February 2018 as Nurofen Zavance, Nuromol Panadol and Aspirin 100 milligrams. The plaintiff said she does not like taking stronger medication. She said that the medication she presently uses takes the edge off the pain.[63] Despite the level of the pain the plaintiff described, she has never asked her general practitioner to again prescribe her Panadeine Forte or any other strong analgesic medication. When cross-examined about why she is not asked for stronger medication, she said that she does not want to live on strong medication.[64]
[63]Transcript 24
[64]Transcript 24
60 Under re-examination, the plaintiff was asked about how she is coping with her new job. She said that she takes the medication known as Mersynofen which gets her through her working day, and Panadol at the end of the day. She described her use of this medication in the context of having neck pain while working, which worsens by the end of the working day.[65]
[65]Transcript 52
61 I was referred to Transport Accident Commission v Katanas[66] in which the High Court approved of the statement in Humphries & Anor v Poljak[67] that the narrative test entails a two-stage process: firstly, an assessment of whether the nature and symptoms of the injury and the consequences of the injury are, subjectively for the applicant, “serious”, and secondly, a determination whether the injury as thus assessed is objectively “serious” when compared with the range or “spectrum” of comparable cases.[68]
[66][2017] HCA 2017
[67][1992] 2 VR 129
[68]at paragraph [6]
62 Subjectively, the pain appears to be a consequence which, without anything more, may be quantifiable as “serious”. However, when assessed objectively, I am not persuaded that it is. I accept that the plaintiff probably experiences pain, but I consider that it is tolerable, which is the reason why the plaintiff has been able to work, not require more than conservative treatment, and is able to adjust to function at a reasonable level.
Sleep
63 The plaintiff said that she suffers interference with her sleep two or three times a week because of neck pain. She also said that she finds it difficult to lie on her side, presumably because of neck pain.[69]
[69]PCB 8
64 However, the plaintiff did not say that the interference with her sleep has any other consequences, for example tiredness during the day.
General limitations
65 I have referred to the plaintiff’s general limitations in my analysis of her capacity to work, and there are other references to what she says about general limitations relevant to other activities which I have referred to below.
66 The plaintiff said that she has difficulty with prolonged sitting, and having her neck in a fixed position.[70] That may be so, but that is the sort of posture she adopted in the work with COASIT. It must be recalled that she said that if she had not been made redundant she would still be working there. That must mean that these postural problems are reasonably well tolerated by her.
[70]PCB 8 and 13-14
Domestic activities
67 The plaintiff is able to perform all of her domestic duties around her home. Rather than being unable to engage in any of them, she says that she is restricted in doing some of them. She can vacuum, but does it slowly, with breaks. Her husband does most of the domestic duties around the house. He does most of the shopping.[71]
[71]PCB 4
68 However, whilst the plaintiff says that she was restricted in these respects, she was able to undertake domestic tasks and shopping for clients of ITALCARE as a necessary part of that job.
Personal care
69 The plaintiff now attends a hairdresser more regularly to obtain hair care because is not able to look after her hair, including colouring it, the way she used to.[72] Otherwise she appears to be able to attend to her personal care in all other respects.
[72]PCB 14
Recreational activities
70 The plaintiff owns a Harley Davidson motorcycle. She described riding her motorcycle as her favourite recreation.[73] Previously she rode her motorcycle on weeknights and weekends. She engaged in long rides to places like San Remo, Lakes Entrance and around the Bay (I presume Port Phillip Bay). The longer rides also included riding into country Victoria and New South Wales and being away for some days. She described her enjoyment as being with a group of other riders, enjoying a sense of freedom and exploring through motorcycle riding.[74]
[73]PCB 9
[74]Transcript 39-40 and 45
71 The plaintiff agreed that she is now riding about half as much as she used to.[75] She now wears a soft cervical collar when she rides her motorcycle.[76]
[75]Transcript 39-40
[76]PCB 9, 13 and Transcript 48
72 The plaintiff’s husband took up motorcycle riding after he met the plaintiff. He has observed her to have difficulty riding her motorcycle consistently with the plaintiff’s evidence of that difficulty.[77]
[77]PCB 16
Social activities
73 The plaintiff said that she enjoyed dancing and going to bars and clubs. She did that with girlfriends. She now avoids doing it. It was something she did weekly.[78] She continues to go out and socialise with friends, for example going out to dinner with them. These are activities which she enjoys.[79]
[78]PCB 8-9 and Transcript 51
[79]Transcript 39
The Plaintiff’s marriage
74 The plaintiff said that one of the significant impacts of her neck injury is the interference with her marital relationship with her husband. She has suffered a loss of libido. Her husband referred to that in his affidavit, describing it as causing interference with their intimate relationship and in turn, the quality of their relationship.[80]
[80]PCB 13, 16
75 The plaintiff’s evidence, and that of her husband, is not that their intimate relationship has ceased, but that there is a significant impact upon it by the consequences of the plaintiff’s neck injury.
Are the consequences “serious”?
76 The foregoing breakdown of the consequences which the plaintiff says amount to serious injury are a summary of the plaintiff’s evidence, and not intended to be a complete digest of her evidence in that respect.
77 The seriousness of an injury arising out of the transport accident is to be judged by reference to the consequences relating to both pecuniary disadvantage and/or pain and suffering.[81] The plaintiff does not contend that she has suffered any pecuniary disadvantage. No evidence was adduced to demonstrate that the wages she earns from her present employment is less than what she was earning in any of the other forms of employment which I have referred to. No evidence was adduced to demonstrate that she is incapacitated in any way in her new job.
[81]Humphries & Anor v Poljak [1992] 2 VR 129
78 The process of reasoning requires me to judge the plaintiff’s claimed consequences by comparison to other cases in the range of possible impairments or losses. The task of doing so is imprecise and impressionistic.[82]
[82]Humphries (ibid); Abbas v Transport Accident Commission [2015] VSCA 217, and Transport Accident Commission v Zepic [2013] VSCA 232
79 After taking into account the whole of the evidence, I am not satisfied that the plaintiff’s claimed consequences are “serious”.
80 I am not persuaded that the pain which the plaintiff claims she suffers is as significant as she has portrayed. The basis for that conclusion is the fact that the plaintiff has been able to work, despite being troubled by neck pain. Furthermore, she is now working on a packing line in full-time employment which objectively demonstrates that she has no incapacity for work, or if she does, it is modest.
81 I accept that the plaintiff suffers a range of general limitations due to the impairment of the function of her neck, but I do not accept that they are significant. The fact that she is able to engage in work, some domestic activities, some level of personal care, some level of social activities, some level of motorcycle riding, and otherwise has a reasonably full and worthwhile daily existence, militate against a finding that those general limitations are modest.
82 There are many authorities which refer to interference with sleep as a significant consequence. Interruption with sleep two or three times per week without anything more suggests that the interference is modest.
83 The plaintiff is able to engage in general social activities. It is her inability to go dancing weekly with her girlfriends which she contends is significant. I accept that dancing, and I assume that it is probably somewhat vigorous, causes her a problem with her neck. I accept that she no longer goes dancing. This is undoubtedly a matter of significance.
84 I accept that the plaintiff has difficulty riding her motorcycle. I accept that she wears a soft cervical collar when she does so. I accept that longer rides are difficult, and that it is her preference not to go on longer rides. However, she agreed that she has returned to about 50 per cent of her former level of riding.
85 I accept the plaintiff’s evidence that she has suffered significant interference with her intimate relationship with her husband. An intimate relationship is undoubtedly central to a marriage. However, neither the plaintiff nor her husband say that the intimate relationship is entirely lost to them.
86 On the basis of my reasonably lengthy analysis of the evidence, and in particular, the plaintiff’s evidence, I am not satisfied that she has suffered any pecuniary disadvantage and is unlikely to suffer any for the foreseeable future. I am not satisfied that the claimed consequences which I accept are more than moderate.
87 Therefore, my impression is that the plaintiff’s neck injury and the extent to which it impairs the function of her neck, is not serious when judged by comparison to other cases in the range of possible impairments and losses, and therefore, cannot be fairly described as “serious”.
88 I order that the plaintiff’s Originating Motion be dismissed.
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