Bozkurt v Transport Accident Commission
[2017] VCC 91
•17 February 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-13-02618
| NERIMAN BOZKURT | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 and 31 January 2017 | |
DATE OF JUDGMENT: | 17 February 2017 | |
CASE MAY BE CITED AS: | Bozkurt v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 91 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – impairment to cervical spine and lumbar spine – whether the consequences are “serious” – psychological reaction to physical injury
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Richards v Wylie (2000) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129; Petkovski v Galletti (1994) 1 VR 436
Judgment: Application for serious injury in respect of the cervical and lumbar spine granted. The psychiatric injury application is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin SC with Mr A D Newman | Maurice Blackburn |
| For the Defendant | Mr A J Moulds QC with Mr A Anderson | Wisewould Mahony Lawyers |
HIS HONOUR:
1 This proceeding is an application brought by Originating Motion dated 23 May 2013[1]. In that application, the plaintiff applied for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 28 December 2006[2] (“the said date”).
[1]PCB 2
[2]PCB 7
2 Section 93(6) of the Act provides a court must not give leave under s93(4)(d) unless it is satisfied that the injury is a “serious injury”.
3 At the commencement of this proceeding, the plaintiff sought serious injury certification for both loss of body function to her spine and a psychiatric injury certificate. At the very end of Senior Counsel’s submissions on behalf of the plaintiff, Mr Tobin SC abandoned the application under Part (c) of the section seeking to establish psychiatric injury.[3] Consequently, the plaintiff relies upon the definition of “serious injury” set out in s93(17):
“(a) serious long-term impairment or loss of a body function.”
[3]Transcript (“T”) 169
4 The loss of body function the plaintiff relies upon is to her spine.
5 In this particular case, the plaintiff had previously suffered injury to her neck and lumbar spine in a transport accident in 1981. The plaintiff was required to establish that the aggravation of her injury on 28 December 2006 amounted to a “serious injury” under the legislation. That requires the Court in this case, to make an analysis of the extent of the impairment of body function before and after the relevant injury from the accident in 2006. It is the additional impairment that has to satisfy the serious long-term impairment of the body function to the plaintiff’s spine in this case.
6 The serious injury to the plaintiff’s spine as defined under s93(17)(a) can have its seriousness measured in part by a mental response to the physical impairment to the plaintiff’s spine. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of an impairment of the body function.[4]
[4]Richards v Wylie (2000) 1 VR 79
7 In forming the judgment as to whether the consequences and the injury are “serious”, the question to be asked is: can the injury – or in this case, the aggravation of the injury – when judged by a comparison with other cases in the range of possible impairments, be fairly described as “at least ‘very considerable’” and certainly “more than ‘significant’ or ‘marked’”?[5]
[5] Humphries & Anor v Poljak [1992] 2 VR 129
8 In this proceeding, the only witness to give evidence and to be cross-examined was the plaintiff. The plaintiff relied upon five affidavits, sworn on 12 November 2012, 24 November 2014, 28 November 2014, 23 December 2016 and 20 January 2017. The plaintiff also relied upon affidavits from her former husband, Engin Bozkurt, sworn on 12 September 2014, and from her daughter, Basak Bozkurt, sworn on 25 January 2017. Neither of these witnesses were required for cross-examination by the defendant.
9 In addition to the sworn affidavits and the evidence given by the plaintiff, both parties relied upon medical reports and other material tendered during the course of the proceeding. I have read all of the tendered medical material in this case.
10 The tendered evidence in this proceeding was as follows:
· Exhibit P1 – Plaintiff’s Court Book (“PCB”) pages 7 – 127, 131 – 232
· Exhibit P2 – Plaintiff’s completed Claim Form to the Transport Accident Commission dated 16 October 2007
· Exhibit D1 – Defendant’s Court Book (“DCB”) pages 1 – 41(i), 65 – 69, 106 – 114, 129, 131 – 137, 142(a) – 142(e), 143(a)-143(n), 143-145, 150-154
· Exhibit D2 – Statement of the plaintiff to the Transport Accident Commission investigator dated 9 August 2007.
11 The issues in the proceeding were identified by the parties as follows:
(a) The plaintiff relied upon the injury and loss of body function to the spine including her cervical and lumbar spine. This issue included whether the aggravation as a result of the 2006 transport accident met the statutory definition of “serious injury”;
(b) The defendant relied upon the significant pre-existing spinal condition that the plaintiff was suffering prior to the transport accident in 2006;
(c) The defendant identified that the plaintiff consistently understated her condition prior to the relevant transport accident to the medical practitioners she consulted after the 2006 transport accident; and
(d) The credit of the plaintiff was in issue.
12 The assessment of the plaintiff’s condition must be conducted as at the date of the hearing and the plaintiff has the onus of proof of establishing that the seriousness of the injury is for the foreseeable future.
The Plaintiff’s background
13 The plaintiff was born in 1960 in Turkey. She is now fifty-six years of age.
14 The plaintiff migrated to Australia in 1969 and is currently single. She has three adult children. She lives with her youngest child, Basak Bozkurt.
15 The plaintiff was educated to Year 9 at Richmond Girls’ High School.[6]
[6]PCB 7
16 The plaintiff’s work history is one of working in clothing factories, followed by a period of employment with Repco between 1981 and 1984.[7] In 1984, the plaintiff divorced her first husband and she returned to Turkey for a period of two-and-a-half years. The plaintiff then returned to Australia in 1987 and subsequently, worked at Minstrel Goldair and then Rimmer Lighting until 1993. The plaintiff was not in paid employment between 1993 and 2000. From approximately 2000 to 2006, the plaintiff conducted a bakery and café business in partnership with her second husband. In the latter part of 2006, shortly prior to the transport accident the subject of this application, the plaintiff was interviewed for a job at Tek Enterprises. The plaintiff, after the transport accident, commenced work on 28 January 2007 at Tek Enterprises and was unable to continue on her first day of work.[8] The plaintiff has not worked in paid employment since that date.
[7]PCB 8
[8]PCB 8
The transport accident
17 The plaintiff gave evidence that on 28 December 2006, whilst driving in Dalton Road in Lalor, she entered the roundabout near the intersection with Settlement Road. Her husband at that time was in the front passenger seat of the vehicle driven by her. As the plaintiff was exiting the roundabout at Dalton Road, another vehicle entered the roundabout from her right-hand-side, failed to give way and collided with the plaintiff’s vehicle. The driver of the other vehicle tried to abscond and left the scene without exchanging names and addresses.
18 In this proceeding, there is no dispute that on the said date a transport accident occurred involving the plaintiff.
19 The plaintiff completed a Claim Form dated 16 October 2007.[9] In that Claim Form, the plaintiff, relevantly, had disclosed in part 22 of the Claim Form that she had required both chiropractic and hospital treatment in the previous five years relating to injuries that she had suffered. In part 23 of the Claim Form, she nominated the prior conditions of low-back condition and pain, neck condition or pain and migraine or similar episodic headaches, combined with psychological and psychiatric condition.
[9]Exhibit P2
20 In part 24 of the Claim Form, the plaintiff described the treatment of physiotherapy for both lower back pain and neck pain in the period before the relevant transport accident. The plaintiff had clearly advised the defendant in this case that she had pre-existing injuries to her neck and low back in this Claim Form.
Medical treatment of the Plaintiff following the transport accident
21 Immediately following the transport accident, the plaintiff was not attended by ambulance, nor did she attend hospital. On 29 December 2006, the day after the accident, the plaintiff attended upon her general practitioner, Dr Maccar.[10] Dr Maccar’s initial treatment involved a prescription of medication for pain relief, referral to physiotherapy for five sessions[11] and subsequently, CT scans of the cervical spine and lumbar spine.[12] The plaintiff was also referred to the Austin Hospital Orthopaedic Department but she was told that surgery was not indicated for her condition.[13]
[10]PCB 10 and 41
[11]PCB 43
[12]PCB 45 and 46
[13]PCB 10
22 The plaintiff gave evidence, and I accept her evidence, that she was dissatisfied with her treatment by Dr Maccar and decided to change her general practitioner. During the course of her evidence, the plaintiff was cross-examined about changing her general practitioner and, in particular, that he, Dr Maccar, had not been prescribing pain-relieving medication after March of 2007. The following evidence was given by the plaintiff:
Q:“And in late 2008, the last entry here that is meaningful is 18 December 2008 from Dr Maccar - it must be about that time that you swapped GPs. Would that be right?‑‑‑
A:Probably.
Q:You see, you have not been prescribed by Dr Maccar any painkilling medication so far as I can see from 28 March 2007 until the last time you saw him ‑ ‑ ‑?‑‑‑
A:Okay.
Q:‑ ‑ ‑ in December 2008?‑‑‑
A:That’s right.
Q:And is it your evidence to His Honour that over that period of time, you were constantly complaining of pain that you couldn't stand anymore?‑‑‑
A:Yes.
Q:Well, I suggest to you that's just nonsense, madam. No such thing happened?‑‑‑
A:I was complaining to him. He wasn’t giving me anything. That’s why I have changed my doctor.”[14]
[14]T54, L14 – 27
Dr Nettleton
23 The plaintiff then attended Dr Nettleton, general practitioner, from 16 December 2008 until the present time.[15] On 5 January 2009, Dr Nettleton organised a CT scan of the plaintiff’s lumbosacral spine. When he reviewed the plaintiff on 12 January 2009, he prescribed Lexapro, an antidepressant, for her lowered mood and symptoms of anxiety. He also prescribed Panadeine Forte for pain relief.[16]
[15]PCB 47
[16]PCB 48
24 Dr Nettleton subsequently prescribed the plaintiff with a transdermal narcotic patch of Norspan, 5 milligrams, to try and relieve the chronic pain from her neck and low back, together with a neuropathic pain modulator, Lyrica, 75 milligrams, and an anti-spasmodic muscle relaxant Baclofen, 10 milligrams.[17] Dr Nettleton also referred the plaintiff to Dr Brendan Holwill, a psychiatrist, to assist with her symptoms of anxiety and depression arising from her response to the physical injuries in the transport accident.
[17]PCB 48
25 In December 2009, Dr Nettleton arranged for an MRI scan of the plaintiff’s back to be performed. He referred the plaintiff to Mr Peter Wilde, orthopaedic surgeon.[18] Dr Nettleton took a persistent and consistent history from the plaintiff that she had ongoing neck and low-back pain, and in March 2010, he increased the dose of Norspan patches to 10 milligrams.[19]
[18]PCB 49
[19]PCB 49
26 The plaintiff continues to use Norspan patches, 10 milligrams, and intermittently, Panadeine Forte up to three times per day for pain relief. The plaintiff is also prescribed Cipramil, an anti-depressant drug, for her diagnosed Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. The plaintiff also receives psychological counselling from Mr Clive Smee, psychologist.
27 The plaintiff is receiving constant treatment from Dr Nettleton, having attended him between 2010 and 2012 on a monthly basis.[20] Dr Nettleton reported that the plaintiff had attended his practice on twenty-eight occasions from December 2014 to December 2016.[21]
[20]PCB 51
[21]PCB 57
28 In his report dated 17 January 2017, Dr Nettleton states:
“Symptoms from these injuries continue unabated, notwithstanding her ongoing conservative treatment program including narcotic analgesics.
From her cervical spine strain she suffers constant neck pain and headaches with pain radiating to both her shoulders and she exhibits a reduced range of movement of her cervical spine with pain increased on movement. … In relation to her back injury she suffers almost constantly from low back pain, with pain radiating into her left buttock and leg and at times to the left second and third toes, an L5 dermatome distribution. She exhibits a reduced range of movement of her lumbosacral spine along with straight leg raising … .”[22]
[22]PCB 57 – 58
Mr Peter Wilde, orthopaedic surgeon
29 Mr Peter Wilde prepared a report dated 18 June 2012 in respect of this application. Mr Wilde’s report appeared between pages 88 and 92 of the Plaintiff Court Book.
30 Mr Wilde recorded a history as follows:
“She told me that she was in a car accident on 28/12/2006 in which she sustained significant injury to her neck and low back. Prior to this injury she did have back pain and neck pain from time to time but it was not very severe.”[23]
[23]PCB 89
31 On the day that the plaintiff attended Mr Wilde, 2 February 2010, he noted:
“… her symptoms were significant pain on both sides of her neck and into both shoulders, pain on the sides of her legs (the right worse than the left), burning and pins and needles in her feet and toes. … .”[24]
[24]PCB 89
32 Mr Wilde diagnosed the plaintiff as suffering from lumbar spondylosis without radiculopathy and cervical spondylosis without radiculopathy. He opined that:
“… It is likely that there was a degree of asymptomatic degenerative disc disease prior to this injury; however, the accident caused further internal disc derangement thus precipitating symptoms.”[25]
[25]PCB 91
33 Mr Wilde noted that the plaintiff was of anxious personality so, in his opinion, psychological factors were amplifying the stated symptoms of neck and low-back pain.[26]
[26]PCB 92
34 Mr Wilde had a history from the plaintiff of the previous intermittent neck and back pain problems the plaintiff was suffering from but formed the opinion in 2010 that she had suffered significant aggravation of a pre-existing condition to her spine.
Mr Andrew Hardidge, Director of Orthopaedic Surgery at Austin Health
35 Mr Hardidge prepared a report dated 14 July 2016.
36 In that report, Mr Hardidge noted, on the day of the review, 14 July 2016, as follows:
“As you are aware, she is a 58-year-old lady who presents with a long history of back, neck and left leg pain. A lot of this has worsened since a car accident in 2006.”[27]
[27]PCB 133
37 Mr Hardidge organised an MRI scan of the plaintiff’s lumbar spine after this review.
38 The plaintiff had been treated at Back Focus Physiotherapy prior to the transport accident relevant to this application. In his report dated 9 February 2010, Mr Wes Bishop, physiotherapist, noted that the plaintiff had received a course of physiotherapy between 26 May 2006 and 23 June 2006 which included a total of five sessions. He noted that the plaintiff had responded well to that treatment and had suffered a significant aggravation following her car accident in December 2006 which he had previously outlined in his report.[28]
[28]PCB 118(b)
Mr Rodney Simm, orthopaedic surgeon
39 Mr Simm prepared four medico-legal reports dated 26 May 2010, 29 October 2014, 29 July 2015 and 13 September 2016.
40 It is clear from Mr Simm’s report of September 2016 that the plaintiff had not given him a full and detailed history of her pre-accident neck and back condition. He noted that the plaintiff had referred to it in her affidavit sworn in 2012 but that she had a poor recollection of previous neck and back pain.[29]
[29]PCB 161
41 Mr Simm’s diagnosis was soft-tissue injury to the cervical spine with unresolved aggravation of pre-existing cervical symptoms. He also diagnosed the plaintiff as suffering from a soft-tissue injury to the lumbar spine with unresolved aggravation of pre-existing lumbar back pain. In his opinion, the plaintiff’s clinical course had features of a Chronic Pain Syndrome which was associated with severe emotional disturbance. Mr Simm stated that the left knee complaint made by the plaintiff had nothing to do with the transport accident.
42 Mr Simm’s opinion was that the plaintiff was incapacitated on a permanent basis from any work of a physical nature.[30]
[30]PCB 165
43 Despite Mr Simm not being given a full and detailed history of the pre-transport accident symptoms, he stated as follows:
“… Therefore, although your client is clearly much worse than she was with relation to chronic neck and back pain after the subject accident in 2006, I am not able to translate this into an increase in her impairment.”[31]
[31]PCB 167
44 The plaintiff had undergone treatment at a ten-week program at the Spinal Management Clinic Victoria in 2013.[32] The plaintiff’s condition in relation to pain treatment continues under her general practitioner, Dr Nettleton.
[32]PCB 55 and 143
Dr Peter Blombery, consultant vascular physician
45 Dr Blombery prepared a report dated 5 October 2014 for the purposes of this application.
46 Dr Blombery took a history from the plaintiff of a previous motor vehicle accident in 1981. After that, he noted that the plaintiff had suffered back problems but she said that she had fully recovered from those at the time of her accident in 2006. Dr Blombery diagnosed the plaintiff as suffering a whiplash injury and previous asymptomatic degenerative changes in the cervical spine and the lumbar spine which have been rendered symptomatic by the motor vehicle accident on the said date.[33]
[33]PCB 214
Mr David Brownbill, consultant neurosurgeon
47 Mr Brownbill prepared two reports dated 3 August 2016 and 16 January 2017 for the purposes of this application. Mr Brownbill did not obtain a full history from the plaintiff as to her pre-transport accident symptoms.
48 In his latest report, Mr Brownbill notes as follows:
“The history provided by this lady during the interview of the 3rd August 2016 (and the details of the Affidavit of the 12th November 2012) indicated there had not been any previous ongoing neck or back pain before the accident of the 28th December 2006.
However on the documented information provided by you and included with your letter of the 22nd December 2016 (including the report of Mr. Bishop and the referral to file material provided to Mr. Simm before his examination of July 2015 which he noted ‘indicated there was restricted movement of the neck and back prior to the transport accident of 2006’) shows that there has been some ongoing clinical reduction of function of this lady’s neck and lower back before the accident of 2006.”[34]
[34]PCB 227
49 Mr Brownbill’s opinion however was as follows:
“Following review of the history provided on the 3rd August 2016 and of the documentation provided with your letter of the 22nd December 2016 I consider this lady on the balance of probabilities sustained an aggravation of degenerative changes to her lower back and neck as a result of the transport accident of the 28th December 2006 with increased pain and reduced physical capacity.”[35]
[35]PCB 228
Medical opinions tendered on behalf of the Defendant
Dr David Elder, consultant in the specialty of occupational and environmental medicine
50 Dr Elder prepared two medical reports on behalf of the Transport Accident Commission dated 17 May 2010 and 19 March 2013.
51 Dr Elder was of the opinion that the plaintiff did not suffer from any organic physical pathology. Whilst he noted that the plaintiff continued to be prescribed Norspan patches and Panadeine Forte, he was of the opinion that there was no indication for the prescription of long-term opioid medication for the plaintiff. In his opinion, the plaintiff was had a full capacity for work.
Mr Peter Dohrmann, neurosurgeon
52 Mr Dohrmann prepared three reports dated 15 November 2013, 11 November 2014 and 16 October 2015 on behalf of the Transport Accident Commission.
53 In his initial report, Mr Dohrmann stated that the plaintiff had said to him that she did not have any back or neck problems prior to 2006.
“It remains my view that Ms Bozkurt is suffering from a chronic pain syndrome, comprising chronic neck pain and chronic back pain, with non-specific referred upper and lower limb pain, in a setting of degenerative change in both her cervical and lumbar spine.
It remains my view that psychological factors are likely to be significant in the contribution they are making to Ms Bozkurt’s overall level of claimed functional capacity and I continue to suspect that pain has been magnified by psychological factors.”[36]
[36]DCB 41(f)
54 Mr Dohrmann’s opinion was that this symptomology was likely to continue for the foreseeable future.
55 Mr Dohrmann stated that, from a purely medical and physical perspective, he continued to consider that the plaintiff would be capable of light physical work on a part-time basis, say four hours per day, four days per week, without considering whether or not such work is realistically available.[37]
[37]DCB 41(g)
Professor Howard Eddey, Professor of surgery
56 Professor Eddey prepared a report dated 20 May 1983. This report was prepared in respect of the original claim made by the plaintiff in respect of the 1981 transport accident. The import of this particular report in this proceeding for the 2006 transport accident is the consistent indication that the plaintiff is overly focussed on her symptoms of pain back in 1983 and now, in 2017. Otherwise the report of Professor Eddey is of little assistance to the Court in determining the serious injury application by the plaintiff in respect of the 2006 transport accident.
Credit of the Plaintiff
57 Mr Moulds QC, on behalf of the defendant, attacked the plaintiff’s credit on the basis that she had not given a full and accurate history to medical practitioners when she was examined by them for the purposes of either treatment or reporting in this case. The thrust of the cross-examination also was directed to the plaintiff’s affidavits which understated the level of treatment and symptoms that the plaintiff had been suffering from in relation to her neck and back, as well as her psychiatric and psychological conditions prior to the accident in 2006.
58 In particular, the plaintiff had not given a history in relation to the psychiatric issues she was suffering in 1988.[38] The plaintiff did not give a history of a right shoulder pain symptom in October 1989.[39]
[38]T32 and 33
[39]T33
59 In May of 1995, the plaintiff dislocated her left shoulder but did not mention that fact in her affidavit material.[40] More relevantly, the plaintiff suffered from low-back pain with difficulty in movement in May of 1996. She did not give a history or swear to that symptom in her affidavit material.[41]
[40]T33
[41]T33 and 34
60 In the period of September and October of 1997, the plaintiff attended upon her general practitioner in respect of right-sided sciatica and lumbar spine pain. This resulted in a CT scan of her lumbar spine. The plaintiff did not make mention to medical practitioners or in her affidavit material in respect to these attendances on the doctors.[42]
[42]T34 and 35
61 In March of 1998, the plaintiff was involved in an accident where she was in a motor vehicle which was struck from behind. She attended Dr Munir, her general practitioner at that time. The plaintiff did not refer to that history in the medical notes or in her affidavit material.[43]
[43]T35
62 In December of 2001, the plaintiff attended for pain in her right leg with right-sided sciatica. Again, this history was not set out in her affidavit material or to the medical practitioners.[44]
[44]T35
63 In March of 2002, the plaintiff attended upon Dr Munir for back pain. The plaintiff did not set this out in her affidavit material or in the history to the doctors specifically.[45]
[45]T35 and 36
64 In July of 2002 and July of 2003, the plaintiff had radiological reporting in respect of her lower back and neck respectively. The plaintiff did not set out fully that history to the doctors or refer to it in her affidavits.[46]
[46]T36
65 In March of 2004, the plaintiff had an x-ray or her neck upon complaints of pain radiating into her right arm and shoulder. The plaintiff did not set out that history to the reporting medical practitioners.
66 In October of 2004, the plaintiff attended upon her general practitioner complaining of back pain for one week. Mr Moulds QC appropriately conceded that the reference to that back pain may be related to an epidural which the plaintiff received in September of 2004 relating to surgery for varicose veins.
67 The most significant omission in the history by the plaintiff was the treatment that she received in May to June of 2006 from her general practitioner and a referral to the physiotherapist, Mr Bishop.
68 In the course of her evidence, the plaintiff conceded that she had either forgotten to tell doctors about her previous symptoms in relation to her neck and back or, alternatively, had given a history to doctors about those symptoms. I have previously noted in these reasons where the plaintiff had openly described having intermittent symptoms to her neck and lower back to various treating doctors that she has consulted and were part of the evidence in this application.
69 I accept that the plaintiff is a witness of truth and is a reliable witness in relation to her current symptoms and treatment. It is understandable that a plaintiff who has had a long history [from 1981 through to the present time], of symptoms to her neck and back, that the intermittent nature of the symptoms prior to the 2006 accident pale into insignificance compared to her more recent symptomology arising from the 2006 accident. The position is further complicated by the fact that she has had a secondary reaction to her pain to her neck and back as a result of the 2006 accident which has been diagnosed as an Adjustment Disorder with Mixed Anxiety and Depression.
70 In the course of her cross-examination by Mr Moulds QC the plaintiff’s answer about her reason for changing her general practitioner from Dr Maccar to Dr Nettleton[47] were a clear example of the plaintiff’s frankness. I accept the plaintiff as a witness who is reliable in respect of her current symptoms and consequences arising from the accident in 2006.
[47]T 54
The consequences for the Plaintiff arising from the transport accident on the said date
71 The plaintiff set out in her various affidavits, and was supported by her daughter and former husband, the consequences for her of the 2006 transport accident. The plaintiff has consistently been treated by medical practitioners including psychiatrists since the time of the transport accident to the current time. The consequences of significance in respect of this application are as follows:
Pain
72 The plaintiff complains of pain both in her neck and lower back. This pain has increased in its severity since the time of the transport accident relevant to this application. The plaintiff conceded that prior to the transport accident, she had suffered from intermittent flare-ups of pain to her neck and back prior to the accident. The assessment of pain which now affects the plaintiff is to be viewed in the light of her complaints to her treating doctors and the limitations that pain has upon her.
73 The plaintiff’s pain has been managed by her medical practitioners prescribing both Norspan patches, increasing from 5 milligrams to currently 10 milligrams. The plaintiff supplements this opioid treatment for pain with the ingestion of Panadeine Forte tablets which are also prescribed for her by her general practitioner. I assess that the increase or aggravation in the pain level suffered by the plaintiff as a result of the transport accident is a very considerable consequence for her.
Medication
74 I have previously referred to the medication the plaintiff currently has been prescribed for the management of her pain levels. She is also prescribed medication for the amelioration of her psychological reaction to the consequences of the transport accident to her. The fact that the plaintiff now requires constant pain-relieving medication is a very considerable consequence for the plaintiff. The ingestion and/or application of opioid pain-relieving medication is very significant. This treatment has been ongoing and is predicted by her medical practitioners to continue to be the case for the foreseeable future. The amount of the medication has increased over the period of time from the transport accident until the present time.
Sleep
75 The plaintiff, in her affidavits, sets out that her sleep is interrupted due to the increased levels of pain she now suffers. I accept that is the case. I note in the evidence and in the medical material tendered in this case, that the plaintiff has previously had difficulties with sleeping. These sleeping difficulties are interwoven with the plaintiff’s long-term psychiatric and psychological condition. It is difficult to disentangle the impact of her longstanding psychiatric and psychological condition from prior to the transport accident to the current time on her sleeping patterns. Whilst I accept that her sleeping patterns have been further interrupted by the transport accident, I am unable to determine whether that consequence has been of such a level that it meets the very considerable test in this case.
Sport
76 The plaintiff, in her evidence, stated that she no longer can go ten-pin bowling or swimming as a result of the accident. I accept that the plaintiff has had her sporting activities limited as a result of the injury to her neck and lower back received in the transport accident. I assess this inability of the plaintiff to engage in her sporting activities as a very considerable consequence for her. I note however that she has been able to continue with her social outings with the Turkish community group despite her pain and changes to mobility as a result of the neck and back injuries.
Ongoing medical treatment
77 The plaintiff continues to be treated for pain management in a conservative manner by her general practitioner, Dr Nettleton. The fact that the plaintiff has to continue attending upon and being medicated for pain relief is a very considerable consequence for the plaintiff. The need for a person to continue to see their general practitioner on a regular basis for such treatment is a very considerable consequence.
Activities of daily living
78 The plaintiff gave evidence that she is able to do most of her activities of daily living, including the house duties of cooking et cetera. The main reduction in her ability to perform house cleaning activities relates to the vacuuming of the house. The plaintiff currently lives with her youngest adult daughter, who performs the vacuuming tasks in the house. I do not consider that the inability to use a vacuum cleaner is a very considerable consequence in the setting of this case.
Conclusion
79 In a proper analysis of the consequences of the transport accident for the plaintiff, I am satisfied, on the balance of probabilities, that the consequences that have occurred as a result of the aggravation to the plaintiff’s neck and low back are “very considerable” as set out in these reasons.
Work
80 The plaintiff, in her application, claimed that she was unable to work as a result of the injuries to her neck and back and with the increased impact upon her mobility and pain. In this case, the plaintiff gave evidence that prior to the transport accident, she had been interviewed and granted the job at Tek Enterprises. After the accident, the plaintiff attended on 28 January 2007 for a short time but was unable to continue with her work at Tek Enterprises. She has not worked since. The plaintiff’s claim is that she was unable to perform the tasks required of her at Tek Enterprises. She also maintains in her evidence that she is unable to do any work.
81 In her statement to the Transport Accident Commission investigators dated 9 August 2007, the plaintiff set out that she was interviewed face to face by a person by the name of Lin Baycan. Aylin Baycan is in fact the plaintiff’s eldest daughter. The plaintiff gave evidence that she had been estranged from her eldest daughter, Aylin Baycan, and was surprised to be interviewed by her for the job. The plaintiff gave evidence that she had been told by her daughter not to disclose to Tek Enterprises that they were related.
82 The explanation given by the plaintiff in her evidence about keeping the relationship between the person who gave her the job at Tek Enterprises and herself secret was at best curious. Overall however, I accept that the plaintiff and Lin Baycan did have a strained relationship and that in considering the plaintiff’s credibility or her ability to work is not directly affected by the fact that she did not disclose the relationship between the two of them.
83 The medical evidence in this case is divided on whether or not the plaintiff has an ability to perform some part-time work. For the purposes of this application, I do not have to determine whether the plaintiff is able to perform full-time work. I accept that she is able to perform some part-time work but the work would limit her remuneration by virtue of her persistent pain symptoms and the level of her medication to control her pain.
Conclusion
84 In conclusion, I find that the plaintiff has satisfied the test that the aggravation of the symptoms and consequences of pain and suffering to her as a result of the transport accident are “very considerable” and “more than ‘significant’ or ‘marked’”. I find this to be the case, based on the evidence that the plaintiff had previously been suffering intermittent cervical and low-back pain but now has become constant and debilitating pain to her cervical and lumbar spine. I accept that these consequences are for the foreseeable future and that her treating medical practitioners are assisting her with ongoing treatment.
85 The application for serious injury by the plaintiff in respect of impairment to her spine is granted.
86 The application by the plaintiff in respect of the psychiatric injury is dismissed.
87 I will hear the parties on costs.
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