Brennan v TAC
[2019] VCC 953
•28 June 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-14-03678
| LILLIAN CARMEN BRENNAN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 & 26 March 2019 | |
DATE OF JUDGMENT: | 28 June 2019 | |
CASE MAY BE CITED AS: | Brennan v TAC | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 953 | |
REASONS FOR JUDGMENT
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Catchwords: Transport Accident Act 1986 – s93(17) – plaintiff driver of a vehicle involved in an intersectional collision where other vehicle came through a red light – alleged injury to plaintiff’s spine, and in particular cervical spine, as well as mental injury – plaintiff had previous workplace accident almost 14 years earlier and involving low back and neck – extremely large amount of medical material – plaintiff on disability pension because of consequences of workplace accident at time of transport accident – reliability of plaintiff as an historian – whether sufficient alteration or aggravation of existing symptoms resulted from transport accident – whether identifiable consequences of transport accident sufficient to satisfy statutory test – enormous amount of medical material placed in evidence – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Meldrum QC with Ms N Crowe | Slater & Gordon |
| For the Defendant | Mr P Elliott QC with Ms A Wood | Solicitor to the Transport Accident Commission |
HIS HONOUR:
General background
1 This matter comes before me by way of an application pursuant to s93(4)(d) of the Transport Accident Act 1986, (hereinafter referred to as “the Act”). In bringing her application, the plaintiff relies upon paragraphs (a) and (c) of the definition of “serious injury” found in s93(17) of the Act. The test to be applied is that to be found in Humphries & Anor v Poljak [1992] 2 VR 129.
2 In essence, the plaintiff relies upon injuries sustained when she was the driver of a vehicle involved in an intersectional collision in Deer Park on 23 June 2011. Her assertion is that the vehicle which struck hers came through a red light and was allegedly a stolen vehicle being pursued by the police. In any event, what occurred shall hereinafter be referred to as “the transport accident”. There was no challenge of substance in relation to the occurrence or circumstances of the transport accident. In relation to the injuries on which reliance is placed, these were described as being the exacerbation of injuries to the spine, principally in relation to the neck, and increased depression. These shall hereinafter be referred to as “the spinal injury” and “the mental injury”. In relation to the plaintiff’s reliance upon them, I would refer to Transcript (hereinafter referred to as “T”) 7.
3 There was very considerable concentration upon a previous workplace injury suffered by the plaintiff on approximately 13 October 1997, when she slipped and fell, injuring her spine. This shall hereinafter be referred to as “the workplace accident”. The plaintiff was also involved in two earlier transport accidents, one being in approximately April 2008 and the other in May 2010. No great emphasis was placed upon these prior accidents and they shall not be discussed further.
4 Mr R Meldrum QC with Ms N Crowe of counsel appeared on behalf of the plaintiff. Mr P Elliott QC with Ms A Wood of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of four affidavits as being true and correct, and was cross-examined. Oral evidence was also adduced from Mr Matthew Brennan, the plaintiff’s son; Ms Lisa Brennan, the daughter of the plaintiff; and Ms Cheryl Hopes, a friend of the plaintiff. Each adopted affidavits as being true and correct and was cross-examined. The remainder of the evidence was documentary in nature and was tendered either by consent or without opposition.
5 It should be added that an enormous amount of medical material was placed before me. There were in excess of 90 medical reports as such. There were some 77 pages of extracts from the clinical records of the general practitioners and staff at the medical centre which the plaintiff has been attending. There were 100 pages of material from the Department of Human Services, the Barbara Walker Centre and what could be described as the Western Health Chronic Pain Clinic. There were in excess of 20 pages of radiology reports. I appreciate that an important, if not central, issue in this case involved a comparison of the plaintiff’s health, restrictions and activities before and after the transport accident, bearing in mind the workplace accident almost 16 years earlier. It involved a “before and after” comparison of complaints, treatment and the like. Nevertheless, I cannot help but feel that the sheer volume of the material that was placed in evidence in this application was excessive and that some form of editing should have been carried out. The end result has been a considerable amount of work and a very long judgment.
Factual background
(a)The plaintiff’s background prior to the accident
6 The plaintiff is aged 56 years, she having been born in 1962. She is a divorced woman with two adult children, a son and a daughter. She has not remarried and does not have a partner. She was educated to Year 10 level. Following this, she completed a one year secretarial course. For approximately four years she worked as a shop assistant, before being absent from employment for approximately six years, during which period she gave birth to her children and was involved in their early childhood.
7 The plaintiff resumed work in a supermarket as a night stock filler in approximately 1989. Having worked in this capacity for approximately 18 months, she then worked as a mail assistant putting letters into envelopes, and did this for a couple of years. In approximately October 1995 she commenced employment with the Moreland City Council as a Meals on Wheels Delivery Person, working approximately 15 hours a week. On or about 13 October 1997, she slipped and fell in a kitchen whilst in the course of her employment and injured her spine. This constitutes the workplace accident and it and its sequelae shall be discussed subsequently. Indeed, the symptoms, restrictions and incapacity flowing from the workplace accident, along with the state of the plaintiff’s physical and mental health immediately prior to the transport accident, are important factors to be considered.
8 From approximately 1999, the plaintiff commenced to receive the Disability Support Pension as a result of the injury suffered in the workplace accident. She did not return to the workforce and was still receiving the Disability Support Pension at the time of the transport accident. She has resided and continues to reside in Rockbank.
(b)The plaintiff as a witness and the reliability of her evidence
9 It was apparent that giving evidence was something of an ordeal for the plaintiff and she was quite tearful at times. However, whether or not it was due to her distress, I am not satisfied that she gave an accurate, coherent or logical sequence of answers to questions concerning the state of her physical and mental health in the period prior to the transport accident. That is particularly so in relation to spinal symptoms, mental-health problems and every-day restrictions emanating from the workplace accident. At times (for example, early in her cross-examination at T11 and following pages), her evidence was, at least to some extent, internally contradictory and certainly contrary to contemporaneous descriptions of symptoms given to medical examiners.
10 Whilst I note that various medical examiners have referred to her as being pleasant and cooperative, I do not regard her evidence, including her affidavit evidence, as being reliable in relation to symptoms and restrictions associated with her spine or her mental health and particularly as to the period subsequent to the workplace accident and in the years more immediately prior to the transport accident. As shall be discussed at some length, such inconsistencies and inaccuracies are particularly noticeable in histories given to a considerable number of medical examiners. As stated, this shall be discussed at some length and the problems associated with the histories she has given (or the lack thereof) in relation to pre-existing cervical-spine problems will receive some emphasis. It is to be remembered that counsel for the plaintiff said in opening that the physical injury principally relied upon was to the neck. What I have said in relation to the plaintiff’s reliability as an historian also applies in relation to any mental injury and to the consequences of injury generally, particularly when compared with the state of the plaintiff’s mental and physical health prior to the transport accident.
11 In summary, and particularly in relation to matters concerning symptoms and complaints prior to the accident, I do not regard the plaintiff as a reliable witness. Her affidavit evidence, and particularly her initial affidavit of 22 January 2014, also tends to downplay the level of symptomatology which she experienced after the workplace accident and before the transport accident. I appreciate that she was emotional. However, many of the histories given to medical practitioners were inaccurate or incomplete, as shall be discussed. The end result is that I do not regard her as having given accurate histories in relation to some important matters and particularly in relation to symptoms and restrictions from which she suffered prior to the transport accident. That is in addition to some misgivings which I have in relation to her evidence concerning her health and capacity generally leading up to the transport accident. This is a topic to which I shall now turn.
(c)The state of the plaintiff’s health prior to the transport accident
12 The state of the plaintiff’s health prior to and at the time of the transport accident is an issue requiring considerable analysis and discussion. It is to be remembered that the plaintiff was not able to return to work successfully or for long after the workplace accident and indeed has been in receipt of the Disability Support Pension since approximately 1999.
13 Considerable medical material in relation to the injuries received in the workplace accident and their treatment was put before me. I accept that the original injury received by the plaintiff in the workplace accident was to the low back, with symptoms extending to the neck and right leg. I note, for example, that Dr Chris Funder, industrial medical consultant, reported on 13 May 2000 to the plaintiff’s then solicitors that, in the workplace accident, the plaintiff aggravated degenerative disease of the lower back, with the pain radiating to the upper thoracic level and neck and later to the right leg.
14 Certainly, sufficient symptoms were associated with the plaintiff’s neck as to warrant a CT scan to be performed in May 1998, an MRI in May 1999, and a further MRI in August 2003. Turning to the last of these, the summary of the radiologist was that there were foraminal stenoses, greater on the left and predominantly osteophytic, apart from a disc bulge at C6-7 causing a left stenosis. An x-ray of the cervical spine performed on 27 November 2009 resulted in the conclusion of the radiologist being that the plaintiff had moderate cervical spondylosis, and that a disc protrusion could not be excluded.
15 Interestingly, an MRI of the plaintiff’s cervical spine performed after the transport accident on 27 April 2016 revealed multilevel degenerative disc disease in the cervical spine with vertebral end plate osteophyte formation, but no significant disc protrusion or evidence of discrete nerve root compression. A further MRI of the cervical spine was performed on 28 February 2019, the findings being essentially unchanged when compared to the MRI of April 2016. Mild disc disease was seen at multiple levels, but with no obvious neural impairment identifiable. I appreciate that I have moved on to radiological investigations performed after the transport accident, but this has been done in order to enable a comparison to be made between the radiological findings before and after that accident.
16 The end result is that there has been comparatively little change since the transport accident in relation to the state of the plaintiff’s cervical spine as revealed by radiological investigation.
17 Prior to some analysis of the numerous medico-legal and other reports, and the clinical records of the plaintiff’s treating general practitioners, relevant to the claim in relation to the workplace accident and contained in the Defendant’s Court Book, I say now that there is no doubt but that the plaintiff made ongoing complaints concerning neck pain following the workplace accident and had radiological investigations concerning such pain. That is in addition to other spinal symptoms, principally emanating from or involving the low back. I turn now to a discussion of the evidence in this regard.
18 For the moment leaving to one side medico-legal reports, clinical notes, treating doctors’ reports and the like, the plaintiff had completed a Patient Information Form for the Barbara Walker Clinic, which would appear to be associated with St Vincent’s Hospital. That Form, signed by the plaintiff, is quite lengthy, extending to some 10 pages, and is dated 29 October 2008. The plaintiff agreed in cross-examination that she completed this Form and that she placed upon it the following entry, “Constant neck back leg pain. Unable to sleep day-night.”
19 The plaintiff also shaded in various areas on a sketch of the body so as to indicate the areas of pain. These were shown to be the lower thoracic and lumbar spine, both lower legs, and the upper thoracic, neck and shoulder areas, extending into the back of the head. She also noted that the pain was always present, but its intensity varied. Whilst she assessed the pain level at 6 out of 10 when she was filling in the form, the intensity of pain which she had suffered in the previous week was put at 10 at the highest and 9 at the lowest. The usual level of pain in the last week was put at 7 or 8 out of 10.
20 Further, the plaintiff listed a large number of activities and the like which were said to make the pain worse. Such activities included sitting, standing, lifting, bending, household chores, working, driving, tension and the like. At the time, the plaintiff was taking Effexor, 100 milligrams daily and MS Contin, 10 milligrams twice a day. Panadeine Forte and Tramadol had caused stomach pain and vomiting.
21 The plaintiff also set out the following general observations:
“I have had constant back, neck and leg pain. I take medication, stretch and tried different forms of exercise. Nothing seems to stop the pain. I can’t work. I can hardly do any housework. Will anything help? Can I try something new?”
22 In another section of the form, she referred to the 1998 CT scan and the relevant illness being back and neck pain, migraine and leg pain. As stated, the form is dated 29 October 2008.
23 On 25 February 2009, the plaintiff completed a type of questionnaire or inventory, this being a document with the heading “Assessing Pain with the Brief Pain Inventory”. Whilst it is not entirely clear in the document itself, it was suggested that this was a questionnaire which was completed for the Drug and Alcohol Service for the Chronic Pain Clinic. In any event, the plaintiff accepted that she had filled it in and that it was her handwriting – see T38.
24 It is apparent that the plaintiff indicated on the first page of this document that the areas in which she felt pain were basically along her spine, with considerable emphasis upon the lumbar spine and some upon the cervical spine. She then indicated that the level of pain in the last 24 hours at its worst was either 7 or 9 out of 10. The lowest rating of pain in the preceding 24 hours was 5 out of 10. The average level of pain in the relevant areas was described as 6 out of 10, with the level being at 8 out of 10 at the time of the examination. The plaintiff also wrote that she was receiving 150 milligrams of Effexor (presumably daily) and 10 milligrams of MS Contin. The medications had provided a 60 per cent relief. Interference during the past 24 hours with such matters as normal work (including housework), relations with other people, sleep, and general enjoyment of life was put at 9 out of 10, with the level of interference being 8 out of 10 in relation to general activity and mood. The plaintiff also wrote that she was experiencing “continuous pain”.
25 In another portion of the questionnaire, she ticked boxes to indicate that her pain was fairly severe at the moment and that it was painful for her to look after herself, she being slow and careful in that regard. She also indicated that she could lift only very light weights and that her pain prevented her from walking more than 500 metres or from sitting or standing for more than 10 minutes. She was having less than two hours’ sleep a night. The pain restricted her to short, necessary journeys under 30 minutes and prevented her from doing anything but light duties in relation to either employment or housekeeping. The overall picture conveyed is one of a person who could be described as being in a bad way because of spinal problems and there is little or nothing to suggest that such a picture improved to any marked extent prior to the transport accident.
26 Also placed in evidence was a report from Dr Jane Trinka, director of the Barbara Walker Centre, such report being dated 23 September 2009. It followed a review conducted on that date. The report mentioned an earlier referral to the Centre for pain management in 2001. At that time, the plaintiff was complaining of pain in the buttock, which extended up to her neck, as a result of a fall. She was involved with two pain clinics. However, just prior to her being accepted into the pain management program at Barbara Walker Centre, she made contact, stating that she was no longer interested in attending the program as she was pursuing another pain management specialist. This would appear to have been a detoxification program with Dr Michael McDonough, physician in addiction medicine.
27 In any event, in relation to her review on 23 September 2009, the plaintiff stated that she was living on a disability pension and spent much of her day resting. Her pain was under reasonable control early in the morning, but got worse over the day. She did very little structured activity, although she did manage walking for about 15 minutes, three times a week. She did a small amount of housework, but received a lot of support from her mother in terms of cooking. The bottom line seems to have been that it was planned for the plaintiff to see the physiotherapist and psychologist for an extra two sessions in order to make her more motivated, and then have some goals set down prior to her taking part in the pain management program.
28 In summary, it can be seen that in 2009 the plaintiff had been experiencing a high level of pain and very substantial restrictions. Essentially, the plaintiff agreed that this was her situation in 2009 – see T41.
29 At least between March and May of 2011, the plaintiff’s treating doctor at the Modern Medical clinic at Caroline Springs, was Dr David Frost. Whilst the plaintiff was also seen on a few occasions by other doctors at that clinic, it is apparent that, between 11 January 2011 and the date of the accident (23 June 2011), she was seen by Dr Frost on 12 occasions. The clinical notes of Dr Frost would indicate that, inter alia, the plaintiff’s pain was poorly controlled; that the level of Effexor prescribed was being increased; that the plaintiff had severe headache and neck pain; that she was significantly depressed; that regular medications had not addressed pain in the shoulders, arms and legs; and that she felt pain particularly when driving. On 12 May 2011 there is reference to a possible referral to a psychologist and to the plaintiff having been prescribed Cymbalta, a well-known anti-depressant medication. A different doctor from the same clinic, namely Dr Rokon Ahmmad, saw the plaintiff on 4 June 2011 and, apart from referring to medications, noted “chronic pain syndrome”.
30 The only report from Dr Frost that has been tendered by the plaintiff is one of 28 June 2011 (obviously after the accident) and is a brief letter to a physiotherapy clinic. He described the plaintiff as having a background of fibromyalgia, putting the word “WorkCover” after that reference. He reported her condition as worsening over the brief period since the transport accident. Otherwise, this solitary report from Dr Frost, who appears to have been the plaintiff’s principal treating doctor in the period immediately prior to the accident, does not take matters much further. Shortly after that, the plaintiff’s treating general practitioner appears to have become Dr Peter Nicolaai, based at the same clinic as Dr Frost. The earliest report of Dr Nicolaai placed in evidence is that of 2 September 2011.
31 It is also apparent that, in 2011, and prior to the accident on 23 June of that year, the plaintiff was seeing, on referral from Dr Frost, Dr Talib Tahir, consultant physician and rheumatologist. Dr Tahir reported back to Dr Frost on several occasions. In his letter of 30 May 2011, a little over three weeks before the accident, he stated that he had reviewed the plaintiff on that date for ongoing management of chronic pain syndrome/fibromyalgia. He described the plaintiff as being emotional and having a significant pain that obviously was influencing her quality of life and function. He thought that a psychologist might be of assistance.
32 I would also point out that the patient health summary from Modern Medical, Caroline Springs, at which Dr Frost and his colleagues were based, contains something in the order of 115 entries relating to the plaintiff between approximately January 2007 and 25 March 2011. Whilst obviously some of these contain overlapping complaints and some refer to complaints not related to the present case, the following seems to me to be the situation. During that period, the plaintiff was seen on 50 occasions where back pain was specifically mentioned. She was seen on 25 occasions when neck pain was specifically mentioned, and on 23 occasions when there appeared to be complaints of spinal pain and the like without there being a specific reference to the back or the neck.
33 The pattern of complaints is that they are comparatively evenly distributed over the almost four and a half years before the transport accident, although there would seem to be a modest increase in the rate of neck complaints in the period more immediately prior to the transport accident. It is noteworthy that, on 2 March 2011, not long before the transport accident, the plaintiff was complaining of severe headache and neck pain.
34 In addition, the defendant placed in evidence various reports, including medico-legal reports, relating to the workplace accident. These include the following:
· Two early reports from Dr T F Ahern of the Bell Street Clinic, Coburg, who seems to have been the plaintiff’s treating general practitioner at the time of the workplace accident (13 October 1997). Complaints in October 1997 included low back pain extending to the neck. The diagnosis was of acute cervical, thoracic and lumbosacral spine strain.
· Also put before me were reports from the Harding Street Medical Centre in Coburg. The plaintiff also attended this clinic, although the date of her first attendance is unclear. The reports describe the workplace accident and the fact that the pain often spread up the plaintiff’s back, involving her neck and shoulder girdle, producing headaches. When seen on 22 February 1998, it was noted that significant paraspinal muscle spasm extended the full length of her spine into her neck and with a very poor range of motion. A diagnosis of chronic pain syndrome was made. These reports would seem to indicate that originally the pain was in the low lumbar region, but in early 1998 there was an increase in the frequency, severity and distribution of the pain, with significant paraspinal and neck girdle spasm.
· Another brief report from that clinic refers to a lumbar spine injury in the nature of an L4-5 disc bulge, a cervical spine injury, involving widespread disc disease with left CT nerve root impingement, and depression. This report is dated 27 August 1999. The plaintiff’s condition is described as currently being still quite severe, and the long-term prognosis as being guarded. The plaintiff is described as currently being quite severely disabled, reference being made to neck and back pain with stiffness and psychological ill-health and severe depression. A subsequent report of 10 April 2000 describes the plaintiff as continuing to suffer from her symptoms of cervical spine injury, lumbar spine injury and depression. A final report of 17 November 2000 refers to the plaintiff’s depression and migraine headaches, in addition to her back pain. There is a suggested referral to a neurologist for further assessment of her migraines and their possible relationship to the neck and spinal injury.
· When seen for medico-legal purposes (relating to the workplace accident) by Mr Ian McNicol-Smith, orthopaedic surgeon, on 2 April 1998, the plaintiff had pain in the coccygeal region and sacrum, spreading laterally to the top of the buttocks and then up the spine to her neck. She was suffering from headaches of a migrainous nature. Mr McNicol-Smith noted mild degenerative disc disease in the cervical spine. When he saw her again on 16 December 1998, she had pain extending from the coccyx to the neck, pain in the right calf and headaches. He thought that she was showing signs of emotional upset. Her range of movement in the neck and back had decreased.
· To Dr Lester Walton, consultant psychiatrist, similarly examining, on 18 June 1998, the plaintiff described pain originally centred in her lower back, but now extending up the spine to involve her neck. The pain, previously intermittent, was now constant and worsening as the day went on. He referred to the plaintiff receiving psychiatric treatment in the form of prescription of antidepressant/analgesic adjunct medication and thought that it may be worthwhile referring her to a psychiatrist with a view to reviewing her antidepressant medication.
· Dr Chris Funder, industrial medical consultant, reported to the plaintiff’s then solicitors on 29 July 1998. The symptoms of which the plaintiff complained started at the midline of the lower sacral spine and went all the way up to the neck, there also being reference to symptoms across the width of the mid-lumbar and mid-sacral levels, across the shoulders, and in the back and sides of the neck at all levels. Dr Funder diagnosed a chronic pain syndrome, with complaints of pain from the lowest part of the back and up to the neck and head.
· Dr Funder reported again on 17 September 1998. He recorded that the plaintiff’s complaint of symptoms stretched from the coccyx to the top of the head and right across the shoulders. The plaintiff described to Dr Funder a multitude of symptoms and restrictions. He expressed the view that x-rays showed a disc problem at the C5-6 level. Dr Funder also recorded that the plaintiff had reasonably severe symptoms when standing, the pain being in the back, the right leg, and also in the neck.
· Again, when Dr Funder saw the plaintiff on 3 June 1999, she was complaining of symptoms from the coccyx to the top of the neck and head, as well as the shoulders, arms and legs. At this stage, there had been an MRI of the neck performed. The plaintiff also complained that, after sitting for not very long, pain went from the coccyx all the way up her back and to her neck. Dr Funder considered that she suffered from degenerative disease of the neck and lower back. Indeed, he concluded that she had stable disabilities of the back and neck, measuring each to be comparatively substantial when using the AMA Guides. The plaintiff made similar complaints when seen by Dr Funder in May 2000. She complained that the pain initially went from the lower back to the upper thoracic level and very quickly radiated to the neck.
· When seen at North-Western Health by Dr Peter Lynch, this being in April, May and July 1998, the plaintiff seems to have been complaining of neck, coccyx and right calf pain.
· Ms Rosie Gullace, psychologist, treated the plaintiff and reported on 22 February 1999 that the plaintiff suffered from chronic low back, neck and head pain. The plaintiff described the workplace accident, mentioning that she suffered injury to her low back with referred pain to her neck and head. There had been no significant relief in relation to this.
· In a report of 9 August 1999, Ms Gullace recounted that the plaintiff had told her of the workplace accident on 13 October 1997 and stated that she had felt immediate and intense pain in her low back extending to her low neck and head. Such pain had also caused her to discontinue a return to work program. She was still suffering from chronic low back, neck and head pain. Ms Gullace felt that the plaintiff’s incapacity for work was likely to persist in the foreseeable future. When seen on 15 January 1999, the plaintiff displayed symptoms of major depression and anxiety. She had undergone a CT scan in May 1999, this being of her neck and low back. Ms Gullace stated that unfortunately the plaintiff still suffered from depression associated with her chronic low back, neck and head pain.
·Dr John Garland, psychiatrist, saw the plaintiff at the request of the then defendant, reporting on 11 October 1999. Her complaints to him seem to have centred on the lower back. Dr Garland thought that the plaintiff presented as being a physically fit woman who walked and moved normally and diagnosed mild depression and anxiety.
·When Dr Garland saw the plaintiff again on 10 April 2000, again her attention seems to have been directed towards the lower back and coccyx. Dr Garland felt that the plaintiff displayed evidence of abnormal illness behaviour and exaggeration of symptoms, perhaps at a subconscious level. He did not think that she was incapacitated.
· Mr John O’Brien, orthopaedic surgeon, saw the plaintiff at the request of her then solicitors on 10 March 1998. The history taken by him was of the plaintiff landing on her buttocks, but immediately being aware of low back pain and, in addition, some neck pain. She described to him both constant low back pain and neck pain with associated occipital headache. Mr O’Brien felt that the examination did not reveal any signs of significant musculoskeletal pathology. In fact, the plaintiff had a good range of movement in all aspects of the spine. He thought that she was suffering from a form of chronic pain syndrome.
· Mr O’Brien reported again following an examination on 22 November 1999. The plaintiff described her return to work on light duties, stating that with such employment her back and neck pain became more severe and she was again off work. She stated that cessation of her employment resulted from constant pain in the low back extending proximally into the cervical region. She also stated that she was not quite certain which was the worst area, as she was always holding her neck and low back, referring to constant pain and disturbance of sleep. Amongst other things, Mr O’Brien noted that an MRI of the cervical and lumbar spine taken in May 1999 revealed slight loss of disc signal in the mid-cervical disc and definite loss at L4-5. He considered that there was a significant non-organic component to the plaintiff’s ongoing symptoms and that she had chronic pain syndrome. He thought that the worsening of symptoms and the complete lack of response to conservative treatment clearly indicated a very poor prognosis. He considered it unlikely that she would return to gainful employment. A supplementary letter indicated that he could find no organic pathology.
· The latest medico-legal report prior to the occurrence of the transport accident is that of Mr Gerald Moran, orthopaedic surgeon, who reported to the defendant in the case involving the workplace accident on 27 February 2008. He took a history of constant low back pain and restricted back movements, together with pain in either calf after lengthy sitting or standing. He also reported that the plaintiff complained of constant neck pain, but her neck movements were normal.
35 I have gone at length into the relevant state of the plaintiff’s health prior to the accident and her complaints because of the importance which was attributed to this issue as the case unfolded. I am satisfied that, for a lengthy period, she had been complaining of a high level of spinal pain, including pain in the cervical spine, combined with substantial interference to her everyday existence. She had been on the disability pension for a considerable period and I am satisfied that the spinal pain and resultant restrictions, and including pain and restrictions related to her cervical spine, had impacted to a major degree upon her everyday life.
(d)The injury, its treatment and diagnosis – paragraph (a) of the definition
(i) The medical material
36 I accept that the accident in which the plaintiff was involved would have been a frightening one and one which, at least as an immediate consequence, had the potential to impact adversely upon her state of health and well-being. She was able to drive her car out of the relevant intersection, borrow a mobile phone and contact her son, who conveyed her to her usual clinic, the Modern Medical Caroline Springs. There she saw Dr Nicolaai, who has recorded that she had a whiplash injury and his note makes reference to pain in the neck and thoracic spine, along with decreased range of movement of the neck. It would also appear that an injection was given to her. She again attended on 28 June 2011, when she saw Dr David Frost. His note primarily records tenderness along the right leg and back, along with a flare up of the plaintiff’s “WorkCover” back injury. Dr Frost thought that physiotherapy was required in the short term. A brief letter of referral to an unnamed physiotherapist refers to the plaintiff’s background of fibromyalgia and states that she had worsened since the accident some five days earlier. Apparently the plaintiff felt that she needed physiotherapy, referring to the indication that “this (presumably the accident) has played up with her pain significantly”.
37 The plaintiff’s treating general practitioner then appears to have become Dr Nicolaai. He seems to have referred her to a physiotherapist and a psychologist, referring to her as having depression and anxiety, along with chronic back and neck pain. A brief report from Dr Nicolaai to the plaintiff’s then solicitors on 6 October 2015 refers to both the transport accident and the workplace accident, noting that, in relation to the latter, the plaintiff had been unable to return to the workforce “despite seeing pain specialist, physiotherapy, rheumatologist etc”. He expressed the view that the transport accident may have aggravated her existing back and neck pain, also stating that she had underlying depression secondary to her underlying chronic pain. He also referred to that fact that the plaintiff had been incapacitated from her pre‑injury employment due to the workplace accident. Dr Nicolaai stated that the plaintiff had had numerous investigations and tried various pain medications and treatment with no major improvement. He believed that her condition had stabilised.
38 Dr Nicolaai reported again on 28 September 2017. He expressed the view that the transport accident may have aggravated the plaintiff’s existing back and neck pain. He referred to her underlying depression, which was secondary to her underlying chronic pain. He recorded a history that, prior to the transport accident, the plaintiff had been still able to look after her children, perform household duties and care for her elderly parents, but had found that, since that accident, she was struggling with the gardening, cleaning around the house and other household duties. No further report from Dr Nicolaai or from others at his clinic was placed in evidence.
39 It is apparent that Dr Nicolaai referred the plaintiff to Ms Rashika Gomez, psychologist, who saw her on 20 June 2012. Interestingly, Ms Gomez does not seem to have been given any history of the workplace accident or symptoms and restrictions resulting from it. Indeed, Ms Gomez stated that the plaintiff reported difficulties in adjusting to the onset of neck and back issues following the transport accident, also recording that the plaintiff “feels like she has lost the lifestyle she used to enjoy”, was restricted in her activities and movements and felt as if her future was hopeless. Amongst other things, she viewed the transport accident as taking away many significant things from the plaintiff. Whilst Ms Gomez recommended regular treatment by her for cognitive-behaviour therapy, apparently the plaintiff did not return.
40 The plaintiff appears to have attended at the Sunshine Hospital Emergency Department on 28 February 2013. Parts of the history taken are not easy to read, but it does seem apparent that the plaintiff was complaining of cervicogenic headache, with a history of longstanding neck and back pain of gradual onset. Whilst it is not entirely clearly, a diagnosis of “Typical Migraine” seems to have been made. The plaintiff appears to have attended again on 6 January 2014, giving a history of chronic pain in the upper neck and back since the transport accident in 2011. Whilst it is difficult to decipher all of the writing, there would appear to be no history taken of any problem prior to the transport accident.
41 Dr Nicolaai also referred the plaintiff to Dr Masiiwa Njawaya, who apparently specialises in sports medicine and who reported back to Dr Nicolaai on 3 September 2013. I note that the history by Dr Njawaya includes that the plaintiff had a background history of lower back pain related to a fall on her bottom in 1997. The history then continues that, in the transport accident, there was aggravation of her lower back pain and the onset of “new neck pains”. Dr Njawaya found on examination generalised palpation tenderness from the cervical to the sacral spine. There was normal power and sensation in both upper and lower limbs. The plaintiff felt that her neck and lower back pains were equally distressing. Dr Njawaya thought that she may have an underlying whiplash injury due to the transport accident and underlying bilateral sacroiliac joint pain. However, Dr Njawaya added the comment that it was hard to isolate these symptoms and signs, given the current nature of her pain. Dr Njawaya suggested C5-6 medial branch blocks and was going to write to the present defendant in relation to approval for same. Indeed, he did so write on the same day.
42 Also on that day, Dr Njawaya wrote a letter of referral to Dr Jon Ford, Spinal Management Clinics of Victoria. In it, he described the plaintiff as having chronic pain related to two issues. One was lower back pain following the fall in 1997. The second was neck pain and aggravation of the pre‑existing lower back pain in the transport accident. He also listed medications which the plaintiff had been on since the year 2000, these including medication for depression. The clear inference to be drawn from both letters of Dr Njawaya is that the history obtained was one of the neck pain being “new” following the transport accident and that there was pre‑existing lower back pain. Of course, as set out earlier, clearly such a history, insofar as it refers to neck pain, is erroneous. It is also to be remembered that, in opening the application, counsel for the plaintiff stated that the exacerbation injury relied upon was principally in relation to the neck.
43 By letter dated 18 June 2014, Spinal Management Clinics of Victoria responded to Dr Njawaya. The purpose of this lengthy report, with attachments, largely was to set out what had been obtained by way of interview, questionnaire and examinations, these being conducted by Dr Malcom Ong, occupational and environmental medicine consultant, a physiotherapist (Mr Di Mauro) and a psychologist (Mr Ruddock). The diagnosis seems to have been of a moderately severe whiplash associated disorder, one with markedly severe non-specific low back pain. There also appeared to be Post-Traumatic Stress Disorder type symptoms, along with depression and anxiety, associated with the transport accident. Further radiological investigation of the lumbar spine was suggested, along with further assessment by a psychiatrist, as well as commencement of a pain management program.
44 In the section of this lengthy report devoted to history, it is stated that the plaintiff reported a past history of lower back pain from a fall at work in 1997. This is followed by the history of the transport accident and the whiplash injury sustained. It is a long report overall, but in it I can see no reference to neck pain prior to the transport accident. That is certainly true of the “history” section. It is recorded that the plaintiff reported playing a very active life assisting her parents and children prior to the transport accident, but indicated that this significantly reduced after such accident and that she withdrew from socialising. Thus, the completeness and accuracy of the history obtained again seems to me to be a significant issue in the context of the case. It does not sit well with the matters and complaints set out earlier in relation to the plaintiff’s condition before the transport accident.
45 Spinal Management Clinics of Victoria reported again by way of an Early Discharge Report on 24 September 2014. It would appear that the plaintiff completed five weeks of treatment, but missed or rescheduled many appointments. As a result of this and of reported worsening of pain, it was agreed that it was best to discharge her early from the treatment, this being done with the making of some recommendations. She reported worsening pain symptoms during the period of treatment, difficulties in travelling, worsening depression and the like.
46 A separate and quite detailed report from Dr Ong, this being dated 28 September 2015, was also placed in evidence by the plaintiff. Again, the past medical history obtained refers only to lower back pain from the workplace accident. It also indicates that there was no past psychiatric history, and, in the context in which this appears, this can only mean that there was no such history prior to the transport accident. This would not appear to be accurate. Dr Ong expressed the opinion that the plaintiff’s prognosis remained poor, given her inability to comply (with the pain management program) or progress forward. He referred to her injuries as being chronic and stabilised, also observing that “she had been poorly compliant throughout with her management within the pain program.”
47 Another report placed before me by the plaintiff was that of Mr Michael Strintzos, physiotherapist, such report being dated 29 September 2015. This does contain a reference to the workplace accident in 1997, but states that the plaintiff reported a history of lower back pain arising from it. There is no history of neck pain prior to the transport accident. Mr Strintzos was the physiotherapist associated with the pain management program. He referred to the fact that there had been a moderate level of inconsistency in the plaintiff’s presentation, and clarification of her condition prior to the transport accident would have been helpful. He observed that the plaintiff had not worked since 1998, was receiving a disability support pension and that her work prognosis was very poor.
48 Mrs Maria-Jayne Lee, registered psychologist, has also treated the plaintiff on referral from Dr Nicolaai. Whilst the plaintiff mentioned a prior injury to her lower back, she does not seem to have given to Mrs Lee any history of neck or shoulder pain prior to the transport accident. She appears to have given a specific history of a fall at work in which she injured her coccyx and lower back, but without any reference to prior neck pain or problems. She described the various activities, including socialising and the like, which had ceased as a result of the transport accident. She also referred to a history of depression which was related to separation from her ex-husband in 2002, it being noted that this had resolved prior to the transport accident. There is no other reference to any psychological or psychiatric difficulties prior to such accident. Mrs Lee diagnosed the plaintiff’s sense of anxiety and depression as being in the severe range, describing the prognosis as poor and the symptoms as chronic and stabilised. She also referred to the plaintiff as having no current capacity for pre‑injury work.
49 To Dr Gopalan Poovalingam, laparoscopic and pelvic reconstructive surgeon, the plaintiff gave a history of urinary incontinence which started after the transport accident in 2011, she having seen Dr Poovalingam on 26 March 2018. In relation to the transport accident, Dr Poovalingam stated that the plaintiff had suffered from chronic back ache and sciatica since 2007 and apparently had suffered a cervical vertebral injury, at a level the exactness of which he was unsure, in the transport accident. That doctor seems to have recommended physiotherapy and behaviour modifications. The plaintiff was advised to come back for review, but failed to attend. It is apparent that Dr Poovalingam saw the plaintiff upon referral from Dr Frost.
50 A report from the Western Health Emergency Department at the Sunshine Hospital records an attendance there by the plaintiff on 30 March 2016. The presenting problem was described as neck pain since 2011. Apart from referring to that date as marking the commencement of such neck pain, and apart from the plaintiff complaining of mild lower back pain, there is little else of particular relevance in the report.
51 I have gone into the various reports from those who have treated the plaintiff at some length. One overall impression that comes through is that the plaintiff had quite longstanding and significant neck pain for some years prior to the transport accident, but very little mention of this was made to those treating the plaintiff after such accident, and, in several instances, no mention at all.
52 As stated, there is a very large volume of medical material in the Court Books and this includes medico-legal reports complied after the transport accident.
53 At the request of her solicitors, the plaintiff was seen by Mr Kevin King, orthopaedic surgeon, who reported on 5 June 2013. The history obtained by Mr King was of the workplace accident, following which the plaintiff developed low back pain of a constant nature, radiating into the left thigh. There is also a reference to generalised aching pains all over the body, these being diagnosed as fibromyalgia. The transport accident was described to Mr King, the injuries being referred to as a jerking jolting strain to the head and neck, this involving some aggravation of pre‑existing neck pain to a significant degree; a jerking jolting strain to the whole of the thoracolumbar spine with significant aggravation of the pre‑existing lumbosacral back pain; aggravation of left sided sciatica and development of right sided sciatica which has persisted thereafter; and a jerking jolting strain to both upper limbs with generalised pain in the shoulders and arms resulting. The generalised symptoms of fibromyalgia had persisted thereafter and had been at least 50 per cent worse. Depression and anxiety had also resulted. The plaintiff had undergone multiple x‑rays, which had shown mild degenerative changes in the cervical and thoracic regions, consistent with age and possibly with trauma. The pains of which the plaintiff complained were generalised in the sense of being all over the body, but particularly in the cervical, thoracic and lumbar regions of the spine, with radiation.
54 Upon examination, Mr King found mild limitation of neck movements, by reason of spasm and discomfort, and mild limitation of low back movements. In the upper extremities, including the shoulders, Mr King could find no clinical or joint abnormality or neurological signs. He referred to the plaintiff as seemingly being chronically disabled by generalised pain all over her body. He expressed the view that it would seem that the plaintiff previously had been suffering from some degree of generalised aches and pains “all over”, but the clinical situation had been markedly aggravated by the transport accident, which was described to him as being a major head-on two vehicle collision. He also expressed the view that the plaintiff was very hard to assess because of her generalised agitation.
55 However, he viewed her as being chronically and quite severely disabled, expressing the view that half of her disability was attributable to the transport accident. The amount of medical material which he had in relation to the plaintiff’s condition and symptoms prior to the transport accident seems to have been limited. In a subsequent letter of 10 July 2013, he referred to any Assessment pursuant to the AMA Guides as being complicated by reason of a pre‑existing history of fibromyalgia.
56 Dr Clayton Thomas, consultant in rehabilitation and pain medicine, reported to the plaintiff’s solicitors on 5 May 2013. The history which he obtained included that of the workplace injury in 1997. There was reference to the development of pain in the coccygeal region, which pain worsened. As has been discussed, the plaintiff also underwent a pain management program. As at the date of the examination by Dr Thomas, she was complaining of pain in her neck and head. There was radiation into both arms to the hands. Dr Thomas seems to have obtained nothing like the history of cervical problems prior to the transport accident which has been set out above.
57 However, in expressing his opinion, he does refer to the fact that there was a background of “longstanding neck pain and it would seem pre‑existing neck pain”. One might make an educated guess that this was on the basis of there having been x‑rays of the cervical spine taken in November 2009, these showing disc space narrowing with osteophytosis at various levels, which x‑rays were mentioned a few paragraphs prior to the expression of the opinion referred to above. The description of symptoms suffered after the workplace accident, as set out earlier in the report and prior to the review of the x‑ray just described, does not include any reference to neck symptoms.
58 Dr Thomas did express the view that the transport accident may well have aggravated pre‑existing neck pain, but also stated that there did not appear to be a de novo injury to the cervical spine, given the previous plain x‑rays that had been performed. He thought that there were psychological components existing and considered the plaintiff’s condition to have substantially stabilised from an impairment perspective. He expected that, with further treatment, the plaintiff’s level of disability would diminish further. He also thought that the plaintiff’s pre‑existing back condition would preclude her from returning to work, “probably more so than her cervical spine condition”.
59 Dr Thomas was supplied with various medical reports and clinical notes. He reported in relation to these, without seeing the plaintiff again, on 25 February 2014. He stated that the clinical notes indicated long-term pain in the lower back and neck, as did letters from Dr Paul Verrills of the Metro Spinal Clinic. These did not cause Dr Thomas to change his view to any extent. He found it difficult to quantify the extent that her condition had worsened as a result of the transport accident, but accepted that her condition had indeed worsened in her cervical spine, but nowhere else.
60 Dr Thomas reported for a third time on 12 February 2015. On this occasion, the plaintiff told Dr Thomas about her back problems and the workplace accident. In relation to her neck, she said that she did have pain in her neck when she lifted baskets as part of her work duties, but stated that she had no previous treatment for her neck pain. To Dr Thomas, the plaintiff complained of constant pain in the neck and down her spine, as well as stiffness. This was in addition to leg pain and the like.
61 Upon examination, Dr Thomas found profuse and widespread tenderness. Neurologically, her lower and upper limbs presented as being grossly intact. He thought that the plaintiff was suffering from a diffuse and widespread pain syndrome and fibromyalgia. He thought that this had been present for a prolonged period of time and predated the transport accident. He believed that this was a situation in which the plaintiff’s pain syndrome had “continued in a progressive march with gradually increasing levels of disability”. He did not think that the plaintiff was able to recall, to any extent, her condition prior to the transport accident. The plaintiff indicated that her problems stemmed from the transport accident, when clearly they seemed to be an extension of her pre-accident condition. I will quote in full the following paragraph from his report and indicate now that, at least in relation to the credence to be attached to her history, and in particular to her pre-transport accident condition, this seems to me to be a possible explanation for the shortcomings in relation to the histories given by her, in addition to being a general opinion which is worthy of consideration:
“As is often the case in patients with fibromyalgia and also in patients on long-term opioid medication, their recall of history is poor and their recollection of preinjury conditions likewise. Overall therefore, I do not place too much credence on the history that I received from her indicating that her condition stemmed from this accident when clearly there was quite a considerable amount of pain and disability prior to the accident which appears to be in keeping with my clinical assessment, albeit with a probable worsening which I think is more related to the disease process in itself than due to the motor vehicle accident in itself.
Her condition can be considered stabilised.”
Whether this lack of credence is due to the conditions described by Dr Thomas, whether it be due to a wilful concealing of her pre-transport accident state of health, or whether it be due to some form of amnesia, to confusion, or to some other cause is not really to the point. As stated elsewhere in this judgment, the plaintiff is an unreliable historian and witness.
62 Subsequently Dr Thomas was provided with a report of Mr Michael Dooley, this report being dated 4 June 2015 and having been organised by the defendant. Dr Thomas’s observation was that the conclusions of Mr Dooley were “indeed sound … in fact not too dissimilar to my own conclusions. There is clearly nothing in that report that I have an issue with”.
63 Dr Thomas was sent a further report of Mr Dooley’s of 12 April 2017 and asked to comment on it. This he did on 10 July 2017. He referred to his earlier observation and stated that the same situation prevailed in relation to Mr Dooley’s recent report. He noted that Mr Dooley indicated that the plaintiff had suffered a soft tissue injury to the cervical spine region and thoracolumbar spine region in the accident.
64 The view of Dr Thomas was that the pre‑existing chronic pain syndrome, which the plaintiff had had for many years, was aggravated in the accident, but the primary issue was as to whether that aggravation had remained or whether it had settled to pre-accident levels. He again observed that patients of his who have such aggravations often have very little recall as to what their situation was prior to the subsequent events and feel that their condition had dramatically worsened, whereas, from the clinician’s perspective, there appeared to be little, if any, change.
65 Overall, the tone of Mr Dooley’s report was substantially the same as the views which Dr Thomas was expressing. Dr Thomas suggested that a forensic review of the pre-accident medical notes, compared with the post-accident medical notes, might give an indication as to whether there had been a quantifiable change or not. As is obvious, I have set out a considerable amount of the pre-accident and post-accident medical notes, opinions and material in this Judgment.
66 Dr Albert Kaplan, consultant psychiatrist, is another specialist who has provided several reports to the plaintiff’s solicitors. His earliest report is that of 12 May 2014. The history given by the plaintiff was of an injury to her lower back in 1997, following which, at some stage, she obtained the disability support pension. She claimed that, although her back pain had never resolved, she was able to adjust to it after a time and could pace herself. She also referred to depression which she had suffered following the workplace injury and which had gradually resolved. She referred to her constant neck pain and to the fact that her low back pain had been more severe since the transport accident.
67 There is no indication that she informed Dr Kaplan that she had been suffering neck pain prior to the transport accident and, as stated, she indicated that her depression had resolved before that accident. She also described her pre-morbid personality as being that of a cheerful individual who enjoyed gardening, cooking and social activity. Dr Kaplan expressed the opinion that the plaintiff developed an adjustment disorder with mixed anxiety and depressed mood as a result of her neck injury and the aggravation of her back injury sustained in the traffic accident. He thought that her symptoms would probably qualify for a diagnosis of a Post-Traumatic Stress Disorder. He considered the condition as having stabilised and the prognosis to be unfavourable.
68 I might add that, in relation to the plaintiff’s mental health shortly prior to the transport accident, it is noted that she had been described Cymbalta, a medication used to treat major depressive disorder, anxiety, fibromyalgia and the like, on 12 May 2011, with the medication being reduced on 25 May. On 6 April 2011, the plaintiff had been noted by Dr Frost as being significantly depressed and needing a mental health plan. She had presented as being very stressed on 25 January 2011. As early as June 1998, Dr Walton had recorded that the plaintiff was receiving psychiatric treatment in the form of the prescription of antidepressant/analgesic adjunct medication. The report of Spinal Management Clinics of Victoria of 18 June 2014 notes that the plaintiff reported increased levels of Post-Traumatic Stress Disorder symptoms and increased depression and anxiety symptoms as recorded on checklists, but that clinically symptom levels also appeared high.
69 In any event, Dr Kaplan was also forwarded the report of Mr Dooley of 4 June 2015 and asked to comment upon it. He made the observation that he noted that Mr Dooley referred to the plaintiff as suffering from both lower back and neck pain prior to the traffic accident, but the plaintiff had informed him only about previous back pain, but not neck pain. He also noted that documentation had been sent to Mr Dooley concerning earlier complaints by the plaintiff in relation to low back pain and ongoing cervical pain, these documents including a comment on chronic pain and fibromyalgia.
· Dr Masiiwa Njawaya, treating sports medicine specialist;
· The history obtained by Spinal Management Clinics of Victoria;
· Dr Malcolm Ong, treating occupational and environmental medicine consultant at the above establishment;
· Mr Michael Strintzos, treating physiotherapist;
· Ms Maria-Jayne Lee, treating psychologist;
· Dr Gopalan Poovalingam, treating pelvic reconstructive surgeon;
· Western Health Emergency Department;
· Mr Kevin King, orthopaedic surgeon, medico-legal;
· Dr Clayton Thomas, consultant in rehabilitation and pain medicine, medico-legal, and to whom she stated that she had no treatment for neck pain prior to the transport accident;
· Dr Albert Kaplan, consultant psychiatrist, medico-legal. To him there was also little or no mention of any prior psychological or psychiatric problems or treatment;
· Mr Chris Haw, orthopaedic surgeon, medico-legal, although to him there was a complaint of some previous mild pain in the neck, apparently due to lifting baskets at work;
· Dr Clive Kenna, consultant in musculoskeletal pain management, medico-legal;
· Mr Michael Dooley, orthopaedic surgeon, medico-legal; and
· Associate Professor Peter Doherty, consultant psychiatrist, medico-legal.
· Associate Professor Richard Stark, neurologist, medico-legal.
When this is contrasted with the actual history of events, and particularly in relation to the cervical spine, the unreliability of the plaintiff becomes particularly clear. Indeed, on at least a couple of occasions she went so far as to describe the neck pain after the transport accident as being new or not a significant problem prior to that accident. It may be that her failure to give a proper history of her condition prior to the transport accident is for the reason opined by Dr Clayton Thomas and set out in paragraph 61 above. Whatever the reason, it has been demonstrated that she is an unreliable witness and that the principal physical injury upon which she relies was important and highly symptomatic prior to the transport accident.
(ii)In relation to the physical injury upon which she places reliance (the injury to the spine and particularly to the cervical spine), and leaving to one side her lack of reliability, I do not accept that there have been consequences arising from the transport accident which satisfy the statutory requirements. In relation to the approach to be adopted where there is a pre‑existing physical condition which has been aggravated by a subsequent event or events, I would refer to what was said in AG Staff Pty Ltd v Filipowicz [2012] VSCA 60. I might add that the requirements as set out in Filipowicz seem to me to be equally applicable in relation to both the physical injuries and those of a psychiatric or psychological nature. If those principles are applied, it seems to me that the plaintiff falls well short of discharging the burden of proof in relation to her spinal injuries.
I shall not set out or summarise in detail the many aspects of her pre-transport accident condition, which have been discussed during the course of this long judgment. Suffice to say that she had very longstanding cervical and lumbar problems which required extensive treatment and which, by her contemporaneous or quasi‑contemporaneous descriptions, incapacitated her, caused her a great deal of pain and suffering and interfered very substantially with her lifestyle. I am not satisfied that there have been changes to that situation of such magnitude as to satisfy the statutory test.
The same could be said of any mental or behavioural disturbances or disorders. Of course, in relation to mental or behavioural disturbances or disorders, the test is one of severity, the word “severe” being stronger than “serious” – see Mobilio v Balliotis [1998] 3 VR 833. When the approach set out in Filipowicz is applied to the facts of the present case and what was said in Mobilio is borne in mind, the plaintiff seems to me to fall well short of discharging the burden of proof. I would refer to the summary of the medical reports and opinions set out above.
In addition, as stated above, I prefer the opinion of Associate Professor Doherty. In addition, the plaintiff has not had a great deal of treatment since the transport accident. She may have seen a psychiatrist on one occasion, but that is not altogether clear. She had a course of treatment from a psychologist, Mrs Maria-Jayne Lee, but the report of that psychologist of 13 July 2017 suffers from considerable defects in relation to the accuracy of the history obtained (for example, it is recorded that the plaintiff had an active lifestyle prior to the transport accident and, in particular, referred to a history of depression only when her ex-husband left her in 2002, stating that this condition had resolved prior to the transport accident).
Of course, apart from any other matter, the plaintiff had been taking antidepressant medication and Dr Tahir had recommended to her general practitioner that she see a psychiatrist, this recommendation being only six days prior to the transport accident. On 6 April 2011, the medical records reveal that the plaintiff was noted as being significantly depressed and the level of her medication, Effexor, was increased. The apparent absence of information such as this from the report of Mrs Lee significantly reduces the weight to be attached to it. Further, for the reasons set out previously, I prefer the opinion of Associate Professor Doherty to that of Dr Kaplan.
(iii)Thus, in the present case, there is a plaintiff who is an unreliable witness and, at least at times, a grossly inaccurate historian. I would refer again to the observations in Dordev and Petrovic, which seem to me clearly to be applicable. What was said in Filipowicz is also highly relevant. An examination of the detailed and extensive “before and after” medical material has led me to the conclusion that, even ignoring the plaintiff’s problems as a credible witness and historian, there has not been an increase in the consequences of the transport accident of sufficient magnitude to satisfy the statutory requirements.
Conclusion
169 The plaintiff is unsuccessful. She has failed to discharge the burden of proof. Her application is dismissed. I shall hear the parties as to any ancillary orders that are required.
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