Caffrey v TAC

[2017] VCC 1216

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CIVIL JURISDICTION

CI-16-02602

STEVIE CAFFREY

v

TRANSPORT ACCIDENT COMMISSION.

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JUDGE:	HIS HONOUR JUDGE COISH
WHERE HELD:	Melbourne
DATE OF HEARING:	18, 21 and 22 August 2017
DATE OF JUDGMENT:	24 August 2017
CASE MAY BE CITED AS:	Caffrey v TAC
MEDIUM NEUTRAL CITATION:	[2017] VCC 1216

REASONS FOR JUDGMENT
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Transport Accident Commission. For the Plaintiff	Mr L. Allan Ms B. Myers

J U D G M E N T

1HIS HONOUR: This is an application for leave to bring proceedings for the recovery of damages pursuant to section 93 of the Transport Accident Act 1986 in respect of injuries to the lower back and coccyx together with gastroenterological injury including severe constipation and haemorrhoids the plaintiff allegedly sustained in a transport accident on 9 August 2005.

2The plaintiff alleges that she has a serious injury within the meaning of paragraph (a) of the definition of serious injury in section 93(17). The relevant body function in which there has been impairment or loss is the spine.

3The principal issue in dispute is whether the plaintiff suffered an L5 vertebra compression fracture as a result of the transport accident on 9 August 2005.  It is submitted on behalf of the defendant that the plaintiff did not sustain the L5 vertebra compression fracture revealed in investigations undertaken in 2013 in the transport accident, rather she suffered no more than a soft tissue back injury in the transport accident. 

4Even if the L5 vertebra compression fracture did result from the transport accident, it is submitted on behalf of the defendant that the plaintiff does not have a serious injury as defined.  The principal focus of both parties' submissions, however, was on the issue of causation. 

5The onus of proof is on the plaintiff. 

6I am familiar with and I have had regard to a long line of authorities dealing with serious injury applications.  In Humphries v Poljak [1992] 2 VR 129, Crockett and Southwell JJ, at page 140, stated that in respect of the definition of serious injury in paragraph (a):

"To be 'serious' the consequences of the injury must be serious to the particular applicant.  Those consequences will relate to pecuniary disadvantage and/or pain and suffering.  In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as 'very considerable' and certainly more than 'significant' or 'marked'?"

7The plaintiff, her mother Karen Caffrey and the medicolegal consultant Mr Thomas Kossmann, who examined the plaintiff at the request of her solicitors on or about 3 February 2017, gave evidence and were cross-examined.  The parties tendered additional medical reports, medical records, and some relevant documentation.  The plaintiff has provided two affidavits in support of this application. 

8The plaintiff is 27 years of age, having been born on 21 September 1989.  She is single and has no dependents.  The plaintiff was a backseat passenger in a motor vehicle when that motor vehicle was involved in a transport accident in the early hours of the morning of 9 August 2005.  In her second affidavit, she describes the transport accident in these terms:

"(2) I wish to elaborate on the mechanism of the car accident.  I was a backseat passenger.  I was not wearing a seatbelt.  I'm not sure if there even was a seatbelt on the car.  The car become airborne and I believe that we ended up hitting an electrical pole or tree.  I left the seat and I recall my face and chest hitting the seat in front of me and being flung back onto the seat and my bottom hitting a piece of metal, which I've always thought was a pole of some sort.  I had black eyes after the accident from the impact into the seat.

(3) I was taken to hospital and I complained about back pain.  I also initially could not feel my lower legs."

9The plaintiff's personal circumstances at the time of the transport accident were grossly dysfunctional.  She was only 15 years of age.  About a month prior to her transport accident she had witnessed her mother being struck by a motor vehicle.  Her mother was the victim of a deliberate hit and run and she was very badly injured in that incident.  She was hospitalised and then required extensive rehabilitation.  The plaintiff was left on her own at home.  At some point the electricity and water were cut off from her home.  She commenced to use heavy illicit drugs after her mother's accident, such as speed, and she socialised with persons who had a bad influence upon her.  The day before the plaintiff's transport accident she had been injected with speed, and shortly before the transport accident she inhaled speed.  The male driver of the motor vehicle was a drug dealer.

10In the plaintiff's first affidavit she said she suffered injury to her ribs, nose, back, legs, and elbow, and she had tingling in her calves in the transport accident.  She was taken to Frankston Hospital.  She complained of back pain and an X‑ray of the cervical, thoracic, and lumbar spines was undertaken at about 10 am.  The radiologists report is as follows:

"Lumbar spine, minor mid-lumbar scoliosis concave to the right.  No obvious compression fracture.  Transverse process are intact."

11The plaintiff discharged herself from hospital sometime after 12.30 pm as she had soiled herself.  The plaintiff was then effectively left to her own devices.  She did see her general practitioner, Dr Ledger, in Rosebud on 10 August 2005. 

12On 18 September 2005 the plaintiff submitted a TAC emergency expenses claim form.  In that claim form, she alleged that she had suffered the following injuries in the transport accident: "Back pain, rib pain, leg injury".  The claim was accepted.  The plaintiff had suffered leg abrasions in the transport accident, and approximately two months after the transport accident these abrasions became infected and the plaintiff had further treatment at hospital including antibiotics, debridements, and excision of a chronic right leg ulcer. 

13The plaintiff did not return to secondary school.  She was effectively adrift in society.  Her mother was still recovering from her injuries.  The plaintiff continued to use illicit drugs.  She was using speed then ice.  She consumed alcohol to excess.

14It is difficult to piece together the plaintiff's precise movements and activities in the period from 2006 to 2013.  She had extensive periods of unemployment.  In 2016, when she was 16 years of age, the plaintiff worked in a carnival.  The plaintiff participated but did not complete an Australian Government program called "Green Corps".  From about the ages of 18 to 22 the plaintiff did some window cleaning jobs for various employers.  She did not work full‑time.  The plaintiff travelled to Western Australia.  She sought employment and had some employment in a Liquorland Store.  The plaintiff did some window cleaning in Perth in 2012, and in Melbourne in 2013 and 2014. 

15The plaintiff continued using illicit drugs up until about 2013. 

16She committed a number of criminal offences including theft, criminal damage, recklessly causing injury, motor vehicle offences, and public transport offences.  She had two short periods of about 14 to 16 days on remand in 2013.

17In the plaintiff's first affidavit, she describes the course of her back symptoms in these terms:

"(17) Since the accident, I've had low back pain which has fluctuated in severity, until more recently when the pain has been severe."

"(21) My back always hurt with the window cleaning.  I was consuming some illicit and prescription drugs at the time, which helped to mask my pain."

"(23) I was struggling to manage the work because of my back pain.  My legs would sometimes twitch, which made it difficult for me to stand on ladders.  I trained my partner, Bianca Del Utias, in window cleaning, and I then started a business called Hectic Heights.  I worked as a sub-contractor for a few companies for about two years.  The company would pay for one person, but Bianca and I would share the work.  This allowed me to rest my back."

"(27) The back pain is about a seven out of ten when I am using medication.  I've tried to live with it.  There are some days when I struggle to get out of bed due to back pain."

18From 2013 the plaintiff sought medical treatment for her back pain.  An X-ray of the lumbar spine was undertaken on 24 September 2013 at the request of Dr Anne Cousens of the Heathmont Medical Centre.  The radiologist's report of that X-ray is as follows:

"There is some wedging of L5 '?' past trauma.  There is also degenerative narrowing of the L5-S1 intervertebral disc.  No other abnormality noted."

19The medical records from Dr Ledger indicate the plaintiff saw Dr Ledger about 18 times from 15 August 2005 to 12 June 2013 for a variety of issues but they contain no note of any complaint of back pain.  In the plaintiff's second affidavit she addressed this issue.  She stated:

"(4) I saw Dr Ledger from time to time and complained about back pain.  I am told that my clinical records show no formal recording of my complaints for a period of time."

"(6) I'm absolutely certain that I told Dr Ledger from time to time about my back pain.  I recall him on one occasion telling me that I had a slipped disc and that it would heal.  I had a lot going on in my life, including my mother's accident and drug problems.  I spoke to Dr Ledger about a raft of issues during consultations.  I accept that I probably did not go to Dr Ledger only for my back pain.  In addition, my back pain became more problematic in about 2013 when I stopped using drugs and drinking alcohol.  I believe that my drug and alcohol abuse was a form of self-medication."

20The plaintiff saw Dr Ledger in late 2013.  On 13 November 2013, Dr Ledger recorded that the plaintiff was having to undertake community service but was suffering with more back pain and she needed a certificate for light duties.  Dr Ledger noted the back injuries were from the motor vehicle accident in 2005.  On 26 February 2014 Dr Ledger noted the history from the plaintiff as follows:

"Says back pain has continued intermittently from MVA in 2005; taking legal advice and wants copies of old Hastings records (given)."

21Dr Ledger sent the plaintiff for a CT scan of her lumbar spine.  The CT scan was undertaken on 27 February 2014.  The radiologist's conclusion was as follows:

"Conclusion.  The major radiological abnormality is the presence of quite marked deformity in the anterior two thirds of the body of L5, almost certainly due to previous trauma, with resultant vertebral body compression.  Relevant images highlighted on MIA Direct."

22Dr Ledger discussed the results of the CT scan with the plaintiff on 4 February 2014.  He was of the opinion that the L5-S1 damage was as a result of the motor vehicle accident.  Dr Ledger had further consultations with the plaintiff in early 2014 and on 7 May 2014 he made a detailed note of the history he had obtained from the plaintiff.  It was as follows:

"History.  Mid-low back pain.  She was in a serious MVA in 2005 when she was an unrestrained backseat passenger in a car that hit a ditch and cartwheeled.  The other backseat passenger had a spinal fracture and was apparently airlifted to the Alfred, and the two male frontseat passengers had various facial injuries so it was quite an impact.  Stevie was only 15 at the time and her mother was hospitalised at the time after being injured when run over as a pedestrian so life was in turmoil for her at the time.  It's a long story!  Anyway Stevie discharged herself from hospital without much intervention, then ended up back in Frankston after wounds from the MVA turned to cellulitis, and then she had an MRSA infection.  The current situation is that she's pursuing a claim with lawyers through TAC, but there is precious little information about the original accident.  She has continued to suffer from back pain with leg radiation and cramping for years.  She has used all sorts of street drugs for pain, but now seems to have settled on Tramol 100 milligrams."

23In respect of the issue of causation, the plaintiff stated in her second affidavit:

"(17) There has been no incident in my life other than the motor vehicle accident where I have suffered back pain."

24The plaintiff has described much pain and suffering and the adverse effects of her back injury on her sleep, social, recreational, domestic, and employment activities. 

25In cross-examination, the plaintiff said she had experienced constant back pain since the transport accident and no back pain prior to the transport accident.  The plaintiff maintained that although there was no record in Dr Ledger's notes of any complaint of back pain from 15 August 2005 to 12 June 2013, she had sustained back pain and she had mentioned back pain to her GP. 

26The plaintiff agreed she had seen doctors for other medical conditions, such as a sore shoulder, during the period 2005 to 2013.  She also agreed that there was no medical record in that period showing any complaint of back pain. 

27The plaintiff was cross-examined extensively on various histories recorded by doctors and other practitioners. 

28The plaintiff was cross-examined about two specific incidents in which she was injured.  The first was an incident involving a trailer in Portland in August 2008.  Following this incident the plaintiff attended the emergency department of the Portland District Health in respect of right leg pain.  The second incident involved broken feet in a "heel click" incident in or about 2011.  Neither of these incidents had been referred to by Mr Kossmann in his report dated 3 February 2017.  Rather he had noted:

"Ms Caffrey told me that between 2005 and 2013 she was not involved in any further incidents where she had a fall or something similar."

29The plaintiff said she told Mr Kossmann of the trailer incident, but Mr Kossmann gave evidence that he was not told of this incident.  There was no suggestion in either the plaintiff's evidence or any medical record that the plaintiff had injured her back in either of these incidents.  Given the complete absence of any evidence of back injury in either of these incidents I find them to be entirely irrelevant.  Whilst Mr Kossmann acknowledged the theoretical possibility of the plaintiff suffering a compression fracture of the vertebra in such incidents I do not accept that the plaintiff suffered any back injury in either incident.

30The plaintiff was cross-examined about a history recorded by Hita Mistry on 1 June 2015 that the plaintiff had said she had to stop working at the start of the year as it would affect her TAC claim.  The plaintiff denied saying this to Hita Mistry.

31In cross-examination, it emerged the plaintiff was currently seeing a neurosurgeon, Mr Jin Tee, for chronic coccygeal pain.  She is a public patient.  An affidavit from the plaintiff's solicitors was filed which addresses the failure to obtain a report from Mr Tee.

32The plaintiff's mother has provided a brief affidavit.  She was cross-examined.  She stated that from a time shortly after the transport accident she was aware the plaintiff was experiencing back pain.  In or about 2007 the plaintiff complained to her that her back was especially bad in the morning.  On occasional visits between 2007 and 2012 the plaintiff would sometime mention the problems she had with her back. 

33In considering the issue of causation the nature of the transport accident is an important factor.  There is additional lay material in respect of the circumstances of the transport accident.  This is important evidence in respect of the mechanism of the alleged compression fracture injury.

34In the Victoria Police collision report there is the following description of the transport accident:

"Vehicle travelling south on Frankston, Flinders, left the road for unknown reason (possibly driver asleep).  Travelled on two‑metre‑wide gravel verge and table drain for 56 metres.  No evidence of braking until it struck private driveway earthworks.  Vehicle went airborne for ten metres, striking power pole, breaking same.  One passenger ejected by collision, and vehicle stopped almost at point of impact."

35Andrew Birch heard the collision at about 5 am on 9 August 2005, and he describes the aftermath of the transport accident in his police statement.  Senior Constable Paul Dunne attended at the accident scene at 5.15 am.  He spoke to the plaintiff.  She was complaining of back pain with no feeling in her legs.  Another female passenger suffered very significant injuries.

36I find that this transport accident was a particularly nasty high‑speed collision between the motor vehicle in which the plaintiff was a passenger and a pole. 

37The plaintiff was taken from the accident scene to hospital.  The Frankston Hospital records indicate the plaintiff was complaining of back pain.  She was also complaining of a tingling sensation in the leg, and pins and needles in both legs.  Her entire spine was X-rayed.  It is noted in the records that on examination there was no local tenderness on palpation of the lumbar spine.  The hospital records contain a note of a diagnosis of "soft tissue injury".

38Before analysing the medical evidence I shall deal with the plaintiff's evidence.  It was submitted on behalf of the defendant that the plaintiff was an unreliable and untruthful witness whose evidence, in the absence of independent contemporaneous supporting evidence, ought not be accepted.  In support of this submission, the defendant principally relied upon the following:

(1) Alleged lies told by the plaintiff about reporting the trailer incident to Mr Kossmann;

(2) Inconsistencies in histories to doctors and other practitioners, including the inconsistency between the plaintiff's evidence and the history recorded by Hita Mistry concerning work affecting the plaintiff's TAC claim;

(3) The plaintiff's illicit drug use;

(4) The plaintiff's criminal record;

(5) The absence of any note of complaint of back pain in Dr Ledger's medical records from 15 August 2005 to 12 June 2013;

(6) The failure of the plaintiff to disclose the trailer and heel click incidents;

(7) The absence of any history of back pain in Dr Owens' report;

(8) The failure of the plaintiff to mention a back injury in her police statement made in February 2006 although the plaintiff did say that immediately after the transport accident she could not move her legs;

(9) Attendances upon doctors for other medical conditions in the period from 2005 to 2013 without mentioning alleged back pain.

39Having had the opportunity to carefully observe the plaintiff in the witness box and having reviewed the voluminous material tendered in evidence I have come to the conclusion that the plaintiff was a reasonably straightforward and reliable witness on the critical issues of the circumstances and nature of the transport accident, her subsequent back pain, and the course and severity of her symptoms of back pain over the years. 

40I have arrived at this conclusion having taken into account, firstly, the plaintiff's youthfulness and immaturity.  She was only 15 years of age at the time of the accident.  Secondly, she was in a grossly dysfunctional situation.  She was home alone, her mother was badly injured.  Thirdly, the plaintiff was using illicit drugs.  From the time of the transport accident to about 2013 the plaintiff was a heavy user of illicit drugs.  She graduated from using speed to ice.  At times she drank to excess.  Her life was chaotic.  She committed criminal offences.  Fourthly, to her great credit in recent times the plaintiff has turned her life around.  She has stopped using heavy illicit drugs.  She has complied with court orders imposed upon her in respect of her criminal conduct.  She has taken active and positive steps in respect of investigation and treatment of her back pain.  Fifthly, her account of the circumstances of the transport accident is consistent with the contemporaneous evidence.  Sixthly, her description of ongoing symptoms is supported by her mother's evidence.  This evidence from the plaintiff's mother, albeit fairly brief, is important and it was not the subject of direct challenge in cross‑examination.  Seventhly, there are inconsistencies in the plaintiff's evidence but these are in respect of relatively inconsequential matters having regard to the issues in dispute and the nature of the plaintiff's back injury.  In my opinion, the trailer and "heel click" incidents are of no consequence.  Whether or not the trailer incident was described to Mr Kossmann or what the plaintiff said to Hita Mistry about her work and the TAC claim do not, in my opinion, impact upon the plaintiff's credit and reliability in respect of the critical issue of the nature and course of her symptoms over the years.  I accept the plaintiff's evidence that she did mention back pain on occasions to Dr Ledger although these comments probably did not loom large in any of the consultations between 14 August 2005 to 12 June 2013.

41Whilst I have had regard to all the medical reports and records tendered in evidence I only intend to briefly summarise some of this voluminous material.  It is not in issue that the plaintiff has an L5 compression fracture and it is as a result of previous trauma.  The plaintiff's general practitioner, Dr Ledger, has provided a series of reports and letters.  In my opinion it is clear from this documentation that he has been very familiar with the plaintiff's chaotic circumstances over the years. 

42I have already referred to his notes of consultations in 2013 and 2014.  In his first report, dated 11 March 2014, he states:

"During this period, Stevie was involved in another MVA and suffered back injuries and a period of hospital admission herself.  She was not compliant with advice or follow‑up medical treatment, and this is a trait which has persisted since that time.  Stevie has used and misused alcohol, street drugs, and prescription medications (both legally and illegally obtained) for much of the period since her original injury.

She suffered a traumatic injury to the body and disc of her L5 spinal vertebra and has had ongoing issues with back pain.  Stevie exhibits symptoms of posttraumatic stress disorder, chronic pain syndrome, depression and anxiety disorder, and in my opinion (although never formally diagnosed by a psychiatrist) she has traits of borderline personality disorder.  I believe her substantial use of various drugs in that time has been effectively self-medication for pain, depression, and anxiety."

43The report from the Heathmont Medical Centre, dated 4 December 2013, contains the comment:

"At the age of 15 years, Stevie was involved in a high-speed RTA when it is probable she suffered a crush fracture to her spine.  She absconded from the hospital."

1. Dr Ross Balson Gastroenterologist and Hepatologist, in a report dated 17 July 2017, states:

   "Prior to her serious motor car accident in 2005 when she was 15, Stevie Jade had no gastrointestinal problems.  Her injuries sustained in that accident, including the coccygeal fracture, and subsequent strong analgesics have resulted in a state of chronic constipation, currently exacerbated by an ongoing need for Tramadol."

   45Dr Balson was of the opinion that in terms of her gastroenterological condition, it had substantially stabilised and he expected further improvement with time if on an appropriate diet. 

   46Dr John Coleman, another Gastroenterologist and Hepatologist, was of the opinion:

   "Taking all of this into account, I think it is highly probable that her chronic constipation is contributed to by medication which she's taking for a chronic pain condition that she suffered after injuries received in a motor vehicle accident in 2005."

   47Mr Peter Moran, Orthopaedic Surgeon, examined the plaintiff at the request of her solicitors.  In his report, dated 5 March 2015, he expressed the following opinions:

   "Ms Caffrey presents with, I believe, a genuine structural injury to the lower back, which she attributes to a transport accident occurring in August 2005 when she was 15 years of age.  The injury that she described is certainly a very violent one, in which she was unrestrained in the rear seat of a car involved in a single‑vehicle collision. 

   The radiological appearance of the L5 vertebral compression fracture is quite unusual, but on balance is probably traumatic in origin, although an appearance of this type could also result from vertebral osteomyelitis.  There is no history, as I understand it, of additional trauma, nor has there been a history of systemic infection or hospitalisation for vertebral osteomyelitis.  On that basis, it's reasonable to attribute the radiological appearance and ongoing symptoms to the transport accident in question. 

   The long‑term consequences of this collision are quite significant in that she has evidence already of discogenic pathology at both L4-5 and at L5-S1,  and at this age it is inevitable that degenerative change in the lower lumbar segments will be progressive and almost certainly in the years ahead more disabling.  At this stage, I would consider her injury as stabilised and that further spontaneous improvement is most unlikely.  At this stage, surgical intervention is not indicated. 

   Based upon Ms Caffrey's work history, education, pain levels, medication, and nature of injury, I do not believe that she has a realistic capacity for employment.  Her prognosis is continued lower back pain and limited function."

   48The only medical witness to give evidence was Mr Thomas Kossmann,  Orthopaedic Surgeon.  In his report, dated 3 February 2017, he expressed the opinion that the plaintiff had suffered an L5 compression fracture with quite marked deformity of the anterior two thirds of the body of the L5 in the transport accident.  It was his opinion that the L5 vertebra fracture went undetected on the X-rays taken immediately after the accident at the Frankston Hospital.  He agreed with Anthony Kam, radiologist, who had expressed opinions that it was not unusual for such a fracture to be undetected and that detection of the L5 fracture may occur at a later point in time. 

   49Mr Kossmann was of the opinion that the plaintiff had no work capacity.  It was possible that she may never return to any employment in her lifetime, according to Mr Kossmann.  Mr Kossman was also of the opinion that on the balance of probabilities the anterior angulation of the coccyx was related to the transport accident.  His overall opinion, therefore, was that the plaintiff had suffered the L5 vertebra fracture and the anterior angulation of the coccyx in the transport accident on 9 August 2005, however the L5 fracture went undetected on X‑ray.  This was not unusual and detection of the L5 fracture occurred at a later point in time. 

   50Mr Kossmann has about 30 years' experience both here in Australia and overseas.  He was the head of the trauma department at the Alfred Hospital from 2001 to 2008.  He has much experience in spinal injuries resulting from trauma.  He explained the mechanism of injury.  This was a high‑speed transport accident.  The car was airborne before it struck a pole.  The plaintiff was not wearing a seatbelt.  He stated: (transcript 132)

   "If I can explain what I understood.  So what I understood, she was in the backseat.  I think that's a very important part in this whole evaluation of the accident.  The car actually was airborne and landed in a tree or something like this, and then crashed onto the ground.  I was also told that the seat in front of her had dislodged.  So from my understanding, from my experience what I have, there was significant force there and most likely she had what I call a jackknife movement because she was not restrained, which has then, in my opinion, caused this fracture, because I cannot explain it differently."

   He elaborated upon the mechanism of injury at transcript page 137.

   51The defendant obtained a report from the radiologist, Dr Anthony Kam.  In that report, dated 28 September 2016, he expressed the following opinions:

   "Whist Ms Caffrey did complain of lumbar back pain following the accident, there is little clinical evidence and no radiological evidence at the time to suggest she'd suffered a fracture to her L5 vertebral body as a result of the 9 August 2005 accident.  The available X-ray report from 9 August 2005 report suggests she had no fractural loss of vertebral height to L5. 

   Clinical records indicate she had no lumbar spine pain on clinical assessment/palpation at Peninsula Health emergency department, and that she was able to ambulate upon discharge at noon on the same day of the accident.  Clinical records taken during her early follow‑up review with her GP on 15 August 2005 also document no complaints of any lumbar back pain expected with a significant recent L5 spinal injury, spinal fracture. 

   I therefore believe it appears unlikely that Ms Caffrey suffered a fracture of L5 as a result of the subject transport accident.  I believe it is most likely that Ms Caffrey suffered a fracture to the lumbar spine during the period after the time of the 9 August 2005 radiographs, of many months to years prior to the 24 September 2013 lumbar spine radiographs."

   52The plaintiff was examined at the request of the TAC by Mr Roy Carey, Orthopaedic Surgeon. In his report dated 19 December 2016 he agrees with Dr Kam that any trauma which occurred to the L5 vertebra presumably occurred at some time after the stated motor accident, 9 August 2005.  He expressed the following opinion in that report:

   "Whilst it is on occasion possible for undisplaced fractures of the lumbar spine to become evident radiologically some time later, the (apparent) normality of the lumbar spine X‑rays, 9 August 2005, and the subsequent description of fractures some years later would back up the statement that it was highly unlikely that any L5 appearance seen 24 September 2013 and onwards related to the subjected motor accident, 9 August 2005."

   53I prefer and accept the opinions of Dr Ledger, Mr Moran, and Mr Kossman to the opinions of Dr Kam and Mr Carey for these reasons:

   (1) Dr Ledger is the plaintiff's treating general practitioner.  He was familiar with her unusual circumstances.  He saw her both at or about the time of the transport accident and on many subsequent occasions.  He saw the plaintiff for unrelated medical conditions and for her back pain.  Of all the doctors he has the most familiarity with the plaintiff and the course of her condition over the years.  He accepts the relationship between the transport accident and the compression fracture.

   (2) In my opinion, of all the doctors involved in this case, Mr Kossmann has the greatest expertise given his extensive experience in treating trauma patients.  I had the advantage of hearing Mr Kossmann give evidence and explain the nature and mechanism of injury.  I found him to have been an impressive expert witness.  He was impartial and objective.  I accept Mr Kossmann's opinions on the mechanism of injury.

   (3) I do not consider the diagnosis of "soft tissue injury" made at the Frankston Hospital to be important having regard to the very short time the plaintiff remained in hospital.

   (4) I find that the plaintiff did have symptoms of back pain of varying degrees of intensity over the years following the transport accident.

   54(5) As the plaintiff was such a heavy user of illicit drugs and consumed alcohol to excess and used prescription medication she may well have formed the view she was trying to self‑medicate, even though, as Associate Professor McDonough states, illicit drugs and/or alcohol were unlikely to mask pain symptoms.

   55I find the plaintiff was involved in a high‑speed collision when a passenger in a motor vehicle on 9 August 2005.  I find the plaintiff suffered an L5 compression fracture and anterior angulation of the coccyx as a result of the transport accident.  Due to the consequences of the medication she has taken she has developed chronic constipation. 

   56I accept the opinions of Mr Moran and Mr Kossmann on the effects of the spinal injury upon the plaintiff.  I accept the plaintiff's evidence in her affidavits of much pain and suffering, sleep disturbance, diminished social, recreational, and domestic activities and restricted employment.  The plaintiff has a long‑term impairment or loss of body function of the spine.  I find this to be "serious".  I am satisfied the consequences with respect to both pain and suffering and pecuniary disadvantage are "very considerable". 

   57I therefore grant leave to bring proceedings for the recovery of damages pursuant to section 93 of the Transport Accident Act 1986.

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