Cauchi v TAC
[2022] VCC 974
•28 June 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-04618
| RACHEL CAUCHI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 & 16 February 2022 | |
DATE OF JUDGMENT: | 28 June 2022 | |
CASE MAY BE CITED AS: | Cauchi v TAC | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 974 | |
REASONS FOR JUDGMENT
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Subject: Accident compensation
Catchwords: Serious injury; Spinal injury; Consequences
Legislation Cited: Transport Accident Act 1986 s 93
Cases Cited: Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260;
Stijepic v One Force Group Aust Pty Ltd and Another [2009] VSCA 181;
Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69;
TTB SMS Pty Ltd v Reading [2020] VSCA 203
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T. Tobin SC with Ms C. Moore | Maurice Blackburn |
| For the Defendant | Mr J. Ruskin QC with Ms V. Katotas | Transport Accident Commission |
HIS HONOUR:
Introduction
1Rachel Cauchi was struck as a pedestrian in a transport accident which occurred on 12 May 2014 in Bundoora. She lost consciousness and was taken by ambulance to the Royal Melbourne Hospital. She had a laceration to her scalp which required suturing and was aware of left-sided neck pain and some bruising elsewhere on the left side of her body. She remained in hospital over night and was then discharged. She needed to return to hospital a couple of days later after experiencing some fluid discharge from her nose. Fortunately there were no adverse consequences from that event.
2Ms Cauchi was working as a legal assistant on a full-time basis when the transport accident occurred. She was off work for about 10 days, and then returned to her employment whilst experiencing ongoing neck, left arm and buttock pain.
3In the present proceeding she seeks leave to claim damages in respect of injuries resulting from the transport accident on the basis that she has suffered a serious injury as defined in s 93(4)(d) of the Transport Accident Act 1996 (“the Act”). She relies on paragraph (a) of the statutory definition and identifies the body function said to be relevantly lost or impaired as her spine, with consequences including pain in the left arm and headaches. Ms Cauchi is presently aged 32 and is employed as a senior legal assistant on a full-time basis.
4Mr Tobin SC, who appeared with Ms Moore on behalf of the plaintiff, relied largely upon the consequences of Ms Cauchi’s injuries impacting upon her day-to-day activities as entitling her to a grant of leave, noting that she was only 24 years of age when the transport accident occurred. The medical evidence led to a conclusion that those consequences involving daily pain and an interference with a large range of domestic and some social and recreational activities would continue indefinitely. Mr Tobin SC described Ms Cauchi as likely to suffer a life‑time of chronic pain and restriction.
5Mr Ruskin QC, who appeared with Ms Katotas on behalf of the defendant, accepted that there were some adverse consequences resulting from the transport accident. Nevertheless when fairly viewed those consequences would not fall to be assessed as more than marked when compared with a range of other injuries. In the course of cross-examination of the plaintiff a considerable volume of surveillance material, taken between December 2020 and November 2021, was produced. Mr Ruskin QC submitted that the activities depicted by Ms Cauchi as recorded in the surveillance material supported the defendant’s submission that the consequences resulting from the transport accident would not entitle Ms Cauchi to the leave sought.
6In addition to the issue concerning the extent of consequences, this application was further complicated as Ms Cauchi had suffered similar injuries in an earlier transport accident, which had occurred in 2008. It also transpired that there had been a subsequent transport accident in 2019, although this later accident did not feature significantly in either party’s case.
7Ms Cauchi was the only witness required for cross-examination. Supporting affidavits sworn by her husband and her mother were tendered in evidence without either witness being required for cross-examination. The remaining evidentiary material was tendered from the respective party’s court books.
The lay evidence
8Ms Cauchi swore two affidavits in support of her application on 10 March 2020[1] and 29 November 2021[2]
[1]Exhibit A, pp 11 - 18
[2]Exhibit A, pp 22 - 26
9Her husband, Nicholas Attard, who had only known Ms Cauchi since 2018, also swore an affidavit in support on 29 November 2021.[3]
[3]Exhibit A, pp 19 - 21
10Finally, her mother Ann Eckersall, swore an affidavit in support of the application on 6 December 2021.[4]
[4]Exhibit A, pp 27 - 30
11In her first affidavit Ms Cauchi briefly described her background and made specific reference to having had previous issues with her neck, left shoulder and back.[5] She also made reference to the 2014 transport accident, although deposed to having no memory of its actual circumstances. Her first affidavit referred to her returning to work and her ongoing problems requiring the attention of her general practitioner with persisting pain in the neck, left arm, low back and left hip.[6]
[5]Exhibit A, p 12 [5]
[6]Exhibit A, p 13 [17]
12The affidavit referred to ongoing investigations and treatment. This treatment included medication, physiotherapy and chiropractic treatment.
13Ms Cauchi’s first affidavit also referred to an aggravation of her neck and shoulder pain in a further transport accident in April 2019.[7] Ms Cauchi also referred at some length to her ongoing symptoms and their impact on her life. She referred to significant pain and restriction in her neck and left arm, headaches “on and off” and low back and left leg pain:
“… which is constant and be 5 to 6 out of 10 … on a daily basis.”[8]
[7]Exhibit A, p 16 [33]
[8]Exhibit A, pp 16 [40] - 17 [43]
14She then described a number of consequences in her day-to-day life, including interruption of sleep, interference with recreational activities and some difficulties doing housework and other domestic activities.
15In her more recent affidavit Ms Cauchi went into considerable detail to describe her ongoing spinal pain and its impact upon her regular activities.
16It is unnecessary to recite each of the matters referred to in her affidavit, although it is perhaps best summed up as follows:
“Since the accident in 2014, my neck, left arm and low back pain is constant and has not resolved. These symptoms, in particular my neck and left arm, now cause daily pain and limitation to my activities.”[9]
[9]Exhibit A, p 23 [11]
17Ms Cauchi deposed in her second affidavit to having ongoing interruption of her sleep, difficulties with household tasks, including shopping, where she is heavily reliant upon her partner. She also described inability to return to activities such as netball or fitness activities on a regular basis.
18She had travelled overseas and stated that she would have to get up and walk around on flights and take medication for pain relief. Her social life had decreased and she had undergone a pain management course over approximately a seven month period during 2021. She was taking non‑prescription pain medication including “Panadol Osteo 4-6 a day, and Brufen 2-3 a day.”[10]
[10]Exhibit A, p 25 [36]
19Ms Cauchi’s recent affidavit also described having some unrelated health problems in October 2020, and noted that she had been diagnosed with hypothyroidism and had undergone surgery for gynaecological issues. Additionally she had changed employers but was performing the same type of work. She described receiving assistance from an occupational therapist to design a more comfortable work space, including a sit/stand desk which she described as assisting with her neck and back pain.[11]
[11]Exhibit A, p 25 [40] - 26 [43]
20In addition to the affidavit evidence which was tendered, Ms Cauchi gave some brief evidence in chief concerning the surveillance video taken on 7 November 2021. She stated that she had gone to the movies with her two brothers and her then fiancé as it was her birthday. Having seen the surveillance video she commented that after being at the cinema she had a sore and stiff neck. She stated that the video showed her rubbing her neck, which was not unusual for her.[12]
[12]Transcript (“T”) 17, Line (“L”) 11 to T 18, L 6
21When cross-examined Ms Cauchi gave the following evidence concerning her health issues prior to the transport accident.
· She had suffered from migraines from time to time requiring a medical attendance in July 2005. She stated that she had started wearing glasses in Year 11 at school:
“… so I would say I started to have eye problems at that point and they were putting it down to migraines until I was diagnosed to wear glasses.”[13]
· She recalled being involved in the motor vehicle accident on 1 September 2008 and as a result developed a sore neck. Ms Cauchi stated that she believed she recovered within a period of months, but also agreed that she had seen Professor Richard Stark, neurologist, around August 2011 with complaints of ongoing neck pain with radiation into the left arm.[14]
· She also agreed that if the records stated that in the few months leading up to August 2011 the symptoms had been present fairly consistently, that would accurately record what she had told the doctor.[15]
· Ms Cauchi agreed with a number of clinical records referring to the left shoulder and neck between 3 September 2008 and 8 January 2014.[16]
[13]T 21, L 18 to T 22, L 1
[14]T 25, L 7-17
[15]T 26, L 26 to T 27, L 20
[16]T 28, L 24 to T 32, L 11
22Ms Cauchi was also cross-examined about previous history of anxiety. Ultimately these matters were not relevant to the issues in dispute.
23Ms Cauchi was cross-examined on matters concerning her employment. At the time of the 2014 transport accident she was working at Slater and Gordon in Reservoir and completing a two year paralegal course at RMIT. She completed that course after the transport accident. She then transferred to Shine Lawyers in Melbourne:
“I just wanted to meet new people and get away from people asking me questions about being run over.”[17]
[17]T 32, L 26 to T 34, L 5
24Ms Cauchi agreed that she had become more skilled as a senior paralegal and moved back to Slater and Gordon in December 2020.[18]
[18]T 34, L 19 to T 35, L 26
25Ms Cauchi agreed in cross-examination that her treatment in recent times had involved a pain management course, non-prescription tablets, some Pilates and hydrotherapy which she intended to do a couple of times per week. She had not seen her general practitioner for a few months.
26Ms Cauchi agreed that she had recently married and had been on some trips, including Thailand and Cambodia in January 2017 for about four weeks, and to the USA in 2015, again for about four weeks. She had also travelled to England and Scotland in 2018. Ms Cauchi maintained that she had required medication to cope with the pain during these trips.
27Ms Cauchi agreed with the contents of photographs from social media showing various activities, including a picture of her and her then fiancé at the snow where she attempted to snowboard:
“I fell over and couldn’t do it and was really sore and we went home and we didn’t go back the next day.”[19]
[19]T 43, L 7-17 & Exhibit 1 pp 126 - 132
28Surveillance film was then shown during cross-examination. The first portion was taken on 26 December 2020 and showed Ms Cauchi shopping alone and taking that shopping to her car. The second portion of surveillance footage was agreed as showing Ms Cauchi shopping at Costco and returning to her car, lifting a cardboard box, which she identified as a box of coat hangers. She appeared to move freely in these first two videos and maintained she had taken medication to be able to go to the shops.
29A third surveillance film showed Ms Cauchi shopping at a supermarket in Lalor, which she described as being close to the Costco. This was also taken on 10 January 2021.
30A further film was shown which Ms Cauchi agreed showed her with her fiancé and her younger brother at Greensborough Plaza attending the movies on 7 November 2021. That film showed Ms Cauchi wearing a small backpack. She gave evidence that she was stretching her lower back while putting on the backpack. She agreed, on seeing this video, that she had been at the cinema for about two and a half hours. She was observed to be rubbing her neck just after leaving the cinema but remained at the shopping centre for approximately 45 minutes before leaving.
31Another video was shown to Ms Cauchi taken on 6 November 2021. She agreed this showed her in Doncaster where she was meeting with her wedding party to organise clothes. She agreed with Mr Ruskin QC that she was there for a few hours:
“We did the suits and then we went for lunch, as you can see, and then Nick and I had to try and look for a few other things for the wedding.”[20]
[20]T 55, L 22-27
32The surveillance video taken on 6 and 7 November 2021 showed Ms Cauchi using stairs at both the cinema and the shopping centre complex on each day.
33Further surveillance video taken on 8 March 2021 when Ms Cauchi was attending a car wash, and on 13 March 2021 when Ms Cauchi was attending a child’s birthday party, was also shown to her. She was seen to be unloading platters of food in that video.
34When re-examined Ms Cauchi was asked to comment on some of the movements which were observed in the surveillance video. She stated that she had done a stretching movement on one occasion, which was to alleviate sharp pain and take pressure off her back. On another occasion she was observed to raise her left hand and stretch, again due to pain and discomfort. She also clarified the situation prior to the 2014 transport accident stating that her neck and shoulder pain would “come and go.” She also stated that by 2012 or 2013 she was attending gym and playing netball.[21]
[21]T 64, L 20 to T 65, L 3
35The supporting affidavits sworn by Ms Cauchi’s husband and mother require little comment. Her husband, Nicholas Attard, has known her since 2018 and moved in with her around 2019. He had observed her taking medication and attending physiotherapy. He observes her in pain on a daily basis and sees her moving and stretching her neck and left shoulder frequently. He describes doing heavier domestic activities and notes her complaints about lifting the left shoulder above her head.[22]
[22]Exhibit A, p 19 [2] - [8]
36Ms Cauchi’s mother, Ann Eckersall, described Ms Cauchi as being “clean, neat and organised and assisting with household activities prior to the 2014 transport accident.” She had observed Ms Cauchi massaging her hands, neck, left shoulder and arm. She had observed her daughter taking her left arm off the wheel when driving, telling her that she is in pain. Ms Eckersall also notes her daughter’s complaints about not sleeping well, stating that pain wakes her during her sleep. She also made observations of Ms Cauchi after she had moved out of home in 2017. She deposed to assisting her daughter with the housework, “she struggles to do these chores with pain.”[23]
[23]Exhibit A, pp 27 [3] - 29 [20]
The medical evidence
37Much of the medical material tendered in evidence was somewhat dated. Given the transport accident had occurred in 2014, this was not surprising. Ms Cauchi’s recent treatment has been provided by Dr Puvanakumar at the Mill Park Super Clinic. Three reports from Dr Puvanakumar dated 30 September 2020, 14 October 2020 and 13 April 2021 were tendered in evidence.[24] Dr Puvanakumar had been treating Ms Cauchi since early 2019 and referred her to Dr Terence Lim in early 2020.
[24]Exhibit A, pp 130, 136 to 138 & 139 to 142
38In the most recent report Dr Puvanakumar records the diagnosis as follows:
“Post traumatic stress disorder (PTSD)
Chronic pain – Left sided neck, shoulder girdle, arm and Left sided hip pain.”[25]
[25]Exhibit A, p 139
39Dr Terence Lim provided a report to Dr Puvanakumar on 10 March 2020.[26] He noted that she was, at that time, attending a physiotherapist fortnightly and undertaking twice-weekly clinical Pilates. She was also seeing a psychologist. Dr Lim recorded that Ms Cauchi was taking what he described as “minimal medications”, which at that time was Panadol Osteo, four to six per day and Brufen, two to three per day. Dr Lim commented on the radiological material noting minor disc protrusion in the cervical spine, but without evidence of neural impingement. He also noted mild subdeltoid bursitis on both shoulder ultrasounds taken in June 2019. There were further comments directed to the left hip.
[26]Exhibit A, pp 125 - 126
40Dr Lim described Ms Cauchi as suffering from persisting pain and noted central sensitisation which he described as an organic change in the central nervous system pain pathways resulting in ongoing pain generation:
“Once established, there is no cure and thus, no cure for chronic pain. However, there are self-help techniques and strategies aimed at improving pain control as well as restoring a more appropriate (not necessarily normal) level of functioning.”[27]
[27]Exhibit A, p 126
41Dr Lim provided a further report to Ms Cauchi’s solicitors dated 7 February 2022.[28] He confirmed that he had last reviewed Ms Cauchi on 26 August 2021, having seen her on a number of occasions while she was engaged in a pain rehabilitation program.
[28]Exhibit A, pp 151 - 158
42Dr Lim commented further on the features of central sensitisation in the body of his report and diagnosed Ms Cauchi as suffering from chronic pain, noting that:
“… she did have physical evidence of the development of central sensitisation.”[29]
[29]Exhibit A, p 153
43Dr Lim described in considerable detail the progress which Ms Cauchi had made during the course of her program. Following his most recent examination of her on 26 August 2021 he noted:
“She reported that she was doing a little better utilising the self-help techniques and strategies – no recent flares of increased pain, which is a ‘win.’”[30]
[30]Exhibit A, p 157
44As to her prognosis Dr Lim described this as “good”:
“… she can remain with good pain control and maintain an appropriate level of functioning (below her centrally sensitised, lowered pain threshold) provided she continues to utilise the self-help knowledge, techniques and strategies she has learned through active engagement in her NERC pain rehabilitation program and importantly, to keep ‘below threshold’. There will be occasions some time in the future when she might require a referral back for reassessment with a view to revising the self-help techniques and strategies, which might have changed through the development of further insights into chronic pain and its combination of co-contributing factors, applied from ongoing scientific research.”[31]
[31]Exhibit A, p 157
45The recent medical material relied upon by Ms Cauchi also included a report from Dr Lyndall Daley, chiropractor, dated 28 April 2021.[32] Dr Daley diagnosed Ms Cauchi’s injury as a “chronic Grade 3 whiplash associated disorder (WAD) with neurological symptoms.”[33] She described Ms Cauchi as showing neurological symptoms in her hands and recording pain at between 3-7/10 on a visual analogue scale. Dr Daley described Ms Cauchi as improving in the severity and frequency of her symptoms with consistency of care, but noted treatment had been discontinued as a result of funding issues from 31 March 2021.
[32]Exhibit A, p 149
[33]Ibid
46The only up-to-date medico-legal report relied upon by Ms Cauchi was that from Professor Richard Bittar, neurosurgeon, dated 26 July 2021.[34] Professor Bittar recorded her complaints as neck pain, left arm pain (brachialgia), lower back and left leg pain and cognitive impairment.[35] Professor Bittar also noted a prior history of thoracic outlet syndrome, which was related to her previous transport accident in 2008. He noted that she had made a full recovery from that condition. In particular he stated:
“She did not have any ongoing issues in relation to these symptoms and did not have any restrictions on her physical activity or treatment requirements leading up to the subject transport accident of May 12, 2014.”[36]
[34]Exhibit A, pp 73 - 102
[35]Exhibit A, p 74
[36]Ibid
47Professor Bittar reviewed the radiological imaging and noted disc desiccation in the lower cervical spine with disc bulging but no neural compression. He also described some osteophytic encroachment at the C6 level and described contact being made with the left C7 nerve root. These comments related to MRIs of the cervical spine and left shoulder taken in March and May 2015. A later cervical spine x-ray performed on 18 April 2019 demonstrated what Professor Bittar described as “multilevel disc desiccation without any neural compression.”[37]
[37]Exhibit A, p 77
48On examination Professor Bittar noted Ms Cauchi having left-sided cervical and paravertebral tenderness, also on the left side. He also commented that she had mild restriction of lumbar spine flexion and was quite uncomfortable. He also noted mild restriction of cervical spine movements, including flexion, extension and rotation to the left.
49Professor Bittar diagnosed Ms Cauchi as suffering from:
“Aggravation of cervical spondylosis with neck pain and left brachialgia (arm pain).”[38]
[38]Ibid
50He also recommended further investigation in order to clearly diagnose what he described as a probable injury to the lumbar spine.[39]
[39]Ibid
51Professor Bittar described Ms Cauchi’s prognosis as guarded:
“She has been significantly symptomatic for seven years, and her condition is unlikely to change to any significant degree into the foreseeable future.”[40]
[40]Exhibit A, p 78
52Mr Tobin SC also tendered into evidence the report from the Royal Melbourne Hospital dated 8 August 2016,[41] which set out details of the initial treatment received by Ms Cauchi following the transport accident. This report confirms that she was initially treated for a deep laceration on her scalp and had left elbow and thigh abrasions, which is consistent with the history recorded by her later treating medical practitioners and the medico-legal specialists retained by Ms Cauchi’s solicitors.
[41]Exhibit A, pp 120 - 121
53Mr Ruskin QC tendered into evidence two medico-legal reports from Mr Gary Speck, orthopaedic surgeon, dated 29 November 2021 and 4 January 2022.[42] Mr Speck examined Ms Cauchi on 23 November 2021. His first report reveals a very detailed history and a similarly detailed review of the medical imaging and records which had been provided to him.
[42]Exhibit 1, pp 33 - 67
54Mr Speck formed the view that Ms Cauchi may have sustained a soft tissue injury to her neck and back in the transport accident of May 2014. He regarded her current presentation as “one of a chronic pain syndrome.”[43] His diagnosis was as follows:
“Miss Cauchi sustained a head injury in the transport accident of 12/5/14 with scalp laceration. She also sustained soft tissue injuries to the neck and left shoulder and perhaps low back. There is no evidence of radiculopathy in the upper or lower limbs, no evidence of spinal cord injury and no imaging evidence of discoligamentous injury or vertebral structural injury to the cervical or lumbar spine. Her current presentation is of a chronic pain syndrome.”[44]
[43]Exhibit 1, p 56
[44]Ibid
55Mr Speck provided a supplementary report on 4 January 2022, after viewing the surveillance footage taken of Ms Cauchi between 26 November 2020 and 7 November 2021. In his supplementary report Mr Speck stated:
“Her observed movements of neck and back throughout the videos do not indicate any restriction of particular movements. The measurements taken and observation during the interview and examination on 23/11/21 by myself indicate near normal ranges of movement consistent with the observed free movement of the neck and thoracolumbar spine on the provided surveillance videos.
I found nothing on the videos to alter my opinion as to her musculoskeletal injuries from the subject motor vehicle accident being of resolved soft tissue injury.”[45]
[45]Exhibit 1, p 66
56The defendant also relied upon a medical report from Associate Professor Richard Stark, neurologist, dated 4 August 2011.[46] Associate Professor Stark had treated Ms Cauchi following the 2008 transport accident and noted in the body of his report that Ms Cauchi had suffered some ongoing neck pain with perhaps some radiation into the left arm as a result of that collision. At the time of his report to the treating general practitioner in August 2011, Associate Professor Stark noted:
“In essence these symptoms have flared up intermittently since 2008 but in the last few months have been present fairly consistently.”[47]
[46]Exhibit 1, pp 5 - 6
[47]Exhibit 1, p 5
57His opinion at that time was that there was a component of thoracic outlet syndrome involved in her left arm symptoms:
“This would certainly explain fluctuating symptoms in the arm. Often where there is mild thoracic outlet syndrome the best treatment is a series of exercises aimed at elevating the shoulder girdle.”[48]
[48]Exhibit 1, p 6
58Associate Professor Stark recommended some ongoing physiotherapy, but did not anticipate any long-term problems with Ms Cauchi’s neck.
59Mr Ruskin QC also tendered into evidence medico-legal reports from Mr John O’Brien, orthopaedic surgeon, dated 8 March 2016 and Mr David Brownbill, neurosurgeon, dated 5 October 2016 and 11 October 2016.[49]
[49]Exhibit 1, Plaintiff’s Court Book (“PCB”) pp 31 - 37; 57 - 66
60At the time of his examination on 8 March 2016 Mr O’Brien noted Ms Cauchi was reporting constant neck and low back pain which had been treated conservatively. In his report he stated:
“Current physical signs indeed are subjective and indeed, rather mild. There is some restriction of movement of the cervical and lumbar spine, however, there is no current evidence of nerve root compromise or radiculopathy. …
I would therefore conclude that this patient now has non‑specific cervical and lumbar pain, which most likely relates to the ongoing effect of soft tissue injury to the cervical and lumbar spine.
…
This history of what is now described as chronic pain, would suggest a stable clinical situation.”[50]
[50]Exhibit 1, PCB p 34
61Mr Brownbill, neurosurgeon, examined Ms Cauchi at the request of her solicitors on 5 October 2016. He provided a report of the same date. He recorded a history noting that Ms Cauchi had previously been told:
“… ‘I had thoracic outlet syndrome on the left side but that had resolved.’”[51]
[51]Exhibit 1, PCB p 57
62Mr Brownbill did not anticipate any untoward neurological sequelae from the transport accident. As to diagnosis he stated:
“I consider this lady sustained a mild concussive head injury but without neurological abnormality on examination or on radiological investigation. She has also sustained some soft tissue injures to structures about the cervical spine with ongoing pain without neurological abnormality. There is no ongoing back pain and examination on 5th October 2016 has shown a full range of thoraco lumbar spinal movements.”[52]
[52]Exhibit 1, PCB p 61
63Mr Brownbill noted that Ms Cauchi did not require any ongoing neurological treatment, but regarded the use of analgesics, particularly during periods of neck pain exacerbation as appropriate. He believed her condition had substantially stabilised at that time.
64Mr Brownbill’s supplementary report dated 11 October 2016 related to Ms Cauchi advising him of pain and numbness affecting the left hip. He stated that the hip pain was likely to be orthopaedic in nature and did not alter his earlier opinion.[53]
[53]Exhibit 1, PCB p 66
65Mr Ruskin QC tendered into evidence two reports from a psychiatrist, Associate Professor Mark Taylor, dated 22 June 2021 and 23 July 2021.[54] These reports were ultimately not relevant to the issues in dispute, but supported a conclusion that Ms Cauchi’s spinal injury was organic in nature.
[54]Exhibit 1, pp 7 - 32
66Finally, medical records from the Rex Medical Centre and the Summerhill Medical Centre, which had been referred to during cross-examination were tendered in evidence.[55]
[55]Exhibit 1, pp 70 - 115
Further evidentiary material
67Mr Ruskin QC tendered into evidence extracts from Ms Cauchi’s Facebook and Linkedin accounts which had been referred to during cross-examination.[56]
[56]Exhibit 1, pp 126 - 134
68Additionally the surveillance footage taken between 26 December 2020 and 7 November 2021, which had been shown to Ms Cauchi during cross‑examination, was also tendered into evidence.[57]
[57]Exhibit 2
Analysis
69I am satisfied that Ms Cauchi suffered a direct traumatic injury to her head in the transport accident on 12 May 2014. I am also satisfied that as a result of that direct blow to the head she has suffered what could perhaps best be described as a whiplash-type injury to her spine.
70In the circumstances of Ms Cauchi’s application it is of little consequence whether the diagnosis of injury is an organically driven pain syndrome, as described by Dr Lim, an aggravation of underlying spondylosis, as postulated by Professor Bittar, or a soft tissue injury impacting the neck and left shoulder area as described by Mr Speck.
71Quite properly in my view, Mr Ruskin QC did not argue in final address that there were no ongoing consequences resulting from the 2014 transport accident. He did not submit they were related to the earlier incident.
72The submission ultimately advanced on behalf of the defendant was that the consequences impacting Ms Cauchi, when compared with a range of other or similar consequences, could not fairly be described as more than marked and not at least very considerable, as would be required if leave were to be granted.
73Mr Tobin SC submitted that the injury impacting Ms Cauchi’s spine in the transport accident should be described as one of an organic type with such a view being endorsed by Dr Lim and the treating general practitioner, Dr Puvanakumar.
74Dr Lim in particular had an opportunity to assess Ms Cauchi on a number of occasions in recent times and on that basis his opinion should be given considerable weight. Further, Mr Tobin SC submitted that the reports from the psychiatrist, Professor Taylor, which had been tendered in evidence by the defendant, concluded that there was no psychiatric diagnosis applicable as a consequence of the May 2014 transport accident.[58]
[58]Exhibit 1, p 19
75I agree with this submission. Associate Professor Taylor supports a conclusion favouring an organic basis for injury in commenting that Ms Cauchi was seen to stretch the left side of her neck on occasions whilst being examined by Associate Professor Taylor.[59]
[59]Ibid
76I am satisfied on balance that the injury to the spine resulting from the May 2014 transport accident is an organic injury, most probably of the type described by Dr Lim.
77I am unable to accept the opinion of Professor Bittar that the transport accident in 2014 produced an aggravation of underlying spondylosis in circumstances where there is strong disagreement with such an opinion expressed by Mr Speck as to the insignificant nature of the radiological changes observed in the various imaging studies. Nevertheless, I am satisfied that the injury impacting Ms Cauchi’s spine is of an organic nature.
78I am also prepared to accept, as submitted by Mr Tobin SC, that the symptom complex producing headaches and symptoms in the left shoulder area is a consequence of the organic injury to the spine.
79The real question remains as to whether or not those consequences, when compared with a range of other or possible consequences, can fairly be described as more than significant or marked to the extent of being at least very considerable. I should also comment that there was no argument advanced on behalf of the defendant to submit that the consequences which fall to be assessed are not properly described as being long-term, as required by s 93(4)(d) of the Act.
80I also accept the submission advanced by Mr Tobin SC that Ms Cauchi exhibited considerable stoicism in persisting with her career and doing her best to go about aspects of her day-to-day life, albeit that she suffers pain on a daily basis.
81I also accept that Ms Cauchi was 24 years of age at the time the transport accident occurred, and those consequences are likely to persist indefinitely and therefore should be weighed more heavily in favour of a grant of leave than for a person suffering a similar injury, but at a more advanced age.
82Mr Tobin SC also submitted that the consequences of her ongoing pain impacted her sleep, her day-to-day activities, and potentially her role as a mother in the future.
83Whilst I accept much of the argument advanced by Mr Tobin SC in terms of the relative seriousness of an injury to a younger person, I must decide this application on the evidence before me, and not upon potential or speculative problems that may or may not arise in the future.
84The authorities to which I was referred by counsel included Dwyer v Calco Timbers Pty Ltd (No 2)[60] and Stijepic v One Force Group Aust Pty Ltd and Another.[61] Additionally the evaluation of pain and suffering consequences arising from an injury has been extensively canvassed by the Court of Appeal in Haden Engineering Pty Ltd v McKinnon.[62]
[60][2008] VSCA 260
[61][2009] VSCA 181
[62][2010] VSCA 69 at [9] - [17]
85More recently the Court of Appeal considered the assessment of pain and suffering consequences in TTB SMS Pty Ltd v Reading[63] where the court affirmed the application of the principles set out in Dwyer and Haden Engineering in particular where the court was required to determine whether the pain and suffering consequences of an injury satisfied the serious injury threshold.
[63][2020] VSCA 203
86Even accepting the validity of Ms Cauchi’s complaints of ongoing pain, the consequences on her day-to-day life, indeed her professional working life, are not great. In terms of her employment, she has managed to progress through a legal career and has not demonstrated any inability to return to her paralegal and senior legal assistant roles on a regular basis.
87Although Ms Cauchi has deposed to an inability to return to activities such as netball or attending the gym for fitness, she agreed in cross-examination that she had recently married and had travelled internationally for periods of approximately four weeks in 2015, 2017 and 2018.
88She was also taken in cross-examination to photographs from her social media, which recorded what I regarded as activities that were inconsistent with a person suffering constant or even regular disabling pain. Similarly, the surveillance footage did show Ms Cauchi on occasions stretching or moving in a manner that seemed affected by some degree of pain, it generally showed her going about her day-to-day life in a relatively normal fashion. In particular the surveillance footage taken on 6 and 7 November 2021 demonstrate an ability by Ms Cauchi to go about her day‑to-day activities in a manner which would seem inconsistent with a person suffering from constant or at least very frequent episodes of spinal pain which could fairly be described as at least very considerable.
89I accept Ms Cauchi is taking non-prescription medication, probably at a level to which she has deposed. I also accept that she does suffer from spinal pain, mainly in the neck region, with some radiation to the left shoulder and headaches. Nevertheless she has managed to persist with her employment, recreational and social activities at what I regard as a very high level. She may well have some degree of interference with her sleep. Nevertheless it does not appear to have produced demonstrably adverse consequences for her.
90In the final analysis Mr Tobin SC argued that Ms Cauchi was a young lady who prior to this accident had no pain and now she is left without a pain free life and that will persist indefinitely into the future.
91Even accepting the evidence provided in the affidavits sworn by her husband and her mother, I cannot be satisfied that Ms Cauchi’s consequences resulting from the transport accident could fairly be described as anything more than significant or marked.
92Finally, I should note that no submission was advanced on behalf of the defendant that the consequences falling to be assessed in this application should in any way be attributed to the earlier 2008 transport accident, nor discounted due to further injury sustained in the 2019 transport accident.
93On any view, accepting the evidence as I have found it, I am unable to be satisfied that Ms Cauchi has satisfied the statutory test. This application must fail.
Conclusion
94I am unable to grant leave to Ms Cauchi in accordance with the provisions of s 93(4)(d) of the Act.
95I propose to dismiss the application.
96I will hear the parties in respect of the formal orders sought and on the question of costs.
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