Chaudhry v Transport Accident Commission

[2020] VCC 416

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-17-04908

FARKHANDA NASEEM CHAUDHRY	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	2, 3 and 4 March 2020
DATE OF JUDGMENT:	8 April 2020
CASE MAY BE CITED AS:	Chaudhry v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2020] VCC 416

REASONS FOR JUDGMENT
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Subject:  TRANSPORT ACCIDENT

Catchwords:           Serious injury – impairment to the spine – causation 

Legislation Cited:     Transport Accident Act 1986, s93

Cases Cited:Richards & Anor v Wylie (2000) 1 VR 79; Transport Accident Commission v Zepic [2013] VSCA 232; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Davies v Nilsen & Transport Accident Commission [2014] VSCA 278; Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181

Judgment:     Leave granted to being proceedings for damages. 

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms M Hartley QC with Ms C Moore	Zaparas Lawyers
For the Defendant	Mr A Moulds QC with Ms D Manova	Solicitor to the Transport Accident Commission

HER HONOUR:

Introduction

1 This is an application brought by an Originating Motion for leave pursuant to s93(4)(b) of the Transport Accident Act 1986 (the “Act”), to bring proceedings to recover damages for injuries suffered by the plaintiff arising out of a transport accident which occurred on 22 July 2009 (“the accident”).

2 The application is brought pursuant to s93(4)(d) of the Act. Sub-section (6) provides:

“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”

3       

The definition of serious injury relied upon by the plaintiff is under

s93(17)(a):

“Serious long-term impairment or loss of body function.”

4       The body function relied upon by the plaintiff in this application is the spine.

5       The enquiry under ss(a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term. 

6       An application pursuant to ss(c) for psychiatric impairment was withdrawn by counsel for the plaintiff during closing addresses.[1]

[1]Transcript (“T”) 275

7       The serious injury defined by sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment.  What it will not recognise is that the mental disorder can itself constitute or be the producer of the impairment of a body function.[2]

[2]Richards & Anor v Wylie (2000) 1 VR 79

8       In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described at least “very considerable” and more than “significant” or “marked”.

9       The plaintiff relied on two affidavits and gave viva voce evidence.  She was cross-examined.  She also relied on an affidavit sworn by her sister, Shagufta Baji, on 28 February 2020.  Dr Sheriff was required for cross-examination.   

10      In addition, both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material.

The Plaintiff’s evidence

11      The plaintiff is presently aged thirty-six, having been born in Pakistan in June 1983.  She came to Australia with her family in about 1999 to live with her father, who was already working here.

12      The plaintiff undertook a short English course and about three years of secondary schooling, completing Year 10.  In about 2002, she returned to Pakistan, where she married her husband, Mohammad, in an arranged marriage, meeting him on their wedding day.

13      On her return to Australia, the plaintiff completed a computer course at Victoria University and began working as a cashier at Coles on a casual basis.

14      Mohammad arrived in Australia in about May 2003.  The plaintiff then stopped working because Mohammad did not want her to work, and they were also intending to start a family.  Between 2004 and 2006, the plaintiff had a daughter (Anna) and two sons (Hussan and Hussnain).

15      The marital relationship became strained after Mohammad’s arrival in Australia.  They argued frequently as he was sending money back to his family in Pakistan.  They were struggling financially in those circumstances and the plaintiff was worried they would not be able to support their growing family.  These arguments became worse after the birth of their second child.

16      The plaintiff agreed that she had back pain during her first pregnancy in 2004, but that pain did not continue during other pregnancies.[3]

[3]T22

17      The family moved to Brisbane in about 2005, where Mohammad found work.  They stayed for about six weeks but then decided to move back to Melbourne where they preferred living.

18      In about 2006, their marital relationship declined.  Mohammad was upset when the plaintiff became pregnant with their third child. He became increasingly abusive and violent towards her, and to a greater extent their daughter.  He also threatened that he was going back to Pakistan to marry a second wife. 

19      The plaintiff began to have headaches and was referred to neurologist, Dr Freilich.  She underwent a brain CT scan and was treated with medication.  She also had problems with her sight and was prescribed glasses.

20      In about 2006, the plaintiff and Mohammad separated for a short period. 

21      The plaintiff could recall seeking to revoke her sponsorship for Mohammad and also speaking to a social worker about this issue, but nothing came of it.  Her letter dated to the Visa officer dated 27 March 2006 was not sent.  The events listed in that letter were happening – Mohammad’s lack of financial and practical support when she had to care for young children; a lack of interest in her health; verbal abuse and intimidating behaviour, and his intention to marry a second wife in Pakistan.[4] The plaintiff agreed that Mohamad’s behaviour was extremely upsetting for her.[5]

[4]T25-26

[5]T27

22      After they decided to reconcile, the plaintiff’s parents and siblings were not supportive and had limited contact with her; however, Dr Firestone was wrong reporting that the plaintiff’s father did not speak to her for eleven years after the separation.  He spoke to her about five or six months later.[6]  Her brother speaks to her a little bit.  Some people in the Muslim community thought it was a divorce and others did not.[7]

[6]T37

[7]T39

23      After the reconciliation, the plaintiff and Mohammad continued to argue frequently and he was abusive towards her and the children.  She became very stressed and depressed and her headaches continued.

24      On 24 February 2007, the plaintiff attended Sunshine Hospital Emergency after a particularly severe episode. There, she was put in a wheelchair.  She was crying a lot and could not move.  She was having chest pain.[8]  She “flung” herself to the floor because she was in so much pain and did not want to sit in the wheelchair.  She was not seen at the hospital and was carried out by her relatives who were with her.[9] 

[8]T28

[9]T31

25      It could be possible as at February 2007, the plaintiff was being prescribed Lexapro and Temaze.  She was taking tablets because “there was fighting going on” with her husband.[10] 

[10]T30

26      On 24 February 2007, the plaintiff also went to Footscray Hospital. She agreed, as it was noted, that she had onset of severe headaches, vomiting and diarrhoea that morning.  She denied she then reported having had five months of multiple symptoms, including forgetfulness and paraesthesia, in all four limbs.[11] 

[11]T43

27      After February 2017, the plaintiff “got well” and she stopped taking tablets.[12] She was not taking them before the accident.[13] She and Mohammad were “living together happy”.  They reconciled about two years before the accident.  It was “two years of happy living”.[14]  She did not need any counselling in that period during which Mohammad did not assault her, but he did assault her in 2006.[15]

[12]T32

[13]T33

[14]T34

[15]T35

28      In about May 2007, the marital relationship broke down. The plaintiff discovered that she was pregnant with their fourth child and that Mohammad had mortgaged the house to send further money to his family in Pakistan.

29      When the plaintiff saw Dr Sherriff on 17 May 2007, she was then pregnant and she had been physically abused by Mohammad.  He hit her on her right shoulder and asked her to leave the house.  She told Dr Sheriff that Mohammad had threatened to kill her several times with a knife, and once he did pick up a knife. 

30      The plaintiff went to the police on 21 May 2007 and had some help from a social worker.  An intervention order was granted against Mohammad.  The plaintiff and the children lived with her family for about a year and had very limited contact with him.

31      In late 2007, Mohammad forced the plaintiff to take the pill and after all that they reconciled; they were living together.[16]  They would have “little fights every now and then”.[17]

[16]T41

[17]T42

32      In around early 2008, the plaintiff and Mohammad reconnected.  He insisted that he would be better, and she felt some pressure to reconcile for the childrens’ sake.  That reconciliation occurred after a mufti had confirmed they had not had an Islamic divorce and that they continued to be husband and wife.  They recommenced cohabitation in about April 2008. Occasional headaches continued, which the plaintiff managed with medication. She generally felt better and the marital relationship improved a lot.

33      The plaintiff agreed she saw Dr Sheriff in September 2008 with occipital headaches, for which she took Panadeine Forte.[18] She continued to have migraines up until the time of the accident, every three months, or less frequently.  She was prescribed Imigran in June 2009.  She took it three or four days and then stopped taking it.[19]  She did not “eat” this medication.[20]

[18]T47

[19]T42

[20]T45

The accident

34      On the said date, the plaintiff was involved in the transport accident.  Her three children were seated in the rear of the car.  A truck made a right-hand turn across the path of her vehicle without giving way and collided with her vehicle.  Her car was pulled to the left and the airbag in front of her went off.  She then got out of the car and attended to her children. 

35      The plaintiff was given painkillers at the scene by ambulance officers and was taken to the Royal Melbourne Hospital (“RMH”), where she stayed overnight.  She had x-rays of her chest and pelvis, as well as CT scans of her head, neck, pelvis and back.  She was eventually discharged with painkillers.

36      At the RMH after the accident, the plaintiff complained of left side chest, neck, shoulder and back pain.  In the witness box she indicated the back pain was from the level of her bra strap down to belt level.[21]

[21]T48

37      The plaintiff was cross-examined about the RMH note that read “complained of chest pain, neck pain and abdominal pain”.[22]  When it was suggested to her she had made no complaint of back pain, she said she told the nurse and then they did a full-body scan, a CT scan.[23]

[22]T50

[23]T51

38      Two days later, the plaintiff saw Dr Sheriff, who arranged an ultrasound of her left breast, shoulder and a chest x-ray later that month.  She told him her lower back was sore and she could remember also complaining of left shoulder, left hip, left chest and left pelvic pain.  She thought he organised a test of her lower back.[24]

[24]T57

39      Dr Sheriff also referred the plaintiff to a chiropractor, Ms Haddad, whom she saw weekly for several months.  That treatment did not really help, as she continued to have pain in her neck, chest, left shoulder and back.

40      Dr Sheriff referred the plaintiff to rheumatologist, Dr Stockman, whom she saw in late 2009.  He suggested a shoulder injection but told her that it would result in temporary improvement at best.  She was too scared to have the injection.  She had ongoing neck pain with worsening headaches spreading into her left shoulder, and back pain.  She told Dr Stockman about all the pains from which she was suffering.[25] 

[25]T70

41      Dr Sheriff also referred the plaintiff to Lifecare in St Albans in about the second half of 2010, where she had physiotherapy, counselling and was shown various exercises to do.  That treatment did not really help.  When it was suggested to the plaintiff she was only treated at this practise for her shoulders and her neck, she responded “I do not recall about the back”.[26]  She had been “going and talking about things,” she did not remember.[27]

[26]T63

[27]T66

42      In late 2010, Dr Sheriff arranged for the plaintiff to have acupuncture at his clinic with Sandy Agarwal; however, that treatment also made little difference to her symptoms.  She was seen four times in late 2010 and once in November the following year.  She did not remember what she complained about at that time.  She had been telling treaters like Ms Thompson and Mr Aggarwal constantly about where the pains were.[28]

[28]T70

43      The plaintiff became more irritable and anxious at the lack of improvement in her neck, back and left shoulder pain and Mohammad was not understanding of her injuries.  They had further arguments and Dr Sheriff referred her to a psychologist, whom she started seeing in 2011, once a month, on several occasions.  There were, however, difficulties communicating with the psychologist, and talking about her problems seemed to upset the plaintiff.

44      The plaintiff’s back pain started to get worse, extending into her hips.  On 6 February 2011, she bent over and felt her back pain worsen as it became very tight and stiff.  She was sitting on a sofa and could not stand up.  She was in pain and could not move.[29] 

[29]T70

45      The plaintiff was taken by ambulance to the Werribee Mercy Hospital.  The nurses asked her about her back pain and she told them that she had been involved in an accident.[30]  The plaintiff had just eaten something, she picked up a plate from the table and she got stuck.  She had chest pain and she told the hospital where she had pain.[31]

[30]T73

[31]T75

46      The plaintiff agreed, from the time of this hospital attendance, her lower back had always been sore.  She went back to Dr Sheriff and he ordered some x‑rays of her lower back and pelvis.  Nurofen Plus was prescribed on 14 February 2011.[32]

[32]T166

47      The plaintiff had an ultrasound and x-ray of her left shoulder on 21 February 2011.  As a result of increasing back pain, Dr Sheriff arranged for a lumbar CT scan in April 2011. 

48      The plaintiff could not recall specifically saying to Dr Sheriff on 5 March 2011  that her spinal pain continued and was related to the accident.[33]

[33]T168

49      In about June 2011, the plaintiff’s back pain worsened, and Mohammad had to drive her to RMH on 23 June 2011, where she stayed overnight, had further x-rays and was given strong painkillers.  Her pain did not improve and on 26 August 2011, Mohammad had to call an ambulance and she was taken to the Werribee Mercy Hospital where she had an MRI scan of her neck and back, was given a pain injection and was kept overnight.

50      The plaintiff also had follow-up physiotherapy at the Werribee Mercy Hospital about once a week for a month.  She subsequently saw neurosurgeon, Mr Han, who told her that he did not think surgery would help and told her to continue with physiotherapy.

51      Dr Sheriff referred the plaintiff to the RMH Pain Management Service where she was assessed on 10 November 2012.  A course was suggested but she needed something closer to home.  She was also referred to psychology at the RMH where she was seen on 1 May 2012, and then to Sunshine Pain Management where she was assessed on 6 July 2012.  She was told pain management was unavailable at Sunshine because hers was a TAC case and she was sent back to Lifecare.

52      In late 2012, Dr Sheriff also referred the plaintiff to another chiropractor, Ms Hassan, whom she saw for a couple of months until the TAC stopped funding.  She also saw Mr Agarwal intermittently, funding the treatment herself.

53      From about 2012, the plaintiff was having periods when she felt tightness in her chest and difficulty breathing, particularly when more stressed.  She was referred to a cardiologist in mid 2012 but understood nothing serious was found.

54      In early 2013, Lifecare arranged for the plaintiff to attend the Spinal Management Clinic at St Albans which she commenced in the middle of that year.  Dr Sheriff also arranged an ECG on 21 May 2013.

55      The plaintiff had to stop the course after five weeks to go with Mohammad and her mother-in-law on an Umrah, an abbreviated Hajj. She was away for fifteen days.

56      The plaintiff had always considered herself a devout Muslim and thought the Umrah would reinforce her faith and help her deal with her discomfort.  She felt better while away but when she came back, her pains were unchanged, with discomfort in her neck, left shoulder and back.  She had further chest pain and went to hospital on 5 September 2013.

57      The plaintiff continued under Dr Sheriff’s care and took painkillers.  She went to Werribee Mercy Hospital because of chest pain and was given painkillers on 14 January 2015.  Dr Sheriff arranged a further CT scan of her neck and lower back in August 2015. 

58      Shortly thereafter, the plaintiff went to Pakistan, where she thought she might get better treatment for her ongoing pain.  She went with Mohammad and the children, although he came back after two months to work driving taxis.

59      The plaintiff returned to Australia on 13 April 2016.  While in Pakistan, she had acupuncture at the Victoria Hospital at Bahawalpur, which improved her condition temporarily.  She also attended a homeopath, who provided her with various herbal medicines and traditional massages, which helped a little.

60      The plaintiff had a lot of help from her relatives in Pakistan and the children attended school there.  They could speak the local language.  The plaintiff came back to Australia to get the children to school for the second school term.

61      In July 2016, Dr Sheriff arranged for x-rays of the plaintiff’s neck, middle and lower back and an ultrasound of her left shoulder.

62      On 24 August 2016, after breakfast, the plaintiff went to stand up and her back pain worsened.  Mohammad called an ambulance and the plaintiff was taken to Werribee Mercy Hospital where she was given strong painkillers and a brain CT scan was undertaken, although she could not remember it.  She later saw Dr Sheriff and he arranged a further lumbar CT scan on 26 August 2016.  He also referred her to another neurosurgeon, Mr Aliashkevich, whom she saw in September 2016. 

63      Mr Aliashkevich arranged an MRI scan of the plaintiff’s neck, middle and lower back in September 2016.  X-rays of her neck, back and a weight bearing MRI scan of the back and neck took place on 16 September 2016 and a bone scan on 20 September 2016.  He referred the plaintiff to neurologist, Dr Tan; pain specialist, Dr McCallum, and shoulder specialist, Dr Ek.

64      The plaintiff saw Dr Tan in October 2016.  He prescribed a different medication. She saw Dr McCallum, on 13 October 2016, who altered the medication again.  She could not remember seeing Dr Ek.

65      The plaintiff continued to see Dr Sheriff. 

66      In about 2017, the plaintiff went to Karachi for a week to get some more herbal medicine which she found beneficial. 

67      On 2 September 2017, the plaintiff had some worsening back pain and Mohammad drove her to the Western Hospital where she was admitted overnight.

68      As of April 2018,[34] the plaintiff was seeing Dr Sheriff monthly and had occasional Chinese massages.  She took Comfarol Forte when the pain, usually in her back, was worse.  She finished a packet of twenty tablets about every three or four weeks.  She also took Panadol Osteo, one in the morning, afternoon and evening.  She tried to avoid taking further medication as it upset her stomach.  She also took herbal medication and Celebrex, 200 milligrams, in the morning and at night, and an anti-inflammatory and migraine medication one or twice a week when she felt a migraine coming on.

[34]Plaintiff’s first affidavit

69      The plaintiff had constant lower back pain, and although the severity varied, that was usually her worst pain, usually about an “8”, but at times could feel like a sharp knife. That occurred several times a day and usually lasted for about five minutes.  Sometimes, the sharp pain did not resolve and continued for hours.  Her back pain then spread intermittently into her left hip and down the back of her left leg to her foot.  She was more likely to get leg pain if she was on her feet but could still get it when sitting.  She did not usually have it when lying down.

70      The plaintiff’s back pain was worse with bending or twisting and she had to move cautiously.  She could only be on her feet for a short time before she would usually have increased back pain.  The longer she stayed on her feet, the worse her back pain became.  She tried to avoid steps and slopes which increased her discomfort.  She avoided running, because even walking quickly caused more back pain.  She struggled to stay in one position for long before she got increased backache and it was better if she was moving about.  She could only sit for a short time before she had more back pain and wanted to move about and try and improve the discomfort.  Stretching her back helped.  When sitting, it was best if she kept her back as straight as possible and had more weight on her right buttock, but whichever way she sat, she soon wanted to change position.

71      When watching television, the plaintiff preferred to lie down on the sofa on her side.  She had to get up several times during the evening to move about to try and lessen her back pain.

72      The plaintiff’s left shoulder pain continued.  If she raised her left arm above shoulder height, she had increased discomfort and sometimes her left bra strap caused left shoulder discomfort.  She usually carried her bag on her right shoulder because of her left shoulder pain.  She could hold some weight in her left hand but had to keep her elbow close to her side to do so.

73      The plaintiff also had intermittent neck pain which came on if she turned her head too far, particularly to the left, or held her head bent for more than a few minutes.  That pain spread into the back of her head and could give her headaches.  She had a bad headache every one to two weeks, which usually lasted for an hour or two, but up to as much as a day or so.

74      Previously, she had a similar type migraine headache once a fortnight; however, it was now more frequent.  Her neck pain spread intermittently into her left shoulder and arm and down to the wrist.  She could get that pain about once a week and it could last for several days.  At times, the pain in her arm was a hot and burning discomfort, which could become her worst pain for a time.  She wanted to massage her forearm and squeeze it to try and get rid of the discomfort.

75      The plaintiff could drive but she found doing so for longer periods was difficult because of increased neck and back pain, and driving could also produce headaches.  Sometimes, she rested her left hand in her lap to take the strain off her left shoulder.  She avoided turning her head too much and used mirrors when she could, whilst also avoiding reverse parking.  Using the pedals after a while seemed to cause more back pain.  She drove more slowly and did not go around corners quickly as that could hurt her back.  Getting out of the car she often brought her legs around to face out of the car, in order to limit twisting her back.  She also used her arms to take the strain off her back.  She felt she was more anxious in traffic and generally more apprehensive when driving.  She was especially anxious around trucks.

76      The plaintiff slept on a sponge mattress on the floor.  It was provided by the TAC and seemed to provide a firmer and more comfortable support for her back, rather than a soft surface.  She had to get to her knees to get to the mattress on the floor and used the bed to support herself.  She preferred to sleep on her back; however, no position was comfortable for long.  She also had to be careful not to twist her back when turning onto her side.  Mohammad usually massaged her back and neck with herbal oil before she went to sleep.  Occasionally she got a left leg cramp and had to stretch.  Mohammad massaged her calf if the pain was worse.  The plaintiff had difficulties getting to sleep because of back, neck and left shoulder pain, and she often ruminated about her discomfort and the accident circumstances. 

77      The plaintiff had been told that if she said one particular prayer, then that would help reduce her pain, and that seemed to work for a while, and helped her to get to sleep; however, she still woke several times during the night because of back pain and occasional left shoulder pain.

78      In the morning, the plaintiff’s back and neck were always stiff, with initial movement being painful, and Mohammad gave her a further massage.

79      The plaintiff wore to bed what she wore during the day.  She took medication early in the morning.  Prior to the accident, she showered every day and changed her clothing.  She now showered every second day in the afternoon, as along with dressing, showering caused considerable neck and back pain with bending and twisting.  For the most part, she dressed sitting down because of the pain.  Getting to her feet and into her clothes was painful.  She tried to keep her back straight and her head up when brushing her teeth.  Toileting was painful, with twisting involved.  Neck and back pain were usually worse in the evening.

80      Mohammad paid the mortgage.  The plaintiff still did some of the cooking and he now did more.  She also had help from friends and her sister who brought her food all the time when her pain was worse.

81      The plaintiff could put clothes into the washing machine and into the dryer, but if they had to be hung outside, then her daughter or Mohammad did it.  She only hung out a few small things.  Mohammad, their daughter and older son did the vacuuming and mopping.  A lady came in once a month to clean the shower and did a major clean with vacuuming.  The plaintiff struggled with vacuuming and mopping because of the bending and stretching involved.

82      About one day a week when the plaintiff’s back, neck or arm pain was worse, there was very little she could do.  They now got more takeaway.  She used to enjoy baking but no longer did so because of the preparation involved.  She could only stand at a bench or sink for a short time, keeping moving and changing weight from one leg to another with little bending, before she had to move away and take a break.

83      Pre accident, the plaintiff had a vegetable garden and herb patch.  Mohammad now had to do all the digging and planting and she just did the watering.  She could no longer do flower displays around the house.  She rarely went to the market because walking and standing caused more back pain and she was worried about being bumped.

84      The plaintiff socialised less.  She used to visit friends at their homes and host them at hers.  Her friends understood she could not host them properly now.  She preferred to be at home where she could more easily make herself comfortable.  Whenever she went out occasionally, she wanted to come home early because of increasing discomfort.

85      When the plaintiff went shopping, she generally bought what she needed and just left.  She used to often stop for a coffee with friends.  She now spent much more time at home.  She felt depressed at times although her religion was a comfort to her.  She felt guilty that she may be something of a burden to Mohammad and could not give her children, particularly her daughter, the support and assistance she would like.

86      The plaintiff swore a supplementary affidavit on 23 January 2020.  She continues to live with Mohammad and their three children who are now aged thirteen to fifteen.  She continues to suffer the consequences, symptoms and disabilities earlier deposed to.

87      The most severe pain is still in her back and it has increased since January 2018, as have the flare-ups which occur many times throughout the day.  She is now suffering more frequent symptoms down her left leg and often has numbness and pins and needles in her left foot.  These left leg symptoms are not usually present when she is lying down, but instead come on when she stands or walks for prolonged periods.

88      The intensity of the plaintiff’s back and left leg pain affects her daily activities and she is restricted in how long she can sit, stand and walk.  When driving, the back pain increases and her left leg symptoms are aggravated pressing the brake.

89      The plaintiff’s left shoulder pain and stiffness remain much the same and she tries to use her right side to avoid increasing left shoulder pain.  The intermittent neck pain also remains much the same and she avoids reading and watching television for prolonged periods because of the problems with her head in a flexed position, which puts strain on her neck.

90      On average, the plaintiff is in agony with a bad headache about once a week with the severity having increased.  They come on when she is feeling anxious or when her neck is stiff.  She takes Maxalt for them.  The severe head pain usually lasts for a few hours and then she feels exhausted and feels the need to sleep for a long time.  When she wakes, she feels drowsy and disoriented. 

91      Pre accident, the plaintiff was able to drive herself wherever she wanted to go.  Now, she can drive the children to and from school (about a ten-minute drive each way) but avoids longer drives due to discomfort in her back, neck and left leg.  Even on short trips, she often holds the steering wheel with her right arm and tends to hold onto her left leg to control the leg pain.  Sometimes, whilst driving locally, she panics and has to stop the car abruptly.  This has happened to her a number of times when a truck has travelled close by.

92      If the plaintiff needs to go somewhere further away, she tends to take a taxi or rely on Mohammad.  He gets angry about her spending money on taxis and also gets angry when she asks him for a lift, so it is now hard for her to get around.

93      As at January 2018, the plaintiff was paying a lady to do the heavier housework once a month.  She now pays someone to do it every fortnight.  She only does very light tidying and cleaning.  Mohammad is not happy about this situation as they do not have a lot of money.  He tells her that it is her job as a wife and mother to look after the home and prepare the meals.  Her sister continues to help by bringing over food, so the plaintiff does not have to do too much cooking.

94      Ongoing pain and restrictions are continuing to put great strain on the marriage.  In addition to working as a taxi driver, Mohammad also has to help with cooking and housework because of the plaintiff’s injuries, which makes her feel guilty and causes tension.

95      After their reconciliation in early 2008, the plaintiff and Mohammad had intercourse every two or three days.  Now they have sex once a month, sometimes less.  She never feels like having sex because she knows that it will aggravate her pain, but she consents because, in her culture, a wife is expected to have intercourse when her husband wishes.  Still, that is not enough for him and she feels ashamed that she is not meeting his needs.

96      In those circumstances, he is often angry with her and she is scared that he will divorce her for that reason.  She worries a lot about what he is planning and how the children would survive financially if he leaves.

97      Sometimes when the plaintiff has these worries, she gets depressed and thinks about suicide; however, she has not acted on those thoughts.  It would not be fair to leave the children, and she believes that Allah would never forgive her if she did so.

98      The plaintiff continues to see Dr Sheriff about monthly. His practise is a half-hour drive, and usually she relies on Mohammad to drive her there.  She also attends general practitioners closer to home, only around five minutes away.  She sees Dr Kaur at Westgate Medical Centre and Dr Ajmal at Wyndham Medical Centre, where she can drive herself. They give her painkilling prescriptions and treat her for matters for which she prefers to see a female doctor.

99      The plaintiff currently has chiropractic treatment with Dr Munro, whose rooms are a half-hour drive from home.  If she tries to drive herself there and back, then her back, left leg and neck pain tend to become worse.  As a result, Mohammad drives her, which again causes tension because he could be working.

100     For about six months last year, the plaintiff used a TENS machine on her back and neck but stopped after it did not seem to be providing lasting relief.  She has tried various herbal remedies and Chinese massage. She has spent money on lots of different aids and treatments, but nothing has seemed to provide her with long-term pain relief and Mohammad gets angry with her for wasting their money.

101     For pain relief, the plaintiff currently takes Panadol Osteo in the morning and at night as well as three Panadeine Forte every day, which she is trying to decrease because it makes her drowsy.  She takes Maxalt medication when she feels a migraine coming on, usually once or twice a week.

102     The plaintiff had not told all the doctors about trips overseas.  Dr Sheriff knew when she had been once or twice.[35]

[35]T169

103     The plaintiff had been on a small Hajj and big one.[36]  She did not know the dates thereof. There was a year between the two Hajj’s.[37]  She has been to two Umrahs since 2011.[38]

[36]T174

[37]T175

[38]T177

104     The plaintiff agreed she was in Pakistan between September 2015 and May 2016.[39]  She also went overseas in late 2018 and returned in February last year.[40]  She went for herbal treatment and stayed there.  She also went with her children in the school holidays at the end of last year for a month and a half.  Whilst there, she had treatment.[41]

[39]T177

[40]T178

[41]T179

105     The Umrah was in Saudi Arabia at Mecca Medina.  A Hajj is obligatory for Muslims and an Umrah is discretionary, “but beneficial”.[42] The plaintiff explained that on Umrah, they went around the House of God seven times and prayed.  Doing so was not continuous - “Like, you can take a breath in between and do it how to suits you.”  It took her longer because she had to stop.  It took her an hour, which a normal person did in fifteen minutes.[43] 

[42]T180

[43]T181

106     On the Hajj, the plaintiff went to Mount Arafat in a bus.[44]  She did not climb anything.[45]  She went to Medina and Mecca for forty days.[46]   

[44]T181

[45]T182

[46]T183

107     During the long stay between September 2015 and May 2016, the plaintiff visited various doctors for her medication.  She could not do anything else.  She could not remember the names of the different doctors who were recommended to her.  She did not know their qualifications, but they were at big private hospitals.[47]

[47]T186

108     The plaintiff went to Karachi for a week for homeopathic treatment.  She does not have anyone in Karachi; she went there to get medication.  She was trying her best to get well.  Mohammad paid for the trip.  When her medicine from Pakistan “would finish” then she “would go”.[48]

[48]T187

109     When in Pakistan, sometimes taking “their” medication helps and the plaintiff gets better and –

“… they say to me that I have to be continuously staying there and getting help.  But I cannot stay there permanently.  I stayed there for such a long period, nine months, because family help me out and gave me relief … I didn’t have to do anything over there, they would do everything, and if I had to even go outside, they would take me.”[49]  

[49]T222-23

110     She did not have to do any housework.[50]

[50]T223

111     The plaintiff “spoke the truth” when telling doctors for how long she could sit and stand and how far she could walk.[51] 

[51]T169

112     While Dr Serry reported the plaintiff told him she could only drive short distances, and that she could not drive for more than ten minutes, when her pain “is too much”, she cannot go further than that.[52]  It must have taken her fifty-six minutes to drive to the Australian Lamb Company, because “there must have been a rush or traffic”.[53]

[52]T193

[53]T194

Surveillance film

113     The plaintiff was shown on 23 November 2019, from 11.51am until about 12.08pm, sitting with a group of women outside “Tasty Burgers”.  She agreed she drove in Mohammad’s car a few minutes from her house and picked up a friend and then it would have been about a twelve-minute drive to the burger shop.  She agreed she could have arrived at the shop at about 10.40am and had breakfast inside before she was shown on the film. There had been no plan to meet with the other people shown on the film.[54]

[54]T207

114     While Dr Mittal reported that in early November 2019 the plaintiff told her that she had a sitting and standing tolerance of five minutes and walking tolerance of ten minutes, in the mornings the plaintiff feels better.  She feels fresh, so as seen in the film, she can move about and do things.[55]

[55]T211

115     Counsel for the defendant then advised there was another forty minutes of film. Counsel indicated it was the amount of driving involved, rather than any particular restriction of movement that was relied on by the defendant.

116     The plaintiff agreed it would have taken her about twenty-seven minutes to drive to Sunshine Hospital, where she visited her mother.  On 28 January this year, she drove her children to school nearby and she then drove to the Australian Lamb Company in Sunshine West.[56] 

[56]T270

117     The plaintiff agreed she would have taken her children to school and picked them up on all days in the last week of January 2020.[57]  She also agreed she browsed in the Salvation Army shop and the Brotherhood of St Laurence on the morning of 1 February 2020.

[57]T218

118     In re-examination, the plaintiff explained she was rocking from side to side while seated in the witness box, and also at Tasty Burgers because – “my disc puts pressure, and if I don’t put pressure and I keep moving it, then I don’t have so much pain.”[58]

[58]T220

119     If it takes the plaintiff longer than she expected in traffic, the pain increases.  Sometimes, if it is possible, she stops the car and waits.  When the traffic does not permit her to do so, then she just drives slowly.[59] 

[59]T221

120     The plaintiff went to Karachi for medicine “but hopefully [I] was thinking that maybe something from there will help me out”.  With treatment here, she gets better for a while,[60] but then she comes back to the same as before.  If she does not have the medicine, then she cannot do anything.  When she takes the medicine, her pain sort of “slips”.  If she does not take anything, she is not even capable of going to the toilet by herself because of sharp shooting pains in her back.[61]

[60]T221

[61]T222

Lay evidence

121     The plaintiff’s sister, Shagufta Baji, swore an affidavit on 28 February 2020.

122     Prior to the accident, the plaintiff was in excellent physical health, with the only problems being headaches and some marital conflict.  The conflict was mainly verbal, but Shagufta understood there had been a few occasions of physical contact.  She had her concerns about the marriage, but marriage was very important in a cultural sense.  The plaintiff and Mohammad had separated for a period but in the lead up to the accident, they had reconciled and appeared to be doing better and had adjusted to their life together.

123     Despite marital issues, Shagufta thought the plaintiff was a happy person before the accident.  Being a mother and wife was very important culturally and it seemed to give the plaintiff a purpose and she enjoyed being able to care for her children.  She was independent, house proud and able to manage day-to-day activities such as cooking and housework without restriction.  At times, she would even help Shagufta with cooking for her family.

124     Since the accident, the plaintiff had changed a lot.  She regularly complains about being in pain and in particular, having pain in her neck and back.  She often seems to be in discomfort.  When Shagufta visits her at home, the plaintiff is often lying down and has told her that she has to lie down in order to relieve pain in her neck and back.

125     The plaintiff has told her that cooking causes her increased neck and back pain, but the plaintiff continues to try to cook because she has no other real alternative; however, she helps the plaintiff as much as she can by cooking about once a week.  She often has to find a way of taking the food to her.

126     Shagufta was unable to assist the plaintiff with cleaning due to her own commitments.  When visiting she does what she can.  The plaintiff has reported difficulties with heavier household tasks.  If she is having a good day with pain, she has told Shagufta that she will do what she can around the house, but still often has to take a rest or lie down.  The plaintiff often pays for a cleaner to help with heavier cleaning.  That is very upsetting for her because it is very important for the females to maintain the house.

127     The plaintiff has confided in her how the accident has affected her marriage.  She and Mohammad fight about different things than they did before the accident.  Those arguments arise when the plaintiff struggles to perform the tasks he expects her to do, such as cooking and cleaning and caring for the children.  They fight about finances when the plaintiff pays for a cleaner.  The plaintiff has told her that she struggles with intimacy due to pain and that Mohammad has taken issue with this.  These issues were different to those faced in their marriage pre accident.

The Plaintiff’s medical evidence - treaters 

Dr Sheriff

128     The plaintiff’s general practitioner, Dr Sheriff, provided a number of reports from May 2010, most recently reporting in February 2020.  He was required for cross-examination.

129     Dr Sheriff provided an initial TAC medical certificate on 28 July 2009, in which he described the plaintiff’s current clinical diagnosis as including multiple injuries, chest, shoulders, neck, left hip, back, and occipital headaches.

130     In all his reports, Dr Sheriff diagnosed the following accident injuries - whiplash to the neck, rotator cuff strain tear, left supraspinatus, bruising to the left chest breast, musculoligamentous strain to the spine and left abdomen and pelvic strain.

131     As of May 2010, Dr Sheriff noted the plaintiff was finding home duties very difficult and managing the three children.  Her husband could not help her as things had deteriorated on the home front.  She started to have progressively worsening neck and left shoulder pain and she started to experience spasmodic spinal pain.  He then requested TAC provide home help, and noted the plaintiff had not received any type of help prior to the accident as she was quite an able woman, coping adequately.

132     In July 2009, Dr Sheriff organised a left shoulder and left breast ultrasound and also a chest x-ray.  There were subsequent referrals to LifeCare for physiotherapy, Dr Stockman, a rheumatologist, and also a psychological referral.

133     As of June 2011, Dr Sheriff had also organised a CT scan and lumbar x-ray.  He then thought the plaintiff suffered severe chronic ongoing pain and disability and the accident appeared to have changed her life.

134     In his June 2018 report, Dr Sheriff noted a number of further referrals and more recent investigations.  At that stage, he concluded the injury suffered by the plaintiff had had a lasting residual impact, with her coping very poorly, several modalities of therapy, analgesics had had poor impact, and outcome and her overall prognosis to full recovery was poor.

135     In his October 2019 report, Dr Sheriff concluded the plaintiff’s injuries had largely stabilised, but she was significantly restricted in her activities, in that she suffered severe chronic ongoing pain and disability.  She suffered from a Chronic Pain Syndrome and had been seen for pain management.

136     On 31 January 2020, Dr Sheriff noted the plaintiff continued to have cervical and lumbar radiculopathy and was deemed to have no work capacity.

137     Dr Sheriff’s practice has been treating the plaintiff since 1999.  In cross-examination, he explained there was a transition period for his clinic when it became computer literate in about 2010.  For a while, the clinic was using both written and computer notes.  The computer notes at that time were pretty rudimentary as the practice was getting used to using the computer.[62]

[62]T82

138     Dr Sheriff confirmed when the plaintiff attended on 14 March 2003, there was a note of back pain, left chest pain and prescription of Mobic and Zantac.[63]  He also confirmed entries in 2006 and 2007, dealing with matrimonial issues, including domestic violence in March 2006.  He did not know whether the plaintiff was considering revoking her sponsorship of her husband.[64]

[63]T89

[64]T91

139     It was noted on 21 August 2006, “has marital problems, is going through divorce. Stressed, counselled. Husband threatening to hit children … acupuncture for migraine.”

140     On 17 February 2007, the plaintiff complained of dizzy spells.  She was depressed and given counselling and anti-depressant therapy.  Her sleep was poor and Imovane was prescribed.  On 23 February 2007, she complained of headaches and had symptoms of depression, and Lexapro was prescribed in a very, very low dose.[65]

[65]T93

141     In May 2007, the plaintiff complained of left hip pain and trochanteric bursitis was suspected.[66]

[66]T97

142     It was noted on 25 May 2007 that the plaintiff was assaulted by her husband on 19 May 2007.  She gave a history of previous assaults, threatened several times with a knife and threatened to kill, went to the police on 21 May 2007 and a social worker was involved.[67]

[67]T99

143     The plaintiff received counselling on 13 December 2007 for marital problems.[68]

[68]T100

144     On 9 September 2008, the plaintiff was prescribed Imigran and she was complaining of occipital headaches.

145     The first accident related attendance was on 24 July 2009.  Dr Sheriff then noted left shoulder pain, left chest, left hip, left pelvic pain and spine.[69]  When he said “spine”, he meant general spine, lower spine.  Spine generally refers to the lower spine.  “If it is an upper spine, we just generally saying the thoracic and cervical spine, but then when we talk about ‘spine’ generally – colloquially it generally refers to the lower lumbar spine, lumbar spine.”[70]

[69]T101

[70]T103

146     The pan scan at the RMH was to rule out any fractures or any other major injury.[71]  The early investigations Dr Sheriff organised were for the injuries he was concerned with at the time.  At that early stage, there were not “red flags” in terms of a spinal condition, such as numbness around the genital area or specific urinary disturbances.[72]  There was however a spinal issue as at 24 July 2009.[73]

[71]T136

[72]T106

[73]T109

147     On 20 November 2009, Dr Sheriff noted back pain and prescribed Panadeine Forte and was considered rheumatology referral.[74] In December 2009 and April 2010, he requested home help for the plaintiff.[75]

[74]T110

[75]T111

148     Dr Sheriff agreed the plaintiff was referred to Dr Stockman for persistent left shoulder pain.  Dr Sheriff was probably more concerned about the shoulder problems then, but there was an also ongoing issue with spinal pain.[76]

[76]T114

149     On 4 May 2010, it was noted:

“Left shoulder blade pain … Restricting of physical activities … Needs home help … weekly … Back, hip pain … Watching TV seated is also difficult.”

150     On 8 November 2010, there was a complaint of hip pain and a history of migraine.  Dr Sheriff thought the hip pain could be a trochanteric bursitis, it also could be from the radiculitis.[77]

[77]T118

151     On 11 November 2010, there was a note of migraine headaches associated with myalgia pain, also with severe leg pain.  Dr Sheriff thought it was possible that pain was likely to be associated with a general myalgia pain, but given the plaintiff’s history, one had to consider that was actually referring to some of the spinal pain that she was experiencing, the lower leg pain.[78]

[78]T119

152     Dr Sheriff arranged an x-ray of the lumbar spine and pelvis after the plaintiff attended the Werribee Mercy Hospital in February 2011.  Nurofen Plus was prescribed.  He agreed that the only abnormality on that plain x-ray was narrowing at L5-S1.[79]

[79]T124

153     Dr Sheriff was advised by Werribee Mercy Hospital by letter dated 8 February 2011 that on 6 February 2011, the plaintiff had attended with a mechanical injury.  Whilst his notes at that time made no mention of an accident-related back injury, Dr Sheriff explained that the clinic was then having difficulty mounting notes in the computer and he wondered whether the letter from the hospital had been received by that time.[80]

[80]T128

154     On 5 March 2011, Dr Sheriff noted “Spinal pain continues, this was related to her accident she says”.  He agreed, save for the 24 July 2009 entry and entries in November 2009, this was the first history of back injury in the accident; however, the clinic had issues with its notes at that time.[81]

[81]T130

155     Dr Sheriff agreed that when the plaintiff presented at Werribee Mercy Hospital on 6 February 2011, she was obviously in real trouble.[82]  It was possible he could link that episode back to the accident twenty months earlier:

“People have spinal problems and spinal – ongoing spinal issues – the fact that I mightn’t have recorded all of those, due to difficulties I’ve had with the way my notes and my computerised systems have been, that doesn’t mean that she would – never would – have had a problem.  But, having said that, it was quite a trivial injury where it says, ‘Bent down to lift an object.’  Showed that there might have been an ongoing pathology prior to that for her to be severe enough to have been inpatient in hospital for two days and you wouldn’t think something like bending down would have caused major issue … you wouldn’t think that a simple bending down would have produced such a major disc prolapse, or a discal lesion to cause such a major concern … but I would have thought that the spinal history of a patient is very, very important in a history taking, although there are shortcomings in my notes in relationship to that.”[83]

[82]T132

[83]T133

156     Dr Sheriff conceded that someone could experience very significant spinal pain from sneezing.[84]

[84]T134

157     Dr Sheriff probably did not get a detailed history of what the plaintiff did on overseas trips, but “patients often take breaks away from places where they live to have a bit of a break and a holiday and a rest or to just a psychological impact of chronic pain that can have on them.”[85]  The plaintiff needed to see her family and she got significant psychological benefits from doing so travelling overseas.[86] 

[85]T142

[86]T160

158     In re-examination, Dr Sheriff confirmed the occupational therapist’s involvement with home help in early 2010, the plaintiff’s accident-related spinal injuries and his earlier TAC certification.[87]

[87]T147

159     Dr Sheriff explained that the pan-scans were to eliminate major trauma and the fact that there was no mention of anything in the lumbar spine did not mean the plaintiff did not have a problem related to the lumbar spine.[88]

[88]T149

160     Dr Sheriff explained the entry of 25 November 2009, which read “neck pain radiating into dorsal spine”.[89]  The complaints related to the spine basically, spinal and neck pain radiating into the dorsal spine, meaning almost the length of the entire spine that was stiff and spasmed.  The whole spine was spasmodic.  Presentation was related more to the spine itself.[90]  On that occasion, the plaintiff had a stiff spine:[91]

“I think overall looking now in 2020, the primary problem seems to [be] she’s got a cervical brachial issue, and the shoulder issue and I flagged the problem, primary problem, seems to be the spine.  The spinal pain has been a very limiting factor for her, for which I’ve sent [her] off [for] quite a few referrals. ”[92]

[89]T151

[90]T152

[91]T153

[92]T157-158

161     Dr Sheriff explained hip pain could be consistent with other complaints in addition to trochanteric bursitis.[93]

[93]T156

162     Dr Sheriff did not think there was any specific hip pathology apart from the trochanteric bursitis, but the primary problem of the radiating leg pain alternating the right and left side, primarily the left, raised strong doubt that there was an irritable disc which compromised the canal, which produced the radiculitis bursitic type of pain, and that was a management concern, a management issue.

163     Before the accident, Dr Sheriff did not think there was any major pathology that he could actually allude to at that time, as distinct from the trauma.[94]

[94]T158

164     Dr Sheriff thought the accident was quite significant, noting the speed of about 70 kilometres per hour.  It was quite a substantial trauma and there was also a suggestion the plaintiff may have had a momentary loss of consciousness.  She may well have improved some part of her injuries, but her presentation in 2011 at the hospital after a quite trivial incident, was severe spinal pain. 

165     Dr Sheriff considered the accident “does become quite an important part in the history when she did have the problem, and then this incident (2011) and for the hospital to have kept her in the hospital for two or three days and treat her with very strong opioids is quite significant ...  and then obviously her problems then continuing fairly significantly after that.” He thought the accident was a very significant issue, which was probably the precipitant cause of the plaintiff’s cervical and spinal injury.[95]

[95]T161

Dr Stockman

166     Dr Sherriff’s letter of referral to Dr Stockman of February 2010 set out the presenting problem was “involved in a motor car accident now persistent left shoulder pain affecting her ADL rotation resisted abduction painful”. 

167     Dr Stockman thought the plaintiff’s presentation was consistent with subacromial bursitis.  She was resistant to steroid injections, which he had suggested.  He thought there clinically did not appear to be any major pathology in the neck. 

Lifecare

168     On 5 August 2010, Sarah Thompson, physiotherapist from LifeCare, wrote to Dr Sheriff, thanking him for referral of the plaintiff in terms of her right shoulder and neck pain following the transport accident.

Sandy Agarwal

169     Sandy Aggarwal, occupational therapist, wrote to Dr Talalto Sheriff on 11 November 2010.  He advised that the plaintiff presented with a history of migraines and was treated with acupuncture and myotherapy for her neck pain and muscular tightness. 

170     Mr Aggarwal wrote to Zaparas Lawyers on 12 July 2018.  He reported that when first seen in November 2010, the plaintiff presented with a complaint of painful neck, lower back and both hips.  Migraines were unbearable at times.

171     After the initial four presentations in late 2010, the plaintiff presented with chronic lower back pain radiating to the left hip on 11 November 2011.  Dr Sheriff recommended provision of a back support and no treatment was provided.  Mr Aggarwal could not comment on the relationship with the accident and diagnosed cervical strain and anxiety as he was unaware of the plaintiff’s involvement in a transport accident.

Hospital attendances

172     The plaintiff was brought by ambulance to the RMH on 22 July 2009.  It was understood she was the seat-belted driver of a car involved in a collision with a truck. She reported generalised pain. Spinal immobilisation and intravenous morphine were administered prior to arrival at the hospital.

173     X-rays and a CT scan demonstrated no injury, although there was an incidental finding of a left ovarian cyst.  The plaintiff was admitted for observation overnight and discharged the following day with a diagnosis of no injury.

174     The RMH notes set out the presenting problem was –

“driver car v truck approx.  70kmph- c/o chest pain and abdo pain, airbag deployed at close range, nil LOC.”

175     Examination findings were of spinal tenderness with –

“tender through L5 spine.  Trauma pan scan - no traumatic injury.”

176     In a trauma tertiary study on that attendance it was noted, on physical assessment:

“c-spine/midline tenderness … .”

and

“lower lumbar midline tenderness.”

177     The plaintiff attended Werribee Mercy Emergency by ambulance on 6 February 2011.  The presenting complaint was –

“back pain was sitting in chair feeling pain then lying down for few hours.  Pain worse numbness in legs.”

178     The principal diagnosis was “lumbar back pain mechanical injury”.  It was also noted in the Inpatient Discharge Summary:

“27yo [female] presented on 6/2/11 for backpain post-injury (bent down to lift an object + felt pain in back).”

179     In a letter to Dr Sheriff dated 8 February 2011, Werribee Mercy Hospital advised that the plaintiff presented with back pain due to mechanical injury.  There were no neurological signs or any red flags suggesting a more sinister cause of back pain.

180     On 23 June 2011, the plaintiff attended the RMH, reporting lower back pain, described as an exacerbation of pain she had experienced following the incident of 22 July 2009, for which she took paracetamol, codeine and ibuprofen on a regular basis.  Examination was normal.  She was observed overnight and given oral analgesia.

181     The Emergency Department RMH Attendance Record of 23 June 2011 set out:

“Car accident 2009 –> chronic back pain –> disc disease –has pain all the time day and night.”

182     The Triage comments included:

“Acute on chronic lower back pain since accident 2009, pain worse today, nil neuro deficit, nil relief with panadeine forte.”

183     On 23 June 2011, it was also noted that the plaintiff was a twenty-eight-year-old female presenting with lumbar back pain radiating to left leg.  Chronic back pain since motor vehicle accident in 2009, the same pain, but worse today.

184     On discharge on 24 June 2011, the principal diagnosis was acute on chronic back pain. 

185     The plaintiff had physiotherapy at Werribee Mercy Hospital from February 2011 for severe lower back pain.  She did not have any neurological signs or pains in her legs when assessed.  The pain severely limited her functional capacity and she was not able to sit still for more than five minutes, stand still for one to two minutes, walk for more than half an hour, and could not lie on her side to sleep.

186     At Western Health on 6 July 2012, it was noted under “CURRENT HISTORY”:

“MVA 2009 … L)shoulder, neck + back pain.”

187     On 5 September 2013, the plaintiff attended the Werribee Mercy Hospital Emergency by ambulance.  The presenting problem was left breast pain. 

188     The Werribee Mercy Emergency Department clinical record dated 5 September 2013 set out a background of:

“Chest pain- Background- chronic issue, at least since 2012.  Chronic back pain as result of MVC 2009.  Seen recently in WGH for same.”

189     On 14 January 2015, the plaintiff presented to Werribee Mercy Hospital Emergency with chest pain.

190     The plaintiff was brought by ambulance to Werribee Mercy Hospital on 24 August 2016, for lower back pain.  It was then noted that there was an

“exacerbation of lower back pain, ongoing since 2009 after car accident … chronic back pain since accident in 2009, sharp pain down leg, unable to mobilise.”

191     On 2 September 2017, the plaintiff attended Emergency at Western General Hospital with an acute on chronic lower back pain, onset of acute lower back pain bending down to pick something up from the ground. 

Specialists

192     Mr Lo, RMH neurosurgeon, wrote to Dr Sheriff on 5 September 2011.  He noted the plaintiff had a motor vehicle accident, following which she lost consciousness, but upon awakening had severe neck and back pain which had gone on for well over eight months.  He thought she would then be best served by referral to a pain service and had done so to Royal Park.

193     Dr Freitag wrote to Dr Sheriff on 10 October 2011, thanking him for referral of the plaintiff, who had suffered from left shoulder and lower back pain since a car accident three years earlier.  He noted the plaintiff described central to left-sided lower back pain which was aggressive in nature post accident.  She also described anterolateral shoulder pain and also central neck pain.

194     Dr Freitag thought the plaintiff had signs suggestive of cervical neck pain secondary to facet joint aggravation.  She also had clinically relevant left shoulder adhesive capsulitis.  She had somatic lower back pain secondary to sacroiliac joint aggravation/instability.  Physiotherapy was suggested for her lower back.

195     Dr Kenneth Shum, fellow in Pain Management from the RMH, wrote to Dr Sheriff on 10 November 2011, having seen the plaintiff.  At that stage, her main pain was in her neck and lumbar spine. 

196     Dr Shum concluded the plaintiff had multiple musculoskeletal and myofascial complaints after her accident, with associated functional decline.  These had recently aggravated her usual migraines/headaches.  He encouraged physical therapy daily and suggested psychological input and physiotherapy.

197     Dr Aarathi Vaska, Pain Fellow at the RMH, wrote to Dr Sheriff, having seen the plaintiff on 24 May 2011.  He noted she had an ongoing pain in her neck, back and left shoulder following the accident and had a past history of migraine.  She was then taking Panadeine Forte and Nurofen up to three to four times a day.  He noted the plaintiff had poor insight and that her husband was definitely wanting her to be more active, and reduced her medication intake.

198     There were a number of reports from the RMH Pain Management Services during 2012 and 2013.

199     In September 2016, Dr Sheriff referred the plaintiff to neurosurgeon, Dr Aliashkevich, with medical problems, chronic and refractory neck, back, left shoulder and right leg pain since the accident, chronic migraines, Chronic Pain Syndrome, broad right posterolateral L5-S1 disc/osteophytic formation on CT scan and multi-level facet arthropathy in the lumbar spine.

200     Dr Aliashkevich then suggested a weight bearing MRI scan and referral to Dr Tan, neurologist, for management of migraine and also referral to pain specialist, Dr Symon McCallum.

201     By letter dated 4 October 2016, Dr Tan thanked Dr Aliashkevich for referring the plaintiff.  It was his clinical impression she suffered a cervical whiplash injury, resulting in neck pain and cervicogenic headaches exacerbating migraine.  She also had back pain from lumbar spondylosis without nerve root compromise.  He prescribed a different migraine medication and left her back pain management to Dr McCallum. 

202     Dr McCallum wrote to Dr Aliashkevich in October 2016, thanking him for referring the plaintiff.  He thought her pain would be a chronic muscular injury and suggested a range of different modalities.

203     The plaintiff had chiropractic treatment at Ferguson Street from 27 September 2017. 

204     The plaintiff attended Altona Meadows Osteopath from 2 September 2011 to 9 September 2015.  She was diagnosed with a possible lumbar disc bulge with associated muscle hypertonia and a range of osteopathic treatment was given.

Home help

205     A benefit and support services home assessment report was carried out on behalf of the TAC in January 2010 by occupational therapist, Carol Lapeyre.  She noted the plaintiff confirmed she had sustained the following soft tissue injuries on 22 July 2009 – left shoulder, neck, mid back, chest. 

206     The plaintiff described difficulties completing all domestic activities pre accident. Before then, she completed all in-home domestic duties and completed all activities with and for her children as required.

207     Following that assessment, Ms Lapeyre made number of suggestions to assist the plaintiff in the performance of domestic duties.

Medico-legal evidence 

208     Dr Paul Kornan, psychiatrist, examined the plaintiff in June 2011.  He then diagnosed Major Depressive Disorder, an Adjustment Disorder with Anxiety and a specific anxiety phobia about cars and travelling.  Presenting symptoms were problems with the left shoulder, neck and back pain every day, and ongoing chest pain. 

209     Mr Michael Flaim, surgeon, conducted an impairment assessment of the plaintiff in July 2011.  He noted she presented with persistent spinal and left shoulder symptoms following the accident.  She had persisting restriction of neck and lumbar spine movement without neurological complication objectively verifiable in the arms or legs.  Investigations had demonstrated changes affecting, particularly, the L4-5 disc.

210     Mr Awad, neurosurgeon and spinal surgeon, saw the plaintiff in January 2018. 

211     Mr Awad noted the plaintiff’s involvement in a transport accident in which she sustained heavy tissue damage across her seatbelt region and into her left shoulder, as well as lower back injury.  She remained heavily symptomatic with pain and disability.

212     Mr Awad also noted the plaintiff, prior to the incident, was undergoing a Certificate in Childcare, with the plan to work after her children were old enough.  That had not come about secondary to injury.

213     The plaintiff told Mr Awad that the injury had many significant effects on her life imaginable.  She could not drive at all and could not do much with the children.  She relied heavily on her husband for housework assistance.  She could not do anything that required lumbar spine movements, and working above head height was difficult because of her neck.  The injury had also had a significant impact on her marital relationship physically and mentally.

214     Mr Awad diagnosed traumatic aggravation of cervical and lumbar spondylosis causing Chronic Pain Syndrome.  Taking into account the absence of any previous history and the nature and severity of the accident, in his view, this has mostly likely been the dominant contributing factor to aggravation of the plaintiff’s neck and cervical and lumbar spondylosis, and her ongoing Chronic Pain Syndrome.  He thought the injury remains the dominant contributing factor to the ongoing pain, disability and requirement from ongoing treatment.  She has no capacity to undertake any work.  He suggested she undertake a formal pain management program.  He thought the prognosis was poor and that the plaintiff was likely to continue to suffer from her significant pain and disability into the foreseeable future.

215     Professor Bittar, consultant neurosurgeon, examined the plaintiff in late 2019.   

216     On examination, the plaintiff complained of constant lower back pain which varied in severity, usually aching in character; however, it was sometimes sharp.  It radiated intermittently into her left hip and leg, and was particularly exacerbated by bending, twisting and sitting.  There was intermittent neck pain, particularly if she turned her head too quickly.

217     On examination, the plaintiff had bilateral lumbar and cervical tenderness with muscle spasm.  There was no abnormal illness behaviour and there was no neurological abnormality. 

218     Professor Bittar diagnosed aggravation of cervical and lumbar spondylosis, of which the transport accident had been a significant contributing factor.  In terms of prognosis, he thought it likely the plaintiff would continue to suffer from significant pain and disability into the foreseeable future and, realistically, she had no work capacity.  Further, the plaintiff experienced constant pain and has restrictions on her ability to sit or stand for more than short periods, bend, twist, lift or maintain her neck in a fixed position.  All of those restrictions had a significant impact on her ability to work and affected her daily function and leisure activities, personal relationships and family activities.  He thought she should be assessed by a pain specialist.  In his view, her complaints were likely to continue to impact on her quality of life, lifestyle and treatment into the foreseeable future.

219     Dr Mittal examined the plaintiff in late 2019.  She was told, as a result of the accident, that the plaintiff suffered from ongoing neck pain, lower back pain, left shoulder pain, left lower limb pain and chest wall pain.

220     The plaintiff described pain present in the midline in the lower thoracic, upper lumbar and mid-lumbar region, severe in nature, rated 8 to 9 out of 10 at rest.  Pain was worse on lumbar flexion. Sitting and standing tolerance was five minutes and walking tolerance was ten.  There was also left lower limb pain, neck and left shoulder pain and headaches.

221     Dr Mittal thought neck pain was mostly likely secondary to myofascial pain due to a whiplash injury and there may be an element of underlying facetogenic pain. There might be an element of underlying adhesive capsulitis responsible for left shoulder pain.  Chest pain was most likely myofascial in nature.  Lower back pain was secondary to myofascial pain and underlying facetogenic pain.  She thought it difficult to ascertain if there may be an element of discogenic pain also responsible for the plaintiff’s symptoms.  There was left lower limb pain, most likely referred from lower back pain.

222     Dr Mittal believed the plaintiff’s transport accident was directly related to the diagnosed medical condition.  She thought the plaintiff had no capacity to work as a result of those injuries and her incapacity was severe, and imposed significant restrictions on any physical activity.  She thought the plaintiff’s quality of life had been significantly impaired as a result of her neck and lower back conditions from a physical perspective.  She considered the plaintiff’s prognosis poor.

223     Professor Bittar reviewed Dr Mittal’s report, in which she was unable to explain the plaintiff’s neurological symptoms of numbness and pins and needles in the upper and lower limbs.  This complaint was not made to him, and Dr Mittal noted those complaints were intermittent.

224     Professor Bittar also noted the reports from Dr McCallum and Dr Awad.  Considering all of the above, it was his opinion any numbness or pins and needles experienced by the plaintiff would be fairly minor and of no significant consequences either in terms of a diagnosis or in terms of causation.  He thought it possible her numbness and pins and needles could be due to nerve root irritation arising from the cervical or lumbar spine, although a number of other causes could also be responsible. 

225     With his opinion unaltered, Professor Bittar concluded on balance, the pain the plaintiff describes in her left leg, left hip and left upper extremity are derived from the organic injury she suffered to the lumbar and cervical spine in the accident.

226     Dr Nathan Serry, psychiatrist, examined the plaintiff in October 2019.

227     Dr Serry thought the plaintiff’s clinical picture was consistent with a somatic symptom disorder with predominant pain and of moderate severity and moderately severe Chronic Adjustment Disorder with Anxious and Depressed Mood, and with features of traumatisation consistent with a PTSD.

Investigations

228     A trauma CT series of x-rays were carried out at the RMH on 22 July 2009.

229     On the lumbar spine and bony pelvis x-ray, there was no fracture or malalignment demonstrated.  There was no fracture or malalignment demonstrated at the cervical spine.  It was concluded there was a left ovarian hypodense structure.

230     The chest x-ray organised by Dr Sheriff in July 2009 was normal.

231     The lumbar spine and pelvis x-ray of 14 February 2011 were carried out with the “clinical notes; ? Sacro-iliitis”.  There was early L5-S1 disc degeneration.  There was no significant abnormality detected of the pelvis.

232     Dr Middleton, at LifeCare, organised a left shoulder x-ray and ultrasound on 21 February 2011. 

233     Dr Sheriff organised a CT scan of the lumbar spine on 8 April 2011.  It was reported there was early L5-S1 disc degeneration.  There was a significant broad-based posterior disc bulge at L4-5 causing spinal canal stenosis, indentation of the thecal sac and probably contact of the bilateral descending L5 nerve roots.

234     There was an MRI scan of the cervical and lumbar spine in August 2011.  It was reported there was minor degenerative disc changes without any neural compression.

235     There was a CT scan of the cervical spine on 19 August 2015.  It was reported there was minor lower cervical spondylosis and no other significant CT abnormality. 

236     There was as CT scan of the lumbar spine on 12 September 2015.  It was reported there was moderate right L5-S1 osteophytic foraminal stenosis with impingement of exiting right L5 nerve root, mild to moderate acquired canal stenosis at L4-5 due to posterior disc prolapse associated with minor right-sided L4-5 foraminal stenosis, and possible irritation of exiting right L4 nerve root, a small broad-based L2-3 disc bulge causing mild canal stenosis and moderate bilateral facet joint arthritis at L5-S1 and L3-4 levels.

237     There were a full set of x-rays carried out in July 2016.  It was reported there was a mild decrease in L5-S1 disc space “developmentally small disc” degeneration.  There was also an ultrasound of the left shoulder at that time.

238     There was a CT scan of the lumbar spine in August 2016.  It was reported there was a broad moderate-sized posterolateral L5-S1 disc osteophyte complex with disc prolapse impinging and displacing the right S1 nerve root within the lumbar canal and associated marked right-sided osteophytic foraminal stenosis with slight impingement of the exiting right L5 nerve root.  There was multi-level facet joint arthropathy from L2-3 to L5-S1.

239     There was an MRI scan of the cervical, thoracic and lumbar spine in September 2016.  It was reported that there was minimal disc osteophyte complex at C7-T1 and C5-6, not resulting in significant canal stenosis. There were minor disc abnormalities noted at L2-3 and L4-5 and no evidence of high-grade canal foraminal or subarticular recess stenosis.

240     Dr Aliashkevich organised further investigations in September 2016.  An x-ray of the lumbar spine showed mildly decreased intervertebral disc height at L5‑S1.  There was mild bilateral facet joint arthropathy at C7-T1 on the cervical spine x-ray.

241     On the weight bearing MRI scan of the lumbar spine there was mildly decreased interval disc height at L5-S1, loss of normal intervertebral disc T2 hydration and L4-5 and L5-S1.  There was a mild broad-based disc bulge at L2-3 and at L4-5.  It was concluded there was a mild broad-based disc bulge at L2-3, L4-5, not significantly changed from the previous September 2016 MRI scan.  There was mild posterior disc osteophyte complex at C5-6 and a small posterocentral disc protrusion at C4-5, barely contacting the anterior aspect of the cord in the flexion and extension positions.

242     Following an MRI scan of the lumbar spine in May 2018, it was reported there was mild to moderate central canal stenosis seen at L4-5 with slight impingement of the traversing right L5 nerve root.  Mild central canal stenoses were seen at L2-3 and L5-S1.  When compared to the August 2016 CT scan, there had been a significant improvement with the impingement to the traversing S1 nerve roots, particularly the right side.  There were small annular tears at L4-5/L5-S1 levels which could be associated with discogenic pain. 

The Defendant’s medical evidence

243     The Sunshine Hospital Emergency notes of 8 April 2004 set out the plaintiff attended complaining of calf pain.  It was noted “back pain - longstanding- more beginning of pregnancy”.

244     The plaintiff attended Sunshine Hospital Emergency on 24 February 2007.  It was noted the patient flung herself out of the wheelchair onto the floor.  Accompanying people were very upset the patient was not given immediate priority and accompanying man lifted the patient over his shoulder and left Emergency.  

245     The plaintiff attended Western General Hospital Emergency later that day.  The presenting problem was a migrainous headache on a background of five months of multiple symptoms including forgetfulness, and paraesthesia in all four limbs.  No neurological deficit and no evidence of migraines.  It was noted the plaintiff was under significant stress with three children under three.

Medico-legal evidence

246     Dr Clayton Thomas, consultant in rehabilitation and pain medicine, saw the plaintiff in February 2019. She then told him that she had developed neck pain, chest pain and lower back pain after the accident.

247     On examination, the main problem was the lower back pain, more to the left than the right, with some pain in the left lower limb and episodic numbness.  The plaintiff complained of neck pain on the left side with some radiation into the left arm, but the dominant pain in the neck was left sided.  She complained of more frequent migraines than before.

248     Neurological examination was normal.  The plaintiff was tender across the lower back, more to the left than the right.  Lumbosacral movements were approximately 30 to 40 per cent of normal, reduced in a non-specific manner.  Back movements did not seem to cause any discomfort in either leg.  There was tenderness in the cervical spine.  There was no wasting.

249     Dr Thomas thought the plaintiff would appear to be a vulnerable thirty-five-year-old woman involved in a significant motor vehicle accident.  There appeared to be a significant pre-existing psychosocial situation making her vulnerable to developing a chronic pain syndrome, nonetheless the accident did seem significant.  Clinically, the plaintiff had evidence of a nociplastic pain syndrome, with sensitivity to one side, predominantly being the left side of her neck and left lower back.  Ideally, it would have been better to examine her properly, but under the circumstances, that was not possible.  He thought treatment had been appropriate and reasonable, but ideally she should be weaned off Panadeine Forte onto simple over-the-counter medications.

250     On the basis of history and examination and investigations, Dr Thomas thought the plaintiff was suffering from a Chronic Pain Syndrome which was nociplastic, primarily central sensitisation. 

251     Dr Thomas noted there was a non-organic weakness to the left lower limb, but otherwise it was not possible to marry the imaging with the clinical complaints, as the imaging was really non-specific.

252     Dr Thomas thought the prognosis was for ongoing pain complaints going forward.  While the plaintiff was independent in personal care, he would accept she would have difficulty with the heavier chores.

253     Dr Thomas re-examined the plaintiff on 8 November 2011.

254     The plaintiff then reported back and leg pain were the worst for her, with back and leg pain at 9 out of 10.  If she laid down it would be 7 out of 10.  Walking was limited to 50 metres.  She had pain in her neck on the left side and had ongoing migraines every few weeks.

255     Examination of the lumbar spine standing revealed diffuse tenderness throughout.  Back movements were mildly limited and flexion moreso than extension.  The plaintiff was highly anxious to examine.  Her neck was tender to palpation, more on the left than the right, and left shoulder movements were limited.

256     Dr Thomas thought the plaintiff had fairly significant back and left leg pain, with imaging being reasonably non-specific. He could not account for her stated level of mobility limited to metres when her gait otherwise appeared to be reasonably symmetrical when seen. 

257     Dr Thomas thought that the plaintiff’s symptoms had been caused by the accident.  He had indicated that there was a degree of Chronic Pain Syndrome that he thought was both organic, therefore probably more central sensitisation and psychological.  He thought the alleged injuries and disabilities were consistent with the manner in which the accident had occurred. 

258     Dr Thomas thought the totality of examination was pointing towards someone who is generally disabled, and although there is a specific non-organic component, he never gained the impression that the plaintiff’s description of what she was describing did not translate to all aspects of her day-to-day functioning.

259     Dr Thomas thought there was a discrepancy between what he would expect the plaintiff’s level of disability would be, with her complaints, but this goes back to the psychological aspects of her presentation.

260     Dr Thomas noted the plaintiff remained under the care of her general practitioner.  He thought she was taking too much Panadeine Forte and this needed to be tapered, reducing the codeine.  Mobic had almost certainly had been used as an analgesic and that was reasonable.

261     Dr Thomas would expect there had been a significant impact from this accident on the plaintiff’s ability to function.  This accounted for a lack of functioning socially, recreationally and domestically.  He would expect that this would be prolonged, noting she had never worked since being in Australia and the totality of the situation would make return to some form of mainstream employment difficult for her.

262     Dr Thomas thought the prognosis is more determined by psychological factors than organic ones.  Given the lack of change that had occurred now for ten years, he thought it was more likely than not that the plaintiff’s current presentation will go forward indefinitely.

263     The plaintiff was seen by Dr Andrew Firestone, psychiatrist, initially in February 2019 and more recently on 4 December 2019.

264     Dr Firestone took a history of the plaintiff not speaking to her father for eleven years after she separated from her husband.

265     On the first examination, the plaintiff complained of constant pain twenty-four hours a day in her middle and lower back.  She said her back pain had steadily increased over the years and there have been a number of hospitalisations.

266     Dr Firestone concluded the accident itself had left some traumatic features.  There were occasional nightmares and the plaintiff was cautious around trucks.  There was some functional impairment, with the plaintiff limiting the distance she drove when possible.  In his view, there was certainly psychological contribution to her pain, which was the cause of her poor self-care, rather than depression, in his judgment. He thought perhaps most serious was her dependence now on codeine and this appeared to have developed since the accident.

267     Dr Firestone considered psychiatric illness resulting from the effects of the transport-related physical injury included Adjustment Disorder with depressive and traumatic features, Somatic Symptom Disorder with predominant pain and codeine dependence.

268     Dr Firestone noted pain interfered with the plaintiff’s household activities and the marital relationship was strained in consequence.  She required assistance weaning from codeine.

269     On re-examination, tearfully the plaintiff related her general health had deteriorated since last seen.

270     Dr Firestone noted the plaintiff’s psychiatric status involved issues with her husband and brother.  He confirmed his earlier diagnosis and thought the plaintiff had illness anxiety and an Adjustment Disorder with depressive features not related to the accident.

Overview

271     Injuries to different regions of the spine can be aggregated when assessing whether the plaintiff has a serious impairment or loss of body function of the spine.[96]

[96]Zepic v Transport Accident Commission [2013] VSCA 232 at paragraph [11]

272     While it is accepted the plaintiff suffered a cervical injury in the accident, it was not suggested that any impairment in relation thereto was “serious”, with counsel for the defendant submitting this was not the case.[97]

[97]T233

273     In those circumstances, the plaintiff has to identify any other parts of her spine that were injured in the accident and satisfy the Court that when added to her cervical spine injury, the impairment consequences thereof are “serious”.

Credit

274     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[98]

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

[98](2010) 31 VR 1 at paragraph [12]

275     Counsel for the defendant submitted the plaintiff’s reliability and credit had been tested and impeached and that the Court ought not make findings on historical matters of significance, particularly medical, on the basis of what she says as opposed to what the contemporaneous documentation shows.[99]

[99]T226

276     It was submitted the plaintiff’s evidence of a continuum of lower back pain was not consistent with referral to specialists for other conditions to whom she did not mention her back, such as Dr Stockman, the physiotherapist and Mr Agarwal.

277     Further, the plaintiff’s evidence was unreliable.  An example thereof was her explanation why she did not mention the accident when she went to the hospital in February 2011 was because when she had the accident she had so many injections she was numb and could not feel pain in many spots.[100]

[100]T229

278     It was also submitted the plaintiff had not been forthcoming about the extent of her international travel, particularly to more recent examiners who knew nothing about those trips. 

279     Further, it was submitted the plaintiff painted a picture of disability which was not consistent with the activities which she agreed she performed when seen on the film, such as saying she could only drive for five or ten minutes and had extremely low postural tolerances.[101]  Whether it was as a result of her emotional instability or “just dead set misleading” was a matter for the Court.[102]

[101]T230

[102]T231

280     Counsel for the plaintiff submitted it is important to note the plaintiff’s background and capacities, having arrived in Australia as a teenager with no English, ongoing problems with the language and a difficult cultural background as an explanation for things that might not be mainstream explanations that are found in mainstream culture.  The role of religion was also emphasised.[103]

[103]T265

281     The plaintiff’s report of five to ten minutes sitting capacity was “a throw-away line made time and again in these cases”.  The plaintiff also had good and bad days, but when she is doing things, “it is not for hours”.

282     Further, there was no suggestion the plaintiff had been asked about her overseas travel and gave a misleading history.  That travel, in any event, was for the purposes of treatment that she thought might be efficacious and it could not be expected that she could provide detailed documentary evidence thereof.[104]  From the plaintiff’s viewpoint, her treatment overseas was more than in hope than expectation.  Further, it was submitted reports from treaters in Pakistan would not “make a lot of difference” in this case.[105]

[104]T270

[105]T271

283     It was submitted in terms of the film in general, any activity shown was not continuous.  There was nothing shown in the film that was inconsistent with the plaintiff’s evidence of her difficulties and problems when stuck in traffic.[106] 

[106]T272

284     In my view, the plaintiff was generally a credible witness. Her English language difficulties were obvious and on occasion, may explain answers such as that relied on by the defendant which I thought was confusion on her part.[107]

[107]T229

285     While the plaintiff obviously was able to drive for more than five to ten  minutes, I accept her report to doctors in terms of her tolerances was more of a throwaway line, really meaning she could not drive for long without experiencing pain.  Further, there was no other activity shown on the film that was inconsistent with the plaintiff’s description of her pain and restrictions. She was shown doing very little. 

286     While the plaintiff did not discuss her recent overseas travel with Dr Sheriff, he did not alter his views as to her significant ongoing spinal pain and restrictions when told of the extent of her travel.

Causation

287 Section 93 of the Act provides that damages are payable in circumstances where the plaintiff has a serious injury as a result of a transport accident.

288     It is in issue whether the plaintiff suffered an injury to her lower back in the transport accident, the defendant having admitted injury only to the cervical spine and left shoulder. It was however conceded a component of the impairment benefit allowed related to the lower back.[108]

[108]T253, Counsel for the plaintiff did not intend to rely on Ansett v Taylor [2006] VSCA 171

289     Counsel for the defendant submitted the plaintiff’s case on causation was “all effectively ex post facto reconstruction and that any entries in clinical notes at an early stage were rudimentary in nature”.[109]  Dr Sheriff’s notes were not specific enough to establish there was a lower back involvement in the accident or to establish there was some accident-related aggravation that continued until February 2011.  That submission was bolstered by the referral of the plaintiff for treatment of other injured parts of her body and no mention by those treaters of any back complaint. 

[109]T235

290     There was also no mention of a back injury on the TAC Claim Form signed in August 2009, in which the plaintiff listed all injuries from the transport accident as follows:

“Shoulder pain left, neck pain, chest injury, hip pain left, injury of head.”

291     While there was a note of a finding of midline tenderness at the RMH when the plaintiff attended on the said date, it was submitted that would not be unusual in an accident of this nature.[110]

[110]T236

292     It was submitted there was not enough evidence to inculpate the back in the accident.  The real reason for the plaintiff’s ongoing back complaint was the major issue in February 2011, which seems to have been a reasonably trivial bodily movement.  It was submitted when the plaintiff attended the hospital at that time, she would have had every opportunity to complain about any accident involvement in her back condition, but she did not.[111]

[111]T237

293     Further, the occupational therapist, in January 2010, noted a complaint of mid-thoracic, not lumbar pain.[112] 

[112]T232

294     In response, counsel the plaintiff relied on the decision of Davies v Nilsen & Transport Accident Commission:[113]

[113][2017] VSCA 278 at paragraphs [82]-[95]

295     In that case, in circumstances where there was a late complaint of back pain following a transport accident, when considering causation, Warren CJ took into account, inter alia, the accident circumstances:

“First, the collision itself involved a very considerable impact.  The applicant’s car was ‘written off’.  Experience shows that a minor impact may lead to substantial injury, and that the converse may occur.  But as a matter of probability, the more severe the impact, the greater the prospect of more severe injury.”

296     Further, it was also relevant that before the accident, the plaintiff was a relatively healthy young woman with no relevant history of low back injury.

297     In the present case, Dr Sherriff confirmed there was no spinal complaints before the said date and that there was quite significant trauma in the accident, a view shared by Dr Thomas.  Dr Sheriff also thought the role of the accident was significant in the plaintiff’s current position.[114]

[114]T265

298     Counsel for the plaintiff relied on the Ambulance report of 22 July 2009 which detailed “traumatic chest pain; muscular soft tissue pain” and multiple observations of spinal symptoms at the RMH.[115]

[115]T259

299     Also relied on were Dr Sherriff’s note of the plaintiff’s first post-accident attendance, his initial TAC certificate, with multiple injuries left hip back[116]  and also his involvement with the TAC in obtaining home help assistance for the plaintiff.[117]

[116]T260

[117]T261

300     It was also submitted that the location of the complaint of pain may or may not be directly correlated with a finding on imaging, like the hip pain that Dr Sherriff described.  In those circumstances, there should not be an adverse finding against the plaintiff that there was a report of injury to the mid back when she saw the occupational therapist.  In any event, an occupational therapist ranks low in the hierarchy.[118]

[118]T262

301     Further, Dr Sheriff’s entries on 20 and 25 November 2011 confirmed the plaintiff then had a stiff spine.[119]

[119]T153

302     It was submitted that the plaintiff being referred for treatment of parts of her body other than her back does not tell in any way about the strength or otherwise of her back complaint in circumstances where Dr Sheriff confirmed there were ongoing back complaints, some of which might have been noted and others were not, and the fact the plaintiff said she had had back pain since the accident.[120] 

[120]T263

303     Professor Bittar and Dr Awad thought the plaintiff’s back condition was related to the accident.[121] Dr Mittal also considered the accident was directly related to the diagnosed conditions.[122] 

[121]T264

[122]T265

304     In terms of the chain of events, it was submitted that from the time of the accident there were at least intermittent complaints of back pain to Dr Sherriff and others, plus the plaintiff’s evidence of ongoing pain, worse over time.  It was never her case that from “the day dot” she had severe pain that has been ongoing and unremitting.  The case has been there has been back pain and that from 2011 it became significantly worse and continued to worsen.[123]

[123]T266

305     During the hearing, I indicated my preliminary view that the plaintiff did injure her back in the accident.[124]  Having fully considered all the evidence, I make this finding.

[124]T232-3

306     Following this high impact collision, there were multiple references to back complaints at the RMH and in the early stages to Dr Sheriff. Complaints of back pain were intermittent until February 2011 when there was a significant flare up, with no triggering event.

307     As counsel for the plaintiff submitted, while the plaintiff deposed she had suffered multiple injuries, the effects of some had diminished, particularly the shoulder, but in relation to the lower back, it worsened over time.[125]

[125]T256

Organic basis

308     Counsel for the defendant submitted any back complaint was not organically based, relying on Dr Thomas’ opinion and the lack of significant radiological findings.  Dr Thomas thought the weakness of the lower limb was non-organic and he considered the plaintiff was probably able to do a bit more than she told him.  The more significant restrictions on re-examination were also relied upon.  It was submitted there was an element of Chronic Pain Syndrome, which seemed to be non-organic in its genesis.[126]

[126]T242

309     However, as I indicated during the hearing, Dr Thomas was the only practitioner of this view and the preponderance of medical evidence is that the plaintiff’s back condition as at the date of hearing is organically based.[127]

[127]T243

310     In my view, the plaintiff has a physical impairment properly considered under sub-paragraph (a), along with a degree of functional or emotional overlay which does not play a major part in her current presentation.[128]

[128]T244

Consequences

311     If causation was established, counsel for the defendant submitted that the plaintiff’s functionality “was not bad; it was quite good”.[129]

[129]T252

312     The plaintiff was able to take her children to and from school.  She had had a multitude of international trips, which were not properly explained.  There was  no evidence of what she did while overseas or any real evidence of medical treatment undertaken.  It was submitted there was a complete paucity of evidence about the real activity she undertook while she was away. 

313     It was submitted the onus was on the plaintiff to establish what she was doing while overseas when she described pretty florid consequences otherwise.  It was submitted it “beggared belief” that she would tell recent examiners about her level of restriction, yet not tell them about her extensive overseas travel.[130]

[130]T246

314     In all the circumstances, it was submitted the plaintiff’s level of activity and  her florid complaints of lack of functionality “did not add up”.[131]

[131]T247

315     It was submitted the plaintiff’s explanation as to prolonged driving was unsatisfactory.[132]  If she could drive for over fifty minutes on occasions, it was submitted her disability was not as great as would otherwise be accepted.[133]

[132]T248

[133]T249

316     In terms of her medication intake, it was submitted that pre February 2011, the plaintiff did not take much medication for her back.[134]

[134]T250

317     Counsel for the defendant also objected to any claimed work-related consequences as this issue was not deposed to by the plaintiff, it was not taken up in viva voce evidence and was only in a history to one doctor.[135]

[135]T282

318     Counsel for the plaintiff submitted the most significant consequence by a significant margin is severe pain that has increased in recent years, involving sharp flare ups that have been more frequent since 2018, symptoms down the left leg when walking or standing for prolonged periods, increased pain with driving, prolonged posture, needing to take breaks, the plaintiff’s obvious moving about, she explained, because of discomfort, moving from one leg to the other.[136] 

[136]T276

319     Further, housework was particularly significant for the plaintiff given her cultural background and also had significant implications for marital harmony.[137]

[137]T277

320     The plaintiff’s need for painkilling medication was also significant.[138]

[138]T257

321     As Dodds -Streeton JA said in Kelso v Tatiara Meat Company Pty Ltd:[139]

“… The chronic pain was a prominent feature of the appellant’s case.  The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”

[139](2007) 17 VR 592 at paragraph [199]

322     There had also been hospitalisations of some duration, interruption with sleep, difficulty with showering, toileting and getting dressed, and as Dr Firestone noted, a situation of poor self care.[140]

[140]T278

323     There were also limitations in terms of cooking, housework, and her neck involves problems with reading and television. This was particularly significant given the plaintiff’s lack of other hobbies. There was also a reduced participation in socialising. 

324     It was described as a measure of desperation that the plaintiff travelled in circumstances where her family has limited financial resources.  The travel to Pakistan might be seen as a strong indication of the extent to which she is suffering in her everyday activities.[141]

[141]T279

325     Dr Serry noted her feeling alone and stuck with her pain and loss of energy and having a diminished level of tolerance.[142]

[142]T279

326     The plaintiff’s sister’s affidavit is corroborative of all elements of the plaintiff’s case.[143]

[143]T280

327     While financial loss was not claimed, it was submitted there was some reduced economic capacity, the plaintiff having done part of a childcare course many years ago, telling Mr Awad she wanted to work, at some time in the future, when her children were no longer reliant on her.

328     Taking into account all the evidence, I am satisfied that the consequences of the plaintiff’s lumbar impairment are “serious”.

329     The plaintiff is still a young woman.  She is only thirty-six.

330     In Stijepic v One Force Group Aust Pty Ltd,[144] Ashley JA and Beach AJA discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.

[144][2009] VSCA 181 at paragraph [43]

331     The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, it was relevant to look at the likely period for which those consequences would be experienced.  It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.

332     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[145]

“The evidentiary basis of the pain assessment will ordinarily comprise inter alia,  

(a)  what the plaintiff says about the pain (both in court and to doctors.”

[145](supra) at paragraph [11]

333     In addition to cervical pain deposed to in some detail in both affidavits, the plaintiff has experienced lower back pain since the accident.  In more recent times, her lumbar pain has been the more significant. It is constant but at times has a sharp quality and can continue for hours. The pain then spreads down her lower left limb.

334     The back pain increases with bending or twisting and she needs to move carefully.  Prolonged postures cause increased pain.  Her mobility and level of activity is significantly restricted as a result thereof.

335     While the severity of the plaintiff’s complaints of back pain have increased since early 2011, I accept that back pain has been ongoing since the accident. Dr Sheriff, who has treated the plaintiff from the outset, had no difficulty linking the deterioration in the plaintiff’s symptoms to the accident. There was no other incident or explanation for the increase in her back pain in early 2011.

336     The plaintiff continues to require painkilling medication.  Her back complaints have been so severe she has required hospitalisation on a number of occasions since February 2011.

337     In my view, the domestic consequences of the plaintiff’s spinal impairment are also “serious”.  Her cultural background is one which demands a woman be the homemaker responsible for all domestic tasks and care of the children. Because of her back and neck pain and associated restrictions, the plaintiff is unable to fulfil these roles as she is expected to do, thus causing significant marital disharmony.

338     While the plaintiff’s evidence as to her activities when travelling overseas was somewhat vague, it does not seem she was engaged in any particularly physical activity.  She did not climb Mt Arafat.  She travelled by bus.  She did not continuously walk in circles when she was involved in religious ceremonies.[146]

[146]T246

339     Although there was some reliance on work consequences, in my view, there is little evidence in relation thereto.

340     Taking into account all the evidence in this case, I am satisfied that the plaintiff did suffer an injury to her low back in the accident, as well as an injury to the cervical spine.  The consequences of her spinal impairment are “serious”.

341     No treatment to date has had any lasting effect on the plaintiff’s spinal condition or resulted in any significant improvement.  In those circumstances, I accept that the plaintiff’s spinal impairment will continue into the foreseeable future.

342     Accordingly, I grant leave to bring proceedings for damages. 

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