Clark v TAC
[2021] VCC 1221
•31 August 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-05749
| SALLY ANN-MAREE CLARK | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 August 2021 | |
DATE OF JUDGMENT: | 31 August 2021 | |
CASE MAY BE CITED AS: | Clark v TAC | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1221 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: “Serious Injury” – Whether Plaintiff suffers from organic impairment or loss of body function – Whether the consequences of any organic impairment or loss of body function is serious and long term – Whether Plaintiff suffers from a severe long term mental or severe long term behavioural disturbance or disorder – Whether there is an impairment or loss of body function produced as a consequence of a mental disturbance or disorder which can be considered under the (c) claim
Legislation Cited: Transport Accident Act 1986 (Vic)
Cases Cited:Richards v Wylie (2000) 1 VR 79; Transport Accident Commission v Kamel [2011] VSCA 110; Petkovski v Galletti [1994] 1 VR 436
Judgment: Leave with respect to paragraph (a) only
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards QC with Ms A Ryan | Shine Lawyers |
| For the Defendant | Mr R Middleton QC with Ms J Clark | Solicitor for the Transport Accident Commission |
HIS HONOUR:
1On 22 November 2013, Ms Sally Ann-Maree Clark sustained injuries in a motor vehicle accident. At the time she was a front seat passenger in a car driven by her friend. They were returning home early in the morning when her friend lost control and drove into the path of an oncoming vehicle. The estimated speed of the vehicle she was in was 70kmph and the oncoming vehicle was travelling at 50kmph. Ms Clark sustained significant injuries and was taken by ambulance to the Royal Melbourne Hospital where she spent three days in the Intensive Care Unit (“ICU”). She was subsequently discharged.
2She claims that by reason of that motor vehicle accident she has sustained serious injury within the meaning of the Transport Accident Act 1986 (Vic) (“TAA”). In particular she claims pursuant to s 93(17)(a)[1] physical injury to the:
(i) chest and abdomen; as part of this claim she alleges the development of a chronic pain sensitisation syndrome which has continued despite the apparent healing of the physical injury.
(ii) the spine, noting that this encompasses the lumbar, thoracic and the cervical spine.
[1] Transport Accident Act 1986 (Vic), s 93(17)(a)
3She also claims pursuant to s 93(17)(c)[2] to have suffered from a severe mental impairment being a Post-Traumatic Stress Disorder (“PTSD”) and Chronic Adjustment Disorder with Anxiety and Depressed Mood
[2] Transport Accident Act 1986 (Vic), s 93(17)(c)
4In opposition to the paragraph (a) claim, the Transport Accident Commission (“TAC”) submits that Ms Clark’s physical injuries have resolved and what is really complained of is a non-organic pain syndrome which is a psychologically based condition. In that sense, it submits that the paragraph (a) claim cannot succeed, relying on Richards v Wylie[3]. It says further that the psychological condition is simply not “severe” in the sense required.
[3] Richards v Wylie (2000) 1 VR 79 at [17]
5The questions that fall to be determined then are:
A. Does Ms Clark suffer from an organic impairment or loss of a body function and whether, having regard to its consequences, that impairment or loss is serious and long-term?[4] In considering this question, and given the Defendant’s position, I note that when the impairment of a body function is the product of both organic and mental conditions it will not fall within paragraph (a), unless it is predominantly a product of the organic condition.
B. Does Ms Clark suffer from a severe long term mental or severe long term behavioural disturbance or disorder? In considering that question, it must also be considered whether there is an impairment or loss of body function produced as a consequence of a mental disturbance or disorder which can be considered under the (c) claim?[5]
[4]Transport Accident Commission v Kamel [2011] VSCA 110 at [65]
[5] Richards v Wylie (2000) 1 VR 79 at [28]; Transport Accident Commission v Kamel [2011] VSCA 110 at
[65]
6For the reasons which follow, I find that Ms Clark has sustained an organic impairment arising from injuries to her abdomen and chest that are serious and long-term. I find, in addition, she has sustained a mental disturbance or disorder as a result of the motor vehicle accident which cannot be described as being severe. For these reasons I grant Ms Clark leave to bring proceedings within the meaning of section 93(17)(a)[6].
[6] Transport Accident Act 1986 (Vic), s 93(17)(a)
Relevant background
7Ms Clark was born on 16 December 1980. She suffered from dyslexia as a child and had difficulty with reading and spelling. She finished year 10 and then began a TAFE course in hospitality. In around 1997, she began working at an asparagus farm. She then held other manual jobs such as in events management, as a farm hand and then as a process line worker.
8In these early years she particularly enjoyed the outdoors lifestyle, being such things as camping and horse riding. At some point, she fell from a horse and injured her back. Her evidence was that she was uncertain when this occurred and that she would occasionally get flareups of lower back pain, which were treated with over the counter medication and on occasion stronger medication such as Celebrex.[7] She also enjoyed playing guitar and dancing. She was a smoker and also used intravenous drugs.
[7]Defendant’s Court Book (“DCB”) 70-71
9In 2003 she fell pregnant. She gave evidence that once she fell pregnant, she ceased intravenous drug use. She ceased work around this time. On 5 April 2004 her son Noah was born. She deposed that she did not return to work until Noah reached preparatory school, which I have assumed is around the age of five. After his return to school, she began working part-time at Café Zodiac[8] and also Café Circe[9]. She accepted that tax records did not show any strong history of work or earnings. Rather, it seemed she was reliant on Centrelink payments in the main.
[8]Transcript (“T”) 29, Line (“L”) 22-23
[9]T29, L7
10Around 2012, though the dates are uncertain, her partner was jailed for a series of robberies.[10] She was thus left to care for her son by herself. In March 2013, the notes from her treating medical practitioner revealed that she had a flareup of lower back pain.[11] She was tender in the thoracic spine and was prescribed Panadeine Forte. Her treating doctor sent her for x-rays of the spine which revealed scoliosis. It was thought the treatment for that was most relevantly physiotherapy to improve the function of the thoracic spine. She was referred in April 2013 for physiotherapy.[12]
[10] Plaintiff’s Court Book (“PCB”) 70
[11]DCB 70
[12]DCB 71
11I pause to note that in the treating doctor’s notes of the Sunbury Medical Centre, which were tendered,[13] this is the first occasion on which physiotherapy has been recommended for any back complaint. In fact, the notes seem to reveal very rare attendances for back pain or even any associated prescription of Celebrex or Panadeine Forte.[14] Rather, this seems to be a very isolated event. An examination of the notes reveals that the attendances from 2011 to the date of the accident are invariably related to painful impacted wisdom teeth and consequent infection. Any pain medication seems prescribed in this context and not in relation to spine pain.
[13] DCB 58-77
[14] DCB 64-71
The motor vehicle accident
12On 22 November 2013, Ms Clark had been out with some friends. At around 6:30am, she and her friends decided to return home. Ms Clark was in the passenger seat and fell asleep. Her friend was driving. Her other friend was sitting in the passenger seat directly behind Ms Clark. The car they were in was travelling at around 70kmph. The driver misjudged the turn at the corner of Grange Road and Fullarton Road, Niddrie. As a result, the car Ms Clark was in drove head-on into an oncoming ute. Ms Clark was asleep immediately prior to the impact. She was wearing a seatbelt. The impact had a high degree of force.[15] The passenger in the back seat moved forward and impacted the back of Ms Clark’s seat.[16] In addition, Ms Clark was thrown forward against the seatbelt restraint. The airbag deployed. Ms Clark was able to get out of the car and was found by ambulance officers on the side of the road. She was immediately noted to complain of generalised abdominal pain and chest tightness associated with shortness of breath.[17] At the scene, no loss of consciousness was noted. Glasgow Coma Score (GCS) findings were 15 out of 15 and no neck pain was noted.[18] She was taken to the Royal Melbourne Hospital by ambulance. Treatment there required admission to the ICU. She was diagnosed with fractures on the left side to the 2nd, 3rd, 4th and 12th left ribs. She also fractured the 4th, 8th, 9th, 10th and 12th right ribs. She suffered a fractured sternum, lacerated liver in the right lobe and also numerous pulmonary contusions.[19] The report from the Royal Melbourne Hospital records that she was found to be in significant pain throughout the chest, sternum and abdomen.[20] She was initially treated with percutaneous Fentanyl, which was then changed to a high dose of Celebrex. All injuries were treated conservatively and after three days she was discharged to the Brunswick Private Rehabilitation Hospital on 26 November 2013.[21]
[15] PCB 89
[16] PCB 89
[17]PCB 29
[18]PCB 31
[19]PCB 44
[20]PCB 43
[21]PCB 44
13It is then somewhat unclear what occurred with Ms Clark’s treatment course. It must be said that she was not an accurate historian. Her recall of the exact timing of matters was not something that she displayed in evidence or after reading her affidavit material. However, overall I formed the view, after watching her closely during the giving of her evidence, that she attempted to answer as best she could and made no attempt to evade questions. I find that she was a witness of truth and I accept her evidence. Mr Richards QC, who appeared on her behalf with Ms Ryan, submitted that this period in Ms Clark’s life was particularly tumultuous. This was because immediately prior to the motor vehicle accident her son had been diagnosed with a very significant autoimmune condition known as JMD. This required specialist medical attention and extra care and attention from her. In addition, her mother had a heart attack in 2014. Her brother also committed suicide in 2014.[22]
[22]PCB 100. See also T32, L29 – T33, L2
14Documents were produced from the Brunswick Private Rehabilitation Hospital, however, they do not indicate a period of inpatient treatment there, but rather, outpatient treatment on occasion during 2014 ending around October 2014. After the hearing, the parties communicated an agreed position to the Court.[23] It was to the effect that Ms Clark had been an inpatient at the Brunswick Private Hospital from 26 November 2013 to 12 December 2013 and then an outpatient at the Brunswick Private Hospital from 18 July 2014 to 30 October 2014. As has been noted there was no report from the Brunswick Private Hospital, only a discharge summary from October 2014.[24]
[23] Email received from the Defendant on 3 August 2021 at 10:22am
[24]Exhibit P1, Brunswick Private Hospital, pp155-159
15Mr Middleton QC, who appeared with Ms Clark for the TAC, submitted that a lack of treatment through 2014 spoke to the fact that on discharge from the Royal Melbourne Hospital Ms Clark had significantly recovered from her physical impairments. In particular, he noted that there was no report from the Brunswick Private Rehabilitation Hospital. He also pointed to the fact that on 25 June 2014, 3 September 2014, 10 October 2014, 13 October 2014 and 18 December 2014,[25] when Ms Clark consulted her treating doctor, she made no mention of the motor vehicle accident or injury sustained as a result. When this was put to Ms Clark, she gave evidence that during 2014 she was putting her son’s health first and relegating her issues, related to the motor vehicle accident ‘down the order’.[26] It must be noted that this accords with her treating doctor’s view at the time.[27]
[25]DCB 73-74
[26]T33, L8-14
[27] DCB 77 – he noted she had had “…an awful few years”.
16In 2015, there appears a slight change in the recordings of the treating doctor. In three recordings on 3 March 2015, 23 April 2015 and 27 July 2015[28] there is prescription for Celebrex or strong painkilling medication such as Augmentin Duo Forte and Panadeine Forte. In fact, in the recording for 23 April 2015, the treating doctor prescribes Augmentin Duo Forte for chronic neck pain associated with the motor vehicle accident.[29]
[28]DCB 74-77
[29]DCB 75
17When the chronology is set out in this way it can be seen that, contrary to the Defendant’s submission, after discharge from the Royal Melbourne Hospital she was treated with a significant inpatient stay at the Brunswick Private Hospital at the end of 2013. She then had a further period of treatment from July to October 2014 at that hospital. It is undoubted that was for ongoing issues associated with the motor vehicle accident. After discharge from there in October 2014, she saw her treating doctor on only one occasion, being 18 December 2014, where there is no mention of the motor vehicle accident. However, significantly, at her next consultation with the treating doctor, in March 2015, she is prescribed Celebrex once again.[30] This is the medication that she had been consistently treated with since discharge from the Royal Melbourne Hospital. That is the medication her treating doctor maintained her on through 2015 at the next three visits. Overall, this tells against the Defendant’s submission that there was no ongoing course of treatment relating to the motor vehicle accident. I accept the Plaintiff’s submission that she was dealing with other issues and was perhaps not attending at her treating doctor for her own motor vehicle accident injuries as routinely as might be expected.
[30]DCB 74
18It seems accepted that Ms Clark was required to change treating doctors because she moved house.[31] At times she was staying with her mother, at other times she was in accommodation of her own. In any event, it seems that she came under the care of, Dr Shamoun at the Parkhill Medical Centre in Berwick in about June 2016.[32]
[31]T20, L30 – T21, L7
[32]PCB 14, at paragraph [29], T90, L12-14; see also T76, L26-28; see also page 5 of Defendant’s chronology.
19Dr Shamoun formed the view that there was a diagnosis of PTSD, pain in the chest, ribs and right sided abdominal pain. He prescribed Celebrex and Panadeine Forte. He also made a referral to a psychologist Ms Garfield and a pain specialist Dr Monagle.
20Ms Garfield first consulted with Ms Clark on 14 July 2017.[33] Dr Monagle was meant to have seen Ms Clark on 20 July 2017 but she did not attend this appointment.[34]
[33]PCB 46
[34]PCB 59
21Ms Garfield’s impression was that after the motor vehicle accident there had been the development of depression, anxiety and severe stress. There were nightmares. She formed the view that there was PTSD.[35]
[35]PCB 50
22Dr Monagle was the pain specialist who saw the Plaintiff on referral from Dr Shamoun. He first saw her in January 2018. He considered that her physical injuries had largely recovered but she had ongoing neuropathic pain.[36] He considered she should trial Mirtazapine, Tramadol and Lyrica as well as pursue a course of physiotherapy.[37] He considered that she had no current work capacity.[38]
[36]PCB 57
[37]PCB 58
[38]PCB 60
23In addition, Dr Shamoun referred Ms Clark to a psychiatrist, Dr Kishore. He saw her on a few occasions until November 2017.[39] He trialled her on Fluoxetine which caused her to be dizzy. He then prescribed Mirtazapine which she did not wish to take, however. He considered that her symptoms were lessening and were at most mild to moderate depressive symptoms with a good prognosis and he recommended a return to work.[40]
[39]PCB 69
[40]PCB 72
24To slightly interrupt the chronology, Ms Clark was also seen by Mr Grossbard, orthopaedic specialist, in September 2017, being a joint medico-legal examiner for the parties. He considered that there was a history of pain in the neck consistent with a soft tissue cervical spine injury and that she was physically limited for work.[41] She was also seen by Dr Dupuche in late 2017, a medico-legal physician who conducted an examination for the parties jointly.[42] He took a history that she had limitations with her activities of daily living, such as performing normal vacuuming washing and bending.[43] He considered that she had an ongoing pain disorder which warranted continuing pain management.[44] He concluded that her condition was all related to the motor vehicle accident.[45]
[41]PCB 86
[42] PCB 88
[43]PCB 91
[44]PCB 93
[45]PCB 93. See also PCB 95, answer to question (d)
25Throughout 2018, Ms Clark continued to see Dr Shamoun. He considered that she continued with upper thoracic spine and lower thoracic spine pain in the sternum and abdomen and would require long-term analgesia.[46] At this stage, she was still under the care of Dr Monagle and he trialled numerous different medications such as Lyrica, Tegretol and Tramadol. He noted that she developed panic attacks and anxiety. He trialled her on Clonidine.[47] She was referred for physiotherapy with Mr Loh.[48] By this stage, Ms Clark’s son had recovered substantially from JMD and had moved to live with his father. Her evidence was that, but for her motor vehicle accident injuries, she would have attempted to return to work.[49] She gave evidence that she was unable to return to work because of her motor vehicle accident injuries.[50]
[46]PCB 40 Dr Shamoun report to Shine Lawyers undated but in response to a request dated May 2018
[47]PCB 64
[48]PCB 74
[49]T58, L26
[50]T57, L23 – T58, L20
26In March 2019, Dr Monagle released her from his care.[51]
[51]PCB 65
27In January 2020, she began seeing a new general practice in Tooradin. She saw Dr Das, Dr Kumar and Dr Le there. They diagnosed her with chronic pain and ultimately referred her to Dr Al Wahab, a psychiatrist, who made a diagnosis of Attention Deficit Disorder (ADD)[52] in December of that year.[53]
[52] Dr Al Wahab PCB 78
[53]PCB77-78
28In April 2020, Ms Clark saw Dr Lefkovits, a medico-legal practitioner. He considered that she had a predominantly ongoing physical condition which could be described as a chronic pain syndrome.[54] He considered that she had a good prognosis and would be able to return to work.[55] His supplementary report[56] noted that there was an entrenched chronic pain syndrome that was “present and real”. He opined that the predominant ongoing issue was currently an “ongoing central sensitisation syndrome (chronic pain syndrome)” and that she would require ongoing medication.[57]
[54]DCB 39, see answer to question 2
[55]DCB 40, see answers to question 4(a) and 6
[56]DCB 45
[57]DCB 46-47
29In May 2020, she saw Dr Mehr, a medico-legal physician and rehabilitation specialist. He took a history of ongoing chest and abdominal pain, ongoing tenderness in the spine and noted a number of physical restrictions in being able to sit and stand.[58] He considered she had a capacity for around 0.2 full-time equivalent hours.[59] He diagnosed her condition as being one of chronic pain.[60] A supplementary report of Dr Mehr in June 2021 confirmed the ongoing symptoms of abdominal and chest pain and her continued use of Lyrica and Celebrex. He noted the basis for this was the motor vehicle accident.[61]
[58]PCB 131
[59]PCB 134
[60]PCB 133
[61]PCB 139
30At the end of 2020, Ms Clark returned to the pain specialist Dr Monagle.[62] He recommended physiotherapy and began trialling her on Lyrica and maintained her Celebrex prescription. She was to do physiotherapy. It appears that the TAC paid for this but there is no report from the physiotherapist.
[62]PCB 21, at paragraph [4]. See also, PCB 67
31In about April 2021, Ms Clark returned to work at a bakery as a server. The bakery was about an hour away from where she lived.[63] She commenced on 17.5 hours per week but was unable to cope and reduced her hours to 8 hours per week over 2 days. She gave evidence that she reduced her hours because she was in such pain after work. She said that she needs to spread her work out so that she could cope. She said that even on the reduced hours she still struggles.[64]
[63] T30, L31
[64]T57, L26 – T58, L20
Assessment
32Turning to assess the Defendant’s arguments. The first raised by the Defendant is that there is no organic basis for the ongoing chronic pain syndrome or pain sensitisation that Ms Clark alleges. The Defendant points to the following factors in support of that submission. It notes that she was discharged reasonably quickly from the Royal Melbourne Hospital. It points next, to the absence of material from the Brunswick Rehabilitation Hospital to support any ongoing difficulties in the abdomen, chest and spine. Next, it submits there is no particular history of ongoing problems through 2014, 2015 and 2016 demonstrating difficulties which are corroborated by treating practitioners. It then points out that that the treatment regime of Celebrex in particular, as prescribed from 2015 onwards, is reasonably sporadic and accords with the pre-motor vehicle accident prescriptions of this medication for the injury sustained in the horse riding accident. Lastly, it relies on the medico-legal reporting which, it submits, does not support there being an ongoing organic defect likely to cause the pain which is being reported. As part of this, it notes that there are well healed rib and sternum fractures, and an x-ray of the spine reveals nothing more than the scoliosis which was a pre-existing condition.[65]
[65]DCB 117
33I do not accept those submissions. It can be seen by the setting out of the chronology that even after discharge from the Royal Melbourne Hospital there was a period of time where she was under the care of the Brunswick Private Rehabilitation Hospital. No doubt this was because of the initial severity of the impact and the very significant widespread injuries to the abdomen and chest sustained at that time. I note there were some nine rib fractures and a laceration of the liver.[66] Her injuries were so severe that she was in fact in the ICU for three days. She was then discharged for two weeks as an inpatient to the Brunswick Private Hospital. She gave evidence in a manner which, as I have indicated above, struck me as direct and honest. She gave evidence that she was a single mother at this stage with a sick child who had a severe autoimmune disease. She had other issues in her family which took her attention away from herself. I accept that evidence and consider it explains why there were not more regular attendances at the doctor for pain associated with the motor vehicle accident injuries. While she was discharged as an inpatient from the Brunswick Private Hospital, and the usual course would be for an immediate period of outpatient care, this did not eventuate for several months. This is understandable in her circumstances. On her history, she had physiotherapy after her discharge for her chest.[67] She was started on Lyrica at around three months post discharge.[68] However, it is to be noted she did return for outpatient care in mid-2014. That care as an outpatient involved physiotherapy and pain medication.[69] That pain medication then seems to be consistently prescribed from that time onward. This stands in stark contrast to the pre-motor vehicle accident situation which was of only very sporadic prescription of Celebrex.[70] Then when she came under the care of Dr Shamoun, he took a history entirely consistent with the evidence she has given of pain in her chest, ribs, right side and abdomen. He maintained her on Celebrex and Panadeine Forte. Her conditions were so serious that he referred her to Dr Monagle, a pain specialist. Relevantly, he noted that while the physical injuries had largely recovered there was ongoing “neuropathic pain”. He considered that pain was centred around the chest wall and abdomen.[71] He trialled her on numerous medications, Mirtazapine, Tramadol and Lyrica as well as setting her a course of physiotherapy and the use of a TENS machine. He did not consider that she had a capacity for work indicating that this pain, stemming from the motor vehicle accident, was ongoing and debilitating. I accept that evidence. This is also consistent with the examination findings and opinion of Dr Dupuche in 2017.[72] He recorded ongoing pain in the abdomen and chest, particularly in the right side. He noted a number of limitations on her activities of daily living. He considered that she had an ongoing pain disorder related to the motor vehicle accident. He considered that she needed continuing pain management.[73] I accept that evidence.
[66]PCB 44
[67]PCB 84
[68]PCB 84
[69]PCB 159
[70]DCB 59-62
[71]PCB 57
[72]PCB 88
[73]PCB 94, see answer to question 3
34The reporting of Dr Mehr is also consistent with ongoing chest and abdominal pain.[74] He considered that this was a chronic pain condition. I consider that all the evidence points in one direction. I find that Ms Clark had sustained very significant injuries to the chest and abdomen. While the fractures associated with those injuries have healed, they resulted in and continue to cause ongoing pain. I find that her pain is now chronic and is appropriately described as a chronic pain syndrome which is organically based. It requires significant medication, being Celebrex and Lyrica currently. It has led to impacts on Ms Clark’s activities of daily living, work and socialisation. I will come to these shortly in discussion as to whether these impairment consequences can be considered to be serious within the meaning of the Act.[75]
[74]PCB 131
[75] Transport Accident Act 1986 (Vic)
35Dr Leftkovits, a medico-legal examiner, provided three reports in this matter. On the occasions he examined Ms Clark, palpation of the chest and ribcage revealed slight prominence of the tissues on the right side and a reporting of pain and tenderness. This suggests ongoing problems in this area of the chest. In his report of 6 April 2020, he opined, and I consider it particularly important: [76]
“On physical criteria, her predominant ongoing physical condition is a chronic pain syndrome/disorder…I would explain her ongoing pain as a pain amplification syndrome, possibly due to central sensitisation with significant psychological and psychiatric overlay.”
[76]DCB 39, see answer to question 2
36His last report confirmed his opinion that she had ongoing chronic pain sensitisation.[77]
[77]DCB 46
37The Defendant submitted that there was no material from Mr Sinnot, a physiotherapist, Mr Danks, a pain specialist and Ms Peake, a psychologist, who had at various times seen Ms Clark. I accept the Defendant’s submission and draw an inference that their evidence would not have assisted Ms Clark. However, that inference is limited in its potency by the fact that they are not current treating practitioners, saw the Plaintiff for only short periods of time and there is a very significant body of material from treating medical practitioners in this matter already.
38Gathering those threads together, I find that Ms Clark sustained traumatic physical injury to the chest and abdomen in the motor vehicle accident. The rib and sternal fractures have healed, however, there remains tenderness about the chest and abdomen. Associated with the traumatic physical injury, has been the development of an organic chronic pain sensitisation. I find that this has continued from the date of the accident and is present today. That chronic pain sensitisation, alternatively described as a chronic pain syndrome, is predominantly related to the underlying traumatic physical injury that was occasioned to the chest and abdomen in the motor vehicle accident. That chronic pain syndrome requires ongoing pain medication and treatment. That chronic pain syndrome has resulted in impairment to Ms Clark.
39Having made my finding that the Plaintiff suffers from ongoing organic injury, being a chronic pain syndrome, affecting the chest and abdomen, I now turn to assessment as to whether or not that injury satisfies the definition of being considered a serious injury: that being an injury that has resulted in impairment consequences which could be described as more than significant or marked. I consider that the impairment consequences of the chronic pain syndrome of the chest and abdomen can be described as more than significant or marked. I make that finding for the following reasons.
40Ms Clark is currently on medication and has been on a regime of medication via prescription for many years. That medication is currently Celebrex and Lyrica. She has been trialled on a variety of similar types of medication.[78] She takes Lyrica 75mg, four times daily. The anti-inflammatory Celebrex, 150mg taken every morning and Tramadol Slow Release, 100mg as required which is typically two mornings per week.[79] Given she has been on such medication for seven years and there is no evidence that it will cease in the foreseeable future, this is a substantial regime of treatment necessary to manage her pain. By itself this is a considerable impairment consequence.[80]
[78]PCB 19, at paragraph [69], Ms Clark takes 150mg of Lyrica and Celebrex. See also PCB 21, at paragraph [6], Ms Clark’s Lyrica prescription is to be gradually increased to 150mg in the morning and then 300mg at night.
[79]DCB 18
[80] Transport Accident Commission vKamel [2011] VSCA 110 at [68]
41Ms Clark deposed in her affidavit material that the injuries to her chest and abdomen also impact her ability to perform activities about the house. As has been noted previously, she operated as a single mother from the time of the motor vehicle accident until the time her son began living with his father full-time in around 2018.[81] During this time she performed all domestic duties. Her evidence, which is essentially unchallenged, is that the restrictions caused by her chronic pain syndrome affect her ability to bend over and perform such tasks as vacuuming, picking up washing and hanging it out or other domestic tasks.[82] While she gave evidence, and history bears this out, that she was able to do these tasks the evidence is that she did them with an aggravation of her pain, such that she was slow to perform these tasks and took time to recover.[83] I accept her evidence and consider that this is also an interruption to the course of her life and could be considered a moderate impairment.
[81]T58, L21-22
[82]PCB 6, at paragraph [20]
[83]PCB 6, at paragraph [21]
42The Defendant showed five portions of video.[84] To summarise those portions of evidence, they showed Ms Clark on 26 May 2019 and 2 June 2019 shopping and walking around the shopping centre. At one point, she is shown carrying a milk carton in her right hand. She gave evidence that this caused her pain and she went to the car and cried afterwards.[85] On 9 March 2020, she is shown exiting her car and going home. On 6 April 2020, she is shown walking down the street and driving her car. One such video also showed her standing in her driveway talking to a neighbour for nearly 20 minutes. In summary, I do not consider these videos show the Plaintiff engaged in activities which were in any way inconsistent with the evidence given in her Affidavit or during the course of cross examination. The parties were also in agreement that though 35 minutes, approximately, of footage was shown in court, the TAC’s investigators undertook 94.5 hours of surveillance. The obvious point being that from a very significant period of surveillance only a small portion was thought to be of any relevance and as indicated above, I find it was not inconsistent with any of the evidence given by Ms Clark as to the restrictions that she faces as a result of her chronic pain syndrome.
[84]Exhibit D6, Surveillance Videos – 1 September 2018 (10:04 min) and (47 seconds), 26 May 2019 and 2 June 2019 (16:43 min), 26 May 2019 and 2 June 2019 (4:14 min), 9 March 2020 and 6 April 2020 (2:11 min)
[85]T44, L31 – T45, L1
43Ms Clark gave evidence that the chronic pain that she was in affected her ability to enjoy social activities such as dancing and camping. When her son was younger, she gave evidence that it also affected her ability to engage in play activities with him such as climbing trees or playing cricket.[86] While it may not appear to be a significant impairment consequence, such activities gave simple pleasure to Ms Clark and it is something of which she has now been deprived. While the assessment of serious injury must be made at the date of trial and her son no longer does these things, such matters are of only historical importance. They do, however, provide examples of the way in which her body is impaired and I consider them only in this way. Similarly, she described to Mr Middleton in cross examination the difficulty she has playing guitar.[87] She gave evidence that she had played guitar since the age of eight and took great pleasure in it.[88] She demonstrated in the witness box how bending her upper torso over the guitar, with it sitting in her lap, caused her pain in the chest. This well demonstrated, I thought, the real impact that the injury has on her enjoyment of her very simple pleasures. This is another factor which weighs towards her impairment consequences as being more than significant.
[86]PCB 6, at paragraph [22]. See also PCB 7, at paragraph [25].
[87]T50, L12-27
[88]T59, L3-5
44Of more objective significance, is the effect that her chronic pain has had on her ability to work. As set out above, her son moved out in about 2018 to live with his father. At that stage, Ms Clark gave evidence that she attempted to find work. She returned to work at a bakery initially at 17.5 hours per week. She said that the work that was offered was the type of work which she had previously done at cafés and which she had found suitable. She deposed however that she could not cope with the hours required of her, as it aggravated her pain to such an extent that she spent days recovering.[89] It is to be noted that in order to take up this job she had to drive one hour to work and one hour from work each day.[90] It is recorded in numerous medical histories that she is limited in her driving ability[91] and driving for that period of time also imposed a strain on her, such that her pain increased. I consider this demonstrates Ms Clark’s willingness to attempt to cope with her injuries. However, she was unable to cope with the hours she was working and reduced her hours to about eight hours per week. She gave evidence that even this was a struggle but she was keen to keep up with working. I note that this evidence is entirely consistent with the rehabilitation specialist Dr Mehr’s opinion in his report dated 15 May 2020.[92]
[89]T57, L26-29
[90]T30, L31
[91]PCB 134
[92]PCB 133
45The Defendant argues that the Plaintiff has an extremely poor work history and that there is no certainty that she would have ever gone back to work on a full-time or even a part-time basis, if the motor vehicle accident had not occurred. I do not accept this submission. Prior to the motor vehicle accident, Ms Clark had part-time work which was patchy - but she had actually worked. In fact, prior to the birth of her son she had held down numerous jobs. The fact that she has attempted to return to work and did so, despite having to drive one hour each way, demonstrates a willingness to attempt to cope with her injuries. This is to her credit. It demonstrates real drive. The loss of a significant work capacity from even 50% to 25% is a significant reduction. However, I consider that it is much more likely she would have returned to near full-time work now but for the motor vehicle accident. I make this finding because I consider that after her son moved out, she was still a young woman aged 38. Her son’s JMD had gone into remission. She had a drive to work, demonstrated in her latest attempt to find work in 2021, and there is no reason to doubt that she would have attempted to deploy this to its full capacity. This is because she had no other significant constraints on her time. As a result, if she is now only able to work 8 hours per week instead of what I consider would have been a likely situation of working 40 hours per week, she has sustained a very significant loss of earning capacity. That weighs heavily in terms of assessing the impairment consequences of her chronic pain syndrome.[93]
[93] Petkovski v Galletti [1994] 1 VR 436 at 444
46It is not necessary for me to go further, given my findings set out above, that the chronic pain syndrome arising from injury to the chest and abdomen constitutes a serious injury within the meaning of the Act.[94] However, because the parties have raised several other matters, I will now deal with those.
[94]Transport Accident Act 1986 (Vic), s 93(17)(a)
47The first of those was that Ms Clark had sustained a neck injury as a result of the motor vehicle accident which has led to impairment consequences which could be described as serious. I consider that the evidence does support a finding that there has been organic injury to the neck caused by the motor vehicle accident. I note that she was placed in a collar after the motor vehicle accident and remained in that during the course of treatment at the Royal Melbourne Hospital.[95] She, in fact, complained of neck pain to her treating doctor in April 2015. She was prescribed Augmentin Duo Forte and Panadeine Forte for this.[96] She continued to complain of pain in the neck when she saw Mr Grossbard in 2017.[97] He found that on examination she demonstrated an inability to turn her neck without pain and that she had a soft tissue cervical spine injury.[98] However, when she saw Dr Mehr in May 2020, he found that while she had some tenderness in her spine, none of it was localised to the neck.[99] Similarly, Dr Lefkovits did not ascribe injury to her neck. Overall, I find that the neck injury resolved by the time of the trial. To the extent that it was present, I find that she did not have consequences which could be considered significant or marked.
[95]PCB 32. See also PCB 84
[96]DCB 75
[97]PCB 84
[98]PCB 85
[99]PCB 132
48A claim pursuant to subparagraph 93(17)(c)[100] was also made. This was based on PTSD and Chronic Adjustment Disorder with Anxiety and Depressed Mood. The Defendant opposed this application on the basis that Dr Firestone was the best placed psychiatrist, armed with all the material, and his opinion was that a slightly lesser condition existed.[101] It must also be acknowledged that there was a diagnosis of an unrelated condition of ADD and the prescription of Dexamphetamine for this condition in December 2020.[102] This does seem to have improved her mental state somewhat.[103] Even assuming the Plaintiff’s case at its highest as based on the report of Dr Serry, dated 24 June 2021,[104] I find that the diagnosed condition is not sufficient to satisfy the test of being a severe mental disorder. To this extent, I note Ms Clark is on no specific medication for her psychiatric condition of PTSD and Anxiety and Depression. She has not been previously on any significant course of psychiatric medication. Further, when she saw Dr Kishore in September 2017, he found that her nightmares or night terrors had reduced and she had mild to moderate depressive symptoms with good prognosis, and at that stage, he thought psychiatrically she could return to work.[105] While Ms Garfield opines that there is PTSD,[106] that opinion was some three years ago and has been overtaken by a diagnosis of ADD which no doubt affects her psychological state.
[100] Transport Accident Act 1986 (Vic), s 93(17)(c)
[101]DCB 23
[102]PCB 78
[103]PCB 141
[104]PCB 126
[105]PCB 72
[106]PCB 54
49Additionally, there was no evidence which allows a finding as to what if any impairment consequences flow from this ADD mental condition as distinct from the claimed s 93(17)(c)[107] injury. This is a pre-requisite for any findings as to this claim.
[107] Transport Accident Act 1986 (Vic), s 93(17)(c)
50For all those reasons I would allow the Plaintiff’s application in respect of paragraph (a) and deny the paragraph (c) claim.
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