Colaci, Rosa v Transport Accident Commission
[2009] VCC 1479
•30 October 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-08-03904
| ROSA COLACI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 20 and 21 October 2009 |
| DATE OF JUDGMENT: | 30 October 2009 |
| CASE MAY BE CITED AS: | Colaci, Rosa v Transport Accident Commission |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1479 |
REASONS FOR JUDGMENT
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Catchwords: Transport Accident Act 1986, s. 93(4), 93(17) (a) – whether the plaintiff had returned to a reasonable level of functioning following previous injuries – whether the injuries suffered in the transport accident had consequences for the plaintiff related to the transport accident – whether the plaintiff suffered any secondary psychiatric consequences of the transport accident.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie SC with | Nowicki Carbone |
| Mr A Hill | ||
| For the Defendant | Mr D Curtain QC with | Solicitor to the Transport |
| Mr P Gates | Commission | |
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s.93(4)(b) of the Transport Accident Act 1986 (“the Act”) to bring a proceeding to recover damages for injuries suffered by her arising out of a transport accident which occurred on 26 May 2006.
2 The application is brought pursuant to s.93(4)(d) of the Act. Subsection (6) provides that a court must not grant leave under sub-s.(4)(d) unless the court is satisfied that the injury is a serious injury.
3 The definitions of serious injury relied upon by the plaintiff is under sub-s.(17):
“(a) serious long-term impairment or loss of a body function.”
4 The injuries suffered by the plaintiff for which leave are sought are – an injury to the left shoulder and right knee.
5 The following evidence was adduced at the hearing of the plaintiff’s proceeding:
• The plaintiff gave evidence and was cross-examined; • The plaintiff tendered her Court Book (“PCB”) pages 1-160 a: Exhibit A; • The defendant tendered its Court Book ("DCB") pages 6-423: Exhibit 1.
The Plaintiff's Background and the Transport Accident
6 The plaintiff was born on 27 October 1946. She is now sixty-three years of age. She migrated to Australia in 1967. She married in 1969. She has three children, all of whom are adult and living independently of her.
7 The last occupation followed by the plaintiff was as a kitchen hand at the Baker’s Cafe in Brunswick Street, Fitzroy in the early 1990s. The plaintiff suffered physical injuries and a psychiatric injury due to the work she was required to perform. She ceased working, and has not worked since. She made a WorkCover claim which was successful. She is presently in receipt of WorkCover payments.
8 On 26 May 2006, when the plaintiff was driving her car on Nicholson Street, East Coburg, a garbage truck entered onto Nicholson Street and collided into the left-hand side of her car.
The Plaintiff's Medical Treatment
9 The plaintiff was removed from the scene of the transport accident by ambulance. She was taken to the Royal Melbourne Hospital. She was discharged at the end of that day.
10 The attending doctors at the hospital referred the plaintiff to have an x-ray of her chest, sternum, cervical and thoracic spines.[1] She was provided with medication to treat the pain she was experiencing.
[1] PCB 39
11 The plaintiff then attended Dr Parikh, general practitioner, on 26 May 2006. She reported that she was suffering pain in the left side of her chest and left breast region, with associated difficulty breathing; pain in her left shoulder radiating to the left side of her chest and left arm, and pain in her right knee joint.[2]
[2] Dr Parikh has recorded that the plaintiff complained of pain in her left knee. It was accepted by Mr Curtain that he was in error and wherever reference was made to left knee it should read right knee
12 Dr Parikh examined the plaintiff. He found bruising on the plaintiff’s left breast and in the sternoclavicular region of her left shoulder. He found no other abnormality save for pain produced on movement of the plaintiff's neck, left shoulder and right knee.
13 Dr Parikh referred the plaintiff to have a large numbers of x-rays of her neck, left shoulder, chest and right knee. He also referred her to have a number of x-rays of parts of her body which were not injured in the transport accident.
14 In summary, Dr Parikh referred the plaintiff to have the following x-rays:
• On 1 June 2006, an x-ray of the lumbosacral spine, sternoclavicular joint and left clavicle. The only abnormality detected was a prominent left sternoclavicular joint with swelling and tenderness.[3] • On 2 June 2006, an x-ray of the right knee showing anterior right tibial plateau bony spurring. A left shoulder ultrasound was taken showing arthritis in the left AC joint and otherwise no other abnormality.[4] • On 11 August 2006, a CT scan of the right knee showing mild degenerative changes in the medial and patellofemoral compartments with a small effusion to the suprapatellar fossa.[5] • On 29 July 2008, an x-ray of the left shoulder showing degeneration in the left acromioclavicular joint and sclerosis in the sternoclavicular joint. A left shoulder ultrasound was taken showing a partial tear of the supraspinatus tendon of 6 millimetres, subdeltoid bursitis and acromioclavicular joint degeneration.[6] [3] PCB 40
[4] PCB 41
[5] PCB 44
[6] PCB 48
15 Dr Parikh referred the plaintiff for physiotherapy. She was advised to undertake exercises. Dr Parikh prescribed medication to treat the pain the plaintiff was experiencing. He also advised the plaintiff to have counselling for anxiety.
16 Dr Parikh has continued treating the plaintiff up to the present time. He provided six reports, the latest dated 6 April 2009 which, unfortunately, does not differentiate between any of the medical conditions related to the transport accident and those which are not. In that report, Dr Parikh chose to provide only a general assessment that the plaintiff has persistent physical pain which is upsetting to her, and the balance of the report seems to be devoted to the emotional reaction of the plaintiff to her medical conditions and the pain experienced by her.[7]
[7] PCB 101
17 Dr Parikh referred the plaintiff to Mr de la Harpe, orthopaedic surgeon. He saw her on 2 June 2008. He was given a history by the plaintiff that she was suffering headaches, neck pain, chest pain and right knee pain. He appears to have examined the plaintiff's right knee, lower back and neck.
18 Mr de la Harpe found that the plaintiff had a slightly varus right knee, but otherwise a normal gait and normal stance. He found that she had a full range of movement in her lower back and neck, finding no neurological abnormality. He did find prominence in the left sternoclavicular joint.[8]
[8] PCB 133
19 Mr de la Harpe referred the plaintiff to Mr Richardson, orthopaedic surgeon, whose specialty involved treatment of upper limb problems. Mr Richardson first saw the plaintiff on 24 July 2008.
20 Mr Richardson examined the plaintiff, finding a deformity of her sternoclavicular joint which was consistent with a dislocation. He suspected that she had injured the intra-articular cartilage of that joint which had become arthritic. He suspected that she may have suffered broken ribs or damage to the costal cartilage. He recommended a CT scan.[9]
[9] PCB 131
21 Mr Richardson reviewed the plaintiff on 19 August 2008. Armed with the radiology taken on 29 July 2008, he was of the opinion that there was no persistent fracture or costal cartilage injury. He considered there was some subchondral sclerosis in the sternoclavicular joint. He found the sternoclavicular joint to be enlocated.
22 Mr Richardson reviewed a left shoulder ultrasound which he considered showed a partial thickness tear of the supraspinatus tendon, some subdeltoid bursitis and acromioclavicular joint degeneration.
23 Mr Richardson offered the plaintiff an injection into her right shoulder. The plaintiff declined the offer and, according to Dr Richardson, it was as a result of the plaintiff not considering that her symptoms were bad enough for an injection. He advised her to apply a topical anti-inflammatory cream to treat the symptoms she described to him.[10]
[10] PCB 132
24 The plaintiff suffered a major psychiatric sequelae of the physical injuries she suffered as a result of the work she performed at the Baker’s Cafe. Dr Parikh referred the plaintiff to Dr White, psychiatrist, who saw the plaintiff in about April 2003.
25 In a report dated 14 July 2003, Dr White was provided with a number of medical reports from medical practitioners who examined the plaintiff relevant to her WorkCover claim. After digesting the contents of those reports, he observed that there were varying views about the causation and the severity of her physical injuries. He concluded that the plaintiff had become trapped in a cycle of chronic pain, together with a psychological disability. He also concluded that the physical and psychological disabilities were reinforcing each other.
26 Dr White continued to treat the plaintiff. In his reports dated 3 April 2003; 14 July 2003; 24 July 2003; 21 October 2003; 30 January 2004; 3 May 2004; 20 December 2004; 11 June 2005; 27 April 2007; 29 August 2007; 17 October 2007; 10 May 2008 and 20 July 2008,[11] Dr White summarised the treatment he provided to the plaintiff both before and subsequent to the transport accident.
[11] PCB 103-127
27 In summary, the history recorded by Dr White of the plaintiff's complaints, both before and subsequent to the transport accident, appear to be very similar. It is difficult to glean from the opinion he expressed in his last full report dated 10 May 2008[12] what contribution the transport accident actually made to the plaintiff’s psychiatric condition. In answer to some specific questions, he said that the transport accident had compounded the plaintiff's pre-existing depression "in an additive way".[13]
[12] PCB 120-126
[13] PCB 126
28 Dr White referred the plaintiff to Ms Pollard, clinical psychologist, who first saw the plaintiff on 22 May 2007. The plaintiff saw her on nine subsequent occasions in 2007 and on five occasions in 2008, the last being on 29 April 2008.[14] The treatment which Ms Pollard attempted to provide the plaintiff was unsuccessful.[15]
[14] PCB 130
[15] PCB 128-129
29 At present the plaintiff uses Panadol and Mersyndol[16] for pain relief and Prothiaden to treat her depression. Mr Curtain cross-examined the plaintiff regarding the medication she presently takes. At first the plaintiff said that she was taking Panadeine Forte, but when pressed she qualified that by saying that she is now taking Panadol. It transpired that the plaintiff has not used Panadeine Forte at least since 2007, and it is apparent that what she said in her affidavit that Dr Parikh continues to prescribe her Panadeine Forte, is wrong.[17]
[16] Both are over the counter medications
[17] Transcript 52-54 and PCB 9 at paragraph 7
The Plaintiff's Prior Injuries
30 Mr Curtain submitted that the plaintiff's medical history since the early 1990s demonstrates that the plaintiff has suffered similar medical problems to those which she says she suffered in the transport accident.
The Neck
31 The plaintiff saw Dr Parikh in November 1994. She complained of pain in both arms, pins and needles, numbness and weakness in both hands and neck pain. Examination of her neck showed that movements of her neck were restricted and painful. Dr Parikh referred the plaintiff for x-rays of her neck which showed mild lower cervical degenerative changes. The radiologist made a diagnosis of cervical strain. The plaintiff was given medication and referred to physiotherapy and hydrotherapy. The neck pain did not improve.[18]
[18] DCB 189-197
32 Dr Gallichio, general practitioner, referred the plaintiff for a CT scan of her cervical spine. It showed spondylitic changes at C6-7.[19]
[19] PCB 38
33 Dr Kemp, rheumatologist, examined the plaintiff in August 2004. The plaintiff gave a history of suffering constant pain in her neck and both shoulders. Dr Kemp was of the opinion that the plaintiff, both historically and clinically, had features of cervical spondylosis.[20]
[20] DCB 179-180
34 Dr Kornan, psychiatrist, examined the plaintiff on 6 October 2004. The plaintiff gave him a history of suffering neck pain which started ten years beforehand.[21]
[21] DCB 212
35 Dr Lewis, rheumatologist, examined the plaintiff on 1 February 2005. The plaintiff gave him a history of suffering pain in her neck.[22]
[22] DCB 200
36 The plaintiff composed a letter, with the assistance of Dr Parikh, probably some time in 2005, relevant to a conciliation hearing, in which she stated that she was suffering from a lot of pain in her neck.[23]
[23] DCB 234-235
37 Dr Parikh provided the plaintiff with a Certificate of Capacity dated 11 May 2005, which is some fifteen days prior to the transport accident, certifying that the plaintiff was unfit for all duties as a result of a number of medical conditions, including a soft tissue injury to her neck.[24]
The Shoulders
[24] DCB 140
38 Dr Kemp was given a history by the plaintiff in August 2004 that she was suffering constant pain in both shoulders.[25] In a report dated 26 October 2004, he expressed an opinion that the plaintiff was suffering from cervical spondylosis and a secondary capsulitis in each shoulder.[26]
[25] DCB 179
[26] DCB 210
39 Dr Kornan was given a history by the plaintiff on 6 October 2004 that the plaintiff was experiencing soreness in a shoulder.[27]
[27] DCB 212
40 Dr Lewis recorded that on examination of the plaintiff on 1 February 2005, that both of the plaintiff’s shoulders were very stiff, and that she was unable to elevate either shoulder.[28]
Headaches
[28] DCB 201
41 Mr Shields, psychologist, assessed the plaintiff from a vocational perspective on 22 January 2003. She was given a history by the plaintiff that she suffered headaches and dizzy spells and often felt quite disorientated.[29]
[29] DCB 187
42 Dr Kemp was given a history by the plaintiff in August 2004 that she was suffering frontal headaches.[30]
[30] DCB 179
43 Dr Kornan was given a history by the plaintiff on 6 October 2004 that she was suffering from headaches.[31]
[31] DCB 212
44 In a report dated 11 April 2005 to an insurer, Dr Parikh was given a history by the plaintiff that she was suffering from headaches.[32]
[32] DCB 190
45 The plaintiff applied to an insurer in about November 2005 for it to pay for medication known as Imigran which is a well-known form of medication used to treat severe headache and migraine conditions.[33]
Right Knee/Right Leg
[33] DCB 272
46 The plaintiff said that she is bow legged. It is a feature prevalent in her family.[34]
[34] Transcript 22
47 Ms Shields was given a history by the plaintiff on 22 January 2003 that walking a short distance produced pain in her right leg.[35] The plaintiff admitted that she experienced pain in her right leg which reduced her capacity to walk.
Psychiatric Condition
[35] DCB 186
48 In a report dated 5 October 1998 to an insurer, Dr Parikh was given a history by the plaintiff of extensive symptoms of irritability, upset and depression, which he repeated in subsequent reports.[36]
[36] DCB 51, 190 and 261
49 In the reasons for opinion of the Medical Panel dated 21 October 2005, the Medical Panel was given a history by the plaintiff of panic attacks, chronic feelings of depression, a feeling of uselessness, loss of self-esteem and difficulty with concentration and poor memory. The Panel concluded that the plaintiff was suffering from an adjustment disorder with anxious and depressed mood, rendering the plaintiff incapable of performing her pre-injury duties.[37]
[37] DCB 153
50 Dr Kornan obtained a history from the plaintiff of significant symptoms of a psychiatric disorder. He was of the opinion that the plaintiff had suffered an adjustment disorder with associated disturbances of emotion and conduct (illness behaviour) of chronic mild severity. He was also of the opinion that the plaintiff had a full capacity to undertake suitable employment from a psychiatric viewpoint.[38]
[38] DCB 215-216
51 Dr White’s reports prepared both before and after the transport accident bear a significant similarity in terms of the psychiatric symptoms described by the plaintiff.[39] It is probably the reason why Dr White did not describe the quantum of the aggravation of the plaintiff's psychiatric condition, other than to say it was compounded by the transport accident in an additive way.
[39] compare out the symptoms describe other plaintiff in the report dated 11 June 2005 at PCB 112-116 and the report dated 10 May 2008 at PCB 120-126
52 Other medical practitioners who examined the plaintiff were given histories by the plaintiff of a psychiatric condition. It is sufficient simply to refer to the following medical practitioners, all of whom obtained a significant history from the plaintiff of psychiatric symptoms: Dr Kemp;[40] Dr Lewis;[41] Dr Castle, occupational physician;[42] Mr Kudelka[43] and Mr Dooley.[44]
The Plaintiff’s Certification
[40] DCB 179
[41] DCB 201
[42] PCB 155
[43] PCB 165 and 167
[44] DCB 60-61
53 The plaintiff saw Dr Parikh on 11 May 2006, which is some fifteen days prior to the occurrence of the transport accident. The purpose in the plaintiff seeing Dr Parikh on that occasion was to obtain a Certificate of Capacity relevant to the plaintiff's continued receipt of WorkCover payments.
54 Dr Parikh endorsed a diagnosis on the certificate of the plaintiff’s incapacity as follows:
"Soft tissue injury involving cervical spine R carp tunnel syndrome L carp tunnel syndrome, adjustment disorder with anxiety and depressed mood."
55 The plaintiff was certified as being unfit for duties from 11 May 2006 to 8 June 2006.[45]
[45] DCB 140
56 The Certificates of Capacity which preceded the Certificate of Capacity just referred to refer to the same diagnosis and same degree of fitness for duties.[46]
[46] For example DCB 136-139
57 The subsequent certificates appear to me to refer to the same diagnosis and the same degree of unfitness for duties until a certificate dated 29 December 2008, when the diagnosis appears to be the same, but Dr Parikh certified the plaintiff as being fit for modified duties from 23 December 2008 to 21 January 2009. The subsequent certificates then return to a certification of unfitness for duties.[47]
[47] DCB 105-109
The Other Medical Evidence
58 Mr McGarvie submitted that the plaintiff had suffered a serious long-term impairment of her right knee or her left shoulder.
59 Mr McGarvie submitted that the plaintiff relied upon the aggravation of her pre-existing psychiatric condition as one of the consequences of the impairment of function of the injuries to her left shoulder and right knee.
60 Mr McGarvie referred me to Richards v Wylie,[48] submitting that it was authority for the proposition that the plaintiff could rely the secondary psychiatric injury as a consequence of the impairment of function of the right knee or the left shoulder.
The Right Knee
[48] [2000] VSC 50, per Winneke P, at paragraphs 16-17
61 Mr McGarvie referred me to the report of Dr Parikh dated 7 January 2008, in which Dr Parikh recorded a history given to him by the plaintiff that she was suffering pain in her right knee joint with difficulty on movement. The plaintiff told Dr Parikh that she could not walk long distances and could not move her right knee as often as required in her day-to-day activities.[49]
[49] PCB 81-82
62 Dr Parikh reviewed the relevant radiology, noting that there was no significant abnormality shown.
63 In his last report dated 6 April 2009, Dr Parikh obtained a history from the plaintiff that she was continuing to complain of pain in her right knee, but he did not offer any opinion regarding pathology (if any) which he considered was the cause of the plaintiff's right knee pain, nor did he offer any opinion regarding the consequences to the plaintiff of suffering the right knee injury.
64 Dr Parikh's opinion in relation to the plaintiff’s left shoulder injury stands in much the same state. He obtained a history from the plaintiff that she was complaining of pain in her left shoulder radiating to the left side of her chest and into her left arm, and a complaint of pain and tenderness around the sternoclavicular joint on the left side of the sternum.
65 Mr de la Harpe did not express an opinion regarding the plaintiff's right knee, save to record that the plaintiff complained of pain in her right knee, and to observe that the plaintiff had a normal gait and normal stance.[50]
[50] PCB 133
66 The plaintiff was examined by Dr Castle, occupational physician, on 26 February 2009. Dr Castle was given a history by the plaintiff that she has pain in her knee. Walking made the pain worsen. The plaintiff could walk for five or ten minutes before her pain worsened. Her knee locks up. She has problems negotiating flights of stairs.[51]
[51] PCB 155
67 After considering the radiology, and after examining the plaintiff, Dr Castle was of the opinion that the plaintiff had suffered a serious aggravation of degenerative changes in her right knee joint.
68 However, Dr Castle then expressed the balance of his opinion relevant to the aggregate effect upon the plaintiff of her neck, lower back, left shoulder and right knee rather than expressing an opinion directed to her right knee only.[52]
[52] PCB 160-163
69 Mr Kudelka, orthopaedic surgeon, examined the plaintiff on 7 July 2009. He did not obtain a history of any consequence regarding the impact upon the plaintiff of her right knee injury. On examination, he found a reduced range of movement and swelling in the right knee which the plaintiff told him affected her mobility, and in particular, walking and negotiating steps and stairs.
70 Mr Kudelka was of the opinion that the plaintiff's right knee symptoms were due to an aggravation of degenerative osteoarthritis. He suggested that further radiological investigations be undertaken and also surgical intervention, which he considered might improve her pain range of movement.[53]
[53] PCB 165-167
71 Mr Dooley, orthopaedic surgeon, examined the plaintiff for the defendant on 12 August 2008 and 25 March 2009. Mr Dooley was given a history by the plaintiff that she experienced discomfort in her right knee joint and used an elastic splint over her right knee. On examination, he found swelling over the right knee, but no other abnormalities.
72 After considering the radiology, and after examining the plaintiff, Mr Dooley considered that although the plaintiff complained of pain in her right knee, that the physical findings on examination were unremarkable. He considered that her physical symptoms were exaggerated.[54]
[54] DCB 58-61
73 The plaintiff said that she was referred to a Mr Lynch, surgeon, at the John Fawkner Private Hospital, by Dr Parikh for treatment for her right knee injury. The plaintiff alleged that Mr Lynch advised her to have surgery.[55] No evidence was adduced from Mr Lynch by the plaintiff.
The Left Shoulder
[55] Transcript 36
74 Dr Parikh's opinion in relation to the plaintiff’s left shoulder injury stands in much the same state as his opinion regarding the plaintiff’s right knee. He obtained a history from the plaintiff that she was complaining of pain in her left shoulder radiating to the left side of her chest and into her left arm, and a complaint of pain and tenderness around the sternoclavicular joint on the left side of the sternum.
75 Dr Parikh reviewed the relevant radiology, noting that there was no significant abnormality shown.
76 In his last report dated 6 April 2009, Dr Parikh obtained a history from the plaintiff that she was suffering from pain in her chest, left breast and thoracic spine, but no complaint of pain in the left shoulder.
77 Mr Richardson considered the deformity and dislocation of the sternoclavicular joint and the subsequent ultrasound taken on 29 July 2008 demonstrating a partial tear of the supraspinatus tendon. However, he did not consider that the overall appearances on the radiology and the results of his examination pointed to an injury of any particular significance. That appears to be the case because the only treatment he offered the plaintiff was an injection, which she declined, and the use of topical anti-inflammatory cream to treat her persistent symptoms.[56]
[56] PCB 132
78 Dr Castle was given a history by the plaintiff that her left collarbone was painful. She had pain radiating into her left shoulder and down her left arm. She told Dr Castle that a specialist had advised her that an operation was possible. The only treating specialist relevant to the plaintiff’s left shoulder was Dr Richardson, who did not advise her to have operative treatment.
79 On examination, Dr Castle found a deformity in the plaintiff’s left sternoclavicular joint. No tenderness was elicited. No wasting of either shoulder was present.
80 Dr Castle then expressed an opinion regarding the plaintiff’s left shoulder in the same way as summarised in paragraph 69 above.
81 Mr Kudelka was given a history by the plaintiff of injuring her left shoulder. On examination, he found limitation of movement of the plaintiff’s left shoulder. After reviewing the relevant radiology, Mr Kudelka referred to both shoulders, suggesting that surgery may lead to some improvement in her pain range of movement. He considered the injury to the left shoulder and the sternoclavicular joint to be a significant injury.
82 Mr Kudelka expressed an opinion regarding the restrictions that he considered were likely to occur as a consequence of the symptoms in the plaintiff's neck, shoulders and right knee without differentiating one injury from the others.[57]
[57] PCB 167
83 Mr Dooley was given a history by the plaintiff of pain in her left shoulder. On examination, Mr Dooley found an irreducible anterior subluxation of the left sternoclavicular joint, but otherwise no abnormality in the plaintiff’s left shoulder. Mr Dooley again repeated that the plaintiff complained of pain in her left shoulder region. However, he found that the plaintiff had no residual stiffness in her left shoulder, but only an aching in the area of her left clavicle. Again he observed that he considered she was exaggerating her symptoms.[58]
[58] DCB 60-61
The Plaintiff's Evidence
84 In her first affidavit sworn the 28 February 2008, the plaintiff said she sustained injuries to her chest, right knee, left shoulder and lower back. However, she has made no claim for serious injury for the injuries to her chest and lower back.
85 The plaintiff also said that the transport accident caused her psychological/psychiatric injuries, and curiously she put it in the alternative, that she had suffered an aggravation to pre-existing psychological/psychiatric injuries including stress, anxiety and depression.
86 The plaintiff described difficulties with sleeping; interference with recreational and social activities with friends; interference with undertaking household chores and interference with her capacity to do grocery shopping.
87 The plaintiff said that she has become depressed and withdrawn and is no longer the happy and outgoing person that she once was.
88 The plaintiff also said that her way of life had been transformed as a result of her injuries, referring to the psychological changes which she has experienced.[59]
[59] PCB 5-6
89 In her second affidavit sworn 17 April 2009, the plaintiff repeated much of what she said in her first affidavit. However, the plaintiff referred to her WorkCover injuries, saying that she had suffered interference as a consequence of them, but had developed strategies to complete tasks around her home, and that the transport accident disrupted those routines.
90 The plaintiff then referred to relying on her husband; difficulty walking because of her right knee; undertaking tasks of self-care because of her neck and left shoulder injuries; suffering interference with social activities, and suffering interference with her capacity to drive a car. She repeated that she had suffered psychiatric injury which involved sleep difficulties and nightmares, difficulties with concentration and becoming forgetful and that the transport accident had a significant affect on her personality.[60]
[60] PCB 10-12
91 The plaintiff's son, Rocco Colaci, swore an affidavit on 17 April 2001 confirming the changes which have occurred in the plaintiff's life since the transport accident.[61]
[61] PCB 16-18
Serious Injury
92 I accept the plaintiff’s evidence, that as a result of the transport accident she suffered multiple injuries, including injuries to her right knee and left shoulder.
93 I also accept the plaintiff’s evidence that she continues to experience symptoms of both injuries.
94 However, I do not accept that either injury has caused an impairment of function which has consequences for the plaintiff which are “serious”.
95 The picture painted by the plaintiff in her affidavits is consistent with her functioning at a reasonable level in nearly all aspects of her social, domestic and recreational life.
96 It is the same picture which the plaintiff painted when she was cross- examined by Mr Curtain. The plaintiff said she had commenced driving, going out shopping; going out with friends; going to church and going to a pool.[62]
[62] Transcript 50 and 59
97 However, the history given by the plaintiff to Dr Parikh, which he incorporated into a report dated 9 October 2007 addressed to an insurer, is hardly consistent with the plaintiff's evidence of a return to reasonable functioning:
"At present she is not working. At present she complains of pain in both arms and neck, with weakness and difficulty in movement of both arms and neck. She gets numbness, pins and needle[s] sensation in both hands along 1st, 2nd and 3rd fingers. She cannot take a proper grip while holding an object, she feels loss of power in both hands. She has difficulty in her personal hygiene, combing hair, button[ing] dresses, washing clothes and face, etc. Her pain and discomfort in both arms and neck is worse at night. She cannot sleep well. Her continuing symptoms and disability upsets her. She feels very isolated. She feels that she requires help from family members, in her living life and household activities. She gets headache, increased pain in the neck and weakness in both arms. She is irritable, upset and depressed. She feels socially rejected and financially behind. She is not happy about her present situation. Her family life is not satisfactory.
She feels like going away from her husband and forgetting about everybody. She feels upset, irritable and gets depressed. She has difficulty in managing her day-to-day activities and family life. Her both arms problems make her life difficult from a personal relationship point of view. She has also symptoms related to her adjustment in life. She is very unhappy."[63]
[63] PCB 73-74
98 The foregoing is consistent with the picture painted by the plaintiff to the Medical Panel on 21 October 2005[64] and to Dr Parikh at the time when he provided the plaintiff with a Certificate of Capacity dated 11 May 2006. The foregoing painted a remarkably gloomy picture of the plaintiff suffering extensive persisting injuries related to her WorkCover claim after the transport accident occurred.[65]
[64] DCB 152-153
[65] DCB 140
99 Furthermore, it is clear from the summary of the plaintiff’s complaints of the consequences of her WorkCover injuries, summarised in paragraphs 31 to 57 above, that the plaintiff was complaining of physical problems which were longstanding and disabling.
The Left Shoulder Injury
100 The plaintiff's complaints of pain made before the transport accident referred to numerous complaints of shoulder pain. Of importance are the findings made by Dr Kemp, that the plaintiff was suffering from cervical spondylosis and a secondary capsulitis in both shoulders.
101 It would appear that the plaintiff had a longstanding problem with both of her shoulders, and whether or not Dr Kemp made a correct diagnosis, it would appear that she nonetheless had pain or soreness in her shoulders before the occurrence of the transport accident.
102 Although the plaintiff suffered a dislocation of her sternoclavicular joint, the evidence relied upon by the plaintiff is not persuasive of the position submitted on behalf of the plaintiff that it has resulted in consequences which are “serious”.
103 Mr Richardson observed that the trauma to the sternoclavicular joint resulting in a dislocation had healed so that the sternoclavicular joint was enlocated. By that he meant that it had returned to its normal anatomical location. Mr Dooley does not appear to agree, but where Mr Richardson are Mr Dooley appear to be in agreement is that the dislocation was not sufficient to warrant any significant treatment.
104 Indeed, Mr Richardson recommended the mildest form of treatment, that being the use of a topical cream.
105 I do not accept that the plaintiff's case that the injury to her left shoulder is “serious” is supported by the opinions of Dr Parikh, Dr Castle or Mr Kudelka. Without repeating my conclusions already stated above, Dr Parikh last expressed an opinion regarding the plaintiff's left shoulder injury in a very general way, aggregating all of the plaintiff's injuries when he gave that opinion, as to Dr Castle and Mr Kudelka.
106 Mr Kudelka appears to have put the plaintiff’s left shoulder injury at its highest, saying that it was a significant injury. I do not accept his opinion.
107 My strong impression of the plaintiff is that she suffered injuries when working at the Baker’s Café which comprised multiple physical injuries to her neck, arms, lower back, and also a severe psychiatric injury, all of which were so disabling as to render the plaintiff unfit for her pre-injury work.
108 Furthermore, it is my strong impression that the plaintiff had, and continued to have, bilateral shoulder problems prior to the occurrence of the transport accident.
109 I do not accept the plaintiff’s evidence that she returned to a reasonable level of functioning before the transport accident occurred. It seems to me that her evidence in that regard flies in the face of the preponderance of the medical evidence of examinations of the plaintiff prior to the occurrence of the transport accident, and in particular, to the opinion of the Medical Panel and the Certificate of Capacity provided by Dr Parikh.
The Right Knee Injury
110 Neither Dr Parikh nor Mr de la Harpe found any abnormality in the plaintiff's right knee. Dr Parikh had the advantage of reviewing all of the radiology which failed to convince him that there was some obvious abnormality in the plaintiff’s right knee which could be pointed to as the source of her complaints of pain.
111 The only objective finding was that of Mr Kudelka and Mr Dooley, who found some swelling in the plaintiff's knee when they examined her. Neither were convinced that the radiology disclosed any obvious abnormality in the plaintiff’s right knee which could be pointed to as the source of her complaints of pain. Indeed, that would appear to be the reason why Mr Kudelka suggested surgery and no doubt to determine the source of the plaintiff's complaints of pain and to determine whether they could be ameliorated.
112 The plaintiff has an obvious familial defect in her lower limb, posture and gate. She accepted that she and members of her family are bow-legged. She accepted that she had suffered pain in her right leg. She conceded that walking short distances produced pain in her right leg.
113 However, the plaintiff makes similar complaints resulting from the injury she said she suffered to her right knee in the transport accident. She has difficulty standing, walking and using steps and stairs. That physical activity causes her pain.
114 The distinction between her pre-existing problems is that previously the plaintiff had pain in her right leg and had difficulty walking short distances. The injury to her right knee also results in difficulty walking short distances, but in addition, standing and using steps and stairs are difficult. The probabilities are that if the plaintiff had pain in her right leg and had difficulty walking short distances, that she also had difficulties standing and using steps and stairs as well. I think that is a reasonable inference to draw.
115 The plaintiff did not give a history to Dr Castle, Mr Kudelka or Mr Dooley of the problems that she previously had with her right leg. They were no doubt left with the impression that the plaintiff commenced to have problems with her right leg as a result of the injury to her right knee.
116 I do not accept the plaintiff’s evidence that the impairment of the function of her right knee has consequences for her which are “serious”.
117 Firstly, the evidence upon which she relies is unreliable because she failed to inform Dr Castle, Mr Kudelka and Mr Dooley of her pre-existing right leg problem for the purpose of determining what problems were related to her pre-existing right leg problem and what were related to her right knee injury.
118 Secondly, for the same reasons which are related to the plaintiff’s left shoulder, I do not accept that the plaintiff returned to a level of functioning which she described in her affidavits and in her orally evidence.
Conclusion
119 In conclusion, I am of the opinion that the plaintiff was suffering from a very considerable degree of disablement due to her WorkCover injuries. The preponderance of the medical evidence in existence prior to the occurrence of the transport accident demonstrates that very clearly.
120 I do not accept the plaintiff’s evidence that she returned to a reasonable level of functioning at some stage prior to the occurrence of the transport accident, and I do not accept that the injuries to the plaintiff’s right knee and left shoulder have consequences for the plaintiff which are other than modest.
121 It is abundantly clear from the statutory test that it is for the plaintiff to prove that she has suffered an injury which results in an impairment of a body function and has consequences which are serious.
122 In the case of the plaintiff’s right knee and left shoulder, it is simply not possible to determine what consequences flow from the impairment of the function of her right knee and left shoulder because of the considerable consequences incurred by the plaintiff due to her WorkCover injuries which had effectively destroyed most of the plaintiff's capacity to engage in social, domestic and recreational activities, and any capacity for work.
123 All that it is possible to see in terms of consequences is that the plaintiff has suffered modest degrees of pain in her right knee and left shoulder, and a modest secondary consequence in terms of psychiatric injury, none of which have the characteristics of serious injury.
124 Therefore, I order that the plaintiff's Originating Motion be dismissed. I will now hear the parties on the question of costs.
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