De Waij v Transport Accident Commission
[2016] VCC 1482
•12 October 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-00665
| AZUL DE WAIJ | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 and 21 September 2016 | |
DATE OF JUDGMENT: | 12 October 2016 | |
CASE MAY BE CITED AS: | De Waij v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1482 | |
REASONS FOR JUDGMENT
Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application - injury to the thoracic spine – injury to the left foot - whether consequences “very considerable”
Legislation Cited: Transport Accident Act 1986 s93
Cases Cited:Philippiadis v Transport Accident Commission [2016] VSCA 1; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Stijepic v One Force Group Australia Pty Ltd & Anor [2009] VSCA 181; Georgopolous v Silaforts Painting Pty Ltd & Ors [2012] VSCA 179; Ansett v Taylor [2006] VSCA 171; Bedeux v TAC [2016] VSCA 127; Principe v TAC [2016] VSCA 205; Davies v Nilsen 2014] VSCA 278; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA; ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31; Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA; Davidson v TAC [2015] VSCA 12; Sednaoui v Amac Corrosion Protection Pty Ltd [2016] VCC 1262
Judgment:Leave granted
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Garnham | Slater and Gordon |
| For the Defendant | Mr P Elliott QC with Ms S Manova | Transport Accident Commission |
HER HONOUR:
Preliminary
1 This is an application to bring proceedings pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”).
2 The plaintiff alleges she suffered injury in a transport accident which occurred on 25 October 2010. The plaintiff was driving along the Mooroduc Highway in Mt Eliza, when a vehicle made a right turn in front of her vehicle, causing a high speed collision (“the transport accident”). The plaintiff claims the accident caused her to suffer injuries to her upper back and left foot.
3 Mr M Garnham of counsel appeared for the plaintiff and Mr P Elliott QC with Ms S Manova of counsel appeared for the defendant.
4 The plaintiff claims she suffered injury to her thoracic spine in the transport accident, and the body function said to be lost or impaired is the functioning of her thoracic spine. The application is brought pursuant to sub-section (a) of the definition of “serious injury” contained in s93(17) of the Act.
5 Only the plaintiff was called to give evidence and she was cross-examined. In addition, an affidavit from the plaintiff’s close friend was tendered, as well as numerous medical reports and other documents. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in this judgment.
6 The plaintiff has the burden of proving the impairment of her thoracic spine is both serious and long-term. The test for serious injury is subjective, in that it is the effect on the individual plaintiff that must be considered. However, that determination must be made by me objectively, in considering the seriousness of the impairment.[1]
[1]Philippiadis v Transport Accident Commission [2016] VSCA 1
Relevant background
7 The plaintiff is 27 years of age. She lives with her husband, whom she married in May 2015.
8 The plaintiff was born in Holland, and moved to Australia with her mother and step-father in 1995.
9 The plaintiff completed her Victorian Certificate of Education at Frankston TAFE in 2009. In 2010, she then undertook a Certificate IV course in Alcohol and Other Drugs. The transport accident occurred on the last day of the formal lessons in this course.
10 At the time of the transport accident, the plaintiff was also working part-time at the Balnarring Beach General Store.
11 The plaintiff was in good physical health at the time of the transport accident. She had previously suffered drug dependency, involving addiction to prescription painkillers and later to recreational drugs. The plaintiff also suffered psychological issues relating to her step-father, who she claimed was abusive, and for which she received counselling from the age of eight or nine.[2]
[2]Plaintiff’s Court Book (“PCB”) 50
12 The plaintiff’s close friend, Ms Kitchen, also provided an affidavit. She has been friends with the plaintiff since primary school, and said that before the transport accident the plaintiff was a vibrant and energetic person.
The injury and its consequences
13 The transport accident occurred on 25 October 2010, on the Mooroduc Highway in Mt. Eliza. The plaintiff was travelling to TAFE to complete the last day of her course.[3] A car made a right turn across the highway in front of her, and the plaintiff was unable to avoid the collision.
[3]PCB 2
14 The plaintiff was taken by ambulance to the Frankston Hospital. The ambulance records note that the plaintiff complained of mild cervical neck pain, mild chest pain and left foot pain.[4] The plaintiff was placed in a cervical collar whilst being transported to the hospital.[5]
[4]PCB 102
[5]PCB 65, Defendant’s Court Book (“DCB”) 9
15 At the Frankston Hospital, x-rays were taken of the plaintiff’s left foot, chest and cervical spine. The x-ray of the plaintiff’s left foot revealed a fracture to her left second metatarsal.[6] No fractures were noted on the chest and cervical spine x-rays. The plaintiff was discharged home with a prescription for Panadeine Forte and with her left foot in a CAM boot.
[6]PCB 104, 106
16 The plaintiff said she wore the CAM boot for six to eight weeks. She was unable to work during that time.
17 On 8 November 2010, the plaintiff attended the Balnarring Medical Centre. She consulted general practitioner, Dr Bronwyn McNamara. The plaintiff informed Dr McNamara of the fracture in her left foot. It was noted the plaintiff had a bruise on her left breast and that she was anxious whilst in a car. She was scheduled to see psychologist, Dr Dianna Mikkelson, the following week.
18 On 16 November 2010, the plaintiff attended upon Dr McNamara as she complained that her right knee was clicking and that it had been painful with movement since the transport accident.[7] The plaintiff also reported that she was unable to return to work at the time due to her injury.
[7]PCB 30
19 On 18 November 2010, the plaintiff completed a claim for compensation with the Transport Accident Commission (“TAC”), in which she claimed the following injuries: fracture of the left foot, contusion of the right forearm, contusion of the right shoulder region, contusion of chest, contusion of neck, contusion of left lower limb, contusion of right lower limb.[8]
[8]PCB 19
20 On 10 December 2010, the plaintiff again attended Dr McNamara. At that time, it was noted that the plaintiff’s right knee was still painful, but that the plaintiff was “generally improving over time but not back to normal yet”.[9]
[9]PCB 30
21 On 30 December 2010, the plaintiff returned to her part-time job at the Balnarring Beach General Store. The plaintiff believed she worked a five to seven hour shift on this day. Her duties included food preparation, cooking, serving customers and washing dishes.[10] The plaintiff said that at the end of the shift, she experienced excruciating pain in her thoracic spine.[11]
[10]Transcript (“T”)23, Line(s) (“L”) 25-31
[11]T24, L17-28
22 On 31 December 2010, the plaintiff attended upon general practitioner, Dr Paul Muirden, at the Balnarring Medical Centre. He recorded the following history:
“Has had ongoing pain right side neck on and off sibce[sic] mca.
After work yesterday much worse.
Works in kitchen at general store.
Tender area over right thoracic.
Inj steroid\local anaesthetic into area.
Refer physio.”[12]
[12]PCB 101
23 On 31 January 2011, Dr Graham Cato, another general practitioner from the Balnarring Medical Centre, completed a return-to-work questionnaire for the TAC. He stated that the plaintiff’s symptoms had all resolved and that the plaintiff had “been back at work, long hours, coping well with no symptoms”.[13] In cross-examination, the plaintiff said that she was not able to remember how she was feeling at that particular time.[14]
[13]DCB 40, PCB 100
[14]T40, L20-25
24 At the time of the transport accident, the plaintiff had not yet completed the Certificate she was undertaking, as she still had to do a practical placement involving 200 contact hours.
25 On 21 April 2011, the plaintiff was reviewed by a vocational service provider, for the TAC. In discussing vocational options, the plaintiff said she had difficulties obtaining the 200 hours of placement necessary to complete her Certificate. It was noted that the plaintiff had approached potential employers but had been unsuccessful in obtaining a placement, as those employers had obligations with alternative training providers or otherwise they did not meet the requirements of her course placement.[15] The plaintiff confirmed this history as correct.[16] The plaintiff also said that prior to the transport accident, she had attempted to obtain a placement but had been unsuccessful.[17]
[15]DCB 38
[16]T27, L12-22
[17]T28, L5-15
26 The plaintiff said she requested an extension on the time in which to do the placement hours, but that was refused. As such the only way she could obtain her Certificate, was to pay to do the course again and the plaintiff said she could not afford the fees associated with that.[18]
[18]T35, L26-31, T36, L1-12
27 In May 2011, the plaintiff was referred by Dr McNamara to sports physician, Dr Stuart Armstrong. In a report to Dr McNamara dated 25 May 2011, Dr Armstrong noted that the plaintiff had reported a massive improvement in her condition, such that she was able to wash the dishes and perform housework with no issues.[19] This history was put to the plaintiff in cross-examination and she accepted it as accurate.[20]
[19]DCB 41
[20]T39, L28-31, T40, L1-11
28 In August 2011, the plaintiff commenced physiotherapy treatment with Mr Justin Moar. He provided hands-on treatment, as well as advice regarding home exercise and a structured gym-based program. At the time of his last consultation with the plaintiff in October 2012, Mr Moar noted that the plaintiff was still suffering occasional flare-ups of thoracic pain, but that she had returned to her normal activities and was working full-time. He considered it likely that the plaintiff’s condition would improve in the next 12 to 18 months and that her episodes of spinal pain would become considerably less severe and frequent over time.[21]
[21]PCB 33
29 In April 2015, the plaintiff was referred by sports physician, Dr Brendon Aubrey, to pain management specialist, Dr Bruce Mitchell. He noted that the plaintiff presented with severe neuropathic pain across her upper back, which she described as a “constant burning, sharp jabbing pain”.[22] Dr Mitchell noted that her pain levels fluctuated between 4 to 10 out of 10, and that such pain was “aggravated by hanging washing, doing dishes, vacuuming, driving, working and walking more than 10 minutes (on a good day)”.[23] Dr Mitchell considered that the plaintiff had primarily neuropathic pain, and he also noted some somatic pain.[24]
[22]PCB 37
[23]PCB 37
[24]PCB 38
30 Prior to the plaintiff’s wedding in May 2015, Dr Mitchell initially prescribed Tapentadol 100 mg slow release tablets per day. Following the wedding, he recommended that the plaintiff commence on Duloxetine, increasing over a three week period up to 30 milligrams per day.
31 On 2 July 2015, the plaintiff was reviewed by Dr Mitchell. At that time, he noted that her neuropathic pain had settled and that her total pain load had reduced slightly. He further noted that the plaintiff still had intrusive somatic pain with activities and that this had localised to the right side around the C5-6 and C6-7 facets. Dr Mitchell recommended that the plaintiff undergo physiotherapy treatment over a three month period with Mr Cameron Bicknell.
32 In September 2015, the plaintiff attended upon physiotherapist. Mr Cameron Bicknell. He provided treatment by way of manual therapy and exercise-based rehabilitation. Mr Bicknell noted that the plaintiff obtained only slight improvement during that time and that the plaintiff had plateaued by the end of the treatment.[25] Mr Mitchell has not seen the plaintiff since January 2016.
[25]PCB 35
33 On 17 December 2015, following the intensive physiotherapy program, Dr Mitchell reviewed the plaintiff. He recommended that a bone scan be performed to assist him in identifying the source of the plaintiff’s pain.
34 On 1 February 2016, a bone scan was performed on the plaintiff. It demonstrated “mild increased tracer uptake in the right T6 costovertebral joint most likely representing arthropathy”.[26] As Dr Mitchell considered the bone scan as normal, he recommended performing a series of medial branch blocks in the plaintiff’s spine to identify where her pain was coming from.[27] Initially, he recommended bilateral medial branch blocks at T3-4-5, but he proposed to move further up her spine if the initial results proved negative. Dr Mitchell considered there were potentially up to eight joints that could be causing the plaintiff’s pain.[28] He emphasised that the proposed medial branch blocks were diagnostic and not therapeutic.[29]
[26]PCB 99
[27]PCB 43
[28]PCB 43
[29]PCB 39
35 The TAC has refused to accept liability for payment of these medial branch blocks.[30]
[30]T79, L4-14
36 In the middle of 2011, the plaintiff undertook a six week Certificate II in Business course, run though the Australian Employment and Training Solutions in Frankston. Upon completion, the plaintiff obtained employment with the National Australia Bank (“NAB”). Thereafter the plaintiff worked full-time, in several branches, until August 2015, at which time she resigned from NAB in order to focus on her physiotherapy rehabilitation with Mr Bicknell.
37 Whilst working at NAB, the plaintiff completed a Certificate III in Business Studies. She said this course ran over a 12 month period and involved supervision at work, as well as the completion of study modules at home.
38 In March 2016, the plaintiff obtained employment with South East Water. She currently works approximately 25 hours per week and is able to cope, as she has an adjustable desk and a headset.[31] At present, the plaintiff is on a six month contract, however upon completion, there is a possibility she will be offered full-time employment. If not, she will be given another six-month contract. The plaintiff believes her employer is very happy with her work, and she is hopeful, and would like to be offered full-time employment.[32]
[31]PCB 9
[32]T15, L25-26, T17, L5-11
39 The plaintiff said in her affidavit that her “pain is quite constant and it increases with activity. Whilst the pain is more on the right side I also get pain on the left side of the upper back region.”[33] She said that bending and twisting aggravates the pain, as does walking for extended periods of time and lifting heavier weights.
[33]PCB 8
40 The plaintiff said that she has limited sitting, standing and walking tolerances and that such tolerances are reduced if she wakes in the morning with a “bad back.”[34] She said that walking is worse when she carries her handbag, as that causes pain in her middle back.[35]
[34]T65, L7-10
[35]T64, L20-31, T65, L1-6
41 In April 2014, when the plaintiff swore her initial affidavit, she took two Panadeine Forte each day, and Endep at night.[36] The plaintiff now takes 30 milligrams of Duloxetine each day. The plaintiff understands this is an anti-depressant, that can also help alleviate pain. The plaintiff also understands Dr Mitchell prescribed it for her pain.[37] She said she sometimes takes over-the-counter medication.
[36]PCB 5
[37]T18, L1-7
42 The plaintiff is not currently receiving any medical treatment, and she no longer completes the home exercises which had been recommended, as she did not feel they helped her.[38]
[38]T18, L29-31, T19, L1-11
Plaintiff’s medico-legal material
43 The plaintiff’s solicitors arranged for her to be examined by orthopaedic surgeon, Mr Garry Grossbard, in June 2011 and August 2012. In June 2011, Mr Grossbard considered that the plaintiff’s major ongoing concern related to her thoracic spine, where he noted paraspinal tenderness on the left side.[39] Mr Grossbard considered this was associated with the presence of a scoliosis. At that time, Mr Grossbard recommended an exercise program as appropriate management for the plaintiff.
[39]PCB 59
44 In August 2012, Mr Grossbard noted that the plaintiff complained of pain at the base of her neck, radiating into both shoulders and between the shoulder blades. He re-examined the plaintiff and noted there was no thoracic or lumbar tenderness and he considered her movements within the normal range. Mr Grossbard then stated that, in his opinion, there was no evidence of ongoing thoracic issues and no obvious scoliosis.[40]
[40]PCB 61
45 The plaintiff’s solicitors then arranged for her to be examined by orthopaedic surgeon, Mr Michael Khan, in April 2014 and April 2016. In his first report dated 24 June 2014, Mr Khan noted that the plaintiff was found to have some tenderness and pain in the lower part of the right side of her neck, and pain across the upper part of her thoracic spine, across the top of both shoulder blades to the top of her shoulders. He was of the opinion that the plaintiff had sustained musculoskeletal and ligamentous damage to her thoracic spine, extending from T2 to T7 bilaterally.
46 In his most recent report dated 29 July 2016, Mr Khan noted that the plaintiff complained of difficulties in getting comfortable at night in bed. He noted that she can manage to sit for half an hour before having to move around. Mr Khan noted the plaintiff had a standing tolerance of 20 minutes, and that she suffers increased back pain after walking for 20 to 30 minutes. He concluded that the plaintiff has been left with “mild residual disability and some pain and discomfort”.[41] Mr Khan considered that the plaintiff would have some restrictions in her employment, such that she would need to avoid activities involving bending, lifting, twisting or stooping, pushing, pulling or lifting, as well as prolonged sitting, walking or standing. He also considered the plaintiff was likely to develop acceleration of pre-existing degenerative changes in her spine.[42]
[41]PCB 79
[42]PCB 81
47 The plaintiff’s solicitors also arranged for the plaintiff to be examined by occupational physician, Dr Joseph Slesenger on 20 May 2016. He noted that the plaintiff could sit for no more than 10 minutes, stand for no more than 20 minutes and walk for no more than 10 minutes. When asked about these restrictions, in comparison to the more generous restrictions noted by Mr Khan, the plaintiff said that the restrictions noted by Mr Khan would be at “a stretch”.[43] She considered that the restrictions recorded by Dr Slesenger to be consistent with how she is when she is having a bad day.[44]
[43]T62, L1, T63, L1-6
[44]T65, L11-12
48 Dr Slesenger diagnosed the plaintiff as suffering a soft tissue injury to her thoracic spine, with subsequent development of a chronic pain disorder. He stated this injury would restrict the plaintiff’s capacity to work, including no repetitive bending and twisting, pushing, pulling or lifting over 5 kilograms, and no prolonged driving. He noted that the plaintiff has been able to return to work and is currently working 25 hours per week. However, he did not state that this was her maximum capacity for work.[45]
[45] PCB 92
Defendant’s medico-legal material
49 The defendant arranged for the plaintiff to be examined by rheumatologist, Dr Tony Kostos in July 2016. The purpose of the examination was to determine whether the defendant should pay for the medial branch blocks, recommended by Dr Mitchell.
50 Dr Kostos stated that, in circumstances where the plaintiff developed thoracic spine pain after returning to work, this “hardly suggests that she had an injury at all.”[46] It is unclear to me what Dr Kostos meant by this.
[46] DCB 3
51 Dr Kostos considered that the plaintiff’s pain pattern in her thoracic spine was not mechanical and that a precise diagnosis was not possible. Having considered extensive documentation regarding the plaintiff, he noted that a number of doctors made non-evidence based diagnoses such as soft tissue injuries or muscular ligamentous strain. Dr Kostos stated that such reports “can be completely discounted.”[47] As Dr Kostos does not elaborate on the basis of this opinion, I can obtain little assistance from his dismissal of the other medical opinions.
[47]DCB 3
52 Dr Kostos then recommended that the request for medial branch blocks be refused, as such treatment would not help the plaintiff’s pain. It appears that Dr Kostos overlooked Dr Mitchell’s recommendation that the medial branch blocks be performed for diagnostic purposes, and not treatment.
53 The defendant also arranged for the plaintiff to be examined by orthopaedic surgeon Dr Gerard Powell, in August 2016. Dr Powell took a detailed history from the plaintiff. He noted when she resumed work after Christmas 2010, “she developed spontaneous onset of pain in her thoracic spine between her shoulder blades.”[48] Dr Powell accepted there was a possibility she may have sustained a soft tissue injury as a result of the transport accident, but he did not consider this to be a satisfactory explanation for the two month interval between the time of the transport accident and her symptoms becoming noticeable such that she reported them to a doctor.[49] He was of the opinion that there was no mechanical cause to explain her symptoms. Nonetheless, Dr Powell accepted that the plaintiff’s thoracic spine pain is aggravated by movement and that she has difficulty undertaking some household duties.
[48]DCB 9
[49]DCB 16
What is the injury and impairment?
54 Having considered all the medical evidence, I am satisfied that the plaintiff suffers either musculoskeletal and ligamentous damage, or a soft tissue injury to her thoracic spine. Dr Mitchell wants to undertake medial branch blocks to the plaintiff’s thoracic spine, to assist him in reaching a more definitive diagnosis. I do not consider this necessary to enable me to accept that there is an injury to the plaintiff’s thoracic spine.
55 Although the radiological findings are seemingly normal, that does not preclude me from accepting that the plaintiff suffers an injury to her thoracic spine. I note there is no suggestion in any of the medical material the plaintiff is suffering a non-organic condition. I accept the plaintiff as an honest and reliable witness. Medicine is not always perfect in its ability to provide a definitive diagnosis. As was noted by the Court of Appeal in Georgopolous v Silaforts Painting Pty Ltd & Ors:
“The human body is a complex multicellular organism. The relationship between its components is the subject of continuing research and progressive medical understanding. It cannot readily be supposed that Parliament intended that the application of the notion of serious injury depended upon precise medical diagnostic differentiation between the individual components of an injury suffered in the causal circumstances envisaged by section 134AB. The more probable view is that Parliament’s intention was that the relevant concept of injury was to be understood in a broad commonsense way.”[50]
[50][2012] VSCA 179 at [68]
56 I am satisfied that a musculoskeletal or soft tissue injury to the plaintiff’s thoracic spine, persisting for almost six years, is an injury capable of causing impairment.
57 The next matter for me to consider is whether the transport accident was a cause of the injury to the plaintiff’s thoracic spine and her current impairment. The plaintiff relied upon a Taylor v Ansett admission, in that the defendant has paid for medical expenses relating to the treatment of her thoracic spine injury. I note the payment of such medical expenses has not been formally terminated, although the defendant has recently refused Dr Mitchell’s request for payment of the medial branch blocks.[51] The defendant’s rejection of such treatment was on the basis of Dr Kostos’ report.
[51]T78, L26-31, T79, L12-14
58 In Ansett v Taylor, Ashley JA observed that an acceptance of liability for statutory compensation has as an evidentiary effect only, but that such an admission should ordinarily be regarded as very significant.[52] Although Ansett v Taylor related to acceptance of liability for a lump sum claim under the Accident Compensation Act, it has been accepted as relevant to the payment of medical expenses made under the Transport Accident Act.[53]
[52][2006] VSCA 171 at [3]
[53]See for example Bedeux v TAC [2016] VSCA 127
59 Mr Garnham submitted that the defendant had not called evidence to rebut this admission, and that a common sense approach should be taken to the issue of causation. He said that the facts and circumstances of this case was such that I should be satisfied that the plaintiff suffered a thoracic spine injury as a consequence of the transport accident. Mr Garnham further submitted that in circumstances where the plaintiff was injured in a high-speed collision, at which time she made a complaint of neck pain, it is matter of common sense, that the thoracic spine was injured in the transport accident.
60 Mr Elliott submitted that although the defendant had not called evidence to rebut the Taylor v Ansett admission, I should give the admission little weight in circumstances where there was an absence of any complaint of thoracic pain until two months after the transport accident and after the plaintiff had returned to her employment.
61 Mr Elliott referred me to the case of Sednaoui v Amac Corrosion Protection Pty Ltd,[54] a recent Judgment of is Honour Judge O’Neill in this Court. In that serious injury application, his Honour was required to consider an Ansett v Taylor admission, in circumstances where two employees gave evidence to the effect the plaintiff was not injured at work in the manner he had claimed in his workers compensation claim form. In his Judgment, his Honour set out the recent Court of Appeal authorities in which Ansett v Taylor had been considered. He ultimately concluded that although the acceptance of the worker’s claim was a significant evidentiary admission, it was not a binding estoppel. His Honour ultimately decided that the admission was not of sufficient weight to persuade him that he should reject the evidence of the two employees.
[54][2016] VCC 1262
62 Pursuant to the principles enunciated in Ansett v Taylor, the defendant’s payment of the plaintiff’s medical expenses for her thoracic spine injury, is an admission by the defendant which I should consider to be very significant.
63 I note that the case before me is very different to that considered by Judge O’Neill in Sednaoui. In this case, there is no suggestion the transport accident did not occur. The uncontested evidence is that the plaintiff was involved in a high-speed collision. She complained of neck pain immediately following the accident, although at that time, her primary focus was on her left foot injury. She wore a CAM boot for six to eight weeks after the accident. After returning to work for just one day, she experienced excruciating pain in her thoracic spine. Upon attending her general practitioner the day following her return to work, the plaintiff stated she had experienced neck pain on and off since the transport accident.
64 The Court of Appeal recently noted in Principe v TAC[55] that:
“On occasions, victims of traumatic events do not initially complain about all of the injuries about which they later make complaint. As has also been observed before, sometimes an initially more painful injury (described as a ‘distracting injury’ ) masks, or distracts an injured person from, a second injury about which complaint is not initially made.” [56]
[55][2016] VSCA 205
[56][2016] VSCA 205 at [79]
65 I am satisfied that, in this case, the fracture to the plaintiff’s left metatarsal was a distracting injury. Further, I accept as a matter of common sense, that the plaintiffs’ history of neck pain, which she told her general practitioner she had suffered on and off since the transport accident, is sufficiently proximal to be consistent with an injury to the thoracic spine suffered at the same time.
66 In assessing the issue of causation, it is appropriate for me to take a “whole of evidence”[57] approach. In doing so, I am satisfied the transport accident was a cause of the plaintiff’s thoracic spine injury.
[57]Davies v Nilsen 2014] VSCA 278 at [97] and [107]
Long-term
67 In order to satisfy the definition of serious injury, the plaintiff must prove the injury and its consequences are both serious and long-term.
68 I am satisfied the plaintiff’s injury and the consequences which flow from it are long-term. The pain has persisted for almost six years. There is no recommendation that she undergo surgery, or any other type of treatment which may lead to an improvement, in her upper back pain. In late 2015 she completed an intensive physiotherapy program, which did not result in an improvement in her pain.
Consequences
69 The plaintiff must satisfy me that the consequences of her thoracic spinal impairment are “very considerable.”
70 In Haden Engineering Pty Ltd v McKinnon,[58] Maxwell P said:
[58](2010) 31 VR 1
“In its accepted interpretation, the ‘pain and suffering consequence’ of an injury encompasses both the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life. (I will refer to the second element as ‘the disabling effect’ of the pain.)
As to the experience of pain as such, the court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale mild/moderate/severe. Unless the pain is constant the Court will need also to assess the frequency and duration of the pain episodes.
The evidentiary basis of the pain assessment will ordinarily compromise the following:
(a)what the plaintiff says about the pain (both in court and to doctors);
(b)what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c)what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d)what the objective evidence shows about the disabling effect of the pain.
As to (a) 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. The court will make its own assessment of the plaintiff’s credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.”[59]
[59][9] – [12]
71 I consider the plaintiff to be creditworthy and reliable. I have no hesitation in accepting her evidence in whole. Her credibility bears significantly on my assessment of her evidence regarding her pain experience.
72 In her most recent affidavit, the plaintiff said her pain is quite constant and that it is aggravated by movement. In cross-examination, she said the pain varied, and that on bad days her sitting and walking tolerance was limited to 10 minutes and standing to 20 minutes.[60]
[60]T64, L3-31, T65, L1-10.
73 When the plaintiff resumed giving evidence in the afternoon of her hearing, she said:
“I’ve been sitting up and down, and I’m in absolute agony. That’s why I’m now sitting, because I can barely move.… I’ve been trying to sit and stand as I can to manage the pain.”[61]
I find this to be illustrative of the plaintiff’s pain.
[61]T62, L25-30
74 The opinions of the doctors vary as to their assessment of the extent and intensity of the plaintiff’s pain. In summary, these reports acknowledge the plaintiff’s reports of pain and the restrictions the pain imposes upon her.
75 The early reports were relatively optimistic. In May 2011, Dr Armstrong considered the plaintiff had made a massive improvement.
76 In August 2012, Mr Grossbard noted no evidence of ongoing thoracic issues.
77 In his most recent report, Mr Khan noted that the plaintiff has been left with mild residual disability and some pain and discomfort. Whilst Mr Khan considered the plaintiff’s long-term prognosis favourable, he stated that, in his opinion the plaintiff was likely to develop acceleration of pre-existing degenerative changes in her spine as the long-term after-effects of her injury.
78 Dr Slesenger considered the plaintiff has developed a chronic pain disorder, and that she would benefit from a referral to a pain clinic. He accepted that the plaintiff was restricted in her activities.
79 Dr Kostos recorded the plaintiff’s complaints of constant pain in the thoracic spine and, although he found her pain pattern was not mechanic, on examination, he noted marked restriction of movement and widespread tenderness.
80 Dr Powell, although rejecting the thoracic spinal pain as being related to the transport accident, accepted that the plaintiff’s pain restricted her ability to perform household chores.
81 There is no comment by any of the doctors that the plaintiff is exaggerating her pain, or demonstrating signs of abnormal illness behaviour. Given my positive assessment of the plaintiff’s credibility, and my consideration of these medical reports, I am satisfied that the plaintiff suffers frequent, to near constant pain in her thoracic spine.
82 I also accept that the plaintiff takes medication on a daily basis. I accept the evidence of Ms Kitchen, that she had to give the plaintiff medication at specified times on her wedding day. As has been recognised by the Court of Appeal in previous cases, “…the endurance of permanent daily pain requiring frequent medication must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”[62]
[62]Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267 at [199]. See also ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31
83 I accept that as a consequence of her thoracic spine pain, the plaintiff is limited in sitting, standing and walking and that her tolerance levels vary depending upon the day and her activities. I also accept that the plaintiff is limited in her household duties and that she does not walk her dog as a consequence of her thoracic spine pain. Collectively, I consider these to be “very significant” consequences.
84 In her first affidavit, the plaintiff stated that her sexual relations with her husband have been affected as a consequence of her thoracic spine pain. As this is not referred to in her second affidavit, nor any of medical reports, I am not satisfied this is an ongoing consequence to the plaintiff.
85 The plaintiff also claimed she has gained 10 kilograms in weight since the transport accident, due to inactivity from her injury. In the context of a six year period, I consider such weight gain to be relatively modest, and I do not attach any significance to it in assessing the plaintiff’s consequences.
86 In assessing whether the consequences to the plaintiff are very considerable, I must not look not only at what the plaintiff has lost, but should also have regard for what the plaintiff has retained. In Dwyer v Calco Timbers Pty Ltd (No.2) Ashley AJA stated:
“Finally, I agree with the submission for the respondent that in assessing whether the impairment consequences of injury are serious, one should consider not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”[63]
[63][2008] VSCA at [27]
87 Although I accept that the plaintiff is limited in her sitting, standing and walking, such restrictions are not enough to preclude her from working full-time in a sedentary or semi-sedentary role. She is currently working 25 hours a week, but acknowledges that she could work, and would like to work, full-time. She previously demonstrated a capacity to work full-time for a three year period at NAB. I consider such capacity demonstrates that her sitting, standing and walking tolerance is not so limiting as to cause her a significant impairment in her work capacity.
88 In Davidson v TAC the Court of Appeal considered that a young plaintiff’s inability to engage in a chosen career should be regarded as significant.[64] In this case, the plaintiff gave evidence that her “tough upbringing”[65] motivated her to want to become a youth worker, so that she could help young people in a similar situation to what she had gone through.[66] She said that she would have liked to work as a youth worker in a residential setting.
[64][2015] VSCA 12
[65]T70, L13-15
[66]T70, L7-16
89 The plaintiff said that if she had successfully completed her Certificate, her intention had been to go on to complete a Diploma, with a view to being a youth worker. The plaintiff believed she could not do this work now, as she believed it required a degree of physical activity and mobility, which would be difficult for her because of her middle back pain.
90 In cross-examination, the plaintiff said that if she was placed in a residential home, she would not be able to assist her clients in doing household activities. She did, however, concede that she could work in a Drug and Alcohol Centre in Frankston, which was office based and involved working with clients in setting plans and helping them to work out their issues. She said such work could be described as sedentary or semi-sedentary, and that it was similar to the work she is currently undertaking.[67]
[67]T38, L12-15
91 I am not satisfied that as a consequence of her thoracic spine injury, the plaintiff is unable to fulfil her desire to work as a youth worker. The plaintiff acknowledged that she had difficulties obtaining a 200 hour practical placement position, irrespective of the injuries she suffered in the transport accident. Further, she has demonstrated an ability to undertake studies in the two business courses she has completed since the transport accident. I am not satisfied that her thoracic spine injury, prevents her undertaking further study to qualify as a youth worker.
92 I am not satisfied that if she qualified, the plaintiff would be unable to undertake a full-time position as a youth worker, in an office environment. While I accept that working in a residential facility may be difficult for the plaintiff given her restrictions in performing some household tasks, no evidence was led by the plaintiff as to whether all jobs in residential facilities require youth workers to perform household duties. In any event, that is only one aspect of youth work. If the plaintiff, motivated by a desire to help troubled youth, still wanted to pursue a career as a youth worker, I am not satisfied that her thoracic spine injury would prevent her doing so.
93 The plaintiff also claimed that her social life has been interfered with as a consequence of her thoracic spine pain. Her friend, Ms Kitchen, also deposed to such interference in her affidavit, stating that it sometimes causes the plaintiff to miss social occasions because her back pain. Ms Kitchen gave an example of the plaintiff leaving a race function early due to back pain. She also said that she and the plaintiff previously loved to go shopping, but when they go now, the plaintiff frequently has to stop and rest.
94 It is apparent from the plaintiff’s Facebook page that there are many social activities she is still able to engage in, including travelling to Europe and Hawaii, attending social events such as a wedding, engagement party and birthday party, going to the football, going to a Cirque du Soleil show and doing quad biking with her workmates.
95 Mr Garnham submitted that this was an edited summary of the plaintiff’s Facebook entries over a six-year period. I accept that. I also accept the plaintiff’s evidence that she does not post entries on Facebook regarding the pain she experiences. I also accept her evidence that when travelling to Europe and Hawaii there were some things she could not do because of her middle back pain.
96 I consider the Facebook entries a superficial snap shot of the plaintiff’s social life. I accept the evidence of the plaintiff and Ms Kitchen that there has been interference with the plaintiff’s social life and ability to enjoy social activities.
97 In determining this case, I have considered that the plaintiff suffered her injury at the age of 21 and that she is now 27 years of age. As was also noted by Ashley JA and Beach AJA in Stijepic v One Force Group Australia Pty Ltd & Anor:
“…when judging the pain and suffering consequences for the appellant by comparison with other cases, we consider that it is relevant to look at the likely period to which those consequences will be experienced. All things being equal, impairment consequences which a man (or woman) will have to put up with for 40 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.”[68]
[68][2009] VSCA 181 at [43]
98 The plaintiff’s age has weighed heavily on my consideration of her application. Notwithstanding her ability to work full-time, I accept that she suffers pain on a daily basis for which she takes medication. There is a risk of osteoarthritis in the future.
99 As was observed by the Court of Appeal in Davidson, this may be considered a borderline case. But given her relative youth, and accepting her impairment will be suffered “over the whole of an adult lifetime”,[69] the plaintiff has satisfied me that, when compared to other cases in the range of possible impairments, she permanently suffers sufficient consequences to satisfy me that her thoracic spine impairment is very considerable.
[69]Davidson at [51]
Orders
100 The plaintiff’s application for leave to commence a claim for common law damages succeeds. I shall make consequent orders.
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