Delaney v Transport Accident Commission
[2013] VCC 596
•30 May 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-02228
| MAREE DELANEY | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8, 9 and 12 November 2012 | |
DATE OF JUDGMENT: | 30 May 2013 | |
CASE MAY BE CITED AS: | Delaney v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 596 | |
REASONS FOR JUDGMENT
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SUBJECT – TRANSPORT ACCIDENT
CATCHWORDS – Damages – serious injury – injury to the lumbar spine and mental or behavioural disturbance or disorder
LEGISLATION CITED – Transport Accident Act 1986, s93(4)(d), 93(6), 93(17)(a)
CASES CITED – Humphries & Anor v Poljak [1992] 2 VR 129; Richards v Wylie (2000) 1 VR 79; Mobilio v Balliotis [1998] 3 VR 883; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702; Barlow v Hollis (2000) 30 MVR 441; Guppy v Victorian WorkCover Authority [2010] VSCA 164; De Agostino v Leatch & Anor [2011] VSCA 249; Bezzina v Phi & Anor [2012] VSCA 161; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181.
JUDGMENT – Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Collis QC with Mr A Ingram | All States Legal Co Pty Ltd |
| For the Defendant | Ms J Dixon SC with Mr D Oldfield | Solicitor for the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 31 January 2007 in Preston (“the transport accident”).
2 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The plaintiff brings this application pursuant to paragraph (a) and (c) of the definition of “serious injury” to be found s93(17) of the Act. There –
“serious injury means—
(a) serious long-term impairment or loss of a body function.”
…
(c)severe long-term mental or severe long-term behavioural
…”
4 The loss of body function relied upon in this application is injury to her cervical spine and a mental or behavioural disturbance or disorder.
5 The plaintiff seeks leave to issue proceedings at common law.
6 The plaintiff relied upon five affidavits: two sworn by her one on 9 October 2009 and the other undated; an affidavit of Brad Diamond, sworn 25 October 2012; an affidavit of Stephen Delaney, sworn 29 October 2012 and an affidavit Jodie Bull, sworn 30 October 2012.
7 The plaintiff, Brad Diamond, Jodie Bull, Dr Kumar and Dr Bloom were cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant Legal Principles
8 The Court must not give leave unless it is satisfied, on the balance of probabilities that:
(a)the injury suffered by the plaintiff was as a result of the transport accident;
(b)the injury is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.
9 The enquiry under sub-paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term. The requirements of the test are set out in the decision of Humphries & Anor v Poljak[1] where the majority of the Court of Appeal said:
“We think that the task of a judge confronted with the requirement to determine an application made pursuant to sub-s.(4)(d) when reliance is placed upon sub-s(17)(a) may be stated in the following terms: he is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.”[2]
[1] [1992] 2 VR 129
[2] Humphries & Anor v Poljak (supra) at paragraph [140]
10 The serious injury defined by sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function;[3]
[3]Richards v Wylie (2000) 1 VR 79
11 In determining the application, the Court must make the assessment of “serious injury” at the time the application is heard.[4]
[4] Humphries & Anor v Poljak (supra)
12 In respect to paragraph (c) of s93(17), the word “severe” was used as a stronger word than “serious” in paragraph (a) of s93(17).[5]
[5]Per Brooking AJ in Mobilio v Balliotis [1998] 3 VR 883
13 The judgment of the Court of Appeal in Mobilio v Balliotis[6] resolved the meaning of “severe”. Brooking JA held that the considerations in Turner v Love & Transport Accident Commission[7] were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely, that the change in language from “serious” to “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.[8]
[6] [1998] 3 VR 833
[7](1995) 21 MVR 314
[8]Mobilio v Balliotis (supra) at 846
14 Winneke P agreed with Brooking JA’s reasons, and further agreed with him that the word “severe”, where used in subparagraph (c) of ss(17) of the Act, was a word of stronger force than the word “serious” where used in the Act.[9]
[9]Supra. See also Phillips JA at 858 and Charles JA at 860-1 to similar effect
15 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[10]
“… many disturbances are considerable, in the sense that they are important or substantial, without being very considerable. … .”
[10][1998] 1 VR 702
16 The term “serious” requires the impairment and its consequences to be viewed objectively, and also judged on an external comparative basis against possible impairments not necessarily in the same category.[11]
[11](supra) at 170 and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441. In particular, Chernov JA at paragraph [29]
17 The wrongdoer must take the victim as he finds him or her; he must compensate only for the damage he has caused. Based on Petkovski v Galletti,[12] an analysis has to be made of the extent of impairment of the body function before and after the relevant injury and the additional impairment has to involve serious long-term impairment of body function.
[12](supra) and affirmed in Guppy v Victorian WorkCover Authority [2010] VSCA 164
18 Where the claimant has an injury with numerous consequences, he or she must establish, at the time of applying for leave, that the injury which has been caused by or is the result of the accident is a serious injury. Where there is an aggravation of a pre-existing impairment, the claimant must not only show that the aggravation injury is, in its consequences, a serious injury, but also that the aggravation injury is the result of the relevant accident.[13]
[13]De Agostino v Leatch & Anor [2011] VSCA 249 at paragraph [60]. See also Bezzina v Phi & Anor [2012] VSCA 161 at paragraph [23]
The Issues
19 Counsel for the defendant submitted that the following were in issue:
(a) The extent to which the transport accident contributed to the ongoing neck pain the plaintiff now suffers. This has to be considered in circumstances where the plaintiff had an osteo-arthritic neck before the transport accident, and suffered an exacerbation of neck pain in lifting incidents in July and August 2007. To the extent that the transport accident contributed to the neck pain, the contribution does not satisfy the test of “seriousness”.
(b) In relation to the psychological component, the plaintiff does not establish any causal connection between the transport accident and the source of her psychological complaints. Further, the plaintiff does not satisfy the test of “severe”.
(c) The plaintiff’s credit.
The Plaintiff’s Evidence
20 In her affidavits sworn on 9 October 2009 and 8 November 2012, the plaintiff deposed that:
· On or about 31 January 2007, she was working as a delivery driver for Australia Post when she collided with another vehicle. She immediately felt pain in her neck.
· She did not attend hospital but returned home feeling shaken. The next morning, her neck was stiff and sore. She attended a general practitioner recommended by her employer and was prescribed analgesia. She was referred for an x-ray and physiotherapy. She ceased physiotherapy treatment but continued to attend the general practitioner until March 2007.
· In or about February 2007, she returned to work and was pressured to sign an admission of liability.
· In March 2007, she experienced numbness in her arms. She attended the Westcare Medical Centre and eventually began regular treatment for her neck and psychiatric injuries. She also recommenced physiotherapy, attending two or three times per week until about 2009, when she began massage treatment. She commenced working light duties.
· She currently takes antidepressants and anti-anxiety medication for treatment of her psychiatric injuries, and Panadeine Forte. She takes up to six Panadeine Forte a day, depending on her level of pain. She avoids taking pain medication because she has a heart condition and it causes constipation. She uses heat packs and gels to treat her day-to-day pain. She consults her general practitioner fortnightly and sees a psychiatrist usually fortnightly.
· She continues to experience constant but variable pain, stiffness and discomfort in her neck. The pain radiates down her arms. She also experiences pain in her shoulders from time to time. She experiences numbness down both arms and a tingling sensation in her hands and fingers. She has difficulty sitting, standing and walking for prolonged periods. She has difficulty with activities involving bending and reaching due to increased pain.
· Psychiatric treatment has been beneficial in bringing the panic attacks under greater control. She had frequent, but unpredictable panic attacks where she would hyperventilate and suffer chest pains. With the improved medication regime the frequency and intensity of the panic attacks has diminished, but she still remains susceptible to them. She also suffers anxiety and depression despite the medication.
· Prior to the transport accident, she would often tend her garden and mow the lawn. Because of her neck injury, she generally only performs light gardening tasks and it is difficult to sustain the tasks as looking down for prolonged periods of time increases the pain. Her husband or son now generally mow the lawn.
· Prior to the transport accident, she performed the majority of the household duties such as vacuuming, washing the dishes, dusting and general tidying. She would also do the shopping. She now avoids helping around the house, as moving her arms, reaching and craning her neck aggravates the pain. She occasionally helps with the shopping, lifting light things for short periods of time.
· She is restricted in her driving and can only drive for twenty minutes or 20 kilometres. She finds it difficult to pick up her grandchildren because of the pain. She feels she cannot interact with her grandchildren as she did before the transport accident. She attends football matches but suffers increased pain and has to take additional medication. She goes to the Deer Park Hotel and other local venues to play the pokies and relax.
· She has difficulty sleeping and frequently tosses and turns at night because of the pain in her neck. As a result, she is often fatigued during the day and becomes more irritable.
· Since the transport accident, she experiences periods of anxiety, stress and depression. She often recalls the transport accident and experiences periods of nervousness and a heightened sense of anxiety, especially when in cars.
· On or about 21 August 2007, she exacerbated her neck injury at work. She had some time off then returned on light duties and restricted hours. She managed with some difficulty until about July 2009, when she ceased work. She could no longer manage the light duties with the pain she was experiencing, as well as the stress, anxiety and depression that was affecting her day-to-day life. She has not resumed employment.
· Since she ceased working, she has had to sell her house in Kurunjang because she could not afford the payments. She now lives in rented accommodation which she shares with her husband, whom she is separated from, and one of her children, who is schizophrenic. She monitors her son’s medication. She has travelled to Thailand to ensure her son takes his medication.
· She previously had a heart attack and suffers from angina, which is managed with medication. In or about August 2009, she had heart surgery following further cardiovascular difficulty. She has previously had intermittent lower back pain but this generally resolved over a short period and did not required medical attention other than occasional analgesia. She did not experience any symptoms of neck pain before the transport accident.
21 In his affidavit sworn on 25 October 2012, Mr Brad Diamond deposed that:
· He is a friend of the plaintiff and her family. He first met the plaintiff in August 2011.
· On a flight between Bangkok and Australia, he noticed the plaintiff seemed unconformable and would get out of her seat and walk along the isle. The plaintiff took tablets during the flight.
· He observed that the plaintiff finds it difficult to turn her head to talk to people, to bend to load and unload the dishwasher and to hang out the washing. When he stays over he assists the plaintiff with these tasks.
· He regularly drives the plaintiff to medical appointments, family functions and shopping centres.
22 Mr Diamond was cross-examined. His evidence was consistent with his affidavit.
23 In his affidavit sworn on 29 October 2012, Mr Stephen Delaney deposed that:
· He is the son of the plaintiff.
· The plaintiff avoids picking up her grandchildren.
· The plaintiff’s disposition has changed; she is increasingly irritable and prone to bursts of anger, which was not the case before the transport accident.
24 In her affidavit sworn on 30 October 2012, Ms Jodie Bull deposed that:
· She is the daughter-in-law of the plaintiff.
· The plaintiff regularly minded her grandchildren and performed housework and prepared meals for them.
· She has observed that the plaintiff turns her body to look left or right.
· When she visits the plaintiff, she assists with cooking, handling heavy pots, cleaning the kitchen, loading and unloading the dishwasher and hanging out the washing.
· The plaintiff appears depressed, anxious and stressed. The plaintiff is moody.
25 Ms Bull was cross-examined.
· She visits the plaintiff regularly, two to three times a month at weekends.
· The plaintiff enjoyed her driving role with Australia Post.
· If there is something to be done she helps the plaintiff.
· The plaintiff is a changed woman: there are times when she is cheerful, but there are times when she is in pain. It makes it hard for her to be as cheerful as she used to be.
· She can rely on the plaintiff to mind her children, if needs be, but her children are more independent than they were and there is less for the plaintiff to do.
The Plaintiff’s Evidence in Cross-examination
26 The plaintiff gave the following pertinent evidence:
·Her husband suffered a stroke in 2009 or 2010.
·She and her husband had been separated under the same roof for easily ten years. She was in receipt of a Disability Support Pension prior to working with Australia Post.
· She performed unpaid clerical work for her husband’s fencing business. She worked as a casual employee for a caterer for approximately eleven years.
· She performed unpaid work cleaning for her daughter-in-law and minding her grandchildren.
· She said she sold her house because she wanted to live closer to her family and because once she stopped work she could not afford the repayments any more.
· She agreed that while working with Australia Post, she was dealing with her son’s diagnosis of schizophrenia.
· She agreed she had suffered from chronic obstructive pulmonary disease, hyperthyroidism, panic attacks around the period of her heart surgery in August 2009.
· She agreed she had been trying to give up smoking for years. She was prescribed Prozac in 2006 which she thought was for menopause.
· She was diagnosed with osteoarthritis in the low back for which she attended hospitals. She agreed she had osteopathy treatment for her low back pain. She attended The Royal Melbourne Hospital in the mid-eighties in respect to chest pain and angina and anxiety was an issue at the time.
· In August of 2005, she was admitted to St Vincent’s Hospital in relation to pneumonia and was prescribed Prozac daily.
· She agreed she went to St Vincent’s in August 2009 in respect to chest pains. She agreed in November 2003 she had pharyngitis and was prescribed Zoloft, although she could not remember that. In May 2004, she went to the Western Hospital with angina and again in January 2005 with angina and anxiety syndrome and insomnia.
· She agreed she attended the Emergency Department of the Western General Hospital (“Western Hospital”) in August 2005 with a chest infection, again in September 2005 on two occasions, with chronic airways disease and respiratory infection, and a mental and behavioural disorder relating to not being able to give up smoking.
· She agreed she attended the Western Hospital on two occasions in October 2005 with respiratory symptoms. She agreed she went to the Western Hospital Emergency Department or Outpatients for various things on quite a number of occasions.
· She agreed that in 2004, 2005 and 2006, leading into 2007, she presented at hospitals for cardiac attendance, chest pain and anxiety. She agreed that between May 2002 and June 2007, she attended the Keilor Downs Clinic for back problem, chest related issues, dizziness, bilateral groin pain, sleep issues, epigastric chest pain, lumbar and cervical pain and received antidepressant medication in 2006.
· She agreed she was taking Prozac in October, November and December of 2006 for depression. She agreed she would have been anxious at the time over her chest pains.
· She could not remember whether she was very forthcoming about her medical condition when she saw Dr Wilkinson for the Australia Post pre-placement medical assessment. She attended Westcare Clinic between March 2007 and August 2007. There was no mention of the transport accident. She said she was seeing work doctors.
· She agreed she had lifting incidents at Australia Post in July and August 2007. After the lifting incidents, she was on light duties for a long time. She said the transport accident started her injuries and she reported that to Australia Post.
· She attends the Medical and Dental clinic when Westcare closes and she requires something urgent. She agreed in August 2007, she was prescribed Lovan daily, as she was trying to wean herself off Prozac so she could start Zyban.
· In 2008, she was attending the Medical and Dental clinic and complained of panic attacks in November 2008. She thought she would have mentioned her transport accident issues or WorkCover issues when seeing doctors at that clinic. She attended that clinic when she needs a prescription or cut her finger. She told the clinic she had a heart condition and was allergic to penicillin.
· She agreed she was pretty disillusioned with the workplace by 2009. She agreed she saw Mr Lush, a psychologist, in 2009. She agreed there were interpersonal issues at the workplace which were making her stressed. She did not like being on light duties. She liked to be doing something. She agreed she saw another general practitioner, Dr Lipson.
· She agreed she could not contemplate going back to work at Australia Post because she was paranoid about her employer and felt psychologically abused. She agreed in July 2009 she did not want to go back to Australia Post.
· She agreed when she sees doctors, she does not think it necessary for her to tell them her life story.
27 In re-examination, the plaintiff gave the following evidence:
·She does not go dancing because of her neck pain.
·She travelled to Thailand to be with her son to make sure he was taking his medication.
·She agreed that she worked more than her contracted hours of twenty hours a week on a regular basis before the transport accident. She said some of the bags she had to collect weighed in excess of 20 kilograms.
·Prior to the transport accident, she did not have any problems with her neck, she loved her job and had no problems with fellow employees. Prior to commencing with Australia Post, she had not been referred to a psychiatrist or a psychologist, but had been prescribed Prozac by her general practitioner.
·After the accident, she was keen to return to full-time work. In March 2007, she did not think she was quite ready for work, as she had pain and cramps in her neck.
·Following her return to work, she was required to lift which affected her neck. She reported this to her supervisor. She was provided with a trolley, which also hurt her neck. She reported this to her supervisor. The complaints she made led to issues with some of her supervisors. In the end, she was given no duties at all.
·She was referred to Mr Myron Rogers, a neurosurgeon, who recommended surgery, which she agreed to, but because she was taking Plavix, surgery was deferred.
·She bought the house at Kurunjang in 2006 after she got the job with Australia Post. She said she probably would not have bought the house if she had not had the job. She sold the house two years ago.
Investigations
28 On 2 February 2007, an x-ray of the cervical spine showed:
“…There is straightening of the cervical lordosis with the proximal cervical spine tilted to the right.
There is no evidence of any fracture within the cervical spine.
There is narrowing of the C5/6 and anterior and posterior sharpening of end plates at that level.
Oblique views confirm a neural foramina narrowing at that level on both sides.
Facet joints in the mid cervical spine show moderate arthritis.
There are no cervical ribs present.”[14]
[14]PCB 47
29 On 17 July 2007, a CT scan of the cervical spine concluded:
“… Multi-level degenerative facet disease. Moderate C5/C6 degenerative disc associated with end plate osteophyte formation and mild central disc bulge which constitutes to mild central canal stenosis and mild flattening of the cord centrally. Bilateral C5/C6 foraminal stenosis more marked on the right but mild bilateral C4/C5 foraminal stenosis more marked on the left. Further evaluation with MRI would be useful to further evaluate the cord and central canal.”[15]
[15]PCB 45
30 On 7 December 2007, an MRI scan of the cervical spine concluded:
“Mild to moderate anterior cord indentation without abnormal cord signal at C5-6 level, secondary to a disc protrusion. Significant bilateral foraminal stenosis is present, left worse than right with likely compression of both exiting C6 nerve roots.” [16]
[16]PCB 43
31 On 22 April 2009, an MRI scan of the cervical spine showed:
“Moderate C5-6 disc degeneration and bilateral C5-6 neural exit foramina compromise, severe and moderate on the right and left sides, respectively with presumed mass effect upon the existing C6 nerves given the clinical notes provided.”[17]
[17]PCB 44
32 On 5 August 2009, a coronary angiogram reported a recommendation for stenting of the right coronary artery lesion.
33 On 5 July 2010, a coronary angiogram reported continuing patency of the previous placed drug eluting stents in the right coronary artery. Recommendation ongoing medical therapy.
The Plaintiff’s Medical Evidence
Dr Jude Ugwu, Occ West, Sunshine Clinic
34 The subpoenaed consultation notes from the medical practice, Occwest, confirmed that on 1 February 2007, the plaintiff attended Dr J Ugwu, who diagnosed a whiplash injury to her cervical spine, prescribed analgesia and referred her for physiotherapy and x‑ray. The plaintiff was declared fit for modified duties and restrictions were imposed. By 6 March 2007, she was fit for normal duties. By 5 April 2007, she was reporting intermittent neck pain. By August 2007, she was back to restricted duties and was receiving physiotherapy and massage treatment.
Mr Myron A Rogers
35 In April 2009, Mr Rogers, neurosurgeon, saw the plaintiff on referral from Dr Daniel Lipson at the Dundas Street Medical Centre. Mr Rogers was informed of the transport accident. Mr Rogers said the plaintiff had a number of symptoms which include bilateral arm and hand paresthesia – which was more pronounced on the left – neck pain and spasm and dizziness. He advised that consideration be given to current spinal surgery which he described as anterior decompression at C5-6 with interbody grafting. He said the chances of surgery would provide significant symptomatic relief in the order of 75 per cent. He arranged for the plaintiff to undergo an MRI scan which confirmed the presence of severe foraminal stenosis bilaterally at C5-6. He recommended that she proceed with the surgery.
Dr M John Williams
36 In January 2010, Dr Williams, cardiologist, saw the plaintiff on referral from her general practitioner in relation to non-exertional chest pains which appeared to be related to her panic attacks. The plaintiff underwent a percutaneous intervention to an eccentric right coronary lesion in August 2009 with a drug eluting stent. In June 2010, Dr Williams said it was difficult to work out whether chest pains the plaintiff was suffering were related to the musculoskeletal injury or a recurrence of her right coronary problem. He said any proposed neck surgery should be deferred until at least August 2010 when she would be able to stop Plavix, a blood thinning medication.
Dr Steve Stojkovski
37 Dr Stojkovski, general practitioner, treated the plaintiff at the Westcare Medical Centre from October 2007 in relation to an injury in January 2007 of neck pain and left arm paresthesia on a regular basis. In October 2007 he noted she had a cervical C5-C6 neck disc bulge and canal stenosis. In February 2009, he considered she had become depressed due to her chronic pain. He said she had a history of anxiety which was exacerbated by her ongoing neck pain as well as the stress of the WorkCover.
38 By May 2010, the plaintiff was constantly reporting neck pain and was referred to a psychiatrist for treatment. In addition, the plaintiff was receiving treatment from a cardiologist for her heart condition. Dr Stojkovski described her condition as an “aggravation of pre-existing multi-level cervical spine degenerative changes at C5-6 and a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood and Panic Disorder” which remained the same. He said the work-related issues had contributed to her present mental state. He had not seen any improvement in the past year.
39 In January 2011, in respect to the neck pain Dr Stojkovski said the plaintiff had bilateral neck radiculopathy and it was his view that, on the balance of probabilities, she would require neck surgery. However, because of her cardiac condition, she was on Plavix, so surgery would be delayed. He was of the opinion the plaintiff’s panic attacks had not improved and that her work-related issues had contributed to her mental state. He had not seen any improvement in the past year. He said her prognosis was poor to fair.
40 In November 2012, Dr Stojkovski said the plaintiff would not be mentally fit to undergo neck surgery. He was seeing her on a regular basis approximately every four weeks. She complained of neck pain and restriction of neck movements in May 2011 and April and June 2012; otherwise she was seen in relation to her mental state.
Mr Simon Lush
41 In February 2010, Mr Lush, psychologist, reported to the plaintiff’s solicitor that he had treated the plaintiff on eight occasions. He obtained a history of the transport accident in January 2007. The plaintiff said her claim for WorkCover was contested by her employer and she was required to return to work while injured. She reported other work-related incidents which involved her in a stressful work environment receiving calls from the wife of a work manager. She had an altercation with a co-worker and felt bullied and harassed by the co-worker. She was on stress leave because of her stress levels and her workplace injury. In August 2009, she had a stent inserted in one of her heart cavities.
42 Mr Lush diagnosed a Panic Disorder without agoraphobia and there was evidence to suggest the presence of a Mood Disorder; the symptoms were moderate in nature. He thought the prognosis for the plaintiff was good. He noted that she had not been compliant with treatment, having missed a session, and was having difficulty in applying strategies around anxiety and depression management.
Dr Kirthi Kumar
43 Dr Kumar, psychiatrist, examined the plaintiff at the request of the plaintiff’s solicitor in June 2012. He diagnosed an Adjustment Disorder with depressive anxiety symptoms. He said her symptoms were consistent with the reported injury being a motor vehicle accident while working for Australia Port. She complained of chronic neck pain. She returned to work. She felt harassed by Australia Post arising from her apparent conflict with WorkCover and Australia Post. She reported depression and anxiety that had occurred gradually since the accident. He thought she was incapacitated for pre-injury employment. He noted that she did not suffer from a mental illness until the injury occurred. He said she needs to continue with medication as suggested and to see a psychologist. He said, given her present restrictions, it would be challenging for her to work with the current persisting pain that she was experiencing. He was aware of her son’s mental illness but said it was not the reason for her to be experiencing the Adjustment Disorder.
44 In cross-examination, Dr Kumar said:
·There were times when the plaintiff had transiently got better, but whenever she perceived events as stressful, she has felt more anxious and depressed. He said it was quite common for patients not to experience any great psychological condition at the time of the accident, although they may be in a state of stress and shock.
·The focus of her concern has been more about the way she was treated by her employer, than the accident itself.
·He was not aware of the plaintiff’s heart condition, but was aware that she had multiple medical problems.
·He said she had done reasonably well psychologically up until the time of the traffic accident and that is when she has needed significant psychological management.
·The plaintiff attended all appointments regularly.
·He said it is fairly common that patients with chronic psychiatric problems take themselves off medication.
·He had not gone into the details of her marriage.
·As a clinician, he said it was his priority to address the plaintiff’s depression and anxiety.
·He understood her family was supportive.
·He thought the plaintiff could work, but not with her former employer.
Dr Nathan Serry
45 In August 2012, Dr Serry, psychiatrist, examined the plaintiff at the request of her solicitor. He said during the interview, the plaintiff demonstrated a reduced affective range and appeared depressed. She was anxious, apprehensive and frustrated by life changes following the accident, including the difficulties she encountered at work in the aftermath. There were residual traumatisation features regarding both the accident and work experience. Dr Serry said the plaintiff experienced physical sequelae following the accident. From a psychiatric perspective, her presentation reflected both the impact of the accident and the impact of difficulties she encountered on returning to work following the accident.
46 He said the plaintiff’s prognosis was guarded, given the ongoing nexus between the physical and psychiatric aspects of her presentation. He said there was no pre-existing psychiatric condition. He accepted that the accident significantly contributed to her psychiatric injury. He thought her restrictions were likely to be of a long-term nature and her injuries will restrict her in relation to her social, domestic and recreational activities.
Mr David Brownbill
47 Mr Brownbill, consultant neurosurgeon, examined the plaintiff at the request of her solicitors in July 2008 and October 2012. Mr Brownbill noted the plaintiff did not have any significant neck pain or arm symptoms before the transport accident. He said that the degenerative changes that occur with the ageing process may occur at the C5-6 level at an increased level and rate, than would otherwise have been anticipated in the absence of aggravation of those degenerative changes in January 2007.
48 The plaintiff complained of back pain between the shoulder blades present most of the time, which fluctuates in severity and is worse with neck movement. She had neck pain on each side, but more so on the left. The pain fluctuates in severity; there are good days and bad days. On examination, Mr Brownbill said there were restrictions of cervical spine movements but no objective neurological abnormality of the upper or lower limbs. There was no sign of radiculopathy or myelopathy.
49 In both reports, Mr Brownbill said the plaintiff had longstanding cervical spine degenerative changes which had been essentially asymptomatic and which were aggravated by forces sustained in the transport accident in January 2007, giving rise to neck pain which has continued in a fluctuating manner and intermittently sensory disturbances in the left arm. He also considered that the interscapular pain is referred from the cervical spine.
50 He said the plaintiff is likely to require treatment into the future indefinitely and he expected her pain will continue in a fluctuating manner indefinitely. He said she will need to avoid activities involving heavy lifting, forced spinal mobility or holding her neck in a fixed position. He said that he considered that the plaintiff’s injury of aggravation of cervical spine degenerative changes (with ongoing symptoms of neck pain, interscapular pain and arm paresthesia) were caused as a direct result of the transport accident. He considered that her social, domestic and recreational activities as well as her work capacity were restricted indefinitely. He thought her ability to return to the workforce would be reduced. He considered the restrictions were long-term.
Dr Gregory White
51 In November 2009 and September 2012, Dr White, psychiatrist, examined the plaintiff at the request of the plaintiff’s employer. In September 2012, Dr White said the plaintiff had developed an Adjustment Disorder with Mixed Anxiety and Depressed Mood, as well as a Panic Disorder after a work accident that resulted in ongoing pain, disability and the need for restricted duties. He said there were other ensuing issues in the workplace. He said her condition had appeared to deteriorate since he last assessed her and her symptoms reflected a Major Depressive Disorder, single episode, characterised by low mood, loss of interest and other biological, psychological and social symptoms of depression including significant anxiety, melancholy features, suicidal ideation and transient paranoid symptoms.
52 It was his view that her condition was significantly related to employment with Australia Post. He said the plaintiff had no work capacity because of a constellation of psychiatric and physical symptoms. He said if there was an improvement in her depression, which he thought was extremely unlikely, she could return to work. He accepted the plaintiff was genuine. He thought her prognosis was poor and she needed continuing treatment.
Dr Charles Castle
53 In October 2007, Dr Castle, occupational physician, examined the plaintiff at the request of the plaintiff’s employer. Dr Castle said the plaintiff injured her neck and left ankle in a transport accident in January 2007. She was diagnosed with whiplash injury and her neck symptoms have worsened since the injury. She had clear signs of the left radiculopathy and dizziness which is coming from the neck. Dr Castle said the plaintiff’s symptoms and signs are consistent with the MRI scan findings. He thought it unlikely the disc protrusion was caused by the accident. However, he said the collision made symptomatic an existing problem and may well have made the existing disc lesion worse. He said her present symptoms are the direct result of the transport accident. He said she was fit for work but imposed restriction on lifting, excessive repetitive movement of her neck and driving, namely a maximum of two hours a day. He said she could work a maximum of twelve hours a week, over three days.
Dr Michael Bloom
54 On 3 July 2012, Dr Bloom, occupational and environmental physician, examined the plaintiff at the request of the plaintiff’s employer. He was aware that the plaintiff was involved in a transport accident and remained at work for the next two years on restricted duties. He thought the plaintiff had a capacity for suitable duties and that she would benefit from a graduated return to work program provided she was well supported, and the duties were within suitable constraints. He recommended commencing, say, three hours per day, three days per week, with a graduated increase in hours and days to pre-injury hours over a three month period. He imposed restrictions.
55 He said she could not return to her pre-injury duties because they involved manual handling of items in excess of 5 kilograms. He thought she could perform sedentary duties, provided she could change posture frequently. He said her ongoing symptoms and disabilities relating to her underlying neck condition will remain a long term barrier. He thought there were inconsistencies in her presentation and thought her current failure to rehabilitate related primarily to motivational and psychosocial factors, rather than purely physical factors.
56 In cross-examination, Dr Bloom said:
·He was unaware that the plaintiff returned to pre-injury duties.
·The day he examined the plaintiff, she would not allow him to conduct a proper examination clinically.
·In 2009, she was taking analgesics from time to time, which suggests the underlying disease process was not a major day to day problem.
·She had fairly advanced degenerative changes in the cervical spine which is nearly always associated with similar degenerative changes in the low back.
·He did not get a previous history of panic attacks, ongoing angina, anxiety and chronic obstructive pulmonary disease.
·He said it is difficult to determine whether the jarring injury in January 2007 exacerbated the underlying condition, or whether it aggravated the injury. On the balance of probabilities, he thought she would be suffering some symptoms, even had she not had the accident. The extent of the symptoms is guesswork.
·He agreed with Mr Brownbill that once cervical spine conditions are aggravated, resulting pain may continue in a fluctuating manner indefinitely even when the aggravating factors cease.
The Defendant’s Medical Evidence
Dr Lester Walton
57 Dr Walton, psychiatrist, examined the plaintiff in September 2010 and August 2012 at the request of the defendant. He diagnosed a Chronic Adjustment Disorder with Mixed Anxiety and Depression. He said the plaintiff’s psychiatric syndrome remained stable and his long-term prognosis was guarded. The findings on examination were consistent with the complaints made by the plaintiff. She was incapacitated for work on psychiatric grounds. Her ongoing depressed mood tends to erode motivation towards all activities, including work. He said she was irritable, which would marr her dealings with co-workers and members of the public and she has difficulty concentrating, which would result in her being prone to make mistakes at work. He did not include the effects of her ongoing pain.
58 Dr Walton said the plaintiff was not especially motivated towards social and recreational activities. He was aware she visited local shops and attended football matches. He said the overall impression is one of chronicity and her mental state may persist for the foreseeable future.
Mr Michael Shannon
59 Mr Shannon, surgeon, examined the plaintiff in September 2011 and July 2012 at the request of the defendant.
60 He had previously examined the plaintiff in October 2008 in relation to her employment with Australia Post. It was his opinion that the plaintiff suffered from significant cervical disc degeneration with symptoms but no sign of radiculopathy. Her diagnosis was significant cervical disc degeneration with foraminal stenosis and disc bulging. The prognosis is for further injury. He considered her condition had been permanently aggravated and accelerated by the transport accident and the contribution of the lifting was relatively minor. He said:
“(v) In terms of capacity for employment, I think that she is likely to have recurrent problems with her neck if she goes back to her normal occupation although she is keen to continue working at Australia Post.
(vi) I do think that employment with Australia Post has contributed to her condition in terms of aggravation and acceleration and noting that she now has symptoms 2 years later, I think that it would be regarded as permanent aggravation.”[18]
[18]DCB 94
61 He had read Mr Brownbill’s report which he considered consistent with his opinion. Mr Shannon had reviewed her past medical history of the Keilor Downs Medical Clinic and treating practitioners. While she had occasional neck problems he was unable to identify any major ongoing symptoms in the neck.
62 In 2012, he said there had been little change since his previous examination. It was his impression that she had an ongoing moderate disability which was related to the transport accident, although he thought there was some exaggeration of restriction of movements. He said there was ongoing evidence of aggravation of cervical disc degeneration without definite evidence of radiculopathy. His findings were in general consistent with a neck injury. He did not think she was fit to work as a delivery driver.
Professor Stephen Davis
63 In August 2010, Professor Davis, neurologist, examined the plaintiff at the request of the defendant. He diagnosed a clear cut cervical flexion-extension soft tissue injury which was likely to have precipitated symptoms related to underlying but previously asymptomatic cervical spondylosis. The interscapular pain is most likely to be referred from the cervical spine. He said she had chronic pain and radicular symptoms in the upper limbs together with pronounced psychiatric symptoms.
Mr J Kendall-Francis
64 Mr Kendall-Francis, surgeon, examined the plaintiff at the request of the plaintiff’s employer in 2009. He thought her current condition was related to her underlying aged-related cervical spine degenerative state. He said that as she had improved at various stages early on from her injury, the relationship to the transport accident would be considered distant. He thought her further ongoing symptoms and current symptoms are due to her ongoing degenerative state. The subsequent symptoms became more significant six months after the accident, and these would be considered due to the underlying nature of degenerative spondylosis continuing to progress.
65 Mr Kendall-Francis said her medical conditions, namely, her cardiac and respiratory status and psychological condition impact on her claimed condition. He said surgery should be approached cautiously given her cardiac and respiratory conditions, panic attacks and psychological problems. Mr Kendall-Francis said her inability to return to work was due to the underlying or pre-existing degenerative changes in her cervical spine. He said the plaintiff was not voluntarily exaggerating her symptoms but was consciously guarding restrictions of movement because she had developed a fear of pain with the persistence of her symptoms. He said her future prognosis is guarded.
Mr Gordon Stuart
66 In March 2009, Mr Stuart, neurosurgeon, examined the plaintiff at the request of the plaintiff’s employer. He said the plaintiff suffered from neck pain, headaches, brachial neuralgia and cervical myelopathy. However her condition no longer relates to the transport accident, which was an aggravation of pre-existing degenerative disease of the cervical spine. Her current condition now relates to pre-existing degenerative disease, which is unrelated to her employment. He considered the underlying degenerative disease of the cervical spine surpassed the aggravation due to her injury of 31 January 2007 by 31 July 2007. He did not consider the plaintiff was fit to perform her pre-injury duties. He said her work restrictions relate to her pre-existing degenerative disease of the cervical spine. He was unaware of any aspects of the examination which suggested she was exaggerating her symptoms. He felt the future prognosis for the plaintiff’s condition was poor due to the pre-existing degenerative disease of the cervical spine.
Subpoena Documents
67 The defendant subpoenaed medical and hospital records of the plaintiff from: Dr Jude Ugwu, Our Lady of Rivergum Medical Centre, Dundas Street Medical Centre, Westcare Medical Centre (Dr Stojkovski), Medicare Australia, Western Psychological Services, Sunshine Hospital, Samir Ibrahim, St Vincent’s Hospital, Keilor Downs Medical Centre, Deer Park Central Medical Clinic and Australia Post.
Our Lady of Rivergum Medical Centre
68 The medical records confirm that the plaintiff was seen on 17 and 18 July and 12 September 2007 complaining of left neck pain and left arm numbness. A CT scan was ordered of the neck and there was discussion of referral to a neurosurgeon. There was no note in the records as to the cause of the neck pain.
Dundas Street Medical Centre
69 The plaintiff sought treatment from Dr Lipson at the Dundas Street Medical Centre between 2 September 2008 and April 2009 in relation to her neck and left arm. Dr Lipson referred the plaintiff to Mr Myron Rogers.
Keilor Downs Medical Centre
70 The subpoenaed records confirm the plaintiff was consulting the medical practice from 21 May 2002 until 10 May 2007 for unrelated matters.
Deer Park Central Medical Clinic
71 The plaintiff consulted the clinic on a few occasions from September 2010 until November 2011 but not in relation to a transport accident.
Sunshine Hospital Records
72 The records of Sunshine Hospital confirmed that after the transport accident in January 2007 the plaintiff presented at the hospital for her heart condition which was unrelated to the transport accident.
Video Surveillance
73 I was shown no film of the plaintiff, even though video surveillance of the plaintiff was undertaken. Video footage was taken, but not shown to the Court. I can only conclude that the film did not assist the defendant.
Credit of the Plaintiff
74 Counsel for the defendant said the plaintiff’s credit was in issue for a number of reasons.
75 First, the plaintiff downplayed her past infirm health in her 2009 affidavit. In her 2009 affidavit, the plaintiff stated that she had a heart condition, which was managed with medication, and intermittent low back pain. She said other than those conditions at the time of the transport accident she was in good health. I accept that the medical evidence discloses a more substantial medical history, including numerous visits to hospitals and general practitioners, that was not disclosed in her affidavit. I accept this demonstrates a lack of co-operation with the Court processes and is something that I can take into consideration when relying upon the plaintiff’s evidence.
76 Second, the plaintiff overstated her past work history in her application for employment with Australia Post and did not disclose that her recent work history was unpaid employment with family members. I note that the employment application form did not ask whether the previous employment was paid. It is not unreasonable for applicants seeking employment to show their employment history in the best possible light. The evidence was that the plaintiff did perform housekeeping for her daughter-in-law and assisted in her husband’s business. Consequently, I do not draw a negative inference as to the plaintiff’s credit on this issue.
77 Third, counsel for the defendant submitted that the plaintiff failed to disclose her medical history to Dr Wilkinson at a pre employment medical check on 31 May 2006. The plaintiff disclosed asthma and thyroid problems in respect to her past medical history. She stated no previous back pain, no previous heart attack and no previous chest pain. Such answers were incorrect.
78 I accept that the plaintiff gave incorrect answers to questions which were asked of her by Dr Wilkinson when he was performing a medical examination with respect to her employment with Australia Post. That is a matter I can take into account in my overall assessment of the plaintiff’s credit.
79 Finally, the plaintiff was selective in the information she provided to medical examiners, in particular:
· Dr Walton’s records that noted: past depression related to a period about eighteen years previously; the plaintiff was not medicated prior to the accident as best she could recall; the accident had impacted on her libido and sexual activity leading to conflict within her marriage; impacts on her sleep and increased chest pain occurring concurrently with the post-accident panic attacks.
· Mr Shannon recorded that the plaintiff told him of frequent visits to hospital with chest pain and panic attacks since the transport accident. She failed to tell him of the frequent visits prior to the transport accident. He obtained a history that “she cannot remember ever seeing a doctor, a physiotherapist or a chiropractor for her neck although she had seen a chiropractor and masseur over the years”.
· Dr Serry recorded that the onset of coronary artery symptoms was in 2009 and that panic attacks began in 2009, along with the onset of chest pain at that time. The medical history she gave was of a minor myocardial infarction at thirty-four, with some residual angina secondary to coronary artery disease, hypothyroidism and a caesarean section with her youngest children.
· Dr White recorded that symptoms of depression occurred after the transport accident but before the panic attacks and that she had only had Prozac at the height of her menopause symptoms five years earlier for a period of twelve months. Dr White recorded that there was no family psychiatric history and that she had a good marriage to a supportive spouse.
· Dr Bloom recorded that prior to the transport accident, the plaintiff suffered occasional stiff neck in the morning which did not need medical attention. Dr Bloom also recorded that she had suffered from one year of depressed mood during menopause, for which she was prescribed Prozac, and that she had developed panic attacks after the transport accident. The plaintiff told him about her low-back pain and sciatica, hyperthyroidism and heart attack, and insertion of stents.
80 The plaintiff’s evidence was that she did not feel it necessary to tell various doctors “anything that had happened in her life” and that she informed them of what she deemed to be relevant.
81 I accept that the plaintiff provided evidence to the Court which contradicted what she told doctors whom she saw and in what she said in her affidavits. She provided evidence to doctors which was wrong. For example, her evidence to the Court was that her relationship with her husband broke down prior to the transport accident and they were already separated, but living under the one roof, by that time. Also, the evidence was that the plaintiff was prescribed Prozac in 2006, prior to the transport accident, which was not disclosed to the psychiatrists whom she saw.
82 The plaintiff had a long and complex medical history and I accept that it was unnecessary for her to provide her complete medical history to the doctors whom she saw in relation to the transport accident. However, it was necessary for her to provide her relevant medical history relating to her neck and psychiatric and psychological condition. For example, that she had suffered panic attacks, related to her Chronic Obstructive Pulmonary Disease on numerous occasions prior to the transport accident.
83 I am not prepared to draw an adverse conclusion that the plaintiff deliberately withheld the information from doctors when it is not clear what questions were asked of her. I accept that at times the information she provided to medical practitioners was incorrect. That is a matter which I can take into account in assessing the plaintiff’s evidence. It is also a matter I must take into account when considering the opinions of doctors.
84 The plaintiff had a very limited education. Her work history was limited and restricted to manual work. She presented as a simple woman, with a poor recollection for dates, and became confused easily in respect to when events occurred. She was cross-examined in great detail on her extensive medical history spanning several decades. She became stressed and required breaks. I concluded that she found the experience extremely stressful.
85 Considering the number of medical attendances she had, the period over which she was cross-examined and the extensive nature of her medical condition, I considered her lack of memory reasonable.
86 In Court, her neck movements were limited. She did not move her neck left or right. Rather, when directing an answer to a person, she moved her body.
87 The plaintiff was prone to exaggeration on occasions. On occasions she was flippant, for example when questioned about her trip to Vietnam she said she went bungee jumping. At other times she did not answer questions, for example, she was asked what medication she had taken on the day, but responded “I don’t know. You’ve got it all there, haven’t you?” She often answered questions with “I don’t know” before considering the question.
88 The plaintiff made concessions in cross-examination. She conceded she was a heavy smoker and that she had separated from her husband prior to the transport accident.
89 A number of the doctors made comments about the plaintiff. Dr White described her as genuine. Mr Kendall-Francis said the plaintiff was not voluntarily exaggerating her symptoms but was consciously guarding restrictions of movement because she had developed a fear of pain. Mr Stuart said he was unaware of any aspect of her examination which suggested she was exaggerating her symptoms. Dr Bloom thought there were inconsistencies in her presentation and she refused to allow him to conduct a proper clinical examination. Mr Shannon thought there were some exaggerations in restriction of movement. Dr Serry described the plaintiff as a vague historian. The comments by Mr Stuart, Dr Bloom, Dr Serry and Mr Shannon are consistent with my observations of the plaintiff in Court.
90 Given the difficulties with her memory, the inconsistencies in her evidence, and her presentation in Court, I place greater weight on her evidence when it is supported by independent evidence.
Analysis of the Evidence
Physical Injury
91 All of the medical witnesses accepted the plaintiff suffered an injury to her neck arising out of the transport accident. What was in issue was the extent of the injury caused by the transport accident and whether the current symptoms were due to the transport accident, a lifting incident at work or pre existing degenerative disease in her neck.
92 The medical witnesses described the injury suffered by the plaintiff in various ways, but the majority of the medical witnesses accepted the plaintiff suffered an aggravation of pre-existing degenerative change in her cervical spine.[19]
[19]Dr Stojkovski, Mr Brownbill, Dr Castle, Mr Shannon, Professor Davis, Mr Kendall-Francis and Mr Stuart
93 In June 2009, Mr Kendall‑Francis, surgeon, said her current symptoms were due to the ongoing degenerative state and the relationship to the transport accident of 31 January 2007 was distant. He also took into consideration the fact that her treatment following the accident led to an improvement in her condition to a point where she was able to return to her pre-injury duties. The subsequent symptoms she reported became more significant six months later and for that reason he considered they would be due to the degenerative spondylosis continuing to progress.
94 Mr Stuart supported the view of Mr Kendall‑Francis, but did not indicate why he formed that view. Dr Bloom thought the plaintiff would be suffering some symptoms even without the transport accident, but was unable to say what the nature and extent of those symptoms would be.
95 Mr Kendall‑Francis and Mr Stuart only saw the plaintiff on one occasion, each in 2009, and their opinion is in the minority. Accordingly, I accept the view of the majority that the plaintiff’s current neck symptoms were caused by the transport accident.
96 On 17 July 2007, the plaintiff completed an Incident Report, stating that she injured her neck at Australia Post whilst attempting to lift heavy items of up to 20 kilograms. However, the records of the medical centre record that the plaintiff had left arm numbness with pins and needles for the past two weeks. This would suggest such pain was associated with the transport accident. Australia Post accepted liability for the injury as an exacerbation of her prior neck and upper back injury sustained in the transport accident.[20] The only medical witness who commented on the contribution of the lifting incident was Mr Shannon, who said the lifting incident was relatively minor. I accept that the plaintiff aggravated her neck injury in the lifting incident, but rely on Mr Shannon’s opinion that the incident was a minor contribution to the plaintiff’s presentation.
[20]DCB 548
97 In respect to an aggravation to a pre-existing injury, Southwell and Teague, JJ, in Petkovski v Galletti,[21] said that the task of the Court is to analyse the extent of the impairment of the body function before and after the relevant injury. The Court said:[22]
“The question of the relevance of the existence of a pre existing degenerative condition in the applicant's spine was raised both in the court below and in this court. It was submitted in both courts for the respondent that a comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of the additional impairment; if that additional impairment was not ‘serious’, so it was said, then leave must be refused.”
[21]Supra
[22](Supra) at 443
98 Where the injury for which compensation is claimed is an aggravation injury, the additional impairment must itself involve serious long-term impairment (or loss) of a body function.
99 Accordingly, I must consider what the evidence discloses as to the plaintiff’s prior condition, and determine whether the additional impairment resulting from the second accident was serious.[23]
[23]Supra
100 The plaintiff said she had suffered from occasional neck symptoms prior to seeking employment with Australia Post. The medical records of Dr Ng confirmed that in December 2005 and January 2006, she discussed neck and back pain with him. The plaintiff told the doctors whom she saw she suffered occasional neck stiffness but no real persisting problems with her neck and did not seek medical attention for this.[24] She informed Mr Shannon in 2008 that she had occasional aches and pains and stiffness in her neck in the mornings but nothing like she was suffering when examined by him. Mr Shannon examined the medical material from the Keilor Downs Medical Clinic and said that while she had occasional neck problems he was unable to identify any major ongoing neck symptoms in the neck. All other medical witnesses accepted that the pre existing degenerative change was asymptomatic prior to the transport accident.
[24]Dr Bloom at PCB 144C
101 The plaintiff’s evidence was that in the period when she commenced driving a delivery van for Australia Post in June 2006 until the transport accident, she experienced no neck problems with respect to her work. This was despite her evidence that some of the bags she handled weighed in excess of 20 kilograms.
102 I accept that as at January 2007, the plaintiff had minor symptoms in her neck for which she last received treatment in January 2006. Any pain the plaintiff suffered with respect to her neck was minor and did not limit her work or activities of daily living.
The Condition of the Plaintiff after the January 2007 accident
103 On 31 January 2007, the plaintiff was driving her van when it was involved in an accident with another vehicle. The other driver was taken by ambulance to hospital.
104 The plaintiff’s evidence was that she did not attend a hospital but returned home feeling somewhat shaken. When she woke the following morning, her neck was stiff and painful and she attended a general practitioner suggested by Australia Post, Dr Ugwu at Occ West. She was prescribed Voltaren and physiotherapy.
105 I must consider the plaintiff’s injuries at the time of the trial. Accordingly, I place greater weight upon the more up-to-date medical evidence and in particular, I am more influenced by the views of Dr Stojkovski, the plaintiff’s current treating general practitioner, and Mr Brownbill, Dr Bloom and Mr Shannon, who all examined the plaintiff in 2012.
106 Most of the medical witnesses accepted that the plaintiff could not return to pre-injury employment because it involved manual handling of items. All other doctors imposed restrictions on her ability to return to the workforce. Mr Shannon said the plaintiff was not fit to work as a delivery driver, but did not consider any other form of employment. Dr Bloom imposed restrictions, and said the plaintiff could perform sedentary duties provided she could change posture frequently, but accepted that her ongoing symptoms and disabilities relating to her neck will remain a long-term barrier. Mr Brownbill said that the plaintiff will need to avoid activities involving heavy lifting, forced spinal mobility or holding her neck in a fixed position. He thought her ability to return to the workforce would be reduced.
107 The plaintiff said she has been unable to return to any form of employment. The evidence was that the plaintiff had a poor work history prior to the accident. The plaintiff’s evidence was that she had brought up five children, assisted her husband in his business and assisted her son and his partner in caring for their children, for which she received no payment. She also had worked on a casual basis for a caterer. She had obtained employment with Australia Post, a job which she enjoyed. She returned to that work after the accident and returned to full duties, but within a month she was performing light duties. By July 2009, she was put off all work by her general practitioner, largely for reasons of mental stress.
108 Given her age, lack of work experience, and presentation in Court I consider it unlikely that the plaintiff will obtain work in the future.
109 I accept the plaintiff is no longer able to perform unrestricted manual duties. I accept that this is a consequence to her that I can take into consideration; I am aware she ceased work with Australia Post largely as a consequence of her psychiatric injury, not her neck injury. However, the majority of doctors who examined her in relation to the neck injury agreed she could not engage in heavy manual labour and imposed restrictions on bending, lifting and twisting her neck. Given the plaintiff’s poor work history, I place less weight on her inability to perform unrestricted manual labour than for a person who had a good work history.
110 Counsel for the plaintiff did not address me on the consequences of the neck injury beyond the plaintiff suffering pain and that she can no longer engage in heavy lifting which has compromised her ability to work.
111 The plaintiff’s evidence was that she suffers constant but variable levels of neck pain and referred symptoms into her shoulders and arms. The plaintiff’s current treatment consists of consulting her general practitioner who prescribes Panadeine Forte, which she takes up to six tablets a day depending on her level of pain. The plaintiff said she limits her use of Panadeine Forte because it causes her to suffer constipation. She has been reluctant to take OxyContin, which has been recommended. Because of her stomach problems, she is unable to take anti-inflammatory medication.
112 Mr Rogers, neurosurgeon, said surgery could provide significant symptomatic relief; however, surgery was not recommended because the plaintiff takes blood thinning medication. Mr Brownbill said that it is unlikely surgical intervention will be indicated and Mr Shannon doubted surgery would be beneficial because of the plaintiff’s psychological problems. I consider that in all the circumstances the plaintiff will be unlikely to undergo surgery.
113 I accept that as a consequence of the plaintiff’s injury, she has received medical treatment and medication. Counsel for the defendant submitted that the plaintiff’s health and medical treatment after the transport accident continued to be dominated by the health complaints she suffered prior to the transport accident. I accept that the plaintiff’s incapacities from unrelated matters are to be considered by the Court as forming part of the matrix of the capacity or incapacity the plaintiff otherwise had. The evidence is that the plaintiff regularly seeks medical attention for health issues unrelated to the transport accident. However, in addition to the treatment she previously received, she is now prescribed analgesia medication and consults Dr Stojkovski about pain and restriction in her neck. These are matters that I can take into account.
114 The plaintiff said the pain restricts her activities. Whilst she still goes to the football, she is required to take additional medication to cope with the increased pain. She is restricted in her ability to undertake domestic work and her family now assists her with domestic duties such as lifting heavy pots, loading and unloading the dishwasher and hanging the washing out. She has five grandchildren, ranging in age from nine years to one year. She has difficulty picking up the younger grandchildren and engaging in their activities. If she lifts or engages in physical activity, she suffers increased neck, shoulder and arm pain.
115 The plaintiff’s evidence was that her sleep is disturbed by pain despite the use of Imovane prescribed to assist sleep. Her disturbed sleep patterns leave her feeling fatigued and lethargic. However, I note that there is evidence that the plaintiff suffered sleep disturbance prior to January 2007 and was being prescribed medication to assist her. Accordingly, I place less weight on her evidence as to sleep disturbance.
116 I accept the plaintiff has suffered the above-mentioned consequences. Those consequences are supported by the evidence of the plaintiff and her witnesses and the medical evidence.
117 I must consider the impairment of body function suffered by the particular plaintiff, but the test requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments. In addition, in assessing the consequences the significance of what has been lost must be informed, to an extent, by what has been retained.[25]
[25]Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at [44]
118 The plaintiff’s evidence was that she continues to drive, shop, and socialise at the local hotels. She also continues to engage in some gardening and housework. She entertains family at home and looks after her older grandchildren. The plaintiff continues to travel overseas, having accompanied her son to Thailand on a number of occasions and travelling to Vietnam for her birthday. She continues to attend football matches. I accept that the plaintiff is more restricted in these activities than prior to the transport accident and she suffers increased pain if she engages in physical activity.
119 Counsel for the plaintiff submitted that there have been secondary psychiatric issues arising from the transport accident that should be considered in accordance with Richards v Wylie.[26] However, the plaintiff failed to adequately distinguish the psychiatric consequences arising out of the neck injury from her general psychiatric condition. Consequently, I am unable to determine what, if any, psychiatric or psychological consequences can be considered as a consequence of the neck injury.
[26]Supra
120 The majority of the medical witnesses accepted that the plaintiff’s condition had stabilised. Dr Bloom said the plaintiff’s failure to rehabilitate was related primarily to motivational and psychosocial factors, rather than purely physical factors. He was the only medical witness to express this view. Given that the plaintiff’s symptoms have now persisted for almost seven years, in my view the injury is permanent.
121 Taking all of the evidence into account, I am persuaded, on the balance of probabilities, and in the light of the evidence as a whole, that the consequences to the plaintiff satisfy the test. I accept the plaintiff suffered an aggravation of pre existing degenerative change in her cervical spine as a result of the transport accident. I accept that that injury has had consequences to her, and I am satisfied that, when judged by comparison with other cases in the range of possible impairments, the consequences of the cervical spine injury can fairly be described as “more than significant or marked and as being at least very considerable”.
122 Accordingly, I grant leave to the plaintiff to bring proceedings for damages in relation to injuries suffered in the transport accident on 31 January 2007.
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