Delos v Transport Accident Commission
[2024] VCC 956
•28 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-05157
| LAKITA DELOS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 April 2024 | |
DATE OF JUDGMENT: | 28 June 2024 | |
CASE MAY BE CITED AS: | Delos v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 956 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury application – consequences and impairment as a result of injury to the plaintiff’s back – whether the consequences are “serious” under the Act – the plaintiff abandoned her claim for psychiatric/psychological injuries arising from the transport accident
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Richards & Anor v Wylie (2001) 1 VR 79, Humphries and Anor v Poljak [1992] 2 VR 129
Judgment: Application for leave to bring proceedings to recover damages arising from a transport accident which occurred on 29 February 2020 is granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin SC with Ms C Spitaleri | Margalit Injury Lawyers |
| For the Defendant | Mr D Masel SC with Mr S Pinkstone | Russell Kennedy Lawyers |
HIS HONOUR:
1The plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injury suffered by her arising out of the transport accident which occurred on 29 February 2020 (“the said date”).
2Section 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.”
3The definition of “serious injury” relied upon by the plaintiff is under s93(17)(a), and states:
“(a) serious long-term impairment or loss of a body function;”
4In this application, the plaintiff seeks a serious injury certificate from the Court for the loss of a body function arising from an injury to her back resulting in pain, loss of career or occupation as a childcare worker and reduced capacity to engage in employment and recreational activities.
5The enquiry under s93(17)(a) of the Act, 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.
6The serious injury definition under s93(17)(a) can have its seriousness measured, in part, by a mental response to a physical impairment. What it will not recognise is that the mental disorder can itself constitute or be the producer of the impairment of a body function.[1]
[1]Richards & Anor v Wylie (2001) 1 VR 79
7At the commencement of this proceeding, Mr Tobin SC, on behalf of the plaintiff, abandoned the claim under ss(17)(c), being a psychiatric/psychological disorder arising from the transport accident. However, the plaintiff maintained some reliance upon a psychological response to the alleged physical impairment to her lower back.
8In forming a judgment as to whether the consequences and the injury are serious, the question to be asked is:
“… can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.”[2]
[2]Humphries and Anor v Poljak [1992] 2 VR 129
9In this application, the plaintiff swore and relied upon two affidavits, dated 21 December 2022 and 27 March 2024. The plaintiff was the only witness to give evidence in this case. She was cross-examined by Mr Masel SC, for the defendant.
10The plaintiff relied upon an affidavit of her sister, Jayde Dunnett, sworn on 23 April 2024, and an affidavit of her employer, Ivana Jutrisa, sworn on 24 April 2024. The defendant did not require either of those deponents to be cross-examined in this application.
11In addition to the sworn affidavits and sworn evidence of the plaintiff in this case, both parties relied on medical reports and other medical material tendered during the course of the proceeding. I have read all of the tendered material and will refer to the material that is relevant to the determination of this application in these reasons.
12The plaintiff tendered the following documents in support of her application:
· Plaintiff’s Court Book (“PCB”) pages 6 to 81.
13The defendant tendered the following documentation:
· Exhibit 1 – the Amended Defendant’s Court Book (“DCB”) pages 5 to 37, 56 to 63 and 76 to 96.
· Exhibit 2 ꟷ DVID surveillance film of the plaintiff at her place of employment on 14 March 2024.
Issues identified by the parties
14Mr Tobin SC, on behalf of the plaintiff, identified that the injury relied upon in this application was a back injury to the plaintiff as a result of the transport accident. The plaintiff identifies the consequences of the back injury as being pain, loss of flexibility for her employment, loss of opportunity to engage in a childcare career, and reduction in sporting and recreational activities.
15Mr Masel SC, on behalf of the defendant, stated that the issues in this application were:
(a) causation – the transport accident does not now result in the injury to the plaintiff’s back. The plaintiff had a previous back condition;
(b) the plaintiff’s symptoms and consequences are psychologically driven;
(c) the plaintiff has not demonstrated a loss of ability to engage in employment as a result of the transport accident;
(d) the credit of the plaintiff.
The Plaintiff’s background
16The plaintiff was born in 2001. At the time of the hearing, the plaintiff was twenty-three years of age. At the time of the transport accident, the plaintiff was nineteen years of age.
17The plaintiff lives with her mother, stepfather and brother.[3]
[3]PCB 6
18In 2019, the plaintiff completed VCAL at Gladstone Park Secondary College. After finishing school, she obtained a gaming licence and a responsible service of alcohol certificate.
19In August 2019, the plaintiff commenced work in the bistro/gaming area of the Fawkner RSL Club. At that time, she was working approximately twenty to thirty hours a week on a casual basis.[4]
[4]PCB 6
20The plaintiff was engaged in netball on a recreational basis and played approximately five games per week. These games would be played over a period of two days.[5] The plaintiff enjoyed socialising with her friends and going to nightclubs and other social events.
[5]PCB 7
21In the period of 2014 until approximately 2017, the plaintiff had experienced anxiety and was treated by way of counselling sessions at Headspace.[6]
[6]PCB 7
22The plaintiff’s medical records indicated she had attended her general practitioner in 2012, 2014, 2017 and most recently on 15 August 2019, complaining of back pain. These attendances on her general practitioner were prior to the transport accident.
23On 15 August 2019, the plaintiff attended upon her general practitioner, Dr Dilpreet Saini, complaining of sore feet and chronic back pain. The plaintiff gave a history to the general practitioner of five to six months of dull lower-right back pain. The plaintiff was referred to physiotherapy and given analgesia to assist with the pain symptoms. There was no other ongoing treatment.[7]
[7]DCB 88
24I note the plaintiff attended upon the same general practitioner on 21 September 2019 and no mention was made of the ongoing back pain. In the course of her evidence, the plaintiff stated she had no time off work during this period.[8] The plaintiff also gave evidence that despite complaints of pain to her feet and back, she continued to play netball in that period.[9]
[8]Transcript (“T”) 24-25
[9]T13
25The plaintiff deposed, in her first affidavit and confirmed in her evidence, that due to her large breasts, she sometimes suffered back pain. She was awaiting breast-reduction surgery to ameliorate that aspect of her complaint.[10]
[10]PCB 7
26The plaintiff had worked at the Fawkner RSL and followed that employment with employment at the Watergardens Hotel, doing casual work for thirty hours per week in the bistro and gaming room. The plaintiff remained in employment at the Watergardens Hotel for approximately three months, then left, as the work environment did not suit her.[11]
[11]PCB 9
27In August 2022, the plaintiff commenced employment in the bistro and gaming room at the Kealba Hotel. At the time of the hearing, the plaintiff was still employed in that capacity. The plaintiff’s employment was on a casual basis and her work hours could be between twenty and forty hours per week.[12]
[12]PCB 9
28The plaintiff’s supervisor, Ms Jutrisa, in her affidavit dated 24 April 2024, stated she was aware of the lower back injury to the plaintiff as a result of the transport accident. In her affidavit, she stated she had adjusted the plaintiff’s duties to accommodate her back condition. Ms Jutrisa also stated she placed the plaintiff on the morning rosters and early-afternoon shifts, as they were the easier and lighter shifts.[13]
[13]PCB 22
29In her affidavit dated 27 March 2024, the plaintiff set out how, in 2019, she had commenced a childcare course as part of her VCAL education. She ceased that part of the course when her grandmother became ill. The plaintiff’s plan was to resume the course in order to become a childcare worker in the future. She stated that she was unable to pursue that line of work, as she was unable to do the necessary bending, lifting and squatting due to her back pain.[14]
[14]PCB 14
30In her evidence, the plaintiff stated she was now playing one game of netball per week, rather than the four to five games per week she played prior to the transport accident.[15] The plaintiff stated that she would remain in the hospitality industry because she cannot do the childcare work due to the symptoms she suffers as a result of her back injury from the transport accident.[16]
[15]T9
[16]T8
31The plaintiff’s sister, Jayde Dunnett, confirmed in her affidavit that the plaintiff had advised her of her aspirations to have a career in childcare. She also confirmed the plaintiff played four to five games of netball per week prior to the transport accident.[17]
[17]T18
The transport accident involving the Plaintiff
32The plaintiff, in her affidavit dated 21 December 2022, set out the circumstances of the transport accident as follows:
“On 29 February 2020 at about 10pm I was a passenger in a car being driven by my mother. My mother was driving the car along Sydney Road, Fawkner when the car collided into a large rock and/or object on the road. This caused the car to crash into a pole.
Immediately after the accident I was in shock and I was concerned about my mother but while I was in the ambulance I began to feel pain in my lower back. I was taken to [T]he Alfred Hospital where I was an inpatient for two days. While I was at the Alfred Hospital I underwent a number of radiological investigations and I was told that I had a fracture at L1 and a fractured sacrum.”[18]
[18]PCB 8
33The medical note from The Alfred hospital referred to a fractured sacrum. The radiological investigations conducted on the plaintiff do not confirm the diagnosis of a fractured sacrum.
The medical treatment received by the Plaintiff for the injury to her back as a result of the transport accident
34The plaintiff was taken from the scene of the transport accident by ambulance to The Alfred hospital. In the early hours of 1 March 2020, a CT scan of the plaintiff’s pelvis and lumbar spine were performed. The results of the radiological examination were as follows:
“Minimally depressed superior end-plate fracture of L1 vertebral body.
No traumatic intra-abdominal injury.”[19]
[19]PCB 75
35On 2 March 2020, the plaintiff underwent an x-ray of the lumbosacral spine. The findings of that examination were as follows:
“L1 superior end-plate fracture with up to 10% loss of anterior column height. No interval height loss. Unchanged alignment.”[20]
[20]PCB 77
36The plaintiff remained as an inpatient of The Alfred hospital for two days.[21]
[21]PCB 25
37The plaintiff remained as an outpatient at The Alfred hospital and attended on a number of occasions, including 17 March 2020, 14 June 2020 and 10 May 2022.
38In the most recent CT scan of the plaintiff’s lumbar spine conducted on 13 May 2022, the following conclusion was made:
“Degenerative changes are seen but there is no definite nerve root impingement.”[22]
[22]PCB 79
39The plaintiff attended her general practitioner at the Gladstone Park Superclinic in March 2020.[23] The plaintiff has continually attended upon her general practitioner for health problems.
[23]PCB 8
40In June 2020 to February 2021, the plaintiff attended a rehabilitation program at the Dorset Rehabilitation Centre. The program involved an attendance once per week by the plaintiff, including treatment by a physiotherapist, psychologist and an occupational therapist.[24]
[24]PCB 8
41The plaintiff was ultimately discharged from the Dorset Rehabilitation Centre in April 2021. The report from the Dorset Rehabilitation Centre stated as follows:
“… [The plaintiff] was reviewed 3 times in 2021 to monitor her progress. At the time of our final appointment, she had successfully returned to work and had built up to pre-accident work hours and duties. She was playing netball weekly with no limitations and was happy with her level of function. She has been encouraged to continue with her self-managed exercise program to continue to build on the gains she has made to date.”[25]
[25]PCB 29
Mr Douglas Gardiner, orthopaedic surgeon
42The plaintiff attended upon Mr Gardiner for a joint medical examination on behalf of the Transport Accident Commission and the plaintiff’s then solicitors. A report dated 10 May 2021 was prepared. Mr Gardiner noted the lower back pain was still present at a mild-to-moderate degree, increasing with bending, lifting, twisting and other physically-demanding activities.[26] Mr Gardiner diagnosed the plaintiff as suffering from a minimally-displaced compression fracture of the L1 vertebral body without structural soft-tissue injury or evidence or neurological compromise.[27]
[26]PCB 36
[27]PCB 38
43Mr Gardiner noted the plaintiff may expect to experience a mild degree of lumbosacral discomfort for an indeterminate period, but otherwise her prognosis is such that she is unlikely to experience significant deterioration in her current satisfactory state. He noted that the plaintiff’s spinal injury may have a mild-to-moderate effect on her capacity for work if she is required to perform vigorous bending, twisting or lifting activities.[28]
[28]PCB 40
Ms Azra Kamberovic, psychologist
44The plaintiff was examined by Ms Kamberovic, psychologist. A report dated 25 April 2023 notes that the plaintiff was provisionally diagnosed with an Adjustment Disorder with anxiety in the context of her accident/injury.
Professor Paul D’Urso, neurosurgeon
45The plaintiff was examined by Professor D’Urso on behalf of the plaintiff’s solicitors. His report is dated 18 March 2024. In his report, Professor D’Urso stated as follows:
“It would appear that … [the plaintiff] sustained soft tissue injuries due to the seatbelt restraint affecting the left shoulder, chest and abdominal region. … [The plaintiff] would also appear to have sustained an L1 compression fracture of approximately 15% height loss. … [The plaintiff] would also appear to have sustained a C6-7 disc prolapse with left sided foraminal stenosis.”[29]
[29]PCB 72
46In Professor D’Urso’s opinion, the accident was a direct cause of the L1 compression fracture and seatbelt bruising to the plaintiff. Professor D’Urso was not convinced the C6-7 disc prolapse was as a result of the motor accident.
47In Professor D’Urso’s opinion, the prognosis of the condition for the plaintiff should be satisfactory. He noted the plaintiff would be prone to risk of degenerative change at T12-L1 intervertebral disc level as a result of the fracture she sustained in the transport accident. He noted that a degenerative progression can be difficult to determine and predict.[30]
[30]PCB 73
Dr Joseph Slesenger, occupational physician
48Dr Slesenger examined the plaintiff on behalf of the Transport Accident Commission. He prepared a report dated 17 April 2023. Dr Slesenger took a history from the plaintiff that she had residual lower back pain that was mild to moderate, intermittent, and centred in the lower back without any radiating symptoms. He noted the plaintiff took Nurofen and Panadol and, on occasion, Panadeine Forte, to deal with her pain symptoms.
49Dr Slesenger noted, on examination, that in respect of the plaintiff’s lumbar spine, there was mild tenderness to the lower lumbar spine and the paraspinal musculature upon palpation.[31]
[31]DCB 14
50Dr Slesenger’s diagnosis was that the plaintiff had suffered the following injuries in respect of her lumbar spine.
“· Minimally displaced crush fracture.
·Sacral f[r]acture.
·Chronic lower back pain.”[32]
[32]DCB 20
51Dr Slesenger took a history from the plaintiff that she had, prior to the transport accident, attended physiotherapy treatment for her back problems. He noted that the plaintiff was awaiting breast-reduction surgery at the Northern Hospital.
52Dr Slesenger was satisfied that there was a component of the plaintiff’s lumbar spine impairment that relates to her motor vehicle accident, which was under consideration, and estimated that to be 50 per cent of her current lumbar spine symptoms.[33] Dr Slesenger was satisfied that the plaintiff had the capacity to work with restrictions as follows:
“● No push, pull, carry or lift over 15 kg on an occasional basis and 10 kg on a repetitive basis.
● Avoid exposure to whole body vibration.”[34]
[33]DCB 21
[34]DCB 21
53In Dr Slesenger’s opinion, these restrictions relate to the motor vehicle accident under consideration.[35]
[35]DCB 21
54It is clear from Dr Slesenger’s report that he accepts the plaintiff’s lower back injury is related to the motor vehicle accident and he attributes the restrictions in work to that motor vehicle accident.
Dr Mary Wyatt, occupational physician
55Dr Wyatt examined the plaintiff on behalf of the solicitors for the Transport Accident Commission. She prepared a report dated 25 January 2024. Dr Wyatt noted there was tenderness generally through the lumbar spine when she examined the plaintiff. In Dr Wyatt’s opinion, the plaintiff suffers from chronic lower back pain without radiculopathy, and stated:
“… The motor vehicle accident in February 2020 was the cause of her condition and I consider remains a material contributing factor.”[36]
[36]DCB 29
56Dr Wyatt noted the plaintiff does have a minor incapacity for work. Dr Wyatt was aware the plaintiff was working full time at the Kealba Hotel, but reported it was not particularly demanding work on her back. In Dr Wyatt’s opinion, she thought the plaintiff had a minor incapacity and would have difficulty if she wanted to take on a job that was significantly more demanding.
Dr Armin Drnda, neurosurgeon
57Dr Drnda examined the plaintiff for the solicitors for the Transport Accident Commission. He prepared a report dated 22 February 2024. Dr Drnda noted that the plaintiff had an endplate fracture to L1. He also stated that, in the hospital notes, there was mention of a sacral fracture; however, this was not confirmed in the official reports by radiologists. Dr Drnda took a history from the plaintiff as follows:
“… [The plaintiff] complained of intermittent back pain, which she pointed to be above the left iliac crest. Three to four times a week, she has a flare-up triggered by more strenuous activity, like playing netball, and her pain is then 4/10. Otherwise, she has no pain or pain is up to 2/10.
On today's presentation, … [the plaintiff] did not have any pain. There were no other complaints.”[37]
[37]DCB 33
58In her evidence, the plaintiff stated that she did not tell Dr Drnda the pain was intermittent, and she had never mentioned the pain levels were 4 out of 10.[38]
[38]T15
59Dr Drnda stated his opinion as follows:
“In my opinion, … [the plaintiff] does not have any current physical condition related to the accident on 29 February 2020. In other words, the accident on 29 February 2020 does not materially contribute to her current condition. The accident caused a mild stable L1 fracture, which has healed, and residual wedging does not have any clinical significance.”[39]
[39]DCB 36
60Dr Drnda’s opinion is different, and he is properly described as an outlier, in respect of the other medical practitioners who have examined and reported upon the plaintiff’s condition. Given that the plaintiff disputes telling Dr Drnda that her pain was intermittent and the worst of it was 4 out of 10, I do not accept Dr Drnda’s opinion is to be followed in the assessment of the plaintiff’s condition in this case.
61Each of the other medical examiners accept that the plaintiff’s lower back condition is a result of, and has been caused by, the injuries she received in the transport accident on 29 February 2020. I accept that to be the case.
Consequences of the lower back injury to the Plaintiff
62The plaintiff claims to have suffered a number of consequences as a result of the injury to her lower back in the transport accident on 29 February 2020.
Pain
63The plaintiff initially suffered pain at the time of the accident and was prescribed Endone upon release from hospital. She continues to use Nurofen and Panadol to manage her pain levels. On occasion, she will borrow Panadeine Forte from her mother to give her greater assistance in dealing with her pain levels.[40]
[40]T23
64I accept that the plaintiff does suffer from pain on a regular and consistent basis and that she is attending to it by the use of medication and her exercise program. I accept that the experience of pain for the plaintiff is a “very considerable” consequence for her.
Sporting activities
65The plaintiff gave clear evidence that she played four to five games of netball per week prior to the transport accident.[41] She also gave evidence that she loved her netball.[42] The plaintiff, now, can only play one game per week. I accept that for a person who enjoyed her sport, in particular netball, to such a degree that she can now only partake in it in a very limited sense, is a “very considerable” consequence for her. I note, here, that the plaintiff consistently tries to do as much as she can and has not just taken the course of “giving up”.
[41]T9
[42]T9
Work
66The plaintiff continues to be employed on a casual basis up to full-time hours. As was pointed out in cross-examination, her income from 2020 to 2023 has more than doubled.[43] The plaintiff stated in her evidence that she enjoyed her work in the hospitality industry in the bar and gaming rooms at the Kealba Hotel.
[43]T7-8
67In the course of the proceeding, the plaintiff was shown video-surveillance film of her at her place of employment. Unusually, the surveillance film confirmed that the plaintiff did in fact enjoy her work, as can be seen by her interaction with customers. It also confirmed her credibility, as she had given evidence that she could do all of the tasks she was filmed doing. There was not one item of activity performed by the plaintiff that was contrary to her evidence, either in her affidavits, her histories to the doctors, or evidence in court. I accept that the plaintiff was an honest and accurate witness.
Recreational and social activities
68The plaintiff gave evidence she has withdrawn from her social activities due to her back pain issues. She also stated she had withdrawn due to psychological aspects of the accident. In this application for serious injury, the plaintiff was not proceeding with her claim of psychological and psychiatric complaints; however, the fact that a combination of the psychological matters arising from the pain to her lower back have caused her to withdraw from her usual social and recreational activity, is significant. In particular, it is clear the plaintiff has reduced, significantly, the amount of netball she plays.
Career
69The plaintiff is, and was, a very young woman when she was involved in the transport accident. At the time of the transport accident, she had ceased her childcare studies due to her grandmother’s illness; however, I accept the plaintiff had every intention of returning to her studies for childcare and engaging in a career of childcare. The physical restrictions now applicable to the plaintiff preclude her from pursuing a childcare career and she has lost that at a very young age. I find that this is a “very considerable” consequence for the plaintiff.
70Finally, all of these consequences are ongoing and for the foreseeable future. The plaintiff was very young when this transport accident occurred and she has a very long life in front of her where these consequences are to be endured by her.
Conclusion
71I grant leave to the plaintiff to institute proceedings to recover damages as a result of a transport accident which occurred on 29 February 2020.
72I shall hear the parties on costs.
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