Demmler v Transport Accident Commission

[2018] VCC 626

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-17-02498

SAMANTHA DEMMLER	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

---

JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	26 February 2018
DATE OF JUDGMENT:	10 May 2018
CASE MAY BE CITED AS:	Demmler v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2018] VCC 626

REASONS FOR JUDGMENT
---

Subject:  TRANSPORT ACCIDENT

Catchwords:             Serious injury – paragraph (a) of the definition of “serious injury” – serious long-term impairment or loss of a body function, being the spine.

Legislation Cited:     Transport Accident Act 1986, s93

Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Dwyer v Calco Timbers Pty Ltd(No 2) [2008] VSCA 260; Stijepic v One Force Group Pty Ltd & Anor [2009] VSCA 181; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12

Judgment:                Application is dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Valiotis with Ms K Kusiak	Slater & Gordon Ltd
For the Defendant	Mr G Lewis with Ms G Cooper	Solicitor for the Transport Accident Commission

HIS HONOUR:

Introduction

1       Samantha Demmler seeks permission to start a proceeding for damages for an injury arising out of a transport accident.  Her damages are confined to pain and suffering.  The application is made under the Transport Accident Act 1986 (“the Act”).

Circumstances

2       Ms Demmler is now twenty-five.  After completing Year 12, she worked as a receptionist with a real estate agent for six months, another six months with Victoria Police as a filing clerk and three-and-a-half years in residential leasing with another real estate agent.  She was working in this last position when she was involved in the transport accident.

2014

3       On 19 July, Ms Demmler was injured in a car accident.  She gave this description:

“… I was a front seat passenger in a car travelling in Salmon Street, Port Melbourne and being driven by my former boyfriend’s brother Gabriel Papasergi. I was wearing a seat belt and looking down at my mobile phone selecting music on the phone.  The next thing I knew was the car was going sideways and then it hit a tree and my head smacked against the pillar of the car next to my seat.  I put my hand up to my head and felt blood.”

4       Friends took Ms Demmler to The Alfred hospital where she was examined.  There was a point of tenderness in her neck.  Her head wound was cleaned.  She was given a Philadelphia collar and medicines for pain and inflammation.  She wore the collar for more than two weeks.  A CT scan of her cervical spine showed no abnormality.  She was discharged the same day.  The next day, an MRI scan showed a congenital fusion of C3 and C4 and minor disc desiccation and bulging at C4-5.[1]  Although not recorded, Ms Demmler remembers having a back scan at the hospital.

[1]PCB 21

5       Ms Demmler was absent from work for a week.  She returned to the hospital on 31 July.  She complained of neck pain and paraesthesia in both hands.  She was discharged after examination with advice about future treatment.

6       In September, Ms Demmler left one real estate agent to work with another.  She was in leasing and business development.  She met prospective tenants and made inspections of rental properties.  She did not take time off work but “it was a struggle throughout the day”.[2]

[2]Transcript (“T”) 12

7       On 25 September, Ms Peeters, a physiotherapist, started treating Ms Demmler, and shortly afterwards her colleague, Mr Cameron Steptoe, took over.  He last saw her in January 2015 when she “re-aggravated the cervical radicular pain” in her left arm.  With treatment, these symptoms improved, but further treatment did not occur.  Mr Steptoe recommended the wearing of flat shoes and limiting heavy exercise at the gym.

8       Ms Demmler stopped her physiotherapy and went to an osteopath, Dr Danny Williams.  He treated her to reduce her pain and increase her mobility.  I do not know how many times he saw her, or when he last saw her.  By September 2015, he had not seen her for some time “as her work is very busy and she has not had time for treatment”.[3] His prognosis was good “if she goes through the correct rehabilitation”,[4] and her capacity to work in the future was also good.

[3]Report dated 2 September 2015, PCB 22-24

[4]PCB 24

2014

9       On 22 July, Dr Michael O’Gorman, general practitioner, started treating Ms Demmler.  Between then and 11 October 2016, he saw her fourteen times.[5]  Initially he prescribed Mobic and Panadeine Forte and certified her unfit for work for a week.  In the ensuring appointments she largely complained of continuing low back pain.  He referred her for treatment by a psychologist, osteopath and physiotherapist.  By September 2015, he saw future treatment consisting of episodic physiotherapy, anti-inflammatory therapy and “simple” analgesics.

[5]22 July, 29 July, 4 August, 17 September, 29 September and 7 October 2014, 21 January, 2 February, 12 March, 30 March, 8 April and 11 November 2015 and 24 May and 11 October 2016

10      On 25 September, Ms Demmler went to the Back in Motion Health Group for physiotherapy treatment and continued until January 2015.[6]  At the start, treatment focused on the thoracic spine.  As this area got better, the treatment focused on the low back, and then the neck and left arm.  In January 2015, the arm pain recurred, and was treated and improved without completely healing.  Despite a recommendation to wear flat shoes, she did not because of her work.  Also, because of her job, Ms Demmler could not find the time to attend appointments.  Consequently, her work aggravated the pain in her back, which went untreated.

[6]PCB 31-32

11      The main physiotherapist, Mr Steptoe, recommended a clinical Pilates program to improve motor control and strength to prevent a recurrence of her back and neck pain, and lifting weights at the gym could do that.

2015

12      On 28 January, MRI scans revealed, according to the radiologist:

“Essentially normal MRI examination of the lumbar spine and sacroiliac joints although there is a tiny posterior annular fissure at L5/S1.  No neural compressive disc herniation.  No central canal, lateral recess or neural exit foraminal stenosis.  No facet arthropathy.  Normal sacroiliac joints.”[7]

[7]PCB 92

13      On 12 March, Ms Demmler told Dr O’Gorman that her back was good.  Eighteen days later, she saw him again, complaining of a flare-up of her back pain.  He prescribed the anti-inflammatory medicine, Mobic.

14      On 8 April, Ms Demmler told Dr O’Gorman of continuing low back pain for which she takes an anti-inflammatory medicine, presumably Mobic.

15      In May, Ms Demmler left the employ of the real estate agent and joined Crown VIP.  She described her duties in a Facebook entry.[8]  She still works there.  Both this job and that with Hocking Stuart required long periods on her feet.  However, in her current job she wears high heels.  She walks from her flat to the South Yarra Railway Station in high heels.  She may stand in the train while travelling and then walk to work from the station.

[8]Defendant’s Court Book (“DCB”) 34

16      On 2 December, Mr Paul Kierce, orthopaedic surgeon, examined Ms Demmler at her solicitors’ request.[9]  Upon examination, he noted some muscle spasm in areas above the cervical spine and some restricted movements.  There was more limitation of movement in the lumbar spine.  The existence of a protrusion of the C4-5 disc led to the conclusion of either an aggravation of existing spondylosis causing the protrusion, or a new injury, being the protrusion.  He looked at the films of MRI scans of the cervical spine.  He disagreed with the radiologist’s description of the protrusion as “old”, feeling it could have been due to the accident.

[9]PCB 37-51

17      Somehow Mr Kierce knew of an annular tear at L5-S1 and wanted to see the result of MRI scans.  He suspected there was an acceleration of the degenerative L5-S1 disc caused by the accident.  He noted that standing in high heels in her job as a VIP host tended to aggravate Ms Demmler’s neck and back. 

18      Despite wanting to see the scans, Mr Kierce believed it was likely Ms Demmler would suffer some intermittent pain and limitation in the cervical and lumbar spines.

19      In February 2016, Mr Kierce wrote another report.[10]  He saw the MRI scans taken on 28 January.  He saw a degenerate L5-S1 disc with a small annular tear.  To him, this was confirmation of an injury to that disc in the accident.

[10]Report dated 8 February 2016, PCB 52

2016

20      In about May, Ms Demmler started working at Crown Casino as a VIP host in its Mahogany Room.  She worked shifts of between eight and thirteen hours. She is still employed in that job.  She is required to wear high heels while working.  The shifts are long and the wearing of high heels places great strain on her spine.[11]

[11]Plaintiff’s affidavit sworn 18 May 2016 at paragraph [14], PCB 9

21      On 24 May, Ms Demmler saw Dr O’Gorman about recent pain in her right occipital area, neck and right shoulder.  He re-referred her to a physiotherapist and osteopath to deal with the recurrent flare-ups of her symptoms.

22      Before the accident, Ms Demmler was very fit.  She visited a gym six times a week.  No longer does she visit the gym.  She rode horses, but no longer.  She danced, but, again, no longer, and she also performed kickboxing but, again, no longer.  She can stand or sit less than before.  The longer she stands at work, the more painful her back becomes.

2017

23      Ms Demmler re-attended the Back in Motion Health Group on 3 January 2017.[12]  She stopped attending on 6 April 2017.  She told the physiotherapist of gradually increasing low back and neck pain.  Despite the relief given by treatment, she continued to aggravate her condition through work.  Again, a clinical Pilate’s program was recommended.  It would increase strength and motor control, enabling her to tolerate the prolonged standing positions at work.  It would also give postural retraining and endurance, which would help to prevent recurring of neck and back pain.

[12]PCB 33-35

24      Since 21 August, Ms Demmler has seen a practitioner, Ms Nadia Gazzi.[13]  She treats Ms Demmler with acupuncture and massage and recommends weekly treatment “to alleviate the tension in her muscles, whilst freeing energy flow to assist in the reduction of both pain and tension”.[14]

[13]PCB 36

[14]PCB 36

25      On 11 September, Mr Arshad Barmare, orthopaedic surgeon, examined her at the request of the defendant.[15]  He diagnosed bilateral trapezius fascilitis with an element of fibromyalgia.  Earlier in his report, he spoke of a Chronic Pain Syndrome.  Perhaps fibromyalgia was a more precise description of the Syndrome.  I cannot tell.  In referring to the trapezius muscle, Mr Barmare seems to have ignored the lumbar spine, unless his reference to it is contained in the diagnosis of fibromyalgia.

[15]PCB 84-91

26      On 12 September 2017, Dr O’Gorman wrote to Ms Demmler’s solicitors.  He thought her prognosis was good.  This was his view in September 2015:[16]

“Her injury was uncomplicated and investigations were reassuringly satisfactory.  Soft tissue injuries can sometimes be prone to continued episodic aggravations which appears to be the case for Miss Demmler, they can be managed with simple analgesia, massage, and perhaps short duration episodic anti-inflammatories.”

[16]Report dated 12 September 2017, PCB 29

27      Dr O’Gorman was aware of The Alfred hospital scans and x-rays, and later MRI scans to the cervical and lumbar spines.  He saw the future need of episodic physiotherapy, anti-inflammatory medicine and simple analgesics.  He diagnosed a soft tissue injury to the supports of the cervical spine, a laceration to the scalp, musculoligamentous injury to the low back, pain and anxiety.  He did not see any link between the old desiccated disc bulge at C4-5 and her symptoms after the accident.  There was no current incapacity for work and he expected none in the future.

28      On 27 September 2017, Ms Demmler saw another physiotherapist, Ms Teena Lord, and saw her weekly until at least 25 November.[17]  The treatment reduced the neck pain to minimal, reduced her right-sided low back pain, and “nerve” pain subsided.  However, left-sided pain in the areas of the thoracic and lumbar spines persisted.  Ms Lord saw the need for a lifelong maintenance program, noting Ms Demmler’s long hours.

[17]PCB 36a-36f

29      On 6 October, Mr Russell Miller, orthopaedic surgeon, examined Ms Demmler at her solicitors’ request.[18]  He was asked to provide an impairment assessment.  He measured the range of motion for all movements in the cervical and lumbar spines.  There was a marked reduction in each, and Mr Miller assessed the percentage whole person impairment for these two parts of the spine.  For both the cervical and lumbar spines, he noted only moderate responses to conservative treatment, with the prognosis being only fair.

[18]PCB 76-83

30      For the cervical spine, Mr Miller diagnosed a musculoligamentous strain, aggravation of degenerative disease and an injury to the C4-5 disc.  There was radiation of pain into the left arm, but no radiculopathy or neurological deficit.  For the lumbar spine, there was the same strain, same aggravation, and disc injury at L5-S1 with radiation into the right leg.  Again, there was no radiculopathy or neurological deficit.

31      Mr Matthew Tagkalidis is a psychiatrist.  On 19 October, he saw Ms Demmler at her solicitor’s request.  He had seen her before in 2015.  She told him of frustration due to constant pain in her neck and the physical limitations it causes.  The pain in her mid-back is intermittent, while the low back is constant.  For each area of the back, the pain worsens with exertion.  She is usually happy.  Occasionally she is anxious when driving.  Her hypervigilance while driving has “largely” settled, while her nightmares ceased about eighteen months earlier.  She is a little more prone to being startled than she was before the accident.  She has good energy levels, but fatigues more easily; very good motivation, drive and libido; good concentration; minimal forgetfulness, and is very good at multitasking at work.  She has a good sense of enthusiasm and enjoyment and a good general interest in life.  Her confidence and self-worth are unaltered.  Her sleep is interrupted by pain.  She can do, unaided, all of the personal activities of daily living.  She shares the household chores with her sister.  She drives “unencumbered” and uses public transport.

32      Based on these and other matters, Mr Tagkalidis found no current abnormal psychological or psychiatric condition.

Other witnesses

33      Ms Caitlin Bird supervises Ms Demmler at Crown VIP.  She has worked with her since Ms Demmler started and has supervised her for the last six months.  Ms Demmler told Ms Bird of her back injury in 2015:  Her back was hurting after being on her feet for a couple of hours in high heels.  Normally, Ms Demmler has an “office based job”, working Monday to Friday.  However, there are events organised during certain parts of the year.  Staff are on twenty-four-hour call:[19]

“Events for VIPs are organized daily during a particular season, such as the racing season and that means staff would go to Crown or to a racing marquee or another event and spend hours there hosting an event. … .”[20]

[19]Plaintiff’s affidavit sworn 24 November 2017 at paragraph [5], PCB 15

[20]Plaintiff’s affidavit sworn 24 November 2017 at paragraph [5], PCB 15

34      Ms Demmler asks for breaks and these are given.  She will sit or lie down.  Ms Bird has seen her get up from a chair during a break, go for a walk, do stretching exercises and sometimes lie down.  Occasionally she takes Panadol at work.  Ms Demmler has told Ms Bird on many occasions her back is causing her a lot of pain, but she hides this from their customers.

35      Ms Ellisha Harris is a longstanding friend of Ms Demmler, sharing with her an equally longstanding interest in riding and training horses.  They lived together for a year in 2015 and 2016.  She saw Ms Demmler come home completely spent and in pain.  Ms Demmler moved to residences in South Yarra to be closer to the city and to avoid driving distances.  Since the accident, horse riding ceased.  Ms Demmler has put on weight, which upsets her.  She is determined, and puts on a brave face, despite being in pain.

Current situation

36      Ms Demmler suffers from back and neck pain, with changing severity, together with thoracic pain.  In 2017, she thought the neck was the worst, followed by the lumbar, and then thoracic spines.  When the pain increases, she feels pain in her right leg down to her mid-thigh.  In February 2018, she felt her back pain had become worse.  Both were painful.  The worsening of the back over the 2017-2018 summer led her to think she was in a “vicious circle”, with one feeling better and the other becoming worse.[21]

[21]Plaintiff’s affidavit sworn 23 February 2018 at paragraph [3], PCB 13b

Treatment

37      Ms Demmler attends Pilates, physiotherapy and acupuncture weekly.  When the pain is severe, she receives chiropractic treatment.

Work

38      Ms Demmler still works in the Mahogany Room at Crown Casino.  She works a thirty-eight-hour week:

“… but the nature of my job is such that I am on-call to attend the needs of a large group of patrons or any difficulties which might crop up in the Mahogany Room.”[22]

[22]Plaintiff’s affidavit sworn on 20 November 2017 at paragraph [5], PCB 12

39      Ms Demmler must wear high heels, which strains her back, so that by the end of a shift her spinal pain has increased.  Usually she walks to and from work in heels.  Despite the physiotherapist (Mr Steptoe) recommended wearing flat heels at work, she does not, feeling she has no choice.

40      Between December 2017 and January 2018, Ms Demmler worked without taking leave.  Despite the worsening of her pain, she worked on because she loves her job and working kept her mind off her struggle with pain.

Domestic

41      Ms Demmler lives with her sister in a flat.  She does most of the shopping, while her sister helps with the domestic tasks.  Some domestic tasks she cannot do; carrying groceries from the supermarket, bending down to pick something from the floor or lifting a heavy item from a high shelf (for example a microwave, or box with a few books).  She can vacuum, but cannot scrub the bathroom or mop.

Sporting

42      Ms Demmler no longer goes to the gym, rides horses, dances or kick-boxes.  She did boxing and kickboxing weekly before the accident.  Her physiotherapist and chiropractor recommend against both.  At the gym, she would lift significant weights, up to 75 kilograms.  She does not swim because no one has suggested it.  She can swim, but is not fond of it.  Her physiotherapist suggested Pilates.  She has not raised swimming.  She tried dance choreography unsuccessfully.  She walks briskly for exercise.  She has done ten-pin bowling once in the last five years.  Riding is something she grew up with.  She finds it “devastating” not to do it.

43      Although Ms Demmler feels unable to sit or stand for as long as before the accident, she does spend a lot of time on her feet, particularly in high heels, but stated, “I pay for it later in terms of increased pain”.[23]  On her days off work, she tries to wear flat shoes.  She went to a hip/hop class in January 2018.  Although finishing the class, she has not returned because the dance movements were too painful.

[23]Plaintiff’s affidavit sworn on 20 November 2017 at paragraph [7], PCB 13

44      Ms Demmler attends social events, dancing at some.  She goes out clubbing less frequently.

45      As with many people of her age, Ms Demmler has a Facebook profile.  She uses it for two purposes: her work and her social life.  The death of her mother three years ago at the young age of fifty-one has left her with the determination not to lie around moping, but to remain active despite the pain.

46      Ms Demmler released her fourth musical single on a digital platform.  Her inability to dance means promoting her music is very difficult, commenting, “I cannot stand apart from the others”.[24]  The state of her back did not allow her to work with a private choreographer on her singles.  She finds this frustrating.  Although wishing to make a living through singing, her inability to dance may prevent that.

[24]Plaintiff’s affidavit sworn on 23 February 2018 at paragraph [6], PCB 13b

47      Before the accident, Ms Demmler was part of a fitness competition and a beauty pageant.  She followed a specific diet and exercise regime to bring her body to a particular condition.  It required heavy lifting, which she cannot now do.

48      Ms Demmler has put on weight since the accident, despite walking as often as possible.  Her weight increase is between 10 and 15 kilograms.  It prevents her from doing bikini and fitness modelling, which she did before the accident.  She is very upset by her weight, and it is something she dislikes talking about.

49      Before the accident, Ms Demmler engaged in boxing and kickboxing each week.  She has not done so since the accident.  The same applies to horse riding.  Her fear is an accident, causing a lot of pain.  Since the accident, she has tried to ride, without success.

50      Ms Demmler attends DMA Clinical Pilates.  She did not before the accident.  Sometimes she goes weekly.  She has done Pilates for about twelve months.  It enables her to stretch and exercise under supervision.  Since her Pilates instructor is a physiotherapist, she is treated that way at the same time.  Since the accident, she has had some form of treatment by a physiotherapist, a chiropractor or an acupuncturist.

51      Between December 2017 and February 2018, Mr Demmler has taken between two and four tablets daily of Panadol or Nurofen.  She uses either Panadol or Nurofen daily.  Although in October 2017, she told Mr Tagkalidis she had stopped taking medicine, she feels her neck and back have deteriorated and she needs medicine.

Legal principles

52      For me to give leave or permission, Ms Demmler must prove:

(a)she suffered an “injury” as a result of a “transport accident”.  Undoubtedly, there was a transport accident and Ms Demmler was injured.  Further on I discuss the nature of her injuries;

(b)the “injury” is a “serious injury” as defined by s93(17) of the Act. She relies on paragraph (a): serious long-term impairment or loss of a body function of the spine. In paragraph (a), what is “serious” is described in Humphries & Anor v Poljak:[25]

[25][1992] 2 VR 129 at 140

“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’?”

(c)the defendant relies on a passage from the judgment of Ashley JA in Dwyer v Calco Timbers Pty Ltd (No 2):[26]

[26][2008] VSCA 260 at paragraph [27]

“Finally, I agree with the submission for the respondent that in assessing whether the impairment consequences of injury are serious, one should consider not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”

(d)Ms Demmler relies on the observations of the Court in Stijepic v One Force Group Pty Ltd & Anor:[27]

[27][2009] VSCA 181 at paragraph [43]

“… When judging the pain and suffering consequences for the appellant by comparison with other cases, we consider that it is relevant to look at the likely period for which those consequences will be experienced. All things being equal, impairment consequences which a man (or woman) will have to put up with for 40 years might well be judged more serious than the same consequences which a man (or woman) may have to put up with for a much shorter period of time.”

(Footnote omitted.)

(e)the defendant relies upon this observation in Sumbul v Melbourne All Toya Wreckers:[28]

“… If one accepts, as her Honour did, that the appellant is physically able to return to alternative employment, then, unless there was some other evidence that showed that he experienced significant pain or that he otherwise significantly suffered physically from the injury, it would ordinarily be difficult to conclude that the pain and suffering consequences of it are ‘at least very considerable.’ … .”

[28][2006] VSCA 292 at paragraph [24] per Chernov JA

53      In Tatiara Meat Co Pty Ltd v Kelso,[29] Ross AJA said:

“The fact that Mr Kelso has been able to return to alternative work on a full time basis is relevant to the question whether the pain and suffering consequence of his injury is serious, but it is not determinative. A return to full time employment after injury will, in the absence of other relevant evidence, tend against a conclusion that the pain and suffering consequences of the injury are ‘serious’. But it is necessary to consider the evidence as a whole.”[30]

(Footnote omitted.)

[29][2010] VSCA 12

[30](Supra) at paragraph [26]

Discussion

54      I believe what Ms Demmler told me in her evidence.  The defendant does not submit otherwise.

The injury

55      A barrier to Ms Demmler succeeding is the view of Dr O’Gorman.  He gave her solicitors two reports.  He first saw her in July 2014.  Thereafter, he saw her thirteen times, with the last being on 11 October 2016.  Relevantly, he diagnosed soft tissue injury to the soft tissue supports of the cervical spine and musculoligamentous low back pain.  He knew of the results of the x-rays and CT scans taken at The Alfred hospital, and the subsequent MRI scans of the cervical and lumbar spines.  I assume he saw the report of the MRI scan taken at The Alfred hospital in 2015 of the cervical spine.  Apparently he quotes from the report when he says “old desiccated disc bulge at C4/5”.  He saw the report for the MRI scan of the lumbar spine and sacroiliac joints, as it was addressed to him.  This report spoke of a small or tiny posterior annular fissure in the L5‑S1 disc.  He does not attribute the C4-5 bulge to the accident.  He says nothing about the fissure.

56      Mr Kierce saw MRI scans of her lumbar spine taken on 28 January 2015.  He describes the fissure as a “tear” and attributes it to the accident.  He saw the MRI scans of the cervical spine and doubts the description of “old”, saying it could have been due to the accident.  Mr Miller also saw the scans of 28 January 2015.  He describes the L5-S1 disc as prolapsed and probably links that to the accident.

57      Both say there is an acceleration of the degenerative changes to the cervical and lumbar spines.

58      What does it all amount to?  The accident caused a tear in the L5-S1 disc.  I cannot say the accident caused the desiccated bulge at C4-5.  The language of Mr Kierce places the link in the realms of possibility only.  The language of Mr Miller is more definite, despite not seeing the report or the scans.  The unknown radiologist implicitly excludes the link by speaking of “an old desiccated disc bulge at C4/5”.

59      Despite the tenuous nature of the evidence, I accept the accident aggravated degenerative changes in her cervical and lumbar spines.  No one says the effect of the aggravation is temporary or permanent.  Given the time passing, it is likely to be the latter.  It caused a musculoligamentous strain to her lumbar spine.  Pain is radiated into her right leg from the lumbar spine.  Dr O’Gorman was aware of the tear, but paid it no heed, perhaps influenced by the words “tiny” and “small”.

60      The diagnosis of Mr Barmare is anomalous.  They differ widely from those of the other practitioners.  He sees no deficit in the cervical or lumbar spines.  It may be anomalous because he was told little beforehand.  I will ignore his opinions, not his examination findings, for it is so out of kilter with the rest of the medical and other evidence. 

61      Although Dr O’Gorman speaks generally about soft tissue injury to the cervical spine and musculoligamentous injury to the low back, it is broad enough to cover the L5-S1 disc injury and the aggravations.

Pain and suffering consequences

62      What are the pain and suffering consequences for this twenty-five year old?

63      First, there is always pain in Ms Demmler’s neck and back.  It varies in intensity, but never goes away.  At times the neck is worse than the back while, more recently, it is the back.  There is also thoracic pain.  However, she works at a job with shifts of between eight and thirteen hours daily, and occasionally to fifteen hours, while wearing high-heeled shoes.  By the end of a shift she often has increased pain.  As she told Mr Barmare, “This hurts her …”.  She bears this because she loves the job.  Although the word “stoic” is over-used in this kind of dispute, she is determined.  She has the determination of youth.  I do not know how long men or women last in this particular job.  She started after the accident and has now worked in it for about three years.  It hurts her, but she does it.  She has not sought other work.

64      Second, Ms Demmler no longer rides horses.  She had done so from a young age.  It was a love of hers, and her inability is a massive loss of enjoyment for her.

65      Third, Ms Demmler was a fit and energetic person.  She cannot now box, kick-box or lift weights.  Her ability to go “clubbing” with her friends is lessened.

66      Fourth, Ms Demmler cannot dance in a video accompanying her musical singles.  Since other singers do, she is disadvantaged.  I cannot say whether her singing ability is enough to enable her to live by it, but her inability to dance places her at a disadvantage.  Although she continues to release singles, her chances of earning a living at singing are lessened.  For a young person searching for a career, this is a blow.

67      Fifth, Mr Kierce and Mr Miller noted the occasional use of medicine.  Mr Tagkalidis notes none in October 2017.  Mr Kierce says physiotherapy is unnecessary.  She now takes Panadol or Nurofen daily.  This started late last year, after she worked over the Christmas break.

Surveillance

68      There is fifty-eight minutes and forty-six seconds of surveillance film.  It cover four days:  16, 18 and 20 October 2017 and 4 November 2017.  I have examined it carefully.  Most of it is watching her walk; she walks slowly, whether wearing high heels or not.  I do not know whether she walked slowly before the accident.  On one occasion she climbs steps slowly.  She does not do anything inconsistent with a bad back.  She does stoop to pick something up.  She does not run.  She does not suddenly pick up the pace of her walking.  She does not swerve to avoid someone.  When wearing thongs and sports shoes, she walks at a normal pace.  Then again, there is nothing inconsistent with having a good back.  She walks distances wearing high heels, the wearing of which tends to aggravate her back and neck.

69      None of the medical practitioners saw the film.  At first blush, the film does not support Ms Demmler but, on reflection, it is not inconsistent with either a good or bad back.

The long-term prognosis

70      Apart from Mr Barmare, all of the practitioners see her impairment as long term.  Dr O’Gorman says the prognosis is good, but the condition of her neck and back will become painful from time to time, will need treatment, and then subside following treatment.

71      For Mr Miller, the prognosis was “fair” because of a moderate response to conservative treatment after three-and-a-half years.  He was aware of Dr O’Gorman’s reports, and the latter’s history of attendances.  He considered her current treatment as appropriate, and it may need to continue indefinitely.

72      It is a long-term impairment with an expected course, as outlined by Dr O’Gorman.

Serious

73      The test of whether an “injury” is “serious” is stern.  This emerges from the passage I quoted from Humphries & Anor v Poljak.[31]  It involves a comparison, and then the test itself.  Impression and value-judgement are highly significant.[32]

[31]Supra

[32]Kelso v Tatiara Meat Co (2007) 17 VR 592 at paragraph [192]

74      Ms Demmler has pain in her neck and back.  It is constant, but varies in intensity.  Both parts are not always painful.  On one occasion she reported no pain in her back.  At present, she takes one or other of Panadol or Nurofen daily.  Both are obtained over the counter and are moderate medicines.

75      Ms Demmler’s pain prevents her from horse riding, boxing, kickboxing and most dancing.  She does not go clubbing as much.  She would like to earn a living as a singer.  In her style of singing she has videos, and these should have her dancing on it.  She cannot do that.  She has launched four singles.  They have brought her some money.  The pain frustrates her ambition.

76      Ms Demmler’s lack of exercise has increased her weight, which upsets her.

77      At the time of the accident, Ms Demmler worked full time.  After the accident, she was off work for a week before returning to full duties.  The following year, she started a job which involved long hours.  Many of those hours involved standing in high-heeled shoes.  She even walks to and from work in high heels, something she need not do.  She concedes wearing high-heeled shoes causes her pain.  Her manager supports her, allowing her to rest and lie down.  However, the fact remains her injury does not stop her working in a physically demanding job, and for hours longer than many others work.

78      As to the future, the assessment of Dr O’Gorman is preferable.  He has treated Ms Demmler over several years.  In his reports, he has set out each attendance, the complaint and his response.  He has seen the reports of scans.  His prognosis is good.

79      Ms Demmler undertakes treatment from time to time.  The pressure of her work prevents regular attendance.  The pain is reduced through simple measures.  Its long-term resolution is prevented by the demands of her work.  Standing a lot in high heels tends to aggravate her back and neck.

80      Ms Demmler now takes medicine, which are relatively modest in their effect.

81      For Ms Demmler, the pain and suffering consequences of this accident are marked, significant, or considerable, but they are not very considerable or more than that, or more than marked or significant.  A very important factor is her return to full-time duties, not in alternate duties, and in a different and more arduous job.  Apart from a week after the accident, she has worked full time.  She then took up a physically demanding job.  It is not always so, but she can work long hours while wearing shoes that hurt her.  She has done so for about four years.

Conclusion

82      Ms Demmler has not suffered a “serious injury” and her application is refused.

- - -