Devi v Transport Accident Commission
[2016] VCC 756
•7 June 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE SERIOUS INJURY DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-13-05878
| ANSHU DEVI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 and 11 May 2016 | |
DATE OF JUDGMENT: | 7 June 2016 | |
CASE MAY BE CITED AS: | Devi v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 756 | |
REASONS FOR JUDGMENT
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Catchwords: Transport Accident Act 1986 – s93(4)(d) – impairments relied upon being those to the spine and to the respiratory system – whether plaintiff a reliable witness – level of treatment received – small amount of treatment received – work activities after the accident – whether burden of proof has been discharged – factors to be considered
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Ryan with Ms A Wood | Henry Carus & Associates |
| For the Defendant | Ms R Annesley QC with Ms F Crock | Solicitor to the Transport Accident Commission |
HIS HONOUR:
General background
1 This matter comes before me by way of an application pursuant to s93(4)(d) of the Transport Accident Act 1986, (hereinafter referred to as “the Act”). The plaintiff relies upon consequences of a transport accident which occurred on 20 June 2008 in Ballarat Road, Braybrook. The plaintiff was the driver of a car which, it is alleged, was struck on the driver’s side when a car coming in the opposite direction made a right hand turn. What occurred shall hereinafter be referred to as “the accident”. The injuries relied upon by the plaintiff were originally of a broader spectrum than those ultimately relied upon in the present application. Reliance upon paragraphs (b) and (c) of the definition of “serious injury” found in s93(17) of the Act was abandoned, as was reliance upon injury to the left knee. I would refer, for example, to Transcript (hereinafter referred to as “T”) 15 and 16. The basis for the plaintiff’s claim was confined to sub-paragraph (a) of the definition, although reliance was placed upon some psychiatric or psychological sequelae for the purposes described in Richards & Anor v Wylie (2000) 1 VR 79. The impairment or loss of a body function relied upon is to the spine. Until closing addresses, reliance was also placed upon impairment of the respiratory system. However, ultimately counsel for the plaintiff conceded that interference with the respiratory function was an injury that probably did not satisfy the statutory test. At that time, I indicated that this seemed to me to be an appropriate concession and that the essence of the case related to the spinal condition. Counsel for the plaintiff did not disagree. In my opinion, the concession made by Mr Ryan on behalf of the plaintiff was appropriate. Whilst matters to do with injury to the nose and interference with respiratory function continued to have some relevance, particularly in relation to the overall impact of the accident, and the emphasis placed upon the consequences of it, a body function loss in relation to the respiratory system shall not be considered as a possible basis for the granting of leave. In this regard, I would refer to the discussion to be found at T116.
2 That the relevant injuries were received in the accident and that it was a transport accident within the meaning of the Act were not contested for the purposes of this application.
3 Mr T Ryan of counsel with Ms A Wood of counsel appeared on behalf of the plaintiff. Ms R Annesley QC with Ms F Crock of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence and adopted two affidavits as being true and correct. The balance of the evidence was documentary in nature and was tendered either by consent or without objection.
Factual background
(a) The plaintiff’s background prior to the accident
4 The plaintiff is 29 years of age, she having been born on 28 March 1987. She is a married woman with two young children, being a daughter aged two years and nine months and a son aged nine months. The plaintiff was raised in Fiji until she was approximately 13 years of age. She then spent four years in American Samoa before coming to Australia in 2004. She obtained her VCE at the end of 2005. She had some employment as a childcare worker and as an office clerk. As at the date of the accident, she was employed as a barista with Mint Personnel, being based at the Crown Casino, where she served customers, made coffee and light food items, cleaned the area in her vicinity and the like.
(b) The plaintiff as a witness
5 Whilst some medical examiners described the plaintiff as being pleasant and co-operative, and I would not dispute that this is the impression that she made, I do not regard her as being a particularly reliable witness. Whether she was engaging in selective amnesia, as counsel for the defendant seemed to be inferring in closing submissions, or whether she has genuine memory problems, the inability to recall which she exhibited at times had a negative impact upon her reliability.
6 For example, the plaintiff agreed that she had been seen by Dr Mohamad Amjad in Wentworthville, New South Wales in November 2010. He referred her for a CT scan. She had no recollection of how many times she saw Dr Amjad, whether he provided her with any ongoing treatment, whether she went back to see him and discuss what had been found in the radiological investigations and the like. I should add that no report from Dr Amjad was placed in evidence. The plaintiff could not recall whether Dr Amjad gave her any treatment at all – see T28 and 29.
7 She also claimed that she could not recall going back to see her normal treating general practitioner, Dr Aparna Goswami, in relation to that CT scan and then complaining for the first time of low back pain. She could not recall whether she was suffering low back pain, but not neck pain, as at November 2010. She could not recall whether or not she saw a neurosurgeon, Dr Mandan, by reason of a referral from Dr Goswami, even though it would have been the first referral to a specialist in relation to her back pain. I would refer to the cross-examination at T48. Again, I would add that there is no report from Dr Mandan in the plaintiff’s material and only the briefest of reports from Dr Goswami, although the clinical notes from the practice of which he is a member were put in evidence by the defendant.
8 At times, the histories given by the plaintiff to medico-legal examiners also appear to lack reliability, if such histories have been accurately recorded. To Dr Murray Stapleton, plastic and reconstructive surgeon, examining on 2 February 2015, she stated that she was unable to work for seven years because of her back problem, although also saying that she works from time-to-time for her husband, who is a café proprietor. There is no dispute but that the plaintiff in fact returned to work approximately two months after the accident and subsequently worked for a total of approximately 18 months in three other employments, before working with her husband on a regular basis.
9 To Mr Russell Miller, orthopaedic surgeon, also examining her at the request of her solicitors and who also saw her on 2 February 2015, apparently she stated that she had not returned to work following the accident and was not currently working. Both of those statements to Dr Stapleton and Mr Miller are patently incorrect. In relation to any issue as to the accuracy of the history-taking, it is noted that the histories were so taken by two doctors in different areas of speciality on the same day. The plaintiff’s evidence concerning the hours which she has worked in the business with her husband and her general input into it also seem to me to vary.
10 In summary, the plaintiff did not impress me as a particularly reliable witness.
(c) The plaintiff’s health prior to the accident
11 It is not suggested that the plaintiff suffered from any relevant health problem, physical or mental, prior to the accident.
(d)The injuries received in the accident, their treatment and diagnoses and their relative importance
12 In the accident, which I accept was of sufficient force to write-off the plaintiff’s vehicle, her head struck the steering wheel, causing a fracture of the nose, which seems to have been the injury that was immediately apparent. The plaintiff was conveyed by ambulance to the Royal Melbourne Hospital. The conclusion reached by the examining radiology registrar was that the plaintiff had suffered nasal bone and nasal septum fractures, but no other relevant radiological features were found.
13 The plaintiff was discharged from hospital on 24 June 2008. She was re-admitted on 26 June and underwent general anaesthesia manipulation and plaster of the nose fracture. She was seen again on 3 July 2008 for review, with an ultimate review on 10 July 2008. By that time, her nose was straight with some residual swelling. She was concerned about a bump over the right side of the nose, but was advised by the treating surgeon that any further operation would result in minimal benefit. She was not seen again at the Royal Melbourne Hospital.
14 The plaintiff returned to work with Mint Personnel, again working at the Crown Casino, in approximately August or September of 2008. She resigned from her employment there on 7 January 2009, moving to Sydney on 10 January. In Sydney, she was engaged in various types of work, as shall be discussed. She also attended at the Windsor Road Medical Centre, Baulkham Hills, for matters not related to this case. However, the next occasion of medical treatment in any way related to the accident seems to have been on 26 February 2010. On that occasion, the plaintiff underwent a CT scan of her paranasal sinuses. She had been referred for this by Dr Gregory Au. The conclusion of the radiologist was that there was a deviation of the nasal septum, which was possibly developmental, with no deformity of the nasal bone underneath. A remedial masseur, Ms Rebecca Garbutt, reported on 5th October 2010 that she had been giving the plaintiff remedial muscular therapy for the spine. There is no mention in her report of any motor vehicle accident.
15 It would seem that the plaintiff’s usual general practitioner at about this time was Dr Aparna Goswami of the Windsor Road Medical Centre in Baulkham Hills, New South Wales, being the same clinic at which Dr Au practises. It is apparent that Dr Goswami referred the plaintiff to Dr Carsten Palme, a specialist in relation to otolaryngology and head and neck surgery. This related to the plaintiff’s nasal complaints. Dr Palme reported on 7 April 2011 and recommended a CT scan.
16 Dr Palme reported again to Dr Goswami on 13 April 2011. The CT scan had been performed and was unremarkable. However, the plaintiff had also been seen by a colleague of Dr Palme, namely Dr Lim, who thought the plaintiff would benefit from rhinoplasty surgery. It is apparent that, on 20 July 2011, a rhinoseptoplasty procedure was performed by Dr Lim in conjunction with Dr Palme. This involved an overnight stay in hospital. It is readily apparent that, at this time, approaching three years after the accident, the plaintiff’s relevant medical attention was focussed upon matters related to her nose and respiratory function. Attention to those matters continued over the following months.
17 On 31 August 2011, the plaintiff underwent an x‑ray of the lumbar spine at the request of Dr Goswami. The report of the radiologist was that there was curvature, with the spine leaning towards the right side. Every other aspect of the spine was normal. On 20 October 2011, the plaintiff underwent cervical spine radiography, again on the referral of Dr Goswami. The radiologist reported that the results were normal, with no abnormality being detected. He expressed the view that, if ligamentous or soft tissue injury was suspected, an MRI could be considered.
18 On 12 November 2011, the plaintiff commenced seeing a chiropractor, Mr Matthew Hardy. Her complaint was of left sided low back pain, with spinal referral and headaches for three years. Various tests seem to have been performed. The conclusion of Mr Hardy seems to be that the plaintiff had enhanced spinal degeneration, aggravated by such things as standing for long periods. A result was poor posture, resulting in headaches towards the end of her working day. Regular chiropractic treatment was recommended.
19 Clinical records put in evidence as part of the Defendant’s Court Book do not take matters much further. In relation to treatment in Melbourne, there are notes from St Albans Complete Health Care which would appear to cover the period between the accident and the plaintiff moving to Sydney. There is a note of 7 August 2008 recorded by Dr Ansari to the effect that the plaintiff was in an accident two months ago, suffering injury to the gums and a fractured nose. On 22 August 2008, she saw a Dr Sleaby at the same clinic because of sinusitis, seeing that doctor again on 30 December 2008 for headaches, nasal and sinus pain. The only other attendance, which is on Dr Sleaby on 9 January 2009, is for reasons totally unconnected with the accident.
20 The defendant also placed in evidence medical records from the Windsor Road Medical Centre at Baulkham Hills. The majority of these entries relate to consultations with Dr Goswami. Many do not relate to the injuries which remain the subject of the present case.
21 Dr Goswami also saw the plaintiff on 30 April 2010, when she was complaining of chronic sinusitis. She also saw Dr Goswami on 12 August 2010, complaining of breathing problems since the motor vehicle accident and wishing to claim compensation.
22 On 22 November 2010, the plaintiff complained to Dr Goswami of back pain. The plaintiff had been seen by another doctor in Wentworthville, this apparently being Dr Mohamad Amjad. A CT scan of the lumbar spine had been suggested by that doctor. Evidently this showed some loss of lordosis, something of a mild nature (presumably degeneration) at L4-5 and an L5-S1 intervertebral disc prolapse with early L5-S1 radiculopathy. Dr Goswami, or someone associated with the Windsor Road Medical Centre, seems to have made an appointment for the plaintiff to see a neurosurgeon, Dr Mandan, on 12 January 2011. As shall be discussed, whether the plaintiff kept that appointment seems doubtful.
23 When Dr Goswami saw the plaintiff on 30 November 2010, the back pain had improved.
24 The next recorded note of the Windsor Road Medical Centre is of the plaintiff seeing Dr Au on 25 February 2011, this being for fatigue. At this stage, the plaintiff was engaged in the business of running a small café. She saw Dr Au again on 4 March 2011 because of back pain. A note of Dr Goswami of 24 March 2011 would indicate that the plaintiff was seeing a remedial massage therapist and it is recorded on 31 March 2011 that she had recurrent sinusitis. A referral to Dr Palme was organised.
25 By 25 August 2011, the plaintiff had undergone some nose surgery and was feeling much better. She had some back pain in the thoracic and the lumbosacral regions. There were no abnormal neurological signs, and the diagnosis was of depression. However, a plain x‑ray seems to have been suggested and various medications prescribed. When the plaintiff saw Dr Goswami on 1 September 2011, it was for muscle spasm. There were then some visits relating to obstetric matters.
26 On 20 October 2011, the plaintiff complained of neck pain, relating it to the motor vehicle accident. Mild tenderness over the cervical spine was found. X-rays were organised. This was apparently the radiography carried out on 20 October 2011, the result of which was, essentially, normal. The plaintiff expressed a preference to seeing a chiropractor rather than a physiotherapist. The plaintiff seems to have been referred to a specialist, Mr Huang, but no report from that specialist is in evidence. Between that date and 8 January 2015, a number of attendances are recorded. None of these deal with complaints associated with the accident.
27 The above is consistent with a letter written by Dr Goswami to the plaintiff’s solicitors, but put into evidence by the defendant. In relation to back and neck pain, that letter indicates that the plaintiff improved “conservatively with analgesics and Chiropractor referral.” It also records that, since 2011, the plaintiff had been seen by Dr Goswami “very infrequently for some other purposes”.
28 The plaintiff has also been examined for medico‑legal purposes. At the request of her solicitors, on 2 February 2015, she was seen by Mr Miller. The diagnosis of Mr Miller was that the plaintiff had suffered a musculoligamentous strain in the cervical spine, along with aggravation of degenerative disease. He found no evidence of radiculopathy or neurological deficit. He considered the prognosis to be only fair. He thought that her complaints of headaches were probably part of the picture of the cervical spine injury. As to her lumbar spine, he thought that she had suffered a musculo-ligamentous strain and aggravation of degenerative disease. There was no evidence of radiculopathy or neurological deficit. Again, he thought the prognosis was only fair. He thought that a conservative regime of treatment was appropriate and would continue indefinitely, with an emphasis on pain management and rehabilitation. He put some restrictions upon her work capacity. Mr Miller was of the view that the plaintiff’s injuries had substantially stabilised. There were some restrictions on her working capacity. In addition, there would be some impact on recreational activities.
29 Mr Miller saw the plaintiff again on 22 February 2016. By this time, the plaintiff was working on a part-time basis in her husband’s café. Mr Miller recorded a history of some problems with neck pain and discomfort. However, the plaintiff described her low back as her major problem. In relation to her cervical spine, Mr Miller again diagnosed a strain, with no improvement in symptoms since the last review. He thought that symptoms in the shoulders, including a slight restricted range of motion in the left shoulder, reflected pain referred from the cervical spine. His opinion concerning the lumbar spine remained much the same, although noting that her symptoms were more severe there than in the cervical spine. He felt that there was an ongoing requirement for conservative treatment and that surgery in either area of the spine was unlikely. He also felt that there were work restrictions and it was unlikely that the plaintiff would return to her full normal hours. He thought that there would be difficulty in increasing her work beyond 15 hours per week.
30 Mr Miller was of the view that the plaintiff’s condition had substantially stabilised and was prepared to make an impairment evaluation pursuant to the AMA Guides. He thought that there would be a reduced capacity for heavy domestic and gardening activities and for some leisure and recreational activities of a physical kind.
31 The plaintiff’s solicitors also organised for her to be seen by Mr Robin Hooper, ear, nose and throat surgeon. Mr Hooper saw the plaintiff on 10 March 2015. Interestingly, to Mr Hooper, the plaintiff described the treatment for her back as the attendance upon a chiropractor from time-to-time and the taking of intermittent Panadol for her headaches and back. This, of course, was simply part of a history.
32 The plaintiff’s solicitors also arranged for her to be seen by Professor Stephen Davis, neurologist, who reported on 25 February 2016. The plaintiff’s main complaint to him was of back pain radiating to the left buttock and lateral left thigh, the actual back pain being more severe than the leg pain. There was also some pain in the neck and radiating up into the head, although the back pain was worse. Professor Davis observed that spontaneous neck movements seem to be quite normal. There was some mild restriction of lumbar movements and tenderness over the lumbar spine, particularly on the left side. Cervical movements seemed to be unrestricted. The conclusion of Professor Davis was that there were no features of a significant acquired brain injury. He stated that it was plausible that the plaintiff had soft tissue injuries to the lumbar spine, but there was certainly no evidence of fracture or dislocation. In relation to the low back pain which she suffered, Professor Davis thought that there was some mild objective features, but no neurological evidence of radiculopathy. The plaintiff was working on a part-time basis and, in the opinion of Professor Davis, would probably be able to work full-time provided that she could take rest breaks and was not under too much pressure. She did not require spinal surgery.
33 Dr Joseph Slesenger, special occupational physician, saw the plaintiff at the request of her solicitors on 24 February 2016. He took a history of the plaintiff still having some nasal blockage, worse at night and disturbing sleep. In relation to her lower back, she complained of pain being at a level of 7/10, being dull in character, but with occasional sharp and stabbing pain. She gave a history of some chiropractic treatment, particularly during the course of her pregnancies, and said that she did some daily stretching and walking exercises. In relation to medication, she was currently taking Nurofen two to three times a week. Dr Slesenger felt that there had been an injury to the plaintiff’s cervical and lumbar spines, together with a nasal fracture. He believed that the plaintiff had developed a psychological impairment. The plaintiff presented with chronic neck and low back pain and significant functional limitations, including occupational disability and restrictions in her capacity to perform domestic and recreational tasks. Dr Slesenger, being an occupational physician, directed much of his attention to the plaintiff’s capacity for work. In this regard, he recorded a history that she was currently assisting her husband in his café business. She worked up to 10 hours per week. Dr Slesenger felt that she had reduced functional limitations and should not push, pull or carry or lift weights of over 5 kilograms. In addition, she should not engage in repetitive bending or twisting. He thought that she was fit for light duties, suggesting that the ideal occupation was one where she would have the capacity to sit and stand during the course of the working day. He noted that she had on-line finance qualifications and was of the opinion that she could work in an administrative capacity. However, he recommended that a limit on her return to work capacity of four hours a day, four days per week be put in place.
34 Whilst the plaintiff abandoned reliance upon sub-paragraph (c) of the definition, it was indicated that psychological or psychiatric consequences were still relevant in accordance with the decision in Richards v Wylie. In particular, counsel for the plaintiff directed me to the observation of Winneke P to the effect that “serious injury” as defined can have its seriousness measured in part by a mental response to a physical impairment. Bearing this in mind, I turn to the examinations carried out by Dr David Weissman, consultant psychiatrist, at the request of the plaintiff’s solicitors. The earlier of these was on 3 February 2015. Dr Weissman diagnosed a Chronic Adjustment Disorder with depressed and anxious mood of at least mild to moderate intensity or severity. He also observed that, on purely psychiatric grounds alone, there was no actual incapacity for work. He thought that the overall psychiatric prognosis was fair, but that the plaintiff would continue to suffer from her current accident-related psychiatric symptoms with or without treatment.
35 Dr Weissman saw the plaintiff again on 22 February 2016. On this occasion, his diagnosis was of a mild to moderate, mixed, reactive depressive and anxiety syndrome and a Chronic Adjustment Disorder with depressed and anxious mood of mild to moderate intensity. He considered that her condition had stabilised and was prepared to make a whole person impairment assessment. He again stated that there was probably no actual psychiatric incapacity for work. He seems to have categorised her symptoms as being in the mild to moderate range. He regarded the prognosis as being fair.
36 Medical examinations have also been carried out at the request of the defendant. Dr James Bodel, an orthopaedic surgeon based in Sydney, examined the plaintiff at the request of the defendant on 20 May 2013. To Dr Bodel, the plaintiff stated that she had received minimal treatment for a period after the accident. She had not been aware of major problems with her neck or back until sometime after it. She was unable to identify exactly when her symptoms began. The plaintiff had been receiving chiropractic treatment three days a week, but this was of temporary benefit only. Her main area of pain was in the lower part of the back. She was having no medication for the pain. Dr Bodel could find no evidence of nerve root irritability. He referred to there being some mild lumbosacral back ache. His diagnosis was of a fracture of the nasal septum and soft tissue injuries to the neck and back. He thought that the prognosis was very good. He could not identify any musculoskeletal injury to the neck or back which would warrant any form of organised manipulative treatment and thought that ongoing complaints could be managed with a return to her previous high level of activity, including going to the gym and walking. He was at a loss to understand her musculoskeletal complaints, there being no clinical indication of ongoing structural injury to the neck or back. A brief supplementary report dealt with assessment pursuant to the AMA Guides and does not take matters much further.
37 Dr Peter Boys, consultant orthopaedic surgeon, saw the plaintiff at the request of the defendant on 12 March 2015. Apart from taking a history concerning the accident and subsequent employment and developments, Dr Boys took a history of some ongoing chiropractic treatment. He noted that the medication consumed by the plaintiff was paracetamol or Nurofen two or three times per week. The plaintiff’s primary discomfort was across the lumbosacral junction, with some additional discomfort in the area of the neck. The plaintiff said that she could walk for periods of up to 30 minutes and was able to bend freely. Her spinal complaints were mainly postural in nature. His diagnosis was of a simple muscle strain of the thoracolumbar musculature. There was no evidence of any musculoskeletal condition which would deteriorate with time. The appropriate treatment would be muscle conditioning exercises. Dr Boys could find no evidence of an orthopaedic condition which would affect the plaintiff’s capacity for employment. Her history would not suggest any musculoskeletal injury of note associated with the accident. Following it, she was off work in relation to facial injuries. Dr Boys could find no evidence of an orthopaedic condition which would interfere with her domestic or leisure activities. At the time of the examination, the plaintiff was pregnant. Dr Boys felt that she would be routinely encouraged to maintain aerobic fitness, concluding that her complaints reflected a simple muscle strain.
38 Dr Boys saw the plaintiff again on 18 March 2016. On this occasion he recorded that the plaintiff was attending Dr Goswami, but not undergoing any current treatment related to the injuries received in the accident. She had ceased chiropractic attendances. She was taking Nurofen on a few occasions a week and was not involved in any form of muscle conditioning or fitness activities. The plaintiff was complaining of intermittent headaches, sensation of a blocked nose and discomfort around the neck and lower back. There was no sciatica or the like. She received some assistance from her husband in performing household tasks, but could identify none which she was unable to do. Upon examination, there was no abnormality evident in relation to the cervical, thoracic or lumbar spines. Dr Boys does not appear to have had any results of radiological investigations provided to him. His diagnosis was of a simple postural muscle strain affecting the neck and back. He felt that aerobic exercise and strengthening of the supporting musculature of the spine would assist. He was of the view that the plaintiff did not manifest “a work incapacity associated injury” and opined that strain symptoms occur in the course of normal activities of daily life.
39 The defendant also organised for the plaintiff to be seen by Dr Andrew Firestone, consultant psychiatrist, this examination occurring on 18 March 2016. Dr Firestone recorded as part of the history taken that the plaintiff had been attending a chiropractor regularly in 2011, but found this too expensive. She now only had chiropractic treatment when her back was very bad. She seldom saw her general practitioner, Dr Goswami. She had seen a psychologist on one occasion only. She also related that she and her husband were trying to sell both of their cafés and their home. The plan was for him to return to mortgage broking, with her assistance in the office. She had developed low back pain after attempting to resume gym work. She complained of headaches, relieved by Nurofen. She also complained of a blocked nose and said that low back pain interfered with her sleep on a nightly basis, in addition to limiting walking, standing and sitting during the day. She was now taking no regular medication. She had been a regular attendee at a gym, but not since the accident. Dr Firestone was of the view that there were no direct traumatic psychiatric effects of consequence, pointing out such things as her finding a new partner, marrying and having children comparatively shortly after the accident. He thought that she had no recognised mental illness or disorder, unless such was secondary to back pain which could be attributed to the accident. Some anti-depressant medication could help. He noted that the plaintiff did not complain of interference with her work, her capacity being limited by childcare. He expressed the view that there was no psychiatric injury as a result of the transport accident which interfered with the plaintiff’s work or domestic and leisure activities. An adjustment disorder may do this.
That concludes my summation of the relevant medical material. Apart from the psychological or psychiatric consequences which are to be considered in accordance with the decision in Richards v Wylie, there now remains only one area of organic injury to be considered. That is the spinal condition which, on the balance of the evidence, could probably be divided into symptoms emanating from the cervical spine and those from the lumbar spine. I appreciate that the spine can be treated as a single unit or body function. However, in the present case, it seems logical to look at the diagnoses of the injuries to the cervical and lumbosacral spines separately, as this will assist in assessing the consequences to the spinal unit as a whole.
40 In relation to the cervical spine, the radiological investigations carried out on 12 November 2010 revealed no significant bone joint or soft tissue abnormality. Those of 20 October 2011 revealed no abnormality.
41 Dr Goswami, the treating general practitioner, took a history of neck pain since the accident and of that having been diagnosed as a whiplash, but there is no report from that doctor. The report from the Royal Melbourne Hospital contains no reference to problems with the cervical spine, other than the fact that the CT performed on 20 June 2008 revealed no abnormality.
42 Mr Russell Miller, examining the plaintiff for medico‑legal purposes at the request of the plaintiff’s solicitors, diagnosed a musculoligamentous strain in the cervical spine together with some aggravation of degenerative disease, although exactly what the basis was for saying that degenerative disease was present is not clear. For the purposes of his report of 9 February 2015, Mr Miller had not been provided with the radiology referred to above and the only report that he had in relation to cervical spine seems to have been that taken at the Royal Melbourne Hospital on the day of the accident. This revealed no abnormality. Mr Miller repeated his diagnosis in his second report, but had not been given any further radiology. Professor Davis noted complaints of various discomfort in the neck, back of the head and trapezius regions, but seems to have been unable to find any cause for this and indeed assessed impairment of the cervical spine at zero per cent. Dr Slesenger referred to chronic neck pain, but does not seem to have made a diagnosis.
Dr Boys, examining on behalf of the defendant, took a history of discomfort being primarily across the lumbosacral junction, but with discomfort extending to the cervical musculature “on occasion”. He made no diagnosis of any injury to the neck. In his report of 17 March 2015 and in his later report of 31 March 2016, he referred to a simple postural muscle strain affecting the neck and back.
43 Dr James Bodel, orthopaedic surgeon, who examined the plaintiff at the request of the defendant, diagnosed a soft tissue injury to the neck and was unable to identify any musculoskeletal injury.
44 There is no radiological evidence to support the finding of aggravation of degenerative disease in the cervical spine of this 29 year old plaintiff. I think the highest that it can be put is that she may have suffered some form of soft tissue injury.
45 In relation to the low back, the CT scan taken on the day of the accident revealed normal alignment with no fracture. The CT scan of 12 November 2010 showed a mild loss of normal lumbar lordosis. At L4-5 there was a mild broad based posterior annular disc bulge and at L5-S1 a mild central herniated nuclear polyposis just impacting both S1 nerve roots. An x‑ray of 31 August 2011 revealed curvature of the spine leaning towards the right side, but effectively with no other abnormality. Mr Russell Miller does not seem to have had available to him either the CT scan of 12 November 2010 or the x‑ray of 31 August 2011. His diagnosis in relation to the lumbar spine was that the plaintiff had suffered a musculoligamentous strain and aggravation of degenerative disease. He found no evidence of radiculopathy or neurological deficit. He noted that her symptoms were more severe in the lumbar spine than in the cervical spine. Professor Davis, who does not seem to have been provided with any radiology, diagnosed a soft tissue injury to the lumbar spine with no evidence of fracture or dislocation. He felt that the plaintiff had some mild objective features. The diagnosis of Dr Boys was of a simple muscle strain of the thoracolumbar musculature, stating in his more recent report that the plaintiff appeared to be describing a simple postural muscle strain. Dr Bodel diagnosed a soft tissue injury to the back, stating that he was unable to identify any musculoskeletal injury. Dr Slesenger appears simply to have noted a complaint of low back pain.
46 Dr Goswami has recorded a complaint of back pain, although this does not appear to have been a frequent occurrence. In his report of 8 January 2015, he noted that the plaintiff’s back and neck pain was improved conservatively with analgesics and a chiropractic referral. The chiropractor, Mr Hardy, in a report that is at time difficult to understand, appears to have diagnosed a weak pelvic and lumbar alignment with left iliolumbar ligament sprain and L5 disc involvement.
47 On balance, I am of the view that, in the lumbar spine, there may have been some aggravation of underling degenerative changes, as there were some abnormalities reported upon in the CT scan of 12 November 2010. That examination was apparently organised by Dr Amjad of Wentworthville in New South Wales, but there is no report from that practitioner and those examining the plaintiff for medico‑legal purposes do not seem to have been provided with this report. I would accept that the plaintiff has suffered some soft tissue injury to the lumbar spine and that some aggravation of degenerative changes may have occurred, although the expert evidence in relation to this latter feature is quite limited.
48 I turn now to whether the plaintiff’s impairment or loss of body function is long-term within the meaning of the statutory definition. Professor Davis was prepared to make an impairment assessment of the lumbar spine, which presumably has permanency as one of its ingredients. Mr Miller was prepared to make an assessment similarly, and also commented that the plaintiff’s injuries had substantially stabilised, describing the prognosis as only fair. Dr Bodel thought that the prognosis from a musculoskeletal point of view was very good and Dr Boys was of the view that the plaintiff’s symptoms were quite minimal in any event. On the balance of expert opinion, I am prepared to accept that the plaintiff’s spinal condition, and particularly that of the lumbar spine, is such that any impairment is long-term within the meaning of the Act.
49 Insofar as the injury to the lumbar spine represents an aggravation of a pre-existing condition, I am satisfied that the plaintiff had no previous symptoms emanating from her lumbar spine and that any consequences which she suffers result directly from the aggravation which has occurred.
50 I turn now to the psychological or psychiatric consequences for the purposes of Richards v Wylie. Dr Firestone, examining on behalf of the defendant, diagnosed an adjustment disorder with mild depressive features secondary to the back pain, but no psychiatric condition as a direct result of the accident. He made no specific comment upon whether such adjustment disorder and its effects were long-term, although perhaps one might assume that, if the consequences of the low back injury are long-term, any adjustment disorder secondary to it could also be so described. Dr Weissman, examining on behalf of the plaintiff, in his more recent report diagnosed mild, residual post-traumatic stress and anxiety directly due to the circumstances since the accident and a mild to moderate, mixed, reactive depression and anxiety syndrome secondary to accident-related pain and injuries (including self-consciousness regarding the cosmetic appearance of her nose). Dr Weissman considered that the plaintiff’s condition had stabilised.
51 On balance, I accept that the plaintiff suffers from some form of psychological or psychiatric condition which is essentially secondary to any back pain from which she suffers. That is so whether it be described as an adjustment disorder or a reactive depressive and anxiety syndrome. I am less convinced concerning the mild post-traumatic stress and anxiety symptoms directly due to the circumstances of the transport accident and whether this is long-term, as, in his earlier report, Dr Weissman had described this condition as improving. I also note that Dr Weissman is of the view that the plaintiff would not benefit from seeing a psychiatrist or psychologist or from taking any anti-depressant medication. In any event, there is no suggestion that the plaintiff suffered from any psychological or psychiatric condition prior to the accident. Accordingly, there would not seem to be any aggravation of a pre-existing condition.
Other developments since the injury
52 The plaintiff was absent from her employment with Mint Personnel at Crown Casino following the accident. On 7 August 2008, her then general practitioner, Dr Ansari, certified her as being fit for normal work. She then returned to that. The plaintiff then worked on unrestricted duties for normal hours until December 2009. Her last attendance at St Albans Complete Health Care, where she had been seeing Dr Ansari and Dr Sleaby, was on 9 January 2009 and it was for an unrelated matter. She also agreed that she had not been prescribed any painkilling medication during this period, her doctors telling her to take Panadol. She then moved to Sydney. This seems to have been shortly after she met the man who was to be her husband, and with whom she lived in that city. She also said that she had resigned and moved to Sydney because she was not happy with her appearance – see T71. It would seem that, after the accident but before going to Sydney, she completed her Certificate III in Hospitality. Subsequently she also completed a Certificate in Financial Services. Her letter of resignation to Mint Personnel is dated 7 January 2009 and, apart from apologising for the late notice, indicates that she was moving to Sydney “for good” on 10 January of that year.
53 In Sydney, the plaintiff appears to have at first been employed by an entity called Touraust Hotels, her place of work apparently being at the Chifley Hotel, where she worked as a waitress. Following that, she was employed at Woolworths as a shop assistant. She worked nightshift and performed this work for some 55 weeks. She claims in her affidavit of 3 December 2014 that her work with Woolworths was in fact that of shelf packer and lasted for only five months. However, it was put to her that the pay records indicated she was there for 55 weeks. She could not recall how many weeks or months she had worked there, but was prepared to accept what was contained in the documents – see T74. As far as I can deduce from the summary of the plaintiff’s taxation returns put into evidence by her, her employment at Woolworths would have ceased no great distance into the 2011 financial year. Her supporting affidavits are quite vague in relation to periods of employment and work generally in Sydney.
54 At some stage, the plaintiff commenced working with her husband in what she described in her affidavit of 3 December 2014 as “his café”. Her husband’s affidavit states the following at paragraph 14:
“So, we started in 2009 a coffee business that operated from a trailer located near our home. Anshu worked in that business at the start, but over time she has stopped working as she is not physically able to do the long hours standing at the trailer and providing service to passing customers.”
55 This does not sit particularly well with the evidence of the plaintiff that she and her husband opened a mobile coffee cart in January 2010 and that she worked six days per week from 5.30am until 10.30am – see T78. It also does not seem to fit with the proposition that the plaintiff was employed on nightshift at Woolworths until early in the 2011 financial year.
56 The whole issue of the café business and the plaintiff’s role in it is far from clear. Originally, the business was operated from a trailer, but now it would seem that there are two cafés, both in Northmead. The plaintiff claims that she works only 10 hours per week, but that she attends at one of the cafés for a considerable part of each day with her young children, sitting in a small office at the back. As stated, her first child was born on 20 September 2013 and the second child is now aged nine months.
57 In short, the history of the work in which the plaintiff was engaged since the accident is one that is difficult to follow and is quite vague.
Ruling
58 I am of the opinion that the plaintiff has not discharged the burden of proof in this matter. I am not of the view that, when the relevant comparison has been made, the consequences of the impairment or loss of a body function which she has suffered could be fairly described as being more than significant or marked and as being at least very considerable. I have come to this conclusion for the following reasons, which are not set out in order of importance or significance.
(a) Whether it be for her neck or her lower back, the plaintiff has had a minimal amount of treatment for her spine. Treatment, or the lack thereof, is one of several indicia that can be taken into account. I would refer to decisions such as Haden Engineering v McKinnon (2010) 31 VR 1, Sutton v Laminex Group Pty Ltd (2011) 31 VR 100, and subsequent decisions.
Following discharge from the Royal Melbourne Hospital, the plaintiff first saw a general practitioner, Dr Ansari, some two months later. The only injuries recorded by that doctor are to the gums and the fractured nose. The purpose of the visit seems to have been the obtaining of a certificate of fitness for work. This was issued and the plaintiff so returned. She then did not attend again at St Albans Complete Health Care until 30 December 2008, this attendance being in relation to headaches, nasal and sinus pain. She attended again on 9 January 2009, which must have been almost immediately before going to Sydney, for reasons totally unrelated to any injury received in the accident.
Once in Sydney, the plaintiff does not seem to have consulted a general practitioner until seeing Dr Goswami at the Windsor Road Medical Centre, Baulkham Hills, on 23 July 2009. Both that consultation and the one immediately following it on 28 July related to gynaecological matters. On 17 August 2009 the plaintiff saw Dr Goswami in relation to a sore throat, body ache and feeling tired. Interestingly, it is recorded that she was not depressed or anxious. On 31 August 2009 the plaintiff again saw Dr Goswami in relation to a blocked nose and, for the first time, mentioned that she had been involved in a motor vehicle accident in June 2008 when her nose was broken. There is no reference in the clinical records to any spinal injury or symptoms resulting from the accident.
The clinical records reveal another four attendances on Dr Goswami, or a colleague, Dr Au, during 2009. They concern matters such as conjunctivitis and the like. There is no record of any complaint of back or neck symptoms on any of these occasions. Between 26 February 2010 and 22 November 2010 some six visits are recorded. In relation to none of them is there a reference to spinal complaints, symptoms or the like. That is despite the fact that, on 12 August 2010, it is noted that the plaintiff apparently wanted to claim workers compensation in relation to the motor vehicle accident, mentioning that she had been having breathing problems since then. There is no reference to any other types of problems “since then”.
On 22 November 2010, the plaintiff saw Dr Goswami and, for the first time, reported to that doctor that she had been having back pain. By this stage, she had been in Sydney for approximately 1 year and 10 months. While she mentions that she had been having back pain and had seen another doctor in Wentworthville (presumably Dr Amjad) and there is reference to the CT scan, there is not recorded any mention of the motor vehicle accident or any suggestion of a link between the back pain and such accident. Clearly Dr Goswami had information concerning the CT scan and an appointment was made for the plaintiff to see a neurosurgeon, Dr Mandan, on 12 January 2011. As previously stated, the plaintiff has no recollection of whether or not she saw Dr Mandan and no report from that doctor was placed in evidence. Dr Goswami saw the plaintiff again on 30 November 2010, recording “Back pain has improved”. Again, there is no reference to the motor vehicle accident. As stated she had received some remedial muscular therapy prior to this.
The plaintiff saw Dr Au on 25 February 2011, complaining of fatigue. She again saw him on 4 March 2011, complaining of back pain, but with no reference to the motor vehicle accident.
At a consultation with Dr Goswami on 24 March 2011, for the first time the plaintiff is recorded as thinking that her “body ache” was related to her previous injury “(WC)”. The plaintiff saw Dr Goswami on 31 March 2011 in relation to sinusitis, before seeing him again on 25 August 2011 complaining of back pain. The plaintiff was also feeling depressed. She had seen a psychologist once but did not like her. There was a reference to her taking Panadeine. On 1 September 2011, she saw Dr Goswami in relation to muscle spasm, but exactly what this involved is not clear. The next three visits concern gynaecological matters.
On 20 October 2011, the plaintiff saw Dr Goswami complaining of neck pain “since the accident”, apparently informing him that she had been diagnosed as having suffered a whiplash. Dr Goswami organised for some x-rays, the only reference to medication being to Panadeine, two tablets per night. At a visit on 21 October 2011, the plaintiff indicated that she would go to a chiropractor.
In a brief report of 8 January 2015, Dr Goswami noted that the plaintiff had been diagnosed as suffering a whiplash at the time of the motor vehicle accident and the pain had been there since then. No fracture had been detected on the plain x-ray of the cervical spine, and the plaintiff had been referred to a chiropractor at her request. Dr Goswami has also reported that the plaintiff’s back and neck pain had improved conservatively with analgesics and referral to the chiropractor.
Dr Goswami and others from the same clinic saw the plaintiff on a comparatively few occasions thereafter, but always for matters unrelated to the motor vehicle accident or to symptoms which may have emanated from it. There would appear to have been some six of these visits before early 2015 when the records cease.
I have discussed those records at some length. They appear to me to demonstrate the following:
· The evidence would seem to establish that, between the date of the accident and the present time, the plaintiff saw her usual, treating general practitioners on some 35 occasions. Those visits cover a period approaching seven years from the date of the accident. By my reckoning, anything to do with spinal complaints occurred on a maximum of seven occasions, and they have not been mentioned since 21 October 2011.
· The first complaint to such general practitioners concerning spinal pain seems to have occurred in excess of two years after the accident.
· The first reference made by the plaintiff to having been involved in a motor vehicle accident to her Sydney general practitioners was in excess of a year after that accident and concerned her nasal problems.
· The first note recorded by her usual treating general practitioners in which the plaintiff linked her spinal problems to the accident was on 24 March 2011, when she stated that she thought her “body ache” was related to her previous accident, but the first clear reference to spinal pain continuing since the accident is on 20 October 2011, and that is in the context of neck pain.
· The plaintiff may well have linked back pain to the accident when seen by another doctor, Dr Amjad, but there is no report from him and the plaintiff’s recollection concerning him is sketchy, to put it mildly. In any event, the date of seeing that doctor would appear to have been in November 2010 and the plaintiff would appear to have seen him on one occasion only. As stated, there is no report from him. Whether that doctor has a history of the accident and ongoing symptoms from it is unknown.
· The plaintiff has only ever been referred to one specialist in relation to neck or back pain, that specialist being Dr Mandan. Whether she actually saw him is unknown. The appointment was for 12 January 2011, but the entry of Dr Goswami for 30 November 2010, eight days after the appointment was made, is that the plaintiff’s back pain had improved. There is no report from Dr Mandan and no further information available concerning any possible treatment by him. On the basis of the evidence available, the only conclusion to be reached is that the plaintiff has had no specialist treatment in respect of any spinal injury or symptoms emanating therefrom.
· The plaintiff may have had some physiotherapy treatment, but seems to have preferred chiropractic. I accept that she saw Mr Matthew Hardy, chiropractor, on a number of occasions, commencing on 12 November 2011 when she complained of left sided low back pain and spinal referral for some three years. Whilst I accept that she saw him on a number of occasions, the precise history of treatment is far from clear and the undated report from Mr Hardy does not clarify matters. I also accept that at some stage the plaintiff received some remedial massage from a masseur, Ms Rebecca Garbutt. The area of treatment was to the lumbar and cervical spine regions and Ms Garbutt addressed a letter to “Dear General Practitioner” on 5 October 2010. There is no reference in that letter to any motor vehicle accident.
I accept that the CT scan of 12 November 2010 revealed some changes in the lumbar spine. However, in evidence there is no report from any doctor in which there is a useful analysis of those findings. For some reason, that CT scan or the radiologist’s report thereof is not even listed as being amongst the enclosed documentation forwarded to Mr Russell Miller. Professor Davis has simply remarked that there were no x-rays to review. The CT scan is not included in the radiology reports sent to Dr Slesenger. Neither the actual radiology nor reports upon it seem to have been made available to Dr Bodel. Dr Boys noted that no radiographs had been performed or reviewed. Thus, there is no expert commentary upon the one radiological report which appears to indicate that some changes in the lumbar spine are to be seen.
In summary, the plaintiff has had minimal treatment and, when viewed overall, made very few complaints to those doctors treating her concerning spinal complaints and even fewer relating them to the accident. That is so despite numerous opportunities to make such complaints.
(b) In relation to treatment, the plaintiff would appear to have had no specialist treatment at all in relation to spinal problems over a period of almost eight years since the accident. There was the one referral to a neurosurgeon by Dr Goswami, but what happened thereafter is not known. Dr Goswami’s records indicate that, within approximately a week, the plaintiff’s back symptoms had improved. Whether she actually got to see the neurosurgeon is unknown and her lack of memory, combined with the absence of a report, might indicate that no consultation in fact took place. Certainly there is no evidence of it before me.
(c) The plaintiff’s level of medication in respect of neck and back problems is also a feature of this case. As best as I can ascertain, and bearing in mind the absence of any detailed reports from those treating her, some Panadol or Panadeine, along with, apparently briefly, some Tramal, would appear to be the extent of such medication. Her more recent affidavit would indicate that she takes Nurofen two to three times per week for her lower back pain and also in relation to her nasal congestion. That could not be described as a substantial medication regime. The level of medication is also a factor that can be borne in mind in accordance with decisions such as Haden Engineering.
(d) The situation in relation to pecuniary loss is far from clear and it is to be remembered that the plaintiff bears the burden of proof. Approximately two months after the accident she was able to resume her normal duties and on a full-time basis. Her letter of resignation to her then employer makes no reference to accident-related issues. In any event, her reason for ceasing work at the Crown Casino seems to be related to nasal and appearance problems. She worked full-time in Sydney for what appears to be at least 18 months after arriving there. As I understand it, for a period she then worked close to full-time in her husband’s café business. She has had two children, but still attends at the cafés, in which she would now also seem to have a proprietorial interest, on a regular basis. Her evidence in relation to much of this was not particularly satisfactory. I am far from convinced that there has been any pecuniary loss of note as a result of any injury sustained in the accident.
(e) I am also not persuaded that, for the purposes of Richards v Wylie, any psychological or psychiatric consequences of the injury are of sufficient magnitude to assist the plaintiff’s case. There is no report before me from any treating psychologist or psychiatrist. The plaintiff informed Dr Weissman, who saw her at the request of her solicitors, that she had seen a psychiatrist in Sydney on two occasions after the accident, but exactly what that was about is unclear. There is no report from such psychiatrist. Whilst Dr Weissman diagnosed the existence of a mild to moderate adjustment disorder with depressed and anxious mood, he also commented that he did not think that the plaintiff would benefit from seeing a psychiatrist or psychologist or from taking any anti-depressant medication. Dr Firestone diagnosed no psychiatric illness resulting from the effects of the accident.
The defendant placed in evidence various extracts from Facebook of the plaintiff enjoying herself at various times. There is a limit to the usefulness of extracts such as these, but they do indicate someone apparently enjoying life.
In summary, any psychological or psychiatric consequences seem to me to fall well short of being sufficient to enhance the plaintiff’s case to any noticeable degree and are certainly insufficient to lift that case over the statutory hurdle which it faces.
(f) Particularly in her second affidavit, the plaintiff has mentioned a number of ways in which the back pain impacts upon her enjoyment of life, her sleep, her intimacy with her husband and her life generally. I take these into account, but they should be viewed in context. In particular, they should be viewed in the context of someone who has received minimal treatment, whether by way of treatment from a general practitioner, a treating specialist or by way of medication. These allegations should also be seen in the context of someone who, in my view, was not a reliable witness. They are not sufficient to satisfy the statutory requirements.
59 When all of the above is taken into account, it seems to me that the plaintiff’s application must fail.
Conclusion
60 The plaintiff is unsuccessful. She has failed to discharge the burden of proof. I shall hear the parties as to any ancillary orders that are required.
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