Dimoulas, Georgina v Transport Accident Commission
[2009] VCC 1780
•27 November 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
DAMAGES & COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-08-03518
| GEORGINA DIMOULAS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 12, 13 and 16 November 2009 |
| DATE OF JUDGMENT: | 27 November 2009 |
| CASE MAY BE CITED AS: | Dimoulas, Georgina v Transport Accident Commission |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1780 |
REASONS FOR JUDGMENT
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Catchwords: Serious Injury Application – s.93 Transport Accident Act 1986 – whether consequences “very considerable” – disentangling consequences of cervical spine injury and shoulder injury.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie SC with | Nowicki Carbone |
| Mr R H Stanley | ||
| For the Defendant | Ms A M Magee | Solicitor to Transport Accident Commission |
| HIS HONOUR: |
1 On 3 September 2004, the plaintiff was a passenger in a motor vehicle driven by her husband which was struck on the left side by another vehicle. The plaintiff suffered an injury to her cervical spine, her left shoulder and, to a lesser degree, her lumbar spine. She had not been employed since 2001, and at that time had determined to retire from the workforce. She has received various conservative treatments over the years and claims that she has constant pain in her cervical spine, and ongoing pain in her shoulder. She claims to be significantly restricted in a range of domestic, recreational and social activities which she enjoyed before the transport accident.
2 This is an application for leave to bring proceedings pursuant to s.93(4)(d) of the Transport Accident Act 1986 (“the Act”) for injury suffered in a transport accident on 3 September 2004.
3 Mr McGarvie, on behalf of the plaintiff, identified the body functions said to be lost or impaired as the spine; alternatively the left shoulder. The application is thus brought under subsection (a) of the definition of “serious injury” contained in s.93(17) of the Act.
4 In order to succeed, the plaintiff must prove, the onus being upon her, that the consequences emanating from a loss or impairment of the function of the cervical spine, alternatively the left shoulder, are at least “very considerable” and more than “significant” or “marked”.
5 I must consider the consequences to this particular plaintiff, viewed objectively, arising from injury. I must also compare the impairment arising from injury in this application with other cases in the range of possible impairments or losses of body function.
6 The plaintiff and her husband were called to give evidence and be cross- examined. In addition, affidavits of the plaintiff and her husband, medical reports, radiology reports, clinical notes and other material was tendered into evidence. I have read all the tendered material.
7 On behalf of the defendant, Ms Magee outlined the position of her client as follows:
•
There was an exercise to disentangle the consequences on the one hand from the plaintiff’s spinal injury from, on the other hand, her left shoulder injury;
•
Whichever injury was considered, the consequences did not reach the “very considerable” level;
Relevant Background
8 The plaintiff is sixty-six years of age. She remained at school until age twelve in her native Greece and then worked upon the family farm. In 1967, she married her current husband and has three adult children. In 1968, she and her husband migrated to Australia and shortly thereafter she commenced employment. Aside from time away from work to bear and raise her children, she worked on a constant basis until 2001. At that time she was working as a machinist but was retrenched from her employment. She decided she would retire from the workforce.
9 Prior to injury, she was in exceptional health and had been to a doctor only rarely in previous years, to assist with the birth of her children and some minor maladies. In particular, she had the full and free use of her neck and left shoulder.
10 In about 1999, her husband had suffered an injury to his back, neck and shoulder while working for VicRoads. As a result, he was away from work and received payments of compensation from that time through until recently when he was granted a disability pension. He has not returned to work since the original injury. Prior to the subject transport accident, the plaintiff’s husband suffered continual pain in his neck, lower back and right shoulder. As a result, he was restricted in a range of domestic, recreational and social activities which he previously enjoyed. He was restricted in the Greek dancing that he and his wife had participated in. The celebrations which the family sponsored at their house were reduced in terms of the numbers of people who attended, and the number of celebrations each year. However, the family still celebrated Christmas, Easter and various other important days in the Greek calendar.
11 As a result of his injuries, the plaintiff’s husband was required to take medication, including Digesic and Naprosyn. In the subject transport accident, the injuries previously suffered by Mr Dimoulas were aggravated.
12 According to her affidavit, prior to the transport accident, the plaintiff was responsible within the household for all of the domestic chores and tasks. She had no difficulty in performing the heavier aspects of her domestic duties, including mopping, sweeping and vacuuming. On the occasions when the plaintiff and her husband entertained at home, either for their immediate family, or for larger celebrations, the plaintiff took particular pleasure in preparing meals for all the invited guests. This sometimes required her to cook for many days.
13 Prior to the transport accident, the plaintiff and her husband would attend one Greek club in particular, although their activities were curtailed because of her husband’s injuries. They enjoyed an active social life although again restricted to some extent because they were unable to have celebrations in the same manner as before her husband’s work injury.
14 Both the plaintiff and her husband were cross-examined extensively about the effect of the husband’s injuries upon their domestic life between the years when her husband suffered injury in the course of his work, and the subject transport accident. I accept that Mr Dimoulas’ injuries did curtail the activities they previously enjoyed. Both in Mr Dimoulas’ affidavit[1] and the plaintiff’s affidavit,[2] the picture painted is one of unrestricted activities by the couple, particularly in relation to family celebrations, dancing and the attendance at Greek venues. In reality, their activities were curtailed because of his injuries. For reasons which I shall subsequently give, I found both the plaintiff and her husband to be credible and honest witnesses. The divergence between the viva voce evidence on these matters, and what is stated in the affidavit, I put down to somewhat enthusiastic drafting by the person who prepared the affidavits. While undoubtedly they were prepared from instructions provided, I am of the view a certain licence was taken.
[1] Plaintiff’s Court Book (“PCB”) 8
[2] PCB 17 and 18
15 As stated, by 2001 the plaintiff had become retrenched from her employment, and had determined to retire. No part of this application relates to the effect of the injuries sustained on the plaintiff’s employment capacity.
The Transport Accident and its Consequences
16 On 3 September 2004, the plaintiff was a front seat passenger in a motor vehicle driven by her husband. Another vehicle came through a stop sign and collided with the passenger side of the plaintiff’s vehicle. The police were not called, and the plaintiff’s husband was able to drive the car home. Some thousands of dollars damage was caused to the vehicle. At home that evening the plaintiff experienced headaches, took some Panadol and went to sleep. The next day, she felt pain in her neck, left shoulder and lower back and consulted her general practitioner, Dr Gouras. She was prescribed medication, including analgesia and anti-inflammatories. She has been managed by Dr Gouras through to the present time. According to Dr Gouras,[3] the plaintiff has suffered constant neck pain in her lower cervical region, radiating into her head, and both shoulders. In addition, she has suffered left shoulder pain aggravated by use of the left arm.
[3] PCB 49
17 On 8 September 2004, Dr Gouras referred the plaintiff for x-rays to her cervical spine and left shoulder[4] which showed no significant abnormality.
[4] PCB 36
18 In November 2004, the plaintiff was referred to Mr Hugh Hadley, orthopaedic surgeon, who obtained a history that since the transport accident, the plaintiff had pain in her neck and lower back and referred pain down the arm. She also complained of headaches. He diagnosed a strain to her neck muscles, and probable injury to cervical discs, low-back injury with strained muscles, and possibly an injury to her lumbar discs and possible left shoulder rotator cuff lesion. It appears she was examined only on one occasion by Mr Hadley.
19 The plaintiff continued to complain of pain, particularly to her cervical spine, to Dr Gouras, and in February 2005, she was referred to Dr Alex Stockman, rheumatologist, whom she saw on 21 February 2005. Her main problem at that time was pain in the neck, occipital headaches, pain in the left scapular region, left-sided low-back pain and pain in both arms with nocturnal numbness in the left hand. He noted that she was still ingesting analgesia and anti-inflammatory medication. Examination of the neck showed a restricted range of movement, and Dr Stockman concluded that the plaintiff had suffered a soft tissue injury to her neck, thoracic and lumbar spine with the possibility of a rotator cuff lesion in the left shoulder, and carpal tunnel on that side. Again, it appears Dr Stockman saw the plaintiff on only the one occasion.
20 On 17 March 2005, Dr Gouras referred the plaintiff to Dr Laurence Clemens, rheumatologist, and he received complaints of persisting discomfort in her neck, shoulder and arms. Although there was almost a full range of movement in the cervical spine, there was significant discomfort. Neurological testing showed no abnormality and Dr Clemens was uncertain whether there had been any disc injury to the cervical spine, or rotator cuff damage. On 1 April 2005, Dr Clemens arranged for the plaintiff to undergo an MRI examination of the cervical spine and left shoulder.[5] This revealed:
“Shallow disc displacement at C5-6 and to a lesser degree C4-5. No focal cord effacement. Neural foramina are patent. No fracture or dislocation.”
[5] PCB 37
21 Examination of the left shoulder showed inflammation of the subacromial subdeltoid bursa and tendonopathy of the supraspinatus tendon without full or partial thickness tears. Inflammation was noted in the region of the rotator interval. The study concluded:
“Peritendinitis. Tendonopathy of the supraspinatus tendon but no partial or full thickness tear. Inflammation in the rotator interval consistent with impingement. No signs of fracture or dislocation.”
22 Having seen the MRI scan, Dr Clemens[6] concluded the investigation was normal in relation to the cervical spine. As a result of the tendonopathy in the left shoulder, he treated the plaintiff with an injection of steroid and local anaesthetic.
[6] PCB 46
23 In approximately July 2005, the plaintiff was treated with physiotherapy by Mr Paul Kron. The treatment lasted three months, but the plaintiff said that she did not find it helpful.
24 In May 2006, while still under the care of Dr Gouras, she was treated by Dr Dale Comrie, chiropractor. She said that this treatment was helpful, but funding was ceased by the TAC in January 2008. The plaintiff said that she would have preferred this treatment to continue, but was unable to afford it.
25 At the present time, she remains under the treatment of Dr Gouras, who she sees regularly for the prescription of medication. She takes the pain-relieving medication, Digesic, several times per week, depending upon need. This varies from sometimes twice per week, and sometimes daily. In addition, she takes Diazepam, as a muscle-relaxant, usually several times per day. She also takes Endep, an anti-depressant, one to two tablets at night. She has attempted to reduce the intake of these medications as she does not wish to become reliant upon them. In cross-examination, she stated that there were no days when she did not take some form of medication.
26 She is currently seeing no specialist practitioners and receiving no treatment, aside from regular attendances upon Dr Gouras and the medication described. In June 2006, Dr Gouras referred her to Ms Mina Kobatsiari- Karvelis, a psychologist, because of symptoms of depression and anxiety that she was feeling as a result of the transport accident. Although there is no report from that practitioner, her clinical notes over the period from June 2006 until August 2008 were tendered into evidence, together with a “DASS Depression/Anxiety/Stress Scale”[7], a “Montgomery and Asberg Depression Rating Scale”,[8] and a “Hamilton Anxiety Rating Scale”.[9] I did not find these various depression and anxiety scales of assistance as it was difficult to assess the nature and extent of the psychological symptoms they address without any accompanying report. The clinical notes[10] were, however, of assistance, in that they record in the history to the psychologist, regular complaints by the plaintiff of ongoing and distressing cervical pain, consequent difficulties with sleep, and a significant interference with the intimate relations of the plaintiff with her husband. The effect upon her day-to- day activities that the pain in the cervical spine and shoulder cause were considerable. Treatment by the psychologist ceased in August 2008 when funding by the TAC was terminated.
[7] Defendant’s Court Book (“DCB”) 98-99
[8] DCB 100
[9] DCB 101-102
[10] DCB 103-114
27 In relation to her psychological state, Dr Gouras[11] concluded the plaintiff was suffering symptoms of an adjustment disorder, including depression, panic and anxiety attacks, headaches, trembling and insomnia. He also referred to migraine headaches lasting from several hours to one to two days.
[11] PCB 49
28 At the present time, the plaintiff complains[12] that in relation to her left shoulder, she suffers pain, stiffness and restriction of movement. The pain is referred into her neck and down her left arm. She states that she suffers some pain in her right shoulder as she is forced to sleep on that side at night because of the pain in the left. She claims to have lost strength in the left arm, and faces difficulties whenever she has to carry any weight in the left arm, particularly above shoulder height.
[12] PCB 16
29 In relation to her cervical problems, she says the pain is constant and is the worst of the problems that she suffers. It is aggravated by movement of the neck, and looking down is particularly difficult. She states that a range of domestic tasks are particularly affected. Before the transport accident she enjoyed the preparation of food for her family, and guests on celebratory occasions. She was responsible within the home for all of the domestic tasks and states that now her ability to perform those domestic tasks is significantly affected. Her husband now does the heavier tasks, including mopping, sweeping and vacuuming. She still prepares the meals, but is restricted in so doing. As a result, she and her husband have fewer celebratory occasions at home, and with less people. Food preparation is difficult because of the pain in the left shoulder. Further, it is difficult for her to spend time looking in a downward direction while preparing food and cooking. She and her husband socialise less, and attend Greek clubs on fewer occasions. Greek dancing is beyond her, save for occasions such as the weddings of her children. As a result, she claims to have lost confidence, and become depressed and anxious. She still attends her church, and occasionally a Greek citizen’s club. Her intimate relationship with her husband has been significantly affected, and she becomes angry with him and generally because of the impact of the injuries. Her sleep is interrupted. She is no longer able to enjoy the company of her grandchildren as she did previously, and although she and her husband babysit one of the younger grandchildren, she finds it difficult to pick up the grandchild and play with him in the same manner as before the transport accident. Her husband undertakes more of the care of the grandchild when he stays.
30 In evidence, the plaintiff stated that of the three areas of pain, her neck, lower back and left shoulder, the neck was the most significant. She stated[13] that the problem in her low-back was nowhere near as bad as her neck. The plaintiff was asked that in relation to her cooking, which of the conditions of her neck and left shoulder restricted that activity.[14] She stated that both her neck and lower back affected her capacity to cook. She was asked as to whether if she had problems only with her neck whether that would stop her making pastry. She said that she did not know. She said that the worst pain was that of the neck.[15]
[13] Transcript (“T”) 56
[14] T 58
[15] T 59
Medical Evidence
31 I have referred to the treatment and findings of the various treating practitioners who the plaintiff has consulted over the years. In addition, the plaintiff was examined by Mr Kenneth Myers, surgeon, in February 2009.[16] He obtained a history that the plaintiff’s worst pain was on the left side of her neck, extending down the trunk to the lower back. He further noted a disability to the left shoulder with consequent loss of use. He said that the MRI scan of April 2005 showed degenerative disc disease at C4-5 and C5-6 and inflammatory changes in the rotator cuff. He thought that in the transport accident, the plaintiff had suffered aggravation of pre-existing degenerative intervertebral disc disease in the cervical and lumbar spines with soft tissue injury to the cervical and lumbar spines, and injury to the rotator cuff structure of the left shoulder. He considered that the cervical spine would restrict the plaintiff’s social, domestic and recreational activities, as would the disability in the left shoulder. He considered the impairments to be of long-term and there was little chance of improvement in the future.
[16] PCB 51-56
32 The plaintiff was examined by Mr Kenneth Brearley, orthopaedic surgeon, in April 2009.[17] He received a history of constant discomfort or pain in the left side of the neck and left shoulder. He noted that the plaintiff complained of being unable to lift anything significant with the left arm or to do any work above shoulder height. There were restrictions in her domestic and social activities, including the heavier aspects of housework, which her husband undertook, knitting, dancing and lifting her grandchildren. He noted that the MRI scan of April 2005 reported minimal degenerative changes, particularly at C5-6. In relation to the cervical spine, he considered that the plaintiff had suffered an aggravation of pre-existing minor degenerative changes with damage to the soft tissues of the cervical spine. These injuries were responsible for the plaintiff’s ongoing neck pain. In relation to the left shoulder, he thought the plaintiff had suffered some damage to the rotator cuff in the transport accident which had led to the development of chronic subacromial bursitis. He further thought there was some aggravation of mild pre-existing degenerative changes in the lumbar spine.
[17] PCB 59 and 64
33 In relation to the cervical spine, he thought that injury would make it difficult for the plaintiff to undertake her usual domestic work and was further responsible for her being unable to go dancing and for sitting or standing for long periods. Likewise, he thought that there would be a restriction in social, domestic and recreational activities because of her left shoulder injury. He thought that the symptoms would persist in the long-term. He considered the prognosis as poor, with symptoms likely to persist into the future.
34 The plaintiff claims that in accordance with the principles of Richards & Anor. v Wylie,[18] the Court is entitled to have regard to the various psychological symptoms which the plaintiff is suffering as a measure of the seriousness of the organic impairment of the cervical spine and left shoulder. To that end, the plaintiff was examined by a number of psychiatrists, including Dr Nathar, psychiatrist, in June 2009,[19] who diagnosed the plaintiff as suffering three conditions: a chronic post-traumatic stress disorder with phobic anxiety, a major depressive illness, and a chronic pain disorder.
[18] (2000) 1 VR 79
[19] PCB 65-70
35 Further, Associate Professor Paoletti, psychiatrist, examined the plaintiff in May 2009[20] and diagnosed the plaintiff as suffering from an anxiety disorder with components of post-traumatic stress disorder and traffic anxiety, and a chronic adjustment disorder.
[20] PCB 72-81
36 I acknowledge that to a limited extent, the Court can have regard to psychological symptoms as a measure of the severity of physical injury. In this case, however, various of the psychological practitioners have referred to post-traumatic stress disorder and its symptoms. Those symptoms included flashbacks, nightmares, avoidance behaviour and the like. I am of the view that those symptoms cannot be taken into account in assessing organic injury to the neck or left shoulder. The clinical notes of the treating psychologist do make reference to anger, depression and anxiety, and to the limited extent provided by Richards v Wylie & Anor.,[21] I have regard to those symptoms as a measure of the significance of the physical injuries.
[21] (supra)
37 On behalf of the defendant, the plaintiff was examined by Mr Michael Fogarty, orthopaedic surgeon, in October 2007[22] and April 2009.[23] He concluded[24] that the plaintiff had suffered a soft tissue injury to her neck, left shoulder and possibly low-back. He considered that the prognosis was fair although it was unlikely that the plaintiff would enjoy any significant improvement. He accepted that there would be some activities of the plaintiff’s daily living which would be difficult to perform. In his first report he considered that there was some “psychosomatic effect”, which I take to be some form of psychological overlay.
[22] DCB 26-30
[23] DCB 72-75
[24] DCB 74
38 The plaintiff was examined on behalf of the defendant by Dr David Weissman, psychiatrist, in September 2007[25] and June 2009.[26] He concluded the plaintiff was suffering a mild to moderate chronic adjustment disorder with depressed and anxious mood, and a post-traumatic stress disorder.
[25] DCB 31-40
[26] DCB 76-86
Credibility of the Plaintiff
39 I had the opportunity to observe the plaintiff in examination-in-chief and cross- examination. I found her an impressive and honest witness. She made the concessions in cross-examination I would expect of an honest witness. The same assessment applies to her husband.
40 As pointed out by Ms Magee, there were inconsistencies as between her affidavit, and viva voce evidence, particularly in relation to the extent to which the couple was able to enjoy domestic and social activities in the period after Mr Dimoulos’ work-related accident in 1999, and the subject transport accident. As stated, however, I am of the view that this is related to inaccurate drafting and am not satisfied there has been any significant impact upon the credibility either of the plaintiff or her husband as a result.
41 I accept the evidence of the plaintiff in relation to her complaints of pain in her neck and left shoulder. I accept her assessment that of the injuries the neck is the most significant problem. I accept her evidence that that has led to a significant restriction in her domestic, social and recreational activities.
Submissions on behalf of the Defendant
42 Ms Magee submits that I ought to have significant reservations about the credibility of the plaintiff and her husband because of the inconsistencies between the evidence upon affidavit and given viva voce.
43 She submits that when one looks at the domestic and social activities the couple enjoyed before the transport accident, and then afterwards, there was no significant difference. Mr and Mrs Dimoulas did not attend Greek social functions to nearly the extent as before her husband’s workplace injury, and the number of family functions at home, and the number of people attending those functions, was reduced.
44 Ms Magee pointed out that the plaintiff was receiving almost no treatment at the present time, save for attendances upon her general practitioner, and the medication that she was taking was modest only. The plaintiff had had no specialist treatment since approximately 2005. The findings upon radiological examination, particularly the MRI scan of 2005, showed nothing more than modest underlying degenerative disease in the cervical spine, and some inflammation in the left shoulder. Most of the medical practitioners who have examined the plaintiff assessed this change as minimal. In relation to the left shoulder, there were no partial nor full-thickness tears and no substantial structural injury. There was only some inflammation of the tendons and at best soft tissue injury to the rotator cuff structure.
45 Of significance, said Ms Magee, was that the plaintiff was unable to aggregate the consequences flowing on the one hand from the cervical spine, and on the other from the left shoulder. There was little realistic attempt by the various practitioners to objectively assess the consequences in respect of each of the two separate injuries, aside from some general statements to that effect by Mr Brearley and Mr Myers.
46 When one examined the consequences in respect of each injury, they were not sufficient to reach the “very considerable” level as the authorities require.
Conclusions
47 Prior to the transport accident, I am satisfied the plaintiff enjoyed very good health and was able to participate in a range of domestic, social and recreational activities in a completely unrestricted manner. There was some restriction, however, because of injury suffered by her husband in a work- related incident and thus the couple were unable to entertain as much as they had previously done, nor enjoy some activities such as dancing and socialising.
48 I accept that cooking and entertaining were sources of particular pleasure and enjoyment for the plaintiff. I accept that she regularly sponsored celebrations during the year, including birthdays and Greek festival days. After the plaintiff was made redundant from employment in 2001, she looked forward to a happy and unrestricted retirement.
49 In the transport accident, the plaintiff suffered injury primarily to her cervical spine and left shoulder. The injury to the cervical spine was an aggravation of mild underlying degenerative changes, particularly at C5-6 and to a lesser degree at C4-5. Likewise, to the left shoulder, I accept she suffered a soft tissue injury to the rotator cuff structure which has led to some chronic inflammation and tenderness. I am satisfied that the pathology shown in the MRI scan is a basis for the plaintiff’s complaint of ongoing pain in those areas. The plaintiff has had specialist referral on a number of occasions, but none since approximately 2005. In fact her treatment at the present time is modest, although I accept that had funding been continued by the TAC, she would have continued chiropractic treatment as she received benefit from it. I accept that the plaintiff requires ongoing medication in the form of Digesic and anti- inflammatories on a reasonably regular basis to cope with the pain. As stated, I found the plaintiff an impressive witness and accept her complaints as to pain, and the restriction that that pain places upon a range of her activities.
50 All of the practitioners who have examined the plaintiff accept that her situation is permanent, and it is likely that the symptoms will persist for the foreseeable future. No doctor has offered any treatment which is likely to significantly alleviate the situation.
51 Generally speaking there is not a great deal of difference between the opinions of the various physical specialists. All accept that there has been some soft tissue injury to the cervical spine and left shoulder, and that those injuries cause a restriction in the plaintiff’s various activities.
52 When I compare the plaintiff’s health and enjoyment of life in the period before the transport accident and afterwards, I am satisfied that there has been a very marked restriction in a range of particularly domestic and recreational activities as a result of her injuries. The clinical notes of the treating psychologist speak clearly of ongoing pain, a significant affect upon the plaintiff’s sleep patterns, and a frustration and anger at not being able to undertake the activities she previously enjoyed. This has led to a considerable impact upon the plaintiff’s capacity to enjoy intimate relationships with her husband.
53 However, in accordance with the authorities, the plaintiff is not able to aggregate the consequences of the cervical spine injury on the one hand and the left shoulder injury on the other. I accept the evidence of the plaintiff that the cervical spine is the source of the most pain and restriction. In relation to her cooking, a domestic activity in respect of which she took particular pride, she is impaired because she is not able to look down for long periods of time, but also impaired because she is unable to use her left hand, because of the shoulder injury, in the same manner as before. Mr Myers, in his report of March 2009,[27] stated that there were restrictions in the plaintiff’s social, domestic and recreational activities as a result of her cervical spine injury. The same applied in relation to her left shoulder injury. Mr Brearley[28] made a similar assessment. Neither opinion is of significant assistance. Each assessment is cursory and general.
[27] PCB 54
[28] PCB 63
54 I found it difficult to make an assessment of the consequences of each injury, independent from the other, without the aid of medical evidence, tested under cross-examination. There are a number of aspects of this application which are significant. The first is that the plaintiff enjoyed very good health before the transport accident. The second is that she enjoyed and took pride in a range of domestic activities, particularly the preparation of food for family members and friends and all of the domestic duties inside the house. These were matters which were important to her and to some extent a celebration of her Greek culture. In accepting the plaintiff’s complaints of ongoing pain in her neck, which I accept is the worst of her problems, I accept that from the perspective of the cervical spine alone these activities are significantly impaired. Further, particularly having regard to the clinical notes of the treating psychologist, the effect of the pain in the cervical spine has caused difficulties with the plaintiff’s sleep pattern, an effect upon the relationship with her husband, and a degree of frustration and depression as a result.
55 Accepting that these are consequences of the cervical injury, I am satisfied that, excluding the consequences in relation to the left shoulder injury, these consequences reach the “very considerable” level as prescribed by the authorities. Ms Magee argues, with some force, that the pathology is modest only, and likewise the plaintiff’s treatment and medication regime. I accept that this is the case, but that is not the end of the matter when one goes to assess consequences of injury. Although the consequences must be looked at objectively, it is the effect upon this particular plaintiff which is important. I accept her life has been significantly disrupted by her neck injury alone.
56 In these circumstances, I will grant leave to the plaintiff to bring proceedings at common law, and will make appropriate further orders as to costs.
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