Dordev v Transport Accident Commission
[2018] VCC 2036
•7 December 2018
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-01402
| EUFROZINA DORDEV | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 4 and 6 December 2018 | |
DATE OF JUDGMENT: | 7 December 2018 | |
CASE MAY BE CITED AS: | Dordev v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2036 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury application – Aggravation injury to pre-existing lumbar spine condition – Whether consequences of injury organically based or the result of a psychological condition – Whether narrative test satisfied
Legislation Cited: Transport Accident Act 1986 s93
Cases Cited:Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649; Humphries v Poljak [1992] 2 VR 129; ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; Aburrow v Network Personnel Pty Ltd and WorkSafe Victoria [2013] VSCA 46
Judgment:Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab with Ms R Dal Pra | Petersons Lawyers |
| For the Defendant | Mr A Moulds QC with Ms G-J Cooper | Solicitor to the Transport Accident Commission |
HER HONOUR:
Background
1 On 10 February 2014 the plaintiff, Eufrozina Dordev, was riding her battery-powered scooter in the bicycle lane on Donnybrook Road, Norlane. As she approached the intersection of Lockett Court, a car turned suddenly into Lockett Court in front of her, cutting across her path. Mrs Dordev swerved to avoid colliding with the car, and in doing so she came off the road and onto the gravel near the footpath. In the inevitable fall resulting from her sudden evasive action, Mrs Dordev landed on the ground, striking her head, buttocks and neck (“the incident”). The force of the impact was sufficient to break the helmet she was wearing.
2 The motorist concerned immediately checked on Mrs Dordev’s welfare. An ambulance was called and it took her to the Geelong Hospital where she was admitted. She was discharged from the Emergency Department later that day. The plaintiff did not sustain any fractures in the incident, however ever she did suffer soft tissue damage to the lumbar spine (inter alia).
3 The plaintiff concedes that it is most probable that at the time of the incident (and for some time before) she was suffering from a degenerative condition in the spine, including to her lumbar spine, however she claims that this condition was mostly asymptomatic in her lumbar spine.
4 It is not in controversy that ever since the incident Mrs Dordev has suffered ongoing low back pain that radiates to her left hip, down her left leg and as far down as her ankle, sometimes to her toes. Nor is it in controversy that as a result of Mrs Dordev’s ongoing pain she has undergone various forms of treatment including regular consultations with her general practitioner, having physiotherapy, taking prescribed medication, doing exercise programs and participating in a pain management program. Her treatment has consisted of conservative treatment and although the possibility of spinal fusion and injections has been raised, surgery is not indicated and Mrs Dordev is frightened of having the injections.
5 The plaintiff now seeks leave under s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring common law proceedings to recover damages arising from the incident. She alleges that she has suffered a serious injury as defined in s93(17)(a) of the Act, namely:
“serious long-term impairment or loss of a body function”
in particular the lumbar spine.
6 The plaintiff contends that the injury to her lumbar spine is constituted by an aggravation of a pre-existing degenerative condition.
7 The defendant concedes that in the incident aggravation was caused to the plaintiff’s underlying degenerative spine condition, but submits that the physical or organic injuries have long since resolved and that a mental or behavioural disturbance or disorder is now predominantly responsible for the plaintiff’s present condition.
The hearing
8 The hearing commenced before me on 4 December 2018 and continued on 6 December 2018. Mr Macnab appeared with Ms Dal Pra on behalf of the plaintiff. Mr Moulds QC appeared with Ms Cooper on behalf of the defendant.
The evidence
9 The evidence largely comprised of documents and reports. The plaintiff was the only witness required to attend for cross-examination.
10 It was not suggested to the plaintiff that she lied or that her evidence was inaccurate in any material particular. The defendant frankly and appropriately conceded that the plaintiff’s credit is not in issue.
The issues
11 The legal principles are not in dispute. They are correctly set out in the parties’ written submissions.
12 There are two key issues that arises for determination:
13 First, there is a question as to whether as at the date of trial any organic injury is still predominantly responsible for the plaintiff’s pain or whether the plaintiff’s current problems are caused by a mental or behavioural disturbance or disorder in response to, but are no longer causally connected to, the physical injury. In this regard the defendant asserts that the plaintiff’s soft tissue injury and all organic injuries caused by the incident have resolved, and what she is left with is a pain syndrome or disorder unconnected to organic injury.[1]
[1]Although the burden is on the plaintiff to prove that any pain syndrome is predominantly organically based, the defendant’s case to disprove the existence of organic pain went further on the evidence, alleging that there is no organic nexus to the plaintiff’s current complaints of pain
14 If the plaintiff does not establish that her ongoing pain is predominantly attributable to an organic injury arising from the incident, then her application must fail, as she has brought no application for leave under paragraph (c) of the definition of serious injury.[2]
[2]Section 93(17)(c) defines “serious injury” to include “severe long-term mental or severe long-term behavioural disturbance or disorder”
15 If the consequences of plaintiff’s injury are proved as predominantly based on physical injury, then the second question arises: has the plaintiff established on the balance of probabilities that the consequences arising from her lumbar spine injury satisfy the “narrative test”; that is to say, when judged by comparison with other cases in the range of possible impairments or losses, can the consequences of the plaintiff’s lower back injury be fairly described as at least “very considerable” and certainly more than “significant” or “marked”?
Summary of findings
16 For the reasons that follow, I am satisfied on the balance of probabilities that the plaintiff is a credible witness. Further, there is evidence from independent sources that tends to confirm her evidence in a material way.[3] Most significantly, the defendant concedes that it does not make attack on the plaintiff’s credit.
[3]For example see the affidavit of the plaintiff’s daughter, exhibit C
17 I am satisfied on the balance of probabilities that as a consequence of the incident the plaintiff suffered an aggravation of her pre-existing degenerative lumbar spine condition. The aggravation of this condition is severe and long-term.
18 I find that the plaintiff’s pain and suffering consequences are predominantly organically based.
19 I am satisfied on the balance of probabilities that the consequences of the injury when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described as at least “very considerable” and certainly more than “significant” or “marked”.
20 I am satisfied on the balance of probabilities that this aggravation constitutes a serious injury.
21 Accordingly, I propose to grant leave to the plaintiff to bring common law proceedings to recover pain and suffering damages in respect of her serious long-term impairment or loss of body function, namely the lower spine.
Is the plaintiff’s injury predominantly organically based?
22 The evidence on this issue is accurately summarised in the written submissions.
23 As mentioned earlier, it is not in controversy that prior to the incident the plaintiff suffered from a degenerative condition in her spine. She was treated from time to time for symptoms emanating from her neck and mid to upper back. Diagnostic tests essentially disclosed disc degeneration. On occasions the plaintiff also had symptoms from her low back, as a result of which diagnostic tests were conducted. On the day of the incident an x‑ray was conducted of the plaintiff’s lumbosacral spine in the Emergency Department of the Geelong Hospital. The report stated:
“There is a grade 1 anterolisthesis of L5‑S1. A vestigial S1‑S2 intervertebral disc is noted. Vertebral body height is reasonably well preserved, as is intervertebral disc height. No fractures are detected. The lumbosacral facet joints show significant degenerative change.”
24 Examination of the clinical notes of the plaintiff’s treating general practitioners between 7 May 1999 and the date of the incident shows very few records of symptoms arising from the plaintiff’s lumbar spine. There are many complaints of symptoms associated with neck and upper to mid back pain. The records are consistent with a finding that the whole of the plaintiff’s spine was compromised by degenerative changes.
25 The defendant frankly and responsibly conceded that ever since the incident the plaintiff has continued to suffer from ongoing pain and symptoms arising from the lumbar spine.[4]
[4]Transcript (“T”) 97
26 To rebut the plaintiff’s evidence that an organic cause is predominantly responsible for Mrs Dordev’s symptoms, the defendant relies principally on the evidence of Mr Gary Speck, orthopaedic surgeon,[5] who states as his diagnosis:
[5]Exhibit 2
“BACK:
Resolved soft tissue in the lumbar spine and left buttock without radiculopathy in the presence of degenerative change with ongoing symptoms related to pain syndrome. ...[6]
[6](ibid), page 8
...
2.... The injuries to the neck and back are consistent with the description Mrs Dordev gives of the accident on 10/2/2014.
...
4.... The imaging investigations show pre-existing degenerative change in both the cervical and lumbar spine. According to the medical notes and the history obtained from Mrs Dordev, these were not symptomatic. She had treatment for a mid-back (thoracic) condition but not cervical or lumbar problems of note.
...
5.Whether or not you consider there is any and if so what radiological support for Mrs Dordev’s current complaints of injury and disability;
The diagnosis of a pain syndrome is made on the basis of the ongoing, current symptoms. This is not based on radiologic or imaging findings. She has no fractures or other traumatic changes.[7]
...
7. ... The current restrictions of activity and movement in great part relate to pain syndrome with a lack of movement in part based on habit and in part based on anxiety that injury will occur with movement. There is no specific neurologic compromise or definable injury producing the ongoing restrictions.”[8]
[7](ibid), page 9
[8](ibid), page 10
27 The defendant also relies upon the letter and attached report from Mr Michael Strintzos, physiotherapist, of Advance Healthcare Geelong, dated 29 May 2018,[9] which states:
[9]Exhibit M
“Pain classification
Mrs Dordev had 10/17 possible features of central sensitisation (Smart et al 2010) indicating a moderate likelihood of central sensitisation as a significant barrier to recovery.
Subjective:
· Pain persisting beyond expected tissue healing/pathology recovery times
· Strong association with maladaptive psychosocial factors (eg negative emotions, poor self-efficacy, maladaptive beliefs and pain behaviours, altered family/work/social life, medical conflict)
· Reports of spontaneous (ie stimulus-independent) pain and/or paroxysmal pain (ie sudden recurrences and intensification of pain)
· Pain in association with high levels of functional disability
· More constant/unremitting pain
· At least moderate night pain/disturbed sleep
· Pain of high severity and irritability
Clinical examination:
· Disproportionate, inconsistent, non-mechanical/non-anatomical pattern of pain provocation in response to movement/mechanical testing
· Diffuse/non-anatomic areas of pain/tenderness on palpation
· Positive identification of various psychosocial factors (eg catastrophisation, fear-avoidance behaviour, distress).”[10]
[10](ibid), pages 3-4
28 The defendant further submits that in the treating general practitioner’s records there is support to be found for the proposition that psychological features have become more dominant than physical problems. For example, Dr Flores noted in her report of 3 June 2015:[11]
“[Mrs Dordev] claims to have ongoing pains on the neck, left shoulder and lower back and every now and then some other body pains arise. I am starting to look at the aspect of possible anxiety/psychological component of the pain whether or not related to the accident and if she agrees, she might benefit from having some form of counselling too in addition to ongoing physiotherapy.”[12]
[11]Exhibit E1
[12](ibid), page 2
29 There are other references in the material of a similar nature, which are referred to in the defendant’s submissions. Suffice it to say that the plaintiff was referred for treatment in respect of her back and pain problems to a multi-disciplinary pain-management service, which included access to psychological treatment.[13]
[13]See for example exhibit K
30 On the other hand, the plaintiff relies upon a number of expert witnesses to submit that the degenerative disc condition was aggravated in the incident and that this condition is predominantly responsible for the plaintiff’s ongoing pain and restrictions. The plaintiff rejects any suggestion that a pain syndrome is responsible for her ongoing pain and suffering.
31 The plaintiff contends that as Mr Speck is neither a psychologist nor a psychiatrist he is unqualified to express an opinion about psychological or psychiatric matters. In this regard, when expressing his opinion that the plaintiff was suffering from a pain syndrome unconnected to an organic finding, he was straying outside his area of expertise as an orthopaedic surgeon. Moreover, the plaintiff submits that, in arriving at this conclusion, Mr Speck did not expose a logical path of reasoning to explain why a pain syndrome is the cause of the plaintiff’s pain.
32 The plaintiff further relies upon the reports of Dr Andrew Firestone, consultant psychiatrist,[14] and Mr Garry Grossbard, orthopaedic surgeon,[15] whose reports were jointly commissioned by the parties.
[14]Exhibit P
[15]Exhibit Q1. Note that two further reports were obtained from Mr Grossbard, exhibits Q2 and Q3, but these were obtained by the plaintiff alone
33 Mr Grossbard reported that the plaintiff suffered:
“... a soft tissue injury to her lumbar spine in the presence of pre-existing degenerative spondylolisthesis at the L4/5 level. Whilst there is a history consistent with sciatic symptoms, there is no evidence of radiculopathy.
This lady’s pain has persisted for more than three years, without improvement. I would therefore suggest it is unlikely this situation is going to improve significantly in the foreseeable future. There has been a discussion about injections which I presume are into the facet joints of the spine. Whilst this is a reasonable option for severe intractable pain, the effects of these injections are often short-lived. The alternative would be to consider a surgical fusion at the L4/5 level.
Surgery for spinal pain alone is unpredictable. This lady is managing her pain to the extent surgery would be ill-advised. I believe ongoing conservative treatment including an exercise programme is appropriate.
....
In the meantime the appropriate management is an exercise programme. This may need to be supplemented with the occasional session of physiotherapy, although physiotherapy alone is not going to result in a long term benefit.”[16]
[16](ibid), page 4
34 Dr Firestone, the only qualified psychiatrist to provide a report in this matter, specifically ruled out a diagnosis of chronic pain syndrome.[17] Instead, he gave a possible diagnosis of chronic adjustment disorder with mild depressive features.[18] Dr Firestone gave a prognosis in the following terms:
“[Mrs Dordev] is proud of her psychological toughness and I do not expect psychological deterioration. I am not qualified to give a prognosis for her pains and her eye symptoms.”[19]
[17]Exhibit P, page 6
[18](ibid), page 6
[19](ibid), page 8
35 In their written submissions, the parties each analysed the evidence for and against a finding that the plaintiff’s current condition is predominantly organically based. I gratefully adopt their summaries and I repeat their arguments.
The parties’ submissions[20]
[20]Plaintiff’s written submissions, exhibit W; Defendant’s written submissions, exhibit 3
36 On the issue of whether the plaintiff is suffering from a chronic pain syndrome or disorder that is not predominantly organically based, the defendant submitted:
“A. The plaintiff’s symptoms are predominantly psychologically based
5. The defendant accepts that there was an original soft tissue injury to the lower back and to the neck, in the presence of degenerative change, but submits that ongoing symptoms are attributable to a psychologically-based chronic pain syndrome rather than any organic injury.[21]
[21]Mr Speck, exhibit 2 (DCB 14-15); Kam, exhibit 1 (DCB 4)
6. Mr Speck examined the plaintiff on 19 September 2018 and provided a report dated 22 October 2018 (Exhibit 2). Mr Speck formed the view that the plaintiff’s soft tissue neck and lumbar spine injuries had resolved, and that her ongoing symptoms are consistent with a chronic pain syndrome rather than any organic injury.[22] It is submitted that the language of Mr Speck’s report makes it clear that he is describing a non-physical or psychological condition when he speaks of her chronic pain syndrome. Further, this is a term commonly associated with a psychological condition which exacerbates (or produce) a physical impairment.[23]
[22]Exhibit 2 (DCB 14)
[23]Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649 at paragraphs [4]-[7]. See also the published Serious Injury Manual published on the Judicial College of Victoria, section 4.3.3 at paragraph [9]
7. The reports of the plaintiff’s treating practitioners also support the conclusion that the plaintiff’s complaints of pain have a significant psychological overlay as follows:
a.In her report of 3 June 2015,[24] Dr Flores states that the plaintiff ‘claims to have ongoing pains in her neck, left shoulder and lower back and every now and again some other body pains arise. I am starting to look at the aspect of possible anxiety/psychological component to the pain’. The defendant submits that the clinical records demonstrate that Dr Flores comments as to other body pains are, to say the least, valid (See Appendix A for a summary of pain complaints made by the plaintiff to her general practitioners at Corio Bay Medical Clinic, both before and after the MVA).
[24]Exhibit E1 (PCB 31)
b.In her report of 21 February 2017[25], Dr Flores reports that “As you might have noticed that I have mentioned in my previous letter a psychologist referral. I indeed referred her to the specialist but those sessions were centered (sic) more on her bereavement from her daughter’s death. I am going to refer her again to the counsellor regarding her pains and that can also be covered if I will refer her to the pain clinic Radius if TAC will approve the funding”.
[25]Exhibit E2 (PCB 33)
c.In her report of 22 November 2018[26], Dr Flores puts it no higher than that the MVA “could” be a precipitating or exacerbating factor of the back pain which she is still experiencing at present. Dr Flores notes that the plaintiff sees a psychologist who can also give an opinion on possible psychological aspects of the pain. She further says there “might” be a need to restrict various functions and activities in the foreseeable future.[27]
[26]Exhibit E4 (PCB 37)
[27]Flores, exhibit E4 (PCB 37)
d.On 29 May 2018, Advance Healthcare reported[28] that on clinical examination, the plaintiff exhibited[29]:
[28]Exhibit M (PCB 59)
[29]Exhibit M (PCB 63)
i.a disproportionate, inconsistent, non-anatomical pattern of pain provocation in response to testing;
ii.diffuse, non-anatomical areas of pain/tenderness on palpation;
iii.positive identification of various psychosocial factors.
Advance Healthcare also noted that the plaintiff reported:[30]
[30]Exhibit M (PCB 64)
iv.Extremely severe levels of depression and anxiety;
v.Severe levels of stress;
vi.PTSD type symptoms
The Advance report notes that further review of symptoms will be necessary to establish a clear diagnosis, and that the plaintiff’s psychological difficulties appear to have a significant impact on her overall condition and capacity to cope with pain.[31]
8. The defendant submits that there is evidence that, since Dr Firestone’s examination in November 2015, the plaintiff’s psychological condition has become much more of a feature of her presentation.[32]
9. In any event, in November 2015 Dr Firestone makes the observation that the plaintiff’s personality leaves her vulnerable to physical symptoms as an expression of psychological distress.[33] In finding that there is no chronic pain syndrome as at November 2016, Dr Firestone appears to rely on the fact that the plaintiff ‘… gives no history such physical symptoms in the past’.[34] On the other hand, the defendant submits that the medical records indicate numerous complaints of pain, the causes for which (or at least the causes for the continuation of which) appear to have been unknown.[35]
10. In 2015, Dr Firestone notes that although the plaintiff suffers pains which slow down her housework they have not made her change her routines at home or work.[36] Further, Dr Firestone’s opinion that the plaintiff does not suffer from a chronic pain syndrome appears to be based upon the fact that there has been ‘…no change of significance in her normal activities, and she uses little pain medication’.[37] Yet the plaintiff’s case is that there has been significant change in her normal activities and that she takes significant amounts of over the counter medication. Given the observations of Dr Flores and Advance Healthcare, and the opinion of Mr Speck, it is submitted that it is more likely than not that any deterioration in the plaintiff’s condition since Dr Firestone’s analysis is due to psychological factors.
11. In 2015, Dr Love examined the plaintiff for impairment purposes and, although he diagnosed an aggravation of degenerative changes, he assessed her level of WPI at 0%.[38] At that point, the plaintiff had a near full range of movement in the back and the neck.[39]
12. Dr Grossbard diagnoses an aggravation of degenerative disease in the lumbar and cervical spines.[40] [The following passage is not relied upon as counsel conceded that it is factually inaccurate] … .”
[31]Exhibit M (PCB 64)
[32]See Dr Flores, exhibits E1, E2 and E4; Advance Healthcare, exhibit M; Mr Speck, exhibit 2
[33]Dr Firestone, exhibit P (PCB 84)
[34]Dr Firestone, exhibit P (PCB 84)
[35]The plaintiff’s left wrist injury disclosed no fracture, yet her symptoms continued for more than a year, including two lots of splinting. X-rays of the plaintiff’s mid-back pre-dating the accident appear to have caused no concern to the GP (see Transcript), and yet the complaints of mid-back pain continued up until days prior to the MVA. Mid-back pain has continued, at least intermittently, since the accident.
[36]Exhibit P (PCB 80)
[37]Exhibit P (PCB 84)
[38]Dr Love, exhibit O (PCB 74)
[39]Dr Love, exhibit O (PCB 72-3)
[40]Mr Grossbard, Exhibit Q (PCB 104)
37 The plaintiff, on the other hand, submitted:
“The Injury
13. It is submitted that the opinions of Dr Love[41], consultant orthopaedic surgeon, and Mr Grossbard[42], orthopaedic surgeon, ought to be accepted over the opinion of Mr Speck[43].
[41]Exhibit O (PCB 70-78)
[42]Exhibit Q1 (PCB 96-101), exhibit Q2 (PCB 102-103) and exhibit Q3 (PCB-104)
[43]Exhibit 2 (DCB 6-17)
14. The report of Dr Love, consultant orthopaedic surgeon was prepared on behalf of the both the Transport Accident Commission and Petersons Lawyers.
15. In the report Dr Love opined as follows –
‘This woman has constitutional degenerative disease of the thoracic and lumbar spine and I believe the symptoms that she is suffering relate to that condition. It would be reasonable to accept that her condition has been aggravated by the cycle accident in view of her statement that there was an absence of such symptoms prior to the cycle accident of February 2014.’
16. Dr Love was engaged by the Transport Accident Commission and Petersons Lawyers to undertake a joint impairment assessment. The fact that he found the Plaintiff fitted into DRE lumbosacral category 1 – 0% whole person impairment under the section 3.3(g) lumbosacral spine improvement in the American Medical Association Guide to the Evaluation of Permanent Impairment, Fourth Edition, is of no relevance as to whether the plaintiff has suffered an organic injury or whether her condition is a chronic pain disorder.
17. It is submitted that this is an independent assessment as the report was commissioned by both the Transport Accident Commission and Petersons Lawyers.
18. Mr Grossbard, orthopaedic surgeon, in his report dated 13 April 2017 to Petersons Lawyers opined that the Plaintiff had suffered a soft tissue injury to her lumbar spine in the presence of pre-existing degenerative spondylolisthesis at the L4/5 level. Whilst there is a history consistent with sciatic symptoms, there is no evidence of radiculopathy[44]. In his most recent report dated 26 November 2018, Mr Grossbard opined that the plaintiff has underlying degenerative disease affecting her lumbar spine and cervical spine. These have been made symptomatic following the motor accident on 10 February 2014, although the motor accident has not been the cause of the underlying degenerative process[45].
[44]Exhibit Q1 (PCB 99)
[45]Exhibit Q3 (PCB 104)
19. Dr Love and Mr Grossbard both opined that the plaintiff’s condition was stable and that she was likely to suffer from symptoms for the foreseeable future[46].
[46]Mr Grossbard Q1 (PCB 99), exhibit Q3 (PCB 104), Dr Love, exhibit O (PCB 73)
20. Dr Love opined that the prognosis for the plaintiff was poor and that there was unlikely to be any significant change in her symptoms in the near future because of the underlying degenerative nature of her spinal condition[47].
[47]Exhibit O (PCB 73)
21. Mr Speck in the medico-legal report that he prepared on behalf of the Transport Accident Commission, dated 22 October 2018, opined that the plaintiff had suffered a resolved soft tissue injury of the neck and lumbar spine with ongoing symptoms consistent with a pain syndrome rather than any organic injury[48].
[48]Exhibit 2 (DCB 14)
22. First, it is noted that Mr Speck diagnosed the plaintiff to have initially suffered an organic injury being a soft tissue in the neck in the presence of degenerative changes.
23. Secondly, Mr Speck is not qualified to provide an opinion that the plaintiff has suffered a psychologically or psychiatrically driven pain syndrome. He is not a psychiatrist.
24. Thirdly, Dr Speck fails to provide any reasoning as to how or when the original organic injury resolved and became a pain syndrome[49].
[49]Mr Speck, exhibit 2DB-15
25. The only qualified person to provide an opinion as to whether the plaintiff is suffering from a psychiatrically driven pain syndrome is Dr Andrew Firestone, consultant psychiatrist. Dr Firestone examined the plaintiff on behalf of both Petersons Lawyers and the Transport Accident Commission for the purposes of a joint impairment and serious injury report[50].
[50]Exhibit P (PCB 79)
26. Dr Firestone opined that he did not diagnose a chronic pain syndrome[51] (our emphasis). He diagnosed a possible chronic adjustment disorder with mild depressive features[52].
[51]Exhibit P (PCB 84)
[52]PCB 84
27. The defendant elected not to have the plaintiff assessed by a psychiatrist in circumstances where it was in possession of the report of Mr Speck.
28. With respect to the plaintiff’s treating general practitioner it would appear that Dr Flores defers to the opinion of the specialists.[53]
29. Dr Nash, treating specialist pain medicine physician, spoke to the plaintiff about a range of treatment options, including further medication trial or intervention approaches for facet joint arthropathy or musculo-skeletal targets. This would suggest that an organic injury was clearly contemplated by Dr Nash[54]. The fact that the plaintiff was keen to embrace psychological approaches does not detract from this.
30. Indeed, the purpose of the psychological approach was to improve functional levels and to promote better coping and self-management strategies as well as greater self-efficacy[55].
31. Due to the difficulties with attending Pain Matrix, the plaintiff sought pain management through Advanced Health Care. Mr Tyson Sharp, general psychologist, in his report dated 24 April 2018 diagnosed an adjustment disorder with mixed anxiety and depressed mood in the context of her injury and persistent pain condition. He noted that the plaintiff presented with traumatic type symptoms. However, he considered her mental health difficulties appeared predominantly driven by her persistent pain and adjustment/coping with the impact of her condition. Significantly, Mr Sharp did not diagnose the plaintiff to be suffering from a psychologically driven pain syndrome, but rather that she was suffering an adjustment disorder in response to her persistent pain condition.
32. Michael Strintzos, pain management physiotherapist, at Advanced Health Care, provided a multidisciplinary pain management assessment to Dr Flores undercover of letter dated 29 May 2018[56]. Under the heading pain classification, it was noted that the plaintiff had 10/17 possible features of central sensitisation (Smart Et al 2010) indicating a moderate likelihood of central sensitisation as a significant barrier to recovering. On assessment the plaintiff was found to have moderately severe symptomatic cervical and lumbar degeneration and likely sacro-iliac joint dysfunction … Using the DSM-V, the plaintiff was diagnosed with adjustment disorder with mixed anxiety and depressed mood, in the context of her injury and persistent pain condition. She also was found to experience symptoms of trauma that impact her mental health, though they did not meet the full criteria of formal diagnosis of PTSD.
33. It is submitted that after undergoing a multidisciplinary management assessment, the plaintiff was not found to be suffering from a chronic pain disorder that could be said to be psychologically or psychiatrically driven.
34. Similarly, Ms Hema Navaratnam, psychologist, Advanced Health Care, diagnosed the plaintiff with an adjustment disorder with mixed anxiety and depressed mood in the context of her injury and persistent pain condition. It was noted that after completing an eight week multidisciplinary network pain management program that the plaintiff reported some improvement in her condition.
35. The report of Dr Kam to the defendant dated 24 August 2018[57], is of no probative value. He identifies the degenerative changes in the plaintiff’s spine. The plaintiff’s case is the asymptomatic degenerative changes were aggravated by the transport accident, causing the plaintiff ongoing symptoms. Dr Kam does not deal with this issue.
36. Accordingly, it is submitted that the Court ought to find that the plaintiff has suffered an aggravation of degenerative disc disease of her cervical and lumbar spine as a result of the claimed transport accident. Furthermore, the plaintiff has suffered an adjustment disorder with depressed mood consequential to the physical injury.”
[53]Exhibit EE4 (PCB 37)
[54]Exhibit H (PCB 47)
[55]Exhibit J Report of Dr James Philips, psychologist, Pain Matrix (PCB 48)
[56]Exhibit M (PCB 59-65)
[57]Exhibit 1
Findings
38 I respectfully agree with the plaintiff’s counsel that the plaintiff’s ongoing pain and restrictions are predominantly the result of organic injury, namely aggravation of her pre-existing degenerative condition in the lumbar spine.
39 I also agree that Dr Firestone is best qualified to make a finding about any psychiatric or psychological condition that may be burdening the plaintiff. He specifically considered the question of whether or not a chronic pain syndrome was responsible for the plaintiff’s current pain and suffering. Dr Firestone conducted a psychiatric examination, which included a mental state examination. It was after this full psychiatric examination that he specifically excluded a diagnosis of chronic pain syndrome.
40 On the other hand, Mr Speck, although a respected orthopaedic surgeon, conducted no psychiatric examination or mental state examination, as far as I can ascertain from his report. Although Mr Speck is well qualified to say that the plaintiff is not currently suffering from any organic injury, his opinion about the plaintiff’s psychiatric condition is of little, if any, weight. Accordingly, I read his report to mean that there is no organic basis to explain the plaintiff’s current ongoing pain and suffering arising from her lumbar spine.
41 As I mentioned earlier, there is consensus between the parties that the plaintiff suffered an aggravation of her pre-existing degenerative condition in her lumbar spine as a result of the incident. This constitutes an organic injury, a fact the parties agree upon. The parties also agree that what was essentially an asymptomatic condition became symptomatic as a result of the incident. There is no dispute that ever since the incident, those symptoms have persisted and have continued in like manner and with consistent degrees of intensity.
42 The defendant was unable to pinpoint any particular date or time at which it could be said that what was previously a symptom of an organic degenerative disc condition was obviously now predominantly the result of a psychological condition. Although I accept it is most likely that the plaintiff has developed a psychological reaction to her pain, that does not detract from the evidence that her condition is predominantly organically based.
43 I am satisfied on the balance of probabilities that the evidence upon which the plaintiff relies to establish this point should be preferred to the evidence relied upon by the defendant. In this regard I have already found that Mr Speck’s opinion that the plaintiff suffered from “a pain syndrome” is of little assistance.
44 The evidence from those involved in the plaintiff’s treatment at Advance Healthcare (including Mr Tyson Sharpe, psychologist) indicated a “moderate likelihood of central sensitisation”, a condition which I understand affects the nervous system. In the same report relied upon by the defendant,[58] the author stated under the heading ‘Recommendations’:
“On assessment Mrs Dordev had moderate severity symptomatic cervical and lumbar degeneration and likely sacroiliac joint dysfunction (reduced force closure).
Using the DSM‑V, Mrs Dordev was diagnosed with Adjustment Disorder with mixed anxiety and depressed mood, in the context of her injury and persistent pain condition. She experiences symptoms of trauma that impact her mental health though do not appear to meet full criteria of a formal diagnosis of PTSD.”[59]
[58]Exhibit M
[59](ibid), page 5
45 In summary, on this issue, I prefer the plaintiff’s evidence to the defendant’s because:
(i) the preponderance of the evidence is that the plaintiff’s condition is predominantly organically based;
(ii) the only witness who states that the plaintiff is suffering from a “pain syndrome” is Mr Speck, who did not conduct a psychiatric examination of the plaintiff and who is not qualified as a psychiatrist;
(iii) the opinion of the only psychiatrist who has reported in this matter, Dr Firestone, has ruled out a diagnosis of chronic pain syndrome;
(iv) in my view Dr Firestone’s reference to the plaintiff’s domestic and social activities does not undermine significantly his opinion that the plaintiff is not suffering from a chronic pain syndrome. The effect on Mrs Dordev’s level of functioning has been consistent ever since the incident, that is to say both at the time when the defendant concedes that an organic cause was responsible for the plaintiff’s pain and also at the time when it asserts that an organic cause is not responsible for the plaintiff’s pain;
(v) the plaintiff’s treating practitioners have continued to treat the plaintiff for both physical and psychological problems;
(vi) the possibility of spinal fusion and injections have been discussed and dismissed not because there is no organic injury to treat, but because they will not likely provide real benefit; and
(vii) those involved in the plaintiff’s multi-disciplinary treatment at Advance Healthcare consider the plaintiff’s condition to be organically based with a psychological reaction of adjustment disorder with mixed anxiety and depressed mood and have treated her accordingly.
Has the Plaintiff satisfied the narrative test?
46 As mentioned earlier, the defendant concedes that ever since the incident, the plaintiff has continued to suffer ongoing pain and restrictions.
47 The defendant contends, however, that the plaintiff has not established that she has consequences from the back injury which are ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.[60] As Mr Moulds put it:
“With the greatest respect to Mrs Dordev, and again I don’t mean any criticism of her, we submit that Mrs Dordev is a 65 year old plaintiff who has got a sore back, quite sore. It doesn’t interfere with her work capacity. It interferes with the heavier aspects of her housework. It doesn’t really interfere with her mobility, Your Honour, because she was never a terribly mobile person in the first place. We don’t derogate from the proposition that Mrs Dordev has a sore back at all or a painful back. The question is whether it’s a serious injury.”[61]
[60]Humphries & Anor v Poljak (1992) 2 VR 129
[61]T97
48 On the other hand, the plaintiff submits that the consequences do satisfy the narrative test. The plaintiff asserts that her ongoing pain restricts her capacity to sit, stand, walk, lift heavy objects, sleep comfortably and move freely. She further states, and it is accepted, that the pain is constant (in varying degrees of intensity) and travels from her mid lower back into her left hip and down as far as her ankle and sometimes to her toes. The plaintiff asserts that the pain interferes with her daily living, social, domestic and work activities.
49 The authorities make it clear that the endurance of permanent daily pain requiring frequent medication must, according to ordinary human experience, raise a real prospect of a “very considerable” consequence.[62]
[62]ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31 at paragraph [71]; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267 (28 November 2007) at paragraph [199]
50 The court is required to determine both the extent of the plaintiff’s pain and also its consequences for the plaintiff.[63]
[63]Aburrow v Network Personnel Pty Ltd & WorkSafe Victoria [2013] VSCA 46 at paragraphs [10]-[11] and [19]-[20]
The Plaintiff’s experience of pain and its consequences
51 The plaintiff’s counsel have summarised the uncontested evidence about the level of the plaintiff’s pain, its intensity, its frequency, and the medication that the plaintiff takes to alleviate her pain. Counsel have also summarised the extensive treatment that the plaintiff has undergone to deal with the consequences of her injury: As mentioned, the plaintiff has had regular treatment from her general practitioner. She has undergone numerous diagnostic examinations, including radiological tests. She has had extensive physiotherapy. She has been referred to a surgeon, she has participated in a pain-management program, and she has undertaken an exercise program.
52 Since the incident, the plaintiff has attended her general practitioner for her lumbar spine condition on eleven occasions in 2014, five occasions in 2015, seven occasions in 2016, eight occasions in 2017, and twice in 2018. In the period 2017–2018 she actively participated in the multidisciplinary treatment at Advance Healthcare, which included the exercise program. Since the incident she has had physiotherapy treatment on nineteen occasions in 2014, twenty-three occasions in 2015, twenty-eight occasions in 2016, and sixteen occasions in 2017.
The parties’ submissions
53 In their written submissions, the parties each analysed the evidence about the plaintiff’s pain. I gratefully adopt their summaries and I repeat their arguments.
54 The plaintiff submitted:
“Pain
51. The plaintiff suffers constant, low back pain. In her first affidavit which was sworn on 25 October 2016 at paragraph 10 the plaintiff described her symptoms as follows –
‘10. I have ongoing low back pain which is daily. There is a throbbing ache in my back and at times it is a more severe sharp stabbing pain. I get referred pain down my left leg.’[64]
52. In the plaintiff’s further affidavit sworn 25 October 2018, she describes her pain as follows –
‘6. I continue to suffer pain in my low back on a daily basis. The pain in my low back is normally about 5-6/10 on a pain scale. The pain in my back radiates down my left side and into my left leg to my ankle. The pain is always there.
7.Bending, lifting, twisting or stooping are the types of activities that cause me worse pain. I also have difficulty sitting, standing or walking for lengthy periods.’[65]
[64]Exhibit A (PCB 10)
[65]Exhibit B (PCB 13-14)
53. Under cross-examination, the plaintiff gave evidence that she suffered from constant low back pain that goes to the outside of her leg and sometimes goes to her toes[66].
[66]T20, L31 – T21, L4
54. In re-examination, the plaintiff provided a detailed account as to the location of her low back pain and how it radiated into her left buttock and down her left leg towards her ankle. She indicated that at times she suffers from shooting pain down her leg[67].
[67]T53-57
55. Bending lifting, twisting or stooping cause worse pain. The plaintiff also has difficulty sitting, standing or walking for lengthy periods[68].
[68]Exhibit B (PCB 13 paragraph [7])
56. As a result of the pain, the plaintiff continues to have problems with sleeping. She finds it difficult to fall asleep and is often woken by pain during the night[69]. Every night the plaintiff would get up probably once during the night but she would often have to change position in bed during the night. When she wakes up in the morning, she feels tired and like she has not had a complete sleep[70].
[69]Exhibit B (PCB 14, paragraph [10])
[70]T61, L3-20
57. The plaintiff now requires assistance from her daughter to help with shopping on a Saturday or Sunday[71] and domestic chores. This evidence was corroborated by the plaintiff’s daughter, Elizabeth, in the affidavit that was sworn by her on 28 October 2018[72].
58. The plaintiff gave evidence about her low back injury on her social life[73]. In re-examination, the plaintiff gave evidence that prior to the transport accident she did not have any problems with her social life and that it was very important to her. Prior to the transport accident she used to have lots of parties at her place or at friends’ places[74].”
59. The plaintiff gave evidence about the impact the injury has had on her ability to undertake housework and in particular cooking. Cooking was very important to her prior to the transport accident because she was part of a traditional European old style kind of family where she would do everything; cooking and looking after her husband[75]. The plaintiff now has difficulties undertaking housework and that she needs to pace herself because if she does too much the pain becomes more severe and she has to stop[76]. The plaintiff also gets assistance from her husband to carry the washing out to the line and to hang it up[77].
60. The plaintiff’s low back condition also impacts on her ability to work in Melbourne, or out of Geelong[78]. At times when the pain is severe it does have an impact on her ability to interpreter as she loses her concentration and she is not accurate[79].
Medical Evidence
61. Dr Flores, treating general practitioner, in her report dated 22 November 2018 opined that there might be a need to restrict activities including lifting, bending, twisting, stooping, prolonged sitting, standing or walking for the foreseeable future if it causes her significant pain or discomfort and there might be a need to restrict her activities in relation to her social, domestic and recreational activities in the foreseeable future if it causes her significant pain or discomfort[80].
62. Dr Love, consultant orthopaedic surgeon, in his report dated 5 October 2015 considered that the plaintiff’s prognosis was poor and that there is unlikely to be any significant change in her symptoms in the near future because of the underlying degenerative nature of her spinal condition[81]. He considered that the plaintiff will have a partial future incapacity which will be permanent[82].
63. Mr Grossbard, orthopaedic surgeon, in his report dated 13 April 2017 considered that the plaintiff’s situation was unlikely to improve significantly in the foreseeable future. He noted there had been discussions about injections which he presumed were into the facet joints of the spine. Whist he considered this a reasonable option for severe and intractable pain, he opined that the effects of these injections are often short lived. The alternative would be to consider a surgical fusion at the L4/5 level[83].
64. Mr Grossbard in his report dated 4 October 2018 opined that the plaintiff’s ability to undertake activity where pushing, pulling, bending and stooping are required is limited[84]. In his most recent report dated 26 November 2018[85], Mr Grossbard opined that the plaintiff’s outlook was for ongoing symptoms.
65. Notwithstanding Mr Specks’ opinion that the plaintiff was suffering from a pain syndrome, he noted the plaintiff’s restrictions on her activities of daily living and he opined that he expected the plaintiff to experience a similar level of restriction…[86].
[71]T60, L9
[72]Exhibit C (PCB 17)
[73]T43 and T58
[74]T58, L20 – T59, L6
[75]T59, L14
[76]T59, L29 – T60, L18
[77]T62 – T63
[78]T12
[79]T58, L6
[80]Exhibit E4 (PCB 37)
[81]Exhibit O (PCB 73)
[82]Exhibit O (PCB 75)
[83]Exhibit Q1 (PCB 99)
[84]Exhibit Q2 (PCB 103)
[85]Exhibit Q3 (PCB 104)
[86]Exhibit 2 (DCB 17)
Disentangling
66. The plaintiff’s evidence was that she had suffered from a problem in her upper back prior to the transport accident which troubled her from time to time, but that the pain was not as severe as the pain that she experienced in her low back after the transport accident. She gave evidence that it was just sort of an ache, not a severe pain[87].
67. The plaintiff also gave evidence that she now has no wrist pain[88].
68. Finally, the plaintiff has given evidence and consistently, provided a history, to the doctors that her neck pain is not as severe as her low back pain.
69. It is submitted that it is the plaintiff’s low back in particular which impacts on her ability to undertake her social, domestic and recreational activities and it is the injury and impairment of her low back which has resulted in constant pain and activity related restrictions. The plaintiff has had to live with this pain since 10 February 2014 and it is likely to continue for the foreseeable future. The plaintiff is only 65 years of age.
70. It is submitted that when the totality of the evidence is assessed that the consequences of the plaintiff’s injury and impairment amount to ‘very considerable’ consequences. Accordingly, the plaintiff ought to be granted leave to commence common law proceedings.”
[87]T25, L24
[88]T52, L12
55 On the other hand, the defendant submitted:
“B. The claimed consequences do not reach the serious injury threshold
13. Assuming that the consequences alleged by the plaintiff are from a physical injury to her neck and lumbar spine, then it is submitted that, in any event, the evidence regarding those consequences is insufficient to enable the plaintiff to prove, on the balance of probabilities, that the consequences are ‘at least very considerable’.[89]
[89]Humphries & Anor v Poljak [1992] 2 VR 129
Pain & medication
14. The plaintiff’s evidence of pain being ‘constant’ and 6 or 7 out of 10[90] is not consistent with her continued high level of functionality, using only moderate levels of medication at best.[91]
[90]T57, L4-6
[91]T53, L4-9
Employment
15. The plaintiff’s continued high level of functioning is best demonstrated by her continued work as an interpreter. Contrary to her evidence[92], her tax returns for the relevant years demonstrate earnings at a consistent level both before and after the MVA.[93]
[92]Further affidavit of the plaintiff, exhibit B2, PCB 14 at paragraph [14]
[93]Exhibit R
16. The plaintiff’s FY2013 tax return shows a modest $11,104 in income from interpreting. However, in FY2014, the year the incident occurred, the plaintiff earned almost double that amount - $19,533 - and she returned to work after the accident within 3 days.[94]
[94]T38, L1-5
17. There is no evidence that any further time off work has been required. There is therefore no evidence of any pecuniary disadvantage or loss of amenity by reason of an inability to work. On the contrary, she loves her job and is able to do it.[95] The plaintiff deposed that she wished to work until she was 70.[96] There is no evidence that she will not be able to do this.
[95]T39, L24-26
[96]Further affidavit of the plaintiff, exhibit B2, PCB 15 at paragraph [19]
18. In her most recent affidavit, the plaintiff deposes that the amount of interpreting work is limited by her back and neck.[97] There is no evidence that this is the case. She says she cannot travel to Melbourne, but there is no evidence that this has led to any reduction in work. In fact, on the contrary, the tax returns indicate that her income has remained much the same.[98]
[97]Exhibit B2, PCB 14 at paragraph [14]
[98]Exhibit R
Recreation and leisure
19. In terms of recreational pursuits, the plaintiff does not depose to any recreational activities which have become restricted apart from cooking and housekeeping.
20. In a history given to Mr Speck, the plaintiff spoke of not being able to play table tennis,[99] but her evidence in Court was that she had only played 2 games since coming to Australia.[100] Gardening was also nominated to Mr Speck.[101] The evidence was that she continues to garden.[102]
21. In terms of her social and family life, it is submitted that the restrictions on her social life are limited. She and her husband still visit friends every 2-4 weeks[103] and it would appear that one of her friends does not visit because she has no capacity to drive.[104] Her allegation of a florid social life pre-accident is at odds with the painful back and wrist conditions for which she was seeking treatment from her general practitioner.[105] At one point her mid-back was significantly flared by a session in the dentist chair, days before this accident.[106]
22. The plaintiff alleges that her cooking activities are restricted.[107] The plaintiff says she can no longer cook for large gatherings, but the evidence is that she cooks all the meals for her and her husband.[108] The plaintiff’s daughter visits regularly on weekends and goes shopping with her mother.[109] This is contact that the plaintiff enjoys.[110]
23. As to housework, the plaintiff’s evidence was that there is not much to be done,[111] and that there are minimal aspects that cause her trouble - vacuuming, which she still does in any event, hanging out the washing (which she shares with her husband) and cleaning the low parts of the bathroom, which her daughter assists with.[112] These losses either in isolation or in combination with other losses does not found an argument that the domestic consequences for the plaintiff are very considerable. The light weekday shopping is undertaking by the plaintiff independently on the bus.[113]
24. Although the plaintiff alleges problems with sleeping,[114] there is no evidence from the general practitioner that there is such a problem nor is there any prescription of medication necessary.
25. The defendant further submits that any current consequences need to be looked at in the context of the plaintiff’s consistent complaints of thoracic back pain from the early 2000s,[115] including x-rays of both the lumbar spine and thoracic spine.[116] In other words, this is not a situation where the plaintiff had a painless spine. On the contrary, there were significant difficulties associated with at least her mid-back region which, as a matter of necessary inference, must have at least intermittently, given her difficulties with her leisure and work activities. Indeed, a matter of days before the accident, the plaintiff’s physiotherapist was noting difficulties with ADLs,[117] as a result of thoracic back pain.
26. Since the accident, those pains have been reported again on multiple occasions, the most recent being 5 December 2017.[118] There is no medical evidence that the mid-spine injury has been aggravated by the accident. The plaintiff herself, in early 2018, was clearly concerned about the widespread nature of her pain, attending the doctor to ask whether she had fibromyalgia.[119]
27. In light of the above it is submitted that the consequences do not reach the ‘very considerable’ threshold.”
[99]Exhibit 2, DCB 16
[100]T42, L26-27
[101]Exhibit 2, DCB 16
[102]T42, L6-20
[103]T42, L6-9
[104]T42, L10-14
[105]See Attachment A to these submissions
[106]Exhibit T, entry 1 February 2014, 5 February 2014
[107]T41, L28-9
[108]T45, L9
[109]T40, L26-28
[110]T44, L22-23
[111]T41, L19-20
[112]T41, L15-27; T45, L17-25
[113]T40, L8-20
[114]T62
[115]See exhibit S, entries 3 March 2007, 13 January 2006, 20 September 2002, exhibit T
[116]Exhibit T entry 16 January 2014, exhibit U
[117]Exhibit T, entry 3 February 2014
[118]Exhibit T
[119]Exhibit T, entry 18 January 2018
Findings
56 I am satisfied on the balance of probabilities that what the plaintiff has said about her pain, both in her evidence before me and to the doctors, is accurate.
57 I am satisfied on the balance of probabilities that the plaintiff is unable to rely on medications that might otherwise assist in alleviating her pain because of other medical conditions (including irritable bowel syndrome)[120] and because of the side effects these medications produce upon her. I accept that the plaintiff takes medication that others might consider to be mild, but in her case these drugs seem to be the only ones available to assist her. The inability to rely on stronger medications to relieve her pain is a factor I take into account.
[120]Exhibit A, paragraph 12
58 The plaintiff has been offered injections to alleviate her pain, but she is frightened of having them. In any event, as the evidence shows, the effects of such treatment may have little long-term benefit. The possibility of having spinal fusion surgery has been discussed, but ruled out. The plaintiff is left with conservative treatment as the only realistic treatment option for the foreseeable future.
59 The plaintiff’s pain affects every aspect of her life. I am satisfied on the balance of probabilities that Mrs Dordev is stoic. I so find because, despite her obvious pain and restrictions, she persists with employment to supplement her household income, she has not given up on domestic chores, and in every aspect of her life she does the best she can, to do what she can, when she can, despite her pain.
60 I note that in his report, when Mr Sharpe, psychologist,[121] referred to his mental state examination of the plaintiff, he found that the plaintiff was “somewhat stoic”.[122] I take Mr Sharpe’s opinion into account, however my assessment of the plaintiff’s stoicism is based on the totality of the evidence.
[121]Exhibit K
[122]Ibid, page 2
Consequences
Work
61 Although the plaintiff can work as an interpreter, a job she loves, she cannot travel to Melbourne to undertake that work. She relies upon finding work locally. The loss of the ability to catch public transport is a consequence I must take into account. That the plaintiff has not travelled to Melbourne on a frequent basis in the past does not detract from the fact that her ability to travel by public transport has been limited as a direct consequence of her injury.
62 Most significantly, the simple fact is that although the plaintiff can work, she does so with pain and restrictions.
Sleep
63 It is not in controversy that the plaintiff’s sleep is interrupted every night because of her pain. When she wakes she does not feel refreshed.[123]
[123]See for example exhibit M, page 2
Mobility
64 The tolerances referred to in the evidence summarised by counsel on this issue are not in dispute.
65 The plaintiff no longer rides her motor scooter, and is entirely dependent upon family members to drive her to where she needs to go, or she takes public transport for short trips. The loss of the ability to travel independently by public transport for longer trips is a factor I take into account.
66 Her walking is limited to 15 minutes, sitting to 30 minutes, and static standing to 15 minutes. She is unable to repeatedly bend forward. She is unable to lift more than 3-5 kilograms. She is unable to do heavy housework and is moderately restricted in any social activities.[124]
[124]Exhibit M, page 2
Cognitive functioning
67 The medication that the plaintiff takes does not appear to have affected her level of cognitive functioning.
68 As mentioned, the plaintiff has suffered a psychological reaction to her physical injury. It does not appear that her cognitive functioning is compromised to a significant degree, however the plaintiff’s psychological reaction to her physical injury is a factor to be taken account.
Capacity for self-care and self-management
69 The plaintiff is mostly able to manage with the activities of daily life, although some aspects of self-care are executed with pain. She has difficulty dressing. She has difficulty putting on her shoes, and she now wears loose slip-on shoes.[125]
[125]Exhibit A, paragraph 20
Performance of household and family duties
70 The plaintiff is able to undertake some household chores. She relies upon her husband and daughter to assist. The loss of being able to keep a clean and tidy house and cook for her family is very upsetting for the plaintiff.[126]
Recreational activities and social life
[126]Exhibit B, paragraphs 11-12
71 Although she can do some gardening, her activities are restricted. The plaintiff’s social life is diminished in the manner she described.
Conclusion
72 It is true that the plaintiff had symptoms associated with her neck, upper and mid back prior to the incident. The consequences arising from the incident have heaped more problems and symptoms onto an already impoverished spine. The parties have compared the consequences of the plaintiff’s underlying degenerative lumbar spine condition before the incident with the consequences after the incident. Counsel agree that prior to the incident the underlying degenerative lumbar spine condition was asymptomatic. The consequences I have described above have arisen as a consequence of the incident.
73 I am satisfied in all the circumstances that when judged by comparison with other cases in the range of possible impairments or losses, the consequences of the plaintiff’s lower back injury can be fairly described at least as “very considerable” and certainly more than “significant” or “marked”.
Conclusion and orders
74 The plaintiff suffered organic injury in the incident in the form of aggravation of a pre-existing degenerative lumbar condition.
75 The consequences of the injury satisfy the narrative test.
76 The consequences are predominantly organically based.
77 There being no dispute that the consequences arising from the incident are permanent, I am satisfied on the evidence before me that they are.
78 In all the circumstances, leave is granted to the plaintiff to bring common law proceedings to recover damages arising from the incident.
79 I shall hear the parties on the question of costs.
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