Dougramagis v TAC
[2013] VCC 1205
•13 September 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised (Not) Restricted Suitable for Publication |
DAMAGES LIST
SERIOUS INJURY DIVISION
Case No. CI-12-03468
| HELEN DOUGRAMAGIS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 September 2013 | |
DATE OF JUDGMENT: | 13 September 2013 | |
CASE MAY BE CITED AS: | Dougramagis v TAC | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1205 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Transport accident - Serious injury - Cervical spine – Serious long term impairment.
Legislation Cited: Transport Accident Act 1986
Judgment: Leave to proceed granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W R Middleton SC with Ms K Galpin | Zaparas Lawyers |
| For the Defendant | Mr J Philbrick SC with Ms E Hill | Transport Accident Commission |
HER HONOUR:
1 Helen Dougramagis seeks leave pursuant to s.93(4)(d) of the Transport Accident Act 1986 (As Amended) (“the Act”), to bring common law proceedings to recover damages for injury suffered by her arising out of a transport accident on 14 June 2009 (“the transport accident”).
2 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s.93(17) of the Act, which reads:
“In this section –…
Serious injury means -
(a) serious long-term impairment or loss of a body function”.
3 The body function relied on is the spine, specifically the cervical spine.
4 As was stated recently by the Court of Appeal in Elias v Transport Accident Commission [2013] VSCA 123, a case concerning a physical impairment (that is a claim under paragraph (a)), the general guiding principles may be summarised as follows:
· the applicant for leave to bring proceedings must establish on the balance of probabilities that he or she suffered a ‘serious injury’ as a result of a transport accident;[1]
· although the test for determining whether an applicant has suffered a serious long term impairment or loss of bodily function is subjective in the sense that it is the effect on the particular applicant’s body function that must be considered, nevertheless it is the judge’s opinion as to the seriousness of the impairment or loss which is decisive;[2]
· in order to be ‘serious’, the consequences of the injury must be serious to the particular applicant in relation to either pecuniary disadvantage or pain and suffering, or both: when judged by a comparison with other cases in the range of possible impairments or losses, they must be fairly described as at least ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.[3]
[1]Petkovski v Galletti [1994] 1 VR 436, 437; Spence v Gomez [2006] VSCA 48, [8]
[2]Transport Accident Commission v Kamel [2011] VSCA 110 [62]; Humphries v Poljak [1992] 2 VR 129, 134
[3]Humphries v Poljak [1992] 2 VR 129, 140; Spence v Gomez [2006] VSCA 48 [8]; Transport Accident Commission v Kamel [2011] VSCA 110 [64]
5 Mr Middleton, on behalf of the plaintiff, submitted that the part of the body said to be impaired is the cervical spine including referred pain into the left shoulder with some associated anxiety and depression and post traumatic stress disorder which would be in the form of a Richards v Wylie & Anor[4] consequence but not capable of making or sustaining a limb (c) combination.[5]
[4](2000) 1 VR 79
[5]See T 1, L23-31, T2 L1
6 Other particulars of injury were pleaded involving the back and shoulders, however the plaintiff did not rely on those injuries in this application.
7 Mr Philbrick, on behalf of the defendant, submitted that the Court ought to reject the application on a number of bases. He submitted that there was a body of expert opinion relied upon by the plaintiff who expressed the view that the plaintiff either has psychiatric factors at play or a Chronic Pain Syndrome. He submitted that if a substantial and operative cause of the plaintiff’s ongoing symptoms and consequences are psychological then the application must fail because no claim is made under paragraph (c) of the narrative test.
8 For reasons I explain I reject this submission. There is ample evidence to base a finding that the plaintiff’s ongoing neck problems are organic.
9 Alternatively, if the Court finds that the injury and consequences are sufficiently organically based, he submitted there are two separate body functions which are causing the consequences, the spine and the left shoulder which is not part of the claim.
10 He submitted that the Court could not aggregate the cervical spine consequences and the left shoulder function consequences as they are two individual body functions and that the evidence does not bear out that the left shoulder consequences are in any way related to the cervical spine problems.
11 Part of that analysis is correct. However, I am satisfied that there is a sufficient causal link between the cervical spine problem and referral of pain into the left shoulder to make a finding that the transport accident injury has led to consequences that include neck and left shoulder pain.
12 Mr Philbrick relied on the evidence that prior to the transport accident Ms Dougramagis had not worked for six months due to depression. She gave birth to a child the following year. He submitted that no attempt has been made to delineate the role of those consequences in producing an inability to perform work.
13 Given that Dr Gouras, the treating General Practitioner, and Dr Epstein, Consultant Psychiatrist, have both stated the opinion that the depression the plaintiff suffered pre-transport accident was situational, that the prognosis for recovery was good, and that none of the depression she currently experiences relates to any factors that were present before the accident, I am satisfied that this is not a case where the plaintiff would have to seek to disentangle her psychiatric condition before the transport accident from her psychiatric condition after the transport accident.
14 Finally, Mr Philbrick submitted that the medical evidence fell short, particularly due to the absence of current evidence from Dr Gouras, the plaintiff’s long term General Practitioner, who has not provided a report concerning the physical consequence of the injury notwithstanding that he is the only doctor currently providing ongoing treatment and management. He submitted that that was an enormous and fatal gap, having regard to the complexion of the evidence that is left.
15 While it would have been preferable for such evidence to have been adduced, it is not fatal to the plaintiff’s application that it was not. The plaintiff’s condition has now stabilised and no surgical treatment has been recommended. Her management is by way of pain relief only. I am able to make findings concerning her current condition relying on the independent medical examinations, including the recent examination by Mr Dickens, who examined the plaintiff for the defendant’s solicitors.
16 Further, he submitted that there was no evidence led about the consequences of the transport accident injury from the plaintiff’s husband or any other family members. Given that Ms Dougramagis stated that one of the consequences of the injury is not being able to fulfil her role as a housewife and mother and that she has been reliant on her family members to assist her in various tasks, it would have assisted the Court to have such evidence.
17 In making my decision I have had regard to the totality of the evidence and have had the opportunity to read reports from medical experts who have reviewed the plaintiff recently, and I shall refer to those expert reports and their findings in my reasons. Ultimately I am satisfied that there is sufficient evidence that persuades me the plaintiff has discharged the onus of proof.
18 It is often said in these types of applications that credibility is important. Doctors rely on histories to formulate their expressed opinions. Ms Dougramagis told doctors that apart from tuberculosis she had not had any other illnesses, operations or injuries. There was reference in cross-examination of the plaintiff to some treatment that she received in respect to her back some 12 years prior to the transport accident in 1997/1998 whilst she was receiving intensive treatment at the Monash Medical Centre in respect to tuberculosis.
19 The plaintiff could not remember those attendances and treatment for back problems. This is unsurprising in the context of having fairly extensive treatment in respect to her tuberculosis, and as such I make no adverse findings concerning her reliability.
20 Overall, I accept her evidence about the injury suffered in the transport accident and its consequences. I am satisfied that the plaintiff did not have any pre-existing cervical injury at the time of the transport accident.
Background
21 Ms Dougramagis was a front seat passenger in a vehicle being driven by her husband when, on 14 June 2009, another vehicle collided with the rear of that vehicle in Barkly Street, St Kilda.
22 Ms Dougramagis was born on 28 February 1972 and was 37 years old at the time of the transport accident. She is currently 41.
23 The circumstances of the transport accident are set out by Ms Dougramagis in her affidavit sworn on 15 June 2012. The vehicle in which she was a passenger was proceeding down Barkly Street, St Kilda. It had slowed down in a line of traffic and then all of a sudden it was hit in the rear by another vehicle. As a consequence of the impact she was thrown forward and then back. The seat she was sitting in broke and she immediately felt shocked and was aware of pain in her neck and back. Ms Dougramagis then checked to see if her daughter, who was a passenger in the rear seat behind her, was okay. She found that she was and she then proceeded to get out of the car and sit on the footpath. The vehicle in which she was a passenger could not be driven.
24 An ambulance attended the scene and she was taken to the Alfred Hospital. At the hospital a blood test was performed and she discovered that she was pregnant. As a consequence of that, no x-rays were taken. She was discharged from hospital that evening with a neck collar and was told to see her General Practitioner for review.
25 Dr Gouras has been treating the plaintiff since 19 April 2008. She commenced seeing him for treatment shortly after the transport accident. He has continued to provide her treatment. Treatment for the neck pain has been by way of conservative management only.
26 At the time of the accident she advised the Transport Accident Commission in her claim form that she was temporarily unemployed and suffering from depression. She had been working at Rickett’s Café but had not been able to return to work due to her depression. She was employed by Rickett’s Café from 28 April 2008 until 1 February 2009.
27 The plaintiff was not working at the time of the transport accident on 14 June 2009 and has not worked since. She has an extensive pre-accident work history, with experience in retail and the hospitality industry.
28 The plaintiff stated in her evidence that in 2008 her mother had become depressed and was being treated with anti-depressant medication from a General Practitioner. She was very worried about her mother and saw Dr Gouras, who prescribed Endep, an anti-depressant medication, for her own depressive symptoms. She did not have any psychiatric or psychological treatment.
29 The plaintiff left her job in late January 2009 to have a break because of her condition. Her mother’s depression slowly improved and the plaintiff’s evidence was that she was prescribed a low dose of Endep and was not using it at the time of the transport accident. She also said that she could do housework. She then said, when pressed, in cross-examination that she was taking Endep at a reduced level and that she was restricted in the housework she could do at the time of the transport accident.
30 Mr Philbrick was critical of this aspect of the plaintiff’s evidence, and submitted that Dr Epstein, Consultant Psychiatrist’s, report had to be read in the context of her downplaying the pre-existing depression.
31 Overall, I do not consider this aspect of the Plaintiff’s evidence is critical. I accept Dr Gouras’s expressed opinion that the plaintiff’s depression pre-accident was situational and resolving. It was stable before the transport accident and her depression was made worse following the transport accident and has persisted. [6]
[6]PCB 26 & 27
32 I accept that depression is a consequence of her cervical injury which has impacted on her ability to undertake activities that she would otherwise perform.
33 The plaintiff’s second daughter, Nicoletta, was born on 27 February 2010. Ms Dougramagis claims that following her birth, she had an increase in neck and back pain with the demands of nursing the baby.
34 Following Nicoletta’s birth, Dr Gouras prescribed Digesic, an analgesic and Naprosyn, an anti inflammatory for her neck and back pain.
35 X-rays were taken of the neck, left shoulder and back on 14 May 2010. The x-ray of the cervical spine is reported as follows:
“The alignment is normal. There is minor narrowing of the C5/6 disc space with small marginal osteophytes but these are not encroaching on the adjacent exit foramina. The other disc spaces are of normal height. The facets joints and all exit foramina appear normal.”
36 Dr Gouras referred the plaintiff to Dr Alex Stockman, Rheumatologist, who saw her for ongoing management on 17 August 2008.
37 In Dr Stockman’s report, dated 29 April 2011, he confirms on presentation the plaintiff complained of left sided headache, neck pain, pain in the thoracic and lumbar region, pain in the left leg and the left arm. There had been no improvement in her symptoms noted some 14 months after the accident. She was continuing with Naprosyn 250 mg per day and Digesic one twice a day.[7]
[7]PCB 23
38 Dr Stockman referred the plaintiff for an MRI scan of her spine and that was performed on 1 September 2010. In the cervical region there is mild discophytic ridge formation at C5/6 and C6/7 centrally and to the left of the midline with no effect on the cord or nerve roots.[8]
[8]PCB 24
39 He increased analgesia to Panadol Osteo twice daily, and Digesic at night. Naprosen was increased from 250 to 500 milligrams in the morning.
40 Dr Stockman states he last reviewed the plaintiff on 28 September 2010 at which time she reported no improvement to her condition and that her main problem was low lumbar back pain and pain in the left thigh to the left knee.
41 He confirmed his diagnosis was that of degenerative changes in the cervical region, C5/6, disc prolapse at L1/2 associated with minor wedging of L1 vertebrae, and subacromial bursitis in the left shoulder, in respect to the physical injuries. He did not consider that the plaintiff’s condition had stabilised. He considered her unfit for employment as a result of injuries sustained in the transport accident. Ongoing conservative management would be required in the form of pain management.[9]
[9]PCB 24, 25
42 He referred Ms Dougramagis to Dr Clayton Thomas, Consultant in Rehabilitation and Pain Medicine.
43 Dr Thomas, in his letter dated 30 April 2013, addressed to the plaintiff’s solicitors, confirms he first saw the plaintiff on 23 November 2010. At that time she was complaining of pain in the left shoulder and left upper limb, and that pain was the dominant problem. She also complained of some pain in the left side of her head and face and also the left thigh. Her medication included Digesic and Naprosyn, one twice daily of each.
44 Dr Thomas noted on examination that she had marked tenderness to the cervical spine on the left-hand side, the left anterior chest wall and the left posterior shoulder girdle. Shoulder movements were mildly limited, as was extension and internal rotation. External rotation seemed to be well-preserved. Flexion and abduction were both mildly limited. Neck movements were also limited, more in rotation and extension than elsewhere. The lower back movements were only mildly limited.
45 Dr Thomas reviewed the MRI of the cervical spine dated 1 September 2010 and found this showed a minor discophyte at C5/6 centrally not neurocompressive. He diagnosed whiplash and associated disorder with radicular-type pain but no evidence of radiculopathy related to the transport accident. [10]
[10]PCB 29
46 Dr Thomas suggested a trial of Neurontin primarily at night to see whether it lessened the pain and improved her quality of sleep. He referred her to the Victorian Rehabilitation Centre for a rehabilitation program.
47 He reviewed the plaintiff on one further occasion on 15 February 2011 and noted that there was no change in her condition. He recorded complaints of ongoing problems with headaches, pain around the left ear and shooting pain into the left ear. He was informed that the Neurontin had been of some benefit and therefore he recommended she continue with that drug.
48 He considered that her whiplash and associated disorder impacted on her ability to work and her overall quality of life had diminished due to the injuries she suffered in the transport accident. He recommended a formal rehabilitation program.[11]
[11]PCB 29
49 Ms Dougramagis attended an introductory pain management program at the Victorian Rehabilitation Centre running two days a week from 9 November 2011 to 23 December 2011. There she was provided with occupational therapy, counselling (both individual and group based sessions) and an exercise program. The Progress Report confirms that she made steady progress and was able to improve her exercise tolerance. It was recommended that she would benefit from a more intense pain management program, although this does not appear to have been undertaken. The plaintiff was described as active and motivated. [12]
[12]PCB 35a, 35b
50 There are no other reports from any treating doctor concerning the plaintiff’s current condition. In the plaintiff’s second affidavit, sworn on 6 September 2013, she says that she continues to experience constant neck pain that goes into her left arm and shoulder area, and also back pain. The pain increases if she lifts more than a few kilograms or tries to hold or carry significantly lighter items for a sustained period, and that limits her in how far she feels able to drive, as does her back pain.
51 The plaintiff says that she takes regular prescription medication for pain relief, usually both Naprosyn and Digesic a couple of times a day and Endep at night. The pain wakes her and severely disrupts her sleep.
52 Her injury has restricted her in her ability to perform most household tasks, such as vacuuming, sweeping, ironing, cooking, baking, making beds, tidying the house and is assisted in those tasks by family members. She does the household tasks in short bursts and then rests in an attempt to avoid extreme pain setting in. Her social life is limited. She does not play or interact with her children as she would like.
53 The plaintiff does not consider she could return to the type of work that she performed in the past because of the requirement to use her left arm and be on her feet continuously. These restrictions preclude her from undertaking any retail work. Her pain causes her to feel down and demoralised by her inability to cope.
54 The Court has been provided with medico-legal assessments arranged by both the plaintiff’s and defendant’s solicitors.
55 Mr Charles Flanc, Vascular and General Surgeon, examined the plaintiff on 3 August 2011 and 27 February 2013.
56 On both occasions he found on examination of the cervical spine slight diffuse tenderness over the left side of the neck spreading towards the top of the left shoulder in the region of the left trapezius muscle. Movements of the cervical spine were restricted. The left shoulder on examination was tender diffusely over the back of the left shoulder girdle especially over the left scapular and along the medial margin of the scapular. The plaintiff was also tender diffusely over the left side of her chest and left side of her abdomen and left loin. There was no wasting or weakness of the upper limbs and all reflexes were preset and brisk, however the left upper limb reflexes were more active than those of the right upper extremity.
57 Mr Flanc’s diagnosis is that the transport accident of 14 June 2009 caused a musculo ligamentous injury of the cervical spine and aggravation of pre-existing disc degeneration of the cervical spine especially at the C5/6 level which became and has remained symptomatic. He agrees with Dr Thomas and doubts that the plaintiff was suffering from an actual radiculopathy. He considers that the MRI of the cervical spine did not show any evidence of any nerve root impingement.
58 Mr Flanc was a little uncertain of the exact cause of pain in the left shoulder region because it not only affected the left shoulder but the whole of the shoulder girdle, particularly the left scapula and muscles along the medial margin of the scapular. Importantly he thought it likely that some of the pain was referred from the cervical spine.[13]
[13]PCB 85
59 He considered that the plaintiff’s condition had stabilised.[14] He says that the plaintiff’s work capacity is restricted and it is unlikely that she would ever be able to perform any work involving repeated bending, prolonged standing or heavy lifting.[15]
[14]PCB 95
[15]PCB 95
60 Mr Peter Mangos, General Surgeon, examined the plaintiff on 2 November 2011. He recorded that the left shoulder was the major complaint, and was painful and stiff. The plaintiff had difficulty lifting her arm and working at a distance from her body. The left arm was weak and numb but the fingers were not tingly. The plaintiff had back pain and stiffness, a painful and stiff neck, and chronic headaches.
61 He considered that as a consequence of the transport accident the plaintiff has suffered aggravated early degenerative changes of the cervical and lumbar spine and left shoulder tendonitis with bursitis. The injuries have stabilised. He considers she is partially incapacitated for employment due to the transport accident. The prognosis is guarded as the injuries do have a significant impact on her daily activities.[16]
[16]PCB 100
62 Mr Richard Bittar, Neurosurgeon, examined the plaintiff on 21 October 2011. I note that he was provided with all relevant radiology. His findings following examination were that she suffered aggravation of cervical spondylosis with neck pain, left arm pain and cervicogenic headaches. He says that the C5/6 and C6/7 disc segments are the most likely anatomical substrates for her pain. She also suffered aggravation of lumbar spondylosis. He considered the plaintiff was incapacitated for employment due to injuries sustained as a result of the transport accident. He recommended pain management.[17] He considered that her condition had substantially stabilised.[18]
[17]PCB 104
[18]PCB 106
63 Mr Bittar reviewed the plaintiff further on 26 July 2013. He noted the plaintiff’s current symptoms and stated that neck pain and left arm pain were her main complaint (my emphasis). The plaintiff experiences constant left-sided neck pain, which varies in character and intensity, radiating through the left shoulder into her arm, wrist and thumb with associated left retroscapular pain. Those symptoms are exacerbated by lifting more than three kilograms or any use of the left arm and improved with analgesia. The neck pain was associated with occipital cervical headaches which radiate to the frontal region. They are worse on the left-hand side.[19] He also noted that the plaintiff experiences intermittent lower lumbar pain.
[19]PCB 108
64 He recorded that her current treatment was by way of medication. She takes Naprosyn twice a day, Endep at night and Digesic twice daily.
65 Mr Bittar confirmed his original diagnosis and stated in his opinion that the transport accident remains a significant contributing factor to the plaintiff’s ongoing symptoms, disability and need for treatment.[20]
[20]PCB 110
66 He considered that the plaintiff’s condition had not changed over the past two years and that the prognosis is that she will almost certainly continue to suffer from significant pain and disability into the foreseeable future.[21] The plaintiff does not have any work capacity as a consequence of the transport accident injuries to her cervical and lumbar spine. The injury is stable and he considers that the plaintiff will remain incapacitated at current levels into the foreseeable future.[22]
[21]PCB 110
[22]PCB 111
67 I reject Mr Philbrick’s submission that Mr Bittar’s opinion is compromised because he did not specifically refer to the ultrasound findings concerning the left shoulder. His diagnosis is consistent with Mr Dickens expressed opinion to which I shall shortly refer.
68 Mr Thomas Kossmann, Orthopaedic Surgeon, reviewed Ms Dougramagis on 22 April 2013. He diagnosed cervical spondylosis with left arm pain, cervicogenic headaches, lumbar spondylosis and pain and movement restrictions in both shoulder joints. He stated that the plaintiff suffers a Chronic Pain Syndrome in the cervical and lumbar spine and upper extremities. He considers that she will continue to suffer from pain most likely for the rest of her life, requiring conservative management in the form of pain medication, anti-inflammatories, physiotherapy, hydrotherapy and possibly acupuncture.
69 He considered that the plaintiff has a certain incapacity for employment due to her injuries suffered in the transport accident but that she does still have some work capacity and he recommended a vocational assessment. He considers that the plaintiff will have certain restrictions, namely not being able to walk long distances or on uneven ground, walk up and down the stairs, climb up and down ladders, twist her head or upper body, or move her upper extremities in a repetitive way.[23]
[23]PCB 115
70 The defendant relied on a report from Mr Robert Dickens, Orthopaedic Surgeon, who reviewed the plaintiff on 8 August 2013. Following his examination, Mr Dickens diagnosed deceleration injury to the cervical spine of the soft tissues without evidence of radiculopathy and referred pain in the left shoulder and arm region as a consequence of the transport accident.
71 Mr Dickens did not believe the plaintiff sustained any intrinsic pathology in the left shoulder as such but simply referred pain from the neck (my emphasis). She may have also suffered a minor lumbosacral injury.
72 His diagnosis is consistent with all the other medical assessors. However he differs from all other assessors in the respect that he considers that there was an element of abnormal illness response with gross restriction of movement in both the neck and lumbar region to formal testing, however better movement was observed when distracted.
73 Mr Dickens’s opinion is that there was a non-organic component to the plaintiff’s symptomatology (my emphasis). The plaintiff seems, in his opinion, to have adopted an illness role and is doing very little by way of self-help to get back into everyday living and society. He considers that there are a lot of non-organic reasons why she has not returned to work. He did not articulate what those reasons may be.
74 Given that the plaintiff has been examined by both Dr Stockman and Dr Thomas and on other occasions by appropriately qualified expert medical practitioners most of whom accept there is an organic basis for her neck pain with referral of pain into her left shoulder I do not accept this aspect of his expressed opinion.
75 Mr Philbrick sought to rely in part on Mr Kossman’s conclusion that the plaintiff suffers from Chronic Pain Syndrome to support his submission that the plaintiff either has psychiatric factors at play or a Chronic Pain Syndrome and that a substantial and operative cause of the plaintiff’s ongoing symptoms and consequences is psychological.
76 My assessment is that Mr Kossman’s expressed opinion is not supportive of such a finding. He does not specify what he means when he uses the term Chronic Pain Syndrome. In the context of his report it may be descriptive of the chronic nature of the complaints of pain that has an organic basis rather than pain being a manifestation of a psychological reaction. He was not called and cross-examined about this aspect.
77 Here there is radiological evidence of the degenerative changes in the plaintiff’s cervical spine coupled with the fact that most of the doctors accept that the nature of the plaintiff’s condition has an organic basis, be it a soft tissue injury to the cervical spine or aggravation of cervical spondylosis with neck pain, left arm pain and cervicogenic headaches.
78 The plaintiff has always been consistent in her complaints of pain following the transport accident. Also no other expert attributes the complaints of pain to abnormal illness behaviour.
79 Overall I accept that the injury to the neck and cervical spine with referral of pain into the left shoulder is related to the transport accident and is sufficiently organically based.
80 I am satisfied that the plaintiff has suffered a secondary psychiatric condition as a consequence of the physical injury as diagnosed by Dr Epstein, Psychiatrist, who examined the plaintiff on 2 August 2011.
81 Dr Epstein considered that the plaintiff had been left with some ongoing physical symptoms following the transport accident and that the accident itself had led to some symptoms of traumatisation but that she does not have full features of a Post-Traumatic Stress Disorder.
82 I accept his expressed opinion that the plaintiff was experiencing some level of depression prior to the transport accident but it did not appear to be particularly severe and was most likely situational. That type of depression usually settles spontaneously over a period of time. He did not consider that any of the depression the plaintiff was experiencing at the time of his examination appeared to relate in any way to factors that were present before the accident. This opinion accords with Dr Gouras.
83 Dr Epstein’s diagnosis is that the plaintiff has a Chronic Adjustment Disorder with both anxious and depressed mood related to the transport accident. That has impacted on the plaintiff’s quality of life affecting her work capacity relationships and her recreational enjoyment.
84 Dr Epstein re-examined the plaintiff on 18 April 2013. He noted the ongoing physical symptoms that have persisted since the accident although the plaintiff had benefited from a pain management program in developing better strategies in coping with pain.
85 He stated that she has mild Chronic Adjustment Disorder with mixed anxiety and depressed mood with symptoms of traumatisation. There had been some slight improvement since the pain management program but not real change over the last six months. The plaintiff’s condition is stable and prognosis for improvement is limited.
Conclusions
86 I find as a consequence of the transport accident that the plaintiff suffered an injury to her neck and cervical spine variously described as aggravation of cervical spondylosis with neck pain, left arm pain and cervicogenic headaches and a whiplash-type soft tissue injury and associated disorder with radicular-type pain, but no evidence of radiculopathy.
87 I accept that the plaintiff suffers impairment of the body function of the spine specifically the cervical spine with referral of pain into her left shoulder with pain and suffering consequences.
88 I am satisfied that a consequence of the injury suffered in the transport accident is that the plaintiff suffers a mild Chronic Adjustment Disorder with anxiety and depression.
89 I accept what the plaintiff says in her affidavits about the consequences of the impairment namely, that she suffers constant neck pain that goes into her left arm and shoulder area. The pain is made worse by holding her neck in one position for prolonged periods and any movement or activity or the need to lift or hold out or raise her left arm.
90 I accept the plaintiff takes regular pain relief and an anti inflammatory, namely Naprosyn and Digesics during the day and Endep at night.
91 In assessing the consequences of the injury ordinarily, the endurance of permanent daily pain requiring frequent medication “must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence”.[24]
[24]Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267, [199]
92 It is now some 4 years and several months since the transport accident and the plaintiff’s neck pain with referral of pain into the left shoulder has not recovered. The plaintiff’s condition is stabilised and the likelihood is for the pain to continue with ongoing conservative management.
93 Her injury has reduced in a significant way her ability to work in and maintain her house. She has a sleep disturbance. She requires the assistance of her family members to undertake tasks around the house which she was capable of performing with out assistance prior to the transport accident. Her social life has been affected.
94 For a 41 year old woman, a wife and mother of two young children those ongoing consequences are very considerable.
95 I further accept that a consequence of her injury is that she can no longer perform her pre-injury duties and she is incapacitated for work.
96 I consider the pain and suffering consequences of the impairment of the spine in particular, the cervical spine resulting from the transport accident can be described as “certainly more than significant”, and “at least … very considerable”.[25]
[25]Humphries & Anor v Poljak [1992] 2 VR 129 at 140
97 In all the circumstances, I consider that the pain and suffering consequences of the plaintiff’s cervical spine impairment are more than considerable when compared with other cases in the range of long term impairments of the body function of the cervical spine.
98 Leave to proceed is therefore granted.
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