Emini v Transport Accident Commission

[2023] VCC 540

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-22-00913

NEDIME EMINI	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	23 February 2023
DATE OF JUDGMENT:	14 April 2023
CASE MAY BE CITED AS:	Emini v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2023] VCC 540

REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT

Catchwords:              Serious injury application – psychiatric injury – post-traumatic stress disorder – chronic adjustment disorder with depressed and anxious mood and features of traumatisation – whether the consequences are “severe” for the plaintiff – physical injury to the plaintiff’s spine – injury to the neck – whether the consequences to the plaintiff are “serious” – credit of the plaintiff

Legislation Cited:      Transport Accident Act 1986, s93

Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Richards & Anor v Wylie (2001) 1 VR 79

Judgment:                  The application for serious injury certification in respect of a psychiatric injury as a result of the transport accident which occurred on 30 September 2015 is dismissed.  The application for serious injury certification in respect to the physical injury of the plaintiff’s neck as a result of the transport accident on 30 September 2015 is granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B Johnson	Zaparas Lawyers
For the Defendant	Mr R Stanley with Mr S Pinkstone	Solicitor for the Transport Accident Commission

HIS HONOUR:

1This is an application brought by Originating Motion dated 16 March 2022. The plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of the transport accident which occurred on 30 September 2015 (“the said date”).

2Section 93(6) of the Act provides that a court must not give leave under s93(4)(d) unless it is satisfied that the injury suffered by the plaintiff is a “serious injury”. In this application, the definition of “serious injury” relied upon by the plaintiff under s93(17) are:

“(a)serious long-term impairment of loss of body function; or

…

(c)severe long-term mental or severe long-term behavioural disturbance or disorder …

….”

3In this application, the plaintiff, in effect, has two separate applications for serious injury.  The plaintiff seeks serious injury certification for:

(a)   the loss of body function of the spine, in particular the neck; and

(b)   the long-term severe mental or behavioural disturbance or disorder.

4The enquiry under s93(17)(a) of the Act focuses attention, first, on whether the injury has produced an organic impairment or loss of body function and then, by reference to the consequences of that impairment, determine whether it is serious and long term.

5The serious injury defined by ss(a) can have its seriousness measured, in part, by a mental response to a physical impairment.  What it will not recognise, is that the mental disorder can of itself constitute, or be the producer of, an impairment of body function.[1]

[1]Richards & Anor v Wylie (2001) 1 VR 79

6The serious injury in respect of s93(17)(c) requires the level of impairment to be “severe”.[2]  In forming a judgment as to whether the consequences and the injury are serious, the questions to be asked are:

“… can the injury, when judged by comparison with other cases in a range of possible impairments or losses, be fairly described as at least ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”[3]

[2]Mobilio v Balliotis [1998] 3 VR 833

[3]Humphries and Anor v Poljak [1992] 2 VR 129

7The plaintiff swore, and relied upon, three affidavits dated 14 January 2021, 2 February 2023 and 9 February 2023.  The plaintiff gave evidence and was extensively and intensively cross-examined by counsel for the defendant. 

8In addition to the affidavits referred to above and the evidence given by the plaintiff, both parties relied upon medical reports and other materials which were tendered during the course of the proceeding.  I read all the relevant tendered medical material.  The tendered evidence in this proceeding was as follows:

9The plaintiff tendered and relied upon the following documentation:

·        Exhibit “A” – the Plaintiff’s Amended Court Book (“PCB”), pages 5 to 95 and pages 112 to 133 inclusive.

10The defendant tendered the following documentation:

·        Exhibit 1 – the Defendant’s Court Book (“DCB”), pages 22 to 81 inclusive.

·        Exhibit 2 – the Springvale Medical Clinic notes dated 5 September 2017 and 17 April 2019.

·        Exhibit 3 – the PCB, pages 96 to 111 inclusive.

11The issues in this application by the plaintiff were set out by Mr Stanley, counsel for the defendant.  The issues were as follows:

(a)   whether the transport accident of 30 September 2015 is the cause of the plaintiff’s current complaints of pain in her neck;

(b)   the plaintiff’s current complaints are as a result of degenerative processes;

(c)   whether the psychiatric injury and condition complained of by the plaintiff is sufficient to reach the severe test;

(d)   whether the physical injury relied on by the plaintiff is sufficient to reach the serious injury test; and

(e)   the credit of the plaintiff.

The Plaintiff’s background

12The plaintiff was born in 1966 and is now fifty-six years of age.  She lives with her husband.

13The plaintiff was born in Macedonia.  At the age of two-and-a-half, her family moved to Australia.  She has two brothers and two sisters.  When the plaintiff was approximately nine years of age, she returned to live in Macedonia.  She was married at age sixteen-and-a-half to her present husband.  The plaintiff was educated to Year 10 level.  At the age of twenty, the plaintiff returned to Australia. 

14The plaintiff has two grown up and independent children.  When the plaintiff returned to Australia, she originally worked at Robert Bosch in a packaging work-type of employment.  The plaintiff has also completed a course in retail management and has worked in a jewellery shop.

15Her employment, now, at the time of this hearing, was full-time employment with a Nick Scali furniture shop in Frankston.  Of recent times, she has been promoted to an assistant manager position at that outlet.  The plaintiff continues to work at Nick Scali Frankston on a full-time basis.  She travels approximately half-an-hour in either direction from her home to her place of employment.

The transport accident

16The plaintiff described the transport accident in the following terms:

“On or about 30 September 2015 I was driving through a T intersection and the driver from my left hand side did not give way and collided into my vehicle.  My car spun around from the collision.

I was shaken and felt nauseous. I felt immediate pain in my neck and shoulder.  My grandchildren were with me in the back of my car, and my immediate concern was to return them home.  As a result I did not seek immediate medical treatment and thought I would recover.”[4]

[4]PCB 6-7 at paragraphs 8-9

17The plaintiff gave evidence that she did not initially think she required medical treatment for the injuries she suffered in the transport accident. 

Serious injury/long-term severe mental or behavioural disturbance or disorder

18The test for a psychiatric/psychological serious injury certificate is that the consequences to the plaintiff are to be considered “severe”.  In this case, the plaintiff has been able to continue with full-time employment on a consistent basis since the time of the transport accident.

19The plaintiff gave evidence that she has not sought psychological or psychiatric treatment for her diagnosed Post-Traumatic Stress Disorder or depression.[5]  The plaintiff stated that the psychological treatment she has attended for was related to dealing with her pain symptoms.  The plaintiff’s evidence is that the pain symptoms arise from her neck injury.

[5]Transcript (“T”) 78-80

20The plaintiff has been examined for the purposes of this application by Dr Brendan Hayman, consultant psychologist.  Dr Hayman prepared two reports, dated 24 February 2020 and 29 November 2022.  In his first report, Dr Hayman described the plaintiff as a stoic person, stating that she had not told anyone at her work how she was affected by the injuries suffered in the transport accident.  He quoted the plaintiff as saying “‘I don’t want work to know (sic)’”.[6]  The evidence in this case clearly indicates that the plaintiff has told her store manager of her physical complaints in relation to the injuries suffered from the transport accident.  Dr Hayman, in his first report of 2020, diagnosed the plaintiff as suffering from a Chronic Adjustment Disorder with Depressed and Anxious Mood and features of traumatisation. 

[6]PCB 72

21In his report dated 29 November 2022, Dr Hayman confirmed his diagnosis of the plaintiff as suffering from a Chronic Adjustment Disorder with Depressed and Anxious Mood and features of traumatisation following the transport accident.[7]  He noted that the plaintiff had gone on to develop a Depressive Syndrome in the setting of pain and limitation of functioning.  Dr Hayman took a history and formed the opinion that the depressive symptoms appear to have worsened somewhat in the setting of the plaintiff’s chronic pain state.[8]  Dr Hayman, by way of completeness, stated that her psychological condition per se does not preclude her working in her pre-injury duties.[9]

[7]PCB 83

[8]PCB 83

[9]PCB 85

22The defendant had the plaintiff examined by Dr Gregor Schutz, consultant psychiatrist.  Dr Schutz prepared a report dated 3 February 2023.  Dr Schutz diagnosed the plaintiff in the following way:

“I would state that in terms of mood, she has developed a moderate adjustment disorder with depressed mood; this is in the context of her physical injuries and limitations.  … .”[10]

[10]PCB 120

23Dr Schutz accepted that the Adjustment Disorder was materially contributed to by the transport accident.

24Dr Schutz also noted that the plaintiff met the criteria for Post-Traumatic Stress Disorder, which is entirely a result of the transport accident in 2015.[11]

[11]PCB 120

25In her evidence, the plaintiff referred to her “moods” being a consequence of the transport accident for her.  The clinical records of her general practitioner were tendered by the defendant in this case.  In the clinical notes, there are numerous mentions of the plaintiff complaining about her mood as a result of the transport accident and particularly relating to her physical pain generated from her neck injury.  I accept that history to be consistent with the plaintiff’s complaints.

26I take into account the psychological sequelae of the transport accident in accepting it as one of the consequences arising from the transport accident when considering the physical injuries and its consequences to the plaintiff.

27On its own, the psychological and psychiatric injury, as diagnosed by Dr Hayman and Dr Schutz, does not reach the level required under the Act, as being properly described as “severe”.

28The application for “serious injury” under s93(17)(c) is dismissed.

Treatment of the Plaintiff for the physical injury to her neck as a result of the transport accident

29On the said date of the accident, the plaintiff did not seek medical attention.  She stated that she had her grandchildren in her vehicle and her immediate concern was to go home.[12]

[12]PCB 6

30On 6 October 2015, the plaintiff did attend upon her general practitioner, Dr Janice Egan.  The plaintiff complained of developing neck and back pain since the transport accident on the said date.  Dr Egan noted in her examination that the plaintiff had tender trapezius muscles and paraspinal muscles with a reduced range of movement in all plains of her cervical spine.  The plaintiff was advised to take Panadol and Ibuprofen for relief of her symptoms.[13]

[13]DCB 27

31The plaintiff was referred by Dr Kirti Gunawardana, general practitioner, for a CT scan of the brain and cervical spine examination on 15 December 2015.  Dr Gunawardana was located at 80 Power Road in Doveton.  This was not the plaintiff’s usual general practitioner.  The reason for the plaintiff’s attendance on Dr Gunawardana was unclear on the evidence.  There was no report from Dr Gunawardana in the tendered medical materials.

32The CT scan report in respect of the cervical spine concluded:

“Unremarkable CT cervical spine.”[14]

[14]PCB 123

33The plaintiff then attended upon her general practitioner, Dr Janice Egan, on 22 December 2015.  At that visit, the plaintiff told her general practitioner that she had seen another doctor and had a CT scan of her head and spine the previous week with no abnormality detected.  The plaintiff was continuing to complain of pain on the left side of her neck which radiated to her head.  She was continuing to take analgesia.[15]

[15]DCB 27

34The plaintiff then returned to Dr Janice Egan on 7 March 2016 complaining of ongoing back and neck pain.  At that consultation, the plaintiff complained of the pain getting worse, with difficulty moving her neck around at work.  The plaintiff was prescribed amitriptyline hydrochloride. 

35The plaintiff continued to see her general practitioner, Dr Janice Egan, until that doctor moved practices.  She was then seen by Dr Moheb Gerges up until the present time.  These consultations were at the Lynbrook Village Medical Centre.

36The plaintiff swore an affidavit dated 9 February 2023 and attached to that affidavit a leave history from Nick Scali Furniture.  The exhibit was numbered NE-1.  The plaintiff was extensively cross-examined about her leave records.  The leave records commenced on 2 October 2015 to the end date of 27 November 2021.  I note here that there is no record of the plaintiff’s leave dates from 27 November 2021 until the time of the hearing.  An analysis of the leave dates and a comparison with the attendances upon her general practitioner for neck complaints reveals the following matters:

Start Date	Finish Date	Personal Leave or Sick Leave	Attendance on Doctor for Neck
26-12-2015	26-12-2015	Time in lieu accrued 7.6 hours	Neck
10-3-2016	10-3-2016	Personal (sick) leave 7.6 hours	Neck
6-7-2016	6-7-2016	Personal (sick) leave 7.6 hours	Neck
28-7-2016	28-7-2016	Personal (sick) leave 4 hours	Neck
19-3-2017	19-3-2017	Personal (sick) leave 6.5 hours	Neck
15-6-2018	15-6-2018	Personal (sick) leave 8 hours	Neck
7-12-2018	9-12-2018	Personal (sick) leave 20.75 hours	Neck and headaches
25-1-2019	25-1-2019	Personal (sick) leave 11 hours	Neck
5-4-2019	5-4-2019	Personal (sick) leave 8 hours	Neck
4-5-2019	4-5-2019	Personal (sick) leave 7.5 hours	Neck
19-7-2019	19-7-2019	Personal (sick) leave 5 hours	Neck
25-10-2019	25-10-2019	Personal (sick) leave 8 hours  GP 24 October 2019	Neck
13-12-2019	13-12-2019	Time in lieu taken 7.6 hours 11 December 2019	Neck
3-2-2020	4-2-2020	Personal (sick) leave 16 hours  GP 3 February 2020	Neck
25-5-2020	25-5-2020	Personal (sick) leave 6.5 hours GP 25 May 2020	Neck
31-7-2022	31-7-2022	Personal (sick) leave 6.5 hours GP 30 July 2022	Neck
7-9-2022	13-9-2022	Annual Leave 33.5 hours GP 2 September 2022	Neck
14-9-2020	14-9-2020	Annual Leave 4.08 hours GP 14 September 2020	Neck
5-3-2021	7-3-2021	Personal (sick) leave 21 hours GP 4 March 2021	Neck
10-5-2021	10-5-2021	Personal (sick) leave 3.5 hours GP 8 May 2021	Neck
19-7-2021	20-7-2021	Annual Leave 14 hours GP 13 June and 31 July 2021	Neck
27-11-2021	27-11-2021	Personal (sick) leave 7 hours GP 24 November 2021	Neck

37It is clear from these records that the plaintiff has, over the period of time from 2015 until the end of the records in November 2021, had numerous occasions of taking time off work due to her neck injuries.  This was consistent with the plaintiff’s evidence that she would take personal leave and other annual leave so as to maintain her employment but the reason for being off work was her neck complaints.  The plaintiff’s evidence is that she has continued in this pattern since the time of November 2021 to the time of the hearing.

38The plaintiff was sent for an x-ray of her cervical spine on 1 February 2019.  The findings on that radiological examination are as follows:

“Mild narrowing of C4/5 and to a lesser extent C3/4 disc spaces.  Otherwise, no obvious old fractures or bony abnormalities could be identified.  CT study for cervical spine or MRI study would be helpful in further evaluation should there be clinical concern about nerve impingement.

Elongation of right-sided transverse process of C7 has been noted with rudimentary cervical rib.”[16]

[16]PCB 127

39The plaintiff was also sent for a radiological examination by way of CT scan of the cervical spine on 28 February 2019.  The results of that examination are as follows:

“At C2/3, C3/4 and C4/5, small central disc bulges.

Mild degenerative changes and mild abnormalities and alignment as described.

If there is continuing clinical concern of a right sided cervical radiculopathy, a Medicare rebatable MRI of the cervical spine is suggested.”[17]

[17]PCB 131

40The final radiological examination of the plaintiff was performed on 10 September 2020.  A CT scan of the cervical and thoracic spine was undertaken.  The conclusion was:

“Mild degenerative changes and mild abnormalities of alignment as described.

The examination is otherwise within normal limits.”[18]

[18]PCB 129

41In the body of the CT scan report on 10 September 2020, disc degenerative disease was noted at all levels, mild-to-moderate at C3-4 and C4-5 and very mild at other levels.  It was also noted a mild cervicothoracic scoliosis convex to the left, centred at C6, is identified, without abnormality of segmentation.[19]

[19]PCB 129

42The plaintiff has been recommended to undertake an MRI examination.  The plaintiff, in her evidence, stated that she was unable to undergo an MRI examination due to a claustrophobic response to the performed examination.  I accept the plaintiff was genuine in her evidence when she stated that she could not undertake the MRI examination due to her claustrophobia.

43The plaintiff was also seen by Dr James Nguyen, general practitioner, on 17 April 2019.[20]  The plaintiff had attended upon Dr Nguyen for the period 10 January 2008 until 20 October 2014.  There was a period of 20 October 2014 until 5 September 2017 when the plaintiff did not attend upon Dr Nguyen. 

[20]PCB 132

44At no stage did the plaintiff complain to Dr Nguyen of her symptoms arising from her neck injury in the transport accident.  The plaintiff’s evidence was she attended upon Dr Nguyen for other reasons.  I note that Dr Nguyen had referred the plaintiff to Dr Feletar, a rheumatologist.  There is a paucity of evidence in respect of the treatment for rheumatological difficulties that the plaintiff may have suffered.

45The plaintiff gave evidence that she continues to ingest Panadol tablets – two tablets every four to six hours – to ameliorate her pain symptoms.  The plaintiff also gave evidence that she uses a medication she obtained in Macedonia known as Ketonal each week when the pain is more severe.[21]  In the past, the plaintiff has been prescribed Endep which she complained made her drowsy[22].  The plaintiff was then prescribed Lyrica which she also ceased using due to the side effects.[23]  In summary, the plaintiff’s treatment is limited to regular and continual general practitioner visits with the use of over-the-counter medications to ameliorate her pain symptoms.  The plaintiff’s general practitioner has prescribed her Diazepam and Brintellix to help her with her moods and ability to sleep.[24]

[21]T37

[22]        T76

[23]T77

[24]T55

46The plaintiff has not seen an orthopaedic surgeon for treatment or advice in respect of her pain to her cervical spine.

47The plaintiff did attend upon Advance Health Care for a multidisciplinary pain management assessment.  The plaintiff has completed a four-week pain management program in 2022.[25]  From the evidence, the tension appears to be between the plaintiff’s desire and or need to work full time and the recommendation by her pain management team at Advance Health Care that she is to reduce her hours of work.  The plaintiff has elected to maintain her full-time work 38 hours per week.

[25]PCB 43

The medical opinions

Dr Moheb Gerges, general practitioner

48Dr Gerges prepared two reports, dated 29 December 2019 and 16 January 2023.  Dr Gerges is the plaintiff’s long-term general practitioner.

49In his first report, Dr Gerges has diagnosed the plaintiff as suffering from a whiplash injury with chronic neck and shoulder pain with radiculopathy.  He noted at that time that the plaintiff would not get back to full-time duties because of her chronic neck pain.

50In his most recent report dated 16 January 2023, Dr Gerges stated that the plaintiff was suffering from chronic neck and shoulder pain after her transport accident on the said date.  In Dr Gerges’ opinion, the neck pain symptoms are a result of the transport accident.  Dr Gerges states that the plaintiff’s symptoms are for the foreseeable future, based on the chronicity of her pain over a long period of time.[26]

[26]PCB 45

Dr Gurbir Kaur, anaesthetist

51Dr Kaur has prepared three reports, dated 4 November 2020, 6 January 2021 and 3 March 2021.  Dr Kaur treated the plaintiff at the Metro Pain Group.

52Dr Kaur noted that the plaintiff had been treated with pregabalin, Tramadol, codeine and amitriptyline in the past but the plaintiff had adverse drug reactions to these medications. 

53Dr Kaur noted that the plaintiff’s neurological examination was normal.

54On physical examination, the findings he made were suggestive of peripheral sensitisation to the neck area of the plaintiff.

55In his report dated 6 January 2021, he noted as follows:

“… Nedime reports ongoing pain in her neck, occipital headaches and pain in between her shoulder blades.  This is related to the neck injury and are best described as somatic referred pain pattern of C2/3, C5/6 and C6/7 myotomes.”[27]

[27]PCB 32

56Dr Kaur recommended the trial of Duloxetine, 15 to 30 milligrams per day, and provided the plaintiff with antineuropathic cream for local application.  His recommendation was the plaintiff undergo physiotherapy.

Mr Mohammed Awad, neurosurgeon and spinal surgeon

57The plaintiff was sent to Mr Awad for medico-legal examination and reporting.  Mr Awad prepared a report dated 25 October 2019. 

58Mr Awad diagnosed the plaintiff as suffering from an aggravation of cervical spondylosis.[28]

[28]PCB 56

59In Mr Awad’s opinion, the transport accident was most likely a significant contributing factor to the aggravation of the plaintiff’s cervical spondylosis and, as a result, was a significant contributor to her ongoing pain, disability and the requirement for treatment.[29]

[29]PCB 56

Dr Meena Mittal, pain physician and specialist anaesthetist

60The plaintiff was examined by Dr Mittal for the purpose of medico-legal reporting.  Dr Mittal prepared two reports, dated 1 November 2019 and 8 November 2022.

61Dr Mittal’s examination found that the plaintiff had restricted right lateral rotation and a painful cervical spine extension.  Dr Mittal also found tenderness throughout the cervical spine.[30]

[30]PCB 60

62Dr Mittal diagnosed the plaintiff with neck pain secondary to whiplash injury.  Dr Mittal described this as resulting in myofascial pain and possibly underlying facet joint pain.  In Dr Mittal’s opinion, the prognosis for the plaintiff is guarded, due to the long duration of symptoms and the treatment to date had not ameliorated those symptoms.[31]

[31]PCB 68

Dr Hazem Akil, neurosurgeon

63Dr Akil examined the plaintiff for the purposes of medico-legal reporting.  He prepared two reports, dated 23 July 2020 and 4 November 2022.  Dr Akil diagnosed the plaintiff as suffering from an aggravation of cervical spondylosis that is directly related, and compatible with, the history of the transport accident that the plaintiff gave to him.[32]

[32]PCB 89

64In his later report, Dr Akil confirmed his earlier diagnosis of an aggravation of cervical spondylosis as a result of the transport accident.  He noted that the plaintiff’s prognosis is poor and likely to continue with these symptoms for the foreseeable future.[33]

[33]PCB 93

65Dr Akil noted that the plaintiff continued in the same employment but did so with pain.

Mr Ian C Dickinson, orthopaedic surgeon

66Mr Dickinson examined the plaintiff on behalf of the solicitors for the defendant.  He prepared a report dated 16 November 2022. 

67Mr Dickinson noted that the CT scan of the plaintiff’s cervical spine shows mild to moderate cervical spondylosis.[34]  He expressed the opinion that the plaintiff’s current physical condition is that of age-related changes identified in the cervical spine and likely to be present in the lumbar spine.  In his view, the plaintiff’s condition would decline, causing intermittent discomfort in relation to certain activities.[35] 

[34]PCB 106

[35]PCB 107-108

68Mr Dickinson’s opinion was that the plaintiff’s current physical condition in relation to the spine is of degenerative cervical spondylosis.  The likelihood is that she also has degenerative spondylosis in the lumbar spine.  He noted that these conditions are age related.  The alleged transport accident on the said date did not contribute to her current condition at all.[36]

[36]PCB 108

Dr Gregor Schutz, psychiatrist

69The plaintiff was examined by Dr Gregor Schutz for and on behalf of the defendant’s solicitors.  Dr Schutz prepared a report dated 3 February 2023. 

70As I have previously noted, the psychiatric and psychological claim for serious injury certification made by the plaintiff has been dismissed.  Relevantly, for the determination of the serious injury certificate for physical injury to the neck, Dr Schutz noted as follows:

“I would state that in terms of mood, she has developed a moderate adjustment disorder with depressed mood; this is in the context of her physical injuries and limitations.  … .”[37]

[37]PCB 120

71Dr Schutz went on to note that the plaintiff described lowered mood, loss of interest and motivation and negative ruminations.  The plaintiff reported poor concentration at times.  She reported errors in the workplace.  She reports at times feeling worthless and useless.[38]

[38]PCB 120

72The relevance of these opinions by Dr Schutz is that the plaintiff attributes these moods to her ongoing pain from her neck.  I accept that the consequence to the plaintiff in respect of the lowered mood, or moods as she described them, is at least very considerable and attributable to her physical injury to her cervical spine.  This is a factor when considering the determination of the serious injury certificate in respect of her cervical spine.[39]

[39]Richards & Anor v Wylie (supra)

The credit of the Plaintiff

73Mr Stanley, on behalf of the defendant, fairly and squarely attacked the plaintiff’s credit.  He stated that the plaintiff was someone who exaggerated her symptoms, by describing her pain as 10 out of 10.  He submitted that the plaintiff exaggerated the time that she took off work as a result of the injury to her neck. 

74The plaintiff was also attacked for what was described as “doctor shopping”.  The basis for this attack was that the plaintiff went to a Doveton general practitioner to obtain her first CT scan.  She also attended upon a Springvale general practitioner, Dr Nguyen, from 2017 onwards and never mentioned the transport accident to that doctor.  The submission was that the plaintiff’s explanation that Dr Nguyen does not do Transport Accident Commission cases is not sufficient to explain away the failure by the plaintiff to give a history to Dr Nguyen of the transport accident. 

75The submission made on behalf of the plaintiff was that the plaintiff was stoic.  The basis for the stoicism was that the plaintiff continued to work despite her persistent pain symptoms from her neck.  I do not accept the plaintiff as properly described as stoical.  The plaintiff has attended on numerous occasions at her general practitioner for treatment for her neck symptoms and pain relief.  She has undertaken pain management courses.

76I conclude that the plaintiff is forthright in her complaints of pain and not shy about making them.  That does not mean that she is exaggerating her painful condition in her neck.  Similarly, I do not find that the plaintiff is a stoic.  The plaintiff, on her own evidence, describes herself as the only breadwinner in the house.  She cares for her invalid husband.  The plaintiff sees herself as someone who is relied upon by others and her income from the work is significant for the household.

77I find that the plaintiff was not trying to mislead the Court in her description of her symptoms and difficulties.  Her actions in seeking treatment for her pain symptoms is consistent with her complaint of pain.

Consequences of the physical injury to the Plaintiff as a result of the transport accident

78I find that the plaintiff has suffered the following consequences as a result of the transport accident on the said date:

Sleep

79The plaintiff deposes in her affidavits that she has suffered from interruptions to her sleep to as many as four to five times per night.  This interruption to her sleep is due to the pain in her neck because she is unable to get in a comfortable position.  The plaintiff also complains that when she wakes in the morning, she is not refreshed by her sleep.[40]  The plaintiff complains that she is chronically fatigued as a result of her inability to get consistent sleep.[41]

[40]PCB 10

[41]PCB 16

80I accept that the plaintiff’s sleep is interrupted due to the pain she suffers from her neck.  The plaintiff has been prescribed Diazepam and melatonin to assist her with her sleep interruptions.  I accept that the inability of the plaintiff to obtain consistent and proper sleep is a very considerable consequence for her.

Pain

81The plaintiff, in her evidence and her affidavits, complains of persistent pain in her neck.  The pain on occasion radiates down her arms.  The plaintiff also complains of increased headaches as a result of the pain in her neck.

82The plaintiff has consistently sought medical treatment, including pain management courses, to deal with these pain symptoms.  The plaintiff has been prescribed various medications which she has had adverse reactions to.  The plaintiff is now limited by these reactions to the ingestion of Panadol regularly to ameliorate her pain symptoms.

83I accept that the plaintiff’s daily experience of pain from her neck condition which resulted from the transport accident is a very considerable consequence for her.  I accept that the plaintiff does express a full description of the level of her pain but that there is significant pain experienced by her in reality.

84I accept that it is reasonable for the plaintiff to not undergo the MRI scan due to her claustrophobia and inability to subject herself to such a radiological examination.  The plaintiff has been offered medial branch blocks to assist with her pain symptoms, but she has elected not to undergo that treatment.  The plaintiff, in her evidence, expressed a concern about that procedure causing her more difficulties.  I do not accept the criticism made of the plaintiff in this regard by Mr Stanley. 

Activities of daily living

85The plaintiff has been able to maintain her full-time employment despite the injury to her neck.  I accept her explanation that she continues to engage in this work for the reason that she is the breadwinner of the family.  I also accept that the plaintiff has had a number of days off work as a result of her symptoms from her neck and resulting pain.

86The plaintiff also cares for her invalid husband.  I note that her husband manages the investment properties owned by the couple.  The day-to-day care and maintenance of the household is performed by the plaintiff, but I accept that she does so with considerable difficulty and pain.

87The plaintiff has travelled overseas on three separate occasions since the transport accident.  She travelled to Macedonia in 2018 and from July to October in 2022.  In 2019, she went to Malaysia for a two-week holiday.  On each occasion for the travel, the plaintiff has had the assistance of other persons in terms of luggage, meetings and transfers at either end of the travel.  I accept that the plaintiff is able to travel internationally but requires the assistance of other persons to make that process a successful and tolerable one.  I accept the plaintiff is not someone who lifts the suitcases off and on the luggage carousels at the airport.

88The plaintiff states that due to her neck injury she is no longer able to do her crocheting.  Whilst her inability to continue with her crocheting artform is a consequence of the transport accident, I do not find that it fits the category of “at least very considerable”.  Nevertheless, overall, I find that the interference with the plaintiff’s activities of daily living is properly measured as being “at least ‘very considerable’ and more than ‘significant or marked’”.

Conclusion

89I find that the plaintiff has failed to establish that her psychiatric and psychological condition as a result of the transport accident on the said date has satisfied the level of “severe” which is required under the Act.

90On the basis of the medical evidence and the evidence of the plaintiff which I accept, the plaintiff has satisfied the statutory test that the consequences arising from the physical injury to the plaintiff’s cervical spine are “at least very considerable” and “more than significant or marked”.

91I order as follows:

(1) That leave is granted to the plaintiff pursuant to s93(17)(a) of the Act to bring proceedings for damages in respect of the physical injury to the plaintiff’s cervical spine incurred as a result of the transport accident which occurred on 30 September 2015;

(2) The plaintiff’s application pursuant to s93(17)(c) of the Act to bring proceedings for psychological and psychiatric injury arising from the transport accident which occurred on 30 September 2015 is dismissed.

(3)     I will hear the parties on costs.

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