Ervine v Transport Accident Commission
[2014] VCC 1879
•21 November 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-04518
| SHARRON MARA ERVINE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9, 10 and 11 September 2014 | |
DATE OF JUDGMENT: | 21 November 2014 | |
CASE MAY BE CITED AS: | Ervine v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1879 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Damages – serious injury – injury to the lumbar spine
Legislation Cited: Transport Accident Act 1986
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Richards & Anor v Wylie (2000) 1 VR 79; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702; Petkovski v Galletti [1994] 1 VR 436; Barlow v Hollis (2000) 30 MVR 441; Guppy v Victorian WorkCover Authority [2010] VSCA 164; De Agostino v Leatch & Anor [2011] VSCA 249; Bezzina v Phi & Anor [2012] VSCA 161
Judgment: Leave granted to the plaintiff to bring proceedings for damages in relation to injury sustained in the transport accident on 8 September 2009.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Rattray QC with Ms J Frederico | Slater & Gordon |
| For the Defendant | Mr A Clements QC with Ms S Manova | Wisewould Mahony |
HER HONOUR:
1 This is an application brought by the plaintiff 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 a transport accident which occurred on 8 September 2009 (“the transport accident”).
2 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The plaintiff brings this application pursuant to paragraph (a) of the definition of “serious injury” to be found in s93(17) of the Act. There –
“serious injury means—
(a) serious long-term impairment or loss of a body function.”
4 The loss of body function relied upon in this application is the lumbar spine.
5 The plaintiff seeks leave to issue proceedings at common law.
6 The plaintiff relied upon four affidavits, three sworn by the plaintiff on 15 December 2011, 21 August 2013 and 8 August 2014. In addition, one sworn by her husband, Mr Robert Ervine, on 8 August 2014. The plaintiff and her husband are separated.
7 The defendant relied on affidavits, two by Ms Melanie Hirst, sworn 17 July 2013 and 6 September 2014, and two by Mr Michael Scotti, sworn 19 July 2013 and 8 September 2014.
8 The plaintiff, Mr Ervine and Ms Hirst were cross-examined. I have not summarised all the affidavits and the evidence of the plaintiff and the other witnesses. However, I will refer to the relevant evidence of the plaintiff and the other witnesses in my reasoning.
9 In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant legal principles
10 The Court must not give leave unless it is satisfied, on the balance of probabilities:
(a)that the injury suffered by the plaintiff was as a result of the transport accident;
(b)that the injury is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.
11 The enquiry under sub-paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term. The requirements of the test are set out in the decision of Humphries & Anor v Poljak,[1] where the majority of the Court of Appeal said:
“… To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.”[2]
[1][1992] 2 VR 129
[2] Humphries & Anor v Poljak (supra) at [140]
12 The serious injury defined by sub-paragraph (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 the impairment of a body function.[3]
[3]Richards & Anor v Wylie (2000) 1 VR 79
13 In determining the application, the Court must make the assessment of “serious injury” at the time the application is heard.[4]
[4] Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
14 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[5]
“… many disturbances are considerable, in the sense that they are important or substantial, without being very considerable. … .”
[5][1998] 1 VR 702
15 The term “serious” requires the impairment and its consequences to be viewed objectively, and also judged on an external comparative basis against possible impairments not necessarily in the same category.[6]
[6](supra) at 170 and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441. In particular, Chernov JA at paragraph [29]
16 The wrongdoer must take the victim as he finds him or her; he must compensate only for the damage he has caused. In respect to an aggravation to a pre-existing condition, Southwell and Teague, JJ, in Petkovski v Galletti,[7] said that the task of the Court is to analyse the extent of the impairment of the body function before and after the relevant injury. The Court said:[8]
“… a comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter, and an assessment made of the extent of the additional impairment … .”
[7] [1994] 1 VR 436
[8](supra) at 443
17 When the injury for which compensation is claimed is an aggravation injury, the additional impairment must, itself, involve serious long-term impairment or loss of a body function.
18 Where there is an aggravation of a pre-existing impairment, the claimant must not only show that the aggravation injury is, in its consequences, a serious injury, but also that the aggravation injury is the result of the relevant accident.[9]
[9]De Agostino v Leatch & Anor [2011] VSCA 249 at paragraph [60]. See also Bezzina v Phi & Anor [2012] VSCA 161 at paragraph [23]
The Issues
19 Counsel for the defendant submitted:
(i) The plaintiff’s ongoing low-back symptoms are not attributable to the transport accident but are the result of degenerative changes in the plaintiff’s lumbar spine which pre-date the transport accident, and which were causing symptoms of both low-back pain and left sciatica before the transport accident;
(ii) The impact of the transport accident was minor, and if the plaintiff suffered an injury to her low back, it was no more than a temporary aggravation of the already symptomatic degeneration in the lumbar spine. Further, the temporary aggravation is no longer producing any of the plaintiff’s ongoing low-back symptoms;
(iii) If the plaintiff did suffer an aggravation of her degenerative condition of her lumbar spine in the transport accident, the plaintiff’s application should fail, because if the accident had not happened, the plaintiff would still have the same problems with her low back and left leg that she has today, due to the progression of degenerative disease in her lumbar spine.
Investigations
20 On 17 September 2009, a CT scan of the lumbar spine concluded:
“1Broad based central left paracentral disc protrusion L5/S1. Both S1 nerves are contacted and posteriorly displaced (left more than right) with the left nerve slightly effaced in the lateral recess and potentially compromised.
2Shallow central and right paracentral disc protrusion L4/5 with thecal sac indentation and potentially right L5 neural contact but no CT features for compression.
3Shallow broad based disc bulge L3/4 without significant canal nor neuroforaminal compromise.
4Mild multilevel facet joint arthropathy.”
21 On 15 January 2010, an MRI scan of the lumbar spine showed:
“Mild lower lumbar degenerative change. Mild right paracentral disc protrusion at L4/L5 causing mild posterior displacement of the right L5 nerve root in the right subarticular recess. Mild central disc protrusion at L5-S1 causing contact on L5 nerve roots bilaterally in the subarticular recesses. Mild non compressive central disc protrusion at L3/L4.”
22 On 23 March 2011, a CT scan of the lumbar spine concluded:
“Small disc herniation seen at L3/4 to L5/S1 levels as described above with mild indentation of the anterior thecal sac at the level of L3/4 and L4/5. Throughout the lumbar spine, the nerve roots appear to exit freely. No intra canal cyst or mass seen.”
23 On 13 March 2014, an MRI scan of the lumbar spine concluded:
“Mild lumbar spondylosis, greater at the mid to lower lumbar spine. Disc bulges at L3/4 and L5/S1.
Broad based central to right paracentral disc protrusion at L4/5 slightly posteriorly displaces and effaces the right descending L5 nerve. There is mild to moderate central canal stenosis.”
Medical reports of the Plaintiff
Mr Michael Johnson
24 In October 2011, Mr Johnson, orthopaedic surgeon, reported that he treated the plaintiff on referral from her general practitioner Dr Palmer from 26 November 2009. He reported the plaintiff was a delivery driver for a car parts distributor and her work involved driving and lifting up to 25 kilograms. She reported experiencing occasional backache. She reported being stationary when her vehicle was jolted in a rear-end motor vehicle accident. She continued working and developed pain in her left leg which was very severe.
25 In December 2009, a lumbar epidural injection was administered. In February 2010, the plaintiff reported no real benefit and complained of back and left leg pain. Mr Johnson suggested a rehabilitation program.
26 Mr Johnson said the plaintiff reported that her symptoms became significant following a transport accident in September 2009. The plaintiff described a moderate level of disability, which he suspected would have meant that she was incapable of performing her normal work. He said CT and MRI scans demonstrated lower lumbar degenerative change, but there was no specific abnormality that is clearly the cause of her symptoms. He recommended she undertake a back rehabilitation program at Donvale Hospital which he understood had occurred. He did not see a place for surgical intervention.
Dr David Vivian
27 In February 2011, Dr Vivian, pain management consultant, confirmed he examined the plaintiff on referral from her general practitioner, Dr Palmer, and reviewed her in October 2010. She reported pain following the transport accident, which was severe, involving the low back, the right sacral region and the left leg, where she developed neurological symptoms. She reported gaining weight since the accident. Dr Vivian diagnosed neurological symptoms and signs consistent with an S1 nerve root injury which may have been caused by a disc prolapse. Secondly, persistent low-back pain which might be related to the disc injury, but also could relate to lower lumbar facet joint and or sacroiliac joint injury. Dr Vivian recommended the plaintiff get fit, lose weight and return to work. He noted that if the back pain persists, it may be necessary to determine whether or not the plaintiff has a facet joint component of pain, and treat it with a radiofrequency neurotomy. Dr Vivian said the sacroiliac joint should be investigated and it was unlikely that a discectomy would help the back pain.
28 In February 2011, Dr Vivian reported that the plaintiff had undergone exercises which had helped. He thought the neurological symptoms in her leg were likely to persist and these will have an effect on her ability to work in a job that requires weight bearing, bending and lifting. He said her capacity for pre-injury work was severely compromised.
Dr Marina Demetrios
29 In March 2010, Dr Demetrios, rehabilitation physician, examined the plaintiff on referral from Mr Johnson, orthopaedic surgeon. She recommended that the plaintiff would benefit from a back pain program, which the plaintiff commenced in May 2010. The plaintiff reported benefits after completing the program. Dr Demetrios said the plaintiff was very motivated to continue her exercise program in the community.
Dr Anthony Palmer
30 Dr Palmer, general practitioner, provided numerous medical reports in relation to the plaintiff between April 2011 and July 2014. The plaintiff had been a patient of the Clinic since July 1983. She was not seen again until August 1986. Since then she has attended 5 to 6 times per year.
31 In November 2009, Dr Palmer reported that the plaintiff first mentioned back pain in August 2009, prior to the transport accident. Since the transport accident, the plaintiff complained of low-back pain. He said the sciatica increased significantly. She was treated with analgesia, non-steroidal medication and referred for physiotherapy, remedial massage and to Mr Johnson, orthopaedic surgeon, for further assessment.
32 In October 2012, Dr Palmer described the plaintiff’s low-back pain as significant, and said she had sciatica secondary to a disc prolapse at L5-S1 with associated left leg pain and paraesthesia due to the motor vehicle accident. She had been treated conservatively with analgesia, lumbar spinal injections, and an exercise program. She gained significant weight, and that has impaired her recovery. Dr Palmer said the plaintiff had complained of low-back pain prior to the accident; however, there had been a significant exacerbation following the accident. He said she was incapable of returning to her previous duties, which required bending and lifting. Her return to work is hampered by her age, disability and lack of education and skills. He said her condition had become chronic and her weight gain was in the order of 25 kilograms.
33 In August 2013, Dr Palmer reported that the plaintiff’s drinking increased after the transport accident and there was an episode of psychosis in 2010. He said her psychiatric condition would not prevent her returning to pre-accident duties; however, her left foot paraesthesia and ongoing back pain would. He said the plaintiff will have exacerbations of her psychiatric condition periodically, which was possibly unrelated to the transport accident.
34 In April 2014, Dr Palmer referred the plaintiff to Mr Paul D’Urso, neurosurgeon, due to her chronic low-back condition.
Mr Paul D’Urso
35 In September 2014, Mr D’Urso neurosurgeon, reported that the plaintiff presented with a history of severe back pain and left leg pain. It was his opinion the transport accident had precipitated the onset of symptoms and may well have contributed to the development of the disc prolapse at L4-5 and possibly aggravated an underlying degenerative condition of the spine. He said her symptoms were substantially worse than what he would have expected, judging from the investigations. He thought there was likely to be a degree of non-organic and functional overlay affecting her presentation. He recommended a psychiatric assessment. He said the plaintiff did not have a capacity for pre-injury employment and is likely to have limited capacity for employment in general.
Dr Sheryl Lawson
36 Dr Lawson, psychiatrist, treated the plaintiff on referral from Dr Palmer between July 2009 and October 2012. In July 2009, the plaintiff reported anxiety symptoms and panic attacks, which she had suffered for many years, and had worsened. In 2006, the plaintiff commenced heavy drinking of six or more standard drinks of wine per night, and she had not undertaken any alcohol counselling. She had been gambling for approximately ten years.
37 The plaintiff developed postpartum depression after the birth of her first son twenty-six years ago. Following the delivery of her second child, she was placed on medication and admitted to a psychiatric unit soon after. She was admitted a third time, when her children were toddlers, at the Melbourne Clinic, where she was again given ECT and placed on medication. Dr Lawson said the plaintiff presented with generalised anxiety symptoms, as well as poor impulse control, as evidenced by her gambling and drinking. She was placed on Lexapro to control her anxiety symptoms and referred for drug and alcohol counselling.
38 In October 2009, the plaintiff presented in pain due to disc problems following the transport accident. She had successfully been controlling her alcohol and gambling and reported still suffering from anxiety at times, but otherwise her psychiatric condition was “not too bad”.
39 By December 2009, the plaintiff was reporting an increase in alcohol consumption once per week. She developed early symptoms of psychosis, in particular, increased agitation or sleep disturbance.
40 By June 2010, the plaintiff reported drinking up to six glasses of alcohol per night but otherwise her mental state was stable.
41 In November 2010, the plaintiff developed some paranoid psychotic symptoms, as well as hypomanic ones. She had been under the care of a CAT Team. By December 2010, Dr Lawson said she had no psychotic symptoms and was stable.
42 In September 2012, the plaintiff reported that her mental state was settled and that she was still drinking regularly but not as much.
43 In October 2012, Dr Lawson reported that the plaintiff continues to have side effects from her medication, including weight gain (also due to back problems and inactivity, as well as alcohol) and tremor. She continues to drink on a regular basis but not as heavily as previously. She remains on medication.
Dr Duncan R M Taylor
44 In May 2013, Dr Taylor, psychiatrist, examined the plaintiff on referral from her general practitioner. He initially saw her in February 2013.
45 In 2014, Dr Taylor said the plaintiff had a number of comorbid psychiatric conditions which are chronic in nature and which have been exacerbated by the physical and psychological sequelae of the road traffic accident. The trauma of the accident has worsened her existing conditions and resulted in post-traumatic symptoms. Her functional decline has a negative effect on her self-esteem and is likely to make her psychiatric conditions more severe and more chronic in nature. He said her long-term prognosis is now worse following the accident.
Medico-legal reports
Mr Russell Miller
46 Mr Miller, orthopaedic surgeon, examined the plaintiff at the request of the plaintiff’s solicitor in April 2012, February 2013 and May 2014.
47 Mr Miller said the plaintiff suffered an injury to the lumbar spine with aggravation of degenerative disease in the lumbar spine and probably disc injury at the L5-S1 level. He said she had some diminished sensation, absent left ankle reflex, and some calf muscle wasting. She had poor response to conservative treatment and is reluctant to consider surgical intervention. He thought her prognosis for the lumbar spine was poor.
48 Mr Miller said it is likely the plaintiff had some pre-existing, but asymptomatic, degenerative disease in the lumbar spine and some minor pre-existing symptoms. It is likely the pre-existing spinal disease was aggravated by the transport accident and there has been further superimposed injury. It was his view that the plaintiff’s current clinical status in relation to the lumbar spine reflected, to a large extent, the influences of the transport accident.
49 Mr Miller said the plaintiff’s current conservative treatment regime is appropriate. He said it is possible she will benefit from surgery to the lumbar spine in the form of a decompression and/or fusion, but such surgery is complex, with prolonged rehabilitation, limited reliability and a significant complication rate. The requirement for treatment was accident related.
50 Mr Miller said the plaintiff was not fit for pre-injury duties. She cannot return to work that involves repetitive bending, repetitive lifting, lifting of weights more than 5 kilograms, and she is required to shift her posture on a regular basis. He noted that she previously worked in physical work. He did not think she could return to work on any significant full-time or part-time basis.
51 It was Mr Miller’s opinion that the transport accident significantly contributed to the evolution of her spinal disease. He said the plaintiff had pre-existing disease in the lumbar spine which was minimally symptomatic. He said the plaintiff had significant distress and anxiety as a result of ongoing pain. Her condition had substantially stabilised. There are psychological factors operating, but he believed her presentation is accounted for by the defined organic pathology. He thought her injuries are likely to remain at their current level.
52 Mr Miller read the affidavit of Ms Hirst dated 17 July 2013. He considered Dr Palmer’s clinical file, who reported that the plaintiff was seen on 26 August 2009 with an episode of low-back pain and recorded a full range of motion at that time. In addition, he read the medical reports of Mr Shannon dated 21 February and 1 August 2013. Mr Shannon described the accident as low impact. Mr Miller concurred with that view. Mr Shannon said:
“I cannot conclude that she sustained a jarring type or soft tissue injury to the lumbar spine. This may well have aggravated pre-existing and previously asymptomatic degenerative change.”[10]
Mr Miller said he remained of the view that the lumbar spine disease had been influenced by the transport accident. He did not alter his previous findings or conclusions.
[10]Defendant’s Amended Court Book 41
53 Mr Miller was aware that the plaintiff is a long-term schizophrenic, and has feelings of anxiety and depression. He said this requires separate assessment.
Dr Robyn Horsley
54 In August 2014, Dr Horsley, occupational physician, examined the plaintiff at the request of the plaintiff’s solicitor. It was her opinion the plaintiff suffered a significant injury to her lumbar spine in the transport accident, with primarily left sided symptoms. She said the plaintiff presented with ongoing mechanical back pain with radicular pain down the left leg. She has radicular signs in the S1 distribution. She has radiological evidence of discal pathology with a more right-sided component which is asymptomatic. Further, she has an annular fissure which is likely to be the ongoing pain generator. A CT scan in 2011 confirmed a small broad-based disc herniation with a slightly larger left-sided paramedian component which is compatible with her clinical presentation. She said the plaintiff’s clinical presentation is complicated by her Schizoaffective Disorder which was diagnosed in 2001 but exacerbated post accident. Dr Horsley said that given the length of time since the injury and the ongoing nature of the symptoms, she believed the symptoms are likely to persist.
55 Dr Horsley said that given the plaintiff’s low level of education (she completed Year 6), she has literacy issues and her computer skills are basic. If the plaintiff is given time to think, she can read and understand the newspaper. She reported spelling and grammar issues if she writes a letter. She has not read for a number of years. She would be unable to return to her previous physical work roles because of her back condition. The plaintiff’s ability to re‑train is impacted by her poor educational background and difficulties with concentration, secondary to her medication and her psychiatric disability. Dr Horsley said the plaintiff is totally and permanently disabled. It was Dr Horsley’s opinion that the transport accident resulted in a further level of disability which now prevents the plaintiff from working in the manual arena, for which she is qualified.
56 Dr Horsley imposed work restrictions in respect to the plaintiff’s back condition alone. These restrictions are the avoidance of:
§ Repetitive overreaching;
§ Repetitive pushing and pulling;
§ Working in awkward and confined spaces;
§ Repetitive bending and lifting;
§ Truncal rotation;
§ Lifting items greater than 10 to 12 kilograms except on an occasional basis;
§ Lifting items up to 10 kilograms on a repetitive basis.
57 She said the plaintiff had functional tolerances which are poor and relate to her poor level of conditioning. She said she presented with a significant disadvantage.
Mr John F O’Brien
58 In September 2011, Mr O’Brien, orthopaedic surgeon, examined the plaintiff at the request of the defendant’s insurer. It was his opinion that the plaintiff continued to experience discogenic back pain. He said there was a residual S1 sensory change but no ongoing nerve root compression which correlates with the most recent CT scan findings. He said employment remains a significant contributing factor to the plaintiff’s current symptoms. He thought her clinical condition had stabilised. He would remain guarded in relation to the plaintiff’s prognosis and the prolonged clinical course.
59 Mr O’Brien said he did not think the plaintiff could return to her pre-injury occupation. From a physical perspective, he would suggest the plaintiff is not totally incapacitated and could perform light duties. He imposed restrictions on physical duties involving heavy lifting and he accepted that she was limited in her general, domestic, social and recreational activities, which he thought was likely to be ongoing.
The Defendant’s medical evidence
Mr Michael J Shannon
60 Mr Shannon, orthopaedic surgeon, examined the plaintiff in November 2011, February and July 2013 and July 2014. It was his opinion the plaintiff had mechanical back pain associated with significant lumbar disc degeneration at the lowest two lumbar levels. In 2014, he said there was no significant change in her condition since his last review, if anything, her range of movement is a little better; however, the MRI scan appearances are essentially unchanged. He said the cause of the plaintiff’s current symptoms is mechanical back pain associated with pre-existing lumbar disc degeneration. He thought the significant contributing factor to her present condition is the pre-existing degenerative change. He said there did not appear to be a significant functional overlay. He thought she was fit for light work which did not involve prolonged or repetitive bending or heavy lifting and ideally which would permit her to vary her posture. He thought she could perhaps do bench work or process work.
Dr Alan Jager
61 In October 2011, Dr Jager, forensic psychiatrist, medically examined the plaintiff at the request of the defendant’s insurer. He obtained a history that prior to the accident, the plaintiff was taking mood stabilising medication and antipsychotic medication. After the accident, anti-depressant medication was added. She sees her psychiatrist with the same frequency, but in October 2010, she started hearing voices talking and developed persecutory thoughts. He said she felt stressed and has reduced enjoyment and sleep, energy and libido. He said she had a Schizoaffective Disorder; her condition is pre-existing. The transport accident aggravated the condition, but he estimated that it was now back to her pre-injury status.
Dr Dush Shan
62 Dr Shan, psychiatrist, medically examined the plaintiff in July 2013 and July 2014. He said the plaintiff suffered a chronic psychiatric history with a probable diagnosis of either schizophrenia or Schizoaffective Disorder; but she had managed work at intervals over the years. Dr Shan said it was not readily apparent from the plaintiff or her doctor’s clinical notes that the pre-existing psychiatric condition had become markedly unstable following the injury. He said there were no changes in medication for at least twelve months afterwards. He concluded the plaintiff suffered from a mild Adjustment Disorder with Mixed Anxiety and Depressed Mood, which developed as a consequence or secondary to the physical injury. He said the plaintiff’s combined psychiatric conditions constitute an incapacity for her pre-injury work and some reduction in domestic and social activities.
63 In 2014, Dr Shan said the plaintiff’s symptoms related to the transport accident consist only of depression and anxiety in relation to residual physical symptoms. The condition of Adjustment Disorder does not, in itself, constitute incapacity for domestic or social activities to any great extent.
Credit
64 The plaintiff gave her evidence in a slow, deliberate fashion, and adopted a monotone voice. The plaintiff was uneducated, having left school during Year 7. The plaintiff made concessions throughout her evidence. The plaintiff was on occasions not precise with her evidence. I inferred that this was due to her lack of education and a lack of understanding with the court process. I did not infer that it was due to a deliberate attempt to mislead the court.
65 Counsel for the defendant submitted that I should have real concerns about the plaintiff’s credit. Counsel for the defendant made a number of submissions in relation to credit, namely:
a) that the plaintiff gave an exaggerated account of the motor vehicle damage caused by the accident;
b) that the plaintiff refused to admit that she was not “travelling well” psychiatrically at the time of the transport accident despite contrary evidence;
c) that the plaintiff underreported her pre-existing difficulties with her level of alcohol consumption;
d) that the plaintiff saw a general practitioner shortly before the accident reporting one day only of back or leg pain; and
e) that the plaintiff underreported difficulties with her weight prior to the transport accident.
I turn to examine the submissions as to the plaintiff’s credit in each respect.
Plaintiff’s evidence as to motor vehicle damage
66 I accept that in cross-examination, the plaintiff exaggerated the level of damage to her vehicle and the other vehicle. The plaintiff gave evidence that she did not know how much damage was done to the other vehicle. She then said the radiator of the other vehicle had been squashed forward and green liquid was coming out of the radiator. She said the o-ther vehicle came with force:
Q: “I suggest to you the other vehicle only made very light contact with the back of your vehicle?---
A:No, because my car was pushed in at the back. It was a big push in at the back and the other car that I took notice of, I was all shook up because I wasn’t expecting it, was leaking out green fluid from the radiator which the motor and the radiator had been squashed forward.”[11]
[11]T32, L28 – T33, L3
67 It was then put to the plaintiff:
Q: “I suggest to you there was no significant damage to the other car either?--
A: There would have been damage to the other car because it was a---?---
Q: But you don’t know?--
A: I didn’t, I got a shock because I – I did get a shock because I wasn’t expecting it. I don’t know how much damage was done to the other car.”[12]
[12]T36, L11-16
68 It was then put to the plaintiff:
Q: Ms Ervine, when you said to her Honour that you saw green fluid leaking out of the radiator?---
A: Yews (sic).
Q: Of the car which hit you, were you just making that up, weren’t you?---
A: No I wasn’t.”[13]
[13]T36, L28-31
69 Ms Hirst, the driver of the other vehicle, gave evidence that there was damage to her car on the numberplate where she “tapped the plaintiff’s vehicle”.[14] She agreed there was damage to the plaintiff’s bumper bar. She agreed there was minor damage to the area of the boot.[15] Ms Hirst’s evidence was that there was nothing on her vehicle that required repair.
[14]T97, L23
[15]T105, L10
70 The plaintiff’s evidence as to the level of damage to her employer’s vehicle was:
“It was a big push in the back.”[16]
[16]T30
and
“It was a big dint.”[17]
[17]T36
71 The plaintiff’s employer, Michael Scotti, swore an affidavit on 19 July 2013. He swore:
“My brother, Russell and I inspected the vehicle. I found that there was no real damage to the car, and all I could see was a little dint in the rear bumper bar. We considered the damage to be so minor that we did not bother to get it fixed.”
72 Soon after the accident the plaintiff reported the circumstances of the accident to the doctors whom she saw. Mr Johnson reported that the plaintiff was “jolted” in the accident. The inference was that the impact was not significant. Mr Vivian recorded that she was “involved in a motorcar accident when she was hit from behind when she was stationary”. Dr Palmer reported she was involved in a motor vehicle accident in which her car was hit from behind, resulting in a severe exacerbation of her back pain.
73 I conclude that the plaintiff, in cross-examination, exaggerated the impact of the transport accident. The plaintiff did not assist her case as she did not give an accurate recollection of the damage. I conclude that the description she provided to medical witnesses she consulted at the time of the accident is more accurate, together with the evidence provided by Ms Hirst and Mr Scotti.
The plaintiff’s psychological condition at the time of the transport accident
74 It was not in issue that the plaintiff had a history of psychological treatment. The plaintiff disclosed it in her first affidavit. She said, at the time of the accident, she was on antidepressant medication. In cross-examination, she was asked about her psychiatric condition. It was put to her that she minimised the level of her psychiatric problems leading up to the transport accident.
Q:“I suggest to you, it is not true to say that you were travelling quite well psychiatrically at the time of the transport accident in September 2009?---
A: I was.
Q: Mrs Ervine, six weeks before the accident your general practitioner, Dr Palmer, had referred you to a psychiatrist, Dr Lawson, for treatment; do you remember that?---
A: No, I don’t remember that. All I know is I was fit and well to go to work every day and do my job and work harder.”[18]
[18]T53, L23-31
75 Counsel for the defendant referred to the report of Dr Lawson dated 28 July 2009, which was provided to the plaintiff’s general practitioner prior to the transport accident. Dr Lawson said:
“In summary she is a forty nine year old woman with a recurrent severe psychiatric illness, possibly psychotic depression, who in recent years has been maintained on low dose antidepressants and higher dose antipsychotics and mood stabilisers. She now presents with generalised anxiety symptoms primarily as well as poor impulse control as evidenced by her gambling and drinking.”
76 Counsel for the defendant submitted that the plaintiff’s refusal to admit that she was not travelling well psychiatrically at the time of the transport accident indicated that she was more interested in giving evidence to help her case rather than telling the truth.
77 I do not accept that submission. A report from Dr Lawson dated 16 October 2009 said:
“She has successfully been controlling her alcohol and gambling and has not smoked for four and a half months. She still suffers from anxiety at times but is otherwise not too bad psychiatrically.”
78 I note that the plaintiff detailed her psychiatric history in her affidavit. The evidence that the plaintiff was fit and well, and could attend work every day, supports her belief that she was substantively well, or “travelling well” prior to the transport accident.
The plaintiff’s evidence as to her level of alcohol consumption
79 Counsel for the defendant submitted that the plaintiff suggested to the Court that her drinking problem worsened as a result of the transport accident; however, in reality the plaintiff had an entrenched drinking problem in the three years prior to the transport accident. In paragraph 20 of the plaintiff’s first affidavit[19], she swore:
“Over the years I have sometimes struggled with gambling and drinking too much. I believe that my inability to work at the moment has made these problems worse.”
[19]Affidavit dated 15 December 2011.
80 Dr Lawson recorded in July 2009 that:
“She commenced heavy drinking three years ago of six or more standard drinks of wine per night. She has never had any alcohol counselling.”
81 In October 2009, Dr Lawson said the plaintiff had been successfully controlling her alcohol intake. In December 2009, she was seeing her drug and alcohol counsellor fortnightly, but had relapsed to the extent that once per week she was drinking up to five glasses of alcohol when she goes out. In May 2013 Dr Palmer recorded that the plaintiff was drinking up to sixteen glasses per day. In 2014, the plaintiff reported to Dr Horsley that she drinks approximately six standard glasses of wine per night. At times she can drink up to eight glasses. Her alcohol intake was an issue before the accident, but she was able to maintain her employment. She states that she drank much less when she was at work.
82 I do not accept the defendant’s submission in relation to the plaintiff’s credit and her level of alcohol consumption. The plaintiff disclosed that she had a drinking problem and believes that her inability to work made the problem worse.
83 The plaintiff’s evidence was that when she saw the psychiatrist about her drinking, she would joke and say she was having a few more drinks than probably what she was drinking. I accept the plaintiff was reporting to doctors the level of alcohol she was consuming. I do not accept the plaintiff’s evidence that she would report drinking more than she was drinking or that she would be joking about the issue. This does not ring true. I accept the level of alcohol reported to the psychiatrists was accurate.
Reporting of prior back and leg pain
84 The plaintiff’s evidence was that she reported back and left leg pain to her general practitioner in August 2009, shortly prior to the transport accident in September 2009. The plaintiff gave evidence that she did not have pain prior to that day. However, in cross-examination the plaintiff said that sometimes, she had to wait for 1 to 2 weeks to book an appointment with Dr Palmer. Given her evidence about the waiting time to see Dr Palmer, counsel for the defendant submitted the plaintiff’s evidence that she only experienced pain on one day lacked credibility. As to that submission, Dr Palmer’s records make no mention of when the plaintiff reported first suffering the low back pain. Further, Dr Palmer provided no certificate to the plaintiff for time off work, nor did he schedule a follow up appointment. This is consistent with the plaintiff’s evidence that it was a discrete instance of back pain in August 2009. I also note that the plaintiff was able to see a doctor at the same clinic on the day following the transport accident, without delay. Accordingly, I do not accept the submission of counsel for the defendant in this regard.
The plaintiff’s weight
85 The plaintiff said she is embarrassed about her weight. Prior to the accident, she was slim. Dr Palmer in his clinical notes recorded in June 2000, the plaintiff weighed 61 kilograms, and by February 2007 she weighed 69 kilograms. Clearly, between June 2000 and February 2007, the plaintiff’s weight increased. Dr Palmer’s records further note that on 24 September 2008, the plaintiff weighed 79 kilograms.
86 On 26 August 2009, just prior to the accident, Dr Palmer recorded the plaintiff’s weight at 89 kilograms, and recorded “Must lose weight has commenced Exercise program = walking around lake”. I accept that on 26 August 2009, Dr Palmer discussed with the plaintiff her weight. I accept that Dr Palmer considered the plaintiff overweight at 89 kilograms, and she was not “slim”. Subsequent to the accident, her weight has continually increased, such that the general practitioner records her weight in excess of 100 kilograms.
87 The plaintiff produced a photograph of herself at a family member’s wedding. She was shown to be an attractive woman. I was told the photograph was taken in late 2008 or early 2009. Dr Palmer’s records note that on 24 September 2008, the plaintiff weighed 79 kilograms; his next recording of the plaintiff’s weight was on 26 August 2009, at 89 kilograms.
88 As to the treatment of the plaintiff’s credit, in Cakir v Arnott’s Biscuits Pty Ltd,[20] the Court of Appeal said an adverse finding concerning the appellant’s credibility was not, by itself, sufficient to justify the refusal of the serious injury application. Regard should be had to analysing and giving appropriate weight to all of the evidence, including objective evidence.[21] The fact that a court determines that a plaintiff is not a reliable witness either in general, or in respect of particular matters, does not mean that all of the evidence of the plaintiff should be disregarded. In considering the credit of the plaintiff, I must consider the evidence as a whole. There was evidence in the plaintiff’s affidavits that was not challenged by the defendant. In addition, there was no challenge to the evidence of the plaintiff’s estranged husband. His evidence supported the plaintiff’s evidence. Overall, I am not prepared to conclude that the plaintiff was evasive and misled the Court. From my observation in Court, I formed the view that the plaintiff did her best to answer all questions put to her. I accept that on occasions, she was unreliable as a witness, but those occasions were relatively few and to a degree that is explained by her lack of education. Accordingly, on some aspects of the plaintiff’s evidence (in particular the circumstances of the transport accident, and the level of drinking she reported) I am more influenced by her evidence when it is supported by other objective evidence.
[20][2007] VSCA 104 at [49-58]
[21]Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108
89 The credit of Mr Ervine was unchallenged. He answered questions directly. He did not exaggerate. There was a ring of truth about much of what he said about the plaintiff. I accepted him as a truthful and credible witness.
Analysis of the evidence
90 The majority of medical witnesses accepted that the plaintiff suffered a compensable injury to her lumbar spine in the transport accident.[22] In July 2013, Mr Shannon initially accepted that the plaintiff suffered a jarring type of soft-tissue injury to the lumbar spine, which may have aggravated pre-existing and previously symptomatic degenerative change. In August 2013, he reiterated that view, after being provided with the affidavits of Ms Hirst and Mr Scotti. In July 2014, Mr Shannon changed his view and said: “The significant contributing factor is the pre-existing degenerative change”. I accept that Mr Shannon, in expressing his most recent view, does not exclude that the pre-existing degenerative condition is the only factor involved. He was the only medical witness to express this view. Accordingly, based on all the medical reports, I accept that the plaintiff suffers an injury to her low back, a cause of which is the transport accident.
[22]Dr Palmer, Mr Miller, Mr D’Urso and Dr Horsley
91 All medical witnesses accepted that there was multilevel degenerative disease. The general practitioner’s records confirm that in the past the plaintiff complained of intermittent back pain which was not problematic, and for which she did not require any time off work.
92 The plaintiff reported being hit by a neighbour’s car in February 1999, a transport accident in August 1999, and a fall at work in January 2000. In all these incidents she reported neck and back pain. Dr Palmer confirmed the plaintiff had been involved in two very minor motor vehicle accidents which resulted in minor back ache. There was no sequelae to either visit and no need for a further visit.
93 The evidence was that in August 2009, the plaintiff consulted her general practitioner complaining of low-back pain. She was prescribed Mobic. No investigations were conducted. No work certificate was provided and no further attendances were required.
94 I accept that immediately before 8 September 2009, the plaintiff complained of intermittent back pain for which she received minimal treatment, and was able to continue working. This is consistent with Dr Palmer’s evidence. Further, the plaintiff’s evidence was she continued working until after the transport accident.
95 On 8 September 2009, the plaintiff was involved in a transport accident when her vehicle was “jolted” from behind. After the transport accident, she developed neck, low-back and left leg pain. She consulted her general practitioner the following day. A WorkCover Certificate was issued and she was to be reviewed in one week’s time. On review, she reported increased low-back pain with left leg sciatica and pins and needles. She attended physiotherapy, a CT scan was organised, and analgesics of Panadeine Forte were prescribed. Her neck pain largely resolved. The plaintiff was referred to Mr Johnson, orthopaedic surgeon, for further assessment. In December 2009, Mr Johnson administered an epidural injection. She was referred to a rehabilitation program at the Donvale Rehabilitation Centre.
96 It was not in issue that the plaintiff suffered from severe post-natal depression/puerperal psychosis in 1986 for which she required admission and ECT therapy. She suffered for years with anxiety/depression with occasional schizophreniform symptomatology. In 2010 she suffered a psychotic episode. She had problems with alcohol use and weight gain over the years, both of which are ongoing. Regardless of these issues, the plaintiff maintained her work and her household.
97 I must make the assessment at the time of hearing the application. Accordingly, I place greater weight on the most up-to-date medical evidence of Dr Palmer, Mr Miller, Mr D’Urso, Dr Taylor, Dr Horsley, Dr Shan and Mr Shannon.
98 In February 2013, Dr Palmer said in respect to the transport accident the plaintiff suffered low back pain and sciatica. She was making very slow progress and there had been some resolution on the CT scan. He said the plaintiff had been certified fit for alternative duties, and she underwent computer training with limited success, in part due to her limited education. Her ongoing mental health issues (anxiety/depression) were exacerbated by the departure of her husband, and this is a limiting factor in any return to work. He said the plaintiff had only ever engaged in unskilled work.
99 In August 2013 Dr Palmer said the plaintiff continues to receive treatment from a psychologist and psychiatrist. He said her psychiatric condition would not restrict her return to pre accident work. Rather, it was the left paraesthesia and ongoing back pain that would restrict her employment. Dr Palmer reported that she had gained weight since the accident; this was in part due to immobility, but also due to increased kilojoule intake from the alcohol. He said she was extremely limited in the amount of housework that she could perform.
100 In June 2014, Mr Miller said the plaintiff suffered an injury to the lumbar spine with aggravation of degenerative disease in the lumbar spine and probable disc injury at L5-S1 level. She had diminished sensation, absent left ankle reflex and some calf muscle wasting. She had a poor response to conservative measures and is reluctant to consider surgical intervention. He was of the view the prognosis for the lumbar spine is poor. Mr Miller said the plaintiff had some pre-existing disease in the lumbar spine and some minor pre-existing symptoms. It is likely they were aggravated by the transport accident and there has been further superimposed injury.
101 Mr Miller said she is not fit for pre-injury duties. He imposed restrictions in respect of repetitive bending, repetitive lifting, lifting of weights more than 5 kilograms and she is required to shift her posture on a regular basis. He did not envisage a return to work on any significant full or part-time basis. He concluded that the transport accident had significantly contributed to the evolution of her spinal disease. He accepted there were psychological factors operating, but her presentation is accounted for by defined organic pathology. He said her injuries will impact on her lifestyle in general and her injuries are likely to remain at the proximate current level.
102 In September 2014, Mr D’Urso said subsequent investigation revealed a right paracentral L4-5 disc prolapse with an annular tear and right L5 nerve root impingement, as well as degenerative changes at the L5-S1 motion segment. He said the transport accident had precipitated the onset of symptoms. The accident may well have contributed to the development of the disc prolapse at L4-5 and possibly aggravated the underlying degenerative condition of the spine. He recommended the plaintiff undergo an epidural injection. He thought there would be a degree of degenerative progression. The extent was difficult to determine. He thought there was likely to be a degree of non-organic and functional overlay affecting her presentation. He said she did not have a capacity for pre-injury employment and is likely to have limited capacity for employment in general.
103 In August 2014, Dr Horsley said the plaintiff presented with ongoing mechanical back pain with radicular pain down the left leg. She has radicular signs in the S1 distribution. She has radiological evidence of discal pathology with a more right-sided component which is asymptomatic. It was Dr Horsley’s opinion that the transport accident resulted in a further level of disability which prevents the plaintiff from working in the manual arena. Dr Horsley imposed work restrictions. She said the plaintiff presented with significant disadvantage. The plaintiff has a low level of education and literacy difficulties, which were apparent on the forms she completed at the appointment. Further, the plaintiff has minimal computer skills. The plaintiff’s transferrable skills are in the manual arena and, because of the physical restrictions, Dr Horsley said she was totally and permanently disabled, with no capacity for re-training or re-deployment.
104 In July 2014, Mr Shannon said the plaintiff’s present condition is mechanical back pain associated with significant lumbar disc degeneration at the lowest two lumbar levels. He said the cause of her current symptoms is of mechanical back pain associated with pre-existing lumbar disc degeneration. He said the significant contributing factor to her present condition is the pre-existing degenerative change. He thought she was fit for light work which did not involve prolonged or repetitive bending or heavy lifting, and ideally which would permit her to vary her posture. He thought she could perhaps do bench work or process work.
105 I accept the medical evidence is that the plaintiff suffered an injury to the low back, a cause of which was the transport accident. Based on the medical evidence of Dr Palmer, Mr Johnson, Mr Miller and Mr Shannon, I am satisfied the plaintiff suffered a compensable injury to the low back resulting from the transport accident, being an aggravation of degenerative disease in the lumbar spine and probable disc injury at the L5-S1 level.
106 In May 2014, Dr Taylor said the plaintiff’s psychotic condition was currently stable and in remission. She continues to struggle with mood and anxiety symptoms which have been exacerbated by, and have worsened, since the transport accident. He said the trauma of the accident worsened her pre‑existing condition and resulted in post-traumatic symptoms. Her functional decline has a negative effect on her self-esteem and is likely to make her psychiatric condition more severe and more chronic in nature. He said her psychiatric condition is worse following the transport accident. He said her condition would prevent her from performing unrestricted physical or manual activities in her domestic environment. In particular, she would be unable to perform more arduous domestic cleaning or gardening activities and has no capacity for recreational sporting activities.
107 In July 2014, Dr Shan said that the plaintiff had a past psychiatric diagnosis of Schizoaffective Disorder. It was not apparent to him that the plaintiff’s prior psychiatric condition worsened substantially following the transport accident. He thought the plaintiff developed a mild Chronic Adjustment Disorder as a consequence of or secondary to the physical injury. He said the symptoms related to the transport accident consist only of depression and anxiety in relation to the residual physical symptoms. The condition of Adjustment Disorder does not, in itself, constitute incapacity for domestic or social activities to any great extent.
108 Based on Petkovski v Galletti,[23] an analysis must be made of the extent of impairment of the body function before and after the relevant injury and, further, the additional impairment must involve serious long-term impairment of body function.
[23](supra) and affirmed in Guppy v Victorian WorkCover Authority [2010] VSCA 164
109 Accordingly, I must consider what the evidence discloses as to the plaintiff’s prior condition, and determine whether the additional impairment resulting from the September 2009 transport accident was severe.
110 The evidence is that in August 2009, two weeks prior to the accident, the plaintiff reported some low back and left leg pain to her general practitioner. Dr Palmer recorded full range of movement of low back, and prescribed medication of Mobic, if required. The plaintiff continued working until after the transport accident.
111 The plaintiff reported to the doctors whom she saw her complaint of pain in late August 2009. Mr D’Urso said the transport accident precipitated the onset of symptoms, and possibly aggravated an underlying degenerative condition of the spine. Mr Miller said the plaintiff had some pre-existing but asymptomatic degenerative disease in the lumbar spine which was aggravated, and she sustained a superimposed injury as a result of the transport accident. Dr Palmer said the plaintiff complained of low back pain prior to the transport accident; however, she suffered a significant exacerbation following the transport accident.
112 I accept that immediately before 8 September 2009, the plaintiff complained of intermittent back pain for which she received minimal treatment. The plaintiff’s evidence was that she continued to work. Based on the evidence of Mr D’Urso, Mr Miller and Dr Palmer, I accept that the plaintiff had some pre-existing, but asymptomatic degenerative disease in the lumbar spine which was aggravated by the transport accident. Further, as a result of the transport accident she suffered a superimposed injury with probable disc injury at the L5-S1 level causing nerve root irritation and some compromise as a result of the transport accident.
113 The issue is whether the consequences of the transport accident to the plaintiff satisfy the statutory test.
114 The current medical evidence is that the plaintiff’s condition has substantially stabilised, although Mr D’Urso thought there would be a degree of degenerative progression which he was unable to determine or predict.
Work
115 All medical witnesses agreed that the plaintiff could not return to pre-injury work. All medical witnesses who expressed views on the physical injury imposed work restrictions. The restrictions are in the nature of avoiding repetitive bending, repetitive lifting, lifting of weights, and a requirement that she shift her posture on a regular basis. Dr Horsley, occupational physician, imposed similar work restrictions. Dr Horsley said the plaintiff presented with significant disadvantage. The plaintiff had a low level of education and literacy issues. The plaintiff’s transferrable skills are in the manual arena, but because of her physical restrictions, she was totally and permanently disabled with no capacity for re-training or redeployment. Given the plaintiff’s presentation in Court, I accept the opinion of Dr Horsley. This is consistent with the comments made by the general practitioner, Dr Palmer, who saw the plaintiff on a regular basis.
116 Counsel for the defendant relied upon the fact that the plaintiff was referred to a psychiatrist because of increased anxiety before the accident. I accept that the plaintiff’s psychological problems resulted in a referral to a psychiatrist prior to the motor vehicle accident. However, the evidence is that the plaintiff was being treated for anxiety, but still working. She was being treated for excessive alcohol consumption prior to the transport accident but was still at work. Furthermore, medical witnesses who addressed the physical condition said the plaintiff could not work because of the physical injury alone.
117 The plaintiff’s estranged husband, Mr Ervine, said the plaintiff was a hard‑working person, who had worked in various industries including process work, fruit picking, retail, cleaning and delivery work. She enjoyed work and the social interaction involved. This was consistent with the plaintiff’s evidence.
118 I accept that as a consequence of the low-back injury, the plaintiff has lost the ability to continue working. Not only has the plaintiff lost the ability to work but she has lost her social network. This is a significant consequence which I can take into account.
Pain
119 The plaintiff’s evidence as to pain is that she suffers from persisting pain in her back which travels down into her left leg and left foot. She continues to experience numbness and altered sensation in her left leg and foot which she described as feeling “dead”. She told the Court that she tries to push herself to walk more. She goes to the shopping centre and if she feels unstable, she gets a trolley and pushes that around. She said she could walk around for up to an hour, but she sits down to have a rest. She agreed the more she walked the more it helps her, even though she has pain in her back and leg. The plaintiff reported severe pain up to a 10 out of 10 to Mr D’Urso. She reported pain to Dr Horsley. Dr Horsley recorded:
“The discomfort varies on the Visual Analogue Scale from 3 out of 10 with medication up to 10 out of 10, depending upon her level of activity.”[24]
[24]Plaintiff’s Court Book 60Q
120 Further, the plaintiff reported to Dr Palmer, Mr Miller and Dr Horsley that she experiences intermittent left leg pain that radiates into the left lateral calf and into the lateral aspect of the left foot. She can experience paraesthesia into the left lateral calf and to the left lateral aspect of the left foot also. She reported the cold weather exacerbates her back pain.
121 The plaintiff’s evidence as to current treatment was limited. She continues to attend her general practitioner, Dr Palmer, on an ‘as required’ basis. For pain relief she takes Panadol Osteo (up to four tablets per day) and Celebrex, an anti-inflammatory, when the pain is at its worst; Valium, one tablet twice daily, and Mobic, 7.5 milligrams, which she takes on an ‘as needs’ basis, usually a few times per week. She continues to take Lexapro and Epilim for her psychiatric issues.
122 In respect of current treatment, I accept the evidence is that the plaintiff is taking prescription medication, which she has been taking since 2009. She attends her general practitioner as required. All medical witnesses accepted the plaintiff’s treatment was limited to consultations with her general practitioner and the medication she was taking. I accept the level of treatment is a significant consequence I can take into account.
Relationships
123 The plaintiff’s evidence was that in January 2013, she separated from her husband. She moved out of the family home and now resides with her parents. The plaintiff’s evidence was that her relationship with her husband became strained following the transport accident. She had to rely heavily on her husband to do more of the household chores and she believed this contributed to pressures on her marriage.
124 Mr Ervine’s evidence was that, as a result of the transport accident, the plaintiff was unable to contribute to the household as she did prior to the transport accident. He said the plaintiff has changed considerably since the transport accident. She appears fatigued, uninterested and has lost interest in the things she was formerly interested in. She appears more anxious, nervous and depressed than she was previously.
125 In re-examination, Mr Ervine was asked:
Q:“You said before that when you separated, your wife was physically going downhill; what did you mean by that?---
A:Well, her appearance completely changed. She used to be a really active, walking and things like that. That all sort of slowed down and then eventually stopped. If you watch her walk now, she’s got to watch the ground all the time, so she doesn’t fall over, so she always looks like she’s in a hunch, you know, sort of thing. I find it very hard to, to sort of watch her. It’s – it’s not like she used to be, she’s not the woman I married.
Q:Are you talking about her back when you’re talking about those things?---
A:Yes, what her back and leg are doing to her.”[25]
[25]T87, L24 – T88, L4
126 I accept as a consequence of the transport accident her relationship with her husband was affected to the extent that she no longer lives with him. This is a significant consequence I can take into account.
Domestic Activities
127 The plaintiff’s current evidence is that she is now living with her parents, aged seventy-nine and eighty. She tries to contribute to the household by sharing some of the chores such as washing the dishes and light vacuuming. She is limited in the tasks that she is able to undertake. This evidence is consistent with the evidence of her estranged husband. Mr Ervine’s evidence to the Court was that the plaintiff previously managed the household. After the accident, she struggled to carry out even light housework duties such as washing the dishes. She struggles with activities that require her to stand for a prolonged period, or tasks which require her to bend or twist her back, such as changing the bed linen or cleaning the bathroom floor. As a result of the injuries she suffered in the transport accident, the plaintiff was unable to contribute to the household as she did prior to the accident.
128 The plaintiff’s evidence is consistent with the evidence of Mr D’Urso. Mr D’Urso said the plaintiff would be prevented from performing unrestricted physical or manual activities in a domestic environment. She would be unable to perform more arduous domestic cleaning or gardening activities and has no capacity for recreational sporting activity.
129 The plaintiff reported to Mr Miller that her parents were undertaking the majority of the domestic and gardening activities. Mr Miller said the plaintiff has a reduced capacity for domestic and gardening activities as a result of her injury. I accept this is a consequence I can take into account.
Mental State
130 The plaintiff’s evidence was that since the transport accident, her mental state has deteriorated considerably. She becomes more anxious now when travelling in a car and in crowded situations. She has become depressed about her inability to work. She enjoyed working, and being unable to work has undermined her confidence.
131 The plaintiff’s evidence was supported by her estranged husband. Mr Ervine told the Court that the plaintiff was more anxious, nervous and depressed than she was previously. She is particularly nervous and anxious when travelling as a passenger in a motor vehicle. On occasions, when the plaintiff was a passenger in his vehicle, she would direct him to take routes which avoided main roads.
132 The plaintiff reported problems with anxiety and depression to Mr Miller. Mr D’Urso said the plaintiff has suffered a moderate degree of pain, distress and anxiety as a result of her condition. I accept these are consequences that I can take into consideration in accordance with Richards & Anor v Wylie.[26]
[26]Supra
Recreational activities
133 The plaintiff’s evidence is that she tries to push herself to do more walking. Her evidence was that, in the past, walking was an activity that she enjoyed and did regularly, walking around the Lilydale Lake. Mr Ervine confirmed this was an activity that she pursued regularly. The plaintiff’s evidence was that she participated in line dancing, which she now cannot do. This is supported by Mr Ervine’s evidence. I accept these are consequences which I can take into account.
134 The plaintiff’s evidence is that she has a granddaughter, almost two years of age, who provides her with great joy. It distresses the plaintiff that she is unable to interact physically with her granddaughter. Activities such as going to the park, lifting, bending and playing with her granddaughter are difficult. I accept that these are consequences which I can take into account.
Weight
135 The plaintiff’s evidence was that since the transport accident, her weight has increased significantly. She is embarrassed about her weight. The medical records of the general practitioner confirm the plaintiff’s weight increased significantly since the transport accident. In August 2009, prior to the transport accident her weight was recorded at 89 kilograms. In April 2014, her weight was recorded at 100 kilograms. I accept there has been an increase in weight since the transport accident.
136 In October 2012 her psychiatrist attributed the plaintiff’s weight gain to her back problems, her inactivity and alcohol consumption.
137 In August 2013, Dr Palmer said the plaintiff gained an enormous amount of weight since the transport accident, in part due to immobility, but also due to increased kilojoule intake from alcohol. The evidence was that prior to the transport accident the plaintiff had problems with alcohol consumption. Yet her weight increased by approximately 11 kilograms after the accident. I accept the increased weight can partly be attributed as a consequence of the transport accident, due to the evidence of Dr Palmer that in part her weight increase is due to her immobility since then. I place limited weight on this as a consequence, given that the plaintiff has struggled with her weight over a period of time, and the weight gain is partly due to her alcohol consumption.
Alcohol Consumption
138 Dr Palmer said the plaintiff’s drinking increased after the accident. He reported that she was drinking up to sixteen glasses of alcohol per day prior to May 2013. In 2006, the evidence was that the plaintiff commenced heavy drinking of six or more standard drinks of wine per night.
139 In October 2009, her treating psychiatrist reported that she had been controlling her alcohol and gambling and had not smoked for four-and-a-half months. In December 2009, her psychiatrist reported that she was seeing a drug and alcohol counsellor fortnightly, but had relapsed to the extent that once per week she was drinking up to five glasses of alcohol when she goes out.
140 By February 2010, it was being recorded that her alcohol intake had steadily reduced. However, by June 2010, she had commenced drinking again, up to six glasses of alcohol per night.
141 By December 2010, she was not drinking any alcohol.
142 In October 2012, her psychiatrist reported that she was not drinking as heavily as before. Further, she reported weight gain which the psychiatrist attributed to her back problems, inactivity, as well as alcohol.
143 I accept the evidence is that the plaintiff experienced significant problems with alcohol over a number of years, prior to the transport accident and subsequently. It has been a persistent problem over many years. The evidence of Dr Palmer, (the treating general practitioner who sees the plaintiff regularly), is that her alcohol consumption increased following the accident. Given the nature of the evidence, I take the level of alcohol consumption into account when considering the consequences of the transport accident. However, I give it lesser weight than the other consequences, in view of her past history.
144 As the plaintiff’s consequences have persisted for almost five years and the majority of the medical evidence suggests no improvement in the future, in my view, her impairment is long term.
145 Taking all the evidence into account – namely the plaintiff’s experience of pain, the treatment and level of medication the plaintiff takes, the domestic, relationship, recreational activities, weight, alcohol consumption and the work consequences – I am satisfied that the consequences to the plaintiff can be described as “more than significant” or “marked” and can fairly be described as “very considerable” when judged by comparison with other cases in the range of possible impairments. In considering the consequences I have not treated each consequence as equal, but rather attributed appropriate weight to each consequence in light of all the evidence and surrounding circumstances.
146 Accordingly, I grant leave to the plaintiff to bring proceedings for damages in relation to injury sustained in the transport accident.
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