Esposito v Transport Accident Commission
[2023] VCC 723
•17 May 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| Serious Injury List |
Case No. CI-21-03525
| GIUSEPPINA ESPOSITO | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE CLARK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 November 2022 | |
DATE OF JUDGMENT: | 17 May 2023 | |
CASE MAY BE CITED AS: | Esposito v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 723 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – pain and suffering – spinal impairment – pre-existing injury – causation – disentanglement – range
Legislation Cited: Transport Accident Act 1986, s93(17)
Cases Cited:Transport Accident Commission v Zepic [2013] VSCA 232; Humphries and Anor v Poljak [1992] 2 VR 129; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Johns v Oaktech Pty Ltd [2020] VSCA 10; Petrovic v Victorian WorkCover Authority [2018] VSCA 243; Nikolic v Transport Accident Commission [2020] VSCA 148; Richards v Wylie (2000) 1 VR 79; Dressing v Porter [2006] VSCA 215; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12; Siddel-Whipp v Transport Accident Commission [2020] VSCA 109; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Rowe v Transport Accident Commission [2017] VSCA 377
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram KC with Mr J Karitzis | Carbone Lawyers |
| For the Defendant | Mr C W R Harrison KC with Mr L Howe | Lander & Rogers |
HIS HONOUR:
Introduction
1On 27 June 2018, the plaintiff, Ms Giuseppina Esposito, was involved in a motor vehicle accident (“the accident”). She was driving her grandson to swimming lessons. She stopped at a red light at the intersection of Hume Drive and Kings Road, Delahey. Her car was struck from behind with force as part of a multiple-car pile-up (“the accident”).
2Ms Esposito is aged sixty-three years. She is married to Stefano. He is now retired. The couple have four sons, two who live at home with them. They also have custody of their seven-year-old grandson. They have had the care of him since he was a baby.
3Ms Esposito has had a difficult life. She has a long history of psychiatric distress resulting from various life traumas.[1] She also has suffered, prior to the accident:
(a) chronic neck and shoulder pain and restrictions;
(b) lower back problems.
[1]See the histories provided to: (a) Dr Samir Ibrahim, psychiatrist, Defendant’s Court Book (“DCB”) 29‑31; (b) Dr Timothy Entwisle, psychiatrist, DCB 39-40
4Ms Esposito said her pre-existing neck and shoulder problems had been contributed to by heavy work which she had undertaken in 2013.
5Ms Esposito has not worked since October 2013. At the time of the accident, she was in receipt of total and permanent disability benefits from an insurance policy. She had previously received WorkCover payments.
6Ms Esposito said, as a result of the accident, she suffered multiple injuries, including an aggravation of her pre-existing cervical spinal condition and a new lower back injury. While Ms Esposito acknowledged that, at the time of the accident, she was suffering from a level of pain and restriction due to her pre-existing cervical spinal condition, she said she was still able to undertake a large range of activities. She said, due to the accident, her spinal condition is now much worse. Ms Esposito said she now suffers:
(a) much more pain in her neck;
(b) increased headaches;
(c) chronic low back pain; and
(d) a much greater level of functional restriction.
7Ms Esposito said the consequences of her spinal injury were serious.
8The defendant, the Transport Accident Commission (“TAC”), conceded that Ms Esposito suffered an aggravation or exacerbation of her pre-existing spinal condition by reason of the accident.[2] However, they said the consequences flowing from this aggravation or exacerbation were not serious.
[2]Transcript (“T”) 76, Line (“L”) 26 – T77, L1
9Both parties agreed that this application was a “range case”.
The application
10The application by Ms Esposito was brought pursuant to s93(17)(a) of the Transport Accident Act 1986 (“the Act”). Ms Esposito said it was both her cervical spine and lumbar spine that were injured in the accident and she could aggregate these injuries.[3] She relied upon injury to her spine.
[3]Transport Accident Commission v Zepic [2013] VSCA 232
11The question of whether an injury is “serious” for the purposes of s93(17)(a), is to be answered in accordance to the narrative test laid down by the Full Court of the Supreme Court of Victoria in Humphries and Anor v Poljak:[4]
“… 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’?”[5]
(Emphasis added.)
[4][1992] 2 VR 129 (“Poljak”)
[5]Poljak (ibid) at 140 per Crockett and Southwell JJ
12Crockett and Southwell JJ identified, in Poljak, that many disturbances are considerable, in the sense that they are “important” or “substantial” without being “very considerable”.
The issues in the application
13As previously noted, the TAC conceded that Ms Esposito suffered an aggravation or exacerbation of her pre-existing spinal condition as a result of the accident. However, the TAC said that Ms Esposito’s current level of pain and functional restriction was effectively the same or very similar to how she was prior to the accident. Certainly, they said any worsening did not meet the “serious injury” test. Ms Esposito said her level of pain was much worse – she said 50 per cent worse – and she was much more functionally restricted.
14The issues for the Court to determine include:
(a) as to Ms Esposito’s credit and reliability, and whether I can accept her evidence;
(b) which of the medical opinions should be accepted and the assistance such opinions provide;
(c) the nature and extent of Ms Esposito’s pre-existing conditions and her level of pain and function at the time of the accident;
(d) the nature and extent of the aggravation or exacerbation to Ms Esposito’s spine caused by the accident and whether Ms Esposito suffered a new lower back injury;
(e) the consequences which Ms Esposito suffers as a result of the accident-related injury. In particular, the need to disentangle those consequences from:
(i)Ms Esposito’s pre-existing spinal condition and the consequences; and
(ii)her various other comorbidities and the impact which they have upon her by way of pain and function;[6]
(f) whether, having undertaken the disentanglement, the consequences (if any) flowing from the accident-related spinal injury are serious.
[6]See in particular AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309 and Peak Engineering & Anor v McKenzie [2014] VSCA 67; in particular, the analysis of his Honour Kyrou AJA at paragraphs [30]-[35] of Filipowicz
Credit
15As in a great number of cases of this type, the credit of Ms Esposito is critically important.[7]
[7]See the analysis of the Court of Appeal in Johns v Oaktech Pty Ltd [2020] VSCA 10, particularly at paragraph [76]
16The TAC said that:
(a) Ms Esposito, while not being dishonest, was unreliable, and her evidence was contradictory, inconsistent and at times mistaken. Put simply, I could not rely on much of what Ms Esposito said;
(b) Ms Esposito’s pre-existing spinal condition was much more significant than she was prepared to admit;
(c) the medical evidence which Ms Esposito relied upon should not be accepted because it was dependent upon what she had told the doctors, and much of that was unreliable;
(d) on an objective assessment, her current level of pain and restriction was similar to her level of pain and restriction prior to the accident.
17Mr A Ingram KC, counsel for the plaintiff, said that:
(a) Ms Esposito was an honest and unsophisticated lady who had tried to do her best when giving evidence;
(b) her evidence stood up well under cross-examination.
18Having observed Ms Esposito give evidence and having reviewed the medical records and other medical evidence, I accept that Ms Esposito is a poor historian. Many of the histories provided to the medical practitioners who have provided opinions are factually incorrect. I accept there were times when her evidence was contradictory, inconsistent and mistaken.
19For example histories or evidence which were mistaken included Ms Esposito having:
(a) denied having right shoulder problems prior to the accident;[8]
(b) denied having cervical facet joint injections prior to the accident.[9]
(c) told Professor Bittar, neurosurgeon, that she had, prior to the accident, no lower back problems;[10]
(d) told Dr Akil, neurosurgeon, that she had not been complaining of any neck or back problems prior to the accident;[11]
(e) told Associate Professor Laidlaw, neurosurgeon, that she had no lower back problems prior to the accident.[12]
[8]T24, L1-3
[9]T23, L3-5
[10]Plaintiff’s Court Book (“PCB”) 35
[11]PCB 59
[12]PCB 57
20Such histories are simply not correct. The medical records establish otherwise.
21I also accept that Ms Esposito’s evidence was at times contradictory. For example:
(a) In her affidavit evidence, she said she was no longer participating in gardening activities;[13] however, in both the history provided to Professor Laidlaw and in her oral evidence, Ms Esposito said that while she did not do the heavier gardening, she continued to rake leaves and generally tidied up around the garden;[14]
(b) In her affidavit evidence, Ms Esposito said “I rely on my family for most things”.[15] This can be contrasted to her history to Professor Laidlaw and her oral evidence where she said that was not the case. For example she does all of the housework for five people, including ironing, mopping and vacuuming, and does her shopping at the local Coles supermarket.[16]
[13]PCB 15. In referring to her enjoyment of gardening, the plaintiff said in paragraph 41 of her first affidavit sworn 13 April 2021: “I have been left saddened as l can longer partake in a hobby which brought me so much joy.”
[14]DCB 61
[15]The plaintiff’s second affidavit sworn 4 July 2022, PCB 19, paragraph 26
[16]DCB 61 and T44, L12-26
22Even accepting Mr Ingram’s summation that Ms Esposito is not a sophisticated person, that does not provide me with the reassurance that her histories to the medical experts and her evidence can be accepted as reliable.
23It is through this lens that I assess Ms Esposito’s evidence. I am conscious of the need for me to carefully analyse the objective evidence when undertaking my determination.[17]
[17]See for example the analysis by the Court of Appeal in: (a) Petrovic v Victorian WorkCover Authority [2018] VSCA 243, particularly at paragraphs [74]-[85], and (b) Nikolic v Transport Accident Commission [2020] VSCA 148, particularly at paragraphs [64]-[73]
24Moving, firstly, to the medical evidence.
Ms Esposito’s treating medical practitioners
Dr Walter Di Bartolo, general practitioner
25Dr Di Bartolo is Ms Esposito’s long-time treating general practitioner.
26I was provided with Dr Di Bartolo’s clinical notes for the period 27 March 2013 to 18 June 2019. I also had the following reports:
(a) a REST superannuation questionnaire dated 1 May 2017 (“the TPD questionnaire”);
(b) a report to the TAC dated 5 December 2019;
(c) a report to Ms Esposito’s solicitors dated 17 October 2022; and
(d) a report to Ms Esposito’s solicitors dated 23 November 2022.
27Going to Dr Di Bartolo’s clinical notes. The great majority of these entries are brief and lacking in detail. There are many entries which are repetitive and appear to be proforma. Most of the entries do not identify the body part which Ms Esposito was consulting Dr Di Bartolo for on that particular day. For example they say no more than:
“Clinical R/V - Education”;
“Pain management / support req’d”[18]
or the like.
[18]See DCB 139-155
28Referring to the notes relating to Ms Esposito’s work injury in 2013. Ms Esposito consulted Dr Di Bartolo after this injury on a regular basis. Dr Di Bartolo referred Ms Esposito to:
(a) Mr Russell Miller, orthopaedic surgeon, in November 2014 for assessment and treatment of her left shoulder. Mr Miller ultimately undertook left shoulder surgery on 23 February 2015;
(b) Mr Greg Etherington, orthopaedic surgeon, for assessment and treatment of her cervical spine injury in February 2015.
29In respect to Ms Esposito’s pre-existing lower back problems, there are two specific episodes which I note at this stage:
(a) on 1 August 2016, Ms Esposito complained to Dr Di Bartolo about lower back pain following a fall;[19]
(b) on 3 January 2018, Dr Di Bartolo recorded Ms Esposito as suffering “low back acute exacerbation of recurrent pain”.[20]
[19]DCB 146
[20]DCB 142
30Moving to the clinical notes post the accident. These notes made specific reference to the accident on two occasions only. On 29 June 2018, Dr Di Bartolo noted that Ms Esposito had been involved in a motor vehicle accident and recorded complaints of exacerbation of neck and shoulder pain as a result.[21]
[21]DCB 141
31The clinical notes of 13 July 2018 also made reference to the accident. Thereafter, Dr Di Bartolo made non-specific and brief entries.
32Overall, the clinical notes of Dr Di Bartolo did not provide a great deal of assistance in understanding Ms Esposito’s clinical/functional presentation at the time of the particular attendance. This limited the usefulness of the clinical notes.
33What I could glean from these notes was:
(a) Ms Esposito was a very regular attender on Dr Di Bartolo;
(b) she did have a number of episodes of lower back pain prior to the accident;
(c) up until March 2018, Ms Esposito had, on a very regular basis, complained of, and sought advice and treatment for, pain.
34I turn, now, to Dr Di Bartolo’s medical reports.
35The TAC relied upon the TPD questionnaire to support the proposition that the pain and functional restriction which Ms Esposito complained of at that time (that is, May 2017) was essentially the same as her current presentation and complaints (or indeed worse).
36In the TPD questionnaire, which provided support for Ms Esposito’s ongoing entitlement to Total Permanent Disability weekly payments, Dr Di Bartolo listed her medical conditions as:
· Severe depression
· Left shoulder, chronic pain and loss of function
· Left greater than right neck pain and functional limitation.
37Dr Di Bartolo said that Ms Esposito needed ongoing clinical management of her chronic pain and her chronic functional limitation.[22] In section 4, under “Patient function and abilities (physical condition)”, Dr Di Bartolo listed the “Maximum functional ability” for Ms Esposito as:
(a) Sitting – 10 minutes – need to stand and change posture each advert break when watching TV;
(b) Standing – 10 minutes – unable to stand to wait for a bus or train or wash up dishes in a sink;
(c) Walking – 10 minutes – unable to walk around two standard blocks (600 metres);
(d) Lifting – 1-3 kilograms – unable to lift a laptop computer;
(e) Driving – 30 minutes – able to drive for 15 kilometres car trip with traffic.
[22]DCB 157
38The TPD questionnaire, under “functional ability”, went on to certify that there was a pushing/pulling limitation of 3 kilograms, and Ms Esposito could not:
· reach above her shoulders
· kneel
· squat.
39The report said Ms Esposito could:
· bend from the waist
· climb stairs.
40There was no disentanglement between the various medical conditions.
41Ms Esposito was cross-examined in respect to the accuracy of the TPD questionnaire and the restrictions certified by Dr Di Bartolo. She said:
Q:“So, the first criteria is sitting. And it’s been said that you can sit – the box has been ticked ten minutes. Need to stand and change posture each advert break when watching TV. So, that was correct, was it, as of May 7 2017?---
A:Yes.
Q:It’s about a year before the motor vehicle accident. You had to get up every ten minutes when you were watching the TV?---
A:Yep.
Q:Okay. Then the next box is standing. Ten minutes. Unable to stand to wait for a bus or train or wash up dishes in a sink?---
A:Yep.
Q:So, that was correct as of May ’17?---
A:Yes.
Q:Walking. Ten minutes. Unable to walk around two standard blocks, 600 metres. That was right then?---
A:Yes.
Q:Lifting. One to three kilos. Unable to lift a laptop computer?---
A:Yep.
Q:Then additional comments, driving. You’ve said 30 minutes. Able to drive for 15 kilometres car trip with traffic?---
A:Yes.”[23]
[23]T31, L4‑22
42I accept that Dr Di Bartolo’s certification in the TPD questionnaire and Ms Esposito’s adoption of those functional restrictions in her oral evidence is supportive to the TAC’s proposition that, a little under sixteen months prior to the accident, Ms Esposito:
(a) continued to suffer chronic pain and chronic functional restrictions which in part were attributable to her spinal condition.
(b) suffered the very significant functional restrictions as set out in section 4 of the TPD questionnaire.
43The first report from Dr Di Bartolo after the accident is dated 5 December 2019. It is addressed to the TAC. The TAC had asked Dr Di Bartolo to answer ten questions. He said:
“1. Following the MVA on 27/06/2018, Giuseppina sustained localized left low back pain and exacerbated neck pain, especially on the left, associated with left shoulder pain and left headaches.
Giuseppina is currently receiving pain management for chronic pain, felt at the sites reported above.
2. CT scans demonstrate facet degenerative changes at [scil are] more marked at C4/C5 and C5/C6 as well as L4/L5 and L5/S1. Clinically, these abnormalities are consistent with the areas of accused pain.
3. Following the MVA, Giuseppina complaints of exacerbated pain, as described above, and a reduction of her ability to perform routine activities of daily living. Her mental health remains stable and she continues anti-depression treatment.
4. Giuseppina’s pain presentation is moderately increased compared to immediately prior to the MVA. She requires increased treatment with panadeine forte and nurofen plus, to manage her pain.
5. Giuseppina’s level of function has decreased since the MVA, in fact she now requires increased help, especially from her immediated family members to attend those routine chores necessary for daily living.
6. Giuseppina complaints of localized left low back pain as a new symptomatology, not present prior to the MVA.
7. Giuseppina continues treatment with zoloft, tramadol and occasional valium and, following the MVA, she also requires pain management with panadeine forte and nurofen plus.
8. The MVA has aggravated Giuseppina’s cervical spine condition, in my opinion, by another fifty per cent.
9. As an example of Giuseppina’s decreased ability to perform activities of daily living, Giuseppina is unable to work in her garden and to attend to house chores with the same capacity.
10. Giuseppina would not have required home services prior to the MVA.”[24]
(My emphasis.)
(sic)
[24]DCB 33
44Dr Di Bartolo provided two reports to Ms Esposito’s solicitors. In the first report dated 17 October 2022, Dr Di Bartolo described her injuries resulting from the accident as:
· A serious aggravation of pre-existing pain and limitation of her left shoulder
· An injury to her lumbar spine
· A serious aggravation of pre-existing symptomology and limitation of function related to the aggravation to her cervical spine.
45In respect to pain, Dr Di Bartolo said that, overall, Ms Esposito’s pain in her shoulders, neck and back had been “considerably worsened” by reason of the accident.[25]
[25]PCB 138
46In respect to Ms Esposito’s functional restrictions, Dr Di Bartolo said:
· Her capacity to drive long distances was restricted to about 15 kilometres following exacerbation of symptomology.
· Her shopping is limited to carrying lighter bags.
· Her sleep is disturbed by multiple awakenings.
· Her showering was impaired, and assisted by a shower chair.
· Her social life is being restricted with limited outings, shopping, invitations, dinners and walks.
· Her capacity to undertake home chores had been impaired and she was now assisted by a professional window cleaner and professional gardener.
· Her care for her grandson had been impaired.
· She suffered from lower mood associated with reduced motivation and energy.
47The second report of Dr Di Bartolo to Ms Esposito’s solicitors is dated 23 November 2022. Dr Di Bartolo was asked to address what Ms Esposito’s solicitors correctly anticipated to be some of the key issues which the Court was likely to have to grapple with. He said:
“You ask four questions and I reply as follows:
1. What was our client’s condition immediately prior to the transport accident on or about 27June 2018?
Prior to the MVA sustained on 27th June 2018, Giuseppina enjoyed full function of her right shoulder, was suffering from mild to moderate left shoulder chronic pain and limitation of function, complained of mild to moderate chronic neck pain, and did not suffer from chronic low back pain.
2. Did our client’s symptoms from her work-related injury sustained in or around 2013 improve prior to the transport accident on or about 27 June 2018?
Prior to the MVA sustained in 2018, Giuseppina suffered from limited mild to moderate chronic pain and function impairment, that had stabilized over a period of five years, since her work-related injury sustained in 2013.
3. What is the current impairment of our client’s Spine, considering the cervical spine and lumbar spine together, as well as any referred symptoms into the shoulders, lower limbs, and the back of the head, causing headaches?
An MRI of the Cervical Spine performed in January 2019 reports mild C3/4 to C5/6 central canal stenoses, no cord signal abnormality, multilevel bilateral neural exit foraminal stenoses, moderate left C5/6 and left C7/T1 foraminal stenoses. Multilevel bilateral facet joint arthropathy, most notable at the left C4/5 and C5/6 levels, at least of a moderate severity.
An MRI of the Lumbar Spine performed in February 2019 reports contact of the exiting left L5 nerve root without compression and L4/5 central canal stenosis. Narrowing of the L5/S1 thecal sac secondary to prominent epidural fat. L4/5 and L5/S1 annular fissures. Multilevel facet joints arthropathy, most notably at the L5/S1 level of moderate to severe severity Giuseppina current impairment consists of chronic pain affecting primarily her shoulders, recurrent tension headaches, and Low back often evolving into a / (R) sciatic pain. She also complains of restriction of movement of her shoulders, affecting especially her right shouIder.
4. In your opinion, is the Spinal injury a direct cause of our client’s left and right shoulder symptoms?
a. If no, do you consider the left and right shoulder symptoms to be separate to the Spinal Injury? If so, please detail.
In my opinion the Cervical Spinal injury is a direct cause of Giuseppina's neck and right shoulder symptoms as well as her aggravated left shoulder symptoms.
Also, Giuseppina suffers from chronic moderate low back pain often radiating down the course of her (R) sciatic nerve which, in my opinion, is a direct cause of her lumbar spine disease/injury.
Further, Giuseppina sleep has become further defective, since her MVA sustained in 2018. Her sleep is disturbed by may episodes of awakenings in pain and it’s not properly restful, therefore, perilously and at times critically negatively impacting her routine, day-to-day activities essential for daily living.”[26]
(sic)
[26]PCB 139-140
48I am conscious that Dr Di Bartolo, as Ms Esposito’s long-time general practitioner, should be in a good position to comment about the matters in issue in this application; however, I am also conscious that:
(a) Dr Di Bartolo is reliant upon what Ms Esposito tells him in respect to her levels of pain and day-to-day activities/functional capacity
(b) there are inconsistencies between:
(i)Dr Di Bartolo’s various medical reports; and
(ii)his medical reports and his clinical records.
49The TAC said I must assess what Dr Di Bartolo said in his post-accident reports having regard to the TPD questionnaire and the balance of the evidence. In the context of this case, it is important that I do so.
50Dr Di Bartolo, in his report to the TAC dated 5 December 2019, said that Ms Esposito’s pain had “moderately increased”. In his reports to Ms Esposito’s solicitors, he said that Ms Esposito’s pain was “considerably worse”. In both reports, Dr Di Bartolo attributed Ms Esposito’s pain to not only her spinal injury but also to her shoulder injuries. Indeed, he said the accident had caused serious aggravation of pre-existing pain and limited function of the left shoulder.[27] He described her shoulder pain as “severe”.
[27]DCB 33
51At the time of the accident, Dr Di Bartolo was prescribing Ms Esposito Tramadol for pain management. After the accident, he also commenced prescribing her Panadeine Forte as part of the pain management regime. At the time of this application, Ms Esposito is no longer being prescribed either Tramadol or Panadeine Forte for pain.
52In respect to Ms Esposito’s lumbar spine, Dr Di Bartolo said that, prior to the accident, she did not suffer from chronic low back pain; however, in his reports, Dr Di Bartolo did not reference:
(a) the problems Ms Esposito had with her lower back in 2012. In her oral evidence, Ms Esposito said, at that time, her lower back was so bad that she could hardly walk;[28]
(b) Ms Esposito’s lower back problems following the 11 July 2016 fall;
(c) her general recurrent lower back pain;[29]
(d) the 3 January 2018 episode of “acute exacerbation of recurrent back pain”;[30] and
(e) ongoing complaints of lower back pain between 3 January 2018 and the accident.
[28]T13, L23-26; T14, L2-13 and T14, 27-29
[29]T32, L22-24
[30]DCB 142
53Dr Di Bartolo’s assertion that Ms Esposito’s lower back problems were a “new injury” are in direct contrast to:
(a) his medical records just months before the accident;
(b) Ms Esposito’s oral evidence where she conceded on a number of occasions that she had, prior to the accident, suffered from lower back pain from time to time;[31] and
(c) Ms Esposito’s oral evidence that she was still consulting Dr Di Bartolo with lower back pain as at 16 March 2018.[32]
[31]See for example T32, L22-24; T33, L19-21; T33, L31 – T34, L2
[32]T33, L14 – T34, L4
54In respect to the functional limitations which Dr Di Bartolo said resulted from the accident, there are many which are similar to the restrictions certified by him in the TPD questionnaire. For example Ms Esposito’s inability to drive more than 15 kilometres. Indeed, some of the restrictions certified by Dr Di Bartolo in May 2017 are greater than what he has certified post-accident. It is very difficult to marry the TPD questionnaire to the post-accident reports provided by Dr Di Bartolo, particularly those provided to Ms Esposito’s solicitors.
55Of further concern is Dr Di Bartolo’s assertion that Ms Esposito remains “considerably restricted” and “impaired” in her capacity to undertake home chores and day-to-day activities. This can be contrasted to the history provided by Ms Esposito to Professor Laidlaw in respect to her usual daily routine and the overview of functional physical activities.[33] These histories provided to Professor Laidlaw were adopted by Ms Esposito in her oral evidence.[34] I shall provide a more detailed analysis in this regard later in this judgment. At this stage, it is sufficient to say that it is difficult to reconcile the level of activity which Ms Esposito advised to Professor Laidlaw and conceded in her oral evidence, to the conclusions drawn by Dr Di Bartolo.
[33]See DCB 61 and 63
[34]See T43, L29 – T45, L5
Mr Greg Etherington, spinal surgeon
56Mr Etherington was consulted by Ms Esposito in 2015 for her work injury. At that time, Mr Etherington said:
(a) he saw her predominantly for her neck pain, though she also had left shoulder pain;
(b) investigations showed that she had degenerative changes to her cervical spine, mainly at C4‑5 and C5‑6 facets and discs;
(c) that he organised injections at these levels, which were said to have helped.[35]
[35]PCB 81
57Mr Etherington was first consulted by Ms Esposito after the accident on 28 August 2019. At that time, Mr Etherington said:
(a) Ms Esposito told him that her neck pain had reduced prior to the accident;
(b) after the accident, the pain in her neck and shoulders had flared;
(c) she now had lumbar pain;
(d) investigations showed degeneration in her spine which was maximal at C4‑5, C5‑6, L4‑5 and L5‑S1;
(e) He organised repeat cervical spine facet joint injections.
58Ms Esposito last consulted Mr Etherington in September 2022.
59Mr Etherington said that, flowing from the accident, he considered Ms Esposito was suffering from persistent cervical spine symptoms and had developed some lumbar spine pain.
60Mr Etherington’s opinion was based on:
(a) Ms Esposito’s advice on 26 August 2019 that between 2016 and 2018, she required “minimal treatment” and her symptoms were “quite easy to manage”.[36] This can be contrasted to:
(i)the TPD questionnaire
(ii)the clinical records of Dr Di Bartolo;
[36]PCB 81
(b) Not having recorded any history of lumbar spine problems prior to the accident and, in particular, Ms Esposito’s consultations with Dr Di Bartolo on and between 3 January 2018 and 16 March 2018.
61It should also be noted, Mr Etherington said that at the time of his consultation with Ms Esposito on 26 August 2019, she was suffering “similar symptoms” to when he had seen her in 2015.[37]
[37]PCB 73
Mr Wei Yang Liu, musculoskeletal physiotherapist
62Mr Liu assessed and treated Ms Esposito both before and after the accident.
63Referring, firstly, to Mr Liu’s contact with Ms Esposito prior to the accident. Mr Liu said he initially saw Ms Esposito for the work injury on 23 June 2014. She was complaining of left shoulder and cervical spine pain. Mr Liu said Ms Esposito had surgery on her left shoulder on 23 February 2015, performed by Mr Russell Miller, orthopaedic surgeon. Mr Liu said that Ms Esposito had a course of physiotherapy management after this surgery. He said that she was discharged from treatment on 26 June 2015.
64Mr Liu said Ms Esposito next presented to him on 16 January 2019. At that time, she reported multiple injuries resulting from the motor vehicle accident. This included to the cervical spine, lumbar spine, shoulders and hips.
65Mr Liu said his diagnosis was “acute spinal trauma affecting the cervical and thoracolumbar spine due to a motor vehicle accident on the 27.06.18”.[38]
[38]PCB 70
66Mr Liu, in his treatment plan to the TAC, said that Ms Esposito had reduced pushing, pulling and lifting tolerances. Mr Liu said he continued to treat Ms Esposito in 2021 and that her neck and lower back pain and functional outcome measurements remained consistent with his assessment back in 2019.
67Mr Liu said these injuries were sustained as a direct result of the accident. He considered Ms Esposito’s incapacity flowing from these injuries would continue into the foreseeable future. In respect to social, domestic and/or recreational activities, he said Ms Esposito was restricted to a mild to moderate degree and this restriction would continue into the foreseeable future.
Ms Khanh-Ly Tran, physiotherapist
68Ms Esposito attended Ms Tran at Back In Motion on five occasions between 1 July 2022 and 10 August 2022.
69Ms Tran obtained a history of the accident and said Ms Esposito told her that she had been suffering chronic pain in her neck, shoulder and back ever since.
70Ms Tran diagnosed Ms Esposito as suffering chronic low back pain, bilateral to the L5‑S1 segments, and chronic neck pain. She said this pain was nociplastic in nature; that is, the pain was modulated by the central nervous system.[39] She noted that Ms Esposito had also told her that she suffered severe headaches.
[39]PCB 133
71Ms Tran outlined in her report a range of activities for which Ms Esposito was either precluded or restricted.[40] She said it was her opinion that these restrictions were accident related.
[40]PCB 134
72Ms Tran concluded that Ms Esposito “experienced high levels of pain ... and distressed (sic) as a result of the transport accident”.[41]
[41]PCB 135
Mr Bryan Kimpton, clinical psychologist
73Ms Esposito first consulted Mr Kimpton on 31 January 2019. Mr Kimpton saw her for a further twenty-two consultations through to 7 April 2020.
74I pause here to note that Ms Esposito is not seeking serious injury certification for any primary psychiatric injury pursuant to ss(c). She relies only on that aspect of her psychiatric injury which is consequential to her spinal injury.[42]
[42]See the principles of Richards v Wylie (2000) 1 VR 79
75Mr Kimpton said Ms Esposito had a significant previous history of psychiatric/psychological problems and treatment. Mr Kimpton noted that Ms Esposito was taking Zoloft and Valium at the time of the accident.
76Mr Kimpton said that Ms Esposito told him that prior to the accident, she was “coping well”.[43]
[43]PCB 91
77Mr Kimpton said that Ms Esposito reported a continuous pattern of pain in her neck, to both shoulders and her lower back. He said that she reported restricted domestic capacity.
78Mr Kimpton said Ms Esposito was suffering from an Adjustment Disorder with Mixed Anxiety and Depression. He considered this to be secondary to her physical injuries and residual chronic pain.
79Mr Kimpton concluded that any improvement of Ms Esposito’s psychological adjustment secondary to her physical condition was unlikely until she had effective relief of her chronic pain.[44]
[44]PCB 91
Dr Malcolm Ong, pain specialist
80Ms Esposito was referred to Dr Ong for pain management by Dr Di Bartolo and at the suggestion of her TAC claims manager.
81Dr Ong first assessed Ms Esposito on 7 June 2021.[45] Dr Ong provided a very long and comprehensive medical report.
[45]PCB 94
82Dr Ong concluded that Ms Esposito suffered “chronic pain and pain related conditions”.[46] He recommended that she be “fully assessed by the pain team”.[47] That led to a multidisciplinary pain-management program commencing later in June 2021 at Advance Healthcare.
[46]PCB 95
[47]PCB 95
83While Ms Esposito commenced the pain program, she did not finish it. Dr Ong said the course had to be placed on hold for multiple reasons including Ms Esposito’s “limited understanding, limited participation, apprehension and fear avoidance”.[48] He said that Ms Esposito was unable to comprehend the purpose or methodology of the pain treatments. Hence, there was early discharge of Ms Esposito from the pain-management program in August 2021.
[48]PCB 95
84Dr Ong recorded Ms Esposito’s presenting complaints to be:
· pain in her neck
· pain in her shoulders
· radicular pain to the upper limbs
· pain to her middle and lower back
· radicular pain to the lower limbs.[49]
[49]PCB 99
85He said she had secondary depression and anxiety symptoms.
86Dr Ong concluded Ms Esposito was suffering:
· chronic shoulder and upper limb syndrome with osteoarthritis degenerative disease and inflammatory and myofascial conditions
· chronic cervical and lumbar pain syndrome with osteoarthritis degenerative disease and inflammatory and myofascial conditions.
87Dr Ong related the syndromes to a TAC-related injury.[50]
[50]PCB 105
88Dr Ong set out in great detail the ongoing functional restrictions which Ms Esposito reported.[51] Dr Ong said her symptoms in the most part were consistent with her injury claims.[52]
[51]See, in particular, pages 16-22 of his report at PCB 109-115. This sets out in detail the nature and extent of the limitations. See, in particular, page 21 at PCB 114.
[52]PCB 112
89Dr Ong said Ms Esposito struggled with the intellectual demands of the pain-management course. Dr Ong did not make these comments in a critical context. His observations are consistent with the submissions made by Mr Ingram that Ms Esposito is not a sophisticated person.
90Subsequent to the trial pain-management program, Dr Ong said Ms Esposito:
(a) continued to suffer physical symptoms and limitations;
(b) was trying to manage her conditions, but was having significant difficulty; and
(c) continued to report secondary psychological symptoms and limitations.[53]
[53]PCB 98
91Dr Ong concluded that Ms Esposito’s prognosis was guarded.
Ms Kirsten Walker, physiotherapist
92Ms Walker was part of the Network Pain Management Program team at Advance Healthcare.
93Ms Walker obtained a history from Ms Esposito:
(a) of the work injury;
(b) that Ms Esposito’s pain levels had improved in 2015/2016;
(c) that Ms Esposito was receiving superannuation disability payments at the time of the accident.
94Ms Walker recorded that the main problem flowing from the accident was cervical and lumbar spine injury. The symptoms included:
· diffuse cervical aching and throbbing pain, with pain radiating to the shoulders
· headaches radiating from the cervical spine
· constant diffuse lumbar aching and throbbing pain.
95Ms Walker, having undertaken a detailed analysis, made the diagnosis of “chronic post-traumatic cervical, bilateral shoulder and lumbar pain (after whiplash injury) of marked severity”.[54] She said Ms Esposito presented with features indicative of central sensitisation and a nociplastic pain mechanism.[55]
[54]PCB 121
[55]PCB 120
96In respect to the social, domestic and recreational activities flowing from the accident-related injuries, she said:
“At assessment, Mrs Esposito reported that she was markedly restricted in social, domestic and recreational activities from a physical perspective. She reported that prior to her injury, she was active in walking with her friend for 60 minutes every day, going shopping or for meals with her friends, attending bingo 1-2 times per week and gardening 2-3 times per week for 60 minutes. Due to her persistent cervical, bilateral shoulder and lumbar pain, Mrs Esposito has been unable to return to gardening or bingo or walking with her friends. She is able to complete light housework if she spreads her activity over the day but is unable to complete heavy housework such a mopping or washing the windows. Mrs Esposito is unable to complete any gardening duties as a result of her pain.”[56]
[56]PCB 123
97It is noted that aspects of the consequences reported by Ms Esposito to Ms Walker are contrary to:
(a) the history provided to Professor Laidlaw;
(b) Ms Esposito’s oral evidence.
Ms Azra Kamberovic, psychologist
98Ms Kamberovic was part of the Network Pain Management Program team at Advance Healthcare.
99Ms Kamberovic said she undertook a psychological assessment and counselling of Ms Esposito between June and August 2021.
100Ms Kamberovic obtained the history of the 2013 work injury and the history of pre-existing mental health problems. She noted:
· the history of mental health problems
· the comprehension issues faced by Ms Esposito.
101Ms Kamberovic said that in her sessions with Ms Esposito, she “demonstrated high levels of depressive symptoms and stress in the context of her injury and persistent pain condition”.[57]
[57]PCB 129
102Ms Kamberovic said that given the limited sessions she had with Ms Esposito, she was not able to assist further.
The medico-legal reports
103Before considering the medical opinions obtained by the parties for the purposes of this application, I will review the opinions which the TAC rely upon which date back to the work injury.
2015 work injury reports
Mr David Read, psychologist, report dated 18 February 2015
104Mr Read, psychologist, assessed Ms Esposito for the Victorian WorkCover Authority (“VWA”) on 18 February 2015. He said at that time, she suffered an Adjustment Disorder due to pain resulting from her work injury.
Mr Russell Miller, orthopaedic surgeon, reports dated 4 March 2015 and 2 October 2015
105Mr Miller’s first report was provided to the Accident Compensation Conciliation Service as part of Ms Esposito’s workers’ compensation claim. The second report was provided to Ms Esposito’s then solicitors.
106Mr Miller said that Ms Esposito had suffered a musculoskeletal strain to her cervical spine and aggravation of degenerative disease in her spine by reason of her work. At that time, he thought her prognosis for this injury was only fair.[58] Mr Miller said that Ms Esposito had difficulties with home, work, and leisure activities. He suggested that Ms Esposito’s solicitors should obtain a report from Mr Etherington in relation to her cervical spine injury.
[58]DCB 23, paragraph 4.0 – Diagnosis and Prognosis
Dr Samir Ibrahim, psychiatrist, report dated 30 April 2015
107Dr Ibrahim was Ms Esposito’s treating psychiatrist. He had been consulted by her on three occasions, the last being 9 February 2015. Dr Ibrahim noted a long history of psychiatric illness. At that time, he considered she was suffering a chronic Adjustment Disorder with Depression and Anxiety.
Mr Michael Troy, orthopaedic surgeon, report dated 27 April 2015
108Mr Troy assessed Ms Esposito for the VWA on 27 April 2015. He said at that time, she suffered a soft tissue injury to her left shoulder. Mr Troy said that her neck symptoms were not related to her work. Mr Troy said that Ms Esposito had “excellent movement of her neck” and would be fit for the suggested work duties referred to in his report.
Dr Joseph Slesenger, occupational physician, report dated 26 November 2015
109Dr Slesenger assessed Ms Esposito on 18 November 2015 for the VWA.
110At the time of his assessment, Dr Slesenger recorded Ms Esposito as complaining of:
(a) ongoing pain in the left shoulder with restricted range of movements, and lying on the left-hand side aggravates the pain;
(b) ongoing pain in her neck with a restricted range of movement.
111Ms Esposito told him that the pain radiated to her right arm and hand. She advised that the neck pain is at a level 9/10 and there is shooting pain to her arm.[59]
[59]DCB 129
112Dr Slesenger considered Ms Esposito to be suffering degenerative disease of her cervical spine with left upper limb symptoms.[60] He said that clinical evaluation revealed a restricted range of neck movements and left shoulder movements. Dr Slesenger also said that there was a significant element of Ms Esposito’s symptoms which were due to “functional overplay”.[61]
[60]DCB 134
[61]DCB 135
The post-accident medico-legal opinions
113I will review the medico-legal reports obtained by the parties in chronological order.
Mr Myron Rogers, neurosurgeon, report dated 13 May 2020
114Mr Rogers assessed Ms Esposito for the TAC on 13 May 2020. Mr Rogers concluded that the transport accident did not result in any direct injury to Ms Esposito’s cervical spine but did result in “an exacerbation of chronic neck pain”.[62]
[62]DCB 37
115Mr Rogers said that Ms Esposito had documented chronic neck pain following the work injury (noting he had been provided with reports from the WorkCover file).[63]
[63]DCB 37
116Having reviewed the report of Dr Slesenger and the Thornbury Physiotherapy & Sports Medicine Centre Neck Disability Index questionnaire,[64] Mr Rogers concluded:
“The current symptoms and disability are very similar, so the transport accident has had very little if any impact on her chronic symptoms and self-assessed disability.”[65]
[64]DCB 161
[65]DCB 37
117Mr Rogers did obtain a history of Ms Esposito complaining of pain in the middle of her low back resulting from the accident,[66] and recorded lower back pain as part of her current symptoms. However, when answering the questions posed by the TAC, he did not reference Ms Esposito’s lower back complaints. He provided no explanation. This is a shortfall in his analysis.
[66]DCB 35
Professor Richard Bittar, neurosurgeon, report 28 May 2020
118Professor Bittar assessed Ms Esposito for her solicitors on 28 May 2020.
119There are aspects of the history which Ms Esposito provided to Professor Bittar which raised concerns for him and which he questioned. While Professor Bittar obtained the history of the work injury and consequential neck and left shoulder injury from Ms Esposito, she denied experiencing any lower back pain or lower back related disability to him.[67] That was clearly an incorrect history.
[67]PCB 35
120Professor Bittar sourced the history of pre-existing lower back issues from the medical records which he had been provided, and challenged Ms Esposito about them. He said she then:
“... vaguely recalled an episode of lower back pain which she attributed to a ‘pulled muscle’.”
121Professor Bittar went on to say that she told him:
“She does not recall any persistent lower back pain or lower back related disability at any time.”[68]
[68]PCB 37
122This is clearly contrary to the true state of affairs.
123Ms Esposito did, however, tell Professor Bittar that she was suffering neck pain and restriction at the time of the accident. Indeed, she told him that:
(a) she suffered constant neck pain which had an average severity of 6−7/10
(b) prior to the accident she had associated restriction of cervical spine motion
(c) she did have limitation of social, domestic and recreational activities, though they were not as bad as they are subsequent to the accident
(d) her treatment prior to the accident comprised of daily medications including Tramadol and anti-inflammatories
(e) prior to the accident she was experiencing headaches typically two to three days per week.
124Ms Esposito told Professor Bittar subsequent to the accident:
(a) her social, domestic and recreational activities decreased
(b) she suffered worsening neck pain
(c) she had low back pain
(d) her headaches were now daily and more severe.
125I pause here to note that there was no detailed history or analysis in Professor Bittar’s report of just what activities Ms Esposito was capable of prior to the accident and what constituted the alleged increase in restrictions subsequently. It appears that Professor Bittar’s assertions of increased pain and functional restriction were based on what Ms Esposito told him.
126Professor Bittar said that in his opinion the accident caused Ms Esposito:
(a) an aggravation of cervical spondylosis
(b) an aggravation of lumbar spondylosis.
127In respect to the question of causation, Professor Bittar said:
“In my opinion, the transport accident has been a significant contributing factor to her aggravation of cervical and lumbar spondylosis.
Her cervical spondylolisthesis (sic) was significantly symptomatic prior to the subject transport accident and has been rendered more symptomatic and disabling as a consequence of that transport accident.
Her lumbar spondylosis was asymptomatic (apart from two likely episodes of lower back pain which were short-lived) and has been rendered significantly symptomatic as a result of the transport accident.”[69]
[69]PCB 38
128As to apportionment, Professor Bittar said:
“In my opinion, her symptoms have certainly been made worse and her level of function has deteriorated as a result of both her neck and lower-back-related injuries sustained in the transport accident.
Prior to the subject transport accident, she did not have any permanent impairment arising from her asymptomatic lumbar spondylosis. On that basis, I consider that all of her lumbar spine related permanent impairment should be apportioned to the subject transport accident of June 27, 2018.”[70]
[70]PCB 38
129In respect to consequences flowing from the accident, Professor Bittar said:
“As a result of her accident-related spine injuries, her work capacity is unlikely to be affected. These injuries will, however, have a significant impact on her ability to sit, stand, twist, bend and lift, and these result in significant impairment in relation to her ability to engage in social, domestic and recreational activities. Details are provided in the body of the report. Such incapacity will continue for the foreseeable future.”[71]
[71]PCB 39
Dr Leon Turnbull, psychiatrist, report 23 July 2020
130Dr Turnbull first assessed Ms Esposito for her solicitors on 22 July 2020.
131At this time Dr Turnbull said that he had difficulties ascertaining Ms Esposito’s level of function prior to the accident. He said she “did not have the most precise memories”.[72]
[72]PCB 47
132Dr Turnbull noted that Ms Esposito had suffered pre-existing depressive mood prior to the accident due to “aches and pains”. He said her depressed mood state had probably worsened a little bit with the further worsening of her physical state. He also noted that she suffered some post-traumatic features due to the circumstances of the accident.
Dr Hazem Akil, neurosurgeon, report 21 March 2022
133Dr Akil assessed Ms Esposito for her solicitors on 21 March 2022.
134Dr Akil said that Ms Esposito told him that “immediately prior to the accident, she was not complaining of any neck pain at all”.[73]
[73]PCB 59
135Dr Akil said that in respect to her lumbar spine, Ms Esposito told him that she “did not have any complaints of lower back pain prior to the accident.”[74]
[74]PCB 61
136The histories provided to Dr Akil by Ms Esposito are incorrect.
137There was no detailed analysis referred to by Dr Akil of Ms Esposito’s medical records either prior or subsequent to the accident.
138Dr Akil’s report is based on a history which is incorrect. In the circumstances, I am not assisted by Dr Akil’s opinions. The only real assistance which this report is to me is to emphasise the unreliability of Ms Esposito’s histories and her assertions as to her levels of pain and function.
Dr Leon Turnbull, psychiatrist, report 8 April 2022
139Dr Turnbull reassessed Ms Esposito on behalf of her solicitors on 6 April 2022.
140In his second report, Dr Turnbull advised that his assessment had not changed. That is, by reason of the accident Ms Esposito suffered aggravation of pre-existing depression. He said she continued to have some traumatic symptoms. As to prognosis, Dr Turnbull said that was beholden to her physical condition. He said as long as she is physically affected in terms of aches and pains, her psychiatric state will remain much the same.
Dr Anthony Kam, radiologist, report 25 June 2022
141Dr Kam provided a report dated 25 June 2022 to Ms Esposito’s solicitors.
142Dr Kam undertook a review of the pre and post-accident radiology.
143Dr Kam did not meet Ms Esposito. Dr Kam said, from his area of specialty as an expert radiologist, he was not able to distinguish or disentangle the symptoms caused by the accident from the pre-existing condition.
144Importantly, Dr Kam said he could not find any evidence to indicate the accident caused significant change to the radiological appearance of Ms Esposito’s spine.[75]
[75]PCB 66
Dr Timothy Entwisle, psychiatrist, report 18 July 2022
145Dr Entwisle examined Ms Esposito for the TAC on 7 July 2022. At that time he noted Ms Esposito had a “significant psychiatric history”.[76] He considered she suffered an accident-related adjustment disorder with depressed and anxious mood which was an aggravation of previous WorkCover injuries and pain, on a background of a significant family and personal history of depression.[77]
[76]DCB 41-42
[77]DCB 44
146Like Dr Turnbull, Dr Entwisle’s opinion is reliant upon the accuracy of the histories upon which it is based.
Associate Professor John Laidlaw, neurosurgeon, report 17 August 2022
147Professor Laidlaw assessed Ms Esposito for the TAC on 9 August 2022.
148Professor Laidlaw’s report ran to 74 pages. He was provided with and analysed a great deal of background material.[78]
[78]See Professor Laidlaw’s analysis at DCB 54-70
149Professor Laidlaw said that he encountered difficulties in obtaining a history from Ms Esposito. Professor Laidlaw said that Ms Esposito was initially “quite insistent” that she had never been sick before the accident. Professor Laidlaw said that later in the examination, Ms Esposito “volunteered” that she had suffered an injury at work in 2013 with left shoulder and neck problems.[79]
[79]DCB 55
150Professor Laidlaw:
(a) spent approximately two hours with Ms Esposito[80]
(b) recorded in great detail Ms Esposito’s usual daily routine and an overview of her functional physical activities.[81]
[80]DCB 54
[81]See DCB 61-63
151Professor Laidlaw said Ms Esposito, as a result of the accident, suffered:
“1.Exacerbation of chronic pain condition affecting her neck, with radiation of pain to the scapular area, interscapular area, intermittently to the upper limbs and head.
2.Exacerbation of preview (sic) lower back pain with intermittent radiation to the lower limb.”[82]
[82]DCB 67
152Professor Laidlaw considered the impact of the accident to be exacerbations rather than new injuries. He said there was no specific evidence of acute spinal tissue injury to the cervical or lumbar spine.
153Referring now to the overview of functional physical activity. Professor Laidlaw recorded:
““Giuseppina said that she does all the housework at home but it takes her all day and she is forever getting up and doing some vacuuming, mopping or cleaning and then having to sit down for a rest and then getting up and going to do more. She said that she does the ironing and vacuuming nearly every day because there are five people at home and she needs to look after them. She said sometimes the kids might help with the cleaning, and she also has her sister around the corner who might come and help if Giuseppina is having a particularly bad time, but most of the time she manages to get the housework done each day. She finds mopping and vacuuming in particular causes worse lower back pain.
She said that she goes to Coles locally to do shopping, and takes shopping bags and puts them in her trolley, asking the supermarket attendant not to overfill them so that she can lift them into the car. However, she stresses that she tends not to do all the grocery shopping herself as her husband works at the food markets and brings home most of the groceries, particularly the heavier things.
She tells me that although she rakes leaves and generally tidies up around the garden, she avoids lifting and she employs a gardener to come around every three to four weeks now. She does all the cooking.”[83]
[83]DCB 61
154In respect to her usual daily routine, Professor Laidlaw obtained the following history:
“Giuseppina gets up at 7am and then gets breakfast for her grandson and gets him ready for school and takes him to school. She then comes home and has breakfast and then she does the beds, vacuuming, washing and starts to prepare dinner. She said that takes her most of the day as she needs to sit down and have a break on regular occasions when she gets sore. She then goes and picks her grandson up from school, and once a week takes him to swimming.”[84]
[84]DCB 63
155I pause here to note that when these passages were put to Ms Esposito in the course of cross-examination, she accepted these outlines of her activities to be correct.[85]
[85]T44, L2 – T45, L5
156In these circumstances, Professor Laidlaw is the one medical expert who I can be confident has provided an opinion based on an accurate understanding of Ms Esposito’s current daily routine and true level of post-accident activities.
157Professor Laidlaw went on to say in respect to domestic activities:
“Mrs Esposito is currently capable of carrying out domestic tasks, and she has described to me that she currently does the majority of the housework and cooking for a household of five people. She tells me that her activities are slower than they previously were and she needs to have regular breaks because of discomfort. Her description of her current activities her current capacity (as described in Activities of Daily Living, above) is similar to that described in Dr Slesenger’s 2015 report.”[86]
[86]DCB 68
158Professor Laidlaw said that Ms Esposito’s chronic pain condition is very similar to that documented in her general practitioner records from early 2016 until the time of the accident.[87]
[87]DCB 68
159In the context of this case, Professor Laidlaw’s observations in respect to Ms Esposito’s chronic pain condition and current level of activities are of great assistance to me in my determination of the matter.
What conclusions do I draw from the medical evidence?
160Firstly, it is clear to me that I have to exercise great care in the use which I make of the medical opinions in this case. Many are based on histories which are unreliable. It follows that the opinions which flow from such unreliable histories suffer the same fate. That is, they are unreliable. In those circumstances, they are of little assistance to me.
161Of all of the medical opinions which I was provided, I find Professor Laidlaw’s the most helpful. His is the one opinion in which I have a level of confidence, based on:
(a) his very considered analysis of the objective materials which he had been provided, together with:
(b) the histories in respect to Ms Esposito’s daily routine and level of functional activities which he obtained from her and which she adopted in her oral evidence.
162I accept that Professor Laidlaw’s opinions are based on an accurate portrayal of Ms Esposito’s true level of current activities.
163While Professor Bittar obtained a history that Ms Esposito did in fact suffer a very significant level of pain prior to the accident (an average of 6-7/10) I am not confident that his opinions are otherwise based on:
(a) a correct understanding of Ms Esposito’s current level of activities
(b) the true extent of her lower back problems prior to the accident.
164I do not accept Dr Di Bartolo’s opinions set out in his most recent reports to Ms Esposito’s solicitors. Dr Di Bartolo paints a picture which I find inconsistent with:
(a) the TPD questionnaire;
(b) the level of consultations and the medication which he was prescribing to Ms Esposito prior to and at the time of the accident;
(c) his report to the TAC;
(d) Ms Esposito’s oral evidence and, in particular, her adoption of the outline of activities which she provided to Professor Laidlaw.
165I do not find the opinions of either Mr Rogers or Mr Akil of any real assistance save for:
(a) Mr Rogers’ observations that at the time of his assessment, the complaints made by Ms Esposito appeared to him to be similar to those made in 2015
(b) the clear unreliability of the histories provided by Ms Esposito to Mr Akil.
166The opinions of the pain management practitioners are subject to the same comment in respect to their reliance upon the accuracy of Ms Esposito’s histories and, in particular, her histories in respect to pain and functional capacity.
167I am also conscious of the medical evidence of Ms Esposito’s spinal condition, pain and functional capacity back in 2015.
168Firstly, Mr Miller, her then treating orthopaedic surgeon, at that time said:
(a) Ms Esposito was suffering a musculoskeletal strain to her neck and aggravation of degenerative disease in her spine;
(b) her prognosis was only fair.
169Secondly, Dr Slesenger’s history of:
(a) 9/10 pain in the neck and
(b) the consequences which Ms Esposito described to him at that time which are noted to be similar to the current complaints.
170I also take into account the observation made by Mr Etherington that at the time of Ms Esposito’s first presentation to him subsequent to the accident, that she complained of similar symptoms to those complained of when he saw her back in 2015.
171Finally, I have the opinion of Dr Kam. He said that there was no evidence to indicate the accident caused any significant change to the radiological appearance of Ms Esposito’s spine.
172Having considered all of the evidence and, in particular, the opinions of Professor Laidlaw and Dr Kam, I consider that the injury which Ms Esposito suffered as a result of the accident is best described as an exacerbation of a pre-existing chronic pain condition affecting her spine.
Ms Esposito’s evidence, her reliability, the consequences flowing from the accident-related spinal injury and disentanglement
173I am conscious of the need to disentangle the consequences flowing from the exacerbation caused by the accident from the consequences flowing from:
(a) her pre-existing spinal conditions;
(b) her left shoulder injury;
(c) her pre-existing psychiatric illness;
(d) her other comorbidities.
174I acknowledge, notwithstanding Ms Esposito’s non-accident-related injuries, it is still open for me to conclude that the consequences which flow from the accident-related injury are serious.[88]
[88]See the analysis of Ashley J in Dressing v Porter [2006] VSCA 215
175In undertaking my analysis, I am assisted by the process outlined by Maxwell P in Haden Engineering Pty Ltd v McKinnon.[89]
[89][2010] VSCA 69
Pain
176Ms Esposito sought, in her affidavit and oral evidence, to paint the picture that prior to the accident she was “coming good”.[90] Indeed, she said that prior to the accident she did not have much by way of complaint.[91] Ms Esposito asserted that her current level of pain is 50 per cent worse consequential to the accident.
[90]T34, L11-14
[91]T12, L16-17
177Dealing, firstly, with Ms Esposito’s assertions that she had significantly improved prior to the accident. Ms Esposito said that she had improved so much that she was only seeing Dr Di Bartolo every two or three months.[92] If that were correct, that would be, at most, six times a year.
[92]T49, L26-30
178A review of Dr Di Bartolo’s clinical records does not bear this out. True it is, that Ms Esposito immediately prior to the accident had not seen Dr Di Bartolo since 16 March 2018. However, on that occasion he provided her with pain management and education on physiotherapy and prescribed her analgesia.[93] Further, between 1 May 2017 (the date of the TPD questionnaire) and 16 March 2018, there are approximately 20 consultations, the overwhelming majority of which appear to be related to pain management.
[93]DCB 141
179At the time of the accident, Ms Esposito was, for her ongoing pain, taking:
(a) Tramadol
(b) Naprosyn
(c) other analgesia.
180As noted above, Ms Esposito said her pain had increased by 50 per cent since the accident. That same assertion was echoed by Dr Di Bartolo.
181However, this is not consistent with:
(a) the pain recorded by Dr Slesenger of 9/10;
(b) what Ms Esposito told Professor Bittar: that on average her pain was 6–7/10. That being an average, there must from time to time leading up to the accident have been pain greater than 7/10;
(c) the use of Tramadol;
(d) the TPD questionnaire;
(e) the ongoing consultations with Dr Di Bartolo for pain management;
(f) Mr Etherington’s observations that at the time he first met Ms Esposito after the accident her symptoms were similar to 2015;
(g) Professor Laidlaw’s observations and opinions.
182Referring now to the evidence of Ms Esposito’s husband, Mr Stefano Esposito. There was an affidavit from him of 10 November 2022 in evidence.
183Mr Esposito said at the time of the accident that he did not believe his wife required the ongoing use of pain-relieving medication.[94] That assertion was clearly wrong.
[94]PCB 28, paragraph 6
184The TAC said that this was one of those cases where the Court must take heed of what the plaintiff does about their pain, not just what they say about it. They said that complaint of pain, even if repeated many times, does not establish the veracity of the complaint.[95]
[95]See the analysis in Tatiara Meat Company Pty Ltd v Kelso [2010] VSC 12, particularly at paragraphs [46]-[55]
185In this context, I refer to Ms Esposito’s use of painkilling medication. At the time of the accident, she was taking Tramadol for pain management. After the accident, she was prescribed Panadeine Forte by Dr Di Bartolo. Currently, she takes neither Tramadol nor Panadeine Forte.
186Objectively, Ms Esposito:
(a) is currently in a better position in respect to the ingestion of painkilling medication than she was at the time of the accident;
(b) as far as clinical treatment goes, is certainly in no worse position as far as doctors’ consultations and ancillary treatment goes.
Cooking
187Much was made by Ms Esposito of the impact of the accident-related injuries on her capacity to cook and, specifically, her inability to cater for big family functions.
188The TAC said:
(a) that she continued to cook for a family of five;
(b) that her inability to cater for big family functions was something which pre-dated the accident and is not consequential to it.
189The TAC said that Ms Esposito had told Dr Entwisle that she had not resumed entertaining and cooking for large family get togethers since the time of her work injury in 2013. Ms Esposito denied that was the case, and said that she had resumed catering for large family get togethers just prior to the accident.[96]
[96]T42, L27-31
190Mr Esposito said that his wife had, prior to the accident, been catering for large family gatherings. [97] He made no qualification that Ms Esposito had only resumed such activities just prior to the accident. That Mr Esposito did not make such qualification or provide greater explanation limits the use I can make of such evidence given what Ms Esposito said in her oral evidence.
[97]PCB 30, paragraph 20
191Referring back to what Ms Esposito told Professor Laidlaw, and which she confirmed in her oral evidence. Ms Esposito said she undertook the preparation of the meals for the family of five and did all that went with it. Indeed, Ms Esposito said that she did “all the cooking”.[98] Ms Esposito told Professor Laidlaw that she now “tends not to” entertain for big groups.[99]
[98]DCB 55
[99]DCB 62
192While Ms Esposito may have some difficulties in catering for large functions, it is clear from her evidence that she continues to undertake all the activities associated with cooking and meal preparation for the family of five.
Domestic activities
193Ms Esposito acknowledged that she still undertakes “all the housework at home”.[100] She said she did so:
(a) at a slower rate;
(b) with the need to rest from time to time;
(c) with an increase in pain.
[100]T44, L14-26
194However, it is apparent from what Ms Esposito’s told Professor Laidlaw, and adopted in her oral evidence, that she still:
· vacuums
· irons
· cleans
· mops
· does the shopping
· makes the beds
· does the washing.
195I must also put this evidence in the context that Ms Esposito said prior to the accident, when undertaking housework, she was “pretty slow and careful”.[101]
[101]T34, L13-14
196It is difficult to understand what the real functional difference is between what Ms Esposito was undertaking prior to the accident and now. For example one of the restrictions relied upon by Ms Esposito was her limitation in carrying shopping bags. However, the current limitations which Ms Esposito reports are similar to those reported in May 2017.
197The activities which Ms Esposito conceded she undertakes for the household are in excess of the functional restrictions which Dr Di Bartolo has reported.
198Referring now to Mr Esposito’s evidence. He conceded that Ms Esposito did undertake cleaning and like duties. However, he said that he and his sons now assist “greatly” around the house. That assertion is contrary to Ms Esposito’s evidence that she did “all the housework at home”.
199Returning to some of the specific restrictions which Ms Esposito relied upon. She said that she has been provided with and uses a pick-up stick to assist in her activities around the house. She said this helps avoid increasing her lower back pain as she does not have to bend over as much.
200Mr Ingram said that I should take particular notice that Ms Esposito is no longer able to wash windows. She now has a professional window cleaner. In light of the level of physical restrictions outlined in the TPD questionnaire, and the levels of pre-accident pain which Ms Esposito suffered, which necessitated the ongoing use of Tramadol, I am not persuaded that prior to the accident Ms Esposito was capable of undertaking all of the activities which the professional window cleaner is now undertaking. In any event, Ms Esposito said she otherwise does all of the housework.
201While I accept that undertaking domestic activities may cause an increase in pain and the need for Ms Esposito to take breaks, I am not convinced that there is any great change in her level of functioning post-accident from what she was undertaking prior to the accident. This, in the context that she no longer uses Tramadol and Panadeine Forte for pain relief.
Gardening
202Ms Esposito said in her affidavit evidence she no longer undertook gardening activities.[102]
[102]PCB 15, paragraph 41
203It is clear Ms Esposito continues to undertake activities in the garden. She said so. She still, at least:
(a) rakes the leaves;
(b) generally tidies up.
204Again, much was said on her behalf in respect to the need for a professional gardener. However, on analysis, that professional gardener undertakes:
(a) lawnmowing;
(b) Whipper-Snipping;
(c) the heavier gardening activities.
205I am not convinced these were activities either undertaken by, or appropriate for, Ms Esposito prior to the accident. Indeed, Mr Ingram conceded that Ms Esposito was not involved in the lawnmowing and Whipper-Snipping prior to the accident.
206Mr Esposito said that prior to the accident, his wife used to “potter around the garden”.[103] It is evident, on her own evidence, she still does.
[103]PCB 30, paragraph 21
Ms Esposito’s grandson
207Another of the specific consequences which Mr Ingram said I should take into account was the impact of Ms Esposito’s accident-related injuries upon her care for her grandson. Ms Esposito has cared for her grandson since he was very young. Indeed, the accident occurred when she was driving him to swimming lessons.
208Ms Esposito continues to cook, care for and take her grandson to school and swimming lessons, and generally fulfil the role of mother for her grandson. She is to be commended for this, given the circumstances which brought her grandson into her care.
209Mr Esposito said that his wife “struggled to engage fully” with their grandson because of her injuries.[104]
[104]PCB 29, paragraph 14
210However, on close analysis, there was really only one task which was emphasised in respect to Ms Esposito’s impairment to care for her grandson; that is, she is no longer able to bath him, but rather she now showers him.
211That said, Ms Esposito continues to care and provide for her grandson in all practical ways, as she had done prior to the accident.
Bingo, social life and recreation
212Ms Esposito had painted a picture in her affidavit evidence that:
(a) prior to the accident, she had a very active social and recreational life;
(b) subsequent to the accident, she did not go out that often.
213The TAC said that her life now was not dissimilar to how she was prior to the accident.
214When it was put to Ms Esposito by Mr C Harrison KC, counsel for the TAC, that in 2015, her recreational activities were very limited by pain, she said:
Q:“…and then section 10, recreation, I can hardly do any recreation activities because of pain in my neck?---
A:That’s right.
Q:So that was the situation as at February with respect to your neck – as at February 2015?---
A:Yep.”[105]
[105]T21, L17-21
215It was said by Mr Ingram that there had been a significant impact on Ms Esposito’s social and recreational interaction, bingo being one of those activities. Ms Esposito said in her affidavit evidence that she had not returned to bingo.[106]
[106]PCB 19, paragraph 23
216However, it became apparent that Ms Esposito has attended bingo. When I questioned her, she conceded that she recently attended bingo and stayed for two sessions; that is, she was there between 11.00am and 1.00pm.
217Another specific consequence relied upon by Ms Esposito was her inability to go shopping with friends as she had. When I asked her about going shopping with friends, she said she did and that she would walk around with them for maybe half-an-hour before having to sit for a rest.[107]
[107]T61, L2-6
218It is apparent that Ms Esposito still engages in a level of social interaction. Again, I am not convinced that there is any significant change caused by the accident-related injury.
Driving
219The impact on Ms Esposito’s capacity to drive was another of the specific consequences which she relied upon in this application.
220However, Ms Esposito conceded that she continues to drive. For example she drives her grandson to school and to swimming lessons.
221In the course of Ms Esposito’s oral evidence, it became apparent that any current limitation is no greater than that set out in the TPD questionnaire; that is, a 15-kilometre limit.
Walking
222Ms Esposito said that prior to the accident, she would regularly walk for 60 minutes with a friend. She was steadfast that was the case.
223This evidence can be contrasted to the TPD questionnaire and her oral evidence that as of May 2017, she could not walk more than 600 metres/ minutes.
224Ms Esposito, in her oral evidence, initially sought to maintain that now she can walk maybe for 15 to 20 minutes.[108] When I questioned her about going shopping with her friends, she conceded that she would walk for maybe half-an-hour before sitting down and having a rest.[109]
[108]T55, L20-21
[109]T61, L2-6
225This can be contrasted to Mr Esposito, who said it was extremely difficult for his wife to walk longer than “short periods”.[110]
[110]PCB 30, paragraph 19
226I note that walking for 60 minutes is another activity which Ms Esposito asserted she had regained the capacity for in the period just prior to the accident.
227At its greatest, Ms Esposito’s capacity to walk has been reduced from 60 minutes to 30 minutes.
Headaches
228It is apparent from the medical evidence, and Ms Esposito conceded, that prior to the accident, she suffered from very regular headaches. She said that now, those headaches are more frequent and worse. Ms Esposito said she suffers headaches daily.
229Referring to Dr Di Bartolo’s assessment of Ms Esposito’s headaches, he said she suffers “recurrent tension headaches”.[111]
[111]PCB 140
230Mr Esposito simply said that Ms Esposito complains of headaches on a “regular basis”.
231Again, it is difficult to find objective evidence to support Ms Esposito’s assertions in respect to the worsening of the headaches subsequent to the accident. Again, putting it at its greatest, there has been an increase in the frequency and severity of what was clearly a longstanding pre-existing history of recurrent and troublesome headaches.
Sleep
232Ms Esposito said that prior to the accident, she had little trouble sleeping.[112]
[112]PCB 13, paragraph 33
233Ms Esposito said that her sleep has been worse since the accident. She wakes three times per night. However, when asked to attribute whether that was due to her back, neck and shoulders, she said all of those injuries contributed. There was no disentanglement from the non-accident related injuries.
234The TAC said the exacerbation which occurred as a result of the accident made no difference to Ms Esposito’s sleep. Under cross-examination, Ms Esposito agreed that in 2015, her sleep was “greatly disturbed”.[113]
[113]T21, L15-17
235Again, given Ms Esposito’s concessions in respect to the state of her sleep back in 2015, it is yet another aspect of Ms Esposito’s life which was said to have improved greatly in the period immediately prior to the accident.
Personal care and hygiene
236Ms Esposito said that she now required a shower chair to shower. She said that was not the case prior to the accident. Again, much was made of this as a consequence flowing from the accident.
237There was, however, no suggestion by Ms Esposito that she was unable to dress herself or attend to all other aspects of her personal hygiene requirements. Indeed, she told Professor Laidlaw that she could.[114] This can be contrasted to Mr Esposito’s evidence. He said she had “great difficulties” attending to matters of personal hygiene.[115]
[114]DCB 59
[115]PCB 29, paragraph 15
238In circumstances where Ms Esposito conceded that she was able to undertake all the domestic household activities, walk for 30 minutes, and tend to all her other personal care, it is difficult to understand why a shower chair has become a necessity.
239In any event, this appears to be the only significant consequence relied upon relating to personal care and hygiene.
Psychological reaction
240At the time of the accident, Ms Esposito was suffering from a chronic Adjustment Disorder with Depression and Anxiety. She was being prescribed Zoloft and Valium. She had been prescribed Zoloft since 2008.
241While Ms Esposito did, for a period of time, consult Mr Kimpton and had limited sessions with Ms Kamberovic, she no longer attends for psychological treatment.
242The consultant psychiatrist’s opinions which talk of a worsening of Ms Esposito’s psychological condition are reliant upon the history which she has provided. As I have previously said, I find Ms Esposito to be an unreliable historian. Based on the objective evidence:
(a) Ms Esposito was being prescribed Zoloft and Valium at the time of the accident. She continues to be prescribed Zoloft;
(b) Ms Esposito was not attending for psychological treatment at the time of the accident. She is currently not attending for psychological treatment.
243Ms Esposito suffered from the chronic Adjustment Disorder with Depression and Anxiety prior to the accident. That was said, at least in part, to relate to her aches and pains. Ms Esposito continues to suffer from a chronic Adjustment Disorder which is related, at least in part, to her ongoing aches and pains.
244Any nexus between a worsening of Ms Esposito’s psychiatric distress subsequent to the accident will be dependent upon my findings of increased pain and functional restriction flowing from her physical injuries.
Are the consequences of Ms Esposito’s accident-related spinal injury
“serious”?
245It is Ms Esposito who has the onus to show that the consequences of her spinal injury satisfy the serious injury test.
246To establish serious injury, the threshold is high. As set out in Stijepic v One Force Group Aust Pty Ltd,[116] while the evidence may disclose pain and suffering consequences which are both marked and significant, for Ms Esposito to be successful I have to be persuaded that the consequences of the spinal injury which resulted from the accident can fairly be described as being “more than significant or marked” and as being at least “very considerable”.
[116][2009] VSCA 181
247As I have previously acknowledged, I must take into account and disentangle the impact of Ms Esposito’s pre-existing pain and functional restrictions. It is necessary for me, as far as the evidence in this case permits, to identify the consequences properly referable to Ms Esposito’s spinal injury and to exclude the consequences referable to her shoulder injuries, pre-existing spinal condition, and other medical conditions unrelated to the accident.[117]
[117]Peak Engineering & Anor v McKenzie (supra)
248Further, as the Court of Appeal explained in Rowe v Transport Accident Commission:[118]
“Section 93 of the Act does not permit one to look at whatever minor contribution may have been made to a condition by a particular transport accident, then ask if the total condition is serious and then determine that the injury suffered in the transport accident is itself serious because it is a cause of the total condition.”
[118][2017] VSCA 377 at paragraph [86]
249I pause here to make reference to the assistance which I am provided by Mr Esposito’s evidence. The TAC said that Mr Esposito’s evidence did not overcome the unreliability of Ms Esposito’s evidence.[119] I agree. Mr Esposito’s evidence:
(a) in respect to the important aspect of medication was wrong;
(b) on some key matters ran contrary to Ms Esposito’s oral evidence and history to Professor Laidlaw;
(c) was otherwise very general in nature;
(d) did not adequately deal with Ms Esposito’s pre-existing pain and restrictions.
[119]See the analysis of the Court of Appeal in Siddel-Whipp v Transport Accident Commission [2020] VSCA 109, and in particular paragraphs [59]-[70]
250Having reviewed the objective evidence of what Ms Esposito currently complains, and having reviewed her complaints back in 2015 and what Dr Di Bartolo certified in May 2017, I accept many of the complaints are very similar. I also note the acute exacerbation of the recurrent lower back pain which Ms Esposito reported on 3 January 2018 for which she was still seeking treatment on 16 March 2018.
251Notwithstanding Ms Esposito’s assertions, I am not convinced on the objective evidence that her pre-existing conditions had improved to the extent asserted by her at the time of the accident.
252It is well established in applications such as this that the Court must consider the level of activities which the plaintiff is still able to engage in, as well as those limitations imposed on a plaintiff as a consequence of the injury.[120] That Ms Esposito’s life is not exactly as it was pre-injury, and that there has had to be some adaption and some increased pain, is not in itself sufficient to satisfy the serious injury test.[121]
[120]Dwyer v Calco Timbers Pty Ltd (No 2) (2008) 234 CLR 124
[121]See the analysis of the Court of Appeal in Tatiara Meat Co Pty Ltd v Kelso (supra), particularly at paragraphs [77]-[80]
253Ms Esposito still:
· does all of the cooking for a household of five
· goes out with friends
· attends bingo
· drives her car up to 15 kilometres
· attends to her grandson’s care needs
· vacuums
· mops
· does all of the laundry
· irons
· does the shopping
· attends shopping centres
· walks for at least 30 minutes
· rakes leaves and tidies up around the garden
· generally, does all of the housework.
254I do not accept that there has been a 50 per cent increase in Ms Esposito’s level of pain. While I am prepared to accept that immediately after the accident there was an escalation of Ms Esposito’s pain, I do not accept that currently the accident-related pain is to the level which she asserts. The objective evidence does not support this.
255Ms Esposito’s level of activity is much greater than set out in her affidavit evidence. I also accept:
(a) that her pain and functional restriction is multifactorial and, in particular, includes her left shoulder injury;
(b) her current complaints are very similar to her complaints of 2015 and 2017.
256I am not prepared to accept that Ms Esposito’s current condition is now significantly worse than her condition in 2015–2017 or, indeed, at the time of the accident. I do not accept, having considered all of the evidence, that Ms Esposito’s spinal and other conditions had “greatly improved” in the sixteen months between May 2017 and the accident. I do not accept that, at the time of the accident, her level of complaints were “not much”.[122]
[122]T12, L16-17
257I do not accept that those consequences which flow from the aggravation or exacerbation of Ms Esposito’s pre-existing spinal condition satisfy the serious injury test. While they may be marked or significant, I do not accept, on the totality of the evidence, that they are “very considerable”.
Conclusion
258Having taken into account all of the evidence, and in particular assessing the objective evidence, I am not satisfied that the consequences of any accident-related spinal injury are “serious”.
259Accordingly, the application will be dismissed.
260I shall hear the parties in respect to the appropriate orders to be made and in respect to costs.
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