Fernandez v TAC
[2020] VCC 21
•30 January 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-01556
| MERCY FERNANDEZ (BY HER LITIGATION GUARDIAN ANTHONY FERNANDEZ) | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 November 2019 | |
DATE OF JUDGMENT: | 30 January 2020 | |
CASE MAY BE CITED AS: | Fernandez v TAC | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 21 | |
REASONS FOR JUDGMENT
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Catchwords: Transport Accident Act 1986 – s93 –plaintiff a passenger – rear end collision forcing plaintiff’s vehicle into car in front and ultimately into a power pole – plaintiff requiring litigation guardian because of condition not related to accident – injury to the low back – paragraph (a) of the definition of “serious injury” – Richards v Wylie (2001) 1 VR 79 – role played by plaintiff’s non-accident related injuries and conditions – credit of litigation guardian – disentanglement – whether burden of proof satisfied – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Coldwell with Mr L Allan | Zaparas Lawyers |
| For the Defendant | Mr R Attiwill QC with Ms V Katotas | Solicitor to the Transport Accident Commission |
HIS HONOUR:
General background
1 This matter comes before me by way of an application pursuant to s93(4)(d) of the Transport Accident Act 1986, (hereinafter referred to as “the Act”). In bringing her application, the plaintiff relies upon paragraph (a) of the definition of “serious injury” found in s93(17) of the Act. Insofar as any psychological or psychiatric consequences of the injury are concerned, the plaintiff does not rely specifically upon paragraph (c) of the definition. However, I appreciate that such matters can be taken into account in the way employed in Richards & Anor v Wylie (2000) 1 VR 79. The test to be applied is that to be found in Humphries & Anor v Poljak [1992] 2 VR 129.
2 As shall be discussed, the plaintiff has quite a complex medical history involving various conditions, both physical and mental. In the present application, the plaintiff relies upon injury to the low back sustained in a motor vehicle accident which occurred on 18 October 2015. This shall hereinafter be referred to as “the accident”. The injury suffered shall hereinafter be referred as “the injury”. Essentially, the nature of the accident was that the vehicle in which the plaintiff was a backseat passenger was stationary when it was struck in the rear by another vehicle, which forced it into the car in front, then onto the nature strip and finally into a power pole. There was no challenge in relation to the occurrence or the nature of the accident. It was said at the outset that the defendant accepted that the plaintiff suffered an aggravation of pre‑existing lumbar spondylosis as a result of the accident. However, there was dispute as to whether the injury and its consequences represented a serious long-term impairment or loss of body function, particularly bearing in mind that the plaintiff suffered from a number of other significant conditions, including osteoarthritis in the knees. I would refer to Transcript (hereinafter referred to as “T”) 13 and 14.
3 Mr G Coldwell of counsel with Mr L Allan of counsel appeared on behalf of the plaintiff. Mr R Attiwill QC with Ms V Katotas of counsel appeared on behalf of the defendant. The plaintiff originally swore an affidavit on 30 May 2018. Due to a decline in the plaintiff’s cognitive functioning, her husband, Mr Anthony Fernandez, was appointed as her litigation guardian for the purposes of this proceeding, this apparently occurring in approximately late March 2019. In addition to the plaintiff’s affidavit, affidavits affirmed by Mr Fernandez on 13 September 2019 and 1 November 2019 were also placed in evidence. He also gave oral evidence and was cross-examined. The plaintiff did not give oral evidence. The balance of the evidence was documentary in nature and was tendered either by consent or without objection.
Factual background
(a) The plaintiff’s general background
4 The plaintiff is aged 67 years, she having been born in India in 1952. Her children are adults. She was educated to Year 10 level. She moved to Australia, with her first husband who has since died, in 1976. After he was killed in a motor vehicle accident, she returned to India for a period. Whilst there, she married her present husband and they moved to Australia, this being in 1980. The plaintiff has always performed domestic duties. She has never engaged in paid employment. Her husband is a retired bus driver.
(b) The plaintiff as a witness
5 The plaintiff did not give oral evidence. I note that Dr Nigel Strauss, consultant and occupational psychiatrist, saw the plaintiff at the request of her present solicitors on 4 January 2017. This was prior to the deterioration in her condition which led to the appointment of her husband as litigation guardian, although I note that he accompanied her to the examination carried out by Dr Strauss. In any event, Dr Strauss described her as being helpful and cooperative. Further, he stated that there was nothing to suggest that she was deliberately over-exaggerating her problems. Dr Robert Lefkovits, consultant physician, saw the plaintiff at the request of the defendant on 19 August 2019. I note that the plaintiff’s husband was in attendance throughout the consultation and helped with the taking of the history. Dr Lefkovits also made the observation that he found her to be a genuine witness. As an affidavit sworn by her has been put before me, and as I did not have the opportunity to view her in the witness box as a result of her declining mental condition, the observations of Dr Strauss and Dr Lefkovits are helpful. That is particularly so when it is remembered that Dr Strauss examined her at the request of her solicitors and Dr Lefkovits examined at the request of the defendant.
6 The plaintiff’s husband, Mr Anthony Fernandez, in addition to providing affidavit evidence, also gave oral evidence and was cross-examined. His credit was criticised in Mr Attiwill’s closing address – see, for example, T49. I tend to agree with the submissions of Mr Coldwell that Mr Fernandez was not a sophisticated witness, but one who was doing his best. Effectively being the plaintiff’s carer, he is well-placed to describe the symptoms and restrictions from which she suffers, including those relating to her low back complaint, and to make a comparison between the restrictions and apparent pain from which she suffered prior to the accident and her condition after it. Of course, it is only the pain and suffering resulting from the accident and the low back injury which constitute the basis of this application.
(c) The state of the plaintiff’s health prior to the accident
7 This is quite complicated. In her affidavit of 30 May 2018, the plaintiff has sworn that, in 1996, she was diagnosed with Diabetes Type 2. In approximately 2015, she was diagnosed as suffering from osteoarthritis in both knees after a fall. In December 2014, she was diagnosed as suffering from Bipolar Disorder and depression and was admitted to the Western Hospital. She had returned from spending time in India, where she cared for a sick friend who eventually died. She described herself as not coping. She was re-admitted to the Western Hospital in February 2015 after a CAT team attended her house as a result of a call from her family. It is apparent that, in 2015 and prior to the accident, she made a number of trips to hospitals, including one period of 15 days as an inpatient. In addition, various medications were prescribed.
8 For example, in June 2015, the plaintiff again became agitated and was taken to North West Mental Health for an assessment. From approximately July 2015, she attended Mercy Health for outpatient mental health monitoring and treatment. It would also appear that she saw a psychologist. In September 2015, she commenced attending the Saltwater Clinic at Mercy Health for fortnightly treatment for her Bipolar condition and for depression. With medication and treatment she became more calm.
9 The plaintiff has sworn that, prior to the accident, she had not suffered any problems with her lower back.
10 In his affidavit of 13 September 2019, Mr Anthony Fernandez has affirmed that he attended a conference with a barrister in late February 2018 at which instructions in relation to the preparation of the plaintiff’s affidavit were given. He helped her to read through the affidavit and make sure that it was correct. He affirmed that, from his discussions with the plaintiff and from his own knowledge, her affidavit is correct in terms of how it describes the plaintiff’s background, her health before the accident, the accident itself and her treatment and the sequelae.
11 The end result is that the description of the plaintiff’s previous health contained in her affidavit is accurate. In relation to mental health problems, it is essentially in accord with the psychiatric history given to Dr Strauss, save that it is there made clear that, in 2015, she spent 15 days at the Mercy Hospital in Werribee receiving psychiatric treatment, this being presumably as an inpatient. In relation to her mental health, the history obtained by Dr Lewis, examining on behalf of the defendant, is essentially similar to that obtained by Dr Strauss.
12 In summary, I accept that, prior to the accident, the plaintiff had suffered quite severe mental health problems requiring at least one period of hospitalisation and that she had suffered injury to both knees. In addition, I accept that she had no history of any note in relation to low back complaints and the like.
(d) The injury, its treatment and diagnosis
13 As stated, the accident occurred on 18 October 2015. Following the accident, the plaintiff was transported to the Western Hospital with back and neck pain and stayed there overnight. An x-ray of the lumbosacral spine appears to have been carried out on 20 October and the report forwarded to Dr Lee of the Ashley Street Medical Centre in Footscray. That x-ray indicated that there was no acute vertebral compression fracture identified. There was mild scoliosis with convexity to the left, but the intervertebral disc height was mostly preserved. There was no significant facet joint arthropathy. An x-ray of the pelvis did not indicate any relevant abnormality.
14 A subsequent x-ray was carried out on 6 November 2015. In relation to the lumbosacral spine, no significant vertebral body height was identified. There was very mild scoliosis with convexity to the left. There was also mild multilevel intervertebral disc degeneration and mild fact joint arthropathy at L5-S1. There were mild degenerative changes along the S1 joints.
15 Continuing with the radiological examinations, a further x-ray of the lumbosacral spine was carried out on 8 March 2016, with the radiologist reporting to Dr Lee on the following day. On this occasion, the report was that there was a mild lumbar scoliosis convex to the left and centred at approximately L3. Vertebral alignment was otherwise preserved. Vertebral body height and intervertebral disc spaces were maintained. There was mild facet joint arthropathy at L5-S1, but no high grade neural exit foraminal narrowing throughout.
16 A further x-ray of the lumbar spine, again at the request of Dr Lee, was carried out on 7 March 2017. The report was essentially normal, with mild scoliosis with convexity to the left, apparently this being at the lumbosacral junction.
17 Yet another x-ray of the lumbar spine was carried out on 22 August 2017, again at the request of Dr Lee. The radiologist reported that there was a gentle lumbar scoliosis convex to the left centred at approximately L3. Lumbar vertebral body heights were preserved. Mild multilevel disc degenerative change was most marked at L3-4. There was no high grade foraminal stenosis.
18 On this occasion, x-rays were also taken of the plaintiff’s knees and, amongst other things, these showed severe right and moderately advanced left patellofemoral arthropathy with small bilateral knee joint effusions being noted and vascular calcification being evident. The condition of the plaintiff’s knees potentially could have relevance in relation to disentanglement.
19 At the request of Dr Lee, a CT scan of the lumbar spine was performed on 18 October 2017. The conclusion of the radiologist was that there was mild scoliosis of the lumbar spine with convexity to the left. There were minor degenerative changes, essentially these being a small broad-based posterior disc protrusion at L3-4 and L5-S1 with minimal indentation of the ventral thecal sac. There was no significant spinal canal stenosis and mild narrowing of bilateral L5-S1 neural exit foramina, without evidence of neural impingement.
20 On 27 November 2017, an MRI of the lumbar spine was performed, this being at the request of Dr Vijay Navani, who is located at the Sunshine City Medical Centre. It is apparent from a report of that doctor that the plaintiff had been a patient since 7 September 2017. In any event, the concluding comment of the radiologist was that there was a small central posterior disc protrusion at L5-S1 abutting the S1 nerve root sheaths but without obvious compression.
21 On 2 April 2019, an x-ray of the plaintiff’s lumbar spine was performed, this being at the request of Dr Navani. The results were essentially normal, with no fracture being detected.
22 Finally, the plaintiff underwent a series of x-rays and ultrasounds on 5 June 2019, these being performed at the request of Dr Alexander Stockman of the Western Hospital. Apart from an x-ray of the lumbosacral spine, these investigations included an x-ray of the knees and an ultrasound of each shoulder. In relation to the x-ray of the lumbosacral spine, the only abnormalities detected were mild lumbar scoliosis, convex to the left, and multilevel mild-to-moderate lumbar spondylosis. Degenerative changes in the knees were again detected, along with mild supraspinatus tendinosis of the shoulders. I might add that Dr Stockman is a rheumatologist.
23 Returning to the treatment of the plaintiff, as stated, the plaintiff’s treating general practitioner since 7 September 2017 has been Dr Navani. He has provided to the plaintiff’s solicitors a detailed report dated 4 July 2019. Dr Navani makes it clear that he had been forwarded and had reviewed medical documents, correspondence, clinical history and the like relating to the plaintiff’s treatment prior to her becoming his patient. He noted that, since the accident, the plaintiff had continued to complain of persistent lower back pain, which had restricted her mobility and affected her day to day activities. His examination, apparently when he first saw her, revealed a distressed woman who was mobilising slowly with a stick. She had generalised restriction of her lumbar spine movement, with diffuse tenderness in her lower back. Neurologically, her lower limbs were normal. He had referred the plaintiff to Dr Alex Stockman, who confirmed that she had aggravation of a degenerative lumbar spine, in addition to osteoarthritis in the knees.
24 Dr Navani stated that the plaintiff’s current status was that she was continuing to suffer from lower back pain, in addition to pain in both knees. She remained dependent on her husband for support and on a carer for assistance with self-care. Dr Navani was aware that the plaintiff had been admitted to hospital with a Bipolar Disorder on 15 June 2015.
25 The diagnosis of Dr Navani was aggravation of a degenerative lumbar spine (in addition to aggravation of osteoarthritis in both knees). He was of the view that the transport accident had been a significant factor in causing aggravation of both conditions. Dr Navani attempted to discuss the back and knee functions collectively. He referred to them impacting upon her in relation to walking, standing, general mobilising, attending to daily living activities and the like. He believed her impairment to be permanent and that she would need to be managed on an ongoing basis. She would also need analgesic medication, and he raised the prospect of surgical management in the form of knee replacement. Dr Navani confirmed that the injuries had stabilised and had caused permanent impairment.
26 On 2 November 2018, Dr Stockman reported to Dr Navani. He had seen the plaintiff on that day. He recorded that she continued to suffer from lower back pain. It worried her in bed at night and first thing in the morning. The plaintiff walked for an hour every day, but very slowly. There is a reference to her undertaking core exercises for her lumbar spine with a physiotherapist and to her starting hydrotherapy in January (presumably 2019). There is also reference to her knee treatment.
27 A report of Dr Stockman to the plaintiff’s solicitors was put in evidence as part of the Defendant’s Court Book. The report is dated 12 July 2019. It is apparent from this report that the plaintiff was undergoing physiotherapy and hydrotherapy. Dr Stockman commenced the plaintiff on Meloxicam, which is an anti-inflammatory medication. He had first seen her on 21 December 2017. When reviewed on 23 January 2018, she was a little better. When seen on 1 November 2018, the plaintiff continued to suffer from low back pain, worse during the night and first thing in the morning. She had been walking for one hour a day, but could only do it very slowly. Steroid injections into the knees had helped her pain for approximately three months, but the symptoms had recurred.
28 Upon examination, the plaintiff had some limitation of movement of the lumbar spine in all directions, but normal straight leg raising. Leaving to one side treatment for her knees, further physiotherapy and core strengthening exercises for her lumbar spine were recommended, along with hydrotherapy. When reviewed on 3 June 2019, the plaintiff continued to complain of low back pain, more to the left than the midline, in addition to left knee and shoulder pains. The plaintiff reported that her low back pain had remained unchanged, and was worse when standing and when getting up from a chair. She was attending physiotherapy and hydrotherapy.
29 When seen on 7 July 2019, the plaintiff’s low back pain had remained unchanged. She was unable to bend and her husband had to help her put on her socks. She was also complaining of shoulder, neck and knee pain. She was taking two tablets of Panadol Osteo twice a day. Upon examination, all movements of the lumbar spine were reduced, including pain on flexion.
30 Dr Stockman referred to the plaintiff having pre-existing conditions of diabetes, hypertension and depression. In relation to her back, his diagnosis was of lumbar spondylosis/disc degeneration. He was of the view that the transport accident was likely to have caused neck and lumbar back pain, but the lumbar back pain and pain in her knees seemed to be her major problem. He considered it probable that the accident had significantly aggravated pre-existing degenerative but asymptomatic changes in the lumbar spine. He regarded it as unlikely that the accident had caused knee pain or left shoulder pain. Dr Stockman reported that the low back pain is present most of the time and is aggravated by physical activities. The plaintiff cannot stand or sit for long periods of time and cannot bend or lift.
31 In relation to these observations, Dr Stockman seems to have considered the back problems in isolation, as he refers to there being further disability in the knees, left shoulder and cervical spine. He also refers to the plaintiff’s quality of life as having been significantly aggravated by the conditions resulting from the transport accident, although again stating that, in relation to her knees, those problems were unlikely to be related to the accident.
32 Dr Stockman expressed the view that the plaintiff’s condition had stabilised and was unlikely to improve significantly in the foreseeable future. Her incapacity was likely to continue.
33 The defendant placed in evidence some reports from Dr Mya Tun, geriatrician and general physician, who appears to be attached to the Sunshine City Medical Centre where Dr Navani is also located. These do not take matters a great deal further, dealing more with the plaintiff’s mental health, although there are references to chronic back pain and degenerative disc disease. One such reference is to the effect that the plaintiff has chronic back and leg pain, which was currently being treated by Dr Stockman and with physiotherapy. The plaintiff’s back movement was described as being quite limited, with flexion of only 40 degrees, forward flexion of only 60 degrees, and backward flexion of 30 degrees. The plaintiff’s twisting bilateral movements were also quite limited.
34 The defendant placed in evidence a report from Dr Ashok Kumar Singh, consultant psychiatrist, who also appears to be based at Sunshine City Medical Centre. This relates virtually entirely to the plaintiff’s Bipolar Affective Disorder and mental health generally. There is a reference to major physical health issues.
35 The plaintiff has also been examined for medico-legal purposes. Mr John O’Brien, orthopaedic surgeon, first saw the plaintiff at the request of her solicitors on 19 October 2016. He took an appropriate history. This included that the plaintiff suffered significant pain following the accident and that this was predominantly in the lower back. The plaintiff complained of continuing to experience quite severe pain in her lower back, particularly extending to her right buttock. She described her low back pain as being constant.
36 Mr O’Brien was aware of the fact that, prior to the accident, the plaintiff had significant psychiatric problems. He did not regard physical signs alone as explaining the “extreme disability” that was now reported. He stated that there was certainly some restriction of movement, both in the cervical and lumbar spines, suggesting the presence of underlying spondylosis.
37 Mr O’Brien was of the opinion that the plaintiff would benefit from an extensive rehabilitation program. He did not consider that she required any specific investigations or significant analgesic medication. Indeed, given the lack of information which he had received (he was of the belief that no radiological investigations had been undertaken since the accident), he thought that the plaintiff had no residual impairment in relation to the musculoskeletal system which directly related to the accident.
38 However, Mr O’Brien re-examined the plaintiff on 25 June 2019. He noted that the plaintiff continued to experience constant low back pain extending into both buttocks and being aggravated by any activity, and in particular by walking. She gave a history of ongoing treatment by way of the use of analgesic medication and, over the previous three months, physiotherapy including acupuncture and massage. These treatments gave minimal temporary relief of her constant back pain. She also told Mr O’Brien that she had constant low back pain extending across the lower back into both buttocks. It was aggravated by prolonged sitting and standing, in addition to being aggravated by walking, bending or lifting. The back pain was severe at night, the severity reaching 8/10, and this caused significant disturbance of sleep. She also complained of shoulder pain and knee pain when walking. In respect of her lower back pain, she took approximately four Panadol Osteo per day. On this occasion, Mr O’Brien did have access to the various radiological investigations. He indicated that the current signs would suggest that the reported chronic back pain related to the aggravation of pre‑existing lumbar spondylosis. Historically, it would appear that the clinical condition was consistent with the stated cause. He also expressed the opinion that the presence of multiple medical problems may have resulted in limited attention being given to what was described as chronic back pain. Physiotherapy had not assisted, and it would be likely that the plaintiff’s ongoing treatment for back pain would be confined to the use of appropriate analgesic medication. He considered the prognosis in relation to the plaintiff’s back pain to be poor. It was likely that the current level of symptoms will persist. Mr O’Brien found it difficult to quantify the degree of incapacity contributed to by the low back pain and thought that there was no clear evidence to suggest that the back pain, as a single symptom, would produce total incapacity. It would have what he considered to be a mild impact on the plaintiff’s general social, domestic and recreational activities (this final observation does not seem to fit in particularly well with what had gone before).
39 Leaving to one side the reports from Dr Nigel Strauss, consultant psychiatrist, the plaintiff has had no other medico-legal examinations organised by her solicitors. However, the defendant arranged for her to be seen by Dr Robert Lefkovits, consultant physician, who saw her on 19 August 2019. Dr Lefkovits took a history of the accident, including complaints by the plaintiff of worsening lower back pain radiating to the left buttock and intermittently down the left leg. It is apparent that Dr Lefkovits had some difficulty in obtaining a history from the plaintiff. As earlier stated, whilst the plaintiff was somewhat vague, Dr Lefkovits felt that she was a genuine witness. She had marked restriction of movements of the lumbar spine in all directions. There was no evidence of nerve root irritability. Dr Lefkovits viewed at least some of the radiology reports. He expressed the opinion that the plaintiff had suffered aggravation of constitutionally-based degenerative disease of the lumbar and lumbosacral spine without radiculopathy. She had other comorbidities. She continued to suffer symptomatic restriction of back movements. He felt that the changes noted radiologically in the lumbar spine were not caused by injuries sustained in the accident, but were more likely to have been rendered symptomatic and aggravated by it.
40 As the plaintiff’s pains had been continuous and there had been regular attendances upon her general practitioner, and given that she had ongoing back and left lower limb issues, Dr Lefkovits expressed the view that it would be reasonable to assume that the aggravation was a permanent aggravation. He thought that there could be contribution by significant non-organic issues to her presentation and perceived level of physical disability. The prognosis of the aggravation of the lumbar spine was that it would basically remain symptomatic with ongoing restriction of mobility and requiring symptomatic treatment. On the basis of what he was told and the presentation of the plaintiff, Dr Lefkovits thought that she would have difficulty with a number of domestic chores and would struggle with activities of daily living. He stated that these difficulties were compounded by the knee symptoms and were not entirely due to her back complaints. He also stated that the accident-related injuries made it more difficult for her to undertake any leisure activities. His overall conclusion was that there were ongoing residual symptoms relating to the accident, predominantly because of ongoing aggravation of degenerative disease in the lumbar spine without radiculopathy.
41 For the moment, I shall leave to one side the medico-legal reports from Dr Nigel Strauss and from Dr Justin Lewis, who examined on behalf of the defendant. Both are consultant psychiatrists.
42 In this somewhat complex and unusual case, I accept the diagnosis of aggravation of degeneration in the lumbar spine. It is the diagnosis of the treating general practitioner, Dr Navani. Essentially, it is also that of the treating rheumatologist, Dr Stockman. Whilst there is perhaps some understandable confusion in the reports of Mr O’Brien, ultimately he expressed the view that the plaintiff’s current signs would suggest that the reported chronic back pain related to aggravation of pre‑existing lumbar spondylosis. Similarly, Dr Lefkovits diagnosed aggravation of constitutionally-based degenerative disease of the lumbar and the lumbosacral spine. Effectively these diagnoses coincide and I accept them.
43 I am also of the view that the plaintiff’s lumbar spine was previously asymptomatic. While she had had various health issues, both physical and mental, I can find little or nothing in the evidence to suggest that the plaintiff had any previous symptoms emanating from her low back. In the present case, the plaintiff is not relying upon any injury to the knees. Accordingly, the issue of possible aggravation of symptoms or conditions in the knees does not arise, save that symptoms and restrictions arising from those joints are not compensable. However, they can represent contributing factors to the plaintiff’s overall incapacity, with a potential for necessary disentanglement. The same can be said of any health problems relating to the shoulders.
44 Returning to the issue of the plaintiff’s compensable symptomatology, I accept that she was free from symptoms and restrictions emanating from her low back prior to the accident. Essentially, there was no suggestion to the contrary.
45 I am satisfied that the consequences of the injury are long term within the meaning of the Act. Whilst Dr Navani has not given separate assessments in relation to the back and the knees, he has stated that, collectively, they represent a permanent impairment and have stabilised. Dr Stockman has stated it is very likely that the plaintiff’s condition has stabilised and is unlikely to improve significantly into the foreseeable future. Given that he considered the condition of the plaintiff’s knees to be unlikely to be related to the accident, this prognosis appears to be directed to any injury sustained or significantly aggravated as a result of the accident. Thus, he would appear to be addressing the prognosis for the back injury. Mr O’Brien has stated that the prognosis in relation to the plaintiff’s back pain could be regarded as poor and it was likely that the current level of symptoms will persist. Dr Lefkovits, examining on behalf of the defendant, expressed the view that the prognosis of the aggravation to the lumbar spine is that it will basically remain symptomatic with ongoing restriction. I am satisfied that the symptoms and restrictions suffered by the plaintiff in respect of the injury upon which reliance is placed, and without taking into account other conditions and restrictions from which she suffers, are long-term within the meaning of the Act.
46 As stated, the plaintiff is not relying upon paragraph (c) of the definition, but the decision in Richards v Wylie is to be borne in mind. In this regard, the diagnosis of Dr Strauss was that the plaintiff suffered from a Bipolar condition which had developed before the motor vehicle accident and may have been aggravated by it. He also referred to post-traumatic stress symptoms. Whilst he made an assessment of her psychiatric impairment, he also stated that only some of her psychiatric impairment is consistent with the accident. He also stated that there was nothing to suggest that she was deliberately over exaggerating her problems. In his supplementary report, this being of 19 September 2019, Dr Strauss expressed the opinion that the plaintiff’s alleged Bipolar condition was now well controlled, but she probably still has a somatic symptom disorder which is psychologically based and which is perpetuating her pain. He related this to the accident.
47 Dr Justin Lewis, consultant psychiatrist, examined the plaintiff at the request of the defendant on 13 September 2019. He was aware of the fact that the plaintiff had been diagnosed as suffering from a Bipolar disorder prior to the accident. She had also mentioned a depressive episode in approximately 2014. He commented that there were no significant generalised traumatisation symptoms relevant to the accident, but noted that her anxiety symptoms are largely confined to the vehicular settings. Dr Lewis was of the view that, in relation to the accident, the plaintiff had developed a mild adjustment disorder in the context of pain and physical restrictions. The prognosis was for some ongoing mood-related issues for as long as the plaintiff had to contend with pain and restrictions. Her pre‑existing mood disorder and cognitive difficulties partly accounted for her current presentation, but Dr Lewis was of the view that it was not possible to determine specifically the extent of this. Overall, his conclusion was that she had developed a new onset psychiatric condition, namely a mild transport-related adjustment disorder. Such condition had been superseded by cognitive decline in the context of probable dementia.
48 The overall conclusion which I have reached in this regard is that the plaintiff had major psychological or psychiatric problems prior to the accident, but that, as opined by Dr Strauss and, to some extent, by Dr Lewis, she has a somatic symptom disorder resulting from the accident. Whilst, in accordance with Richards v Wylie, this can be taken into account, I do not see it as a major factor and there is no doubt but that the plaintiff suffered from very significant mental health problems prior to the accident.
(e) Other developments since the accident
49 It is apparent from the material tendered by the defendant that, on 4 March 2017, the plaintiff was involved in a fall on an escalator. It would seem that, as a result, the plaintiff suffered from pain in the neck, shoulder and thighs. However, it has not been suggested that this is of any particular relevance.
50 I would also accept that there has been a deterioration in relation to the plaintiff’s mental health to the extent that it was thought appropriate that a litigation guardian be appointed. No development of any significance would appear to have occurred in relation to her back condition and symptoms.
Ruling
51 As earlier stated, this is an unusual case, bearing in mind that the plaintiff has not been able to give evidence or to be cross-examined. However, I am of the view that she has discharged the burden of proof. I have come to that conclusion for the following reasons, which are not listed in order of importance or significance.
(a) As was said by Brooking JA in Palmer Tube Mills Aust Pty Ltd v Semi [1998] 4 VR 349 [448]:
“Moreover, in ‘serious injury’ applications the credit of the applicant is of great importance,”
This observation has been referred to more recently by the Court of Appeal in Papamanos v Commonwealth Bank of Australia [2014] VSCA 167 and in Haidar v Transport Accident Commission [2016] VSCA 182.
Not having seen the plaintiff or observed her during cross-examination, an assessment of her credibility is more difficult than usual. I am at least to some extent reliant upon the impression which she formed upon examining doctors before there was the necessity for a litigation guardian and upon the credibility of that guardian. In relation to the former, I have already set out the comments of some medical examiners who have had the opportunity of seeing her prior to the appointment of a litigation guardian. I would point out again that Dr Strauss referred to her as being helpful and cooperative, with no suggestion of deliberate over‑exaggeration. Dr Lefkovits found her to be a genuine witness. There is nothing in the report of the plaintiff’s treating general practitioner, Dr Navani, that suggests that the plaintiff is anything other than a person delivering an honest presentation. In the circumstances, I accept that the plaintiff is a witness of truth. In addition to what she said in medical examinations, this finding is also applicable to what is contained in her affidavit of 30 May 2018.
As earlier stated, the credit of the plaintiff’s husband and litigation guardian was the subject of some criticism in the closing address of counsel for the defendant. However, and again as earlier stated, I formed the impression that he was doing his best to give accurate evidence and is well placed to describe the plaintiff’s restrictions, pain and suffering. In short, I accept the affidavit evidence of the plaintiff. I accept the oral evidence, and the evidence contained in the affidavits, of her husband, the litigation guardian.
(b) In her affidavit of 30 May 2018, the plaintiff has referred to the fact that she still has pain in her lower back, mostly on the left side. The pain is worse in the morning. She has to be helped to get out of bed. She cannot sit for too long, as this aggravates the pain in her back.
To her treating rheumatologist, Dr Stockman, the plaintiff complained of pain which was present most of the time and frequently woke her during the night. It was aggravated by standing or sitting for any length of time. To Mr O’Brien, the plaintiff described constant low back pain extending across the lower back and into both buttocks. She referred to various aggravating features. She informed Dr Stockman that the low back pain was present “most of the time”. When examined by Dr Lewis, she described her pain as constant, tending to be worse on the left, and with her pain symptoms being worse in the morning. Dr Tun recorded that the plaintiff has chronic back and leg pain. In his affidavit of 1 November 2019, the plaintiff’s husband has referred to the plaintiff as complaining “very often” about having significant back pain, frequently complaining of aching or burning pain. She tells him this at least three to four times per day.
(c) As was said in Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12:
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
In the present case, it seems to me clear that the plaintiff has permanent daily pain. In respect of the frequency of her medication, she takes regular Panadol Osteo which, as sworn to by her husband, is mostly related to her back pain. When the plaintiff swore her affidavit of 30 May 2018, Dr Navani was prescribing Mobic and Panadol Osteo and appears to have been seeing the plaintiff on a weekly basis.
(d)In Hayden Engineering Pty Ltd v McKinnon [2010] VSCA 69, Maxwell P stated as follows:
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep.”
In her affidavit of 30 May 2018, the plaintiff has sworn that she has trouble sleeping. The pain distracts her from getting to sleep. To Dr Strauss, she stated that she struggled to sleep on her left side because of pain and when she does sleep, that sleep is broken. She wakes frequently because of the pain. Admittedly, to Dr Lewis the plaintiff seems to have stated that she had good quality sleep. However, I note that this was said by her at an examination after the appointment of her litigation guardian. Further, this statement is in contrast to the somewhat detailed description given to Mr O’Brien. To him, the plaintiff stated that the back pain was severe at night, the severity reaching 8/10, and this caused significant disturbance of sleep. To her treating rheumatologist, Dr Stockman, the plaintiff stated that pain was frequently waking her up during the night. Certainly, in his affidavit of 1 November 2019, the litigation guardian has sworn that the plaintiff’s back pain significantly impacts her ability to get a restful sleep. She cannot sleep on her back due to back pain and prefers to sleep on her sides. According to her husband, she is often turning from side to side and does not lie flat on her back. She complains that she does not get a good sleep because she cannot get comfortable. The plaintiff’s husband goes on to affirm that her sleep difficulties are a problem apparently caused by her back pain.
The plaintiff’s husband and litigation guardian also rejected the proposition that the plaintiff was having difficulty sleeping because of pain in her knees prior to the accident – see T25. Indeed, the plaintiff’s husband was cross-examined at some length about the issue of interference with sleep, but was not shaken from his evidence that it was “all caused by her back” – see T31 and following pages.
(e)Consequences of the injury have impacted upon the plaintiff’s everyday life. She has problems dressing. She has to be assisted from the couch. Back pain makes it difficult for her to get up. She has problems getting in and out of a car. She has difficulties with either picking things up from the floor or reaching up to get things from overhead shelves or cupboards. She is very limited in looking after her young grandchildren and I accept that this is very upsetting for her. As she has sworn, her family is a very important matter for her. In short, the back injury has had a great impact upon the plaintiff’s everyday life and activities, including those with her family.
(f)Whilst psychological or psychiatric consequences may not play a predominant role in the plaintiff’s pain and suffering, in accordance with Richards v Wylie, they can be taken into account. As stated by Dr Strauss, the psychiatric problems are complex because of the pre‑existing diagnosis. However, he accepted that her psychiatric problems had settled to a significant degree before the accident and had been exacerbated by the effects of it. Dr Lewis stated that there appeared to be a clear correlation between the plaintiff’s mood and the extent to which the transport accident contributed to her pain, physical restrictions, and difficulties with her activities of daily living. He referred to her as having developed an adjustment disorder with depressive features of mild severity, consequent to the pain and physical restrictions. Matters such as this can be taken into account, although as stated, they do not seem to me to be major factors.
(g)Matters relating to her knees have not been taken into account. My findings in relation to the discharge of the burden of proof is based solely upon the consequences of the back injury.
52 Bearing in mind all of the above, I find that the plaintiff has discharged the burden of proof. She has satisfied the requirements of the test set out in Humphries v Poljak.
53 In conclusion, the plaintiff is successful. She has discharged the burden of proof. Leave is granted to her to bring proceedings. I shall hear the parties as to any ancillary orders that are required.
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