Fuller v TAC
[2015] VCC 797
•19 June 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
COMMON LAW DIVISION
SERIOUS INJURY LIST
Case No. CI-13-04565
DENISE FULLER
| Plaintiff | |
| V | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 & 9 February 2015 | |
DATE OF JUDGMENT: | 19 June 2015 | |
CASE MAY BE CITED AS: | Fuller v TAC | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 797 | |
REASONS FOR JUDGMENT
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Subject: Serious injury application
Catchwords: Application for leave to recover damages – whether serious long-term impairment of the spine and/or severe long-term mental disturbance or disorder due to transport accident - whether pecuniary disadvantage consequences of compensable injury amounted to serious injury – issues of credit
Legislation Cited: Transport Accident Act 1986
Cases Cited:Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, Humphries v Poljak [1992] 2 VR 129, Richards v Wylie [2000] VSCA 50, Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181, Mazevskav Transport Accident Commission [2014] VSCA 176
Judgment: Plaintiff’s application for leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T. Tobin S.C. with Ms A. Spitzer | Maurice Blackburn |
| For the Defendant | Mr P.B. Jens S.C. with Mr L. Allan | Wisewould Mahoney Lawyers |
HER HONOUR:
Introduction
1 The plaintiff, is 46 years of age. The plaintiff was initially educated in Germany and, after her family moved to Sydney in 1986, she completed Year 12. She currently lives in Victoria
2 After leaving school the plaintiff completed the equivalent of a Diploma in Childcare at a TAFE college and then worked for some 10 years as a child care worker. She married and, following the birth of her daughter in 1998, the plaintiff remained out of the workforce for some years.
3 The first of two affidavits tendered in this proceeding contains the plaintiff’s work history. She deposed that in about 2005 she commenced working three days per week at a bakery performing physical tasks, involving customer service, loading and unloading trays of pies into ovens, clearing cutlery and washing dishes. However, cross-examination elicited responses from the plaintiff through which she revealed earlier employment in a crèche from about 2004, working 3 hours per day, five days per week. Unlike the income earned when working at the bakery, the cash income received in the crèche job was undeclared income.
4 On 7 September 2007, the plaintiff was injured in a transport accident. At the time a vehicle attempting a U-turn collided with the passenger side door of the vehicle in which the plaintiff was a front seat passenger (the transport accident).
5 The plaintiff was taken by ambulance to the Dandenong Hospital where she remained under observation for some hours until being allowed to go home.
6 Whilst at hearing the plaintiff was uncertain about whether she attended her usual general practitioner, Dr Freund, the next day or a week later in the treatment of what she deposed was lower back pain radiating into her buttocks and the back of her thighs, other evidence indicated that her injuries were likely treated by this doctor over a period of some months.[1] The plaintiff claimed that, during this period, Dr Freund prescribed pain killing and anti-inflammatory medication (when pressed she was not able to identify these medications by name[2]) and referred her for physiotherapy treatment. The plaintiff said she ceased physiotherapy treatment after three sessions because it had not alleviated symptoms of severe and persistent back pain.
[1] Exhibit P3, Plaintiff's Court Book (PCB), PCB 7
[2] Transcript (TN) 57
7 Despite the absence of any report from him, other documentary evidence confirmed that Dr Freund arranged for radiological investigation of the plaintiff’s lumbosacral spine and coccyx. The report addressed to this doctor following X-ray examination on 1 December 2007 revealed advanced disc degeneration and narrowing at the L5/S1 level.[3] CT scans from L1 to S1, performed on 13 December 2007, relevantly supported reported the x-ray findings, by reporting as follows:[4]
… the L5-S1 disc space is markedly narrowed with small Schmorl’s nodes. There is a central and left para-central disc protrusion with some disc calcification, although this is not causing significant neural compromise at this stage. There is mild osteophytic encroachment of the right neural exit foramen at this level.…
[3] PCB 89
[4] PCB 88
8 Many of the medical reports submitted also mentioned MRI imaging of the plaintiff’s lumbar spine on 12 December 2008. Whilst the reported results of this imaging were not tendered, I was satisfied from reading various medical reports that the results of this imaging probably also confirmed long-standing disc degeneration at the L5-S1 level.
9 There was no history of pre-existing back pain, notwithstanding the underlying pathology revealed, or for that matter, any earlier history of psychological problems. Indeed, by the plaintiff’s account, prior to the transport accident, in addition to working part-time in the bakery and caring for her young daughter, she had enjoyed coaching skipping, snow skiing, bike riding with her daughter, socialising with family at meals and attending movies.
10 The medical material from both sides, tendered by the plaintiff and discussed in more detail in due course, has indicated that the transport accident likely rendered symptomatic a pre-existing, asymptomatic lower back degenerative condition and likely also gave rise to some psychological sequelae in association with the trauma suffered and the pain and impairment associated with the lower back condition.
11 The plaintiff claimed that, as a result of the injury to her lower back, she currently suffered almost constant aching in her lower back, aggravated by activity and she continued to suffer from psychological sequelae. She claimed that, additional to its long-term impact on her domestic, social and recreational activities, lower back pain and impairment had caused pecuniary disadvantage consequences.
12 According to her first affidavit, the plaintiff was unable to work for a week due to her injuries and when she returned to the bakery she required pain killing medication to cope with her duties.[5] After returning to work, the plaintiff claimed she had been criticised for being slow by other bakery staff and, during a family holiday in Sydney in January 2008, contrary to her doctor’s advice, the plaintiff stopped taking pain killing medication for a month. Abstinence from pain killing medication had, the plaintiff said, given her a greater understanding of the extent of her injury-related pain.[6]
[5] PCB 8
[6] PCB 8-9 and TN 57-58
13 The plaintiff alleged that her intention to return to full-time work in due course had been thwarted by long-term impairment of her spine which precluded part-time or full-time work in her pre-injury work in the bakery or in childcare. There were two further unsuccessful attempts to return to work, one in retail work and the other working in a coffee shop, prior to the plaintiff establishing her own business working from home as a Reiki practitioner. According to the plaintiff, Reiki involves the practice of energy healing by the laying on of hands.[7] The plaintiff, nonetheless, alleged a likely long-term loss of earnings.
[7] TN 43-44
The application
14 The plaintiff sought leave to commence common law proceedings pursuant to section 93 of the Transport Accident Act 1986 (the Act). She was required to satisfy the Court that injury to her spine caused by the transport accident was serious as at the date of determination of the application for leave.
15 The application was made under paragraphs (a) and (c) of the definition of “serious injury”, although in opening her case the plaintiff’s senior counsel told the Court the claim was made principally under paragraph (a).
16 Sub-section 93(17)(a) and (c) of the Act define serious injury as: “serious long-term impairment or loss of a body function” or as: “severe long-term mental or severe long-term behavioural disturbance or disorder” respectively. Serious injury is determined by considering the consequences of either an injury-related impairment or loss of body function or of injury-related mental or behavioural disturbance or disorder.
Under paragraph (a) the plaintiff was required to establish that the pain and suffering and/or pecuniary disadvantage consequences of injury to her spine were both long-term and serious to her. The test was whether the consequences, when judged by comparison with other cases in the range of possible impairments or losses, could be fairly described as at least “very considerable” and certainly more than “significant” or “marked”.[8]
[8]Humphries v Poljak [1992] 2 VR 129, 140
17 Under paragraph (c) the plaintiff was required to establish that the consequences of injury-related mental or behavioural disturbance or disorder were both long-term and severe, the latter connoting something “of stronger force” than the word: “serious”.[9]
[9]Mobiliov Balliotis [1998] 3 VR 833, 834-5 and 846
18 Where, as in this case, it was alleged that the dominant cause of the plaintiff’s condition resulted from the injury to her spine, the plaintiff’s current pain and suffering consequence of ongoing impairment of her spine was also to be measured in part by any psychological response or recognisable mental reaction to this.[10] In this regard, the plaintiff alleged that she had suffered an adjustment disorder reactive to her physical injury.
[10]Richardsv Wylie [2000] VSCA 50 and Transport Accident Commissionv Kamel [2011] VSCA 110
19 The recent decision of the Court of Appeal in Mazevskav Transport Accident Commission,[11] among other things, instructs that, when evaluating the consequences of injury suffered as a result of a transport accident, the Court must also consider whether the plaintiff had established pecuniary disadvantage consequences of compensable injury, which amounted to serious injury. In this case, the plaintiff alleged she was doing all she could to engage in employment through the practice of Reiki and had not been able to identify other employment, which was available to her and accommodated her limitations.
[11] [2014] VSCA 176 [21]
The dispute
20 The Transport Accident Commission (TAC) accepted that the plaintiff had suffered an aggravation injury to her lower back as a result of the transport accident. The TAC paid medical expenses until about 2009 and evidently paid the plaintiff for loss of earnings until about mid-2009. The plaintiff conceded she had not asked the TAC to fund any form of ongoing treatment since 2009.
21 Broadly speaking, the issues in dispute in this application were whether:
(i) the application should be dealt with under paragraph (c) because the dominant cause of the claimed back pain was likely non-organic. As my discussion of the evidence shows in due course, this did not support a finding that the dominant cause of ongoing lower back pain was psychological;
(ii) the pain and suffering consequence of injury to the lower back met the narrative test for serious injury under the Act;
(iii) any pecuniary disadvantage consequence amounted to serious injury under the Act;
(iv) the mental consequences had been sufficiently disentangled from the physical consequences of injury to the plaintiff’s spine.
22 The plaintiff’s credit was attacked. The TAC submitted the Court should treat her evidence as unreliable, specifically her evidence relating to any pain and suffering and pecuniary loss consequence. I concluded the plaintiff’s evidence was unreliable. This unreliability, manifested particularly in the responses she gave about the operation of the business and entries made in the only Cash Book produced, the latter containing mostly carbon copy invoices sequentially numbered 1 to 100.[12]
[12] TN 76-77 and 102-110
23 Under cross-examination the plaintiff claimed she had entered cash payments received from clients in the calendar years 2013 and 2014 in the Cash Book (she later recalled that some clients also did telephone banking). The original invoice from the Cash Book was given to the client (or discarded if they did not want it) and the plaintiff retained the carbon copy. The latter was, the plaintiff said, the basis of the tax returns prepared on her behalf by her accountant in the financial years 2013 and 2014.
24 As it turned out, the plaintiff eventually conceded the Cash Book, in which many entries were recorded out of date sequence, made no sense at all. She, nonetheless, claimed these were errors and the result of honest mistakes.
25 Based on all of the evidence and even with allowance for some impact on the plaintiff’s ability to recall events due to the passage of time as well as some ongoing mental health issues identified in the medical evidence, I formed the view that the plaintiff’s evidence in this regard was untenable. I will explain more fully my reasons for my finding which, necessitated careful consideration of all other evidence corroborative of the claimed consequences.
26 The TAC also drew attention to the absence of up-to-date medical evidence from current treating practitioner/s and the absence of any medical evidence from various treating specialists. The TAC submitted the Court should infer from the latter omissions that evidence from these treating specialists would not have assisted the plaintiff’s case. My findings on the failure to adduce evidence from each of the practitioners identified in the evidence are indicated in due course.
The evidence
27 Whilst the plaintiff was cross-examined about the content of various documents, the TAC did not tender any documentary evidence.
28 The plaintiff deposed to the accuracy of two affidavits sworn in 2011 and 2015. She was cross-examined at length. No corroborating affidavit material was tendered.
29 The plaintiff tendered an Appointment Diary for 2014[13] and, as mentioned, the Cash Book for the calendar years 2013 and 2014[14] for her business: ‘Butterfly Healing Effect’. In addition to her affidavit material, the plaintiff tendered from her Court Book:
[13] Exhibit P1
[14] Exhibit P2
· medical reports prepared by treating general practitioners (between January 2008 and his retirement in 2010) Dr O’Toole and Dr Akhter; treating rehabilitation physician, Dr Palit; treating psychologist, Ms Anderson and prepared by medico-legal experts, orthopaedic surgeon Mr Simm, occupational physician, Dr Horsley and psychiatrist, Dr Weissmann;
· two reports of the results of the radiological investigations already mentioned above;
· a report from Flexi Personnel;
· a Summary of Tax Returns for the years 2006 to 2014 inclusive and copy Tax Returns for the financial years ending 30 June 2013 and 2014.[15]
[15] Exhibit P3
30 The plaintiff also tendered from the TAC’s Court Book, a report of its medico-legal specialist, orthopaedic surgeon, Mr Lugg who, at the request of the TAC, examined the plaintiff on one occasion only, on 6 May 2014.[16]
[16] Exhibit P4
Treatment and return to work following the transport accident
31 The absence of a report from general practitioner, Dr Freund, whom the plaintiff claimed had not wanted to be involved with the TAC claim, was of little moment in deciding this application. Firstly, other evidence pointed to likely treatment and investigation of ongoing lower back injury by this doctor following the transport accident until December 2007; secondly, this doctor did not treat the plaintiff for injury suffered in the transport accident beyond December 2007 and, lastly, as earlier mentioned, the TAC had accepted the claim for an aggravation injury and paid transport accident related expenses and loss of income until 2009.
32 In his only report dated 4 December 2010, addressed to the plaintiff’s solicitors,[17] Dr O’Toole explained the circumstances under which he came to treat the plaintiff for low back pain. He said the plaintiff presented on 16 January 2008 complaining of back pain since the transport accident. The pain evidently radiated to her buttocks and down her legs and was, the plaintiff reported, aggravated by physical activity.
[17] PCB 19-20
33 Clinical examination relevantly revealed a restricted range of spinal and hip movements and tenderness in the hip joints.
34 During January 2008 the plaintiff again presented, this time complaining of insomnia in the treatment of which Dr O’Toole said he prescribed Endep.
35 On 31 January 2008 the plaintiff was assessed at Epworth Rehabilitation by rehabilitation specialist, Dr Palit on referral from Dr O’Toole. As Dr Palit’s only report dated 16 December 2010 revealed,[18] during this assessment the plaintiff complained of central lower back pain radiating into the buttocks and hamstring regions in both lower limbs and progressively worsening thoracic spine and shoulder stiffness. Physical examination reportedly produced complaint of pain in all planes of lumbar spine movement, particularly forward flexion.
[18] PCB 21-24
36 Dr Palit concluded the plaintiff was suffering from a chronic hyperextension flexion (whiplash) type injury of the spine. Having also considered the plain x-rays and the CT scan, this doctor reported he could not exclude the possibility that all of the pathology revealed by the radiology had pre-existed the transport accident.
37 However, as we know from the most recent medico-legal evidence of orthopaedic specialists retained by the plaintiff and the TAC, Mr Simm and Mr Lugg respectively, in their opinion the transport accident likely aggravated pre-existing asymptomatic degenerative changes at the L5-S1 level, without there being evidence of radiculopathy.[19]
[19] PCB 39 and Exhibit P4 respectively
38 The plaintiff participated in a rehabilitation program until early June 2008, which Dr Palit said had resulted in her reporting fewer episodes of exacerbation of pain, reduction in the time spent resting due to pain and in her need for analgesic medication, improved participation in domestic and community access tasks and a slight increase in the plaintiff’s single lift manual handing capacity from 8 to 11 kg.
39 When re-examined for the last time by Dr Palit on 6 October 2008, the plaintiff reported increased pain due to her greater involvement in activity with children over the school holidays, a need for medication, Amitriptyline, to combat poor sleep but better problem solving around her pain issues. At the time, the plaintiff was waiting for the TAC to arrange vocational assessment of her suitability for employment other than in her pre-injury work in the bakery.
40 In short, in October 2008, the plaintiff remained unfit to return to the more physically demanding duties involved in frequent lifting of weights whilst employed by the bakery in customer service. These duties were considered beyond the plaintiff’s observed capacity. Dr Palit opined that pain would continue to limit the plaintiff’s activities and likely lead to her seeking treatment in the future. This specialist, however, foresaw a future in sedentary employment after occupational retraining.
41 As to the plaintiff’s mental state following the transport accident, Dr O’Toole reported that, in July 2008, the plaintiff attended, complaining of psychological symptoms involving insomnia, nightmares, a recent panic attack, depressed mood, problems with her short-term memory and level of concentration and loss of motivation. He apparently referred the plaintiff to psychiatrist, Dr Hogan, whom the plaintiff deposed she consulted once and was advised by him to consult a psychologist.[20] Dr Hogan was one treating doctor from whom no report was produced.
[20] PCB 8
42 In her only report dated 21 March 2011, psychologist, Ms Anderson advised that the plaintiff had been referred by Dr O’Toole for the treatment of a driving phobia and had attended 9 sessions between 30 September 2008 and 21 April 2009.[21]
[21] PCB 25-27
43 Ms Anderson diagnosed a pain disorder associated with both psychological factors and a general medical condition, a post-traumatic stress disorder and an adjustment disorder with mixed anxiety and a depressed mood. She apparently employed cognitive behavioural therapy in the treatment of the symptoms of anxiety and depression and behavioural therapy in the treatment of the plaintiff’s reported phobia regarding driving.
44 In her first affidavit the plaintiff deposed she stopped seeing Ms Anderson because constant talk about the transport accident exacerbated her depression. When she swore this affidavit in August 2011, the plaintiff deposed she was still experiencing anxiety and nervousness either as a driver or as a passenger but no longer suffered panic attacks.
45 I note that, according to Ms Anderson, the plaintiff had responded well to therapy. She had reported fewer panic attacks and an ability to drive greater distances and more frequently. This is not to deny, however, that in April 2009 Ms Anderson believed the plaintiff was psychologically unfit for work because she still presented with severe anxiety and depression.
46 In view of the circumstances described above I did not place any particular significance on the plaintiff’s failure to also produce a report from Dr Hogan, a psychiatrist whose therapeutic relationship with her had likely been very limited.
47 The report dated 23 December 2014, prepared by recruitment training consultant, Flexi Personnel among other things, recorded that in 2009 the plaintiff had been assisted by a vocational assessment provider in producing a resume and covering letter, in identifying suitable jobs and in submitting applications. It appears that, at the time, the plaintiff was advised by vocational assessment provider that her computer skills were inadequate.[22]
[22] PCB 81
48 Under cross-examination, the plaintiff said that Dr O’Toole probably knew the most about her condition. Dr O’Toole reported that when last seen by him in mid-July 2010, the plaintiff’s back pain and depression were not resolved. He considered her prognosis to be guarded.
49 However, based on the evidence as a whole, I could not be satisfied that when Dr O’Toole also wrote that his patient was unfit for work he was cognisant of her work and retraining activities from the latter part of 2009 onwards. According to the plaintiff’s sworn and oral evidence, for about 6 months from about mid-2009 and possibly into 2010, until she suffered a panic attack when driving to work, she had worked full-time managing a friend’s shop selling New Age products. During the same period, the plaintiff said she completed Levels I and II and Masters Courses in Reiki (training, the plaintiff said, involved 6 days in total), with the intention of starting her own business and practising this discipline from home.
50 The plaintiff said the work in her friend’s shop had been less physically demanding than the duties performed at the bakery because she was able to sit for long periods. However, the plaintiff claimed to have fallen-out with her friend after quitting her job on the day she suffered the panic attack.
51 Whilst the year in which this occurred was not clear from the evidence, at some later stage, the plaintiff commenced her own business practising Reiki from home.
52 Under cross-examination, among other things, the plaintiff indicated: [23]
[23] TN 60-62, 74-81 and 91-95
· she had wanted to go back to work when she accepted the job in her friend’s shop;
· her friend (with whom she had done the Reiki course) had required her to work full-time;
· the shop had been some minutes away from her home by car;
· agreement with the proposition that had she not suffered a panic attack she probably would have continued her work in the New Age shop. I infer from this evidence that the plaintiff then considered herself physically capable of working full-time managing the shop on her own and performing duties she believed were not as physically demanding as her earlier customer service duties principally because she had the option of sitting for long periods;
· agreement with the proposition that she now sought to be self-employed;
· agreement with the propositions that she had advertised for custom for her new business on social media and that, with a minimum charge of $60, the therapy she offered was not cheap;
· her business was ongoing and that her clients paid in cash because she did not have credit card facilities and did not take cheques. I note, however, that when pressed during later cross-examination to explain the obvious discrepancies in the date sequences of invoices recorded in the Cash Book, the plaintiff recalled that some clients also used telephone banking.[24] Nevertheless, based on the responses given during re-examination, I concluded that, if any of the clients did use telephone banking to make direct payments into the plaintiff’s bank account, this form of payment was probably confined to only a couple of regular clients and, for the reasons discussed shortly, the possibility that some clients used telephone banking did not fully explain the discrepancies in the Cash Book record;
· she distinguished her current circumstances from those relating to her employment in a crèche in 2004 when she was also paid cash in hand. Whilst acknowledging this earlier employment had not been mentioned in either affidavit, the plaintiff told the Court this was because, when approached by the plaintiff, her former employer had declined to become involved in this proceeding. The point I make at this juncture is that, if such an approach had been made, whatever attitude her former employer had expressed, in the years preceding the transport accident the plaintiff had not declared this income for the purpose of paying tax and, more recently, she had omitted the evidence of earlier employment involving undeclared income from her sworn affidavit evidence;[25]
· notwithstanding her sworn evidence in the further affidavit that currently (that is to say in January 2015) on average she saw approximately 5 to 6 clients per week or up to 10 clients on a good week, the number of clients seen each week was in fact far fewer.
[24] TN 102-105
[25] TN 34-36
53 Under further cross-examination the plaintiff conceded that in 2012 she had spent a couple of months working in a coffee shop. According to the plaintiff she had taken this employment because of pressure from her parents and in-laws to contribute to the family income. However, the plaintiff said this attempt to return to work had not been successful. This was another occasion on which the plaintiff agreed she had failed to declare income earned.
54 The evidence that the plaintiff had coped physically with full-time but un-demanding employment in the New Age shop generally accorded with specialist medical assessment of her physical capacity in 2008 and, more recently in 2014. In short, the plaintiff was assessed as physically unfit to return to her pre-injury occupations in childcare or in a bakery but restricted duties in alternative employment had not been ruled out.[26]
[26] See the reports of Dr Palit and Mr Simm respectively
55 As to whether the plaintiff’s hours of work were limited for the long-term, I have preferred Mr Simm’s opinion on review in October 2014 that, the plaintiff probably is capable of undertaking full-time but restricted employment duties. Unlike Mr Lugg, who examined the plaintiff in May 2014 without recording any history of the plaintiff’s activities in alternative employment, on review Mr Simm obtained a history that the plaintiff had established her own business from home performing light work as a Reiki therapist. He understood from the plaintiff that she coped well with this work and did not find it physically demanding.
56 Moreover, for the reasons on which I will elaborate in my discussion of the plaintiff’s self-employment in her own business, I was not satisfied by the plaintiff’s oral evidence that the number of clients seen was far fewer than mentioned in her affidavit evidence or recorded by doctors from time to time, or satisfied that the records produced by the plaintiff at hearing accurately explained the extent to which her business generated income in 2013 or 2014, whether this was assessed in calendar or financial years. It follows from this finding that, as distinct from having established a likely long-term light work back and an inability to return to her pre-injury occupations, the plaintiff had not also discharged her onus of establishing likely long-term loss of earnings suffered as a result of long-term impairment of her lower back.
57 As to ongoing treatment, I note that Mr Simm, who first examined the plaintiff on 30 March 2011 and Dr Weissmann, who first assessed her psychological state on 6 May 2011, both obtained a history in which, among other things, the plaintiff reported that she continued to see Dr O’Toole regularly, she was prescribed Endep to assist sleep and she took Panadol tablets (the latter 6 tablets daily as recorded by Mr Simm or as required, as recorded by Dr Weiss).[27]
[27] PCB 30 and 46
58 When she swore her first affidavit, some months later in August 2011, the plaintiff deposed she was no longer receiving active treatment.[28] The plaintiff described almost constant aching in her lower back, aggravated by physical activity, sharp or swift movements of her torso, attempts to lift heavy items, bending and twisting of her torso and prolonged sitting. The plaintiff further deposed that she intended to resume weekly Pilates classes and that she was then taking medication comprising 6 Panadol tablets daily, 10mg of Endep nightly to aid sleep and, when pain was severe, she also took Mersyndol (another over-the-counter medication) at night.
[28] PCB 8
59 In her further affidavit, and in the course of giving her oral evidence, the plaintiff indicated she had commenced attending another general practitioner, after Dr O’Toole retired from practice in late 2010. However, according to her new general practitioner, Dr Akhter, whose very brief report was dated 16 January 2012, having commenced attending her practice on 2 May 2011, the plaintiff first reported a history of lower back and discal injury suffered as a result of the transport accident on 19 September 2011. On the last mentioned date, the plaintiff presented complaining of a flare-up in back pain, which she attributed to heavy lifting. She was referred for CT scan of the lumbosacral spine but had not undergone this further investigation by the time the doctor’s report was submitted to the plaintiff’s solicitors nearly four months later.
60 I infer from evidence summarised above and the radiological evidence tendered at hearing that, contrary to the reports apparently made to Mr Simm and Dr Weissmann in March and May 2011 respectively, from the date of her last attendance on Dr O’Toole in mid July 2010 until her presentation on 19 September 2011 for treatment of a flare-up in her symptoms, the plaintiff had not attended for treatment or further investigation of any the symptoms of any transport accident related lower back injury or, it seems, renewal of the prescription of Endep. This is not to suggest that her condition had resolved or to deny the plaintiff’s claim that she used non-prescription pain relief during this period for the relief of lower back pain. However, I could not be satisfied from the plaintiff’s sworn evidence or the matters recorded by the specialists as to the frequency with which prescription medication such as Endep was used to aide sleep during this period.
61 Additional to the matters already mention, in her further affidavit, sworn on 14 January 2015, the plaintiff deposed as follows:
· she still suffered from constant aching in her low back, aggravated by physical activity including bending, lifting or twisting her torso;
· as her husband had been living and working in Seoul since September 2014 she had been required to take on extra tasks previously performed by him, such as cleaning the pool and keeping the outside area tidy;
· she still had to pace herself in the performance of heavier household tasks and had not been able to return to activities such as bike riding, coaching skipping and snow skiing;
· she no longer had active treatment but still attended (about monthly) for therapeutic massage of her neck and back to relieve muscle tightness. Both in her affidavit and under cross-examination, the plaintiff indicated she performed essentially light exercises, body balancing classes, twice weekly at a gymnasium and confirmed she had not claimed the gymnasium or massage treatment expenses from the TAC;
· on average she took about 6 and sometimes up to 8 Panadol Osteo tablets daily, 2 of which were replaced (on average about 3 times weekly) with Mersyndol tablets when pain was severe;
· her psychological symptoms had improved somewhat, such that aided by a GPS system she was an anxious driver only sometimes but remained a nervous passenger, especially when passing parked cars on her left side. She no longer experienced nightmares or panic attacks yet remained socially withdrawn and her libido was reduced. Under cross-examination the plaintiff essentially confirmed this evidence and that she could now drive in the order of one and a half hours to the city without being as scared as before;
· during 2013 she resumed psychological treatment with a psychologist she initially saw weekly and eventually saw monthly, until she commenced marriage guidance counselling with her husband over a six-month period. The plaintiff said she ceased the counselling because she felt she was being blamed for their problems. Since then, even though she wanted to attend more frequently, especially when her mood was low, she had not been able to obtain a further appointment because the psychologist was booked out. At hearing the plaintiff could not recall the psychologist’s full name (“I think her name is Lorraine”[29]). Her evidence was equivocal as to whether her solicitors had sought and/or received a report from this treating specialist;
· Dr Achter currently reviewed her condition and prescribed her medication. About a year earlier, this doctor replaced Endep with the anti-depressant, Cymbalta which, the plaintiff claimed had not improved her mood. Under cross-examination, however, the plaintiff conceded there were days when she felt the anti-depressant medication assisted her and recalled it had been prescribed by Dr Achter from about January 2014 on the recommendation of the psychologist. More recently, Dr Achter had prescribed a small dosage of the medication, Kalma to be taken when the plaintiff felt her anxiety levels were rising. Having regard to the responses given during cross-examination, I understood the Kalma medication was initially prescribed to assist the plaintiff with anxiety when flying overseas with her daughter for 3 weeks between 11 December 2014 and 4 January 2015 to visit her husband in Seoul. The purpose of this trip was to determine if their marriage could be saved. The plaintiff thought the Kalma worked (“to some point”[30]) and also named other natural remedies she took in the treatment of anxiety.
[29] TN 72
[30] TN 74
62 It is convenient at this juncture to discuss the evidence concerning the plaintiff’s current employment and claimed loss of earnings.
Employment and loss of earnings
63 The evidence was that in the years preceding the transport accident the highest gross income earned was $18,906 for the financial year ending 30 June 2007. This sum apparently represented a full year’s earnings from part-time employment of 24 hours per week at the bakery. Based on this evidence, the plaintiff was earning at the rate of approximately $15 per hour before the transport accident. In full-time employment of, say, 38 hours per week the plaintiff could have expected gross earnings in the order of $30,000 per annum.
64 The Summary of Taxation Returns shows that in the financial year ending 30 June 2010 the plaintiff submitted a tax return indicating gross earnings of $16,125.[31] The plaintiff attributed this income to six months of full-time employment managing her friend’s New Age shop. The sum earned represented earnings in the order of $16 per hour over a 38 hour week. The point to be made at this juncture is that, by all accounts, in 2010 the plaintiff had coped well with full-time essentially light sedentary work without any apparent loss of income, until she suffered a panic attack on the way to work.
[31] PCB 87
65 By the time the plaintiff ceased working in her friend’s shop the plaintiff had already completed her Reiki training.
66 The Summary of Taxation Returns recorded no gross income for the financial years ending 30 June 2011, 2012, 2013 and 2014. As mentioned the plaintiff conceded she had not declared the income earned from the short period during 2012 when she worked in a coffee shop.
67 At hearing the plaintiff said she was a member of an organisation called Energist Australia and, during 2013, she completed a three-day course of training in Emotional Freedom techniques. Apparently her training took place with a group in the room set up for Reiki at the plaintiff’s home. The plaintiff helped drive this program which involved running workshops to support and assist teenagers with life’s pressures.
68 It appears that the plaintiff drew her clients for these workshops from the teenage children of her Reiki clients and had also made herself available for organising workshops for schools and other organisations.
69 According to the plaintiff she held one successful workshop. The plaintiff said she had been keen to continue with these workshops but was discouraged from doing this after experiencing workshops where teenagers had mocked one another.
70 As I understood the plaintiff’s evidence, this experience notwithstanding, she believed that any injury-related restrictions had not reduced her capacity to operate and build her business offering healing and other therapies. In short, the plaintiff was open for business and the hours worked were not restricted by reason of her impairment.
71 I have already mentioned in passing the plaintiff’s concession during cross-examination that the Cash Book record for the calendar years 2013 and 2014 did not contain sequential records of cash payments on which the plaintiff said her tax returns were based.
72 Whilst the Summary of Taxation Returns disclosed no gross income in the financial years 2013 and 2014, the copy tax return tendered for the financial year ending 30 June 2014 revealed business income of $3600. With allowance for expenses, including prior losses, the business reportedly operated at a loss in this financial year.
73 Under cross-examination the plaintiff indicated that when trying to expand the business online by purchasing goods she had lost about $4000 to a supplier. No doubt, this loss was a factor in preparing the plaintiff’s tax returns for the relevant years.
The Cash Book and Diary
74 I have already discussed the Cash Book. The Diary for the calendar year 2014 was produced by the plaintiff during re-examination. The plaintiff said all of her clients and the dates they had attended in 2014 were recorded in the Diary.[32]
[32] TN 118
75 It is unnecessary to go through all of the invoices contained in the Cash Book. Suffice to say they are clearly non-sequential as to the date and/or year recorded. For instance invoices 1 to 7 inclusive are dated 5 March 2013, 23 January 2014, 19 April 2013, 11 September 2013, 28 August 2012, 13 December 2013 and 13 December 2013 respectively. Invoices 97 to 100 inclusive are dated 26 August 2014, 11 September 2014, 15 December 2014 and 20 December 2014.
76 Notably, the two invoices dated 15 and 20 December 2014 respectively could not have been entered in the Cash Book record on those dates simply because the plaintiff was not working and, by her account, she was overseas between 11 December 2014 and 4 January 2015.
77 During re-examination the plaintiff sought to match the entries in the Diary with those in the Cash Book where the dates coincided. She argued that the Cash Book and the Diary each contained 46 entries for 2014. I could not be satisfied that the various assertions made in this regard were accurate.
78 For instance, the Court was taken to the Diary entry for 18 January 2014, which allegedly corresponded with invoice number 55 showing that the plaintiff had been paid $70 for a Reiki session but not to the entries made on 6 January 2014 and 10 January 2014, neither of which correspond with a Cash Book entry. Moreover, the Diary did not record an attendance corresponding with the Cash Book entry on 8 January 2014, invoice 54.
79 I found the plaintiff’s attempt to distance herself from her sworn evidence and the matters recorded in the doctor’s reports untenable. As mentioned, in her further affidavit the plaintiff swore that on average she presently, that is as at 14 January 2015, saw approximately 5 to 6 clients per week, although on a good week she could see up to 10 clients. She deposed the work was not physically demanding and she was trying to build the business but that the income from the business was well below that earned prior to the transport accident.
80 During the period the Cash Book was kept the plaintiff was examined by three medico-legal specialist at the request of her solicitors, Dr Horsley, Mr Simm and Dr Weissmann and she was interviewed and assessed by the recruitment consultant from Flexi Personnel.
81 As part of her examination on 10 December 2013, among other things, Dr Horsley recorded that the plaintiff had worked from home over the last four years as a Reiki healer and saw approximately 10 clients per week for hourly sessions. Dr Weissmann obtained a history on 6 October 2014 that the plaintiff was performing five or six Reiki healing sessions per week from home, whereas Mr Simm obtained a history on 9 October 2014 in which the plaintiff indicated that, since Mr Simm’s earlier examination in 2011, she had opened a private Reiki practice working from home for approximately 10 hours per week. On the other hand, in December 2014 the plaintiff reportedly told Flexi Personnel that the business was unsustainable because, depending on client demand, she only worked for approximately up to 5 hours per week. I infer from this statement that the plaintiff considered client demand was the issue, not any physical or psychological limitations.
82 Under cross-examination the plaintiff could offer no satisfactory explanation, other than she probably gave Mr Simm the history he recorded. Yet, during re-examination, she argued that the Diary accurately recorded her client numbers and, as such, demonstrated she probably saw less than one client per week.
83 I formed the view that the plaintiff probably saw a greater number of clients per week than she was prepared to concede. In doing so, I took into account the following factors:
· the plaintiff’s affidavit evidence sworn in January 2015 which repeated various aspects of the records made by particularly the doctors;
· that between August 2014 and the dates on which the plaintiff was re-examined by Dr Weissmann and Mr Simm on 6 October 2014 and 9 October 2014 respectively, the Diary recorded only 2 client attendances on 19 August 2014 and 9 September 2014. If her client base was as shown in the Diary, this was not the message conveyed to either doctor;
· the inaccuracies in the Cash Book and the fact that the Diary record did not fully correspond with the 2014 entries in the Cash Book;
· the earlier failures to declare income and the plaintiff’s apparent selectivity in not mentioning the work performed at the creche in her affidavit evidence.
84 In summary then, the plaintiff had not satisfied me on the evidence adduced at hearing that the business was unsustainable; income from the business was well below the income she earned before the transport accident; or that she suffered and would continue to suffer a loss of earnings by reason of injury-related incapacity.
The failure to call evidence from witnesses
85 The plaintiff did not adduce evidence from treating doctors additional to the reports already summarised, the last of which was Dr Achter’s very brief report in 2012.
86 I note that in December 2013 Dr Horsley obtained a history from the plaintiff in which she indicated, among other things, that she was still taking the medication, Endep; that during 2012 she had attended for a further 11 to 12 sessions with a psychologist from Psychology for Change; and that she had been attending marriage counselling with her husband since June 2013. If this history was correct and, as she later deposed, after ceasing counselling the psychologist had been booked out, this evidence suggested that the plaintiff had probably not consulted a psychologist for more than a year and a half when she swore her affidavit in January 2015.
87 I could not reconcile this evidence with various matters recorded by Dr Weissmann and Mr Simm. In October 2014, they both understood that the plaintiff was seeing a psychologist on a monthly basis. In the case of Dr Weissmann, he also understood from discussion with the plaintiff that she wanted to see the psychologist more often and until she felt better and that 4 further sessions with this psychologist were outstanding.
88 The TAC submitted the Court should infer, both from the fact that no claim was made for ongoing expenses such as psychological expenses and from the unexplained failure to produce evidence from the current treating general practitioner or psychologist, that such evidence as these witnesses may have given would not have assisted the plaintiff in proving her application for leave.
89 Irrespective of whether I have misunderstood the affidavit and other evidence regarding ongoing monthly treatment by the plaintiff’s psychologist, I have, nonetheless, inferred that the psychologist’s evidence would not have advanced the plaintiff’s case under paragraph (c) of the definition of serious injury or have assisted the Court in measuring the seriousness of any mental response to physical impairment of the plaintiff’s lower back under paragraph (a). It follows from this finding that, my decision regarding the plaintiff’s likely long-term mental state and the consequences, whether as a direct result of or secondary to injury suffered, was principally informed by Dr Weissmann’s evidence, which I discuss in more detail shortly.
90 The unexplained absence of any evidence from Dr Achter since January 2012 was even more problematic for the plaintiff in circumstances where the TAC submitted the domestic, social and recreational consequences of any long-term transport accident related injury had been overstated.
91 I expect Dr Achter would have been able to inform the Court whether and, if so, how frequently since September 2011 she had reviewed any transport accident related conditions and whether and the extent to which medication had been prescribed in the treatment of any and, if so what, transport accident related conditions.
92 As it stood at hearing, the medical evidence describing the plaintiff’s current conditions consisted entirely of medico-legal reports obtained either by the TAC or the plaintiff’s solicitors since December 2013.
The current medico-legal evidence
93 I note from the report submitted by Dr Horsley following assessment of the plaintiff on 10 December 2013, that this occupational physician diagnosed ongoing mechanical back pain with no clinical radicular features. At the time, Dr Horsley felt the plaintiff’s symptoms would persist. Importantly, her particular concern was directed to the plaintiff’s mental state. This was because the plaintiff’s scores on Beck depression and anxiety inventories had suggested to Dr Horsley that the plaintiff was suffering from severe depression and severe anxiety.[33] Indeed, Dr Horsley considered the plaintiff’s mental state was her principal disability and barrier to a return to work.
[33] PCB 71
94 However, on the basis of mechanical back pain alone and in keeping with the orthopaedic evidence of a light work back, Dr Horsley also envisaged restrictions on the plaintiff’s physical capacity for work. For instance, Dr Horsley recommended avoidance of repetitive overreaching, pushing, pulling, truncal rotation, bending, lifting or working in awkward and confined spaces, lifting items up to 10 kilograms on a repetitive basis and lifting items greater than 12 kilograms except on an occasional basis.
95 Furthermore, I infer from Dr Horsley’s discussion of these, that the plaintiff’s functional tolerances (sitting 1 to 2 hours, static and dynamic standing up to an hour and walking up to an hour) would also restrict the plaintiff’s physical capacity for some types of work.
96 Mr Lugg examined the plaintiff once at the request of the TAC on 21 May 2014. Having also seen the reported radiological findings, he diagnosed likely soft tissue injury and, as earlier mentioned, he also diagnosed transport accident related aggravation of asymptomatic pre-existing L5/S1 degenerative change.
97 Having accepted the plaintiff’s account of her symptoms and limitations, Mr Lugg opined the prognosis was only fair. He predicted the plaintiff would be subject to fluctuations in her condition, depending on the level of her activity and any recreational, social or occupational activity involving prolonged sitting or standing or repeated bending or twisting would likely be severely restricted or not possible at all.
98 Mr Simm’s initial diagnosis in 2011 of aggravation of advanced pre-existing but previously asymptomatic L5/S1 lumbar disc was essentially unchanged following re-examination of the plaintiff on 9 October 2014.[34] Mr Simm viewed the plaintiff’s reportedly chronic low back pain as indicative of unresolved lumbar disc degeneration since the transport accident. Her condition was, Mr Simm said, stabilised.
[34] PCB 40
99 As earlier mentioned, Mr Simm was cognisant of the plaintiff’s employment activities since 2009 and, for this reason, likely better placed than Mr Lugg to assess the plaintiff’s current physical fitness for work. Mr Simm reported a physical capacity for full time work where this allowed the plaintiff to avoid prolonged sitting or standing and imposed restrictions on the weights handled by her. Based on her account of these, Mr Simm accepted that the plaintiff’s activities were undertaken in the presence of chronic pain. Moreover, he accepted that she required some domestic assistance with heavier household tasks and that, in contrast to her pre-accident level of activity, the plaintiff’s social and recreational activities were probably limited to light activities.
100 Mr Simm’s further observation about the potential for the aggravation injury to accelerate the degenerative changes may have carried greater weight had there been up-to-date radiological investigations.
101 Lastly, Mr Simm drew attention to the need to obtain independent specialist assessment of the plaintiff’s reported symptoms of anxiety and panic attacks.
102 When initially assessed by Dr Weissmann in May 2011 the plaintiff had already ceased psychological counselling. He noted that except for what Dr Weissmann deemed to be a very low dose of Endep at night, the plaintiff was not then taking any formal anti-depressant medication. He considered the plaintiff’s condition was stabilised.
103 In Dr Weissmann’s opinion, the plaintiff was then suffering from transport accident related mental disturbance, namely, a chronic Post-Traumatic Stress Disorder, with panic attacks of mild to moderate intensity or severity, as well as a chronic Adjustment Disorder with Depressed and Anxious Mood of moderate intensity or severity.[35]
[35] PCB 52
104 As to the plaintiff’s employment, Dr Weissmann only recorded a history of employment in the bakery pre-accident (“At present she is doing domestic duties”[36]). Relevantly, despite the diagnoses, Dr Weissmann considered the prognosis, in his words: “good and favourable”.[37] He found no psychiatric incapacity for work and saw no need for treatment or for the prescription of any formal anti-depressant medication.
[36] PCB 49
[37] PCB 55
105 I do not propose to repeat in full the content of Dr Weissmann’s detailed report submitted more than three and half years after his first assessment. Some salient features of that report are, however, summarised in the following points:
· the plaintiff had commenced taking the anti-depressant, Duloxetine before Christmas in December 2013, the dosage of which was currently 60 milligrams daily. She stopped taking Endep when she commenced this medication;
· the plaintiff attended gym twice weekly and did body balancing exercises to help her core;
· the plaintiff’s concentration was okay and she was sometimes mildly forgetful;
· the plaintiff used to enjoy going for long walks but not any longer and now occasionally took her dog for a walk;
· the plaintiff’s socialisation was diminished;
· the plaintiff was not getting along with her husband who was overseas;
· the plaintiff was able to independently shower and dress, she could cook and clean at home and do a bit of gardening, although the latter exacerbated pain, she was able to drive a car, she did some walking and went to gymnasium and she did small grocery shops at any one time;
· the plaintiff always felt on edge;
· the plaintiff attributed middle insomnia twice nightly to physical discomfort;
· the plaintiff indicated a lack of motivation, poor self-esteem and an inability to enjoy herself;
· the plaintiff no longer experienced full-blown panic attacks, although at times she was panicky in city traffic, she felt very anxious as a passenger or felt anxious when she passed the accident site;
· the plaintiff no longer experienced bad dreams or nightmares of the accident or flashbacks or pictures in her mind;
· in Dr Weissmann’s opinion in the more than three years since he last assessed the plaintiff there had been an improvement in her post-traumatic stress and anxiety symptoms and traumatisation features. He diagnosed a chronic Adjustment Disorder with Anxious and Depressed Mood of mild to moderate intensity or severity associated with mild residual post-traumatic stress and anxiety symptoms and traumatisation features the latter directly due to the circumstances of the transport accident and the former consequential to the transport accident;
· on purely psychiatric grounds, Dr Weissman did not consider the plaintiff incapacitated for work;
· Dr Weissmann considered it both reasonable and appropriate that the plaintiff continued to consult her psychologist on a reducing basis for a further 3 to 6 months. He, however, advocated increasing the dosage of the anti-depressant medication initially to 90 mg and then 120 mg daily. The evidence did not indicate that the latter recommendation had been acted upon by the plaintiff since swearing in January 2015 that her daily dosage of the anti-depressant, Cymbalta was 60mg;
· in Dr Weissmann’s opinion the plaintiff’s overall psychiatric prognosis was, in his words: “somewhere between fair and, perhaps, fairly good”.[38]
Should the application be dealt with under paragraph (a) or (c)
[38] PCB 65
106 Based on the evidence discussed so far, I was satisfied that injury suffered as a result of the transport accident had likely produced long-term organic impairment of the plaintiff’s lower back, the seriousness of which should be measured in part by the plaintiff’s ongoing mental response to her physical impairment. As a result, I determined the leave application in respect to the plaintiff’s likely unresolved aggravation injury under paragraph (a).
107 Furthermore, I was not satisfied that the consequences of any transport accident related mental disturbance Dr Weissmann said was directly due to the circumstances of the transport accident itself was long-term. If I am wrong in my assessment of Dr Weissmann’s evidence in this regard, despite the perceived need for therapy over the shorter term and her use of anti-depressant medication, I was not satisfied that the consequences of this mental disturbance, as identified by the plaintiff, were severe in the sense required by the Act.
Pain and suffering consequences
108 I now turn to consider the pain and suffering and loss of enjoyment of life consequence of the application for leave under paragraph (a) of the definition.
109 As the Court of Appeal has explained in Haden Engineering Pty Ltd v McKinnon,[39] the pain and suffering consequence encompasses both the plaintiff’s experience of pain and the disabling effect of pain on her physical capabilities (including her capacity for work) and enjoyment of life.
[39] [2010] VSCA 69 [9]-[17]
110 As to the plaintiff’s experience of pain, this was described in the plaintiff’s affidavit and oral evidence, much of which has already been discussed in passing. Essentially, the plaintiff described chronic lower back pain (“almost constant…”[40]) radiating into her buttocks and thighs, which was susceptible to exacerbation, depending on the extent to which she undertook physical activity. The evidence of an attendance on Dr Akhter in September 2011 to treat a flare-up in pain reportedly caused by increased activity tended to support this claim.
[40] PCB 8 & 13
111 The plaintiff further described a medication regime consisting of daily doses of over-the-counter painkilling medication. By the plaintiff’s account, on a day-to-day basis she took 6 to 8 Panadol Osteo tablets, supplemented by another stronger over-the-counter medication, Mersyndol on average three times weekly when activity increased the severity of the pain experienced by the plaintiff. The impression I had was that the Panadol Osteo medication probably helped the plaintiff manage the intensity of the aching pain described by her, without leaving the plaintiff pain-free.
112 Whilst the plaintiff conceded she was not undergoing active treatment she, nonetheless, indicated that she required therapeutic massage on a monthly basis to relieve muscle tightness and attended body balancing classes at a gymnasium twice weekly. These classes apparently involved light exercises such as those used in Tai Chi, Pilates or Yoga and were aimed at promoting relaxation and strengthening the plaintiff’s core muscles.
113 Notwithstanding my concern about the reliability of the plaintiff’s evidence of her home-based business activity and earnings and the absence of corroborative evidence from the treating general practitioner, I have accepted the plaintiff’s evidence on the matters set out above. In short, I felt able to distinguish between the reliability of the plaintiff’s evidence regarding the running of her business and financial matters and the reliability of the evidence concerning her physical and emotional status since the transport accident.
114 Firstly, the radiology and the current medico-legal evidence have confirmed underlying pathology. The latter helped explain the nature and severity of the symptoms of which the plaintiff continued to complain. Secondly, having also clinically examined the plaintiff, all medico-legal practitioners have accepted the veracity of the plaintiff’s description of her ongoing physical symptoms and limitations. As earlier indicated, in my view, the difference in emphasis between the opinions of Mr Lugg and Mr Simm was readily explained by Mr Simm having demonstrated a better understanding of the plaintiff’s current occupational activities in his final report.
115 Lastly, the plaintiff has acknowledged she is running a business from home (whether or not that business is currently operating more frequently than the plaintiff claimed in her oral evidence is not to the point) and, as Dr Weissmann’s report demonstrated, the plaintiff had shown a willingness to also acknowledge improvement in some aspects of her psychological functioning. These matters allowed me to more readily accept the plaintiff’s evidence vis-a-vis the impact of her physical impairment in other areas of her life.
116 I was satisfied that the available evidence was consistent with an ongoing attempt by the plaintiff to manage chronic lower back pain, the intensity of which fluctuated according to the extent of the physical activities undertaken by her.
117 The evidence as to the extent to which pain limited the plaintiff’s functioning and interfered with her enjoyment of life and the disabling effect of pain, with due regard to what had been lost to the plaintiff and what had been retained, is summarised below.
118 By her account, before the transport accident the plaintiff was an active, working mother of a young child. Her pre-existing back condition was asymptomatic. As earlier mentioned, the plaintiff said she had previously enjoyed activities such as coaching school children in skipping, snow skiing and bike riding. The latter with her daughter.
119 Based on the evidence discussed so far, as well as the current medico-legal orthopaedic evidence, I was satisfied that pain and/or impairment suffered since the transport accident will likely have a long-term impact on the plaintiff’s tolerances for sitting, standing and walking and on her sleep pattern.
120 Essentially, pain and impairment of the plaintiff’s lower back have likely reduced her tolerances for prolonged sitting, standing or walking and for handling more than light weights in domestic, recreational and occupational environments. What this means in a practical sense is that the plaintiff has probably retained a capacity to function in all of these domains but must ensure she does not exceed her tolerances. For instance, subject to limitations on the extent to which these are performed, the plaintiff can still walk in the park with her dog, albeit with the dog off the lead to reduce the chance of pain caused by the animal tugging on the lead; drive a motor vehicle for relatively long periods; sit comfortably for about one hour or lie down to watch television; perform light gardening tasks, shop (in smaller quantities), cook, clean (where she avoided the heavier tasks) and exercise her residual earning capacity.
121 The plaintiff also indicated that whilst she still swam from time to time at her gymnasium, this activity was restricted to breaststroke, the implication being that this was due to her back condition.[41]
[41] TN 84-85
122 The plaintiff has, however, repeatedly reported that she considered herself no longer physically capable of engaging in the pre-injury recreational/social activities described earlier.
123 Under cross-examination the plaintiff outlined an earlier regime of coaching skipping for two hours each week from about 2006. According to the plaintiff she assisted a friend after school in teaching children how to skip and to perform other vigorous skipping routines. The plaintiff said she had wanted to continue this activity, which came to an end as a consequence of the transport accident.
124 Snow skiing was an activity the plaintiff said she learnt whilst growing up in Germany. After coming to live in Australia, the plaintiff apparently continued snow skiing (“often”[42]) for a week at a time. Whilst under cross-examination the plaintiff conceded she probably last skied before the transport accident in 2004, she, nonetheless, told the Court that but for the consequences of the transport accident she would have liked to have continued this activity.
[42] TN 128
125 As to bike riding with her daughter, the plaintiff thought she may have last engaged in this activity in 2006 when her daughter was about seven or eight years of age. The impression I had from the plaintiff’s evidence was that at 16 years of age her daughter was distracted by other activities. However, the plaintiff said she still owned a bike. But for the injury there was no reason to assume the plaintiff would not have continued to use the bike had she been physically capable of doing so.
126 In concluding as I did that the restrictions imposed by pain and impairment of the plaintiff’s lower back probably precluded the activities mentioned by her, I also took into account the evidence of the orthopaedic experts who have not questioned the plaintiff’s assertion that she was no longer physically capable of performing these.
127 Under cross-examination the plaintiff conceded she had not gone to the movies for a long time (“probably when my daughter was little”[43]). This concession limited the weight afforded this particular recreational activity, although I have accepted that if the plaintiff were so minded, she would no doubt be unable to sit comfortably at a cinema over a prolonged period.
[43] TN 52
128 Other factors I took into account, included the plaintiff’s complaint of nightly sleep disturbance due to physical discomfort. This was a complaint recorded by Dr Weissmann. Furthermore, to the extent to which this was likely also attributable to her physical impairment, I have accepted that, as claimed, the plaintiff has suffered some reduction in her ability to socialise.
129 I have mentioned the report prepared by the recruitment training consultant, Flexi Personnel, apparently in response to a request for a report regarding the plaintiff’s work capacity after sustaining multiple injuries in the transport accident. The plaintiff was interviewed by the maker of the report on 3 December 2014. She also referred to the plaintiff’s first affidavit and to the report of Dr Horsley and the recent reports of Dr Weissmann and Mr Simm.
130 Essentially, the Flexi Personnel consultant proceeded on the basis of the specialists assessment of the plaintiff as physically unfit to return to unrestricted duties. I was not, however, able to accept as accurate various observations made by the consultant about the impact of the plaintiff’s psychological condition on her ability to return to work. For instance, the statements that the plaintiff’s treaters believed the chronic Adjustment Disorder with features of post-traumatic stress disorder to be permanent and that the psychological condition was now the primary barrier to a return to work: “even though the medical opinion states that psychologically she has a capacity for work”,[44] could not be based on any proper interpretation of the material available at the time. These observations also suggested conflation of both Dr Horsley’s opinion in December 2013 and Dr Wiessmann’s assessment as a medico-legal expert, not a treater, in 2014.
[44] PCB 83
131 Moreover, the information regarding potential earnings in areas of employment, which the consultant considered closed to the plaintiff in the future was of less assistance than it might otherwise have been had I been satisfied there was reliable evidence indicating the average number of clients seen by the plaintiff each week and the earnings of the business.
132 These comments notwithstanding, the plaintiff has demonstrated that by reason of impairment of her lower back there was no real probability that she will return to more physically demanding occupations whether in the retail or childcare industries or other industries. This means that, the range of occupations open to the plaintiff until retirement and at a time when she might contemplate full-time work is probably restricted for the long-term.
133 Accordingly, the plaintiff has proved her claim that she has been deprived of the ability to re-engage in her pre-injury employment or unrestricted employment activity but not the further claim that she is suffering an ongoing loss of earnings arising from impairment of her lower back.
Conclusions
134 In conclusion, I find that as a result of the transport accident the plaintiff suffered a long-term aggravation injury to her lower back, particularly at the level of the L5/S1 disc. Based on Dr Weissmann’s report, she is also likely suffering from an Adjustment Disorder with Anxious and Depressed Mood of mild to moderate intensity or severity associated with mild residual post-traumatic stress and anxiety symptoms and traumatisation features, the latter directly due to the circumstances of the transport accident and the former consequential to the transport accident.
135 The impairment consequence of the injury suffered has been broadly summarised above.
136 The evidence relating to the impact of impairment of the plaintiff’s spine on her day-to-day activities and enjoyment of life has been summarised. Significantly, the plaintiff suffers from likely chronic lower back pain which probably requires regular use of painkilling medication, the condition interferes with activities in all domains of her life and it has deprived her of the opportunity to participate in the more vigorous recreational activities previously enjoyed by her. Moreover, the plaintiff’s working life has been disrupted to the extent that, should she choose to retrain, she is no longer fit to pursue unrestricted employment in the open market.
137 As mentioned, the test is whether the plaintiff has established that the pain and suffering consequence of injury to her lower back (in this instance, measured in part by the plaintiff’s mental response to her physical impairment), when judged by comparison with other cases in the range of possible impairments or losses of a body function, may be fairly described as being more than significant or marked and as being at least very considerable. As the Court of Appeal has explained, applying this test involves a value judgement in which matters of fact and degree and of impression, all play a role.[45]
[45]Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181, [41]
138 In this application I was affirmatively satisfied that injury to the plaintiff’s spine caused by the transport accident was serious because at the date of hearing it was fairly described as serious in its pain and suffering and loss of enjoyment of life consequences for this plaintiff, and as long term because the impact, treatment and management of the plaintiff’s condition would likely persist for the long-term. In short, when compared with other cases in the range of possible impairments, the consequence so described could be fairly characterised as being more than significant or marked and at least very considerable.
139 I propose to grant the plaintiff’s application for leave under paragraph (a) of the definition of serious injury.
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