Gerges v Transport Accident Commission

[2016] VCC 1677

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-15-01264

NANCY GERGES	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE K BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	17 and 18 October 2016
DATE OF JUDGMENT:	15 November 2016
CASE MAY BE CITED AS:	Gerges v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2016] VCC 1677

REASONS FOR JUDGMENT
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Subject:  TRANSPORT ACCIDENT

Catchwords:           Serious injury – transport accident – cervical spine impairment – causation – acceptance of statutory benefits claim – admission

Legislation Cited:     Transport Accident Act 1986, s93(4)(d)

Cases Cited:            Richards v Wylie (2000) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dordev v Cowan (2006) VSCA 254; Dahl v Grice [1981] VR 513; Ansett Australia Ltd & Anor v Taylor [2006] VSCA 171; Transport Accident Commission v Florrimell [2013] VSCA 247; Mert v Lawrence (Vic) Pty Ltd [2016] VSC 348; Bedeux v Transport Accident Commission [2016] VSCA 127; Sednaoui v Amac Corrosion Protection Pty Ltd [2016] VCC 126; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260

Judgment: Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T P Tobin QC with Mr C Sidebottom	Maurice Blackburn
For the Defendant	Mr P D Elliot QC with Ms S Manova	Solicitor to the Transport Accident Commission

HER HONOUR:

1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 26 November 2008 (“the said date”).

2 Section 93(6) of the Act provides:

“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”

3       

The definition of “serious injury” relied upon by the plaintiff is under

s93(17)(a) – “a serious long term impairment or loss of a body function”.  The body function pursuant to subparagraph (a) relied upon by the plaintiff is the cervical spine.

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

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

[1](2000) 1 VR 79

6       In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked” – see Humphries & Anor v Poljak.[2]

[2][1992] 2 VR 129 at 140-1

7       The plaintiff swore two affidavits.  She was cross-examined.  The plaintiff also relied on an affidavit sworn on 29 September 2016 by Bill Kelada, who was distantly related to her by her previous marriage.  The plaintiff’s friend, Manal Tanyous, swore an affidavit on 11 October 2016.  Both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material.

The Plaintiff’s evidence

8       The plaintiff is presently aged thirty-five, having been born in July 1981 in Egypt.  She is separated and lives with her two young children.

9       Having completed Year 12 and then obtaining a Bachelor of Tourism, the plaintiff worked for Singapore Airlines in Cairo until she migrated to Australia in about 2004.  When she arrived in Australia, she did not work and was a full-time carer for her two young children.

10      The plaintiff believed, prior to the said date, she was in good health. 

11      The plaintiff was studying an administration computer course with a view to future employment.[3]

[3]Transcript (“T”) 26

12      On the said date, whilst on her way to the course, the plaintiff was stopped at traffic lights when her vehicle was struck from behind (“the accident”).  She recalled hitting her head, being flung forward and backwards and experiencing neck pain.  The other vehicle was travelling at 50 kilometres an hour and pushed the plaintiff’s car into the rear of the car in front.[4]

[4]T2

13      The plaintiff denied there was minor bumper damage to her car, as the hospital notes set out, because her 1992 Holden Barina was written off.[5]  She denied that it was a low-speed impact, as was also noted.[6]   

[5]T24

[6]T28

14      The plaintiff agreed she spoke to the ambulance men who attended the accident scene.  She could not get herself out of the car.  She could not even open the door and a passer-by opened the door for her. 

15      The plaintiff spoke to the driver who hit her car from behind.  Like the plaintiff, she was shaking and panicking.  The other driver gave the plaintiff her details, but the plaintiff could not remember if she did the same.[7]

[7]T31

16      The plaintiff agreed that at the accident scene she was talking on her phone.  She did not know anyone in Melbourne and she called her estranged husband in Darwin.  She was shaking at the scene and could not even listen to what was being said to her by the ambulance officers.[8]

[8]T27

17      The plaintiff was conveyed by ambulance to the Northern Hospital.  X-rays were not taken, she was given some pain medication and then discharged herself.  She did not wait in the Emergency Department because she had to collect her children.  She was told she may have to wait for up to seven hours before a doctor came.[9] The plaintiff told a triage nurse at the hospital that her pain was eight out of ten.[10]

[9]T26

[10]T24

18      The plaintiff could remember complaining of headaches at the hospital but could not remember denying midline neck tenderness, as the notes indicated, or being asked whether her neck was tender.[11]

[11]T29

19      The plaintiff was then driven to the accident scene by Bill Kelada and she drove her car home slowly behind him.  Mr Kelada then lent her a car in which she drove to pick up her children.[12]  The plaintiff then said she did not think she drove to pick up her children and that Mr Kelada could have driven her.[13]

[12]T25

[13]T33

20      The plaintiff “really had a neck pain” on the left side after the accident.[14] She had that pain at the accident scene and it continued thereafter.[15]

[14]T32

[15]T34

21      The plaintiff was asked about her attendance with Dr Massouh on 24 December 2009 just short of one month after the accident.[16]  She may have been “fine” that day, as Dr Massouh noted, because her pain was on and off.  Whilst Dr Massouh also recorded that “all was fine” on the day of the accident, the plaintiff was not fine.  She agreed she attended Dr Massouh to claim ambulance costs from the defendant.[17]

[16]T35

[17]T36

22      The plaintiff could not recall any reason why it took her five months to fill in a TAC claim form.[18]  She denied it was because there was not much wrong with her.[19]  She agreed she answered “no” as to whether she was still requiring treatment or expected treatment in relation to the accident and she left “blank” details of her usual doctor or treater.[20]

[18]20 April 2009

[19]T37

[20]T38

23      The plaintiff could not recall the circumstances in which she completed the claim form. She was vague in her recollection as to whether the typing on the form was completed by the defendant.[21] 

[21]T39

24      In answer to Question 17, neck and left shoulder pain was said to be related to the accident.  This is something she would have told the defendant.[22]

[22]T83

25      The plaintiff continued to experience neck pain, but she thought her symptoms would get better.

26      When the plaintiff and her husband separated, she was forced to work.  She started working at the City Limit Hotel as a part-time receptionist in about March 2009, working between twenty and thirty hours per week.  She sat at a desk, checked guests in and out, and did bookings on the computer.  She was then living at Mill Park.[23]

[23]T39

27      Over the next two years, the plaintiff continued to experience neck pain on and off, for which she took analgesia, and then the symptoms would get better.[24]

[24]T59; mostly Nurofen Plus

28      In about August 2010, the plaintiff had increasing symptoms in her neck and left arm and consulted physiotherapist, Melissa Radcliffe, for three treatment sessions.  Thereafter, her neck pain settled down.  In examination-in-chief, the plaintiff agreed that as Ms Radcliffe’s notes indicated, she in fact attended at that time for lower back pain.[25]

[25]T21

29      The plaintiff agreed that for three or four months, prior to seeing Ms Radcliffe in August 2010, she had had low back pain.  She did not recall the cause thereof.  She told Ms Radcliffe of long periods of sitting in a chair at work and not being able to get close to her desk.  Maybe at the time she thought that was the reason her back was hurting.  She could not recall a lot of things.  She agreed she was having a problem with her workstation at the hotel.[26]

[26]T62

30      The plaintiff could not recall attributing her back pain to the workstation when she talked to Ms Radcliffe.[27] 

[27]T85

31      Once or twice, a hotel manager had asked the plaintiff to vacuum the reception area and she refused to do so.  Before she thought she was going to lose her job, the plaintiff went for a better position. She agreed she left the hotel as they wanted her to do more physical work and she was having problems with neck pain because of the requirement to vacuum.[28]  She left that job for those two reasons.[29]

[28]T62

[29]T63

32      The plaintiff agreed that she told Ms Radcliffe on 24 January 2011 of a two-month history of back pain and neck pain radiating into her left upper limb.  She woke with neck pain radiating into her upper limb.[30]  She could not explain why she never told Ms Radcliffe about the accident.[31]

[30]T64

[31]T69

33      The plaintiff agreed that she complained of pain in her neck due to a busy day at the workstation on 16 August 2011.  She had pain not only with this type of work but when she put any pressure on her hands or neck.[32]  The work did not bring it on.  It made it worse.  She was then working twenty to thirty hours a week.[33]

[32]T73

[33]T74

34      The plaintiff first saw Dr Hanna on 21 June 2008.[34] She did not disagree, as Dr Hanna’s notes indicated, that in nine months between 23 February 2009 and 13 November 2009, she saw Dr Hanna fourteen times and made no mention of the accident or any neck symptoms.[35]

[34]T40

[35]T41

35      Dr Hanna attended the plaintiff for a home visit for on 4 October 2010 when the complaint was a “wry neck”.

36      If Dr Hanna’s records showed the plaintiff attended on thirty-four occasions post-accident before she mentioned injuring her neck in the accident, the plaintiff did not disagree this was correct.[36]

[36]T46

37      The plaintiff deposed that her neck pain flared up again and in about September 2010, she saw Dr Georgy at the Mill Park Super Clinic, who referred her for a CT scan of her neck, which took place on 22 November 2010.  Dr Georgy told the plaintiff that scan showed some damage to the C5-6 and that this was indenting the spinal cord and could be accounting for her symptoms.  The plaintiff agreed she told Dr Georgy that “sharp neck pain started one day ago”.[37]

[37]T67

38      The plaintiff then denied that she just woke up one morning with neck pain.  The pain had been going for a while and it was on and off and one day she got up with the sharp pain.  Before then it was “coming and going”.[38]

[38]T66

39      The plaintiff had not told Dr Georgy about this “on and off pain” because when she went to the Super Clinic, she was so distracted by her pain and she was screaming, and she was not really paying attention to what the doctor was telling her.  However, she agreed she was not distracted when she saw Mr Simm, when she gave him the same account.[39]

[39]T68

40      The plaintiff attended the Super Clinic two or three more times but then stopped as she did not find the doctors there very helpful as she had to see different doctors all the time.[40]

[40]T57

41      In the years before the onset of severe pain, the plaintiff knew that she was having pain on and off until she got to the stage that she could not get out of bed.[41]

[41]T67

42      The plaintiff continued to work, but did so with increasing neck pain and migraines.  She then came under Dr Hanna’s care.  He started to prescribe Sandomigran in early February 2012 because of ongoing migraines.

43      The plaintiff did not put two and two together and did not understand the migraines could be related to her neck pain, which was initially caused by the accident.  It was only after she mentioned to Dr Hanna, in about 2011, that she had had the accident, that he told her neck pain, migraines and left arm pain could all be a result thereof.

44      The plaintiff agreed she had first mentioned the accident to Dr Hanna on 12 August 2011 as he noted. She then said she had mentioned it to him before in a “social thing”[42] and he was not “checking” her at that time.  This was a few months before she attended the Mill Park Super Clinic.[43] 

[42]T49

[43]T50, September 2010

45      There was a social discussion at the church after a service.  The plaintiff remembered she had mentioned to Dr Hanna at some stage that she had been in a car accident but he did not come and see her for treatment or suggest anything of that nature.[44]

[44]T52

46      The plaintiff said her affidavit was wrong when she said it was only after she mentioned it to Dr Hanna in 2011 that he became aware of the accident.[45]  She had told him of her migraines and he told her they could be related to the accident.[46]  She was not saying her affidavit was wrong.  She had forgotten that she spoke to him earlier.[47]

[45]T54

[46]T55

[47]T57

47      By the time the plaintiff mentioned the accident injury to Dr Hanna, the plaintiff was struggling with work and needed time off.  She was the full time carer of her children and also had to work for financial reasons.  She had increasing neck symptoms and was not coping. She was beginning to take time off work and Dr Hanna certified her unfit for all duties because of her neck pain.

48      The plaintiff was then taking Mobic regularly, but it caused gastric side effects, so she ceased taking it. 

49      In about January 2013, Dr Hanna referred the plaintiff to Dr Kevin Young for pain management.  He started her on Endep and she was placed on another anti-inflammatory medication because of problems with Mobic.  She was given Pariet to control her stomach pain from taking this medication.  Dr Young advised it was unlikely surgery would assist and the plaintiff should try to manage her pain.

50      The plaintiff had an MRI scan in February 2012, which she was told showed similar changes to the earlier CT scan.

51      In about January 2012, the plaintiff left work at the hotel, as they were wanting her to do more physical work and she was finding it difficult because of her neck pain.

52      The plaintiff got a job as a travel consultant at Qantas Business Travel (“QBT”), where her duties involved making bookings, doing computer work and speaking to customers.  She had to continue working to provide for her family as she was a single mother.

53      The plaintiff agreed she complained to Ms Radcliffe about problems with work as a travel consultant.  As Ms Radcliffe noted, the plaintiff had a lot of looking up and down from the computer to her desk and she had pain in her left neck, shoulder and down into her fourth and fifth fingers.  As a result of her complaints at work, the plaintiff was provided a paper holder.[48]

[48]T72

54      As of October 2014, when the plaintiff swore her first affidavit, she continued to experience ongoing neck pain which radiated into her left and down into her little and ring finger.  The pain varied in intensity from day to day and she had good and bad days.  She did her work with the assistance of pain medication. 

55      The plaintiff found her neck pain restricted her ability to move her neck freely, and when the pain was severe, she found it difficult to drive.  When she had to perform head checks for traffic, she found herself moving her whole body in order to do so, as moving her neck when the pain was really bad just aggravated it.

56      The plaintiff continued to experience ongoing symptoms down the left arm into her hand.  She had pins and needles in her fingers, which made it difficult for her to grip the steering wheel when the pain was bad.  It was also difficult even to operate the computer keyboard.

57      The plaintiff’s left arm weakness caused her to drop things and she felt her left hand and arm were weaker than prior to the accident.

58      The plaintiff had considered whether she should try to reduce her work hours, but financially could not afford to do so.  She took medication to cope with the pain and get on with her life.

59      The plaintiff then continued to take Mobic, Nurofen Plus, Naprosyn, Valium and she had had Tramadol injections on several occasions from Dr Hanna, when the pain had been unbearable.  There had been days when she found it difficult to get out of bed, but as sole carer for her children, she had no choice but to get on with things.  She also used heat packs and Voltaren Gel when the pain was really bad.

60      The plaintiff found it difficult performing her housework, as well as doing the gardening.  Dr Hanna had told her repeatedly to obtain assistance from the defendant with these tasks. The defendant arranged for an occupational therapist to come to the plaintiff’s home in about April 2014 to assess her domestic needs and it then provided her with some cleaning utensils to assist her. 

61      At that stage, the plaintiff continued to see Dr Hanna fortnightly because of her pain.  She took Pariet for her stomach pain and had been referred for an endoscopy because of the effects of her medication.  She had time off work due to the abdominal pain she was experiencing, but once the symptoms settled down she was able to return to work.

62      The plaintiff was then very concerned for her future.  Her neck pain had been progressively worsening and it did not appear to be improving.

63      The plaintiff swore a further affidavit on 20 September 2016.  Since her earlier affidavit, there had been little change in her neck condition. 

64      The plaintiff has continued to work at QBT as a travel consultant but she struggles to maintain her current full-time hours of 8.00am to 4.00pm.  She regularly needs to take medication to take the edge off her pain so she can stay at work.  She often feels quite tired and fatigued at the end of a workday and despite her struggles, she has kept working in order to support her children financially.

65      At work, the plaintiff sits at a desk with a headset to take telephone calls.  There is a lot of typing.  She has had problems with the ergonomics of that job and with reading or typing for a long time.  She has a raised display at her desk to hold up documents to make it easier for her to read.

66      The plaintiff’s left hand is a bit weaker now.  This puts more pressure on the right hand and causes pain.  When she tries to type with both hands she gets numbness and pins and needles in her two fingers.

67      Over the past few years, the plaintiff has continued to take intermittent sick leave days when her neck and arm pain have flared up.  Her supervisor has spoken to her about the amount of time she has had to take off and she is now worried her job may be in jeopardy if she takes too much further time off.

68      The plaintiff has used up all her sick leave.  A lot of the time, she goes to work and although she really needs to go home, she does not and she pushes herself really hard.[49] 

[49]T87

69      The plaintiff remains very concerned about the future and is worried her neck condition will deteriorate over time.  She is worried about her capacity to maintain her current level of work.  She is a single mother trying to juggle work and raise a family, but it is increasingly difficult to do so with the pain and restrictions caused by her neck injury.

70      The plaintiff continues to experience pain in the back and left side of her neck nearly every day, the level and intensity of which fluctuates depending on her level of activity.  Most of the time, she has a dull ache in the back and left side of her neck.  However, she also experiences frequent episodes of much sharper and intense pain, where she develops a stabbing pain in the neck.  At these times, she finds it difficult to concentrate and function.  Her neck pain tends to increase after any physical activity.

71      The plaintiff has also noticed the pain increases during cold weather and if she spends too long reading with her head in a flexed position.  Similarly, if she twists or turns quickly she can experience a sharp pain in the back of her neck.

72      The plaintiff’s neck muscles continue to feel quite stiff and tight and her neck movement is restricted. She continues to have problems driving because of her neck.

73      The plaintiff also continues to suffer intermittent muscle spasms in the back of her neck in a cramping-type sensation.  They sometimes extend into the upper part of her left arm.  These spasms tend to last for a couple of minutes at a time and are very uncomfortable.  When they are occur, she needs to stop what she is doing and rest until the sensation passes.

74      The plaintiff’s neck pain continues to radiate into her left arm and hand and she experiences an electric nerve-type pain down her left arm, which is particularly noticeable in her little and ring finger.  She suffers intermittent numbness and pins and needles into her left hand.  She believes she has lost grip with the left hand and her left arm generally feels much weaker.

75      The plaintiff explained that for about two weeks before she saw Mr Cunningham in September 2016, she had a different pain on the side of her left arm from the arm pain she previously experienced from her neck.  The new pain was on top of the left forearm.[50] 

[50]T21

76      The plaintiff now has very little pain in her forearm but the previous pain is still the same.  She could not recall anything particular bringing on the left forearm pain.[51]  Her ongoing pain normally starts from her neck and goes down to her arm and little or ring finger.[52]

[51]T22

[52]T23

77      Ever since her neck injury, the plaintiff has also suffered regular migraines.  Although having occasional headaches pre accident, these have become more frequent and severe thereafter.  When these migraines occur, she experiences a thumping-type sensation in her head.  She finds it difficult to concentrate and generally wants to lie down and rest.  Sometimes these migraines are associated with nausea and vomiting.

78      The plaintiff agreed she told her most recent physiotherapist, Mr Rossiter, in August 2014, that she felt like the muscles in her left shoulder were tight and causing her pain and headache.  Most of the time, headaches and neck pain come together.  This is a different type of headache and sharper than normal.  The intensity of the plaintiff’s headaches and their severity have worsened since the accident.

79      The plaintiff’s neck and left arm pain continue to cause her immense frustration and she suffers ongoing mood swings.  She often feels depressed and irritable and occasionally the pain overwhelms her and she can become tearful.

80      The plaintiff’s neck pain also continues to interrupt her sleep nightly.  New pillows have made little difference to the quality of her sleep.  She often wakes up tired and fatigued due to her interrupted sleep and her neck often feels quite stiff first thing in the morning.

81      As a result of her neck injury, the plaintiff continues to struggle with any activities that involve pushing, pulling and reaching, and finds lifting even moderate weights to be very uncomfortable.

82      The plaintiff’s neck injury continues to interfere with her ability to undertake domestic chores.  Cleaning and gardening are especially difficult.  She no longer undertakes the heavier aspects of cleaning.  While she still tries to do some light dusting and washing,[53] she relies on a cleaner funded by the defendant to do more physical aspects of housework once a fortnight. 

[53]T79

83      Similarly, the plaintiff can no longer mow the lawns and has to pay a gardener to do so.  In the kitchen, she also struggles with cleaning up and cooking.  Due to her left arm and hand weakness, she struggles picking up heavy kitchen utensils and also finds washing the dishes tends to aggravate her symptoms.[54]

[54]T79

84      If the plaintiff tries to do heavy domestic work, she gets pain straight away.  Her ability to do activities without pain has stayed the same. When she recently moved house, the plaintiff did very little of the lifting involved.[55] 

[55]T88

85      The plaintiff has a small circle of friends and currently attends two different churches.  She does not help out at the church.[56] She sees a friend from church because they have children of a similar age.[57]

[56]T78

[57]T81

86      The plaintiff agreed with the history to Dr Serry in July 2012 that she was not quite as sociable as she used to be.  Her leisure activities had been somewhat compromised, particularly activities with her children.  She has ongoing contact with her parents.[58] Mr Kelanda has visited the plaintiff at South Morang two or three times since 2014. 

[58]T82

87      The plaintiff takes her children to school and picks them up.  She agreed she was pretty busy looking after the kids and working full time.[59]

[59]T79

88      The plaintiff’s recreational activities also continue to be limited by her injuries.  She used to enjoy running and staying fit, but no longer goes running, as she finds that doing so, leads to jolting of her neck and increases her pain.  She has been unable to run over the last five to six years.  She is now limited to walking on the treadmill at home to try and maintain her fitness and she does neck exercises suggested by Dr Hanna.[60]

[60]T80

89      Pre accident, the plaintiff also used to enjoy reading books for leisure, but now rarely does so, as looking down at the pages of a book for long periods causes her neck to stiffen up and become more painful.

90      To help pain management, the plaintiff currently uses Naprosyn, having ceased Mobic and Endep.  She takes up to six Naprosyn tablets a day, three or four days a week.  She does not take Nurofen at work because it makes her drowsy, but sometimes she is forced to.  Most of the time, she puts up with the pain.  Sometimes she gets to the stage of having to take medication.[61]

[61]T81

91      The plaintiff tries to rely on Nurofen Zavance when she is at home and, if she is at work and gets really stiff and cannot move around and gets really sharp pain, she takes Nurofen Plus.[62]  When her pain is at its worst, she also uses Valium, on average, once or twice a week when advised to do so by Dr Hanna over the phone.  Valium also helps release her muscles.[63]

[62]T88

[63]T87

92      The plaintiff uses a heat pack on her neck a couple of times a week and applies Voltaren in a mild gel on an “as needs” basis.  She has also required a number of Tramal injections over the past few years to try and help ease her pain when it has been particularly severe.  She has had eleven such injections to date.  Even with the Tramal injections, the pain does not disappear, it just improves.[64]

[64]T86, one injection in 2010 was for the right shoulder

93      Dr Hanna continues to treat the plaintiff, and she sees him about monthly.  She also has massage every few weeks, mainly to her neck and shoulder, at a local shopping centre.[65]  The plaintiff has not had any physiotherapy since 2014 when she last saw .[66]

[65]T87

[66]T80

94      The plaintiff has seen a psychologist for an unrelated issue.[67]

[67]T82

95      Since swearing her earlier affidavit, the plaintiff has travelled overseas with her children, having gone to Egypt for a holiday in 2015 and to Hong Kong and Singapore in 2016. 

96      Although the plaintiff enjoyed spending time away with the children, she found the trips to be physically taxing and draining.  She struggled with the long-haul flights and found that her neck pain increased after each of them.  She also had difficulty handling her luggage.

97      The plaintiff also went to Egypt in 2012. She was able to enjoy these trips.[68]

[68]T76

Lay evidence

98      Nabil Kelada, swore an affidavit on 29 September 2016. He was related to the plaintiff by her former marriage. He and his family attended the Arabic Baptist Church in Preston with the plaintiff before she left the area.

99      The plaintiff telephoned him on the said date to pick her up at the hospital.  She then told him she had a sore neck and shoulder.  She was told there would be a long wait at the hospital before she was seen and she was worried about picking up her children and decided to leave.

100     Mr Kelada went to the accident scene with the plaintiff and saw that her car was badly damaged, with the boot caved in and side panels damaged.  There was also some damage to the front.  Despite that damage, the plaintiff slowly drove the car to her house in Epping, with him following.

101     Mr Kelada was not sure whether the plaintiff’s car was a write-off, but it was badly damaged.  He lent her a car for a couple of months after the accident while she was dealing with the insurance company.

102     Mr Kelada could remember speaking with the plaintiff on the telephone about two weeks after the accident when she told him her neck and shoulder were hurting and she had been having trouble sleeping because of pain.

103     Mr Kelada helped the plaintiff install a satellite disk about a month after the accident.  She was then complaining about neck and shoulder pain and having headaches.  He could remember then seeing her holding her neck and head in her hands.[69]

104     Later, in September 2009, Mr Kelada visited the plaintiff and her children at their new house.  She was still having neck pain so he offered to mow the lawn for her and had done so three or four times since.

105     Mr Kelada and his wife visited the plaintiff and her children at South Morang and spoke to her on the telephone from time to time.  From these visits and conversations, he is aware the plaintiff’s neck continues to give her trouble.

106     Manal Tanyous has known the plaintiff since she arrived in Australia in 2004 and met her through the Arabic Baptist Church. 

107     Ms Tanyous can recall the plaintiff telling her on the phone fairly soon after the accident that she had been sandwiched between a car in front and a car behind.  The plaintiff also told her that she had hurt her neck in the accident and was still in pain. 

108     In later conversations, both in person and on the phone, the plaintiff told how her neck pain was made worse by spending a lot of time on the computer at work.  The plaintiff told her she could not afford to stop work and was going to try and change her posture to reduce the pain.

109     After the plaintiff moved to South Morang, Ms Tanyous visited her at home.  Their families spent time together at Christmas events and other religious festivals, and saw each other for birthdays.  They have a number of mutual friends.

110     The plaintiff is not a complainer, but she has mentioned her neck on a number of occasions over the years.  At times, the plaintiff explained that, because of her neck pain, she has had to cancel, and not attend church and other social activities that they had been involved in.

111     In August 2016, the plaintiff had a birthday party for her children, which Ms Tanyous attended with her son.  As the day went on, Ms Tanyous could see the plaintiff was tiring and looked physically uncomfortable and she told her that her neck pain got worse when she was tired.

Claim documentation

112     The plaintiff signed a TAC Claim Form on 20 April 2009.  She thought the typed sections were completed by the defendant. 

113     In answer to Question 17, the injuries were listed as neck pain and shoulder pain.

114     In answer to Question 20 – are you still receiving treatment or expecting to receive treatment for your transport accident injuries? – the answer was “no”. 

115     The plaintiff left blank the box for details as to her usual doctor or any treatment provided.

The Plaintiff’s treaters

116     Following the accident, the plaintiff was transported by ambulance to the Northern Hospital.

117     The Hospital report set out that according to the ambulance report,[70] the plaintiff was in a car and stationary at traffic lights when struck from behind.  There was minor, rear bumper damage.

[70]Dated 26 November 2008

118     It was noted that the plaintiff said she struck the back of her head on the head rest and her forehead on the steering wheel.  There was no loss of consciousness.  The plaintiff removed herself from the car and was walking around when someone stopped to assist.

119     On arrival, the plaintiff was offered transport to the hospital by the ambulance crew, who were attempting to assist her, but she was continually talking on her mobile and not following any instruction from the ambulance officers.

120     When seen by the triage nurse at the Hospital, the plaintiff’s Glasgow Coma Score was 15, her pulse rate 90 and blood pressure 90/70.  She denied any chest pain and she had no respiratory disease.  Her pupils were equal and active.  However, when she was called at 12.15pm (having arrived at 10.32am) to be seen by a doctor, she had left.

121     In the Ambulance Victoria report, it was noted the plaintiff denied back generalised pain, neck generalised pain; visual disturbance – loss, neck stiffness.  “No” was answered to unconscious, vomiting, short of breath, bruising, haematoma, nausea, discharged teeth missing, unsteady gait. 

122     The final assessment was anxiety, with headache associated with normal stress response.

123     The plaintiff’s general practitioner, Dr Hanna, provided a number of reports, the first in November 2011and the most recent on 22 April 2016.

124     In none of those reports was there any detailed history of attendances following the accident, or mention of when the plaintiff first reported the accident, or complaints in relation thereto. 

125     In his most recent report of 22 April 2016, Dr Hanna diagnosed a large cervical disc bulge at C5-6 affecting the left C6 nerve, C4-5 disc bulge, chronic neck pain and C6 radicular pain in left arm, intermittent radicular pain of the right arm and gastritis due to inflammatory medication causing upper abdominal pain and heartburn. 

126     Dr Hanna thought the injuries were consistent with the stated cause.

127     In each of the reports, Dr Hanna commented on the plaintiff’s present and future capacity for work, prognosis and also the need for future medical treatment.

128     Dr Hanna simply stated the plaintiff had the accident, following which she had been suffering from chronic neck pain, radicular pain and weakness of the left arm and occasional, radicular pain of the right.  He noted the plaintiff had never complained of any neck or arm pain prior to the accident.

129     In his April 2016 report, Dr Hanna noted the plaintiff was currently working full time Monday to Friday, but she was certainly battling chronic neck and radicular left arm pain that could affect her work capacity.  The plaintiff had a few days off work because of her pain, and lost income.  Her upper abdominal pain, due to gastritis, required medication when it flares and she had to take some time off work when that occurs. 

130     Dr Hanna thought the plaintiff’s future capacity to work remains to be seen and it could certainly be severely affected if the cervical disc disease degenerates.

131     Dr Hanna thought that this disease could deteriorate as the plaintiff gets older.  He strongly advised that she have regular physiotherapy and ongoing home help for gardening and cleaning, and thought she would benefit from remedial massage.

132     The plaintiff first attended Ms Radcliffe, physiotherapist, on 4 August 2010, with a three to four-month history of lower back pain, with no acute trigger.  There were three attendances that month.

133     In her note of the attendance on 4 August 2010, Ms Radcliffe recorded, under “social history”, the plaintiff’s occupation of a part-time receptionist in hotel, long periods of sitting, reports of a poor work setup, chair being unable to get close to desk, and working twenty four hours a week.  Aggravating factors were noted to be heavy lifting and vacuuming. 

134     The plaintiff later presented on 24 January 2011 with a two-month history of neck pain.  She reported waking with neck pain and pain radiating into her left upper limb.

135     On that date, Ms Radcliffe noted “postural education, workstation set up information”.

136     The plaintiff ceased physiotherapy of her own accord on 7 February 2011 and represented with ongoing left neck pain on 28 July 2011. 

137     Ms Radcliffe noted the plaintiff denied any acute trigger for her pain.  On her initial presentation for lower back pain, they had discussed postural concerns due to long periods of sitting involved with the plaintiff’s occupation.  In regards to her neck pain, the plaintiff reported waking with pain, however, Ms Radcliffe thought it highly unlikely the plaintiff’s investigations were consistent with poor, awkward posture when sleeping.

138     As of her September 2011 report, Ms Radcliffe thought, given the plaintiff’s current level of neck pain, any occupation requiring repetitive heavy lifting, overhead activity or overhead reaching would only aggravate pain.

139     Ms Radcliffe considered the plaintiff still required physiotherapy to assist with pain management and range of neck movement.  Although she reported her upper limb symptoms were resolving, the plaintiff continued to complain of neck pain. 

140     Ms Radcliffe thought the plaintiff was going to require further medical treatment and given two exacerbations of neck pain in 2011, it was possible she would have further episodes of neck pain.

141     Ms Radcliffe advised that she had contacted the plaintiff’s general practitioner about her ongoing pain concerns and thought she would benefit from a specialist’s review.

142     Dr Kevin Young, consultant in rehabilitation and pain medicine, first saw the plaintiff at the Dorset Rehabilitation Centre on 18 January 2013 and reported in July that year.

143     The plaintiff reported her pain began following an accident in which she was the driver wearing a seatbelt and rear ended into the car in front while stopped at a traffic light.  She attended Emergency, but left due to the long wait, and she got some oral analgesia.  Her pain resolved gradually over sometime after that. 

144     In 2010, the plaintiff experienced sudden onset of posterior neck pain, which awoke her one night.  There was associated pain radiating down the left upper limb.

145     Dr Young’s working diagnosis was C6 radicular pain.  He thought the plaintiff’s clinical presentation of pain in her C6 distribution was consistent with the 2010 CT findings.

146     On final review in march 2013, Dr Young thought the plaintiff had a capacity for pre-injury work.  In his view, her prognosis was good, given her continued engagement, supportive family and employer, although there were minor issues with medication compliance.  He noted that a request was made for the plaintiff to be referred to a hand therapist who advised on hand exercises.

Medico-legal evidence

147     The plaintiff was seen by gastroenterologist, Dr John Colman, on 26 July 2012.

148     The plaintiff told him that after the accident, she suffered an immediate pain in her neck.  She was taken by ambulance to the Northern Hospital.  For the next two years, she was fairly well, with only occasional episodes of neck and shoulder pain, and she did not seek any treatment or investigation.

149     About two years later, the plaintiff suffered a week of daily pain in her neck, together with an episode of being unable to get up.  She was prescribed physiotherapy, plus Mobic and Nurofen Plus, and started to develop some significant gastrointestinal symptoms about six or seven months later.

150     As of July 2012, the plaintiff only took Panadol three to four times a week.  Her neck pain had worsened and involved her left shoulder, left arm, and the fourth and fifth fingers of her hand.

151     Dr Colman diagnosed gastroesophageal reflux disease, gastritis, mostly likely due to medication the plaintiff had been prescribed for her neck pain for injuries suffered in the accident.

152     Mr Rodney Simm, orthopaedic surgeon, first saw the plaintiff in April 2013.

153     The plaintiff told Mr Simm she was suddenly thrown backwards at the time of impact, her head striking the headrest, and recoiled forwards onto the steering wheel.  Her car was towed away from the accident scene.

154     The plaintiff was seen at Northern Hospital where she could recall having non-specific pain in the neck and shoulders.  She left without seeing a doctor because she was concerned about picking up her children.

155     Mr Simm noted the plaintiff’s memory was poor regarding the sequence of events immediately after the accident.  She could not recall having severe pain in the neck or shoulders, although she could recall having neck and shoulder pain within a short time after the accident. 

156     Mr Simm noted the plaintiff’s general practitioner, Dr Hanna, is also a friend and at some time, possibly a year or so after the accident, she mentioned her neck and shoulder symptoms to him and he suggested Panadol and stretching.

157     In November 2010, the plaintiff developed the acute onset of severe pain in the neck and an inability to turn her neck from side to side.  She called an ambulance and attended Super Care for urgent treatment.

158     The plaintiff told Mr Simm she had had persistent symptoms since the onset of the more severe neck pain and referred symptoms into the left upper limb in November 2010.  Her symptoms were gradually getting worse and she experienced pain every day that was almost constant.  She had pain radiating down the left arm to the medial two fingers and had pins and needles in those digits and some loss of control.

159     On examination, there was normal movement of the left shoulder.  Neurological examination of the upper limbs revealed some non-anatomical sensory changes.  There was a loss of pinprick sensation, which was more marked in the little and ring fingers, but that was not in the distribution of the ulnar nerve as it involved the radial side of the ring finger.  There was mild global weakness to resistance testing of the muscles of the left upper limb, but no focal weakness.

160     Mr Simm had available the reports of the CT scan of November 2010 and the MRI scan of February 2012.

161     Mr Simm diagnosed cervical disc degeneration with associated posterior central disc protrusion, particularly at C5-6.  He noted the referred pain and pins and needles into the little and ring fingers, but on examination there were no objective clinical signs of radiculopathy or ulnar nerve dysfunction (noting one would normally expect potential involvement of the C6 nerve root with protrusions at that level and that C6 radicular symptoms would extend more to the thumb rather than to the little finger side of the hand).

162     Mr Simm commented there was some epidemiological evidence to suggest an acceleration extension injury to the cervical spine, such as occurred in the accident, may be associated with an increased incidence of symptomatic degenerative cervical disc pathology.  He thought this type of injury had the potential to damage a degenerative cervical intervertebral disc and lead to acceleration of the cascade of degenerative changes in the disc, accelerating the onset of symptoms and, perhaps, contributing to disc bulging on protrusion.

163     Mr Simm thought the plaintiff could do her current work, but not physical work.  She required ongoing treatment for increasing symptoms in her neck and right arm.

164     Mr Simm considered the underlying pathology was degenerative, and the mechanism of the injury had the potential to accelerate these degenerative changes and contribute to the onset of more severe symptoms from degenerative cervical intervertebral disc disease in 2010, but this would be difficult to prove with certainty.  He considered the plaintiff’s condition seemed to be slowly deteriorating and that this may be a reflection of the progressive degenerative changes in the symptomatic cervical intervertebral disc.

165     The plaintiff was re-examined on 3 August 2016, at which time she told Mr Simm her symptoms had continued to fluctuate and, overall, she believed her condition was much the same.

166     On examination, there was normal movement of the left shoulder joint, but when she lifted her arm, the plaintiff aggravated her left sided neck and shoulder girdle discomfort.

167     On this occasion, neurological examination of the upper limbs showed no localised anatomical sensory changes and the plaintiff had normal pinprick sensation in the little and ring fingers.  The non-anatomical sensory changes previously noted were not evident.  There was no small muscle wasting or weakness, and the plaintiff had symmetrical upper limb tendon reflexes, and no focal weakness to resistance testing.

168     Mr Simm diagnosed an acceleration extension injury to the cervical spine as a result of the accident.  The injury was associated with pain in the neck and shoulder girdles, particularly at the left.  He thought this injury presumably caused some degree of aggravation and acceleration of degenerative changes in the intervertebral discs in the cervical spine and contributed to the further deterioration and protrusion of the C5-6 intervertebral disc, which became severely symptomatic in 2010.  He thought the plaintiff currently presented with painful cervical disc function, with referred symptoms into the left upper limb, without clinical signs of radiculopathy.

169     Mr Simm considered the chronic symptoms interfered with social, domestic and recreational activities and the plaintiff was not able to undertake physically demanding activities.

170     Mr Simm concluded the pathology of the plaintiff’s condition was degenerative cervical intervertebral disc disease.  He considered this pathology was almost certainly present at the time of the accident, which had the potential to injure the comprised intervertebral disc and accelerate the degenerative changes contributing the disruption and protrusion of the disc in 2010.

171     Mr Simm provided a supplementary report, having been provided with Dr Hanna’s most recent report, and the reports of Dr Horsley and Mr Cunningham.

172     Mr Simm noted some inconsistencies in Mr Cunningham’s reports and thought they were somewhat confusing, noting her main complaint was her neck but then focussing on the pain in her left ulna digits.

173     Mr Simm disagreed with Mr Cunningham’s view that there was clinical relevance to the fact the MRI scan showed resolution of the prolapse.  He noted the plaintiff continued to have advanced cervical disc degeneration and disruption, which could be responsible for severe neck and referred arm symptoms in the absence of the persistent MRI disc prolapse.

174     The fact that Mr Cunningham diagnosed two separate conditions did not invalidate the plaintiff’s claim of ongoing cervical symptoms dating from the time of the accident without resolution of these symptoms over that period. 

175     Mr Simm thought it quite reasonable to suggest the little and ring finger symptoms could relate to work duties, but that was not relevant to the plaintiff’s ongoing complaint of neck pain and the clinical signs of cervical dysfunction, which he noted when he examined her in August 2016.

176     On examination in 2013, Mr Simm noted he had found sensory changes which included, but were not confined to, the ulnar nerve distribution.  On re-examination, there were no longer sensory changes in the left hand.  Mr Simm thought that would suggest, even if the plaintiff had ulnar nerve entrapment for the last three years, on the basis of the objective neurological assessment, the condition was slowly improving and, in the context of her chronic pain, he would not recommend nerve conduction studies, nor ulnar transposition procedure, even if her nerve conduction study proved positive.  He would treat the plaintiff expectantly, and only suggest operative treatment if there were clearly defined clinical signs of sensory change or motor change in the distribution of the ulna nerve.

177     In cross-examination, Mr Simm was taken through the details of his physical examination in April 2013, his diagnosis and view as to causation.

178     Mr Simm confirmed the plaintiff had degenerative disease in her neck before the accident.

179     Mr Simm agreed that when considering the relationship of the neck complaint to the accident, it would depend on the type and effect of the injury that happened two years before the severe onset of symptoms in 2010.[71]

[71]T93

180     Mr Simm was taken in detail through the ambulance and hospital reports and also the report of the triage nurse at the hospital.  He was then told of the numerous attendances with Dr Hanna during which he plaintiff did not complain of her neck or the motor vehicle accident and he was advised as to the contents of the Claim Form.  He was also told of the attendance with Dr Georgy in November 2010 and attendances with Dr Hanna, leading up to the first mention of the accident on 12 August 2011.  He was also shown Ms Radcliffe’s records and the history taken by her of the plaintiff’s problems at work in terms of low back pain.

181     Mr Simm thought that if the plaintiff had neck pain at work, then her duties were relevant.  If her work duties were not associated with neck symptoms, he did not think work would be a factor that would alter the degenerative process.  He disagreed with the physiotherapist’s opinion in this regard.[72]

[72]T101

182     Mr Simm then seemed to say the accident actually damaged a compromised disc and influenced the subsequent pathology in that disc.

183     When I asked Mr Simm if this was a change from the opinion he had expressed in his report, he confirmed he was still of the view that the type of extension injury in the accident had the potential to damage the disc and it was extremely difficult to state with certainty. It was a postulate.  He thought it had a reasonable basis but it would be difficult to prove with certainty.  He agreed that he meant it was a possibility.[73]

[73]T102

184     Looking at the cause of the prolapse in 2010, clearly, the major factor would be constitutional, but Mr Simm asked whether there were any other factors.  He understood there was a significant rear-end collision with the 50-kilometre speed involved, and the mechanism of injury was an established mechanism of a cervical injury followed by symptoms.

185     However, he was now hearing, under cross examination, that there was in fact no mention of symptoms.  His understanding was that the plaintiff’s neck was sore after the accident.  Not immediately, but shortly thereafter, the plaintiff started to experience neck pain and stiffness which he understood she was living with, and that was the basis on which he wrote his report.[74]

[74]T103

186     While she presented in a very straightforward way, the plaintiff said she did not have neck pain and shoulder pain immediately afterwards, but shortly after.  Mr Simm’s opinion was based on the understanding she had grumbling symptoms and she saw Dr Hanna frequently, but never really sought treatment.  Mr Simm thought it was a year or so down the track that the plaintiff told Dr Hanna that she had problems with her neck and was told to take Panadol.[75] 

[75]T103

187     Now, under cross-examination, obviously there was no medical record of Mr Simm’s understanding of the case.  His opinion was “the understanding based on the history he was given.”[76] He was under the impression the plaintiff had symptoms.  If she had no clinical signs, no symptoms and no record of any problems with her neck for two years, then the possibility of a relationship to the accident becomes a much more remote possibility.[77]

[76]T103

[77]T104

188     Mr Simm confirmed that his examination finding of pins and needles in the two fingers was not consistent with radiculopathy involving the C5-6 nerve.[78]

[78]T105

189     Mr Simm thought the MRI scan in 2012 did not show a discrete or common protrusion and it appeared a large left central paracentral disc protrusion reported on CT in 2010 had improved or substantially resolved by 2012.[79]

[79]T107

190     On examination in 2013, Mr Simm thought the ulnar nerve may be responsible for some of the plaintiff’s left hand symptoms.   Whilst he found some sensory changes, he did not find any supporting evidence it was ulnar nerve neuropathy.

191     In 2016, the plaintiff had identical symptoms but on this occasion she was neurologically normal.[80]

[80]T108

192     Whilst Mr Cunningham found a positive Tinel’s sign, tapping the ulnar nerve at the elbow could be an unpleasant experience for anyone.[81] Mr Simm could not offer an opinion on the ulnar nerve root findings of Mr Cunningham because he did not have enough details and he had not examined the plaintiff.[82]

[81]T108

[82]T112

193     However, Mr Simm explained that people get somatic non radicular referred symptoms into those digits when they have degenerative disc disease.  It is referred pain without nerve compression.[83]

[83]T109

194     If anything, Mr Simm thought the plaintiff had improved from 2013 to 2016 because she no longer had any sensory change.  Her condition in that regard was objectively getting better, not worse.[84]

[84]T108

195     In re-examination, Mr Simm confirmed that the plaintiff’s description of the movement of her head was what would be expected in the accident where the impact speed was 50kmph.[85]

[85]T113

196     Having been told of the contents of the lay affidavits, the Claim Form (which included a neck injury), pain on and off not affecting the plaintiff’s activities for two years, the discussion with Dr Hanna at the church, and the plaintiff later waking up with severe pain,[86] Mr Simm agreed that there was no underlying condition apart from degenerative disease which could explain the plaintiff’s symptoms.  The ulnar nerve complaint was somewhat irrelevant because the plaintiff’s chief complaint was neck and shoulder pain.[87]

[86]T114

[87]T115

197     Whilst Mr Simm had commented that the trauma damaged the compromised structure and potentially accelerated the discal changes leading to the prolapse, he confirmed the accident had “the potential to damage the disc”.  If it was accepted that the history was an accident with no preceding symptoms, then grumbling thereafter, it would be quite reasonable to accept the accident has influenced the clinical course of degenerative pathology that is responsible for those symptoms.[88]

[88]T115

198     Mr Simm thought Dr Stark’s opinion was similar to his.[89]

[89]T117

199     Mr Simm confirmed the complaints of numbness in the fingers was referred pain from the neck which were organically based.[90]  It is very common for people with cervical disc degeneration to report pain in the neck, shoulder girdle, down the arm and pins and needles in the digits.[91]

[90]T117

[91]T118

200     Mr Simm thought, given the duration of the plaintiff’s symptoms, she was likely to suffer with chronic symptoms.[92]

[92]T118

201     Associate Professor Richard Stark, neurologist, examined the plaintiff in February 2015.

202     The plaintiff told him, in the accident, her car was hit from behind and pushed into the car in front, and she could recall her head being thrown forwards and backwards.  She advised of the attendance at Northern Hospital and leaving without seeing a doctor because she had to collect her children.

203     The plaintiff told Dr Stark that, after that, she had ongoing neck pain radiating to some extent to the left arm on occasion.  She did not formally consult a doctor.  She had a friend who was a general practitioner whom she saw at church, and was getting some informal advice from him over the next couple of years.

204     The plaintiff’s condition flared up considerably in 2010, when she woke one night in severe pain, so she could barely move.  She had treatment and investigations thereafter.

205     On examination, the plaintiff complained of left-sided neck pain radiating to the left trapezius, which comes and goes and varies in severity.  There was pain radiating to the left arm and ulnar two digits of the left hand, and some numbness in the same distribution at times and, also, the whole of the left arm felt weaker, so she might lose her grip on things.

206     Dr Stark reviewed the 2012 MRI scan, but the 2010 CT scan was not available.

207     On examination, the plaintiff’s paraspinal muscles were a little tender and there was some restriction of movement.  In the left upper limb there was tentative performance in all muscle groups and Dr Stark was not convinced of any myotomal weakness.

208     Noting the history of the accident and attendance at hospital, Dr Stark commented it appeared there was a substantial change in the plaintiff’s condition in November 2010, when she developed pain referred down her right arm and imaging demonstrated disc prolapse.

209     Dr Stark’s real concern was the extent to which the flare up in 2010 derived from the accident and the extent to which it was a separate and independent problem.  He thought it was plausible that the accident caused some degree of disc injury resulting, perhaps, in some weakening of the annulus and made the plaintiff more susceptible to a subsequent flare up, as occurred in 2010.

210     While there might have been features of radiculopathy in 2010, there was no objective evidence of it on his examination.

211     Dr Stark accepted the plaintiff’s injuries interfered with domestic activities, particularly certain aspects of housework.  He noted she was able to perform her duties as a travel agent, except on days when there was a significant flare up of symptoms.  Accordingly, there was some intermittent incapacity for work and it was difficult to know how long that would persist, but he expected things to improve gradually over a period.

212     The plaintiff was examined by consultant neurosurgeon, Mr David Brownbill, on 26 April 2016.

213     The plaintiff told him of the collision while her vehicle was stationary.  She immediately noted very severe pain in the back of her neck and top of her right shoulder and was taken, by ambulance, to hospital.  She attended a local doctor and, later, her own family doctor.  He noted the plaintiff was away from her studies for an uncertain period, but likely several days, and she had not sustained any further accident or injury.

214     On examination, the plaintiff complained of neck pain, low to the left, and pain over the top of the left shoulder.  At the back of the upper arm and in the ulnar border of the forearm there was pain, which occurred three to four times a week, and it started a few months after the accident, then slowly increased.  There was numbness of the left ring and little finger that comes and goes.

215     On examination, cervical spine movements were restricted.  There were no objective neurological abnormalities of the upper limbs or lower limbs and no signs of radiculopathy or myelopathy.

216     Mr Brownbill noted the reports of the 2010 CT scan and the 2012 MRI scan of the cervical spine.

217     On the information provided, Mr Brownbill thought the plaintiff sustained damage to the C5-6 intervertebral disc in the accident, giving rise, at first, to local pain, which continued and acted as the basis for the disc prolapse occurring in late 2010, with the sudden onset of severe neck pain and radiating left arm pain.  He regarded damage to the cervical disc was consistent with occurring as a result of the accident.

218     Mr Brownbill thought it prudent for the plaintiff to avoid heavy lifting or forced spinal mobility and that there would be restrictions to her social, domestic and recreational activities.

219     Dr Robyn Horsley, occupational physician, saw the plaintiff in August 2016. 

220     The plaintiff told her that, in the accident, her stationary vehicle was struck from behind.  The car was towed away.  She recalled her head striking the headrest and then recoiling forwards onto the steering wheel, and her Holden Barina was written off.

221     The plaintiff told Dr Horsley of attending hospital and not being able to wait for medical attention because she had to pick up her children.  She did not consult her general practitioner for about year, and did not formally seek assistance until November 2010.

222     The plaintiff recalled experiencing neck pain and requiring Panadol and stretching throughout that period and, in November 2010, she developed acute severe pain in the cervical spine, called an ambulance and attended the Super Clinic.  She told Dr Horsley of ongoing neck pain that comes and goes, and also headaches.

223     Dr Horsley noted radicular features in the C6 distribution found by Dr Young had resolved on assessment and the plaintiff presented with ongoing mechanical neck pain and some intermittent referred left shoulder girdle pain.  Given the length of time since injury and the ongoing nature of her symptoms, Dr Horsley thought they were likely to persist.

224     Dr Horsley believed the events as described in the accident and the plaintiff’s clinical presentation, were consistent.  She thought the accident had been a significant contributing factor and that, as a result thereof, there were work restrictions which should apply, given the plaintiff’s limited functional tolerances.

Investigations

225     A CT scan of the plaintiff’s cervical spine was organised by Dr Georgy on 22 November 2010.

226     It was reported there was a moderate to large left paracentral disc protrusion at C5-6 mildly indenting the spinal cord, with possible affectation of the proximal left C6 nerve.  There was a shallow disc bulge at the level above and it had minor spinal cord contact only.

227     Dr Hanna organised an MRI scan of the plaintiff’s cervical spine in February 2012. 

228     It was reported there was relatively mid cervical spondylosis affecting C5-6, C4‑5 and, to a lesser extent, C3-4.  While there were prominent protrusions and disc bulges posteriorly at C4-5 and C5-6, these incompletely effaced the ventral thecal sac and do not impinge upon the cord.  There was no root entry zone effacement or foraminal stenosis/neural impingement seen.

Claim documents

229     By letter dated 29 April 2009, the plaintiff was advised her TAC claim had been accepted.

230     By letter dated 24 June 2013, the plaintiff’s lawyers were advised that the defendant had agreed to an 11 per cent impairment benefit, based on the reports of Dr Colman, dated 26 July 2012; Dr Serry, dated 24 July 2012 and Mr Simm, dated 3 April 2013. 

231     The defendant had also considered the clinical notes of Ms Melissa Radcliffe, FOI notes from the Northern Hospital and a report of Professor Ian Brand, dated 7 November 2011 (hospital report).

The Defendant’s medical evidence

232     Dr Hanna first saw the plaintiff after the accident on 23 February 2009.  Between that date and 13 November 2009, she saw Dr Hanna fourteen times and made no mention of the accident or any neck symptoms.

233     In the eight-month period between 7 December 2009 and 26 August 2010, the plaintiff saw Dr Hanna twelve times and made no mention of the accident or any neck symptoms.

234     In the eleven-month period between 19 January 2010 and 21 September 2010, the plaintiff saw Dr Hanna eight times and made no mention of the accident or any neck symptoms.

235     In total, there were thirty-four visits with Dr Hanna (either at the Healesville, Mount Waverley or Noble Park Clinics) after the accident, during which the plaintiff made no mention of any neck symptoms.

236     The first mention of any neck pain was on 4 October 2010 when the plaintiff saw Dr Hanna for a home visit, and a “wry neck” was noted. 

237     On 21 November 2010, the plaintiff saw Dr Georgy at the Mill Park Super Clinic, where the clinical notes read “history:  sharp neck pain started 1/7, radiates to lt arm and lt shoulder, no sensory changes, no history of trauma or heavy lifting”.[93]

[93]T47

238     That day, Dr Hanna attended the plaintiff at home, where a “wry neck” was noted.

239     On the examination of 12 August 2011, the plaintiff first mentioned severe pain as a result of the accident to Dr Hanna.

240     The plaintiff did not mention the accident to Linda Radcliffe, physiotherapist.  When she saw her for her neck, on 24 January 2011, the plaintiff gave a two-month history of neck pain.

241     Whilst the plaintiff deposed to having very limited physiotherapy, ceasing treatment in early 2011 as it was not helping her, the notes from Ms Radcliffe’s practise indicate ongoing treatment.

242     After February 2011, the plaintiff attended a further 11 occasions that year.  During 2012, she attended 17 times; 14 times in 2013, and in 2014, she attended 15 times until August.

243     The plaintiff saw Dr Massouh at Plenty Valley Medical Centre on 24 December 2008.  He noted that the plaintiff was seen at Hospital and all was fine.  She wanted to claim TAC.  “Now feels fine … no complains at this stage.” On examination, all spinal movements were normal.  He also noted she wanted to claim for the ambulance to be paid and that the forms were not clear.

244     When last seen at this practice by Dr Ibrahim on 18 October 2013, the plaintiff gave a history of a three-week history of coccyx pain from sitting at work for long hours.  Brufen was prescribed and an x-ray was arranged.

Medico-legal evidence

245     The plaintiff was first examined by Mr John Cunningham, orthopaedic spine surgeon, on 17 May 2013.  Clinical examination involved the left shoulder.

246     The plaintiff told him her car was a write-off, having been hit from behind and rear ended and pushed into the car in front. The plaintiff felt her head was flung backwards, then forwards, and she experienced immediate neck pain.  Following the accident, she experienced neck pain on and off, which fluctuated and responded with anti-inflammatories.  It did not impact on her activities of daily living.

247     In June 2010, the plaintiff had an episode of lower back pain without sciatica.  In November 2010, she had a sudden onset of neck pain and developed left arm pain, with radiation to her little and ring fingers on the left hand.

248     Mr Cunningham noted a CT scan of the cervical spine of November 2010 and an MRI scan of February 2012.

249     Mr Cunningham noted the plaintiff presented an interesting story. After the accident, she suffered some mild and fluctuating neck pain.  Two years later, she experienced neck pain with left arm radiation into the C8 dermatome.  Imaging then revealed a C5 disc herniation, which should affect the C6 nerve root.  Arm pain continued and an MRI scan in February 2012 revealed resolution of the disc herniation.

250     Mr Cunningham diagnosed a Pain Syndrome in the left arm.  He thought the disc herniation that may have been responsible for that had subsequently resolved and there was no evidence of ongoing compression.  It was also unclear why the plaintiff was suffering from pain in the C8 dermatome when the disc herniation affected the C6 nerve root.

251     Mr Cunningham thought it difficult to answer whether the accident caused a disc herniation in 2010.  He noted there was no documented evidence that he could see that the plaintiff complained of neck pain to any health professional in those intervening two years and that, of course, would be understandable if the pain was only mild.

252     Based on the plaintiff’s history, Mr Cunningham thought it possible that the accident caused some mild degree of disc degeneration which subsequently evolved into a disc herniation.  He noted the unfortunate subsequent development of a Pain Syndrome.

253     Mr Cunningham thought the plaintiff might require some home assistance in the form of cleaning and or gardening.

254     Mr Cunningham believed the pain and weakness of the left arm had an organic basis from demonstrated C5-6 disc herniation, which had now resolved and left the plaintiff with a Pain Syndrome.  It was possible the disc herniation was the result of the neck trauma which she sustained in the accident.  He did not expect the Pain Syndrome to be long term.

255     Mr Cunningham re-examined the plaintiff on 1 September 2016. 

256     The plaintiff advised that since the last examination, her symptoms had become more specific and her chief complaint was neck stiffness.  She complained of pain into the left ulnar digits, particularly on the little and ring fingers, which worsened when she was working at a keyboard.

257     On examination, the plaintiff had a positive Tinel’s test at the left elbow.  Mr Cunningham thought she was suffering from ulnar nerve entrapment of the left elbow which required further investigation.

258     In summary, Mr Cunningham noted the plaintiff reported she experienced intermittent neck pain ever since the accident.  It was almost two years later that she experienced left arm pain which was more than likely due to a C5-6 disc herniation.  That had subsequently resolved, as evidenced by the February 2012 MRI, and he believed her current symptoms were due to ulnar nerve entrapment at the left elbow.

259     It was Mr Cunningham’s impression the plaintiff had begun to experience neck pain as a result of the accident.  It was arguable about what contribution that made to the disc herniation which she subsequently suffered two years later.  He did not believe her current symptoms were related to the accident. 

260     Regardless of the absence of the plaintiff’s complaints for two years, Mr Cunningham thought it unlikely that the accident contributed significantly to her disc herniation which evolved two years later.  He noted such herniations in the neck often occurred in de novo without antecedent trauma.  He thought it possible the plaintiff’s disc herniation was going to occur without the accident.  Regardless, the herniation had now resolved, and he thought she was now suffering from a completely different pathology which is more than likely related to her workplace, her arm position, and not related to her accident.

261     Mr Cunningham thought the plaintiff’s neck pain and stiffness – now mild – may be related to exacerbation of mild degeneration of her neck.  It was possible the accident somehow contributed to a disc herniation but he found that was unlikely. 

262     Mr Cunningham noted the plaintiff’s chief complaint was then left-sided ulnar forearm and hand pain which was most likely due to ulnar entrapment at the elbow which needed further investigation by a doctor.  The positive Tinel’s test at the left elbow was consistent with her current complaint. 

263     Mr Cunningham thought the plaintiff’s complaints of symptoms and pain in her axial spine were now largely resolved and he believed her current condition was due to ulnar nerve entrapment at the elbow and he did not believe that had been contributed to by the accident.

264     Mr Cunningham thought the accident no longer had an impact on the plaintiff’s domestic and leisure activities of daily living and he did not believe it contributed any more to her ability to work.

Overview

265     The first issue for determination is whether the accident is a cause of the plaintiff’s present neck condition.

266     In general terms, counsel for the defendant submitted that with an accident-related neck injury first mentioned by the plaintiff to a doctor in August 2011, nearly three years post-accident, the severe onset of neck pain in late 2010 with no treatment before that date, could not be linked to the accident.[94]  The “bow was too wide” for the plaintiff to prove her case.[95]

[94]T17

[95]T19

267     Counsel for the plaintiff submitted there was a causal relationship between the plaintiff’s current neck complaint, the 2010 flare up and the accident. 

268     After the significant impact in the accident, the plaintiff attended hospital complaining of occipital headaches.  She has sworn that over the next two years, she has had neck pain on and off, relieved by analgesia.  She mentioned her neck and shoulder pain in her April 2009 TAC Claim Form[96] and she thought her condition at that time was not going to require any treatment.[97]

[96]T128

[97]T120

269     In the absence of any other explanation, it was submitted the accident was a cause of the plaintiff’s present cervical condition.[98]

[98]T130

Credit

270     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[99]

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

[99](2010) 31 VR 1 at paragraph [12]

271     Whilst counsel for the plaintiff submitted that it had never been suggested the plaintiff overstated her case or presented in a functional way,[100] in my view, her evidence at times was unreliable, in particular as to when she told Dr Hanna about an accident-related neck complaint. 

[100]T145

272     Further, the plaintiff’s history to Mr Brownbill of the onset of severe pain at the time of the accident and continuing local pain until 2010 is clearly incorrect. 

273     As Mr Simm stated in cross-examination, he was under the impression from the plaintiff that she had ongoing symptoms from the time of the accident until November 2010 and that there would have been attendances on doctors in relation thereto.[101]  

[101]T103

274     On a factual basis alone, the plaintiff faces significant difficulties in establishing the requisite causal link between the accident and her present neck condition.

275     Whilst it is not disputed there was a relatively high speed rear-end collision, the plaintiff’s vehicle was drivable after the accident.

276     Having been taken by ambulance to the Hospital, the notes of that attendance set out a complaint of occipital headaches and no findings of any neck or shoulder problems, although the plaintiff says she made a complaint of neck pain at that time. 

277     Whilst the plaintiff explained she did not stay at the hospital to be treated because she had to collect her children, she did not seek medical attention for any neck complaint until October 2010, when Dr Hanna noted a “wry neck”.

278     The plaintiff saw Dr Massoush on 24 December 2008 because she wanted to claim the cost of the ambulance trip.  She made no complaints of pain at that time, and examination was noted to be normal.  Dr Massoush also noted that when the plaintiff was seen at hospital “all was fine”.

279     From 23 February 2009 (the first post-accident visit) to 21 September 2010, there were thirty-four attendances on Dr Hanna with no mention by the plaintiff of any neck symptoms.[102]

[102]T120

280     On 4 October and 21 November 2010, the plaintiff told Dr Hanna of a wry neck but did not mention the accident.

281     Also on 21 November 2010, the plaintiff told Dr Georgy at Mill Park of sharp neck pain that started a week ago, radiating to the left arm and shoulder.  She gave no history of trauma or lifting.  That entry made no reference to pain “on and off” or to any accident.

282     The first mention of the accident in Dr Hanna’s notes was on 12 August 2011.  He noted its occurrence and the plaintiff’s attendance at hospital where she did not wait for treatment “but developed neck pain since”.  He then noted the development of severe pain in the neck and left arm on 22 November 2010.  Nowhere in his reports does Dr Hanna comment on the plaintiff’s neck condition between the accident and the November 2010 flare up, nor does he express a detailed view as to the relationship of her current symptoms to the accident, simply noting her injuries are consistent with the stated cause.

283     Consistent with Dr Hanna’s 12 August 2011 note, the plaintiff deposed she first mentioned the accident to him in 2011, yet in her viva voce evidence, she said she discussed it with him after church in 2010.  In any event, he did not suggest that she have treatment following that discussion.[103]

[103]T123

284     Although the plaintiff stated that she had neck pain on and off and required analgesia, she was able to start receptionist work at a city hotel in March 2009, working 20 to 30 hours per week. 

285     The circumstances of the completion of the plaintiff’s TAC Claim Form which was signed by her on 29 April 2009 are unclear.  Whilst the typed Claim Form referred to neck and shoulder pains suffered in the accident, the box which required details of any treatment for any accident-related injuries was left blank. 

286     Physiotherapy from Ms Radcliffe in August 2010 was for the plaintiff’s lower back.  At that time, Ms Radcliffe noted a discussion about postural concerns relating to the plaintiff’s workstation took place.  On commencement of further physiotherapy in February 2011, Ms Radcliffe noted there was neck pain of two months’ duration after waking with neck pain.  There was no mention on attendances at that time or in July that year of any involvement in the accident and Ms Radcliffe noted the plaintiff denied any trigger for her pain.

287     Whilst there was lay affidavit evidence supporting the plaintiff’s post-accident complaints of neck pain, this evidence was vague and in very general terms.  When the plaintiff was said to have complained of neck and shoulder pain in the early years after the accident, she was not having any treatment in relation thereto nor complaining to doctors of neck problems.[104] Around the time Mr Kelada helped the plaintiff install a satellite dish, she told Dr Massoush she was fine.

[104]T121

288     Further, Ms Tanyous confirmed the plaintiff complained to her of problems with neck pain due to her work station.[105]

[105]T122

Medical evidence

289     A plaintiff’s credibility is relevant not only to whether her evidence should be accepted but it is also relevant to the reliability of the medical evidence because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.[106]

[106]Dordev v Cowan [2006] VSCA 254 per Chernov J at paragraph [14]

290     Accordingly, in this case what appear on their face to be medico-legal opinions supportive of the plaintiff’s application in terms of causation must be looked at in the light of my views as to the plaintiff’s credit and the histories given by her.

291     No practitioner has been given the full history by the plaintiff that she did not attend a doctor for neck pain until August 2010, nearly two years after the accident.

292     Medical opinion on the issue of causation falls into three main categories.

293     Mr Brownbill and Dr Horsley, who accepted there was a causal relationship, simply accepted that the plaintiff’s neck complaints were ongoing since the accident which, clearly is not the case.[107]

[107]T120

294     Mr Cunningham thought it was unlikely the accident and subsequent disc prolapse were related.[108]

[108]T123

295     A middle ground was supported by Dr Stark, who thought the link was “plausible” and “perhaps” and he talked about “his real concern” being the extent to which the 2010 flare up related to the accident and the extent to which it was a separate problem.[109]

[109]T124

296     A similar view was initially shared by Mr Simm, having been told by the plaintiff that her symptoms were on and off.  However, when told in cross-examination of the lack of treatment and many attendances for non-related complaints, Mr Simm explained this was different to his understanding and what he had described in his report as a possibility was now more of a “remote one”.[110] 

[110]T120

297     Counsel for the plaintiff submitted that in the absence of another explanation for the plaintiff’s neck pain and subsequent prolapse, and the consistency of the radiological changes with her clinical signs, there is a greater likelihood of involvement of the accident in her present condition.[111]

[111]T130

298     When confronted with Mr Simm’s confirmation of his view that causation was “possible”, counsel for the plaintiff explained reliance was placed on the medical opinion in two ways.

299     First, it was submitted the medical evidence was consistent in terms of the accident being a “possible cause”, or “plausible”.[112] It was submitted that if the link was a possibility, and no doctor described an alternative cause, that of itself was sufficient for the Court to make a finding in the plaintiff’s favour as to causation on the balance of probabilities.[113]

[112]T130; See Dahl v Grice [1981] VR 513

[113]T132; See Dahl v Grice (supra)

300     Counsel for the plaintiff also relied on the decision in Dahl v Grice,[114] where the Full Court held proof by expert evidence is not required of the plaintiff to establish a causal connection between an accident and the injury to the requisite degree of probability because that is for the tribunal to decide as an ultimate issue taking account of the evidence of experts as to the existence of a link between the medical condition and the accident.

[114]Supra

301     Second, it was submitted by counsel for the plaintiff it was important that there had been an acceptance by the claims agent of payment of medical expenses and home help on an ongoing basis and also the payment of an impairment benefit. This acceptance constituted an admission by conduct which it was submitted was an evidentiary point that should tip the scales in the favour of the plaintiff.[115] 

[115]T133

302     This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd & Anor v Taylor,[116] such admission should ordinarily be regarded as very significant:

“… albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”

[116][2006] VSCA 171 at paragraph [40] (“Ansett v Taylor”)

303     Counsel for the plaintiff submitted that in the present application there is no evidence before the Court that the medical examiners who saw the plaintiff in relation to her statutory benefit entitlements were somewhat misled or that wrong evidence had formed the basis of the decision to accept the claim.  There was no rebuttal evidence or evidence that it was a mistake[117] and there was no medical evidence challenging that acceptance.[118]

[117]T135

[118]T136

304     Counsel for the plaintiff conceded that it would be a very different situation if the medical opinion was given on a very false history, but it was submitted most of the doctors have been given a pretty consistent history.[119]

[119]T136

305     Whilst in some cases since Ansett v Taylor payment of compensation was not held to be an admission, counsel for the plaintiff submitted there had been no change in the law and that the circumstances of and nature of each payment were relevant and the context thereof had to be considered. 

306     Unlike in Transport Accident Commission v Florrimell,[120]  where the Court held payment of limited medical expenses at an early stage was not an admission, noting the desirability of the defendant paying for treatment to reduce an accident victim’s pain and suffering, in the present case, it was submitted it is important that the defendant has been funding treatment for in excess of six years and continues to pay home help and medical expenses.[121]

[120][2013] VSCA 247

[121]T138

307     In Mert v Lawrence (Vic) Pty Ltd,[122] where Bell J did not allow the admission of a payment under s98C in a damages trial, it was submitted that decision was based on the timing at which the parties sought to introduce evidence of the admission and there was a need for cross-examination, unlike in the present case.[123]

[122][2016] VSC 348

[123]T139

308     In Bedeux v Transport Accident Commission,[124] where the payment of compensation was held not to be an admission against the TAC, the payment had been by the employer, Australia Post in a journey accident claim.[125]

[124][2016] VSCA 127

[125]T139

309     In response, counsel for the defendant relied on a recent judgment of Judge O’Neill in Sednaoui v AMAC Corrosion Protection Pty Ltd,[126] where his Honour analysed the various authorities subsequent to Ansett v Taylor.

[126][2016] VCC 1262 (“Sednaoui”)

310     It was submitted by counsel for the defendant in the present case, causation was the central issue and it was complex, with varying medical opinion.  In these circumstances, an administrative decision to pay medical and home help expenses and an impairment benefit should not be taken as having the force of an admission as to causation.[127]

[127]T151

311     Counsel for the defendant submitted in the present application, the Court had heard detailed evidence of matters not contained in the medical reports, in particular the clinical notes of the plaintiff’s general practitioners in the early years after the accident, the lack of treatment and any reference to the accident and also the contents of the Claim Form.  Whilst Dr Hanna was not cross-examined, he could have provided a report to clarify the position, because his available reports do not deal with the issue.[128]

[128]T152

312     It was submitted that it was not until cross-examination of Mr Simm that a full history is given to a medical examiner.  In those circumstances, the decision of an administrative officer should not be binding upon the defendant in this case.[129]

[129]T152

313     In reply, counsel for the plaintiff distinguished the facts of Sednaoui on the basis that in that case, lay evidence was called which was not the situation in the present application where no rebuttal evidence was provided.[130]

[130]T153

314     Having carefully assessed the facts and circumstances of the present application, in my view, there is little probative value of the “admission”.

315     I accept the arguments raised by counsel for the defendant as to the inadequacy of the material with which examining doctors were provided when asked to advise as to the plaintiff’s entitlement to statutory benefits.  This situation was confirmed by Mr Simm in cross-examination.

316     In these circumstances, I consider there is no requirement for rebuttal evidence of the nature described by Ashley J in Ansett v Taylor.

317     Taking these matters into account, I am not satisfied the payment of statutory benefits by the defendant is an admission by conduct in this case as to the issue of causation.

318     Having considered the facts, the medical opinion and the circumstances of acceptance of the claim, I am not satisfied the accident is a cause of the plaintiff’s present neck condition and her application is therefore dismissed.

Range

319     If it was accepted there is a causal relationship between the accident and the plaintiff’s neck condition as at the date of the hearing, the issue then is whether any impairment in relation thereto is serious and long term.

320     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[131]

“The evidentiary basis of the pain assessment will ordinarily comprise the following:

(a)  what the plaintiff says about the pain (both in court and to doctors);

… .”

[131](supra) at paragraph [11]

321     The plaintiff has complained of significant neck and left arm pain since late 2010.  That pain located in the back and left side of her neck is of a fluctuating nature, mostly a dull ache, but at times, sharp pain.  She also experiences intermittent muscle spasms in the back of her neck.

322     Whilst her left forearm pain may have been short-lived and resolved, as noted by Mr Cunningham, the plaintiff has complained of continuing referred left arm pain extending to the fingers as a result of her neck condition, although it is not radicular in nature as Mr Simm explained.[132]

[132]T142

323     However, the plaintiff’s significant complaint of pins and needles in her fingers, and associated problems with keyboard use and grip has improved somewhat as Mr Simm noted.[133]

[133]T125

324     Mr Cunningham is alone in his view that the C5-6 disc herniation has resolved having considered the plaintiff’s current symptoms related to the ulnar nerve. 

325     Counsel for the plaintiff however conceded that the migraines described by the plaintiff were not of sufficient severity and can be excluded in the consideration of serious injury consequences.[134]

[134]T145

326     Clearly, there was no treatment for the plaintiff’s neck until late 2010, when she saw Dr Georgy who referred her for a CT scan. 

327     Despite a prolapse being reported on that investigation, there has been no specialist referral or any suggestion of other than conservative treatment.

328     The plaintiff had limited physiotherapy treatment for her neck until August 2014.  She now has massage at a local supermarket every few weeks.

329     The plaintiff attended for pain management with Dr Young in January and March 2013.  When last seen, he thought her prognosis was good and she had the capacity for pre-injury work and suggested she required review by a hand therapist. 

330     Treatment has been mainly by way of medication initially, Mobic in late 2011 and later, Endep.  Other anti-inflammatories were then prescribed because of gastrointestinal problems.  The plaintiff underwent a gastroscopy in 2011 as a result of her medication intake and limits it accordingly.

331     At present, the plaintiff takes up to six Naprosyn tablets or Nurofen Plus and occasionally Panadol.  She also takes Valium when her pain is more severe.  Dr Hanna diagnosed gastritis due to anti-inflammatory medication in his April 2016 report.

332     Whilst Dr Hanna has given the plaintiff about ten Tramal injections at home for pain relief since 2014, the last of which appears to be in July 2015, Tramadol has not been prescribed or taken by the plaintiff on a regular basis.  Otherwise, the plaintiff’s treatment has involved heat packs and Voltaren Gel. 

333     The plaintiff claims to have interrupted sleep but has not reported this to Dr Hanna or been prescribed any medication in relation thereto. 

334     The plaintiff continues to experience stiffness and restriction of neck movement, particularly when driving or attempting to do heavier household tasks.  She requires ongoing assistance from the defendant in relation to housework and has to pay someone to mow her lawn as she is unable to do it herself.[135]

[135]T43

335     When the plaintiff left work at the hotel in January 2012 because her employer wanted her to do more physical work, she was working only twenty to thirty hours per week in that job.

336     Since then, the plaintiff has been working forty hours per week at Qantas Business Travel as a travel consultant.  As Dr Hanna noted in his 2016 report, the plaintiff had few days off work due to her pains. 

337     Counsel for the plaintiff submitted whilst the plaintiff has got on with her life, particularly with work, that does not mean that she has not had significant consequences. Looking at the totality of their effect upon her and the long-term nature of her condition, not having improved to any appreciable degree in the last six years, her impairment was “serious”.[136]

[136]T145

338     Counsel for the defendant relied on Ashley JA’s comments in Dwyer v Calco Timbers Pty Ltd (No 2)[137] that when looking at what was lost, what had been retained must also be considered. 

[137][2008] VSCA 260 at paragraph [27]

339     It was submitted the plaintiff’s ability to work full time was relevant in this regard.  Whilst she had some problems with her neck, she was able to regularly work 40 hours per week.[138] Further, whilst there is interference with heavier housework, the plaintiff is able to do the shopping, cook and look after her children and take them to and from school.  She agreed that she was leading a pretty busy life.  She was able to travel overseas with her children on a number of occasions.  The plaintiff is able to attend the local church and still has a relatively active social life. 

[138]T126

340     Counsel for the defendant submitted that if the pain was to the extent she described, she would not be able to do these things.[139]   

[139]T126

341     Counsel for the plaintiff also submitted that the plaintiff’s recreational pursuits of running and reading had been affected by her neck injury.  However, there is little detail from the plaintiff as to what her pre-accident running involved and it was not said that this was a major activity for her.  In any event, she is still able to exercise on the treadmill at home.  She is still able to read for pleasure but is limited in her ability to do so.

342     I accept that the plaintiff does suffer some upset and frustration as a result of her neck and left arm pain, a consequence which can be taken into account in accordance with the principles in Richards v Wylie.[140]

[140](supra) at 140-1

343     Whilst the plaintiff experiences some ongoing neck and left shoulder pain, which at times is severe and she has then required Tramal, given her ability to work full time without any significant restriction, and the fact that she is still able to engage in most of her pre-injury activities, I am not satisfied the neck injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked.”