Gilantzis v Transport Accident Commission
[2014] VCC 1807
•7 November 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-05401
| ANASTASIA GILANTZIS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6, 7 and 8 October 2014 | |
DATE OF JUDGMENT: | 7 November 2014 | |
CASE MAY BE CITED AS: | Gilantzis v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1807 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Two preceding transport accidents – whether the third transport accident resulted in an aggravation of pre-existing spinal condition – whether the pain and suffering consequences and pecuniary disadvantage was “serious” – concurrent medical conditions affecting the shoulders and the right knee – the need for disentangling – film – creditworthiness and reliability
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Peak Engineering & Anor v McKenzie [2014] VSCA 67; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Richards v Wylie (2000) 1 VR 79
Judgment: The plaintiff has leave to bring a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Hore-Lacy QC with Mr A Newman | Zaparas Lawyers |
For the Defendant | Mr P D Elliott QC with Mr A Coote | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1 By an Originating Motion filed 9 November 2011, the plaintiff seeks the leave of the Court, pursuant to s93 of the Transport Accident Act 1986 (“the Act”), to bring a proceeding at common law to recover damages for injuries which she alleges she suffered in a transport accident which occurred on 19 February 2007.
2 The plaintiff alleges that she suffered a serious long-term impairment or loss of the function of her spine.
3 Mr D Hore-Lacy QC appeared with Mr A Newman of Counsel for the plaintiff. Mr P D Elliott QC appeared with Mr A Coote of Counsel for the defendant.
4 The following evidence was adduced at the trial of the proceeding:
· The plaintiff gave evidence and was cross-examined;
· Ms N Lucarelli gave evidence and was cross-examined;
· The plaintiff tendered the following evidence:
§ A summary of pain medication prescribed to her: exhibit A;
§ The plaintiff tendered her Court Book (“PCB”) pages 11-28, 29-31, 36-42, 44-247: exhibit B.
· The defendant tendered the following evidence:
§ Three photographs of the plaintiff’s motor vehicle: exhibit 1;
§ Film taken of the plaintiff on 8 and 13 June 2000: exhibit 2;
§ Film taken of the plaintiff on 21 and 23 August 2014: exhibit 3;
§ A statement of the plaintiff dated 20 April 2007: exhibit 4;
§ The Defendant’s Court Book (“DCB”) pages 9-32 and 73-83: exhibit 5;
§ An extract of the clinical notes of The Alfred hospital: exhibit 6;
§ An extract of the clinical notes of Dr Siapantis, general practitioner: exhibit 7.
The Plaintiff’s background
5 The plaintiff was born in August 1950 in Greece. She is now sixty-four years of age. She had modest schooling as a child in Greece. She married in 1971. She migrated to Australia with her husband, arriving on 16 March 1971. She has one child, a daughter, aged about forty-two years of age.
6 Within a month or so of arriving in Australia, the plaintiff found work as a sewing machinist. She worked for about two months. She stopped working because she fell pregnant with her daughter. She was absent from work for about one year before returning to work as a process worker. She worked in that capacity for twelve years. She then worked as a kitchenhand for between eighteen months and two years. She stopped working because she fell pregnant again; however, she miscarried. She was subsequently off work for about two years. In 1989, she commenced work as a kitchenhand with Fronditha Care Inc (“Fronditha”). She worked in that capacity for about one year. She was subsequently employed by Fronditha as a carer. She continued in that capacity until 2007 when the subject transport accident occurred.
The transport accident
7 In her first affidavit, the plaintiff described the occurrence of the transport accident as follows:
“ On the 19 February 2007, I finished work at about 2:30pm and was driving along Old Dandenong Road to see a friend. As I got near to my friend’s home I slowed down. It was a hot day. I was looking for shade to park. I had my left indicator on and was travelling at about 30 km/h. All of a sudden my car was hit in the rear by another car. I was shaken up and had some neck pain ... .”[1]
[1]PCB 22 and 16
8 In her statement dated 20 April 2007, she described the occurrence of the transport accident as follows:
“I was right out the front of Helen’s house when I felt the impact from behind. I only heard and felt the big bang, and did not hear any breaking noise before the impact … .
I felt the impact, and I was in shock … .”[2]
[2]Exhibit 4
9 The plaintiff was cross-examined on the statement. In particular, she was taken to a passage in which she described the damage to the other motor vehicle. She said:
“… The front of the other vehicle sustained damage right across the left front of the car.”
10 The plaintiff conceded that there was no damage to her motor vehicle. The photographs of her motor vehicle taken at some stage not long after the occurrence of the transport accident show that there was no damage to the rear of the plaintiff’s motor vehicle. The photographs were taken from an investigator’s report.
11 The plaintiff’s motor vehicle was a Holden Calais. There was a towbar fixed to the rear of her motor vehicle with a tennis ball over the tow ball. The impact between the motor vehicles would appear to have been between the numberplate area of Ms Lucarelli’s motor vehicle, and the tow bar of the plaintiff’s motor vehicle.
12 Ms Lucarelli was both examined and cross-examined about the impact and the damage to both motor vehicles. She said that she observed that there was no damage to the plaintiff’s motor vehicle. She said that there was very little damage to her motor vehicle. What damage she observed was to the numberplate and its surround. She swore an affidavit on 20 August 2014 to which a statement was exhibited. She made the statement on 8 May 2007.[3] Relevantly, she said that the plaintiff must have applied the brakes on her motor vehicle. That event was totally unexpected. She then said:
“ I had nowhere to go, and all I could do was brake. I estimate that I was only a couple of metres behind her when I looked back, and I just braked hard. The car is fitted with ABS, and did not skid. I recall that the Commodore had stopped to a stationary position, and had turned slightly to the left. I believe that I was doing well less than 20 km/h when I collided with the rear towbar. I cannot accurately estimate the speed, if the towbar had not been extended from the rear of the Commodore I do not think that I would have bumped into her car.”[4]
[3]DCB 74-81
[4]DCB 79
13 Much was made by the defendant of the extent of the damage to both motor vehicles. The purpose being to demonstrate that the impact between the two motor vehicles only produced modest force through the plaintiff’s motor vehicle. If that was so, then it would be expected that she would have suffered a modest injury.
14 A quotation for repair of Ms Lucarelli’s vehicle was tendered into evidence. It is a curious document. I will set out in full, and in the form of its drafting:
“To Whom It May Concern:
Upon inspection of ford falcon ba rego UDF 205 damage to front bar on approximately 26.2.07 we estimate damage to the bar was approximately $150 replace bar absorber as per photo
And repair cover. We estimate an impact at less than 20 kmph to represent this sort of damage in our view or towbar impact.”[5]
[5]DCB 82
15 Attached to the quote is a photograph. Its reproduction makes it impossible to determine what has been photographed. No effort was made by the defendant to obtain the original photograph, or at least a better version of the one which was tendered. The photograph is of absolutely no use at all.[6]
[6]DCB 83
16 Curiously, the defendant did not deny that there was a transport accident. It did not deny that the impact was sufficient to cause the plaintiff some injury to her spine. In fact, the defendant paid the plaintiff no fault benefits for medical treatment for the very injury which she alleges she suffered as a consequence of the transport accident. The real purpose in the attack made by the defendant upon the plaintiff in was to demonstrate that the plaintiff could only have suffered a modest injury.
The evidence
17 I will now turn to the evidence. Firstly, I reject the plaintiff’s evidence that there was damage across the left front of Ms Lucarelli’s motor vehicle.
18 Secondly, I accept the plaintiff’s evidence that she felt the impact through her motor vehicle. I accept that she was shocked and felt immediate neck pain.
19 Thirdly, I am fortified in reaching that conclusion because Ms Lucarelli had to brake “hard”. She estimates that she was travelling at perhaps 20 kilometres per hour, which is not a significant speed, but nonetheless a speed consistent with the production of force being generated from her motor vehicle through the plaintiff’s motor vehicle.
20 Fourthly, I do not accept that the quotation for repair is of any evidentiary value. Ms Lucarelli did not obtain the quotation. It was obtained by her former husband. It was apparently obtained from someone who was the friend of a cousin of Ms Lucarelli or her former husband. It is a curious quotation. The commencing words “To Whom It May Concern” leaves me with the impression that it was not so much a quotation for repair, but an attempt to obtain some evidence to establish that there was little damage to Ms Lucarelli’s motor vehicle, and that the damage was consistent with a low impact transport accident.
21 In the course of the exchange between myself, Mr Elliott and Mr Hore-Lacy, I referred to my experience of seeing quotations for repair in litigation in which I appeared as Counsel. I do not think my experience is outside the range of public knowledge, and indeed, and I do not think there was anything special about that experience. Quotations for repair are usually set out by reference to items which are relevant to the total cost of repair – whether there are any parts which need to be removed so that repairs can be undertaken with the parts being later refitted; whether parts need to be removed and replaced; what parts which are required, the cost of the foregoing and the cost of labour.
22 The quotation is not consistent with that experience. It is an “estimate” which makes it quite clear that no sophisticated step was taken by the provider to undertake a serious and detailed assessment of the need for repair. It is set out in a manner that makes it difficult to determine what is encompassed by the cost of $150.
23 Lastly, the provider then gave an opinion on causation. That opinion is wholly unacceptable. The provider has not qualified himself to give such an opinion. I would have thought that to give an opinion that damage is consistent with speed is a question of physics. Furthermore, a question of metallurgy, that is, the structure of Ms Lucarelli’s vehicle behind the numberplate may have been composed of high-grade steel which may not have been damaged by the impact. I think the cost of repairs is potentially very misleading. It does not demonstrate the quality of the impact between the two motor vehicles.
24 To propose that in some way I can conclude that the impact was modest, and therefore, would only have produced a modest injury on this evidence, is without much foundation. If the point was to be proposed seriously then the defendant should have examined this evidence forensically to determine whether it was of any value. It obviously did not do that. In the end I am only concerned with the hard evidence. That evidence is constituted by the evidence of the plaintiff which I accept, and the fact that Ms Lucarelli admits that she had to brake “hard”. I do not accept that the evidence discloses that the impact was a low impact.
25 I am fortified in reaching the latter conclusion because of the evidence of Dr Siapantis. I found his evidence to be very informative. He gave his evidence in a very considered manner, and indeed, in a very effective manner. On the issue of causation of the injury alleged by the plaintiff, he was candid in his acceptance that a low impact may not cause an injury of any particular substance, but it may. That latter evidence was given based upon his experience.
26 Unfortunately, the defendant provided a number of medical practitioners with either instructions and/or so-called evidence for the purpose of those medical practitioners giving an opinion on whether the impact could have resulted in the injury complained of by the plaintiff. Each of them was given the impression that the impact was low impact. The instructions and evidence they were given lacked detail and analysis. I think Mr Hore-Lacy’s submission, that much of the medical opinion was infected by that impression, is a reasonable characterisation and one which I accept. I will return to this subject later in these reasons.
The other transport accidents
27 The plaintiff suffered injury in two previous transport accidents, which occurred on 28 June 1994 and 10 November 1999. She described the first of those transport accidents and the injury which she suffered as follows:
“ On the 28th June, 1994 I was involved in an earlier transport accident. The motor car I was driving was hit in the rear. I hurt my neck and chest. I may have had a day or two off work but cannot remember. I was treated by my general practitioner at the time Dr Siapantis and a chiropractor Dr Gary Cook. I continued with my normal duties at work for Fronditha … .”[7]
[7]PCB 21
28 The plaintiff submitted a claim on the defendant dated 15 March 1995. She described the injuries she suffered as follows:
“WHIPLASH, SORE AND BRUISING OF LEFT SHOULDER, HEADACHES DIZZINESS NECK PAIN”[8]
[8]DCB 33-34
29 The plaintiff obtained treatment from Dr Cook, chiropractor. It would appear that Dr Cook was asked to undertake a review of his treatment of the plaintiff. That request was made by the defendant. The only record of his treatment that was tendered into evidence are his clinical notes, which I have to say are rather cryptic. Most of what is written on the page has been obscured by the photocopying process. What can be discerned is a reference to the plaintiff having 150 episodes of treatment at the hands of Dr Cook. He noted that by the consultation of 22 June 1998, that she was ninety per cent improved. Otherwise, his clinical notes are difficult to understand. No effort was made by either party to clarify his treatment of the plaintiff, and what the treatment was for.
30 No report was obtained from Dr Cook to explain the treatment he provided the plaintiff on those 150 episodes of treatment. Although, the figure of 150 episodes might immediately lead one to conclude that the plaintiff was suffering a significant physical problem that required treatment, it was treatment over nearly seven years. On average, that is about twenty episodes per year. Having said that however, all I can make of the treatment obtained by the plaintiff in that respect is that she must have had a physical problem worthy of the attention of a chiropractor.
31 The plaintiff was examined by Dr Moussalli, chiropractor, on 25 October 1995. After examining the plaintiff, he considered that she had suffered mechanical neck pain which involved the left posterior shoulder musculature, resulting in cervicogenic headaches. It would appear that he understood that Dr Cook was providing the plaintiff with chiropractic treatment. He expressed surprise that Dr Cook had not instructed the plaintiff to undertake exercises. He recommended that her chiropractic treatment be reduced.
32 The plaintiff was next examined by a Dr Moussalli on 16 October 1996. Examination of the plaintiff’s upper and lower limbs, neck and lower back were within normal limits with some restriction of movement and discomfort on neck rotation. There was some tenderness over the right sacroiliac joint on palpation. He considered that the plaintiff had become treatment focused. The plaintiff told him that she was not improving with the treatment provided by Dr Cook. Dr Moussalli spoke to Dr Cook, informing him that the plaintiff was not improving, to which Dr Cook was apparently surprised. It would appear that they both agreed that the plaintiff’s treatment would be reduced.[9]
[9]PCB 29-30
33 Neither Mr Hore-Lacy nor Mr Elliott expended much effort in addressing me on what I should make of the injuries suffered by the plaintiff on 28 June 1994. Their treatment of that transport accident was as if it was of rather marginal importance. Given the paucity of medical evidence diagnosing the plaintiff’s injuries, I propose to treat the injury suffered by the plaintiff on that date in the same way.
34 The plaintiff described the second transport accident of 10 November 1999 as follows:
“… I had a further transport accident on 10th November, 1999 when a car turned right in front of me. I injured my chest and abdomen with the seatbelt and also developed pain in my middle back spreading into my neck and shoulders. I again saw Dr Siapantis and also Dr Cook. I was referred to Dr Daniel Lewis, rheumatologist, and had physiotherapy. I believe I was off work for a few months before returning to work on normal duties but had ongoing pain in my middle back spreading into my chest and shoulders.[10]
[10]PCB 21
35 The plaintiff submitted a claim on the defendant dated 29 November 1999. She described the injuries she suffered as follows:
“NERVOUS SHOCK/NECK, BACK, SHOULDERS ABDOMINAL (INTERNAL INJURIES), CHEST, HIP + LEG PAIN/BRIEF LOSS OF CONSCIENCE, HEADACHE/RIGHT KNEE INJURY.”[11]
[11]DCB 35-36
36 Much like the transport accident of 28 June 1994, there is very little medical evidence of what medical treatment the plaintiff was provided after it occurred.
37 The plaintiff saw Dr Siapantis. In his three reports included in the plaintiff’s Court Book, only one makes any reference to what occurred in 1999, and then only very briefly. In his report dated 15 April 2007, he made an almost passing reference to what occurred in 1999 when he said:
“… She had sustained some soft tissue injury to her back in an accident that occurred in 1999 … .”[12]
[12]PCB 42
38 In her first affidavit, the plaintiff gave a brief summary of the medical treatment she was provided following the transport accident of 10 November 1999. She said that she saw Dr Siapantis and Dr Cook for treatment. She was referred to Dr Daniel Lewis, rheumatologist, for treatment. She was also referred to have physiotherapy. She was off work for “a few months” before returning to work on normal duties.
39 It would appear that the referral to Dr Lewis saw the plaintiff attend Cedar Court for rehabilitation. It is unclear when the plaintiff first attended Cedar Court, but a report dated 4 April 2001 prepared by Ms Fiona Thomas, occupational therapist, notes that the plaintiff attended Cedar Court on 28 March 2001 “for a review of her functional status”. The content of the report is contrary to what the plaintiff said in her affidavit relevant to how long she was off work before returning to normal duties. According to the history recorded by Ms Thomas at the time of the review, the plaintiff was working afternoon shifts four days per week.[13] The plaintiff told her that she was keen to upgrade her level of activity at work. Ms Thomas recommended at that stage that the plaintiff upgrade her working hours to three morning shifts a week for six to eight weeks, then four shifts per week, and then to reach a final stage of resuming full duties.[14]
[13]That appears to be confirmed by a short report from Dr Lewis dated 20 July 2000 at PCB 204
[14]PCB 36-37
40 What I have just referred to is difficult to reconcile with the plaintiff’s evidence that she was only off work for a few months before returning to work on normal duties. The impression that gives is that she returned to her normal duties reasonably quickly after returning to work. In any event, whether she returned to her normal duties or not, there is little doubt that her duties were modified in 2004 because the plaintiff suffered an injury to her left shoulder. In her first affidavit, the plaintiff said that she began to experience pain in her left shoulder in early 2004. That occurred for two reasons – the first was operating a defective trolley, which had wheels that would stick, and the second was lifting and moving residents.
41 Before the onset of the left shoulder injury, the plaintiff was examined by Mr Macintosh, orthopaedic surgeon, on 16 January 2002. After examining the plaintiff, he considered that the plaintiff had suffered a significant soft-tissue injury to her neck and lower back in the transport accident of 10 November 1999. He considered that the transport accident had significantly aggravated pre-existing degenerative changes in her neck and lower back. He considered that she would have symptoms for up to two years following the occurrence of the injuries, but at the time when he examined her, it was his clinical impression that she had recovered from those injuries. He considered that she did not require any treatment and was fit to return to full-time work with little or no restriction except for care with bending and lifting and the avoidance of sitting or standing for extended periods of time.[15]
[15]PCB 213-218
42 From the foregoing, I think it is reasonable for me to conclude that the plaintiff was absent from her employment for some period of time, perhaps extending into months. She returned to work on restricted hours. By about 2002, she made a sufficient recovery to be able to undertake her pre 10 November 1999 work until the occurrence of the injury to her left shoulder.
The Plaintiff’s shoulders
43 It is now necessary to understand the extent to which the plaintiff’s left shoulder injury interferes with her capacity for employment. The plaintiff made that clear enough in her evidence when she said:
Q:“Up until 2007 - before then – you were on light or modified duties?---
A:For three years, yes.
Q:Leading up to the accident in 2007, how were your duties modified?---
A:I was normal. I was working normally. I was doing my shopping. I was doing my housework.
Q:You might know what ‘normally’ means where you were working, but we don’t. What actual functions were you performing?---
A:At the nursing home, you mean?
Q.Yes? ---
A:I shaved the men; I helped some of the people having showers; I made coffee and gave it to them; I fed the elderly; and I gave them tablets, their medication; and I was also company to them, I talked to them.
Q:In what way were your duties modified?---
A:From 2000 to 2004, I was working normal – I did all the normal tasks. I would lift patients. All the jobs, all the tasks that carers had to do, I did them too up to 2004.
Q:How did that change in 2004?---
A:Because of the tendon problem that I had in my left arm.
Q:Did you in fact have modified duties right up until the accident in 2007?---
A:Yes.
Q:In what way were they modified?
A:Well, I stopped lifting, for instance. That’s one thing. Pushing tub chairs – the elderly that I put into tub chairs, we had to push and pull. Well, I didn’t do that. They needed – the elderly that weren’t able to walk needed to be taken somewhere. Well, we would push the wheelchairs. Sometimes if they were walking, we would hold onto them with other girls. The heavy nature of the tasks were taken away from me.
Q:What was it that prevented you doing that?---
A:My arm.”[16]
[16]Transcript 119-120
44 The plaintiff saw Dr Siapantis. He referred the plaintiff to have an ultrasound of her left shoulder. Fronditha referred the plaintiff to Dr Mallios, medical practitioner.[17] The plaintiff was led to understand that she had suffered a tear of one of the soft tissue structures in her left shoulder. She was off work for about two weeks before returning to work on modified duties. Subsequently, she continued performing modified duties up to the time when the transport accident of 10 November 1999 occurred.
[17]Specialty unknown
45 The plaintiff subsequently developed a similar problem with her right shoulder. Dr Bala, general practitioner, referred the plaintiff to see Mr Tran. He referred her to have an ultrasound. It was performed on 19 May 2010. The radiologist reported that the ultrasound showed a persistent full-thickness defect of around 1 centimetre in diameter in the supraspinatus tendon anteriorly.
46 Otherwise, there is very little evidence to describe the nature and disabling effect of the soft-tissue problems which the plaintiff suffers in both of her shoulders. Under cross-examination, she said that she has obtained treatment at The Alfred hospital for her shoulders. She has had a cortisone injection into each shoulder. The good effect of the cortisone injections has been short lived. She said that she is thinking about having surgery, but will see how she goes before making a final decision whether to have it or not.[18]
[18]PCB 24 and Transcript 118-119
47 There is no doubt that the plaintiff suffered soft-tissue problems with both shoulders; however, the only interference with the plaintiff’s capacity for work attributed to these problems, is her ability to perform the heavier tasks involved in her employment, which I have referred to in paragraph 43 above. Otherwise, the plaintiff was able to return to unrestricted duties from about 2002 to 2004, and then was able to continue performing her work with modifications until the transport accident of 19 February 2007. Dr Siapantis did not believe that the condition of the plaintiff’s shoulders interfered with her capacity to perform her modified duties.[19]
[19]Transcript 113
The Plaintiff’s right knee
48 The plaintiff suffers from a condition affecting her right knee for which she will require a knee replacement. It is difficult to determine when the function of her right knee began causing her appreciable pain and interference with her mobility. In her first affidavit, she referred to having problems with her right knee in July 2009 when she was treated by Dr Bala.[20] He referred her to have an x-ray of her right hip and knee. The x-rays showed medial compartmental narrowing, osteophytes involving both medial and lateral compartments and associated patellofemoral compartment involvement, consistent with osteoarthritis. [21] She made very little other reference to her right knee in that affidavit or in her subsequent two affidavits.
[20]PCB 23 and the report of Dr Bala at PCB 48
[21]PCB 66
49 Under cross-examination, she described the problems she has with her right knee as follows:
Q:“So it’s not as bad as the knee which is going to have the operation?---
A:I am going to have an operation on my knee and then I will see, because I have a lot of pain and it’s very difficult, especially at night in bed. I can’t lie on either side. When I turn, it hurts.”[22]
[22]Transcript 119
50 The references made by Dr Siapantis to the plaintiff’s right knee are very brief. He said that the condition of her right knee affects the plaintiff to the extent that it would prevent her from working now. He was aware that she had been advised to have a knee replacement.[23]
[23]Transcript 100 and 113-114
The Plaintiff’s persisting neck and lower back pain
51 The plaintiff candidly conceded that following the transport accident of 10 November 1999 she continued to be troubled by neck and lower back pain. The plaintiff was asked to provide a measurement of the degree of that pain. She said:
Q:“Before the accident happened in 2007, did you get any more than the odd headache?---
A:No, I didn’t.
Q:Before 2010, on a scale of 0 to 10, how would you rate your neck pain?”
INTERPRETER:
Q:“Before 2007?”
MR HORE-LACY:
Q:“Before 2007?---
A:3.
Q:Your back pain at its worst before 2007, on a score of 0 to10?---
A:4.
Q:Did you have before the accident neck pain all the time or did it come and go?---
A:I didn’t have pain all the time in my neck.
Q:And your lower back pain, did you have lower back pain all the time or did it come and go?---
A:I didn’t have pain all the time in my low back. Every so often I get pain in my low back.”[24]
[24]Transcript 122-123
52 The plaintiff saw Dr Siapantis on 22 January 2007 complaining of pain in her in her lower back. He noted that the plaintiff was experiencing pain in her left shin. He thought it was pain radiating from her lower back. He also thought that the pain might be sciatic in origin. He referred the plaintiff to have a CT scan, which was performed on 22 January 2007.[25] He prescribed her Panadeine Forte to treat the pain. Under cross-examination, Dr Siapantis described the plaintiff’s presentation on that date as a “significant presentation”.[26] He went on holidays after he referred the plaintiff to have the CT scan. I was left with the impression that he did not review the plaintiff, nor did she return for a review.[27]
[25]PCB 65
[26]Transcript 93
[27]Transcript 94
The picture before the 2007 transport accident
53 I think the foregoing summary is sufficient to capture the injuries suffered by the plaintiff in the transport accidents of 28 June 1994 and 10 November 1999.
54 The findings I now make relevant to the before picture are:
· The plaintiff suffered injuries in the transport accident of 28 June 1994 requiring nearly 150 episodes of chiropractic treatment.
· Despite the volume of chiropractic treatment, the plaintiff was able to work for Fronditha on unrestricted duties until the transport accident of 10 November 1999 occurred.
· The plaintiff was absent from her employment with Fronditha for more than just a few months before returning to normal duties and normal hours. It would appear that it was not until about 2002 that she returned to her normal duties and normal hours.
· The plaintiff persisted with normal duties and normal hours until some time in 2004, when she suffered a soft-tissue injury to her left shoulder. It was that injury and its consequences which resulted in the plaintiff being put onto modified duties. The more arduous physical tasks in her duties were removed. She was then left with much lighter duties, and was able to perform those without incident.
· Despite suffering persisting pain in her neck and lower back, up to the occurrence of the transport accident of 19 February 2007 she was able to continue working on modified duties. It was not constant pain. The impression I was left with was that the plaintiff suffered pain reasonably frequently, but not every day.
· Between 2002 and 2007, it would appear that the plaintiff was having little or no medical treatment, indeed, that was the evidence of Dr Siapantis. He said that there may have been “a couple of occasions” that the plaintiff complained of having back pain on and off between 1999 and 2007.[28] That might have been Dr Siapantis’s recollection, but, of course, she was being treated by Dr Cook and Dr Lewis, at least between 1999 and 2002.
· It would appear that the real reason why she reduced her normal duties down to modified duties was because of the onset of the soft-tissue problems with her left shoulder.
[28]Transcript 93
The picture following the 2007 transport accident
55 The plaintiff saw Dr Rao, general practitioner, on 20 February 2007. He is at the same clinic as Dr Siapantis. The plaintiff told Dr Rao that she felt stiffness in her neck and lower back. She took Celebrex and Panamax to treat her lower back pain. They were medications which she had available to her. On examination, he found tenderness and muscular spasm over the whole of the plaintiff’s spine, and restricted movements due to pain. She was provided stronger analgesic medication. She was reviewed by Dr Rao on 22 and 23 February 2007, complaining of persisting pain in her lower back. Further examination revealed that she had tenderness over the whole of her thoraco lumbar spine.
56 Dr Siapantis first saw the plaintiff on 15 March 2007. On that occasion, she told him that she was suffering from pain in her neck, headaches and pain in her lower back. On examination, he found tenderness of most of the plaintiff’s spine. She had about 10 per cent of range of movement in all directions.[29]
[29]PCB 41-42
57 The plaintiff continued seeing Dr Siapantis. He referred her to a number of other practitioners for treatment. I will refer to those other practitioners later in these reasons. In his last report dated 24 August 2014, he said that the plaintiff was unfit for work. He certified her as being unfit for work “due to her neck and back conditions”. He referred to the fact that the plaintiff had been incapacitated from work for the previous seven years, and that it was his opinion that there was little likelihood of her regaining an ability to return to work in the foreseeable future. He considered her prognosis was poor. He considered that she would require strong medication, presumably to treat the pain in her neck and lower back.[30]
[30]PCB 61-62
58 The Dr Siapantis also referred to other medical conditions which trouble the plaintiff. In the months preceding the provision of his last report, he noted that she was suffering depression. He considered that the depression resulted from the chronic nature of the plaintiff’s disabling pain in her neck and back. He prescribed her Avanza. He also referred to the fact that the plaintiff was suffering from shoulder tendinitis, knee osteoarthritis and diabetes. I will refer to these conditions in more detail later in these reasons.
59 Dr Siapantis referred the plaintiff to Dr Bala, consultant physician in rehabilitation medicine. The plaintiff first saw him on 23 April 2009. At that time, the plaintiff had been prescribed Tramadol for pain relief. She was also taking Panadol. He told her to stop using that medication, and instead he prescribed her Di-Gesic. He instructed her to take two to three Di-Gesic tablets per day.[31] He examined her again on 9 April 2009. He concluded that she had developed a “chronic persistent pain with whiplash associated disorder”, which had disabled her.[32] It was his plan to refer her to pain management at Epworth Rehabilitation in Camberwell. When Dr Bala reviewed the plaintiff on 23 July 2009, the plaintiff had not commenced a pain management program. She told him that she was suffering a lot of right knee and hip pain. He referred her to have an x-ray of both her right knee and hip.
[31]PCB 43
[32]PCB 46
60 There are no other reports from Dr Bala regarding the plaintiff’s attendance at a pain management program. The plaintiff said that she did attend such a program. It commenced in October 2009. The plaintiff attended twice a week for two to three hours. The program involved instruction regarding exercise, physiotherapy treatment, counselling and occupational therapy. She attended the program for some months. It did not improve the levels of pain she was experiencing or her levels of disablement.[33]
[33]PCB 24
61 The plaintiff informed Dr Bala that she was suffering from pain in her right shoulder. He then referred the plaintiff to Mr Tran. It would appear that Dr Bala ceased treating the plaintiff at around that time.
62 The plaintiff had other medical treatment as well. She saw Dr Cook, who provided her with chiropractic treatment. She saw a Dr Liveriadis, chiropractor. She wanted a second opinion, presumably about the treatment provided to her by Dr Cook. Dr Liveriadis referred her to have an x-ray of her spine and pelvis. It was performed on 15 October 2007. He then recommended that the plaintiff return to Dr Cook for treatment.
63 Dr Cook provided a report dated 14 January 2010. The plaintiff first saw him on 20 March 2007 for treatment for the injury she suffered in the transport accident of 19 February 2007. He told her that she was suffering from pain in her neck, continuous headaches, bouts of dizziness, pain in both shoulders, pain in the lower back and pain in her left leg. She told him that the pain just described came on immediately following the transport accident.
64 Dr Cook noted that he had treated the plaintiff following the transport accident of 10 November 1999, and that the plaintiff had been injured in a prior transport accident of 28 June 1994. On examination, he found a lack of lateral flexion of the neck with restricted rotation. There was moderate spasm of the neck musculature. He found lumbar extension was restricted by pain. He also found pain in the left sacroiliac joint. He considered that the plaintiff had suffered a moderate acute lumbar sacroiliac strain injury and a moderately acute cervical strain injury resulting from the transport accident of 19 February 2007. He considered that she was unfit for work or any employment involving bending, lifting and long periods of standing. He considered that her condition could be improved with treatment.[34]
[34]PCB 50-52
65 Dr Cook referred the plaintiff to have a full spine x-ray, which was performed on 4 August 2009. Dr Siapantis referred the plaintiff to have an MRI scan of her neck and mid back, which was performed on 29 September 2009. Both the x-ray and the MRI scan show that the plaintiff was suffering from degenerative changes in her spine.
66 Mr Hore-Lacy tendered a summary of pain medication prescribed to the plaintiff by Dr Siapantis.[35] It noted the following:
[35]Exhibit A
· In 2007, the plaintiff was provided with one prescription for Panadeine Forte, and four prescriptions for Tramal.
· In 2006, she was provided with one prescription for Panadeine Forte.
· In 2005, she was provided with one prescription for Voltaren and two prescriptions for Panamax.
· In 2004, she was provided with one prescription for Tramal, one for Naprosyn, two for Panamax, and one for Vioxx.
67 Following the transport accident of 19 February 2007, the prescription of medication increased very dramatically. For example, in 2007, she was provided with one prescription to Panadeine Forte and four for Tramal. In 2008, seven prescriptions for Tramal and three for Panamax. By 2014, the number of prescriptions of medication were very significant – four for OxyContin, eighteen for Tramal and eighteen for Panadeine Forte.
68 Dr Siapantis referred the plaintiff to Mr Wearne, orthopaedic surgeon. The plaintiff saw him on 26 August 2011. Mr Wearne was not told that the plaintiff had suffered an injury in the transport accident of 19 February 2007, nor that she had suffered injury in the two previous transport accidents. It would appear that the plaintiff was referred to him for a general opinion regarding appropriate treatment for her spinal condition. He did obtain a history that the plaintiff commenced suffering lower back pain in 2001, which was worsening, particularly after 2007.
69 The plaintiff told Mr Wearne that the pain she was experiencing was interfering with her sleep, reducing her capacity to sit and stand, reducing her capacity walk, and consequently, her capacity to do domestic tasks such as shopping, mopping and sweeping. They are the consequences which the plaintiff says she has suffered since the transport accident of 19 February 2007. He considered that the plaintiff needed something more than analgesics. He informed Dr Siapantis that he intended to refer the plaintiff to the Neurosurgical Outpatients Department at The Alfred hospital to determine whether she was a suitable candidate for an epidural steroid injection.[36]
[36]PCB 53-54
70 The plaintiff said that she was advised by medical practitioners at The Alfred hospital to cease having chiropractic treatment, and to have physiotherapy treatment instead. It was then that she began attending physiotherapy at the Bentley Bayside Community Health Centre. She attended the Outpatient Clinic at The Alfred hospital about every two to three months. On 20 November 2012, she was given an epidural injection into her lumbar spine. She had a second injection in January 2013. It is not clear whether it was an epidural injection. Whatever it was, the plaintiff said that it only gave her temporary relief.[37]
[37]PCB 18
71 In February 2013, Dr Siapantis referred the plaintiff to the Metropolitan Spinal Clinic. She was treated by Dr Verrills, physician. He gave her a CT-guided injection into her lower back in mid-2013 and another in about October 2013. The plaintiff said that the injections numbed the pain, but were otherwise not effective in reducing her pain.
72 Dr Siapantis referred the plaintiff to have a CT scan of her lower back, which was performed on 31 March 2014.[38] He then referred the plaintiff to Dr du Toit, physician, in May 2014, who is at the same clinic as Dr Verrills. He was provided with the CT scan. He considered that the plaintiff was suffering from pain emanating from the plaintiff’s lower lumbar facet joint and from canal stenosis. He recommended that she have bilateral L4-5 facet joint injection and a repeat epidural injection.[39]
[38]PCB 57
[39]PCB 55
73 Mr Elliott cross-examined Dr Siapantis on a number of matters which I propose to summarise, because they are important in gaining an understanding of how the plaintiff was functioning before the transport accident of 19 February 2007 occurred. It is also important to try to put into perspective a number of other medical conditions that she has acquired, which are potentially concurrent medical conditions also having pain and suffering consequences requiring consideration:
· The plaintiff has a number of concurrent conditions - her shoulders, right knee, diabetes, high blood pressure and stress.[40] He did not accept that the incapacity suffered by the plaintiff is due to concurrent conditions and only a fraction to the injury to her spine.[41] He considered that the plaintiff’s pain levels were quite significantly worse after the transport accident of 19 February 2007.[42]
[40]Transcript 93
[41]Transcript 112
[42]Transcript 114
· He did not accept the opinion of Dr Fraser, rheumatologist, that at the age of 60 years the plaintiff had effectively reached the end of her working life because of those other medical conditions.[43] He believed that the plaintiff’s right knee condition would have stopped her from working over the last 6 to 12 months, meaning late 2013 to early 2014.[44]
[43]Transcript 98-100
[44]Transcript 114
· The plaintiff has been advised to have surgery to both of her shoulders. He believed that the plaintiff had been advised to have a total knee reconstruction.[45]
[45]Transcript 100
· The plaintiff’s blood pressure is under control.[46]
[46]Transcript 100
· The plaintiff had suffered soft tissue injuries to her spine and an aggravation of underlying degenerative changes in her spine as a result of the transport accident of 19 February 2007. [47]
[47]Transcript 98 and 100
· Individuals who suffer the kind of injuries suffered by the plaintiff often recover from those injuries, but some do not.[48]
[48]Transcript 100
· The depression which the plaintiff has suffered is secondary to the chronic nature of the pain that the plaintiff suffered to her spine.[49] He did not accept that the plaintiff was amplifying her symptoms because of the onset of depression.[50]
[49]Transcript 101
[50]Transcript 106-107
· The plaintiff could not return to modified duties.[51]
[51]Transcript 103
· The prior lower back pain from which the plaintiff was suffering before the transport accident of 19 February 2007 was not sufficient to stop the plaintiff from working.[52]
· On the occasions he has examined the plaintiff since the transport accident of 19 February 2007, he has not noted any inconsistencies in her presentation, such as, evidence of abnormal illness behaviour.[53] He did not accept that fibromyalgia is a condition. He sometimes used the expression “chronic pain syndrome” to describe symptoms he has seen in some of his patients.[54] The context in which he has used the expression “chronic pain syndrome” is to describe individuals who have experienced pain for a considerable period of time, which continues to be incapacitating. He considered such a condition to be as real as a broken bone.[55]
[52]Transcript 105
[53]Transcript 106-107
[54]Transcript 108-111
[55]Transcript 116
The plaintiff’s consequences
74 The plaintiff said that she suffered the following consequences as a result of the injury to her spine:[56]
[56]Plaintiff's consequences are to be found in her first affidavit at PCB 24-28 and 17-19
· Persistent pain that is significantly greater than the pain which she suffered before the transport accident of 19 February 2007. She rated the increase in pain in her neck to be 8/10 and in her lower back to be 9/10.[57]
[57]Transcript 120-121
· The pain that the plaintiff experiences in her neck limits her capacity to move her neck looking up, turning it and prolonged looking down. The pain spreads into her shoulders and shoulder blades.
· She suffers headaches usually in the morning. She suffers headaches about five days out of seven.[58]
[58]Transcript 121
· She experiences an aching pain spreading across her lower back which is present all of the time. The pain extends into her right leg. She experiences a sensation of weakness in her right leg. The pain in her lower back is worsened with bending or twisting. She tends to move more slowly in order to avoid the onset of back pain.
· Her capacity to sit and stand is limited. She can sit for about 30 minutes before the pain in her lower back increases. She then needs to move around. She was provided with a special chair by the defendant, which is more comfortable for her than an ordinary chair.
· She is able to drive a car from about 30 minutes at a time. After that time, she experiences increased pain in her neck, and pain in her lower back. In that setting she can experience pain in her right leg and weakness in the leg.
· She has difficulty getting off to sleep because of the pain in her neck and lower back. She needs to be careful when she turns over during the night. She will wake during the night 3 to 4 times. She gets out of bed and moves around.
· She uses heat packs and ice packs on her neck and back in an attempt to reduce the pain she experiences.
· She continues to do the cooking for herself and her husband; however, she can no longer do some aspects of cooking; for example, performing prolonged kneading of dough when making pastries and biscuits.
· She continues to wash clothes. She no longer hangs them on the line to dry. She hangs them on racks on a veranda.
· A cleaner comes in and does the vacuuming, mopping, and cleaning of her bathroom. One of her friends assists her to clean her home. She basically does the dusting and makes the beds.
· She is restricted in attending community functions with the Greek community.
· She continues to see Dr Siapantis. He has referred her for treatment to a number of specialists. I have summarised their treatment above. She continued to have physiotherapy once a week. She has prescribed the medication I have summarised above.[59]
· She is no longer able to work in her modified duties with Fronditha. She is able to care for her husband who is mostly blind and dependent upon her. She is paid $118 by the Federal Government to be her husband’s carer.[60]
[59]Exhibit A.
[60]Transcript 119
The medico-legal evidence
75 I do not intend to traverse all of the medico-legal evidence in detail. I have formed a view consistent with the submission made by Mr Hore-Lacy, that a number of medical practitioners were led to understand that the impact was low impact, and on that basis, determined that the plaintiff’s injury is more likely to be minimal, and that the consequences claimed by the plaintiff are exaggerated due to the prior transport accidents, or more consistent with a chronic pain syndrome. My reference to a chronic pain syndrome is a reference to the consequences being more driven by the plaintiff’s emotional state than referable to a physical injury.
76 In most serious injury applications, the opinion of the treating general practitioner is no doubt of significance. It is usual to see that the general practitioner has treated the plaintiff from an early time, and therefore, is in a particularly good position to offer a worthwhile opinion about whether a an injury has been suffered, and what impairment consequences have resulted from the injury. However, it is very often the case that the opinions of treating specialists, and medico-legal specialists are considered to be superior to the opinions of the general practitioner, however, after analysing all of the medical evidence I have reach the conclusion that the most persuasive medical evidence is that of Dr Siapantis.
77 Firstly, I found his description of the results of the transport accident to be compelling. He was not persuaded that the force of the impact was necessarily the starting point nor the finishing point in determining whether the plaintiff suffered a significant injury or not. Whilst he conceded that there are instances where a low impact will result in a minor injury, he said that is not always the case. He said so much depends upon the flexion and extension that occurs as a result of a rear end impact.[61]
[61]Transcript 92
78 Secondly, the medical practitioners who have focused in on the force of the impact were not provided with the other medical evidence which I have before me. For example, my reason for summarising the evidence of Dr Rao, Dr Siapantis, Dr Bala and Dr Cook was to determine what complaints the plaintiff was making in a period that was relatively contemporaneous with the occurrence of the transport accident. What impresses me is that her complaints were of significant pain and restriction of movement. None of those medical practitioners considered that the complaints were out of keeping with the transport accident.
79 Thirdly, I thought that Dr Siapantis’ evidence was compelling in many other respects. He gave an insight into the plaintiff, which is helpful to me in determining whether the plaintiff is a credit worthy and reliable witness. He believed that the plaintiff is “quite credible”. He said that the plaintiff was definitely not exaggerating or being untruthful.[62] It is sometimes submitted that general practitioners have a tendency to be biased in their evidence in favour of their patient. I did not detect that in the evidence of Dr Siapantis. Therefore, I consider that his assessment of the plaintiff confirms my own assessment, that she is both a creditworthy and reliable witness.
[62]Transcript 116
80 Fourthly, what is so very apparent is that the plaintiff was significantly troubled by pain in her spine very early on. Dr Siapantis referred her to Dr Bala, Dr du Toit and Dr Verrills and Mr Wearne. He referred the plaintiff to have radiological investigations as well. The referrals were made because Dr Siapantis considered that the plaintiff had a spinal problem of such significance that she needed specialist attention to obtain appropriate treatment to ameliorate the symptoms which were troubling her.
81 Fifthly, the treatment provided to the plaintiff is entirely consistent with the sort of treatment that would be provided to someone suffering from a significant injury producing significant symptoms. The plaintiff has had chiropractic treatment, physiotherapy treatment, injections and prescription of significant loads of medication. None of that treatment is the sort of treatment that I would consider a person would have who is injury focused or exaggerating symptoms for gain. The epidural injections which that were administered to the plaintiff, were likely to have been painful, and hardly insignificant episodes of treatment.
82 Sixthly, none of the plaintiff’s treating medical practitioners doubt the plaintiff’s credit worthiness and reliability.
83 I have balanced my analysis of the plaintiff’s evidence, the medical evidence on both sides and the submissions of Counsel. I am strongly inclined to accept the plaintiff’s evidence and the evidence of Dr Siapantis in whole for the reasons which I have made very apparent above.
84 However, having got this far I must analyse the medico-legal evidence, the films taken of the plaintiff, and the extent to which the concurrent injuries to her shoulders and right knee require me to take the approach referred to in Peak Engineering & Anor v McKenzie.[63]
[63][2014] VSCA 67
85 I propose to only provide a short summary of the medico-legal evidence:
· Mr Mangos, general surgeon, examined the plaintiff on 15 February 2010. He accepted that she had suffered a severe aggravation of previous injuries to her spine despite the transport accident being relatively minor. He considered that she was incapacitated for work and her prognosis was poor.[64]
[64]DCB 71-74
· Mr Flanc, vascular and general surgeon, examined the plaintiff on 28 April 2010 and 31 August 2014. He was told that there was a lot of damage to the front of Ms Lucarelli’s motor vehicle. He considered that the plaintiff had suffered a muscular ligamentous injury to her neck and an aggravation of degenerative changes, and an aggravation of degenerative changes in her lower back. He was aware that there was no damage to the plaintiff’s motor vehicle. He considered that the transport accident of 19 February 2007 had probably reduced the plaintiff’s capacity for work by half. He did not consider that the transport accident had resulted in a substantial aggravation of the degenerative condition of the plaintiff’s lumbar spine.[65] After examining the plaintiff on the second occasion, he was of the opinion that the main reason why the plaintiff ceased work was because of the increased severity in the pain she was suffering in her neck and lower back.[66]
[65]PCB 95-109
[66]PCB 153-163
· Mr Haw, orthopaedic surgeon, examined the plaintiff on 23 November 2012. The plaintiff told him that she suffered a significant aggravation of her neck and lower back pain in the transport accident of 19 February 2007. Interestingly, he attributed 40 per cent of her neck pain and 50 per cent of her lower back pain to the transport accident. He considered that she had suffered a significant disability and her prognosis was for ongoing symptoms.[67]
[67]PCB 127-130
· Dr Thomas, consultant in rehabilitation in pain medicine, examined the plaintiff on 28 February 2013. He considered that the plaintiff had suffered an aggravation of degenerative changes in her neck and lower back; however, he did not think the degree of aggravation was “marked”. He considered that the dominant problem troubling the plaintiff was more one of overriding diffuse and widespread pain syndrome consistent with fibromyalgia. He considered that she had some capacity to return to her previous work duties or to light duties. He considered that the combination of the plaintiff’s organic and non-organic presentation painted a picture of significant disability.[68]
[68]PCB 123-126
· Dr Blombery, vascular physician, examined the plaintiff on 5 June 2014. He considered that the plaintiff had suffered whiplash-type injuries in the three transport accidents. He considered that the transport accident of 19 February 2007 had resulted in the plaintiff suffering severe pain in her neck and lower back, which had not improved. He considered that an appropriate diagnosis was that the plaintiff had suffered an organic disorder of pain nerve pathways resulting in sensitisation of those pathways, both in the periphery and as well as the brain and spinal cord. He considered that her prognosis for recovery was poor and that she was incapacitated for employment.[69]
· Mr Kossmann, orthopaedic surgeon, examined the plaintiff on 19 August 2014. He considered that the plaintiff had suffered an aggravation of mild cervical spondylosis and an aggravation of lumbar spine degenerative facet joint disease. He considered that she was incapacitated for employment and would suffer interference with her activities of daily living.[70]
[69]PCB 139-144, but particularly at PCB 177-182
[70]PCB 164-175
86 All of the medical practitioners whose opinions I have briefly summarised examined the plaintiff at the request of her solicitors. They were provided with sufficient information to enable them to understand that the plaintiff had suffered injury in three transport accidents, the transport accident of 19 February 2007 being the last. Most of them were aware that there was an issue about force of the impact, but not all of them. Most of them were aware of the treatment which the plaintiff had been provided from the first occasion she saw a medical practitioner.
87 All of these medical practitioners, except for Dr Thomas, are of much the same opinion as Dr Siapantis. As a consequence, I am fortified in accepting the opinion of Dr Siapantis as being a well-considered opinion regarding the injury that the plaintiff suffered in the transport accident of 19 February 2007, and the gravity of the injury and its consequences to the plaintiff.
88 The defendant requested the following medical practitioners to examine the plaintiff on its behalf:
· Dr Hocking, occupational physician, examined the plaintiff on 17 December 2007. He considered that the plaintiff was suffering from fibromyalgia. He described that as being generalised tenderness over the body and stiffness of movements and fatigue. It would appear that he considered that the fibromyalgia was secondary to the transport accident of 19 February 2007. He considered that the prior transport accidents had resulted in sensitisation of her pain system, and her diabetes had contributed to that state of affairs. Otherwise, he doubted the value of considering chiropractic treatment. He suggested that the plaintiff be treated with medication to treat the fibromyalgia, and that she engage in gentle aerobic exercise.[71]
[71]DCB 225-230
· Dr Elder, occupational and environmental physician, examined the plaintiff on 17 September 2008. Unlike all of the other medical practitioners, he found it difficult to find a mechanism of injury which could be linked to the plaintiff’s complaints and symptoms. He concluded, presumably from the material he was provided, that there was “absolutely minimal mechanism of injury”. He considered that there was “significant iatrogenesis” in the plaintiff’s presentation. Iatrogenesis meaning that her presentation had been complicated by the nature and extent of the medical treatment she had been provided.[72]
[72]PCB 242-247
· Dr Baker, occupational physician, examined the plaintiff on 15 June 2010. His attention was directed to making an assessment under the “Fourth Edition of the Guides”. He accepted that she had suffered an aggravation of pre-existing asymptomatic degenerative changes in her neck and lower back.[73]
[73]DCB 11-16
· Mr Simm, orthopaedic surgeon, examined the plaintiff on 30 October 2012. On examination, he considered that she showed a strong symptom focus and displayed features of illness behaviour with overt signs of pain. In the context of the three transport accidents, he described the injuries suffered by the plaintiff in the transport accident of 19 February 2007 as consistent with “a long past history of relaxing neck and back pain, in association with features of a Chronic Pain Syndrome and emotional disturbance”. He found it difficult to accept that years of severe and disabling pain could result from what was apparently trivial impact.[74]
· Dr Fraser, rheumatologist, examined the plaintiff on 25 September 2013. Unlike nearly all of the medical practitioners who examined the plaintiff, either from a treating or a medico-legal perspective, Dr Fraser considered that none of the transport accidents accelerated the degenerative changes in the plaintiff’s spine. He considered that there might have been some temporary symptomatic aggravation as a result of the transport accidents, but if there was, it had long since resolved. He considered that her presentation was out of all proportion to the clinical and radiological findings. He considered that there were non-organic factors which were relevant to her presentation. However, he considered that she was partially incapacitated for work.[75]
[74]DCB 19-28
[75]DCB 29-31
Conclusions – the 2007 transport accident
89 The transport accident of 19 February 2007 was, at first blush, a minor transport accident. It is capable of being described that way, because there was no damage to the plaintiff’s motor vehicle and apparently minimal damage to Ms Lucarelli’s motor vehicle. However, for reasons which I have made plain, I think it is flawed logic to assume that the damage to both motor vehicles necessarily means that the plaintiff did not suffer a flexion/extension injury of some significance. In that respect, I prefer the evidence of Dr Siapantis, who considered that the plaintiff did suffer a significant flexion/extension injury.
90 I am fortified in reaching that conclusion because of the complaints made by the plaintiff to a number of medical practitioners relatively contemporaneously, that she was suffering from significant symptoms of pain in her neck and lower back. Those complaints were made at a time before litigation was in contemplation, and were consistent with the sort of flexion/extension injury which Dr Siapantis believes the plaintiff suffered. In consequence of these findings, I accept the plaintiff’s evidence that in the immediate aftermath of the transport accident, she experienced pain in her neck and lower back.
Reconciling the medical evidence
91 There is a very obvious contrast in the medical evidence. The medical practitioners who doubt the plaintiff are Dr Thomas, Dr Elder, Mr Simm and Dr Fraser. In summary, they consider that the plaintiff’s presentation is non-organic. That is to be contrasted with all of the other medical practitioners who appear to disagree. Those medical practitioners consider that there is an organic basis to the complaints of pain and disablement made by the plaintiff.
92 Being faced with medical evidence in such contrast is no novelty in serious injury applications. The difficult task for Judges is to reconcile the evidence of the plaintiff and the medical practitioners to determine whether the preponderance of the evidence, on the balance of probabilities, discloses that the plaintiff did suffer an organic injury, and that the organic injury is responsible for the consequences which are to be considered as amounting to a serious injury.
93 I prefer the evidence of the plaintiff’s treating medical practitioners who treated the plaintiff through 2007, 2008 and 2009. Their evidence bears out a clear consistency of diagnosis and treatment. They appear to have diagnosed that the plaintiff had suffered a soft-tissue injury with aggravation of degenerative changes. They treated the plaintiff accordingly.
94 I have summarised the evidence of those treating medical practitioners. Without repeating that summary, it occurs to me that the plaintiff was under a fairly intensive regime of treatment in 2007, 2008 and 2009, even entering 2010. Despite that level of treatment in 2007, Dr Hocking considered a diagnosis of a different condition altogether, being fibromyalgia. In 2008, Dr Elder essentially suggested that the plaintiff was being treated inappropriately, and that the extent of the treatment was entrenching in her mind that she was injured. I should add at this point that the opinion of Dr Elder is remarkable in two senses – firstly, and as far as I can see, all of the treating medical practitioners knew of the treatment regime she had undergone before she came under their care; secondly, his opinion was not put to any of the treating medical practitioners for their comment. It is not my intention to overstate the gravity Dr Elder’s opinion, but it squarely attacks the diagnosis made by each of those treating medical practitioners and the veracity of their treatment of the plaintiff.
95 It appears to me that there was a sound basis upon which those treating medical practitioners made a diagnosis of the plaintiff’s medical condition, and then set about giving her treatment which they considered to be appropriate. It also appears to me that entering 2010, and subsequently, the same occurred, but mostly at the hands of Dr Siapantis. There does not seem to have been much of a change in the diagnosis post 2010, nor in the treatment provided to the plaintiff.
96 Despite the foregoing picture, Mr Simm, in 2012, Dr Thomas, in 2013, and Dr Fraser, in 2013, considered that the non-organic signs were prevalent in the plaintiff’s presentation. They, of course, were medico-legal opinions. Mr Flanc, in 2010 and 2014, Mr Haw, in 2012, Dr Blombery, in 2014 and Mr Kossmann, in 2014, disagree. They each considered that the plaintiff had an organic basis for her complaints of pain.
97 I prefer the opinions of Mr Flanc, Mr Haw, Dr Blombery and Mr Kossmann, because they are consistent with the opinions of the treating medical practitioners through 2007, 2008, 2009 and going into 2010. The commonality in the opinions of the treating medical practitioners and Mr Flanc, Mr Haw, Dr Blombery and Mr Kossmann is a finding of an organic injury, which they consider resulted from the transport accident of 19 February 2007.
98 On the basis of the foregoing analysis, I find that the plaintiff did suffer an injury to her neck and her lower back in the transport accident of 19 February 2007. I find that it was, in all probability, a soft-tissue injury and an aggravation of degenerative changes in her spine. I also find that it is an injury which has impaired the function of the plaintiff’s spine to the extent found by the treating medical practitioners and Mr Flanc, Mr Haw, Dr Blombery and Mr Kossmann.
The concurrent injuries
99 In Peak Engineering & Anor v McKenzie,[76] Maxwell P made the following observation when dealing with different injuries that might produce pain and suffering consequences, which are common to those produced by a compensable injury:
“In my respectful opinion, these grounds must be upheld. In a case of this kind, where two different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of trial. This would seem to be an essential precondition to the task of deciding which of the pain and suffering consequences are attributable to which injury … .”[77]
[76]Supra
[77]at [24]
100 Therefore I must determine the impairment consequences of the plaintiff’s shoulders and right knee, as opposed to those caused by the injury to the plaintiff’s spine.
101 There is no doubt that the plaintiff suffered damage to the soft tissues of both shoulders. She has been offered surgery to repair the soft-tissue damage. There also seems to be no doubt that it was the impairment of function of her left shoulder that precipitated the reduction in her duties from full-time duties to modified duties. However, there is very little evidence to suggest that the impairment of function of the plaintiff’s shoulders interfered with her capacity to undertake those modified duties.
102 There is also very little evidence about what domestic, social and recreational activities were interfered with by the impairment of function of the plaintiff’s shoulders. I think I can infer that if she was unable to perform the heavier tasks involved in her overall duties as a carer, that she was probably less able to perform similar tasks in a domestic, social and recreational setting.
103 As far as the impairment of the function of the plaintiff’s right knee is concerned, there seems to be little doubt that it interferes with the plaintiff’s mobility; however, the plaintiff was able to work in both her full-time duties and her modified duties without any interference by the deteriorating function of her right knee. It was Dr Siapantis’ evidence that the function of the plaintiff’s right knee would have stopped her from working in her modified duties last year, that is, in 2013. Obviously, that means that had she not suffered the spinal injury, she would have been able to continue working in her modified duties up until around that time.
104 The question that now arises for my consideration, is which of the impairment consequences are attributable to which medical condition.
105 It appears to me that as far as the impairment consequences of the plaintiff’s shoulders are concerned, that there are consequences which are common to the consequences which I have summarised in paragraph 74. It is probable that the impairment of the function of the plaintiff’s shoulders would interfere with her capacity to engage in cooking, washing and cleaning. That impairment may also require the use of some degree of painkilling medication, although there is not much evidence to support that conclusion.
106 As far as the impairment consequences of the plaintiff’s right knee are concerned, there are consequences which are common to the consequences which I have summarised in paragraph 74. They are interference with mobility, with sleep and the need for painkilling medication.
107 I think it is a fair to conclude that it is both the impairment of function of the plaintiff’s shoulders and the impairment of the function of her spine that contribute to the interference with her capacity to engage in cooking, washing, cleaning and the need for painkilling medication. I think it is also fair to conclude that it is both the impairment of function of her right knee and the impairment of function of her spine that contribute to interference with her mobility, sleep and the need for painkilling medication.
108 It is inevitably a difficult task for a plaintiff to undertake disentangling where there are different injuries that are concurrently causing pain and suffering consequences, as it is difficult to be precise about what is caused by one as opposed to what is caused by the others. I do not read what the Court of Appeal said in Peak Engineering to require that task to be undertaken with precision. I think it is sufficient that I have identified the different injuries which are concurrently causing pain and suffering consequences, and that I have identified the extent to which they are also contributing to the consequences which the plaintiff contends have been caused by the impairment of the function of her spine.
109 I am satisfied that a significant contribution to the plaintiff’s interference with her sleep, mobility, capacity to perform cooking, washing, cleaning, and need for medication, are related to the impairment of the function of her spine. It is noteworthy in that respect that the plaintiff’s need for painkilling medication rose dramatically after the occurrence of the transport accident of 19 February 2007. I think that is a telling marker of the nature and extent of the impairment of function of the plaintiff’s spine and is a potent piece of evidence in making the comparison between the impairment of function caused by the plaintiff’s shoulders and right knee, when compared with the impairment of function of her spine.
110 In Dwyer v Calco Timbers Pty Ltd (No 2),[78] Ashley JA observed, in the accident compensation context, that serious injury concerns what has been lost, but one can be informed of what has been lost by what has been retained. What I find plaintiff has lost are each of the consequences that I summarised in paragraph 74 above. Essentially, the plaintiff has suffered a dramatic increase in pain, which has affected her capacity to function in nearly every aspect of her working and non-working life, which she was able to engage in without difficulty prior to the transport accident of 19 February 2007. I am fortified in reaching that conclusion, because the medical evidence which I prefer supports the conclusion that the plaintiff has suffered an injury which is likely to result in consequences of the kind I have just referred to.
[78](2008) VSCA 260 at [27]
111 In reaching this conclusion, I must emphasise that I have done so after undertaking the disentangling relevant to the plaintiff’s shoulders and right knee.
112 Lastly, Mr Hore-Lacy submitted that I am entitled to take into account the depressive reaction of the plaintiff as a consequence. In Richards v Wylie,[79] the Court of Appeal held that the emotional consequences of the impairment of a body function can be considered to be a consequence of the impairment, but, of course, falling short of aggregating a diagnosable clinical condition with a physical injury. The Court of Appeal cautioned that I am not to lose sight of the focus which the definition in paragraph (a) calls for, otherwise there is a risk of falling into error.[80]
[79](2000) 1 VR 79
[80]at 87
113 Dr Siapantis said that the plaintiff presented with “symptoms of depression”. He prescribed her an antidepressant. He did not refer her to a psychiatrist for treatment.[81] I infer that Dr Siapantis considered that he was able to manage the plaintiff’s depressive symptoms, and therefore, it would appear that they were likely to be of a low level, otherwise I assume that he would have referred her for treatment by a psychiatrist.
[81]Transcript 101
114 The plaintiff’s solicitors referred the plaintiff to Dr Kornan, psychiatrist, who examined the plaintiff on 31 March 2010, 24 June 2010 and 31 July 2014.[82] The defendant referred the plaintiff to Mr Kenny, psychiatrist, who examined the plaintiff on 13 December 2007.[83] Dr Kenny did not believe that the plaintiff was suffering a significant psychiatric or psychological disturbance. He said that if it was accepted that her physical symptoms were due to the transport accident then by extension her sense of frustration and sadness were also due to the transport accident.
[82]PCB 79-94 and 145-152
[83]PCB 231-239
115 Dr Kornan considered that the plaintiff suffered from some psychiatric problems prior to the transport accident. He considered that she was suffering from a Major Depressive Disorder, an Adjustment Disorder with Anxiety and a specific phobia relevant to the fear of being involved in a further transport accident.
116 For the purpose of considering whether the secondary depressive symptoms suffered by the plaintiff are consequence of the impairment of the function of her spine, I will ignore the clinical diagnosis of Dr Kornan. I accept that the plaintiff has suffered some depressive symptoms and frustration and sadness which are a consequence of the impairment of the function of her spine. That is the limit which I consider it is proper to place on the extent to which I can take into account her depressive symptoms as a consequence. In any event, I consider that the additional consequence of the depressive symptoms has made no real difference to my conclusion that the plaintiff’s pain and suffering and pecuniary disadvantage consequences are serious.
The films
117 The final piece of evidence which I need to examine are the films. They are of so little consequence that I propose to refer to them only in passing. The first film was taken on 8 and 13 June 2014. The film of 8 June 2014 was very short. At about 12.54pm, it showed the plaintiff sitting and talking with an elderly man. The film taken on 13 June 2014 was equally short. At 11.50am, it showed the plaintiff driving her motor vehicle. She appeared to park it in a car park. At about 1.00pm, she drove her motor vehicle out of the car park. Most of the plaintiff’s movements were obscured by buildings and other motor vehicles. The film taken on 21 August 2014 shows the plaintiff driving her motor vehicle between about 11.59am and 12.59pm. The film of 23 August 2014 shows the plaintiff doing much the same between 10.53am and 11.47pm.
118 The plaintiff brought a wheeled walking frame to Court. Mr Elliott submitted, in effect, that the plaintiff had no real need for the wheeled walking frame or a walking stick, because in one of the films where she was out of her car in a car park, she was not seen to use either.[84] The plaintiff has obvious problems with her mobility, contributed to by the injury to her spine and her right knee. The fact that she was using neither in one of the films is insufficient for me to conclude, as I think I was being invited to, that they are props in some way used by the plaintiff to engender an impression of disablement. All I have before me is the fact that the plaintiff has both as an aid to her mobility. None of the films impressed me as impinging upon the plaintiff’s creditworthiness and reliability at all.
[84]Transcript 84-85
Conclusion
119 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law to recover damages for injuries which she alleges she suffered in a transport accident which occurred on 19 February 2007.
120 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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