Godwin v TAC
[2020] VCC 1679
•27 October 2020
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
Serious Injury List
Case No. CI-19-04240
| Lauraine Godwin | Plaintiff |
| v | |
| Transport Accident Commission | Defendant |
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JUDGE: | Judge Tran | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 & 21 October 2020 | |
DATE OF JUDGMENT: | 27 October 2020 | |
CASE MAY BE CITED AS: | Godwin v TAC | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1679 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – aggravation of pre-existing degenerative condition of spine – neck and arm pain – where pre-existing chronic physical and mental conditions - disentanglement – whether consequences “very considerable”
Legislation Cited: Transport Accident Act 1986 (Vic), s93
Cases Cited:Dressing v Porter [2006] VSCA 215; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67; Richards v Wylie (2000) 1 VR 79
Judgment: Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram QC with Mr A Saunders | Carbone Lawyers |
| For the Defendant | Mr R H M Attiwill QC with Ms A Wood | Transport Accident Commission |
HER HONOUR:
1 On 11 June 2017, Lauraine Godwin’s car was hit from behind while stationery at a “give way” sign, on the corner of Bambra Road and High Street in Belmont, Geelong. The force of the impact was enough to push her car out into High Street and across both lanes. She felt a sharp pain shoot up from her neck and into her head and suffered a great deal of pain in her head, neck, shoulders and arms. The car she was driving was a write-off. Her neck was placed in a brace and she was transported to the Geelong Hospital in an ambulance.
2 The accident aggravated a pre-existing degenerative condition of Ms Godwin’s spine at the C5/C6 and C6/C7 levels. I will refer to this aggravation as “the spinal impairment”. The accident also caused a tendon tear to her right shoulder which was treated with surgery on 8 December 2017.
3 Ms Godwin claims that the spinal impairment is a serious injury. She applies for leave to bring proceedings for damages. She says that the spinal impairment amounts to a serious long-term impairment of a body function within the meaning of s93(17)(a) of the Transport Accident Act 1986 (Vic) (“Act”).
4 Ms Godwin is a 59 year old long-term disability pensioner. She suffers from a number of chronic physical conditions including fibromyalgia and osteo-arthritis. She also has a long history of mental health issues, including depression, anxiety and post-traumatic stress disorder (“PTSD”). Her PTSD stems from serious physical and sexual abuse inflicted upon her as a child by those entrusted with her care.
5 The Transport Accident Commission (“TAC”) admits the existence of the spinal impairment but says I should nevertheless dismiss the application. It submits that I should not accept Ms Godwin’s evidence of her current symptoms and limitations. It submits that it is not possible to “disentangle” the consequences of the spinal impairment from the consequences of the tendon tear she suffered in her right shoulder in the accident, or from the other ongoing significant mental and physical conditions from which Ms Godwin suffers. Finally, it submits that any symptoms and limitations that Ms Godwin does experience as a consequence of the spinal impairment are not “serious” in the relevant sense.
6 For the reasons given below, I am satisfied that Ms Godwin has suffered a serious injury. I have reached this conclusion by answering three questions:
a. What are Ms Godwin’s current symptoms and limitations?
b. Which of these symptoms and limitations are a consequence of the spinal impairment?
c. Are these symptoms and limitations “serious” in the relevant sense?
What are Ms Godwin’s current symptoms and limitations?
7 The predominant physical symptom Ms Godwin complains of is pain, particularly in her neck. She said that she suffers chronic constant pain.[1] She described severe pain in her neck that radiated down her spine;[2] ongoing stabbing pains in her arms, neck and spine;[3] burning pains in her hands;[4] and, more recently, pain in her jaw.[5] She said the pain increased when she pushed or pulled anything that had much weight.[6] She said the pain came on if she did too much, such as carrying bags for a long period of time.[7] She said the pain increased when she raised her hand above her shoulder.[8] As to the intensity of this pain, she said that it was excruciating[9] and at times it made her “shaky and extremely dizzy and feel like vomiting”, that it affected her concentration and made her cry.[10] She said at times the pain in her right hand was so severe that she struggled to hold a pen.[11] She said that she could not function without pain medication.[12] At times, she said it made her suicidal.[13]
[1]Plaintiff’s Court Book (“PCB”) page 7, paragraph [5]; PCB 9, paragraph [28]; PCB 11, paragraph [48]; Transcript (“T”) 55, Line (“L”) 26-31.
[2]PCB 9, paragraph [25].
[3]PCB 9, paragraph [25]; T76, L7-20.
[4]PCB 8, paragraph [23].
[5]PCB 10, paragraph [10].
[6]PCB 9, paragraph [25]; T96, L5-7.
[7]T95, L24-26; T96, L5-7; T96, L14-16; T97, L15-16; T98, L2-3; T106, L26-29.
[8]PCB 8, paragraph [16].
[9]PCB 9, paragraph [26].
[10]PCB 19, paragraph [26]; T96, L16.
[11]PCB 19, paragraph [23].
[12]PCB 19, paragraph [27].
[13]PCB 11, paragraph [55]; PCB 15, paragraph [4].
8 Ms Godwin also described difficulty using her arms, particularly her right arm. She described a weakness in her right hand and arm and struggles raising her hand above her head.[14] She gave as an example that it would be impossible for her to push herself up by her hands if she was sitting in a bathtub or chair.[15] She described pins and needles and numbness in her arms and hands.[16]
[14]PCB 9, paragraph [28]; PCB 12, paragraph [66] – [67]; PCB 18, paragraph [17], PCB 19, paragraphs [22] and [24].
[15]PCB 13, paragraph [69].
[16]PCB 19, paragraph [23].
9 As to her mental state, Ms Godwin described herself as living in a constant state of fear and depression.[17] She claimed to suffer stress, anxiety, frustration, anger and depression to the extent of being suicidal.[18] She claimed to be exhausted, lack concentration, easily frustrated and to suffer panic attacks and paranoia.[19] She claimed that the accident had brought back a pre-existing PTSD,[20] which caused her to re-live her childhood trauma.[21]
[17]PCB 129, paragraph [15].
[18]PCB 11, paragraphs [46] - [53].
[19]PCB 11, paragraphs [46]-[53]; PCB 131, paragraph [15].
[20]PCB 17, paragraphs [14]-[15].
[21]PCB 11, paragraph [47].
10 Ms Godwin described a number of impacts on her day-to-day activities. She said her sleep was disturbed.[22] She said that she had had to change the way she dressed and groomed herself. She described difficulties washing, drying and styling her hair, to the extent that she had started wearing a wig.[23] She said that she could not do a bra up behind her back or tie an apron.[24] She said she had to wear slip on flats rather than high heels.[25]
[22]PCB 13, paragraph [72].
[23]PCB 12, paragraph [63]; PCB 17, paragraph [16]; PCB 131, paragraph [17].
[24]PCB 8, paragraphs [63]-[65]; PCB 18, paragraph [17].
[25]PCB 132, paragraph [18].
11 She said that she had physical difficulty performing simple tasks such as cooking, cleaning and maintaining the home.[26] In particular, she said that she could not clean house windows, mirrors or glass if it involved reaching up high or bending her neck for long periods;[27] she could no longer hang clothes on a clothes line;[28] she struggled to use a vacuum cleaner because the push and pull motion increased the pain in her neck and spine;[29] her ability to cook was limited and she took little pleasure at it;[30] and she would no longer be able to walk or wash a dog.[31]
[26]PCB 18, paragraph [19]; PCB 20, paragraph [31]; PCB 131, paragraph [12].
[27]PCB 13, paragraph [67]; PCB 18, paragraph [17].
[28]PCB 18, paragraph [19].
[29]PCB 18, paragraph [20].
[30]PCB 19, paragraph [22].
[31]PCB 20, paragraph [31].
12 She also said that she had had to change the way she shopped, as she could only carry a certain number of things and had to use a trolley, and that she could not carry bags for extended periods of time.[32] More recently, she said that she avoided going grocery shopping because of the pain in her neck and back that these activities resulted in.[33]
[32]PCB 13, paragraph [71]; PCB 19, paragraph [24].
[33]PCB 131, paragraph [13].
13 As to driving, she said she could not drive long distances[34] and struggled to drive in traffic.[35] In her final affidavit she said she now avoided driving as a result of the medication she was taking.[36]
[34]PCB 13, paragraph [71].
[35]PCB 29, paragraph [29].
[36]PCB 132, paragraph [19].
14 Finally, she said that because of her physical limitations she could no longer act as a professional house-sitter, a role which she had previously found enjoyable and financially beneficial.[37] Although she had not charged for house-sitting, it provided her with free rent and utilities and, prior to the accident, she had hoped to eventually charge for her services and house-sit overseas.
[37]PCB 13, paragraphs [73]-[74].
15 The TAC submitted that Ms Godwin lacked credibility and her evidence of her pain and the impacts of her injury should not be accepted.
16 It submitted that Ms Godwin was a deliberately evasive witness whose evidence was wholly unsatisfactory and unreliable; that she was defensive and assumed the role of advocate in her evidence; that she embellished evidence which supported her application and downplayed evidence which did not; that she omitted to refer to highly significant matters in both her evidence and in the histories provided to medical practitioners; that she had shown dishonesty in relation to the hours she worked when on the disability support pension; and that I should draw an adverse inference from her failure to call other relevant witnesses.
17 The TAC also submitted that the two surveillance films recorded on 12 March 2020 demonstrated a capacity which was inconsistent with the level of pain and suffering which she claimed to suffer.
18 There is no doubt that Ms Godwin was an extremely difficult witness. She was argumentative and defensive. Many, perhaps even most, of her answers to questions by senior counsel for the TAC were initially un-responsive. On a number of occasions during cross-examination, she lost control of her emotions and started shouting. On occasion, she refused to answer questions even when directed to do so by me.[38] Senior counsel for the TAC is to be commended for the calm and patient manner in which he responded to what could fairly be described as tirades of abuse directed towards him.
[38]Although, ultimately, with patience and breaks to compose herself, necessary questions were answered.
19 Ms Godwin struck me as absolutely convinced that the accident had caused everything that was wrong with her present situation. In her mind, this rendered everything other than the accident “irrelevant” and not an appropriate subject of investigation. Anyone who she felt was suggesting otherwise was viewed as the enemy. This, perhaps combined with the memory difficulties to which she frankly admitted,[39] meant that her evidence and histories of past symptoms and events was at times neither accurate nor complete.
[39]T80, L11-13; T112, L25-27.
20 However, having had the opportunity to observe her over a number of hours in the witness box, I do not believe that she was telling deliberate lies. Aside from being a little over-dramatised, I accept her evidence as to her experience of her current symptoms and limitations, particularly her pain.
21 I am fortified in this conclusion by the following matters:
a. her evidence as to her symptoms and limitations was her current lived experience, rather than a matter of historical recollection. It does not follow from my concerns about her memory and the completeness or accuracy of her historical accounts, that her evidence as to her current symptoms were unreliable;
b. Ms Godwin suffers from significant mental conditions, including PTSD, which has its genesis in a highly traumatic childhood.[40] Her evidence and, in particular, her extreme emotional response to anything she perceived as a personal attack, must be understood in that context. Her responses were argumentative and tended to respond to what she viewed as the attack underlying the question, rather than simply answering the question. However, this did not seem to me to be the calculated response of a deliberate liar.
[40]PCB 7, paragraph [9]; PCB 152. Senior Counsel for the TAC very fair acknowledged that a perfect standard could not be applied to her evidence given the mental conditions she said she suffered from – T140, L24-27.
c. her evidence of her symptoms was corroborated by the opinions of her treating neurosurgeon, Mr Nicholas Hall. Mr Hall was her treating neurosurgeon for nearly two years and examined her on at least 8 occasions. He noted, among other things:
i. that an MRI scan (performed on 18 July 2017) demonstrated the presence of left-sided canal and foraminal compromise at the C5/6 and C6/7 levels, without any evidence of cord myelomalacia, but with clear evidence of left sided C6 and C7 nerve root compression;
ii. that a nerve conduction study demonstrated mild evidence of chronic denervation in the left C6 and C7 innervated muscles and that this was consistent with her radiological and clinical diagnosis;[41]
[41]PCB 53.
iii. that her neck pain was the most significant of her symptoms and that this had dramatically improved by approximately 50% as a result of two nerve root injections conducted in September 2018;[42] and
[42]Ibid.
iv. in relation to pain reported by her that radiated down the right arm and into the thumb, that an MRI scan showed moderate bilateral foraminal stenosis at the level C5/C6 and mild right sided foraminal stenosis at C6/7 and that her “radicular arm pain” was in a “typical distribution” for that.[43]
[43]PCB 54.
Mr Hall concluded that the MRI scans correlated well with her symptomatology and her strong positive results to targeted nerve root injections also corroborated the diagnosis.[44] I accept the submissions of senior counsel for Ms Godwin that Ms Godwin lacked the sophistication to falsely report symptoms (such as improvement following injections and particular distributions of pain) that correlated with Mr Hall’s objective observations and diagnosis;
[44]Ibid.
d. to the extent that the TAC’s medico-legal expert, Dr John Owen, expressed a different opinion to Mr Hall, I prefer the views of Mr Hall. Mr Hall had the benefit of observing Ms Godwin on at least 8 occasions over a period of nearly two years, in a calm and co-operative state. Dr Owen saw her on only two occasions. Dr Owen’s final report was dated 26 February 2020. Mr Hall’s final report was dated 22 October 2019. However, there were no significant updates or changes between 22 October 2019 and 26 February 2020 that would render Dr Owen’s report more reliable as a result. Dr Owen’s conclusions seemed to be informed by his view that Ms Godwin had “illness behaviour”[45] but he did not set out the grounds for that view and accepted that psychological problems were outside the area of his expertise;[46]
[45]PCB 93; PCB 104.
[46]PCB 94.
e. Ms Godwin informed Mr Hall and other treating practitioners when there was improvement in her symptoms.[47] This is not consistent with persistent exaggeration of her symptoms;
[47]PCB 41-43; PCB 44; PCB 46; PCB 48; PCB 57.
f. the surveillance videos amounted to a total of 19-20 minutes taken over the course of a single day in March this year. The videos showed that Ms Godwin had a capacity to walk, drive a large commercial van, open and close the van door, get in and out of the van, put on her seatbelt, step up onto a curb, put both arms up to shield the sun from her eyes, carry a box, carry bags and handbags, bend over, raise both her arms, reach up with her left hand for items and push and pull a trolley. However, this is not necessarily inconsistent with Ms Godwin’s evidence. Ms Godwin did not claim that she could not shop or drive,[48] but rather that her physical symptoms restricted her in the manner and extent of her shopping and driving. Similarly, with one possible exception,[49] her evidence was not that she did not carry bags at all, but rather that she could not carry bags, particularly heavy bags for extended periods of time, because it increased her pain. I also note that the video showed her using a supermarket trolley for a relatively small number of items; reaching for items with her left hand rather than her right; and wearing slip-on flat shoes. This was consistent with her evidence;
[48]The evidence in her third affidavit that she now avoided grocery shopping and driving post-dated these videos by several months.
[49]In paragraph 71 of her first affidavit (PCB 13) she says, “I cannot carry bags because it increases my pain.” I do not accept this evidence. This inaccuracy is effectively corrected in paragraph 24 of her affidavit (PCB 19) where she says “I avoid carrying shopping bags for extended periods of time. I usually require assistance to bring the shopping inside the house.”
g. there were inconsistencies between her evidence and the documents relating to the hours she worked while on the disability pension,[50] however, I am not satisfied that this demonstrated overt dishonesty; and
h. Mr Sidhu, who was Ms Godwin’s close friend and carer over many years, was not called to give evidence. No explanation was proffered for Mr Sidhu’s failure to give evidence. Mr Sidhu was plainly available, given he was living in the same house as Ms Godwin and was present at the commencement of Ms Godwin’s evidence. I accept that in this context it is open to me to infer that Mr Sidhu’s evidence would not have assisted Ms Godwin. However, it does not follow from the availability of this adverse inference that I should reject Ms Godwin’s positive evidence of her subjective symptoms and limitations. Even if I assume that Mr Sidhu’s evidence would not assist Ms Godwin, there is no easy way to identify in what respect his evidence would not assist Ms Godwin. This is not a case where Mr Sidhu was a witness to a specific, discrete event. Mr Sidhu was Ms Godwin’s close friend over many, many years. It is possible that he was not called because his evidence would not assist in relation to her current symptoms and limitations; or in relation to her past current symptoms and limitations; or in relation to her mental state immediately prior to the accident; or for some other reason entirely. In the circumstances, I do not find this of particular assistance in determining whether or not I should accept Ms Godwin’s description of her symptoms and limitations.
[50]T85, L1-14; DCB 85; DCB 82.
Which of these symptoms and limitations are a consequence of the spinal impairment?
22 Ms Godwin also suffered a tendon tear in her right shoulder in the accident. In addition, Ms Godwin was a long-term disability pensioner who:
a. suffered from a pre-existing degenerative condition of her spine that was evident in an MRI performed on 15 May 2013 (prior to the accident);
b. suffered from fibromyalgia which caused muscle aches, which worsened with activity;[51]
[51]PCB 7, paragraph [7]; DCB 118; T113, L11-17.
c. suffered from osteo-arthritis causing pain in her joints, particularly her feet and knee;[52] and
d. had a history of mental health issues, including PTSD, depression and anxiety.[53]
[52]PCB 7, paragraph [7]; DCB 61; DCB 64; DCB 67-68; T113, L11-21.
[53]PCB 7, paragraph [7].
23 The TAC contended that the symptoms and limitations described by Ms Godwin could not be disentangled from these other conditions.
24 In answering this question, I will consider each of Ms Godwin’s physical symptoms, before considering Ms Godwin’s mental state and, finally, the limitations on her daily activities upon which she relies.
25 First, in relation to neck pain, I accept the evidence of Mr Hall that the neck pain is a consequence of the spinal impairment. This is to some extent supported by the evidence of Dr Owen, who states it is reasonable to attribute her symptoms in her neck and shoulder to the accident.[54] As already noted, to the extent there is any conflict, I prefer the evidence of Mr Hall to the evidence of Dr Owen. There is no suggestion that the neck pain was a consequence of the tendon tear to Ms Godwin’s right shoulder. Although there is some evidence that Ms Godwin suffered neck or spinal pain prior to the accident,[55] there is no evidence that Ms Godwin experienced anything like the severity of the neck pain she currently experiences. If she had experienced such severe neck pain previously, I would expect that this would have been specifically recorded in the clinical notes and thoroughly investigated by her medical practitioners. A pre-accident MRI was conducted, but this was triggered by concerns about multiple sclerosis (“MS”), rather than as a result of severe neck pain. I accept that Ms Godwin suffered pain from fibromyalgia and osteo-arthritis, but again, there was no evidence to suggest that this caused neck or spinal pain of the nature or severity from which she now suffers.
[54]PCB 105-106.
[55]DCB 67.
26 Secondly, I accept the pain she describes in her arm and hands is a consequence of the spinal impairment. For the reasons already given, I accept the evidence of Mr Hall that she suffers radicular arm and hand pain (bilateral C6 radiculopathy and left-sided C7 radiculopathy), which resulted from the spinal impairment.[56]
[56]The TAC accepted that if I was satisfied that Ms Godwin’s pain in her arm and shoulder was radicular arm pain that this could be treated as a consequence of the impairment of the body function of the spine.
27 The tendon tear, which Ms Godwin suffered in the accident, was treated by Mr Robert Wood on 8 December 2017 with a right shoulder subacromial decompression and rotator cuff repair.[57] I am satisfied that her current symptoms of arm and hand pain can be disentangled from the symptoms of the tendon tear in her shoulder. I rely, in particular, on Mr Hall’s observations of the onset of new arm pain after the date of Mr Wood’s surgery and the consistency of this pain with a diagnosis of radiculopathy. Mr Wood’s report dated 30 September 2019 stated that, as a result of the tendon tear, Ms Godwin suffered to her right shoulder “Ms Godwin is likely to have significant difficulties with lifting from the ground, pushing, pulling, twisting, anything of a repetitive nature…anything at or above shoulder level.”[58] The opinions he expresses are clearly hampered by the fact that at that point in time he had not seen Ms Godwin for over a year.[59] However, Mr Wood does not state in his report that Ms Godwin is likely to suffer arm or hand pain (as distinct from difficulty) as a result of the injury to her right shoulder. He also notes that “the pain and suffering with this injury has been significant but at the time of last review…she was feeling significantly better and I suspect that is no longer the issue”.[60]
[57]PCB 40.
[58]PCB 41.
[59]Ibid.
[60]PCB 42.
28 Thirdly, I am not satisfied that the pain Ms Godwin reports in her jaw is a consequence of the spinal impairment. Ms Godwin asserts in her third affidavit that she suffers jaw pain “as a result of the injuries I sustained in the transport collision”.[61] Whilst I accept that Ms Godwin genuinely holds that belief, I do not accept the reliability of this evidence, or that Ms Godwin has the necessary expertise to give evidence of such an opinion.
[61]PCB 130, paragraph [10].
29 Finally, in relation to Ms Godwin’s other arm symptoms, such as weakness and difficulty holding her right arm above her head, I am not satisfied that they are a consequence of the spinal impairment. There is no clear evidence that these symptoms are a result of the spinal impairment. I am unable to disentangle these symptoms from ongoing symptoms of the tendon tear to her right shoulder, or other conditions.
30 I turn then to Ms Godwin’s current mental state. Ms Godwin was examined by Dr Meileen Tan, a consultant psychiatrist retained by the TAC, on two occasions. Dr Tan’s diagnosis was one of ongoing chronic pain, depression and dysthymia,[62] pre-existing PTSD and anxiety aggravated by the transport accident.[63] Dr Tan expressed the opinion that the depression, anxiety and chronic pain were related to the transport accident.[64]
[62]PCB 121; PCB 123; PCB 151.
[63]PCB 124; PCB 151.
[64]PCB 124; PCB 151.
31 However, Dr Tan was not informed that Ms Godwin was diagnosed with major depression and anxiety in 2016 after her employment at the Hattah Roadhouse came to an end in acrimonious circumstances.[65] She was not informed that her general practitioner was of the view in May 2014 that she had major depression and inability to cope with stressful situations and that she would not ever be able to return to work.[66] She was not informed that Ms Godwin was seeing a psychiatric nurse in 2013-2014 for PTSD symptoms triggered by events concerning her daughter in 2007.[67] She was not informed that Ms Godwin saw Mr Williamson on 33 occasions over a period of four years from 17 April 2013 to 15 June 2016. She was not informed that her general practitioner certified her unfit for work for the period 16 February 2017 to 30 June 2017 inclusive (a period which included the accident).[68] She was not informed that Ms Godwin was essentially homeless and living in a tent in a caravan park from June 2016 to December 2016.[69]
[65]DCB 85.
[66]DCB 61.
[67]T34, L11-T35, L8.
[68]DCB 109.
[69]T41, L11-19.
32 The most recent relevant psychiatric history, which is recorded by Dr Tan in her report, is that Ms Godwin saw a psychologist for two years in around 2010.[70]
[70]PCB 119.
33 When Dr Tan asked Ms Godwin about her personality before the accident, Ms Godwin told her that she was “nice, kind, placid and happy” and “always happy, laughing and smiling before the accident, bubbly, friendly, caring, trustworthy, honest and loyal.”[71] This conveys an inaccurate picture when compared to the clinical notes of her general practitioner and psychiatric nurse, particularly between 2013 and 2016, and her long history of mental health issues.
[71]PCB 120.
34 I do not accept that Ms Godwin intended to deceive Dr Tan. However, as I have already noted, Ms Godwin presented as utterly convinced that everything that was currently wrong in her life was caused by the accident and reasoned from this that everything else was irrelevant. She found it highly offensive to even be asked questions about such matters.
35 It may well be that this was a response to the significant trauma she has suffered in her life. The result, though, was that the history provided to Dr Tan was incomplete and inaccurate in highly material respects. Given this, Dr Tan’s opinion that Ms Godwin’s depression, anxiety and aggravation of PTSD were related to the accident is not reliable. Accordingly, I am not satisfied that Ms Godwin’s symptoms of depression, anxiety and aggravation of PTSD resulted from the accident, much less specifically as a consequence of the spinal impairment in the sense required in Richards v Wylie.[72]
[72](2000) 1 VR 79 at [87].
36 I am fortified in this view by Ms Godwin’s failure to call Mr Williamson, the psychiatric nurse she saw over a period of three years form 17 April 2013 to 15 June 2016. I infer that his evidence would not have assisted her in this respect.
37 Finally, I consider the limitations on activities upon which Ms Godwin relies.
38 The TAC submits that, in determining whether I am satisfied that these limitations are a consequence of the spinal impairment, I must disentangle the consequences of the spinal impairment from the:
a. consequences of the tendon tear to the shoulder;
b. consequences of Ms Godwin’s ongoing mental health issues; and
c. consequences of Ms Godwin’s ongoing and pre-existing other physical conditions such as fibromyalgia and osteo-arthritis of the knee.
39 Senior counsel for the TAC frankly submitted that I had a very difficult task.
40 In response, senior counsel for Ms Godwin relied upon a passage in Dressing v Porter,[73] to the effect that if one condition satisfies the serious injury test it is beside the point that another condition might also have caused sufficient consequences to satisfy the serious injury test.
[73][2006] VSCA 215 at [47].
41 Dressing v Porter was a case in which the plaintiff contended a neck injury suffered in a motor vehicle accident was a serious injury. The plaintiff suffered a number of other physical conditions including osteoarthritic joints, particularly in the left hip and right knee. The trial judge concluded that he was not satisfied that the plaintiff’s inability to work and the restrictions and limitations to his daily life were due to his neck injury.
42 The Court of Appeal allowed the appeal on the grounds, among other things, that the trial judge did not decide everything which was necessary in order to decide whether serious injury was made out. In particular, the trial judge failed to make findings as to the symptoms of the neck injury and whether they were likely to persist indefinitely and as to the likely duration of the left hip and right knee problems.[74]
[74]Dressing v Porter [2006] VSCA 215.
43 In that context, Ashley JA observed:
“…it may be, I put the matter no higher, the judge approached the matter from an incorrect standpoint. What his Honour had to do was to decide what symptoms afflicted the appellant in consequence of his compensable injury and with what effect. If, by reason of pain and suffering consequences the compensable injury met the serious injury test, it was beside the point that some other condition might also have satisfied the test by reason of its pain and suffering consequences. His Honour’s reasons rather suggest that he approached the matter on the footing that there must only be one condition which could satisfy the test.”[75] [Emphasis added]
[75]Ibid [47].
44 I agree that the fact that Ms Godwin’s other conditions might have pain and suffering consequences serious enough to satisfy the serious injury test (or, indeed, serious enough to render her totally and permanently disabled),[76] does not mean that she cannot have suffered a serious injury by reason of the spinal impairment.
[76]Defendant’s Written Closing Submissions, paragraphs [8]-[9].
45 However, I must still be satisfied that the particular pain and suffering consequences that Ms Godwin relies upon are a consequence of the spinal impairment.[77] I am not relieved of the obligation to disentangle. That this is so is demonstrated by the fact that the specific error the trial judge fell into in Dressing v Porter was in failing to make findings as to the symptoms and likely duration of the neck injury and the likely duration of the pre-existing left hip and knee problems.
[77]Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67 at [24]-[32].
46 What, then, are Ms Godwin’s other symptoms and conditions? I have found that Ms Godwin suffers arm symptoms other than pain, such as weakness and difficulty raising her right arm above her shoulder, which I am not satisfied are a consequence of the spinal impairment. These symptoms are likely to be long-term. In addition, I am satisfied that Ms Godwin suffers ongoing chronic pain by reason of fibromyalgia, particularly if she is too physically active.[78] She also suffers osteoarthritis causing pain in her joints, particularly in her hips, feet and knee.[79]
[78]T61, L6-26.
[79]PCB 7, paragraph [7]; DCB 61; DCB 64; DCB 67-68; T113, L11-21.
47 Whilst giving oral evidence she also said that she could barely walk “right now” because her knee had popped out.[80] However, there is no evidence that this is a long-term incapacity. The video-surveillance evidence did not show any obvious restrictions in walking due to her knee. I am satisfied, though, that her pre-existing osteoarthritis places long-term restrictions on her capacity to walk long distances.[81]
[80]T113, L11-17.
[81]T78, L24-25.
48 Finally, I am satisfied that Ms Godwin suffers significant symptoms of depression, anxiety and PTSD. For the reasons given above I am not satisfied on the evidence that these symptoms are a consequence of the spinal impairment. In view of her long history of mental health issues, I am satisfied that these mental health symptoms are likely to be long-term.
49 All of these other symptoms and conditions are likely to impact on her capacity to perform activities such as sleeping, shopping, walking, driving, engaging in self-care and performing house-work.
50 However, I am satisfied that the pain in her neck and in her arms and hands, and the fact that that pain worsens with activity, is a predominant and overwhelming feature of her current symptomology which results from the spinal impairment. I accept that it is that pain, specifically, which means that she can no longer do up a bra behind her back or tie an apron or style her hair in the manner that she used to. I also accept that it significantly limits her capacity to perform household tasks such as vacuuming and any cleaning which involves reaching up high for extended periods. I am also satisfied that the pain, and the threat of it worsening, reduces her capacity to take pleasure from activities such as shopping and cooking, to the extent that she is able to engage in them.
51 I am also satisfied that it is this pain, specifically, which is the predominant cause of her inability to house-sit and thereby obtain free rent and utilities for significant periods of time. I note that her uncontradicted evidence is that she had successfully house-sat from December 2016 up until the time of the accident and only stopped when the accident occurred. This was a period of seven months. Ms Godwin said that she had achieved a five star rating and bookings for the next 12 months. Prior to that time, she had also worked for a period as a cleaner and assisted in operating a restaurant. She achieved this despite her ongoing mental health issues and physical conditions such as fibromyalgia and osteoarthritis and, indeed, despite the fact that her general practitioner had concluded in 2014 that she was unlikely ever to return to work,[82] and certified her unfit for her usual occupation between 16 February 2017 and 30 June 2017.[83]
[82]DCB 62.
[83]DCB 109.
52 Having said that, in the absence of specific and detailed evidence, such as business plans and examples of house-sitting opportunities, I am not satisfied that her plans to house-sit overseas or to earn significant amounts of income from house-sitting were realistic.
Are these symptoms and limitations “serious” in the relevant sense?
53 The most significant consequence of the spinal impairment for Ms Godwin is ongoing severe pain in her neck, and in her arms and hands. This pain is both chronic and worsened by activity. She takes Targin, one table twice daily and Pandeine Forte, two tablets three times daily for this pain.[84] This is significant daily ongoing pain medication, which she did not take prior to the accident. Her treating neurosurgeon was of the view that this pain was sufficient to justify major spinal surgery.
[84]T114, L26-T115, L3.
54 In Kelso v Tatiara Meat Co Pty Ltd[85], Dodds-Streeton JA said “The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence”.
[85](2007) 17 VR 592 at [119].
55 I am satisfied that this pain, alone, amounts to a consequence of the spinal impairment which is very considerable and certainly more than significant or marked.
56 No attack was made during the course of the hearing on the long-term nature of Ms Godwin’s symptoms. However, for completeness, I am satisfied that it is appropriate to treat this pain as long-term.[86] Whilst there is evidence that her symptoms may be improved by surgery, she has expressed a reluctance to undergo the surgery at present. That reluctance is reasonable in view of the risks involved and her current mental state. In any event, the improvements from any surgery are more likely to be in the radicular arm pain than the neck pain.[87] Even with that surgery there would remain a significant risk of further degenerative changes and adjacent segment disease and the possibility of future surgery.[88]
[86]PCB 55; PCB 92; PCB 141.
[87]PCB 50.
[88]PCB 56.
57 My conclusion that the spinal impairment is a serious injury is fortified when Ms Godwin’s neck, arm and hand pain is considered together with the impacts of that pain on her capacity to enjoy simple pleasures such as shopping and dressing up nicely; and particularly on her capacity to house-sit. Ms Godwin is a long-term disability pensioner who has in the past struggled with homelessness and housing insecurity.[89] In purely dollar terms, an inability to house-sit may not result in an objectively large pecuniary loss. However, for her, the loss of the chance to obtain rent and utility free living whilst doing an activity she enjoyed and could perform at her own pace and direction is a significant setback.
[89]T41, L9-19.
58
I am satisfied that Ms Godwin has suffered a serious injury as a result of the accident and will grant leave to her bringing proceedings for the recovery of damages. I will hear from the parties as to the appropriate orders to be made.
22 / Oct / 2020
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I certify that these 20 pages are a true copy of the reasons for decision of her Honour Judge Tran, delivered on 27 October 2020.
Dated: 27 October 2020
22 / Oct / 2020
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Associate to her Honour Judge Tran
27 / Oct / 2020
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