Golder, Narell v Transport Accident Commission
[2009] VCC 1762
•14 December 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-01130
| NARELLE GOLDER | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 25 and 26 November 2009 |
| DATE OF JUDGMENT: | 14 December 2009 |
| CASE MAY BE CITED AS: | Golder, Narell v Transport Accident Commission |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1762 |
REASONS FOR JUDGMENT
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Catchwords: Transport Accident Act 1986 – Section 93 – serious injury – impairment to the cervical spine.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram with | Arnold Thomas & Becker |
| Mr S Smith | ||
| For the Defendant | Mr D Myers with | Solicitor to the Transport |
| Ms R Annesley | Accident Commission | |
| HER HONOUR: |
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to Section 94(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 6 September 2002 (“the said date”).
2 Section 94(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied
that the injury is a serious injury.”
3 The definition of serious injury relied upon by the plaintiff is under Section 93(17)(a) - “a serious long term impairment or loss of a body function”.
4 The body function relied upon by the plaintiff in this case is the cervical spine.
5 The inquiry under sub paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
6 The serious injury defined by sub paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can itself constitute or be the producer of the impairment of a body function: see Richards v Wylie (2000) 1 VR 79.
7 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”?: see Humphries v Poljak [1992] 2 VR, at 140-1.
8 The plaintiff relied on two affidavits and gave viva voce evidence. She was cross-examined. The plaintiff’s husband, Barry Golder, was required to attend for cross examination. The plaintiff’s mother, Gwen Hey, swore an affidavit on 23 June 2008. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
9 The plaintiff is presently aged thirty eight, having been born on 21 February 1971. The plaintiff is married with four children aged from ten to twenty.
10 The plaintiff left school at the age of sixteen and thereafter worked as a shop assistant and a cleaner. In March 2002, after her youngest child had started kindergarten, the plaintiff commenced employment as a part time sales assistant with Home Hardware.
11 The claim form signed by the plaintiff on 6 September 2002 set out details of the plaintiff’s work in the six weeks before the said date. She worked about fourteen hours in four weeks, working two days a week. In one week she worked only seven and a half hours on one day and in another week she worked thirty four and a half hours over four days.
12 The plaintiff’s work was sometimes physically demanding, but she did not have any back problems performing her duties.
13 Prior to the said date, the plaintiff’s name was at the top of the list at work and she would fill in for fellow workers who were ill. She was told that if a full time position came up, she would be able to fill that position.
14 Prior to the said date, the plaintiff had experienced some mild lower back pain and, on about three occasions she attended a chiropractor. She also had some physiotherapy for her right hip in or about mid 2002.
15 In cross examination, the plaintiff agreed that in January 2001 she had been prescribed Naprosyn and Valium for her lower back and that she had hurt her back lifting a bag of shopping in December 2001. She did not believe she was having any treatment for her lower back as at the said date.
16 The plaintiff had emotional problems before the said date, having suffered post-natal depression after the birth of her fourth child in 1999. She believed she was off all medicines for four or five months before the said date. She ran a busy household and was independent in all aspects of the care of her children. She was living a fulfilling and happy life and she and her husband led a busy social life.
17 In addition, she was planning to return to school as a mature age student to study nursing part time and ultimately work as a registered nurse.
18 On the said date, the plaintiff was a front seat passenger in a four wheel drive struck by another car, causing it to roll onto its roof (“the accident”).
19 The plaintiff was taken by ambulance to the Northern Hospital where medication was prescribed and she was advised to rest. The injuries suffered by her in the accident included, but were not limited to, her neck, upper back, left shoulder and hand, and also psychological injuries.
20 The plaintiff was cross-examined about what happened at the Northern Hospital. It was not her understanding that she was released with no record of injury. Following the accident, she was worried about her husband who had been taken to another hospital, and she did not really care what happened to her. She could remember a nurse removing her neck brace. No x-rays were taken.
21 On 10 September 2002, the plaintiff attended her general practitioner, Dr Wood, complaining of a constant headache with tenderness in the left shoulder and trapezius and other unwellness.
22 An x-ray of the cervical spine was organised on 11 September 2002 and two days later the plaintiff attended Dr Wood with left sided weakness with grip and left arm paresthesia.
23 In about early October 2002, the plaintiff returned to her part time sales work. However her work duties caused a severe exacerbation of her pain and she was put off work on 18 October 2002 by Dr Wood.
24 The plaintiff underwent a CT scan of her cervical spine on 29 January 2003 and an ultrasound of her left shoulder on 4 February 2003.
25 After the accident, the plaintiff received chiropractic treatment for her lower back and also her neck from a chiropractor in Barkly Street Sunbury.
26 Later, because of persisting pain, the plaintiff started physiotherapy with David Phillips in Sunbury in about September 2003. Also since the accident, the plaintiff has done exercises at home and received massage treatment.
27 The plaintiff attended Dr Lewis, rheumatologist, between March 2003 and May 2005. He referred her to Mr Postlethwaite psychologist in March 2003.
28 In cross examination the plaintiff confirmed she was happy with Dr Lewis, but he did not really give her a great amount of treatment. He explained things about the injury that made sense. His treatment did not increase her range of movement.
29 Dr Lewis suggested left shoulder surgery but told the plaintiff there was no guarantee of improvement, thus the plaintiff did not pursue this course.
30 The plaintiff was asked about two attendances with Dr Lewis in March 2005 when he had mentioned that she had been the best she had for a very long time. The plaintiff explained this was the case because she had seen Mr Postlethwaite.
31 The plaintiff could not remember having made significant progress when she last saw Dr Lewis in May 2005, but said Mr Postlethwaite getting her to drive around improved things and made her more independent. She also thought that about that time she had just been prescribed Endep.
32 The plaintiff agreed that Dr Lewis suggested she see him in a further six months if there was any problem and she had not returned to see him. Since last seeing him, she had not seen another doctor, save for her general practitioner. She was using alternative therapies after that time.
33 The plaintiff did not keep going to doctors such as Dr Lewis and Mr Postlethwaite “because she had to pay the gap.”
34 After leaving her job at Home Hardware, the plaintiff has not been able to get new work. Her pre injury employer would not take her back, even doing part time work, and no one else would take her.
35 Because of this, the plaintiff formed a partnership with her husband and purchased a business in April 2007 called Cosmic Connections (“the business”) – a new-age crystal shop (“the shop”).
36 The business was purchased for $100,000 plus stock valued at $40,000. They had to borrow to pay for the business.
37 The plaintiff runs the business. Until recently her husband worked full time as a nightshift supervisor employed by Toll. He now is setting up his own excavation business.
38 When they took over the business in 2007, they kept on one staff member, and employed another in early 2009. At the present time, one employee works sixteen hours per week on Monday and Tuesday and the other works twenty two hours per week Wednesday to Friday.
39 The plaintiff’s eldest daughter has also worked in the business on both a part time and full time basis. At times the plaintiff’s mother has also helped out.
40 Because of her physical and psychological injuries, the plaintiff has needed someone to help in the business all the time. She requires paid assistance because she cannot lift certain things. The plaintiff is normally “fairly good” in the morning and then, as the day progresses, her neck pain increases.
41 The difficult jobs at the shop are putting up displays and clothing, and moving things around the shop. The plaintiff uses an old broom handle with a hook to move stock. Sometimes she is able to do this job herself but, as a general rule, her staff does it.
42 But for the injuries suffered in the accident, the plaintiff would not need to employ people to help and she would not need her relatives to work. The wage bill for the two employees is about $700 per week.
43 The plaintiff presently works four days a week, starting around 10.00 am, until 2.30 pm. In cross examination, the plaintiff said sometimes she might go back to the shop later in the day to pick up her daughter who works in the hairdressers nearby.
44 The plaintiff has two school age children, aged ten and sixteen, whom she takes to school and car pools with a girlfriend on the way home. The plaintiff disagreed she worked her current hours to fit in with her children.
45 Sometimes if her headaches are bad, the plaintiff has to go home from work and her mother, who now lives with her, and the children generally help prepare dinner. If the plaintiff has a headache, she has to go and lie down for a couple of hours in a darkened room.
46 If the plaintiff picks up a weight with her left hand, she experiences a sharp, shooting pain through her left shoulder and through her back and, within half an hour, will get a headache.
47 Towards the end of the day, she generally has a weak, heavy feeling in her left shoulder and left arm and there is muscle tightness in her upper back.
48 The plaintiff continues to see Dr Wood every six to eight weeks. At times he has given her injections into her spine. He presently prescribes Valium and Mersyndol Forte.
49 On a good day, the plaintiff takes two to four Mersyndol Forte for her headaches and pain. On a bad day, she takes three to four tablets during the day at work. Very rarely does the plaintiff go to work without taking tablets. Possibly on the weekends she does not take Mersyndol Forte. Sometimes she takes Valium at night.
50 She does not like taking tablets because they affect her driving and they cause side effects, including reflux and recurrent constipation.
51 The medication seems to take the pain away and her neck does not feel as heavy. If she ignores her neck pain, she develops headaches as the pain gets worse and she has headaches at least three times a week.
52 The plaintiff continues to suffer constant pain and stiffness in her neck in the middle to the left side which varies in intensity but is always apparent to some degree. The pain radiates down her left arm to her left hand and fingers and, on occasions, she has pins and needles in her left hand and fingers. She also has a general loss of strength in her left arm and hand.
53 Sustained postures, such as sitting or standing, aggravate the plaintiff’s neck pain, as do longer walks.
54 The plaintiff has constant pain and stiffness in her upper back of varying degrees which is also aggravated by prolonged activity and wearing high heeled shoes and by certain other movements. She has not had any low back pain recently.
55 She continues to suffer constant pain and stiffness in her left shoulder, aggravated by movements of her left arm, particularly above shoulder height or by application of force through the shoulder or lifting heavier objects.
56 The pain regularly wakes her from sleep, especially if she rolls onto her left side. The lack of sleep makes her continually fatigued during the day.
57 The plaintiff also experiences pins and needles down the back of her arms on her left side.
58 In cross examination the plaintiff agreed that at various times she has been asked by her own doctor and medico legal examiners to show her level of neck and shoulder movement.
59 The plaintiff agreed that when seen by Dr Wood in 2004, 2006 and 2008, that she was restricted in lifting her left arm in front of her to thirty degrees, her neck movements especially to the left were limited and she was unable to lift more than five kilograms.
60 Dr Wood told the plaintiff he had seen the video taken on 23 and 24 October 2008. He did not really discuss the video with her. He did not ask her the weight of objects she was shown carrying. He did not discuss with her that there was no impingement shown nor that she had shown a good range of movement on the film.
61 The plaintiff, having seen the video, agreed that it showed no particular restriction of her neck or left shoulder. The plaintiff explained she had always been able to use her arm or neck but with pain, which on some days was worse than others. She explained that if the video was taken after lunch she might have taken some medication.
62 The plaintiff was cross-examined about a number of medico-legal assessments. She could not recall seeing Mr Hadley in 2005 and showing ninety degrees movement of her shoulder without pain. She could move her arm to that level with pain, not all the time. Sometimes moving her arm below ninety degrees caused her pain, depending on the day.
63 The plaintiff said she was honest in showing twenty degrees rotation of neck movement in this examination. Every time she moves her neck more than twenty degrees it hurts. She has increased pain in her neck whenever she moves it, but it varies. Some days are better than others.
64 Her range of neck movement has probably been about the same since the accident. She confirmed that when she presents to doctors she does so honestly.
65 When she saw Dr Baker in 2004 and Dr Lefkovits in 2003 and showed a full range of neck movement, the plaintiff explained that such movement would not have been without pain.
66 The plaintiff disagreed that she demonstrated a full range of neck movement and that she was able to fully flex her left shoulder to one hundred and eighty degrees when examined by Mr Dooley in 2007.
67 The plaintiff agreed that if Mr King recorded that she had one third of the normal range of neck movement and movement of the left arm to ninety degrees this would have been what she was capable of doing.
68 The plaintiff agreed with Mr Schofield’s finding on examination of reduction in neck movement and pain on abduction of the left arm over ninety degrees in November 2008.
69 She could not remember telling Mr Dooley that her pain medication was to a minimum. This was not correct as she had never taken as low a dose as three Voltaren tablets a week.
70 The plaintiff agreed that on examination in 2008, she told Mr. Dooley that she could not do repetitive lifting or bending and, as a general rule, she could not lift more than a kilogram.
71 As a result of the accident, the plaintiff continues to suffer psychological problems, including anxiety as a driver and passenger, and that limits her driving mainly to the local area, tending not to drive beyond Sunbury.
72 The plaintiff also has anxiety as a pedestrian. She continues to have anxiety in social situations and rarely goes out. Sometimes she has panic attacks when she has difficulty breathing and feels like she may collapse and sometimes she breaks down in tears.
73 She has nightmares and daytime flashbacks and fears for the safety of her children in a way she did not before the accident. She avoids the accident scene. She has also experienced memory and concentration problems which have had a terrible effect on her life.
74 Generally, the plaintiff feels comfortable at home provided there is someone there with her and she feels fairly comfortable working in the business.
75 Prior to the accident, the plaintiff did most of the housework, including the heavy housework. Now the vacuuming, cleaning and laundry is all done by her husband or children.
76 The plaintiff used to enjoy gardening but now just does a very small amount and has to be careful what she does. She cannot do anything which requires much strength through her left arm or shoulder and she cannot lift heavy weights.
77 The plaintiff no longer plays netball for a local mixed team, having played to the date of the accident. Prior to the accident, she also used to swim and walked regularly for exercise
Lay Evidence
78 The plaintiff’s husband, Barry Golder, swore an affidavit on 23 June 2008.
79 Until the accident, the plaintiff had led a very busy and active life working permanent part time at Home Hardware. She also had a busy domestic life, and because he worked nightshift, he was rarely home and the plaintiff had to manage the household herself with four children, one of whom was still a baby at the time of the accident.
80 The plaintiff enjoyed playing competitive netball on a weekly basis, playing in a mixed team in the months leading up to the accident and in a ladies’ team before that time. She drove the children everywhere, to sports and excursions. She would also drive up to Nhill where a lot of his family and friends lived.
81 Prior to the accident, the plaintiff had a very stable personality and she was tolerant of the family. Nothing was a problem for her. She just got on with life, taking each situation as it arose and dealing with it as required. Since that time, she is much moodier and is affected by her pain.
82 Her main physical problems are with her left arm and neck. She suffers from quite debilitating headaches. After the accident, her mother moved in and she takes over household tasks when the plaintiff cannot cope. The plaintiff cannot do any high maintenance gardening. She cannot do weeding or extend or renovate the garden.
83 Mr Golder does the majority of housework. The plaintiff cannot hang out the washing with the amount of washing the family has. She cannot mop because of the repetitive action involved. The children bring in the big bundles of washing.
84 Mr Golder was cross-examined. He agreed that he had deposed that there was a great change in the plaintiff’s personality after the accident.
85 He was asked about the plaintiff’s post-natal depression which he agreed she suffered for two years after the birth of their last child. He said the plaintiff “bounced back and got on with life again.” He would not say that the plaintiff’s problems with her ex-husband were affecting her mood at the time of the accident, but agreed that they were still an issue in late 2003.
86 Mr Golder rarely goes to the shop except to help re-arrange heavy items or organise deliveries so none of the girls have to do it. He has got no idea of the earnings of the business. The paperwork is something that his wife attends to. He is presently engaged in setting up his own business excavating and erecting sheds.
87 Insofar as the plaintiff assists with shopping, she goes with him. He pushes the trolley and gets things that are up high or down low on the shelves and he unloads the shopping at home.
88 The plaintiff’s mother, Gwen Hey, swore an affidavit on 23 June 2008.
89 Before the accident, the plaintiff was a very confident, easygoing person. She had had post-natal depression but was over that at the time of the accident. She was a very confident driver.
90 After the accident, Mrs Hey came to Melbourne to live with the plaintiff to help her look after the children and do domestic duties around the house. She expected to stay for a few months, but she is still living with the family.
91 The plaintiff suffers from neck and shoulder problems causing great restrictions with left arm movement and she is unable to raise her left arm above chest level. She cannot lift anything heavy and would not be physically able to bring the washing in.
92 The plaintiff also suffers from serious headaches and, when she does, Mrs Hey has to cook dinner for the family.
93 The plaintiff’s personality has changed dramatically since the accident and she is very easily upset. She also has massive mood swings. She gets anxious in crowded places and has experienced something like claustrophobia.
94 The plaintiff has lost her confidence driving and categorically refuses to drive anywhere outside Sunbury. She will not be a passenger unless her husband is driving.
95 It is a six minute drive to the shop in Sunbury and Mrs Hey drives the plaintiff to work or picks her up approximately twice a week. Occasionally, the plaintiff has waited for a lift simply because she will not drive home in the rain.
96 The plaintiff always has someone with her at the shop. The plaintiff does the paperwork and some serving. She has hired a full time employee who works four days a week and Mrs Hey attends the business most Mondays and Tuesdays. The plaintiff’s daughter, Tania, also works two days a week. The plaintiff needs someone to put out the hat stands and clothes racks at the front of the shop. Though the racks are on wheels, the plaintiff cannot lift them up the one step at the front of the shop and any lifting that may be involved is done by Tania, Patricia one of the staff or Mrs Hey.
The Plaintiff’s Medical Evidence
97 Since the accident, the plaintiff has been under the care of her general practitioner, Dr Wood at the Sunbury Medical Centre (“the Medical Centre”).
98 As a result of the accident, he diagnosed bruising to the left side of the head and body with subsequent headache, left shoulder derangement, and left arm pain secondary to the C2-3 disc bulge. He noted the plaintiff suffered with secondary spasms to the neck and left trapezius and also soft tissue paraspinal injuries.
99 In Dr Wood’s view, the plaintiff’s headaches also became part of her injuries secondary to her C2-3 disc bulge.
100 The plaintiff has also suffered from significant anxiety symptoms and she also suffered from insomnia, secondary to injuries, and anxiety.
101 He noted the plaintiff found it difficult to work at present but as long as she sticks to her own pace, she can cope with working in the shop.
102 The plaintiff continues to have reduced power in her left hand and paresthesia secondary to her cervical spine injuries that are clinically in fact of C6-7-8 distribution, even though her scans have shown that she has a C2-3 disc bulge cervical.
103 In Dr Wood’s view, the plaintiff is fit for work at a slow pace but she would be somewhat unreliable due to the fluctuating nature of her symptoms. He thought she probably could not cope with a proper workload and she would also have to take sick leave.
104 He thought the plaintiff’s prognosis was that she would continue to suffer from neck and arm pain and left weakness. He noted her injuries were permanent, albeit at a level where she could continue to function as a shop assistant.
105 He noted the plaintiff was unfit to do gardening, play tennis or carry out heavy type home duties and would be so in the long term and she would require assistance. In his view, she would continue to suffer from fluctuating levels of anxiety in the future. She had been somewhat improved by the addition of Amitriptyline to her drug regime which had helped with pain and stress levels.
106 Counsel for the plaintiff tendered various clinical notes from the Medical Centre file.
107 The plaintiff complained of a tender left shoulder and left trapezius and left sided weakness on two visits in September 2002.
108 In October 2002, she complained of left sided back pain and reduced grip on the left side.
109 In November 2002, she reported T4 tenderness with severe posture problems and cervical neck pain.
110 On 18 November 2002, Dr Wood administered a cortisone injection to the plaintiff’s T4 thoracic spine articulation.
111 On 5 December 2002, the plaintiff lifted a one and a half kilogram bottle of Coke and suffered pain in her left arm. Dr Wood, he noted tenderness around the C3-4 area and reduced neck movements. Also at C7-8, there was paresthesia. There was reduced power in the left hand with paresthesia. The plaintiff also complained of severe left shoulder burning later in December 2002.
112 In January 2003, there was weakness and numbness in the plaintiff’s left hand and a CT scan was organised of the cervical spine.
113 In February 2003, Dr Wood noted the plaintiff complained of severe left neck and shoulder pain with left trapezius spasm and no impingement of the shoulder.
114 On 14 April 2003 Dr Wood noted the plaintiff could not cope with cope with MRI. Pain was resuming and the plaintiff had problems with sensation in the left hand and arm.
115 In March 2003, the plaintiff’s neck pain remained significant and her back was constantly sore. She could not sweep or do the washing or hang it out.
116 In July 2003, the plaintiff complained of severe left shoulder pain. In August 2003, she complained of pain in the neck and left shoulder, especially after exerting the joint. In September 2003, there was burning left shoulder pain and restriction of movement in all directions with pain. She was unhappy with physiotherapy and had agony at the treatment and there was limited range of shoulder movement due to pain.
117 In October 2003, the plaintiff complained of left shoulder pain and tenderness and was unable to abduct more than thirty degrees.
118 In December 2003, there was severe pain, and pins and needles resumed. On examination, there was restriction of movement due to pain, as was also reported later that month.
119 In January and February/March 2004, the plaintiff continued to complain of neck pain and left arm weakness with mild paresthesia in the left hand and pins and needles. Similar complaints were made during April, May, June, September, October and November 2004.
120 In January 2005, the plaintiff complained of pins and needles to the left hand and weakness and paresthesia. As of February 2005, her pain was controlled but constant in her left shoulder and neck, a situation she reported in May 2005.
121 There were further attendances in June, July and August 2005. In October 2005, weakness remained in the left hand and the plaintiff was progressing with the gymnasium.
122 In March 2006, “muscle spasm trapezius” was noted. In May 2006, left shoulder pain and back pain was reported and there was left muscle spasm in the neck. In July 2006, there was burning of the left shoulder and the left trapezius was tender, as it was in November 2006.
123 The plaintiff complained of neck spasm in November 2007 and headaches in January 2008. The notes ended in March 2008.
124 On referral from Dr Wood, Dr Daniel Lewis, rheumatologist, treated the plaintiff from 4 March 2003 until 10 May 2005.
125 Dr Lewis noted at the time of the accident there was a past history of depression, but there were no symptoms.
126 On initial consultation, the plaintiff had pain and limited movement of her left arm. On examination, the plaintiff had three quarters of the range of cervical movement in all planes and she could actively abduct and flex her shoulder to 90 degrees.
127 Dr Lewis noted the plaintiff had features of a mechanical derangement of the left shoulder and a chronic pain syndrome. He recommended an MRI scan of the cervical spine and arranged for the plaintiff to have a session with Mr Robert Postlethwaite, clinical psychologist. Dr Lewis thought at that time the plaintiff needed a functional restoration and pain management program.
128 On examination on 6 May 2003, the finding was of a rotator cuff syndrome and the plaintiff agreed to have ongoing conservative therapy. At that stage, Dr Lewis thought she was capable of working in a reduced capacity, albeit with some persisting pain.
129 The next examination was on 15 February 2005 when the plaintiff told Dr Lewis her condition had remained unchanged. Her neck was very stiff and she was having a lot more tingling in her left hand. She still had stiffness and restricted movement of the left shoulder and increasing levels of headache and pain in and around the cervical spine, and pain in the mid scapular area. She also had persisting headaches. At that time, the plaintiff continued on Mersyndol Forte and Voltaren.
130 On examination, the plaintiff’s neck movements were very stiff and she had widespread tender points. Neurological examination was otherwise normal.
131 The plaintiff was re examined on 1 March 2005, having had an MRI scan. It showed multi-level disc degeneration without a focal disc protrusion and, in Dr Lewis’ view, it was not possible to determine whether this finding was contributing in any way to the plaintiff’s symptoms.
132 Dr Lewis commenced the plaintiff on ten milligrams of Endep to get her sleeping and noted she was to follow up with therapy sessions with Mr Postlethwaite. He arranged to see her again in a month.
133 On review on 29 March 2005, the plaintiff told Dr Lewis that she was feeling the best she had felt for a very long time. Her sleep was improved and she had more energy. He noted emotionally her anxiety symptoms were still causing significant issues with the family and that the plaintiff continued to work with Mr Postlethwaite.
134 On the last examination on 10 May 2005, Dr Lewis noted the plaintiff had made very significant progress. She was sleeping a lot better, her energy had picked up and she was finding that if she did too much, she could trigger some headache and neck pain, but that these episodes were self-limited. He arranged to see her in six months.
135 In Dr Lewis’ view, the plaintiff sustained soft tissue injuries to the left shoulder and cervical spine in the accident. She had features of post traumatic stress disorder.
136 When he last saw her, he thought the plaintiff had the physical capacity for some employment and he thought her prognosis for further recovery was good.
137 He concluded, however, the effect of her injuries had profound effects on both her physical and emotional wellbeing and, as described to him, had adverse effects on all the aspects of her life.
138 The plaintiff first saw clinical psychologist, Mr Postlethwaite in March 2003 and he reported the following month. The plaintiff complained to him of anxiety being in a car and being progressively distressed by the situation in that she was not getting better physically.
139 At that time the plaintiff was being considered for a multiple disciplinary rehabilitation program. He was not aware of any pre-existing psychological conditions or any previous treatment.
140 The plaintiff was examined by Mr Hugh Hadley, orthopaedic surgeon, on 10 August 2005 for the purposes of an impairment assessment.
141 On examination, he noted the plaintiff’s symptoms appeared to be genuine. There was tenderness over the cervical and thoracic spines over the upper part of the left trapezius muscle and over the left shoulder. Flexion was to thirty degrees; extension twenty; right and left lateral extension each thirty; right and left rotation each twenty degrees. There was restriction of left shoulder movement with internal rotation to ninety degrees and other movements to a lesser extent.
142 Mr Hadley noted the grip with the left hand was weak and caused shoulder pain. There was half a centimetre wasting of the left forearm compared to the right. On testing with pinprick, there was diminished pain sensation throughout the upper limb, including the left shoulder.
143 Mr Hadley thought the plaintiff had suffered a neck injury with a chronic strain to the cervical muscles and probable injury to her cervical spine. He thought she also had a left shoulder injury with a chronic rotator cuff lesion with a small partial tear of the supraspinatus tendon and there was also a psychiatric reaction with depression and anxiety.
144 Mr Hadley considered the accident had impaired the plaintiff’s capacity for work and leisure activities.
145 The plaintiff was examined by Mr Kevin King, orthopaedic surgeon, in September 2008.
146 The plaintiff told him that the acute, severe symptoms of neck and shoulder pain and tingling in her forearm improved after the first few weeks after the accident. For the last five and a half years, she had remained much the same with persistent neck pain, a painful left shoulder and intermittent left-sided brachial neuralgia with tingling and numbness in her hands and pain in the left forearm.
147 On examination, there was quite marked limitation of all neck movements by pain and spasm with approximately a third of the normal range of all movements present. In terms of the left shoulder, there was below 90 degrees of all movements and they were limited by pain.
148 Mr King noted subjectively, the plaintiff had a slight but definite decrease in sensation to light touch over the palmar aspect of the left middle and ring fingers consistent with sensory impairment in the C7 and C8 nerve root distribution.
149 Mr King concluded that in the accident it was reasonable to assume the plaintiff sustained a significant degree of trauma to cervical disc and associated ligamentous structures, with almost certainly some degree of disc bulging with involvement of C7 and C8 nerve roots on the left side, in view of her subsequent persistent symptoms and current clinical signs of mild brachial neuralgia involving the left upper limb. She also had classical signs and symptoms of a chronic rotator cuff lesion of moderate severity affecting the left shoulder girdle.
150 Mr King did not have the results of any investigations available to him.
151 Mr King did not comment on the plaintiff’s work capacity save to note she was well motivated, having set up the business, and that it was a sedentary occupation, she had staff to assist her and she could manage.
152 Mr Stanley Schofield, orthopaedic surgeon, examined the plaintiff on 5 November 2008 and he later provided a number of supplementary reports.
153 The plaintiff told him, upon her return to work, her symptoms increased and by mutual agreement her job became redundant in November 2002.
154 On examination, the plaintiff continued to complain of neck pain and referred headache, radiating across to behind her eyes. She had neck pain there all the time and left arm pain intermittently, especially when turning to the left. This pain radiated to the elbow and there was also tingling in the middle fingers of the left hand and occasionally she woke at night. She felt weakness in the use of the left arm and had an ache in her left shoulder. She also complained of mid thoracic pain.
155 Examination of her neck revealed no deformity. There was superficial tenderness with light palpation. Her range of movement was reduced to the left and Mr Schofield noted there appeared to be some reservation of effort in obtaining those movements. There was complaint of pain with abduction on 90 degrees. There was no wasting of the upper arm muscles but two centimetre wasting below the elbow. Neurological examination of the upper limbs was normal, apart from reduced sensation in the long and middle fingers of the left hand. The plaintiff had a positive Tinel’s test.
156 Mr Schofield initially saw no investigations but saw the reports thereof. He also had available to him reports from Dr Wood, Mr Hadley, Dr Strauss, Dr Lewis and Mr King.
157 In Mr Schofield’s view, the plaintiff sustained physical injuries in the accident which had continued to cause chronic neck and left arm pain, left shoulder pain and stiffness and upper thoracic pain. He thought there was evidence of radiculopathy affecting the left arm, probably arising from a disc injury to the neck, and that the plaintiff’s headaches were probably post occipital. He did note some non-orthopaedic signs on examination of her left shoulder and neck, but he thought the physical basis of injuries needed to be assessed with up-to-date investigation. His diagnosis at that stage was soft tissue injuries to the cervical spine, left shoulder and thoracic spine. He thought the plaintiff was fit for light employment only, which she was doing as the manager of the shop.
158 Mr Schofield was then provided with the surveillance video and a detailed report from Dr Wood dated 5 November 2008.
159 In terms of the video, Mr Schofield noted that on 23 October 2008, the plaintiff was shown moving her head freely, talking to someone on the left side and her head was moving in many directions without difficulty.
160 Mr Schofield noted that with a long pole the plaintiff pulled down some dresses hanging outside the shop from a height, extending her neck easily and moving her right arm fully above her head, collecting the dresses on hangers in her left hand and moving them inside, presumably around closing time.
161 On 24 October 2008, there was a close-up of the plaintiff looking fully upwards with a long pole, removing a hanging fly screen/bead door from outside the shop and hanging it inside, using both arms and fully extending her neck. He noted she had no difficulty doing that task and repeated the neck extension whilst inside the shop. She was also seen to fully flex her neck and rotate to the right and left. She repeated the same task moving another screen door and then removing some object from the front glass door, then holding the door with her left hand before closing it.
162 Mr Schofield noted on 23 October 2008, the plaintiff was shown removing many bags from a stand in front of the shop, taking them from the stand with her right hand and putting them on her left arm and holding them without difficulty. He noted her neck movements were full and free without restriction. The plaintiff then held quite a few garments in her left hand, having taken them down with a pole in her right, and there did not appear to be any weakness holding the objects in her non-dominant arm. The plaintiff repeated this task before closing the shop at 5.36 pm. He noted there appeared to be equal use of both arms and full movement of the neck.
163 In summary, Mr Schofield thought the plaintiff did not appear to have any stiffness or pain in the neck, especially involving extension, rotation and flexion. There was no limitation or stiffness in the use of either shoulder joint and she did not demonstrate any evidence of any weakness or disuse in her left arm and hand.
164 Noting his examination, Mr Schofield mentioned the finding of superficial tenderness which usually indicates some functional overlay, and also the reservation of effort associated with reduced movement of the neck which again was some evidence of functional overlay. He noted while the plaintiff could not abduct beyond 90 degrees, there was no wasting of the upper arm muscles and the reported investigations failed to show any serious pathology.
165 Mr Schofield concluded the video evidence demonstrated the plaintiff has significantly less disability than she claimed. The over-reaction during examination was noted with some signs of functional overlay and supported by the video. He thought, on the basis of the video, it likely that the pathology in the left shoulder caused by the accident had now healed. At that stage, he recommended an MRI scan because the symptoms in the left arm required that investigation for proof or otherwise that the plaintiff had radiculopathy.
166 Having been provided with the MRI scan of the cervical spine and left shoulder taken on 2 January 2009, Mr Schofield noted the MRI confirmed his view that the evidence of radiculopathy with forearm wasting and numbness in the middle two fingers was due to pathology noted on the MRI affecting C6-7. He noted that was supported by clinical evidence in the report of Mr King. Mr Schofield thought the plaintiff’s prognosis remained guarded. Her symptoms may remain the same but, if they increased, he believed the plaintiff could be a candidate for an anterior cervical fusion at C6-7.
167 In his final report, Mr Schofield concluded, following his examination, he was unable to determine the exact nature of the plaintiff’s ongoing complaints and considered there to be some functional component. He noted his views as to the video and then his request for an MRI scan. He noted the MRI of the left shoulder was normal apart from mild tendonosis which was unlikely to be the cause of the plaintiff’s left arm pain radiating distal to the elbow.
168 Mr Schofield concluded it was clear from investigation results that the plaintiff had evidence of pre-existing degenerative change in the lower cervical region. Although the physical signs had shown evidence of functional overlay, recent investigation supported the organic signs, particularly affecting the left forearm muscle girth and the subjective signs of tingling and numbness.
169 On the basis of the plaintiff’s history and clinical signs, which in particular note some evidence of radiculopathy affecting the left arm, he concluded the neck injury caused by the accident had been a significant contributing factor to aggravation of pre-existing degenerative change which had resulted in clinical signs of left sided radiculopathy.
Investigations
170 No abnormality was noted in an x-ray of the cervical spine taken on 11 September 2002.
171 Mr Hadley referred to a normal CT scan of the cervical spine taken on 29 January 2003.
172 An MRI of the cervical spine was carried out in 2003 and 2005. These investigations were referred to by Dr Lewis in his report. He noted that the 2005 MRI scan showed multi level degeneration without focal disc protrusion.
173 A CT scan of the cervical spine taken on 22 May 2006 showed minor degenerative changes largely confined to the discs and the facet joints. There was no sign of nerve compression or exit canal stenosis.
174 The MRI of the cervical spine taken on 2 January 2009 showed mild cervical spondylosis. There was impression of contact and mild impingement secondary to moderate foraminal narrowing at C6/7 with further possible contact without compromise of right C7.
175 However the body of this report seems to suggest the findings at C6/7 were left sided.
The Defendant’s Medical Evidence
176 The plaintiff was initially examined by Dr Lefkovits in January 2003 and re- examined on 10 January 2003.
177 On initial examination, there was some tenderness of the left trapezius muscle but no muscle spasm and there was a full range of active movement of the cervical spine. The plaintiff showed mild discomfort at the extremes of lateral flexion and rotation bilaterally.
178 At that stage, Dr Lefkovits thought the plaintiff had suffered soft tissue injury to the cervical and upper thoracic region, predominantly on the left. She had a full range of active movements of the left shoulder, although she showed some discomfort at the extremes of forward elevation and abduction.
179 On re-examination there was no muscle spasm and no tenderness of the cervical spine. There was a slight reduction of movement in all directions because of a stiff feeling at the base of the left side of the neck. There was reduced abduction, elevation and external rotation and no evidence of wasting or weakness of any of the muscle groups in the left upper limb.
180 At that examination, Dr Lefkovits thought there were continuing symptoms consistent with the rotator cuff injury involving the left shoulder joint. He thought at that stage the plaintiff was perfectly fit to return to the workforce in a job with a change in posture and lifting restrictions to five kilograms with her left arm.
181 The plaintiff was examined by Dr Chris Baker, occupational physician, on 24 March 2004.
182 On examination of the cervical spine, there was virtually a full range of movement in all directions. There was restricted movement at the left shoulder joint with elevation and abduction to 100 degrees and restriction in internal and external rotation. He noted there was altered sensation over the extensor surface of the forearm.
183 Dr Baker diagnosed soft tissue injuries of a muscular ligamentous nature to the cervical spine which had resulted in cervicogenic headaches. There were also soft tissue injuries of a muscular ligamentous nature to the thoracolumbar spine and a minor rotator cuff lesion of the left shoulder.
184 At that stage, Dr Baker thought the plaintiff had a sixty per cent capacity for undertaking her pre-injury duties that she was able to undertake other tasks such as clerical work where she could alter her posture. He thought the main impairment to her returning to work then was the fact she had had a TAC claim and potentially employers lost interest in employing her.
185 Mr Brendan Dooley, orthopaedic surgeon, has examined the plaintiff on three occasions on behalf of the defendant in August 2004, March 2007 and, more recently, on 30 October 2008.
186 On initial examination, movements of the cervicothoracic spine were limited with evidence of minor muscle spasm. There was flexion to thirty degrees, extension to thirty five degrees, lateral flexion to the right was easier at twenty degrees than to the left where it was to fifteen degrees. Similarly, rotation was sixty degrees to the right and forty five degrees to the left.
187 The reflexes of the left arm were equal and normal. There was no muscle wasting and no sensory loss. Movements in the left shoulder were limited with pain noted at the extremes of movement. There was flexion and abduction of ninety degrees and adduction and extension of forty degrees. External rotation was to seventy degrees and internal rotation was to sixty degrees. Tests for impingement were negative. The circulation to the plaintiff’s left arm was normal and there was no evidence of reflex sympathetic dystrophy affecting her left hand.
188 Mr Dooley initially diagnosed soft tissue injury to the cervical spine, resulting in cervicogenic headaches and aching and stiffness affecting the neck. He thought the plaintiff had probably also sustained soft tissue injuries of a musculoligamentous nature to the thoracic spine, but more likely that pain was referred from the neck. In addition, the plaintiff had suffered a rotator cuff lesion to the left shoulder resulting in a small tear in the supraspinatus tendon with aching stiffness and restriction of movement. He noted that she had had intermittent numbness affecting her left arm, but there was no abnormal neurology.
189 Having been provided with a report from Mr Hadley, Dr Lewis and various general practitioners’ reports, Mr Dooley confirmed his opinion. He agreed with Mr Hadley and Dr Lewis that the plaintiff had a soft tissue injury to her cervicothoracic spine, resulting in neck pain and non-verifiable radicular symptoms to the left arm. He thought the differences in movement at the left shoulder found between his examination and that of Mr Hadley a year later were minimal. He noted the plaintiff suffered from anxiety and depression with a chronic pain syndrome. He thought her injuries had not been serious and in normal circumstances one would have expected a quicker and better recovery.
190 Mr Dooley re-examined the plaintiff on 20 March 2007.
191 He noted since the last examination there had obviously been a great improvement in that the plaintiff had regained a full range of movement in her left shoulder and her pain medication was now down to minimum. The plaintiff told him her current medication was 25 milligrams of Endep, one tablet at night to help her sleep. She had Voltaren, 50 milligram tablets as needed, but only took about three tablets a week. Similarly, with Panadeine Forte, she took only between four and six tablets in a whole week.
192 On examination, movements in the cervicothoracic spine were almost full without evidence of muscle spasm. The plaintiff had flexion to 40 degrees, extension and lateral flexion to either side at 35 degrees and rotation to 70 degrees to the right and 60 degrees to the left.
193 Mr Dooley could detect no abnormal neurology in the left arm. The biceps, triceps and brachioradialis reflexes were equal and active with those on the right. In her left arm there was no evidence of any muscle wasting and there was no sensory loss.
194 Movements in the left shoulder were full, but there was discomfort on extremes of movement. The circulation to the left arm was normal and the left shoulder joint was stable.
195 Mr Dooley’s opinion was unchanged. He believed the main pain the plaintiff complained of, namely, left shoulder girdle pain posteriorly was probably referred from the soft tissue injuries to the cervical spine due to aggravation of disc degenerative changes but without any evidence of major disc prolapse or of neural pressure on the nerve roots. He thought the plaintiff’s other injury was to the left shoulder where she probably damaged the rotator cuff, causing a small tear, but he noted currently there were no signs that it was causing pain in that the tests for impingement were negative and she had a full range movement.
196 He considered the plaintiff had made great progress and believed her residual symptoms were probably magnified as the result of anxiety and depression. He thought the vast majority of soft tissue injuries to the cervicothoracic spine would in time recover fully, or largely fully, and he thought the left shoulder injury would largely recover.
197 Mr Dooley believed the prognosis was towards natural recovery and it would be highly unlikely the plaintiff would develop any major disc prolapse or other complication in the cervical spine that might require surgery.
198 He believed in time the plaintiff would be able to handle all aspects of her job in the shop, including reaching and lifting of not more than five to seven kilograms. At that time, he thought the restrictions she claimed were not as great as she said.
199 On re-examination on 30 October 2008, Mr Dooley noted active movements in the cervicothoracic spine were mildly limited, the plaintiff’s posture was normal and there was no muscle spasm evident on light palpation. There was lateral flexion to either side at 35 degrees, extension to 30 degrees, rotation 70 degrees to the right and 55 to the left. In the left arm, he could detect no abnormal neurology with reflexes equal and active with those on the right side and there was no evidence of any muscle wasting or sensory loss.
200 Compared to the previous examination where the plaintiff had full active and passive range of movements in the left shoulder, on this occasion all active movements were markedly restricted, but tests for impingement were negative. She had active flexion and abduction to seventy degrees only in either direction, external rotation was to fifty degrees only and internal rotation also to fifty degrees, adduction to twenty degrees and extension to thirty degrees. Examination of her left elbow, wrist and hand were normal and there was no sensory loss in the left arm and no evidence of disuse atrophy affecting her left hand.
201 Mr Dooley noted that at this examination no further investigations were available. The previous CT scan of the plaintiff’s neck had only shown minor degenerative changes confined to the discs and facet joints. There had been no sign of any cord compression, neural involvement, exit canal stenosis or marked disc prolapse in the cervical spine. In short, in his view, the changes seen on the CT scan reflected disc degeneration only and there were no signs of any fracture or major disc prolapse that might have occurred at the time of the accident.
202 In Mr Dooley’s view, the plaintiff’s current symptoms were largely or totally psychosomatic in origin. He commented that there was no evidence the plaintiff was malingering, but she was subconsciously exaggerating all of her symptoms in her neck and left arm, including her left shoulder. He could not explain the marked pain and stiffness affecting her left shoulder on a physical basis.
203 Mr Dooley believed if the plaintiff worked five to six hours a day four days a week, there was no reason she could not work five to six hours six days a week in her own business. He noted the work itself was not heavy and her husband did all deliveries of any objects that were heavy. Mr Dooley believed there were very few restrictions preventing the plaintiff from undertaking her full domestic chores and working more or less full time in her business.
204 Mr Dooley was subsequently provided with the surveillance video taken on 23 May 2008 and that taken on 23 and 24 October 2008.
205 Mr Dooley noted both videos displayed no restriction in movement in the plaintiff’s neck and both shoulders and, in his opinion, therefore, the plaintiff had no residual impairment or disability affecting her neck or left shoulder as a result of the accident.
206 In his view, the plaintiff’s actions on video were totally inconsistent with his examination on 30 October 2008 and he attributed that inconsistency to marked functional overlay with conscious or subconscious exaggeration of disability.
207 Mr Dooley considered that in the absence of any restriction of movement, the plaintiff had almost fully recovered from the physical injuries and she would be able to work full time.
208 Mr Dooley was subsequently provided with the MRI scans taken on 2 January 2009 and the reports of Mr Schofield, and also Dr Wood.
209 In Mr Dooley’s view, the MRI scan of the left shoulder of 2 January 2009 showed no abnormality apart from nominal tendonosis of the subscapularis tendon with perhaps a tiny partial tear on the articular surface near the insert.
210 Mr Dooley agreed with Mr Schofield’s opinion that there was no serious pathology shown of the left shoulder and the findings were consistent with constitutional change.
211 Mr Dooley noted that the MRI scan of the cervical spine showed mild degenerative changes only in the mid cervical spine, mainly at the C5-6 and C6-7 intervertebral discs but there was no evidence of neural compression and certainly no evidence of any disc prolapse affecting the mid cervical discs.
212 He thought the findings on the 2009 MRI scan were probably constitutional in nature and were consistent with the previous CT scans of January 2003 and May 2006 and the MRI scan of 21 February 2005.
213 Mr Dooley noted Mr Schofield was the only person who had found any wasting, namely, two centimetres of atrophy of the left forearm. Mr Dooley believed that atrophy, of which he found no evidence, had probably resulted from some disuse in the plaintiff’s left arm compared to the right and did not represent radiculopathy. He noted the plaintiff is right hand dominant and one would expect her right arm musculature to be developed better than her left arm as in most people a musculature in the dominant arm is better developed and stronger than in the non-dominant arm.
214 Mr Dooley noted the plaintiff had not been examined by a consultant neurologist to confirm or otherwise that she had definite signs of radiculopathy affecting her left arm and he had not found convincing evidence on three occasions.
215 Mr Dooley thought the degenerative changes only shown on MRI were consistent with MRI findings in the asymptomatic population expected in some fifty per cent of population of the plaintiff’s age. He believed surgery was strongly contraindicated and that the plaintiff would not benefit from it in any way.
Video Surveillance
216 Thirty eight minutes of video surveillance of the plaintiff’s activities on 23 May 2008 was shown.
217 Initially the plaintiff was shown at around midday, sitting in a coffee shop until 12.04 pm. During that time, she was seated and there were a number of small children around her.
218 The plaintiff was shown at various times bending forward and appeared to be playing some sort of game with the children. She was not really doing anything with her left arm. The plaintiff agreed that at one stage she moved her head abruptly when she was acting with one of the children.
219 The plaintiff was then shown talking outside her shop, going inside at about 12.23 pm.
220 She was then shown driving a car at 3.36 pm and she was back at the shop later in the afternoon, closing it at 5.22 pm.
221 The plaintiff was shown at 4.57 pm chatting with a customer, and she agreed that at that stage she was shown making an abrupt movement of her neck. She did not know if that movement would cause her pain.
222 At 5.06 pm, the plaintiff was shown smoking and moving her neck freely.
223 At 5.10 pm, she was shown pushing some clothes along a rack. There was no over shoulder activity and someone else was using the hook to take down clothing from outside the shop. The plaintiff was using her right arm mainly and pushing the rack from behind.
224 A shop assistant was shown getting something from high up and she used a pole to get down two items with her right hand. Then the plaintiff took something down at 5.14 pm with the shop assistant next to her. The plaintiff then took down a hammock from outside, looking up to get it down. She took down the bead door with the pole at 5.16 pm and locked up the shop at 5.22 pm.
225 The plaintiff was shown fully stretching both arms above her head, bringing in the door beads using the pole in her right hand. She said she must have been having a good day. She did not do this task regularly and she had probably brought in the door beads six times in the last year. It hurt to do this job and it would normally mean she had gone home and come back if she was doing it. She agreed there was another staff member Trish at the shop at that time.
226 There was seven minutes of video taken over the period 23 and 24 October 2008.
227 At 4.36 pm on the first date, the plaintiff was shown undoing shoulder bags from the rack outside the shop. She put her right arm over her head. She carried the steel rack without anything on it inside at 4.37 pm.
228 At 5.22 pm, the shop assistant got down with the pole what looked like four skirts. The plaintiff then carried the clothes rack in her right hand and the pole in her left.
229 At 5.23 pm, the plaintiff then proceeded to take down two items of clothing outside the shop using the pole in her right hand holding onto other items of clothing in her left hand.
230 On 24 October 2008 at 5.36 pm, the plaintiff was shown extending both arms to get the door beads down and she carried the door beads inside with her left arm. She put it up inside somehow with her right arm but I could not really see what she was doing.
231 The plaintiff then went outside and got a hammock which she took down with the pole and carried it back into the shop with her left hand.
232 At 5.45 pm, the plaintiff was shown inside the shop with both arms up getting something off the wall. The plaintiff did not really know who was at the shop on that day. Her mother and her son were there but she was not sure whether her daughter was there.
233 The plaintiff agreed that there was no restriction of shoulder or neck movement and that she was moving freely when shown on that film.
234 A third short video was shown of the plaintiff’s activities on 6 November 2009. She was shown at a shop and then sitting having a coffee. She later attended her own shop. She was then shown coming out of a supermarket with shopping bags in both hands.
235 The plaintiff explained that when she had said that her husband does all the shopping, she meant that he does the “big shopping” for the family. She is able to go to the shop and get bits and pieces.
236 The plaintiff agreed that she showed free movement of her neck in this section of film.
Business Earnings
237 Financial statements for the years ending 30 June 2007 and 2008 for the plaintiff’s business were tendered.
238 It became apparent that those for the 2007 year were only for a quarter of the year as the business commenced in April 2007.
239 In 2007, there were sales of $52,000 compared to $240,000 in 2008. Employee benefits expense was $7,000 in 2007 and $35,000 in 2008.
240 The total expenses in 2007 were $58,573 compared to $234,738 in 2008. There was a small profit of $20,918 in 2008 compared to $3,222 in 2007.
Findings
241 I accept that the plaintiff suffered injury a soft tissue injury to her cervical spine in the accident.
242 Whilst it is the impairment not the injury which is the relevant consideration, there is a difference of medical opinion as to the organic basis of this injury.
243 Mr Schofield is the only practitioner who has found radiculopathy based on clinical finding of wasting, numbness in the fingers and the recent MRI findings. However, in Mr Schofield’s view, the presence of radiculopathy would not result in any restriction of movement. As counsel for the plaintiff conceded it was a finding that “he would not like to completely hang his hat on.”
244 Whilst I accept the plaintiff’s impairment is organically based, Dr Lewis, in 2003, and more recently Mr Schofield, considered there to be a non-organic component to the plaintiff’s condition. Mr Dooley’s present view is that the plaintiff’s condition is largely or totally psychosomatic.
245 The impairment to the cervical spine must have consequences which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, as at the date of the hearing, as being more than significant or marked, and as being at least very considerable.
246 The term “serious” requires the impairment and its consequences to be viewed objectively and also judged on an external comparative basis against possible impairments not necessarily in the same category: see Humphries v Poljak (supra), at 170, and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441. See in particular Chernov JA at paragraph 29.
247 In addition to being “serious” the impairment must be long term.
248 The plaintiff claims her earning capacity has been impaired as a result of her neck injury and that she has been required to employ additional staff since commencing her business in April 2007 as she is unable to cope with carrying out the tasks involved.
249 At the time of the accident, the plaintiff’s youngest child was aged two or three. The plaintiff had been back in the workforce for about eight months, prior to that time having been engaged in home duties caring for her four children. The plaintiff was working part time and she deposed there was a prospect of further hours.
250 The plaintiff was not cross-examined as to the circumstances of leaving her job with Home Hardware. I accept that she stopped working in October 2002 because of neck and left shoulder pain. Since that time she has made no attempt to return to work until the business was purchased in April 2007.
251 Whilst Dr Wood considered the plaintiff unfit for work in early 2003, in May 2003, Dr Lewis thought she could work in a reduced capacity, albeit with some persisting pain. He considered she had a physical capacity for some employment when he last saw her in May 2005 when she reported improvement in her condition.
252 In mid 2004, Dr Baker thought the plaintiff was fit for sixty per cent of her pre injury duties and that she could undertake alternative work with changed posture. In 2005, Mr Hadley simply commented that the plaintiff had an impaired capacity for employment.
253 Medical practitioners in more recent times have considered the plaintiff has a greater, if not full capacity for work.
254 Dr Wood considered the plaintiff can function as a shop assistant working at her own pace and taking sick leave when required.
255 Mr Schofield, prior to viewing the video, thought the plaintiff was fit for light duties in the business, and whilst not commenting specifically on her capacity for employment, having seen the video, he commented that the plaintiff had significantly less disability than she claimed.
256 Prior to seeing the video, Mr Dooley considered there was no reason the plaintiff could not work five to six hours a day, six days a week in the business. After having seen the video, he thought the plaintiff had almost fully recovered from her physical injuries and she would be able to work full time.
257 Whilst the video was only a snapshot of the plaintiff’s activities, and there were many hours surveillance, it was film taken in May 2008 and over two days in October 2008 of the plaintiff engaging in activities, albeit light, that were inconsistent with her evidence, and that of her mother, as to her level of activity in the shop.
258 Clearly the plaintiff demonstrated no restriction or limitation performing the activities shown on video – particularly using the pole to remove items from outside the shop, looking up, extending her arms fully whilst taking items down and then putting them up again inside the shop.
259 The plaintiff maintained she did this task perhaps six times a year and deposed that it was a task performed mainly by others working in the shop. Yet the plaintiff was shown on three separate days when she was filmed doing this precise task, without apparent difficulty, with others in the shop who could have helped her – a situation counsel for the plaintiff conceded was “not sheer luck”.
260 Having seen the video, I accept, as Mr Dooley and Mr Schofield found, the plaintiff is not as disabled as she claims.
261 Mr Schofield went further, describing free movement without difficulty, something I also observed, compared to the plaintiff’s evidence that everything is painful. Mr Schofield also noted there did not appear to be any weakness in holding the objects in her non-dominant arm.
262 I do not accept that the plaintiff is as disabled as her mother or husband deposed, nor do I accept that other sales staff is employed at the business because the plaintiff is physically incapable of performing all her duties. Further, it is clear from the video that the plaintiff works more hours in the shop than she deposed, having been seen working and shutting the shop after 5.00 pm on three occasions.
263 Although there may have been some incapacity for work in earlier years following the accident, I am not satisfied that the plaintiff has difficulty with her present work or her work capacity which could be described as “serious”.
264 The plaintiff’s level of movement shown on examination with Mr Dooley and Mr Schofield was clearly inconsistent with that shown on the video on 23 and 24 October 2008. There was no explanation by the plaintiff as to her restriction of movement when she saw Mr Dooley a week later and Mr Schofield two weeks later.
265 In these circumstances, I have difficulty accepting the plaintiff’s evidence of her level of pain and disability.
266 In particular, I do not accept that the plaintiff was fully co operative with Mr King when she saw him in the month prior to the video. Nor do I accept the plaintiff’s evidence that Mr Dooley did not find a full range of movement on examination in 2007 or that on other occasions when a full range of movement was observed, the plaintiff was always in pain.
267 Save for attending Dr Wood, the plaintiff has not undergone medical treatment for some time, last seeing Dr Lewis in May 2005, when he noted an improvement in her condition.
268 Dr Wood’s clinical notes were relied upon by the plaintiff as evidence of consistent reporting of left sided complaints. It is of note, however, there was a significant decrease in the number of attendances after 2005 with the plaintiff seeing Dr Wood three times in 2006, twice in 2007 and three times to March 2008.
269 The plaintiff’s medication regime is not particularly significant, taking Mersyndol most days and the occasional Valium. Dr Wood’s notes in recent years are unclear as to what medication the plaintiff has been prescribed for her neck.
270 The plaintiff can still do household tasks and some gardening and I do not accept, given her level of movement on video, that she is as disabled as she claims in relation to these activities.
271 Whilst the plaintiff has not played social netball since the accident, I do not consider this to be a serious consequence.
272 I am permitted, in considering the consequences of the plaintiff’s physical impairment, to take into account the expected mental consequences thereof. However, such consequences themselves cannot constitute the impairment of the function of the lumbar spine.
273 I accept that the plaintiff has experienced some anxiety and depression as a consequence of her physical injury, particularly in the early years following the accident.
274 However, when these mental consequences are considered together with the consequences of her physical impairment to her neck, I do not accept that at the date of the hearing her impairment is “serious” and long term.
275 I do not accept this case is of the nature considered by AJ Dodd Streeton in Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592, where Her Honour found that permanent daily pain must, according to ordinary human experience, raise a real prospect of a “very considerable” consequence.
276 Taking into account all the evidence, I am not satisfied that the impairment to the plaintiff’s cervical spine meets the test of “serious” in Humphries v Poljak.
277 Accordingly, the plaintiff’s application is dismissed.
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