Golic v Transport Accident Commission
[2020] VCC 258
•12 March 2020 (Oral Reasons)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-19-04242
| MEAGHAN GOLIC | Appellant |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Respondent |
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JUDGE: | Judge Pillay | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 March 2020 | |
DATE OF JUDGMENT: | 12 March 2020 (Oral Reasons) | |
CASE MAY BE CITED AS: | Golic v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 258 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – aggravation – lumbar spinal condition – pain and suffering consequences – motor vehicle accident
Legislation Cited: Transport Accident Act 1986, s93(4)(d)
Judgment: Application Granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Purcell SC with Ms J Frederico | Slater and Gordon Lawyers |
| For the Defendant | Mr R Attiwill QC with Ms V McLeod | Solicitor for the Transport Accident Commission |
HIS HONOUR:
1 Meaghan Golic was born on 13 February 1985. At a relatively young age she was involved in a motor vehicle accident. That accident occurred on 28 December 2012 when Ms Golic was aged 27.
2 She alleges that in that motor vehicle accident she sustained an aggravation of degenerative changes in her lumbar spine and a left sided L5/S1 disc prolapse.
3 She alleges that the consequences of that injury are serious within the meaning of s.93 of the Transport Accident Act.
4 The defendant's case is based on two propositions.
5 The first is that Ms Golic had pre‑existing degenerative changes in her lumbar spine which caused pain and suffering consequences for her. The defendant argues such consequences stemming from the pre-existing lumbar spine degeneration had to be stripped out from the assessment of the consequences alleged by Ms Golic to have been caused by the motor vehicle accident.
6 The second limb to the defendant's argument was that the consequences alleged by Ms Golic to flow from her injury could not be considered serious within the meaning of that term, as defined in Humphries v Poljak.[1]
[1]Humphries v Poljak [1992] 2 VR 129
7 In determining this case then, it is necessary to answer the following questions:
1) Prior to the motor vehicle accident, did Ms Golic suffer from a pre-existing lumbar spinal condition and if so, what was it?
2) Did any pre-existing lumbar spinal condition cause pain and suffering consequences for Ms Golic; and if so, what were they?
3) What injury, if any, was caused to Ms Golic’s lumbar spine in the motor vehicle accident?
4) What pain and suffering consequences are caused by the injuries sustained in the motor vehicle accident?
5) Do the pain and suffering consequences arising from the injuries sustained in the motor vehicle accident reach the requisite level of being serious, when judged in comparison with other cases?
8 Turning to answer those questions in order, I begin by noting that Ms Golic’s credit was not seriously challenged; either in cross-examination or in closing submission. The most that could be said was that she had misstated or embellished on specific occasions. I was greatly assisted by watching her give evidence. She answered questions in a straightforward manner and appeared to do her best. She was frank in admitting, for example, to her work capacity and freely volunteered it was up to 20 hours.
9 It was suggested by Mr Attiwill QC, who appeared with Ms McLeod for the defendant, that Ms Golic had embellished the severity of her symptoms because, as an example, she described international plane travel as unbearable, yet she had taken numerous trips, which suggested it was not a terribly difficult thing for her to do.[2]
[2]Transcript (“T”) 20, Line (“L) 24
10 While Ms Golic did shy from using the term ‘unbearable’, she was, as her counsel, Mr Purcell QC, who appeared with Ms Frederico, put it, an unsophisticated witness and that often told in her expressions. I consider she was simply trying to convey the fact that international plane journeys cause flare ups of pain which were significant for her to tolerate. Overall, I consider Ms Golic a witness of truth and I accept her evidence.
Prior to the motor vehicle accident, did Ms Golic suffer from a pre-existing
lumbar spinal condition and if so, what was it?
11 Turning then to the first question, as to the pre-existing lumbar spinal condition suffered by Ms Golic.
12 The answer to this question is an almost unanimous one between the parties and medical practitioners. It is described as ‘lumber spondylosis’ by Associate Professor (“AP”) Bittar.[3] Professor Teddy described it as ‘a pre-existing lumbar spondylosis’ in his second report[4], after viewing the treating doctor’s notes. Mr Menz, however, described it as an L5/S1 degenerate disc[5], which, to my understanding of spondylosis, is almost the same diagnosis as both neurosurgeons. In order to be precise, however, I would prefer the opinions of AP Bittar and Professor Teddy, given their specialties in describing the lumbar spinal condition which pre-existed the motor vehicle accident.
Did any pre-existing lumbar spinal condition cause pain and suffering consequences for Ms Golic and if so, what were they?
[3]Report of Professor Richard Bittar, dated 16 December 2019, at Plaintiff’s Court Book (“PCB”) 43
[4]Report of Professor Peter Teddy, dated 26 June 2019, PCB 54
[5]Report of Dr Menz, dated 30 December 2019, at PCB 74
13 Turning then to the second question as to whether such a pre-existing condition caused pain and suffering consequences. Much weight was placed by the defendant on Ms Golic’s complaints of lumbar back pain prior to the motor vehicle accident. These complaints were said to be in 2011, described in cross examination as a ‘niggling dull ache’ and specifically again in 2012.[6]
[6]T33, L21
14 As to that, the defendant tendered notes from Dr Guirguis, her treating doctor at the time, for April 2012, which records ‘Lower back pain radiating to right leg, on and off, 6/12 since giving worse last 3/7’ (sic).[7]
[7]Clinical notes of Dr Halla Guirguis, dated 14 April 2012 and 3 January 2013
15 The defendant mounted an argument that this was evidence of a very significant pre-existing injury that must have had consequences for Ms Golic and further, such consequences would be continuing to this day. They called in aid the opinion of Dr Menz, who opines that such a pre-existing injury ‘would be the source of most of her ongoing symptoms’.[8] I reject that proposition. The diagnosis of the condition does not necessarily imply impairment of function. Ms Golic was adamant that prior to her motor vehicle accident she was highly active.
[8]Report of Dr Menz, dated 30 December 2019, at PCB 74
16 She is supported in this assertion by her husband in his affidavit[9], particularly at paragraph 14. For example, she went to the gym several times a week[10], competed in 5 to 10 kilometre runs regularly with her mother[11], snowboarded[12], did wakeboarding[13] and otherwise lived a very active life. I accept that evidence for reasons as to credit, set out earlier. Further, the uncontradicted evidence of her husband and her mother support Ms Golic’s evidence on this point.
[9]Affidavit of Dusko Golic, dated 4 February 2020, paragraph 14, PCB 20
[10]Affidavit of Ms Golic, dated 19 December 2018, paragraph 14, at PCB 8
[11]Affidavit of Ms Lacy, dated 2 March 2020, paragraph 3, at PCB 22. Also supported by the Affidavit of Ms Golic, dated 2 March 2020, paragraph 5, at PCB 14.
[12]Affidavit of Ms Golic, dated 2 March 2020, paragraph 2, at PCB 12
[13]Affidavit of Ms Golic, dated 2 March 2020, paragraph 2, at PCB 12
17 Then both AP Bittar and Professor Teddy did not record any functional impairment by reason of her pre-existing condition. AP Bittar noted that the lumbar range of motion in 2012 was normal and there was no lower limb neurological deficit.[14] Professor Teddy recorded much the same thing.[15]
[14]Report of Professor Richard Bittar, dated 16 December 2019, at PCB 42
[15]Report of Professor Peter Teddy, dated 26 June 2019, PCB 54
18 Further, the treating doctor notes are silent after the presentation on 14 April 2012 as to ongoing treatment, medication, prescription or investigations.[16] This indicates that Ms Golic had a fairly self-limiting exacerbation of lumbar back pain at that time. These matters tell heavily against Dr Menz’s view that I have just set out. I do not accept it and consider that the pre-existing condition had very minor ongoing consequences.
[16]Clinical notes of Dr Halla Guirguis, dated 14 April 2012
19 I am fortified in this view because it is clear from the treating doctor’s notes of 14 April 2012 and the x-ray, conducted thereafter, that there was no disc protrusion at the time and only right leg symptoms. After the motor vehicle accident, MRI showed left sided disc protrusion and the symptoms were of neurological deficit to the left side. I consider this to be a useful way to isolate the pre-existing condition and in making my determination that its consequences are of a minor nature.
What injury was caused to Ms Golic’s lumbar spine in the motor vehicle accident?
20 Turning away from the pre-existing condition to consider the injuries sustained in the motor vehicle accident itself, for reasons set out above, I find Ms Golic has sustained an aggravation of pre-existing lumbar spondylosis with an L5/S1 left sided paracentral disc protrusion resulting in left L5 nerve root compromise at the L5/S1 level.[17] I make that finding preferring the evidence of AP Bittar and Professor Teddy to that of Dr Menz, given their specialties. I consider they are better placed to opine on Ms Golic’s condition.
[17]Report of Professor Peter Teddy, dated 26 June 2019, PCB 54
21 Further, I consider Dr Menz incorrect in his analysis of the ongoing consequences of the pre-existing condition and this undermines the weight to be placed on his opinion overall.
What pain and suffering consequences are caused by the injuries sustained in the motor vehicle accident?
22 As to the consequences which flow from the injury, they are amply set out in the affidavit material of Ms Golic, her husband, and her mother. The defendant argued that Ms Golic needed to strip out those consequences related to the pre-existing condition. So much may be accepted. Given my finding that prior to the motor vehicle accident, Ms Golic had a self-limiting episode of lumbar back pain and right sided symptoms and otherwise dull, achey, niggly back pain. I consider this fits neatly with AP Bittar’s analysis.[18] That is, that the vast majority of Ms Golic’s pain and suffering consequences currently stem from injuries sustained in the motor vehicle accident.
Do the pain and suffering consequences arising from the injuries sustained in the motor vehicle accident reach the requisite level of being serious, when judges in comparison with other cases?
[18]Report of Professor Richard Bittar, dated 16 December 2019, at PCB 44
23 The first point to make in consideration of the consequences sustained by Ms Golic is the age at which these consequences began for her. This I consider to be a very significant factor, see Stijepic v One Force.[19]
[19]Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181, at [43]
24 It was suggested by the defendant that her condition could not be considered long term, given the comments of her treating doctor[20] as to her having a good prognosis. Given she has suffered her condition for some 7.5 years, the fact that it is not amenable to treatment, and the opinions of AP Bittar[21] and Professor Teddy[22], I find her injury and its consequences are long term.
[20]Report of Dr Adel Farag, dated 21 February, at PCB 27
[21]Report of Professor Richard Bittar, dated 16 December 2019, at PCB 44
[22]Report of Professor Peter Teddy, dated 20 November 2018, at PCB 48
25 What is really being suggested is that Ms Golic has a condition which requires permanent modifications to her life. In my opinion, those modifications and consequences do rise to the level required to be considered serious. She is unable to exercise as she used to. She used to love going to the gym and on longer runs, but she cannot do heavy gym work or run the distances that she used to. Her mother’s evidence corroborates this.[23]
[23]Affidavit of Adrienne Lacy, dated 2 March 2020, paragraph 3 & 4, at PCB 22
26 Particularly both Ms Golic and her mother describe how much the plaintiff enjoyed tennis and how the injury has robbed her of this past time.[24] This is a significant blow, given she wished to pass this love on to her children. She has experienced low back pain and pain into her left leg for a significant period after the motor vehicle accident. She now has a permanent loss of sensation in her left foot. That is a considerable deficit.
[24]Affidavit of Adrienne Lacy, dated 2 March 2020, paragraph 15, at PCB 24. Also supported by the Affidavit of Meaghan Golic, dated 2 March 2020, paragraph 2, at PCB 13
27 The defendant pointed to the fact that Ms Golic retained the capacity to do many things. She could travel overseas and interstate, shop, work and do domestic duties. She freely conceded much of this in cross-examination. However, when looked at closely, I formed the view that she is simply someone who has stoically persevered in the face of adversity. She explained that plane travel is tough, that she holidays with her family, yet she is restricted in what she can do when she is with her children. She explained that she does her housework but with some limitation.[25] Her husband verifies this.[26] She cannot go on outings as she used to, such as to the Australian Open or Disney on Ice with her children. This has affected her relationship and her interaction with her young children. For a young mother, I consider this to be significant.[27]
[25]Affidavit of Meaghan Golic, dated 19 December 2019, paragraph 6, at PCB 9
[26]Affidavit of Dusko Golic, dated 4 February 2020, paragraph 11, at PCB 20
[27]Affidavit of Meaghan Golic, dated 2 March 2020, paragraph 3, at PCB 13. Affidavit of Ms Golic, dated 19 December 2019, paragraph 6, at PCB 8
28 While she takes no ongoing consistent medication, she gives a consistent history of constant lower back pain[28], of varying intensity, as per Dr Slesenger[29] and Professor Teddy[30], for which she requires Nurofen occasionally.[31]While she has no physical therapy, she does require regular gym sessions to enable her to cope with her condition.[32]
[28]Affidavit of Meaghan Golic, dated 2 March 2020, paragraph 7, at PCB 14
[29]Report of Dr Slesenger, dated 30 January 2020, at PCB 32
[30]Report of Professor Teddy, dated 20 November, at PCB 48
[31]Report of Dr Slesenger, dated 30 January 2020, under treatment, at PCB 32
[32]Affidavit of Meaghan Golic, dated 19 December 2019, paragraph 14, at PCB 8
29 Overall, and stripping out the consequences associated with the pre-existing condition, as I have identified previously, I find that the plaintiff has suffered pain and suffering consequences flowing from the injuries sustained in the motor vehicle of the requisite level required to be considered serious. In all the circumstances, I will grant the plaintiff’s application. I will hear the parties on consequential orders.
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