Gornalle v Transport Accident Commission
[2019] VCC 1500
•30 September 2019
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-00207
| CAROLINE GORNALLE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 26 and 27 August 2019 | |
DATE OF JUDGMENT: | 30 September 2019 | |
CASE MAY BE CITED AS: | Gornalle v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1500 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – transport accident – injury to the cervical spine and impairment to function of the neck – subsequent transport accident – application for pain and suffering damages only
Legislation Cited: Transport Accident Act 1986 (Vic)
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Rowe v Transport Accident Commission [2017] VSCA 377
Judgment: Application for leave refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D C Purcell SC with Mr A Dimsey | Fortitude Legal |
| For the Defendant | Mr W R Middleton QC with Ms F Spencer | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 The plaintiff is 48 years of age. She has adult children and a teenager, the latter of whom remains with her at home. She is separated from her husband, but he has made an affidavit in support of her application.[1] The plaintiff remains in her pre-accident employment as a client services manager with BW Advisers. She is well regarded by her employer.[2] No claim is made for loss of earning capacity or for a severe mental disturbance or disorder.
[1]Affidavit of the plaintiff sworn on 2 May 2017, Plaintiff’s Court Book (PCB) 5 (Exhibit P1)
[2]Affidavit of the plaintiff sworn on 2 May 2017, PCB 4-5 (Exhibit P1); Affidavit of the plaintiff sworn on 12 March 2019, PCB14 (Exhibit P1)
2 The plaintiff has unfortunately been involved in two motor vehicle accidents. They both occurred within a very short period of time of each other. The first accident occurred on 1 January 2014 (“the first accident”). The second accident occurred on 14 March 2014 (“the second accident”). I was told by the defendant that the plaintiff had been granted a serious injury certificate arising from the first accident by the Transport Accident Commission (“the TAC”). The plaintiff accepted that was so.
3 The plaintiff’s claim for the grant of a serious injury certificate is brought in order to permit her to commence a claim for pain and suffering damages at common law for injury caused by the second accident. The injury relied on by the plaintiff as having been caused by the second accident is to the cervical spine, with the function of her neck being impaired and bringing with it consequences that are said to be serious.
4 The plaintiff was represented by Mr Purcell of Senior Counsel together with Mr Dimsey of counsel, and the defendant was represented by Mr Middleton of Queens’s Counsel together with Ms Spencer of counsel.
5 The circumstances of the first accident and the second accident was the focus of considerable evidence. Although it was not conceded by the plaintiff, I am more than satisfied that the first accident, when objectively measured, was the more serious of the two in which the plaintiff was involved. The plaintiff agreed with Mr Middleton that it was “a violent impact” accident.[3] There is objective evidence to conclude as much. For example, the plaintiff gave an account that at the time of the first accident she was travelling at a speed of perhaps 40 or 60 kilometres per hour. The first accident was a front-end collision between the plaintiff’s sedan and a four-wheel drive that was towing a caravan. The ambulance attended the first accident. The plaintiff was taken to hospital. She was kept under observation. A CT scan was performed. She was discharged. The first accident occurred when she was on her Christmas vacation. She returned to full-time duties on 20 January 2014, having taken some additional leave at the end of her scheduled holidays. However, she said that when she returned to work she had not recovered.[4]
[3]Transcript (“T”) 20
[4]Affidavit of the plaintiff sworn on 2 May 2017, PCB 6 (Exhibit P1)
6 The second accident, by comparison, was minor. An affidavit[5] from the other driver involved (and the potential defendant in the event of a grant of leave for a serious injury certificate) detailing its circumstances was tendered in evidence by the defendant and its contents attest to my assessment of the comparative nature of the accidents. The deponent was not required to attend for the purposes of cross-examination.
[5]Affidavit of Aiden Thompson sworn on 30 May 2019 (Exhibit D1)
7 The plaintiff agreed with Mr Middleton that the damage to her vehicle from the second accident was minimal. The repairs came to approximately $500[6] and the plaintiff met them without recourse to insurance. Her vehicle was struck in the rear while stationary, however, she said she received a severe jolt to the head and neck.[7] She did not need to obtain medical assistance immediately and, indeed, no emergency services were called to the second accident. She attended her work after the second accident and completed her duties that day, but she said her pain, particularly in her neck and head, became worse as the day progressed, and so she attended at the Ballarat Hospital Emergency Department after work.
[6]T29
[7]Affidavit of the plaintiff sworn on 2 May 2017, PCB 7 (Exhibit P1)
8 Although there is some scope to question the reliability of the plaintiff’s account that she did not experience a loss of memory or consciousness as a result of the first accident (there being suggestions that she might have momentarily in some of the medical histories),[8] she said that she was lightheaded and dizzy for a few weeks afterwards, and returned to the Ballarat Hospital for treatment three days later on 4 January 2014. She described being generally sore after the first accident, however, the main problem she described was pain in her neck and, at times, headaches. The severity and frequency of headaches was a matter of considerable cross-examination by Mr Middleton.
[8]See, for example, letter of Dr Jones dated 2 June 2014, DCB 33 (Exhibit D9); report from Dr Gorai dated 5 January 2016, PCB 25-26 (Exhibit P4); report from Dr Hamedani dated 20 December 2018, PCB 37-39 (Exhibit P8).
9 The plaintiff’s longstanding general practitioner is Dr Christopher Ryan. The plaintiff said that by the middle of February 2014 she needed to attend on Dr Ryan. She told him that although she still suffered headaches, she was slowly getting better, although they had not fully resolved. She said that she was no longer complaining of ongoing neck pain. She said she had been prescribed Panadeine Forte for her neck pain in the wake of the first accident.[9] I was told that currently she is prescribed Gabapentin for neck pain.[10] Prior to the first accident, the plaintiff had been taking a suite of medications, including Panadeine Forte, for gynaecological problems.
[9]T23
[10]T23
10 The plaintiff said that following the first accident, she obtained chiropractic treatment from a clinic called Kiro Kids. The plaintiff had attended Kiro Kids in 2012 for chiropractic treatment to her left hip, that is, before the first accident, including for injections of cortisone.[11] Dr Mason, an orthopaedic surgeon to whom the plaintiff was referred, has not related the plaintiff’s hip problem to the motor vehicle accident, although the plaintiff said she is sure that her hip relates to “both accidents”.[12]
[11]T24
[12]T25 and DCB 37
11 The plaintiff’s case is very much one that asserts that by the time of the second accident the injuries she suffered as a result of the first accident had “settled very considerably although they had not completely resolved”,[13] and that following the second accident she had significantly increased neck pain, arm pain, and left hip problems. However, the arm and hip are not claimed as injuries in the Serious Injury application.
[13]Affidavit of the plaintiff sworn on 2 May 2017, PCB 6 (Exhibit P1)
12 Kiro Kids records identify that on 14 January 2014 the plaintiff reported that she needed to take Panadeine Forte at night time because of the injuries from the first accident and was applying an icepack to her neck. When she attended Kiro Kids on 17 January 2014, she reported that she was:
“STILL REALLY SORE IN THE UPPER TX AND RIGHT NECK HEADACHES PERSIST, MOVING AROUND – SHARP ACROSS THE TOP AND SOMETIMES AT THE BACK/OCC AND NAUSEA WORSE IN PAST FEW DAYS WITH HEAT … .”
13 As well, it was recorded that the plaintiff was taking both Panadeine Forte and Panadol Osteo at night time and the note of attendance of 22 January 2014 was that the plaintiff had returned to work and that she was experiencing headaches of reduced intensity.[14]
[14]T26 and DCB 37-38
14 However, the subsequent entry for the plaintiff’s attendance on 30 January 2014 was not as sanguine. It read:
“‘BY THE END OF LAST WEEK WAS TERRIBLE. EXHAUSTED. COULDN’T DO ANYTHING OVER THE WEKEND (sic). FELT THAT SHE HAD PUSHED TOO HARD. POOR SLEEP.’” [15]
[15]T26 and DCB 38
15 On 19 February 2014, it was recorded that:
“‘HEADACHES PERSISTING
CHRIS RYAN – STILL NEEDING TIME
GOING TO TAKE A WHILE
MRI ALREADY CLEAR
WORK COPING BETTER
BUT STILL REALLY TIRED’”[16]
[16]T26
16 On 29 March 2014 it was recorded that:
“‘SO SORE ALL THE TIME NOW
HAD THOUGHT SHE WAS GETTING BETTER - GOING WELL WITH RECOVERY FROM MVA 1ST JAN, THIS FEEL LIKE IT HAS SET HER BACK
HAS ALL THE TIME - FRONTAL CURRENTLY BUT VARIES IN LOCATION
SLEEP
REALLY TIRED…’”
17 Mr Middleton suggested to the plaintiff that absent the gloss of her attribution of the cause of her complaints to the second accident, the record of attendance after the second accident was substantially a repetition of matters that she suffered as a result of the first accident.
18 Mr Middleton asked the plaintiff if she could identify any new injury she suffered in the second accident. The plaintiff said:
“It’s – so when I had the first accident, I felt that I was here, and that’s where I was – I was recovering and it was coming back, and I was – I was getting better. And then after I had the second accident, it’s the same injury but it’s made it so much worse, and I’ve nev – never been able to get back from being out here, to getting back to here.”[17]
[17]T31
19 As to different consequences as a result of the second accident from the first accident, the plaintiff said that she could no longer drive. She said she was able to turn her neck after the first accident and she did not need to rely on anybody to look after her when she was driving, and that she was a “lot more of a confident person”.[18] She added:
“… could still do housework and, um, you know, lots of other things. I wasn’t limited in, um, what I can do. I didn’t have to rely on anybody to do the shopping or anything like that for me.”[19]
[18]T44
[19]T44
20 Mr Purcell, in the course of his final address, submitted that the plaintiff has suffered a very substantial disadvantage by way of the interference with her ability to drive. I do not accept the attribution made by the plaintiff of the loss of licence to the second accident. Indeed, and to the contrary, I am satisfied that the licence interference came about indirectly from a letter sent by Dr Ryan, who was seeking home help assistance for the plaintiff as a result of limitations caused by the first accident.
21 The plaintiff continued to drive up until the middle of 2017. Dr Ryan wrote to the TAC on 7 December 2016, seeking home help for the plaintiff. His letter of request read, relevantly:
“I refer to your recent request for more information regarding Caroline’s request for assistance with home help and gardening.
Caroline has ongoing left hip and neck and right arm pain related to her accident on 1/1/2014. These problems started after her accident and have been getting worse.”[20]
[20]Letter of Dr Ryan dated 7 December 2016, DCB 27 (Exhibit D6)
22 Dr Ryan made no reference to the intervention of the second accident as the reason for the worsening of the plaintiff’s condition but, instead, he spoke causatively only of the first accident. The plaintiff was provided home help as a result of his request. That assistance continues.[21]
[21]T44
23 As part of the administration of the request for domestic assistance made on the plaintiff’s behalf by Dr Ryan, Ms Brianna Edgar from O T Dynamics assessed the plaintiff in July 2017. The assessment by Ms Edgar is relevant. The plaintiff’s evidence was that she was “put off the road” not because of the first accident but, rather, “it was for the two accidents.” Her assertion does not bear scrutiny. Ms Edgar’s report read:
“Caroline is a 49 year-old woman who sustained physical injuries in a road traffic accident in January 2014. She is limited by injuries to her neck and has ongoing difficulties with pain, endurance and function.”[22]
[22]Report of Ms Edgar, dated 22 August 2017 PCB 124-126 (Exhibit P15)
24 Ms Edgar assessed the plaintiff as unsuitable to be driving subject to completion of a driving course. Ms Edgar made no reference to the second accident, and the fact that her assessment occurred chronologically after the second accident is not evidence that the plaintiff’s driving ability had been affected by it.
25 At paragraph 20 of her first affidavit the plaintiff deposed that:
“As a result of the injuries and the motor vehicle accidents and due to the severe nerve pain in my neck and extending down my arm my doctor has taken me off Panadeine Forte every second night, to help me manage the pain and to be able to sleep... .”[23]
[23]Affidavit of the plaintiff sworn on 2 May 2017, PCB 8 (Exhibit P1)
26 The plaintiff accepted her use of the word “injuries” reflected her inability to separate out the consequences attributable to one or other of the two accidents. She said she did not know which of them was responsible for what and said: “they’re similar injuries”.[24]
[24]T32
27 The plaintiff deposed at paragraph 23 of her first affidavit that:
“I now suffer from constant headaches whereas prior to the accidents I very infrequently suffered from headaches … .”[25]
[25]Affidavit of the plaintiff sworn on 2 May 2017, PCB 8 (Exhibit P1)
28 In her affidavit the plaintiff described her headaches as constant, and varying from a dull ache which impacts on her ability to concentrate, to being so severe that recently it caused her to vomit, but she said in answer to Mr Middleton that she could not say which accident was responsible.[26]
[26]T35; Affidavit of the plaintiff sworn on 2 May 2017, PCB 8 (Exhibit P1)
29 Following the plaintiff’s initial attendance at Kiro Kids in 2014, she did not return until July 2015, and not again until 11 March 2016. Mr Middleton suggested that her frequency of attendances was consistent with periods of exacerbation of pain in the neck for which she would obtain treatment following which her pain would settle and whenever there was a further flare up she would return for treatment.[27] I accept the correctness of that characterisation based on the records.
[27]T35
30 Stephanie Wilson from Lake Health Group wrote to Dr Ryan on 16 January 2015 stating:
“As you maybe aware Caroline has been experiencing ongoing headaches, cervical and left lateral hip pain after a car accident in January 2014. Caroline has previously tried chiropractic and has just commenced physiotherapy management of her conditions” … .[28]
(sic)
[28]Letter of Ms Stephanie Wilson dated 16 January 2015, Defendant’s Court Book (“DCB”) 28 (Exhibit D7)
31 I accept that Ms Wilson was characterising the complaints as referable to the first accident.
32 The Lake Health Group also completed a “TAC Physiotherapy Treatment Notification Plan” signed by the plaintiff on 19 January 2015. One of the questions posed was that of “Current activity/ function limitations and the response given included– turning neck to R limited + painful”.[29] I am satisfied that the plaintiff was ascribing, to herself, a limitation in relation to the ability to turn her neck to the right, that is to say, having limited and painful movement when turning her neck to the right as a consequence of the first accident.
[29]Physiotherapy Treatment Notification Plan dated 19 January 2015, DCB 12 (Exhibit D2)
33 In the plaintiff’s second affidavit of March 2019, she said that after the first accident both her neck pain and headaches were intermittent[30] but that after the second accident the headaches were “daily”.[31] The plaintiff said the frequency of headaches had reduced and she was steadily reducing her use of painkillers before the second accident.
[30]T46
[31]T46
34 The plaintiff assessed the intensity of pain in her neck before the first accident as 4-5/10 and after the second accident she said her neck was “a great deal more painful”.[32]
[32]Affidavit of the plaintiff sworn on 12 March 2019, PCB 13 (Exhibit P1)
The shifting focus
35 It is fair to say that the plaintiff has changed the attribution she has given to her experience of neck pain and headaches. She has often attributed her conditions of headaches and neck pain compendiously to the “accidents”, but in more recent times, she has referred to and relied on the second accident. In my judgment there is no evident or sufficient reason to account for the change.
Addressing the medical evidence
36 Dr Aliashkevich is a neurosurgeon, and in a report prepared for the plaintiff’s solicitors dated 15 March 2019, he referred to an MRI scan from 14 January 2014 demonstrating “significant traumatic disruption of the C5/6 disc”.[33] The plaintiff when taken to this opinion said she was unaware that Dr Aliashkevich thought she had suffered significant traumatic disruption of her C5-6 disc as a result of the first accident. The plaintiff deposed that since the “accidents,” but particularly since the second accident, she has noticed increasing problems with her concentration and memory. No effort was made on her behalf to disentangle the effect on her cogitative functioning in the short period of time between the occurrence of the first accident and the second.
[33]Report of Dr Aliashkevich dated 15 March 2019, DCB 96 (Exhibit P14)
37 In January 2016, Dr Ryan referred the plaintiff for assessment to Dr Debo Gorai, a neurologist who, in turn, referred the plaintiff to a neuropsychologist Dr Anne Unkenstein, with the hope of identifying methods to improve her memory and cognitive functioning. The plaintiff deposed to consequential deterioration in her functioning at work after the second accident. She also referred to the affidavit of her manager, Mr Dann in support of that decline. He deposed that he had observed a drop off in the plaintiff’s work performance by about 30 to 40 per cent over the course of the last year.
38 The plaintiff was referred to Dr Mandy Lau, neurologist, in March 2017. She is currently the plaintiff’s treating specialist in this field. The frequency of the plaintiff’s attendances on Dr Lau varies but is typically between monthly to every quarter.
39 Subsequent to the second accident, the plaintiff was referred to St John of God Hospital for rehabilitation, and to Dr Navid Hamedani, a pain specialist who has prescribed Palexia and Gabapentin. The plaintiff continues to see Dr Hamedani monthly for treatments.[34]
[34]Affidavit of the plaintiff sworn on 12 March 2019, PCB 14 (Exhibit P1)
Medical reports and discussion
40 The medical material relied upon by the plaintiff comprised the following reports, together with various clinical records from:
·Dr Debo Gorai
·Dr Jasmyn Steel
·Dr Mandy Lau
·Dr Navid Hamedani
·Dr Ross Ulman
·Dr Clara Wong
·Dr Chris Ryan.
41 Reports relied upon by the plaintiff comprised:
·Dr David Kennedy
·Dr Ales Aliashkevich
·Ms Brianna Edgar.
42 Dr Gorai wrote to Dr Ryan on 5 January 2016, and recounted that the plaintiff had been involved in the January 2014 accident and “does not recall whether she lost consciousness or not”,[35] however brain injury had been ruled out, and her predominant symptoms had been headaches and short-term memory dysfunction. The memory issue was referred to by Dr Gorai in the context of the aftermath of the first accident, that much being apparent by the fact that Dr Gorai addressed the second accident later in his report. He said the plaintiff returned to work three weeks after the accident: “and has been struggling at work ever since”.[36] He said that “One month after the accident she was rear ended too and sustained some neck injury and neck pain”. Nothing else is pertinent in Dr Gorai’s report. Of course, the plaintiff’s neck was a reported limitation, together with the experience of pain after the first accident, and hence the report does not assist the advancement of the grant of a serious injury certificate as a result of the second accident.
[35]Report of Gorai dated 5 January 2016, PCB 25 (Exhibit P4)
[36](Supra)
43 Dr Ross Ulman, a consultant physician and medico-legal consultant, provided a report dated 29 May 2019, on request from the plaintiff’s solicitors. Dr Ulman wrote that his report was based on the plaintiff’s patient history from St John of God Hospital together with reports of Associate Professor Khalid, a psychiatrist whom the plaintiff saw, and the report of Dr Aliashkevich dated 15 March 2019. Dr Ulman was at pains to say that he had not met the plaintiff “let alone treated her”.[37] He said the plaintiff’s “case file contents do not enable … an informed separation or apportionment of the injuries and sequelae of her 01/01/2014 and 14/03/2014 motor accidents”.[38]
[37]Report of Dr Ulman dated 29 May 2019, PCB 40 (Exhibit P9)
[38](Supra)
44 Dr Ryan, in a report dated 29 December 2016, prepared at the request of the plaintiff’s solicitors, wrote that he saw the plaintiff on 13 January 2014, at which time her principal complaint was ongoing headaches. Dr Ryan said he was aware that the plaintiff had been involved in a second car accident on 14 March 2014, but that she did not attend on his medical practice regarding “any new injuries” sustained from the second accident. Dr Ryan wrote, “I am unable to apportion responsibility for the injuries between the two accidents as you have requested”.[39]
[39]Report of Dr Ryan dated 29 December 2016, PCB 53 (Exhibit P11)
45 Dr Ryan referred to the various presentations by the plaintiff such as her ongoing neck pain and headaches and that an MRI scan showed disc bulges at C4-5, 5-6 and 6-7, which he thought could be contributors to her ongoing neck pain and arm pain.
46 Dr Ryan mentioned that the plaintiff was concerned about reduced memory and headaches since her car accident (his reference is contextually related to the first car accident and not the second), but that MRI scans of the plaintiff’s head failed to show any sign of a physical injury related to the accident. Dr Ryan also referred to the plaintiff’s assessment by Dr Gorai from January 2016 who, in turn, had referred the plaintiff to neuropsychologist, Dr Unkenstein.
47 In a subsequent report dated 14 May 2019, Dr Ryan wrote that the plaintiff “did not attend our medical practice related to the accident on 14 March 2014 and I am unable to apportion responsibility for the injuries between the two accidents”.[40] Dr Ryan added, “It is my understanding that most of her ongoing concerns are related to the accident on 1/1/2014”.[41] Dr Ryan provided another report to the plaintiff’s solicitors dated 30 July 2019, as a result of a further request they made about the injuries the plaintiff sustained in the second car accident. He wrote:
[40]Report of Dr Ryan dated 14 May 2019, PCB 56 (Exhibit P11)
[41](Supra), PCB56 (Exhibit P11)
“On review of my medical notes there is reference to neck pain from the car accident on 1/1/2014 when Caroline attended our medical practice and consulted my colleague on 8/1/2014.
After the car accident on 14/3/2014 Caroline attended to see me on 17/3/2014, 31/3/2014, 12/6/2014, 28/7/2014 and 7/10/2014 regarding other medical problems and not related to her neck pain.
On 5/12/2014 Caroline attended complaining of neck pain, which she relates to her car accidents.
I believe that Caroline has a chronic neck condition with markedly reduced range of movement which makes her unfit to be able to drive, most likely indefinitely.
Whilst both car accidents on 1/1/2014 and 14/3/2014 can potentially contribute to chronic neck pain, from review of my medical notes, I am unable to confidently attribute her current condition to the car accident on 14/3/2014.”[42]
[42]Report of Dr Ryan dated 30 July 2019, PCB 57 (Exhibit P11)
48 Mr Purcell submitted in the course of his final address that I could take some solace from Dr Ryan’s cautious, but presumably, deliberate use of language, when he expressed himself as unable to “confidently” attribute the plaintiff’s current condition to the second car accident. I am not satisfied that Dr Ryan’s expressed inability to confidently make a positive attribution of cause of the second accident can be treated as evidence of his ability to make a positive attribution to it. It is plain he could not and he has steadfastly remained of that opinion. I am unable to adopt Mr Purcell’s characterisation of Dr Ryan’s comment.
49 Dr Jasmyn Steel is a chiropractor. She reported that the plaintiff first attended for chiropractic assessment on 14 January 2014 at Kiro Kids. The initial post-accident consultation noted that the plaintiff had been the driver of a vehicle involved in a motor vehicle accident on 1 January 2014 and that she had been wearing her seatbelt, was conscious of being thrown in the vehicle towards the passenger side, and then back towards the driver-side door. She was unsure if she lost consciousness momentarily. An ambulance attended, as did police and fire. The plaintiff was placed in a cervical collar brace, and after some other preliminary checks were undertaken, she was taken by ambulance to the Ballarat Base Hospital. She underwent a CT scan of her head, neck and back, and a diagnosis of whiplash and concussion, together with some bruising to the plaintiff’s right arm. Notes of consultation make reference to the plaintiff having returned to the Ballarat Base Hospital on 4 January 2014 because she felt a “throbbing in the brain” sensation, together with dizziness. At the consultation of 14 January 2014, the plaintiff was complaining of having a severe temporal headache and that she was taking Panadeine Forte painkillers at night time.
50 Dr Steel’s notes from consultation with the plaintiff on 29 March 2014, addressed the second motor vehicle accident of 14 March 2014. The plaintiff’s description was of having been rear-ended. The plaintiff said that after the second accident she felt pain in her upper thoracic region which became progressively worse and so she went to the hospital where she was placed in a neck brace, x-rays were taken, and a CT scan performed. The plaintiff reported being “.. sore all the time now”.[43]
[43]Report of Dr Jasmyn Steel dated 11 July 2018, PCB 32 (Exhibit P6)
51 Dr Steel reported the plaintiff had recounted that she was getting better, and that she was going well with her recovery from the first accident, but she felt the second accident had “set her back”.[44] The plaintiff complained of having headaches all the time, but varying in location, as well of feeling “really tired”.[45] Dr Steel noted the plaintiff had complained of having “a lot of problems driving”[46] and that this involved “turning her head to the right being the most restricted.”[47]
[44](Supra)
[45](Supra)
[46](Supra)
[47](Supra)
52 Dr Mandy Lau, neurologist and neurophysiologist, provided a report to the plaintiff’s solicitors, dated 5 December 2018.[48] She recounted that the plaintiff had encountered various and different pains since the first motor vehicle accident. She said that by 2017 the plaintiff’s complaint was predominantly of headaches, which she characterised as of a constant and fluctuating nature, and felt in varying locations, and radiating. There was also a report of pain in the right side of her body, predominantly in the right truncal/chest area. Dr Lau referred to the investigations that had been undertaken by way of an MRI scan of the cervical thoracic spine on 16 November 2018 and an MRI scan of the chest wall/pelvis of 18 December 2018. She referred to evidence of a multilevel degenerative spine with disc protrusion at C2-C3, C5-C6, C6-C7 and T7-T8, and a very small essential syrinx in the thoracic spine.
[48]Report of Mandy Lau dated 5 December 2018, PCB 36-37 (Exhibit P7)
53 Dr Lau referred to the cognitive concerns expressed by the plaintiff “that since the vehicle accident she has short-term memory decline, general cognitive decline including ability to concentrate and problem solve”.[49]
[49](Supra) PCB36
54 Importantly, Dr Lau, in answer to a question posed of her by the plaintiff’s solicitors said, “answering whether it is possible to apportion responsibility for her injuries between the two motor vehicle accidents, it would be impossible”.[50] In regard to the cognitive concerns by way of short-term memory decline, Dr Lau made no attribution of contribution to either the first or second accident.
[50](Supra)
55 Dr Hamedani saw the plaintiff on referral from Dr Shea at the St John of God Hospital Rehabilitation Unit in Ballarat. In a report dated 20 December 2018,[51] he wrote relevantly:
[51]Report from Dr Hamedani dated 20 December 2018, PCB38-39 (Exhibit P8)
“As you described in your detailed referral, she is suffering from widespread pain since 2014 following her motor vehicle accident, which caused a neck injury and severe generalised concussion. She is suffering from pain in the cervical and thoracic spine, intrascapular region and also the lower right-sided ribs. Her pain is a sharp and dull-type ache in the axial region and an aching and burning-type pain over the ribs. She also gets a constant headache that she can relate to her neck pain, which is always on the right side, with a difference in severity from a dull ache to a sharp throbbing pain, 7 to 10/10 on the pain scale. This headache sometimes comes with nausea but no phototobia or phonophobia and no other neurological symptoms.
The other painful area the right upper limb pain … .
…
The other painful area is her left hip and gluteal area since the accident ... .
… .”[52]
[52](Supra)
56 The report continued in these terms:[53]
“Overall, Caroline is a middle-aged lady with a widespread combination of neuropathic and nociceptive pain with significant central hypersensitivity following a motor vehicle accident in 2014, recently diagnosed with syringomyelia (the MRI of a syrinx from T2 level down), which could be a probable complication of hyperextensive damage .… .”[54]
[53]Report from Dr Hamedani dated 20 December 2018, PCB 38 (Exhibit P8)
[54](Supra)
57 In short, no attribution of cause as between the two accidents was ventured by Dr Hamedani, nor in fact identified, but rather his reference was to a “a motor vehicle accident in 2014”.[55]
[55](Supra)
58 Dr Clara Wong is a pain specialist physician and anaesthetist. In a report dated 16 June 2019,[56] she noted that the plaintiff’s care had been passed to her on 30 May 2019. She summarised Dr Hamedani’s notes, together with her own more recent notes.[57]
[56]Report of Clara Wong dated 16 June 2019, PCB42-46 (Exhibit P10)
[57](Supra) PCB42-46 (Exhibit P10)
The medico-legal opinions
59 The preponderance of medical opinion is that the plaintiff has suffered an injury to the neck that has been caused by the first accident. The medical evidence that has sought to identify and to attribute injury consequences to the plaintiff from the first and second accidents consists of the plaintiff’s medico-legal practitioners, Dr Kennedy and Dr Aliashkevich as well as a joint report provided by Mr Huffam. They have gone about their assessments by means of an apportionment exercise undertaken by recourse to AMA Impairment Guidelines.
60 Dr Kennedy is a sports and industrial physician. At the request of the plaintiff’s solicitors, he assessed the plaintiff on 12 December 2016,[58] and has since then provided a number of medical reports. The first of his reports is dated 30 December 2016. In it Dr Kennedy described the two accidents. He dealt with the first accident and noted its severity was such that the plaintiff’s vehicle was written off. He noted that the plaintiff had been thrown sideways to the left and then ricocheted back, hitting her head on the pillar, and that the plaintiff remembers losing control of the car and hearing the bang of the collision “and the next thing she remembers was sitting in the car and someone asking her if she was alright”.[59] He recorded that the plaintiff had been taken by ambulance to the Ballarat Base Hospital and that she was “able to walk around and later developed pain in her left hip region and this was several weeks after the accident”.[60] He noted that upon returning to work she “felt a little dizzy and was having problems with concentration and coping with her duties but she had a very sympathetic employer”.[61]
[58]Report of Dr Kennedy dated 30 December 2016, PCB 58-66 (Exhibit P12)
[59](Supra) PCB 60
[60](Supra)
[61](Supra)
61 Dr Kennedy then addressed the second accident . He said that the plaintiff had been hit from behind and there was limited damage to her vehicle “and she did not lose consciousness”.[62] The plaintiff remembered “being thrown forwards and backwards and there was aggravation of her neck problems”.[63] She attended the Ballarat Base Hospital at the conclusion of her work day and underwent x-rays and scans of her neck, and was apparently told by someone there that there were two bulges in the intervertebral discs in her neck which were apparent after the second accident but had not been present after the first accident.
[62](Supra)
[63](Supra)
62 Dr Kennedy reported the plaintiff’s account that after the second accident the pain in her neck was different from after the first accident because the pain radiated down her right arm into her right hand, with pins and needles, and there was numbness involving her right hand. Dr Kennedy noted that the plaintiff saw Dr Ryan on 31 March 2014 and had complained of worsening left hip pain. The plaintiff also had continued to experience pain in her neck that radiated down the right arm.
63 As a result of the first accident, Dr Kennedy said that the plaintiff sustained injuries to her neck, as well as her head, with complaints of pain in the head and neck, accompanied by memory loss and problems with focusing and concentrating on tasks. As to the second accident, the plaintiff complained of more significant and different pain in her neck, with pain radiating down into her right arm and into her right hand, and it was associated, as well, with numbness and pins and needles.
64 Dr Kennedy noted that the plaintiff:
“… has continued to complain of pain in her neck since these transport accidents which has not responded to treatment including chiropractic manipulation as well as physiotherapy. She continues to complain of pain on the outer side of her left hip … .”[64]
(Emphasis added.)
[64](Supra), PCB 64
65 Dr Kennedy wrote:
“The injuries sustained are consistent with aggravation of previous asymptomatic osteoarthritic changes in the cervical spine without evidence of significant anatomical radiculopathy.”[65]
[65](Supra)
66 Dr Kennedy added:
“The motor vehicle accident on 16 March 2014 has resulted in significant problems in the cervical spine as well as aggravation of the problems relating to cerebral function and the motor vehicle accident of 16 March 2014 can be regarded as serious … .”[66]
[66]Report of Dr Kennedy dated 30 December 2016, PCB65-66 (Exhibit P12)
67 In a second report, dated 22 February 2017,[67] Dr Kennedy said:
“The assessment of Mrs Gornalle’s impairment of the cervical spine was current from all causes in relation to the cervical spine.
The assessment of Mrs Gornalle’s impairment of the cervical spine as it existed prior to 1 January 2014, in relation to the transport accident on that date was 0% WPI, as Mrs Gornalle had no previous history of any specific injuries or problems involving the cervical spine.
Mrs Gornalle’s impairment of the cervical spine as it existed prior to the transport accident of 16 March 2014, in accordance with the strict criteria and methodology of assessment, utilising the AMA Guides to the Evaluation Impairment – 4th Edition was 5% WPI … .”[68]
[67]Report of Dr Kennedy dated 22 February 2017, PCB68-69 (Exhibit P12)
[68]Supra), PCB 68
68 Dr Kennedy wrote that:
“Mrs Gornalle sustained further injuries to her cervical spine following the second motor vehicle accident on 16 March 2014 but under the strict guidelines of the assessment of permanent impairment … Mrs Gornalle was still assessed as having a DRE Cervicothoracic Category 2 Impairment: Minor Impairment, which still equates to a 5% whole person impairment despite Mrs Gornalle sustaining further injuries to her cervical spine following the second transport accident on 16 March 2014. in respect to her assessment of her impairment of the cervical spine following the initial transport accident on 1 January 2014 … .”[69]
[69](Supra), PCB 69
69 In a third report, dated 12 March 2018,[70] following a further clinical assessment of the plaintiff, Dr Kennedy reported that the plaintiff had told him that after the second accident the problems in her neck progressively and more significantly worsened, and that she had more problems with her neck after the second accident and, moreover, the accident was more significant than the first with regard to the problems involving her cervical spine. Dr Kennedy recorded the plaintiff’s opinion that she was progressing quite well after the first accident but since the second accident treatments had not assisted her.
[70]Report of Dr Kennedy dated 12 March 2018, PCB 70-76 (Exhibit P12)
70 In a final report, dated 8 July 2019, Dr Kennedy wrote:[71]
“The pathology in the cervicothoracic spine that occurred as a consequence of the transport accidents has been extensively outlined in all of the medical reports ... .
… Mrs Gornalle sustained an injury to her cervicothoracic spine following a transport accident on 1 January 2014 and then was involved in a second transport accident on 16 March 2014.”[72]
[71]Report of Dr Kennedy dated 8 July 2019, PCB 77-78 (Exhibit P12)
[72](Supra), PCB 77
71 Mr W H Huffam, is a consultant orthopaedic surgeon. He provided a joint medical report dated 25 July 2016.[73] He referred to the first accident and the radiological examinations that were performed on the plaintiff at the Ballarat Base Hospital and on discharge, having reported pain in her head and neck. He noted that when she returned to work she felt dizzy and lacked concentration, and had trouble coping with her duties. He addressed the second accident and the plaintiff’s attendance at the end of her work day at the Ballarat Base Hospital, where radiological investigations were performed, including a CT scan that proved benign. Mr Huffam noted that someone there had told her that there were two bulges in her neck, which were apparent after the second accident, but not after the first accident.
[73]Report of Mr W H Huffam dated 25 July 2016, PCB 79-94
72 Mr Huffam recorded that the plaintiff had described the pain in the neck after the second accident that was different to the first accident because the pain radiated out into the right hand, and she experienced pins and needles and numbness involving the whole of the hand.
73 Mr Huffam referred to the reports from Dr Ryan.
74 Mr Huffam referred to an MRI scan, dated 31 August 2015, demonstrating that there remained:[74]
“… a little bulge of the C4-5 intervertebral disc into the spinal canal but that the bulging disc at the C6-7 level is no longer apparent. The intervertebral disc at this level is quite narrowed indicating intervertebral disc degeneration. The transverse images demonstrate a small central bulge of the C4-5 disc into the spinal canal.”[75]
[74](Supra), PCB84
[75](Supra), PCB 84
75 Mr Huffam wrote that, in his opinion, the plaintiff’s:
“… injuries are consistent with:
a) Aggravation of previous degenerative changes in the cervical spine resulting in asymmetrical loss of movement but without evidence of significant radiculopathy
b) Bruising of the other aspect of the left hip … .”[76]
[76](Supra), PCB 89-90
76 Mr Huffam wrote that the plaintiff’s neck condition was consistent with aggravation of pre-existing degenerative changes in the neck caused by the first accident and further aggravation by the second accident. He considered her disabilities appeared greater that would be expected from findings on clinical examination and he suspected her disability was being exaggerated by psychosocial factors. He said he was unable to apportion between the two accidents but if he was required to do so, he would do no more than suggest an apportionment for the cervicothoracic spine of two per cent for the first accident and three per cent from the second accident by using Chapter 3 of the AMA guides.
77 Dr Aliashkevich recounted the circumstances of the two accidents. Of the first accident, he said that the plaintiff had struck her head, but did not suffer a loss of consciousness. She had complained of increasing headache and pain in her neck and back. He noted that radiological investigations were undertaken on her attendance by ambulance at the Ballarat Base Hospital and prior to her discharge a few hours later. He noted the plaintiff returned to the Emergency Department of the hospital three days later, on 4 January 2014, because of ongoing headache, dizziness and a stiff neck. She was diagnosed as suffering “post-concussion” and she was then discharged. He noted her treatment from Dr Ryan and Kiro Kids. He noted her cervical MRI scan on 14 January 2014 had demonstrated significant traumatic disruption of the C5-6 disc. He reported the plaintiff experienced pain in her neck that she rated at 4-5/10. She described the pain as “intermittent and was largely confined to her neck”.[77] She said the pain and restriction of her movement “was steadily improving”.[78] On her return to work on 17 January 2014, she reported still suffering “some headaches initially but these were reducing in frequency”.[79]
[77]Report of Dr Aliashkevich dated 15 March 2019, PCB 96 (Exhibit P14)
[78](Supra)
[79](Supra)
78 Dr Aliashkevich referred to the second accident and its circumstances. He noted the plaintiff attended at the Ballarat Base Hospital following the end of her work and she was able to return to her preinjury work duties on the next workday. He said her description was of her neck being “much more painful”.[80] The plaintiff thought that she had suffered “a setback in her recovery from the previous injury”[81] and that over time her pain increased “more and more”.[82] The plaintiff said she was experiencing a worsening of her headaches. The plaintiff had developed pain in her right arm and had been referred for a nerve conduction study and to Dr Lau, the neurologist.
[80](Supra), PCB 97
[81](Supra)
[82](Supra)
79 Dr Aliashkevich then undertook an exercise of apportionment between the two accidents. He said he believed that the plaintiff had made a reasonable recovery after the first accident and that the first accident produced:
“… whiplash injury, resulting in C6/7 intervertebral disc injury and postconcussional syndrome. The mechanism of the accident on 14/3/2014 was consistent with exacerbation of a pre-existing whiplash injury and postconcussional syndrome. In my opinion, about 50% of your client’s current cerebral and cervical symptoms could be attributed to the consequences of the motor vehicle accident on 1/1/2014 and another 50% could be related to the consequences of the accident on 14/3/2014.”[83]
[83](Supra), PCB 116 (Exhibit P14)
80 Dr Aliashkevich went on to say:
“In my opinion, both accidents may have contributed also to the exacerbation of pre-existing degenerative condition affecting her thoracic spine to a degree greater than minimal. I do not think that the pre-existing lumbosacral spine degeneration was significantly affected by the accident.” [84]
[84](Supra), PCB 119 (Exhibit P14)
81 In his supplementary report, dated 16 July 2019, Dr Aliashkevich wrote that:
“Based on her history, clinical examination and imaging, her current cervicothoracic and thoracolumbar spinal pathology includes the following conditions:
- multilevel cervical spondylosis (pre-existing but aggravated by the accidents in 2014),
- possible acute C6/7 traumatic disc injury (likely caused by the accident on 1/1/2014 and aggravated by the accident on 14/3/2014),
- thoracic kyphoscoliosis and spondylosis (pre-existing but aggravated by the accidents in 2014),
- right T4/5 and T5/6 facet and costovertebral arthropathy (pre-existing but aggravated by the accidents in 2014),
- degeneration of the right 5th, 6th and 7th right costovertebral joints with increased metabolic uptake (pre-existing but aggravated by the accidents in 2014),
- multi-level thoracic disc degeneration (pre-existing but aggravated by the accidents in 2014).[85]
[85]Supplementary Report of Dr Aliashkevich dated 16 July 2019, PCB 122
Legal Analysis
82 The definition of injury contained in the Transport Accident Act 1986 (Vic) (“the TA Act”) is that of a serious long-term impairment or loss of a body function.
83 The principle expressed in Petkovski v Galletti[86] is that a separate assessment is to be made by the Court as to whether each injury suffered by an applicant has produced consequences that satisfy the definition of “serious injury”. The Court of Appeal in, Petkovski, held that, in the case of a pre-existing condition, “[a]n analysis must be made of the extent of impairment of a body function before and after the relevant injury” and the claimed aggravation must itself be a “serious injury”.
[86][1994] 1 VR 436 (“Petkovski”)
84 Mr Purcell acknowledged the difficulty created by a number of the opinions obtained by the plaintiff including, very significantly, in my judgment, the opinions of the plaintiff’s long standing treating general practitioner, Dr Ryan. As Mr Purcell recognised, the plaintiff’s circumstances are not helped, either, by the proximity of the first and second accidents. There is no radiology, or film, or x-ray that can be referred to that might, in another case, where time of some measure has passed between the first and second traumas, be capable of identifying the passage of improvement in the onset of, or exacerbation of, or aggravation of, an injury.
85 I am not satisfied by the evidence that the plaintiff has proved she suffered a new or separate compensable injury to her spine as a result of the second motor vehicle accident that amounts to a serious injury.
86 Mr Purcell submitted that the injury caused by the second transport accident of March 2014 is “appropriately described as an aggravation of an already aggravated degenerative condition in the cervical spine”[87] that was caused by the first accident.
[87]T96
87 Because the plaintiff’s injuries occurred as a result of two separate incidents they cannot be accumulated and the plaintiff’s circumstances invite the application of the principles expressed in Petkovski, in which the plaintiff suffered two separate injuries arising out of two discrete incidents, and where the second injury aggravated the earlier injury.
88 In order to succeed, the plaintiff must prove that the second accident itself caused a serious injury, and not in combination with the first accident injury, that itself has been accepted as a serious injury and a certificate granted by the TAC. There is no warrant for a submission that in order to succeed the plaintiff need only establish that the second accident was a cause of her current total condition. My task is to identify an injury to the plaintiff that occurred as a result of the second accident and then to determine whether that injury is serious in the defined sense.
89 Southwell and Teague JJ said in Petkovski, at 443–444:
“And so it is that when a person is given leave to sue, the principle applies; and the court in assessing damages, where the case is one of the aggravation of a pre existing condition, must consider what the evidence discloses as to the prior condition of the claimant. Since it is upon the defendant to do the disentangling, and to show what the probable future course of the pre-existing condition will be … that evidence may sometimes be held to disclose not much more than that there was a risk of later development of the condition.
…
The accident did not cause the pre-existing condition; at this stage of the process the applicant must establish what injury was caused by the accident; where there is a pre-existing condition, it necessarily follows that an analysis must be made of the extent of impairment of a body function before and after the relevant injury.
But, next, ‘the injury’ – that is, the injury which resulted from the accident – ‘must involve serious long term impairment… of a body function’.”
90 Mr Purcell submitted that the plaintiff suffered injury to her pre-existing degenerative spine as a result of the first accident. The plaintiff suffered no separate injury to her spine in the second accident and there is no evidence that she did.
91 In Lu v Mediterranean Shoes Pty Ltd,[88] the Court of Appeal addressed the principles identified in Petkovski and elaborated on the facts before it on the hearing of the appeal, and said, at 520:
“No relevant difficulty arises where leave is sought in respect of one workplace injury which is said to have arisen out of one incident, causing impairment to the one body function. In those circumstances, the applicant must demonstrate that that injury is a ‘serious’ one. But where leave is sought in respect of two or more workplace injuries, whether the applicant must establish that each is a ‘serious injury’ or whether they can be looked at together to see if, in combination, they satisfy the requirement of the definition will depend on whether they all affect the one body function and on whether they arise out of the same relevant incident.
Mr. Bingeman accepted, correctly I think, in view of what was said by the majority in Humphries v. Poljak on this issue, that it is not permissible in a multi-injury case to look at a number of impairments resulting from the injuries, not any one of which is a serious and long term impairment, and see if, together, they constitute an impairment which is serious and long term. Thus, if several workplace injuries have caused impairments to several body functions, those impairments cannot be relevantly aggregated. But where the injuries impair the one body function and have arisen out of the one incident they may be relevantly aggregated for the purpose of determining if the impairment of that body function is serious and long term. Stone v. Jarvis, one of the applications considered by way of appeal in Humphries v. Poljak, is an example where injuries were relevantly aggregated. But no such aggregation is permissible if the non ‘serious injuries’ which impair the one body function have been caused by separate and unrelated incidents. In those circumstances, each such injury, and the impairment to, or loss of, the body function (if any) it causes, must be considered separately. This follows from the principles stated by Southwell and Teague, JJ in Petkovski, to which I have referred and from the operations of the provision of the Act to which I have also referred.”
[88](2000) 1 VR 511
92 In Rowe v Transport Accident Commission,[89] a decision referred to by Mr Middleton, the orthodoxy established in decisions of the Court of Appeal such as Petkovski, was restated, but Rowe also served as a reminder that an exacerbation of an earlier injury may itself have consequences which meet the statutory test of seriousness. Similarly, conditions, symptoms or consequences that arise later in time (and perhaps after a later trauma), may be relevant if those later conditions, symptoms, or consequences can be said to result from the transport accident, in respect of which leave is sought to commence a proceeding. That, however, is not a state of satisfaction in terms of proof that I have been able to arrive at on the evidence in this proceeding.
[89][2017] VSCA 377 (“Rowe”)
93 In delineating the impairment consequences of each injury, I have had regard by way of a comparison to the plaintiff’s condition before the second accident and her condition after the second accident. I have already addressed some matters relied on such as the loss of driving. The plaintiff said she currently suffers from constant pain in her neck that is often severe. She said she also suffers from constant headaches, whereas prior to the “accidents” she very infrequently suffered from severe headaches. She said her headaches varied from a dull ache to being so severe that she has vomited. She said that since the second motor vehicle accident, she could not recall being entirely headache free, whereas, after the first accident and prior to the second accident, her headaches were becoming less frequent and less severe. I am satisfied, however, that this account by the plaintiff was overstated and has not reflected in the evidence I have referred to. I am satisfied that the cause of the experience of headaches was as consistent with the ebb and flow from the first accident as from the second accident.
94 The plaintiff said that she suffers from disturbed sleep and, as a result, fatigue. Because of her lack of sleep, she forgets things and needs to write reminder notes on her phone, as well as using calendar tasks to assist. I accept that an interference with sleep and consequent fatigue is usually regarded as a significant consequence. But again, I am not satisfied by the evidence that the disturbed sleep can be sheeted home as a result of the second accident, it having been disturbance in consequence of the first accident.
95 In all events, the evidence has not been such as to have persuaded me that any aggravation occasioned by the second accident in terms of consequences has been serious. I note in passing, that Mr Purcell pointed to the plaintiff’s attendance at the hospital following the second accident and a note of the experience by her of further neck pain. That is not, on even a generous view, evidence of an aggravation of a pre-existing injury or of one that of itself could be regarded as meeting the test for seriousness.
96 It is for the plaintiff to establish that she suffered compensable injury and to sufficiently establish what that injury was. Only then will it be possible for the plaintiff to establish that such injury was, in its consequences, a serious injury as defined. It is trite, but nonetheless true, that there is a difference between injury and the consequences of injury. An injury is well understood to mean some physiological change to a body part. The plaintiff must prove that the second accident caused some physiological change to her spine. She has not. The consequences by way of impairment of the function of the cervical spine, and to which the preponderance of the plaintiff’s evidence was directed, is not evidence of injury and neither does it amount to evidence of an aggravation to her cervical spine that is a serious injury.
97 I am satisfied that before the second accident the plaintiff had suffered injury to her spine caused by the first accident. There was no marked change and deterioration in her condition that can be attributed to the second accident, either as a separate injury or way of an aggravation injury that itself is serious.
98 Despite being repeatedly asked to do so, Dr Ryan, and others who have treated the plaintiff could not distinguish the consequences flowing from the second accident from those of the first. Indeed, Dr Ryan’s opinion is that the plaintiff’s neck is due to the first injury caused by the first transport accident.
99 The exercises undertaken on behalf of the plaintiff by Dr Kennedy and Dr Aliashkevich are unhelpful in the determination of this serious injury application directed as they are to the application of AMA Impairment Guidelines and a formula attributing percentage contributions to the plaintiff’s current state between the first and second accidents. To the extent Dr Huffam in his joint report has expressed the opinion that the second accident occasioned a further aggravation, I am not satisfied as I have explained, that any aggravation injury constitutes a serious injury.
100 For the reasons expressed the application is refused.
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