Grneska v TAC
[2012] VCC 1208
•7 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
DAMANGES & COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-01973
| Lila Grneska | Plaintiff |
| v | |
| Transport Accident Commission | Defendant |
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JUDGE: | Judge S Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 and 5 July 2012 | |
DATE OF JUDGMENT: | 7 September 2012 | |
CASE MAY BE CITED AS: | Grneska v TAC | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1208 | |
REASONS FOR JUDGMENT
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Catchwords: Serious injury application – Transport Accident Act 1986 – s93(17) – serious long-term impairment or loss of a body function – thoracic and cervical spine – secondary adjustment disorder with anxiety and depressed mood
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards SC | Zaparas Lawyers |
| Mr D Podger | ||
| For the Defendant | Mr G Lewis SC Ms A Wood | Transport Accident Commission |
HER HONOUR:
1 The 48 year-old plaintiff applies under section 93 of the Transport Accident Act 1986 (Vic) (the Act) for leave to issue proceedings for the recovery of damages in respect of an organic injury to the spine and for psychological injury resulting from a transport accident on 22 August 2008 (the 2008 accident).
2 The organic injury complained of is a chronic soft tissue injury to the spine with probable aggravation of thoracic and cervical spondylosis. The plaintiff says she has suffered a permanent impairment of the function of the thoracic and cervical spine. She acknowledges having suffered low back pain, amongst other problems, for years after a serious transport accident in 1998 (the 1998 accident) and that she has been an invalid pensioner since 2001. She also agrees that she gave up tapestry and gardening after the 1998 accident. She says, however, that prior to the 2008 accident she was 95% recovered from any neck or thoracic spine sequelae from the 1998 accident. She had not taken any painkillers in the five months prior to the 2008 accident nor made any complaints of neck or back pain to her treating doctor for a year prior to the 2008 accident.
3 She says that since the 2008 accident she suffers ongoing neck and middle back pain which is constant but varies in its intensity. The pain disturbs her sleep and interferes with her ability to manage basic hygiene when she goes to the toilet. When the pain is severe, she takes one Nurofen tablet, three times daily, approximately three to four days per week. She lies down for a period each day to manage her spine and avoid exacerbations. She has to spread her household duties over the week. She also says that in early 2008 she was thinking about going back to work once her home renovations had been completed and that she had been offered a position with McDonalds.
4 The plaintiff also says that as a result of the 2008 accident she has suffered an adjustment disorder with anxiety and depression secondary to her physical injuries. She says that when these secondary psychological consequences are taken together with the pain and restrictions she suffers, the consequences of the long-term impairment of the function of her spine, in terms of pain and suffering and, to a lesser extent, pecuniary disadvantage,[1] are more than “significant” or “marked” and are at least “very considerable” when compared with other cases in the range of possible long-term impairments of the function of the spine.
[1]The pecuniary disadvantage aspect of the claim was not pressed in final submissions on behalf of the plaintiff although counsel relied on her contemplation in early 2008 of a return to some work as supporting the submission that she had in many respects recovered from the effects of the 1998 accident.
5 The plaintiff also says that she has suffered a serious injury under sub-paragraph (c) of the definition of “serious injury” in s 93(17) of the Act as a result of the 2008 accident. In this regard, she relies on the diagnoses of post traumatic stress disorder (PTSD) and an adjustment disorder with mixed anxiety and depressed mood. In the light of my findings below concerning the impairment of the function of the spine, it is not necessary to address this aspect of her application in detail.
6 The defendant says that the plaintiff is an unreliable witness due to her poor memory, which is one aspect of the cognitive impairment flowing from the head injury sustained in the 1998 accident. Her poor memory has resulted in her giving inaccurate histories to many doctors and an inaccurate portrayal in her affidavits of the degree to which she was receiving treatment and receiving medication in relation to the 1998 accident both in relation to her low back and in relation to her psychological condition. The defendant says that there is no objective evidence of any neck injury and that the injuries to the neck and mid-back are soft tissue only. In relation to the neck and thoracic pain, the defendant relies on the fact that she had been an invalid pensioner since 2001 due to spinal problems, and had already given up doing tapestry and most gardening after the 1998 transport accident. The defendant relies on the recent reports of Mr Michael Shannon and Dr Clive Kenna to the effect that the plaintiff had full functional mobility of the spine, needed no home help and suffered no interference with domestic and leisure activities. The defendant says that the pain and suffering consequences of the aggravation of thoracic and cervical spondylosis flowing from the 2008 accident are not more than considerable when compared with other cases in the range of possible long-term impairments of the spine.
7 The defendant also says that the plaintiff’s memory about the psychological impact of the 1998 accident is unreliable and that it is clear that she suffered depression as a result of that accident and made frequent complaints of poor sleep after 1998. She also had three panic attacks prior to the 2008 accident, including one in March 2008. The defendant says that the psychological history given to Dr Michael Piperoglou, Ms Marg Safron and Dr Richard Ball is inaccurate in this regard and that the plaintiff’s affidavits do not accurately reflect her psychological condition prior to the 2008 accident. In addition, the defendant says that the plaintiff has not properly distinguished between the psychological effects of the 2008 accident and the psychological sequelae of a further transport accident in March 2012 (the 2012 accident). In any event, the defendant says that it is clear that the plaintiff’s permanent loss of work capacity resulted from the 1998 accident, and that the plaintiff does not take any medication for her psychological symptoms flowing from the 2008 accident. For these reasons the defendant says that any long-term mental or behavioural disturbance or disorder suffered as a result of the 2008 accident is not severe.
8 For the reasons which are set out below, I consider that the pain and suffering consequences of the impairment of function of the spine flowing from the 2008 accident are more than considerable when compared with other cases in the range of long-term impairments of a body function.
The hearing
9 The plaintiff gave evidence and was cross-examined. She relied on the contents of her court book which included her affidavits, affidavits from her husband and from a potential employer; reports of treating doctors (Dr Peter Andrianakis, Dr Peter Braun); reports of treating psychologists (Mr George Tsironis and Ms Safron); report from a treating chiropractor (Mr Alistair Fleet) and a number of medico-legal reports (from Mr Peter Mangos, Dr Paul Kornan, Dr Ball, and Dr Piperoglou).
10 The defendant relied on a number of documents including medico-legal reports of Mr Charles Flanc, Dr Richard Ward, Mr Jonathan Rush, Mr Stephen Doig, Dr Tony Kostos, Mr Shannon, Dr Kenna, Ms Robyn Bradbury, Mr James Drury and Ms Maureen Molloy. Only the reports of Mr Shannon and Dr Kenna addressed the effects of the 2008 accident. The remainder of the reports relate to the impact of the 1998 accident.
11 I have considered all of the evidence relied upon by the parties.
Impairment of the function of the spine
Radiology
12 CT scan of the lumbar spine on 13 April 2012[2] was reported with the following conclusions:
[2]Plaintiff’s Court Book (PCB) 53.
Impression:
Mild lumbar spondylosis.
At L2/3 and L3/4 there is mild diffuse disc bulging causing mild narrowing of spinal canal and bilateral neural foramina.
At L4/5 there is diffuse disc bulge with mild bilateral facet degeneration causing mild narrowing of central spinal canal and moderate narrowing of bilateral lateral spinal canal. Bilateral neural foramina are moderately narrowed.
At L5/S1 there is minimal disc bulge, not reaching up to the thecal sac. Bilateral neural foramina are mildly narrowed.
Impact of 1998 accident
13 I am satisfied on the assessments of Dr Ward, Mr Rush, Mr Doig and Mr Flanc that, as a result of the 1998 accident, the plaintiff suffered persistent cervical, thoracic and lower back pain resulting in a permanent whole person impairment of the function of the spine. Mr Flanc noted that her tendency to low back pain might persist. Mr Rush expressed hope that the back and neck pain would improve over time. Mr Doig suggested review of her medication (MS Contin). In 2005, Dr Kostos, rheumatologist, noted a complaint of constant pain in the neck, thoracic spine and, to a lesser extent, in the lower back. She was taking MS Contin three times per week and Panadeine Forte two times per week. He recommended a regular exercise program to improve her spinal mobility.
14 The unchallenged evidence of the plaintiff, her husband, and her GP, Dr Andrianakis, was to the effect that by 2006 and 2007 the plaintiff had fewer attendances for neck or lower back pain and was only taking medication for a few days every few months for her back pain. She ceased taking MS Contin in March 2008.
15 The plaintiff’s evidence was to the effect that for a few years after the 1998 accident she suffered intermittent pain in the neck, right shoulder and low back for which she had osteopathic and other treatment for a few years. By 2007, she was only taking such medication, usually MS Contin, for a few days every few months for her back.
16 In her second affidavit the plaintiff stated, at paragraph 2:
For at least two years before the 2008 accident, my back pain had settled down substantially. It was substantially less severe and less frequent. I had learnt to cope with discomfort and felt like I had moved forward in my life.[3]
[3]PCB 18.
17 In the months prior to the 2008 accident she had been able to help her husband renovate their investment property in Kingsville so they could move in while their family home was being renovated. She had also helped her husband clean out the sheds and pull down plaster in their family home and move furniture to the Kingsville property.
18 In late 2007 and early 2008 she was considering her prospects of returning to the workforce in some capacity and discussed the possibility of some part-time work with the manager of McDonalds in Yarraville, Mr Bryce Crick, once the renovations at the family home were underway.
19 In re-examination, the plaintiff said that she believed that in the twelve months before the 2008 accident she had recovered 95% from her spinal symptoms and did not have neck or back symptoms strong enough to warrant mention to Dr Andrianakis.
20 The plaintiff’s husband, Mr Branko Grneska, provided a very brief affidavit[4] in which he confirmed that prior to the 2008 accident the plaintiff was able to assist with repairs on their investment property in Kingsville but that after the accident she was only able to assist very little, occasionally passing him things.
[4]PCB 20F.
21 Dr Braun, sports physician, reported on 9 December 2010 that the plaintiff told him her convalescence from the 1998 accident took seven or eight years to achieve what she subjectively rated as a 90 to 95% recovery.[5]
[5]PCB 76.
22 Dr Andrianakis reported on 20 June 2012[6] that the plaintiff remained unwell for a long time after the 1998 accident but that by mid 2002 the number of attendances in relation to the 1998 accident had declined. He noted that by 2006 and 2007 she had very few attendances for neck and lower back pains. She was not working, but “had recovered sufficiently to continue her activities of daily living and housewife duties”.
[6]PCB 56.
23 Dr Andrianakis’ clinical notes from October 1999 were in the plaintiff’s court book.[7] There were 35 complaints of back pain and 10 complaints of neck pain and/or stiffness between October 1999 and late November 2002. From then until late December 2005, he recorded complaints of back pain on eight occasions and complaints of neck pain on two occasions. Between December 2005 and late July 2007 there were three references to back pain and two references to neck problems. There were no complaints of back pain recorded after 31 July 2007 and before the 2008 accident even though the plaintiff saw Dr Andrianakis for unrelated matters on numerous occasions.
[7]PCB 61.1.
24 I note that a number of medico-legal experts[8] noted a history from the plaintiff of substantial recovery from the effects of the 1998 accident in the two years or so prior to the 2008 accident.
[8]See, for example, the report of Mr Mangos: PCB 265.
25 I am satisfied on the above evidence that, although the plaintiff was assessed as having sustained a permanent impairment of the function of the spine as a result of the 1998 accident, and in spite of the fact that she was on a disability pension from 2001, in the year or so prior to the 2008 accident she was no longer suffering persistent neck and back pain, was no longer complaining of any such symptoms to Dr Andrianakis, and, from March 2008, was no longer taking any medication. I am satisfied that the spinal symptoms caused by the 1998 accident had considerably improved at least a year or two before the 2008 accident.
26 I am also satisfied on the neuropsychological evidence that the plaintiff suffered a concussive injury in the 1998 accident and a consequential cognitive impairment affecting auditory attention, working memory and spontaneous recall of verbal material as well as difficulties with decision-making.[9] This impairment was complicated by psychological issues which affected her energy and concentration. I consider that the cognitive impairment may have limited her capacity to recall precisely and in detail the physical and psychological symptoms flowing from each of the accidents.
Impact of the 2008 accident
[9]See the reports of Mr Drury at DCB 416, Ms Molloy at DCB 423 and Dr Scholes at DCB 110.
27 In her affidavits,[10] the plaintiff stated that on 22 August 2008 her car, which was stationary, was struck from behind by a truck carrying a shipping container and pushed forward several metres. The car was badly damaged. In the days after the accident she had neck and back pain. She saw Dr Andrianakis a few days later and he arranged for x-rays and referred her for chiropractic treatment which she had until mid-2010 but which only provided temporary relief. She also had further physiotherapy in the second half of 2010 and was given some exercises to do at home. The defendant ceased funding physiotherapy in September 2010. She had further x-rays of the neck in early 2011. As at April 2011, she was taking Nurofen for her neck pain and headaches several times a week. She had constant pain in the neck, shoulders and middle back and a headache most of the time. The pain was relieved by moving around on her feet. Sitting or lying down for more than a few moments increased her neck and upper back pain. She had to lie on her side at night but was waking every few hours due to neck and upper back pain. Her neck and back symptoms were worst in the morning and she had to dress slowly. She would then go for a walk before getting the children up. She had to spread her household chores over the week. She was able to do most of the cooking but needed help lifting weights of more than five kilograms. Her husband did the gardening. Several times per week she was experiencing sharp sudden pains in the middle back lasting a few seconds.
[10]PCB 7-20C.
28 Her low back pain continued to be much the same as it was after the 1998 accident. However, the neck and middle back pain were “now much worse”, and were exacerbated by driving for more than ten minutes. She was socialising less because travelling and sitting caused her increased pain. She needed help carrying heavier groceries. Prior to the 2008 accident she regularly attended soccer matches of the club her sons used to play for. After the 2008 accident she ceased attending the club’s matches because standing or sitting in one spot “would be likely to cause too much pain”.[11] She was finding it “hard to enjoy anything” with the increased pain in her upper back and neck since the 2008 accident.
[11]PCB 16.
29 At present, she takes as little medication as possible because certain medication makes her feel odd and strong analgesics give her stomach pain. She only takes Nurofen when her neck and upper back pain is bad, and this medication “just takes the edge off the pain”.[12] She takes one Nurofen tablet three times per day on about three or four days each week. She also lies down on a hard surface each day. She continues to experience constant neck and upper back pain. She tries to do some work around her renovated home but “there may be days on end where the pain is so severe all I can do is stand around”.[13] At times, the pain spreads to her lower back and she feels a stabbing pain between the shoulders. She has difficulty wiping herself when toileting due to the twisting required of her back and most times waits for everyone to leave the house so she can have a shower afterwards. This embarrasses her deeply.
[12]PCB 19.
[13]PCB 19.
30 Whereas before the 2008 accident she was able to help with renovation work by doing some work every day, after the 2008 accident she was able to help only very little. She has good days but mainly bad days. On good days she is able to do “bits and pieces” of work on the outside of the house, as well as some heavier cleaning or watering the garden, but suffers afterwards. She finds it easier to eat standing than sitting.
31 She said that if the 2008 accident had not occurred she would have asked to work some shifts at McDonalds, because she wanted to get out of the house and she needed the money. But since the accident she gets anxiety attacks when travelling on public transport or by car. She is tired of acting happy when she is tired and sore. She said she cannot do what she used to do.
32 Mr Crick provided an affidavit[14] in which he stated that prior to the 2008 accident the plaintiff occasionally assisted in the McDonalds restaurant by mopping floors and clearing tables. He confirmed that in early 2008 he offered her a position but she was busy with her home renovations and did not take up the offer. He stated that after the 2008 accident she did not assist in the store any more but came in to chat, read and have coffee.
Medical Evidence
[14]PCB 20D.
33 Dr Andrianakis reported[15] that after the 2008 accident when he examined her she was tender along the entire spine and he started her on Naprosyn. She later complained of headache and neck pains radiating down her spine into the buttocks. X-rays of the lumbar and cervical spine in August 2008 were reported as normal. X-ray of the thoracic spine was reported as showing age relative degenerative disease. She continued to suffer with neck and back pains in 2009 and 2010, and in August 2010 Dr Andrianakis referred her to Dr Braun who suggested that she undertake a gym based strengthening and functional rehabilitation program. Dr Braun administered cortisone injections, but the plaintiff continued to complain of back pain. She underwent rehabilitation under Dr Braun’s supervision.
[15]PCB 56.
34 On 6 June 2012 Dr Andrianakis concluded that the 2008 accident left the plaintiff with ongoing neck, thoracic and lower back pains.[16] He reported that she was still “a long way from being back to her pre-injury level”, and that she needed ongoing physiotherapy and rehabilitation. He felt that her prognosis remained poor.
[16]PCB 59.
35 In a report dated 3 July 2012 Dr Andrianakis noted that he had viewed surveillance tapes provided and found them unremarkable. He stated that the plaintiff ‘admits having good movements on many occasions despite the pain but she is also sometimes in so much pain she has little movement”. He felt that her presentation on the surveillance tapes was consistent with the “natural history of such injuries”, where many patients have good days and bad days. He also stated that the plaintiff suffers “memory fades and confusion and she is not capable of being manipulative or evasive”.
36 On 9 September 2009 Mr Mangos, surgeon, conducted an impairment assessment in relation to the cervical spine, thoracic spine and right shoulder problems flowing from the 2008 accident. He did not refer to any impairment assessments flowing from the 1998 accident. He assessed a 5% whole person impairment of the cervical spine and a 5% whole person impairment of the lumbar spine resulting from the 2008 accident. He concluded that the plaintiff was totally incapacitated for her pre-injury employment due to the spinal and right shoulder injuries sustained in the 2008 accident. He felt that her prognosis for return to pre-accident activities was poor.
37 Mr Shannon, orthopaedic surgeon, provided a report on 10 November 2009[17] in relation to the 2008 accident in which he reviewed the clinical notes of Dr Andrianakis as well as the impairment assessments provided by Mr Rush and Dr Ward. He concluded that it was clear that the plaintiff had symptoms in the neck and back after the 1998 accident, with complaints to Dr Andrianakis about low back pain in September and December 2006 as well as in April 2007 and March 2008. He noted that she was taking MS Contin in March 2008. He concluded that in spite of the plaintiff’s statement that her neck and back pain had resolved in the three years prior to the 2008 accident, there was “good evidence that she had ongoing low back complaints over subsequent years” following the 1998 accident.[18] He concluded:
In regard to the low back there may have been some aggravation, but there is clear evidence of ongoing back pains and I doubt that her impairment is any different now from what it was prior to the accident in 2008.[19]
[17]PCB 269.
[18]DCB 274.
[19]DCB 274.
38 Mr Shannon assessed a 5% whole person impairment of the lumbosacral spine. He noted that she had not worked since the 1998 accident and was not involved in recreational activities after 1998. He felt that she was “somewhat restricted in day to day activities by pre-existing back and right shoulder problems”,[20] and felt that her prognosis in relation to injuries sustained in the 2008 accident was excellent.
[20]DCB 275.
39 Dr Braun reported in December 2010 a complaint from the plaintiff, relevantly, of an eighteen month history of constant spinal pain which extended from her neck to the buttocks. She said that the back pain produced “marked functional impairment, with sitting tolerance of only five to ten minutes, and difficulty arising from a sitting position beyond ten minutes”. Standing was well tolerated and she was able to walk for at least an hour each day, which he thought was “very encouraging”. On examination, he found a full pain free cervical and lumbar range of motion in all directions, with moderate restriction of thoracic rotation.
40 In August 2010 he noted that she had ceased taking all narcotic medication and was only taking occasional Ibuprofen. In September 2010 he noted that she had made excellent progress in relation to her right arm pain symptoms, was sleeping reasonably well and managing her daily activities with minimal analgesia. He felt that she required ongoing physiotherapy for her neck, back and right shoulder pain for a period of three to six months. In May 2011 he referred the plaintiff for physiotherapy[21] in relation to a four to six week flare-up of her low back pain.
[21]PCB 81.
41 Mr Flett, the plaintiff’s treating physiotherapist, reported on 20 April 2011[22] that the plaintiff told him that the 2008 accident had exacerbated her cervical, thoracic and lumbar pain, as well as causing right shoulder pain. Mr Flett concluded that her neck and back injuries were sustained during the 1998 accident and were further exacerbated by the 2008 accident. He did not feel ongoing physiotherapy was necessary beyond a further six to eight sessions, two or three times per year to settle exacerbations which she cannot control herself with an exercise program.
[22]PCB 82.
42 Dr Kenna reported on 8 February 2012 the following conclusion:
I believe that with with regard to the injuries involved in the motor vehicle accident of 22 August 2008, I am unable to confirm the ongoing presence and nature of any specific motor vehicle accident-related injuries and would consider that regarding injuries relating to that motor vehicle accident per se as opposed to 1998, that she has affected a good and full recovery.[23]
[23]DCB 281.
43 Dr Kenna also noted that there were some inconsistencies on examination on repetition as well as an ability to move freely during the consultation. He felt that “substantial pre-existing conditions unrelated to the motor vehicle accident of 2008 have significantly affected her current clinical presentation”.
44 I must also consider the secondary adjustment disorder with anxiety and depressed mood flowing from the pain and restrictions caused by the 2008 accident which was diagnosed by treating psychologists Ms Safron[24] and Mr Tsironis,[25] treating psychiatrist Dr Piperoglou,[26] and medico-legal psychiatrist Dr Kornan.[27]
[24]DCB 104,
[25]PCB 85.
[26]PCB 378.
[27]PCB 304.
45 Dr Ball,[28] Dr Kornan[29] and Dr Piperoglou[30] took into account their previous assessments of the plaintiff’s psychiatric impairment in relation to the 1998 accident.[31]
[28]PCB 340.
[29]PCB 306.
[30]PCB 379.
[31]In July 2000, Dr Kornan diagnosed an anxiety state with phobic features, depression and loss of confidence: PCB 289. In October 2000, Dr Ball had diagnosed some symptoms of PTSD with anxiety and some depression and also a secondary chronic adjustment disorder with depressive features in relation to the 1998 accident: PCB 326. In 2002, Dr Piperoglou diagnosed a mixed anxiety/depressive reaction as a result of physical injuries and her head injury: PCB 362.
46 Dr Ball, Dr Piperoglou and Dr Kornan accepted that the plaintiff might not have recovered totally from the 1998 accident prior to the 2008 accident, although Dr Ball felt that any whole person psychiatric impairment prior to the 2008 accident was zero. Each of them was satisfied that the plaintiff suffered a psychiatric whole person impairment as a result of the 2008 accident.
47 Dr Ball assessed a 20% whole person psychiatric impairment of which 10% was primary and 10% was secondary to the physical impact of the 2008 accident.[32]In 2010, Dr Kornan assessed a 25% psychiatric whole person impairment of which 13% was primary and attributable to the 2008 accident.[33] In 2012, Dr Kornan altered his opinion and concluded that there was a 25% whole person psychiatric impairment of which 8% was primary and 17% was secondary to her pain and discomfort.[34] In March 2010, Dr Piperoglou assessed a 20% psychiatric whole person impairment of which 15% was attributable to the 2008 accident and 5% to the 1998 accident. He found that half of the 15% was primary and half was a secondary psychiatric impairment. He confirmed this opinion in a further report in May 2012.[35]
Impact of 2012 accident
[32]PCB 341.
[33]PCB 306.
[34]PCB 314.
[35]PCB 383.
48 In her third affidavit,[36] the plaintiff stated that in the 2012 accident she had stopped her car in order to allow an emergency vehicle to pass and was struck in the rear by another car. She suffered an aggravation of her neck and back pain, particularly her lower back pain, but “the increased pain settled down to pretty much how I felt just prior to this latest accident”.[37] At the hearing, she gave evidence in similar terms. She said that the defendant has funded some physiotherapy in relation to the effects of the 2012 accident and she finds that helpful, particularly as she is disputing the defendant’s decision to cease funding physiotherapy in relation to the 2008 accident. She said that she is tired of the constant pain.
[36]PCB 20
[37]PCB 20.
49 Dr Andrianakis reported in June 2012 that the 2012 accident caused an exacerbation of her previous pains, including neck and lower back pain. He felt that she was still a long way from being back to her pre-injury level.
50 The only psychiatric expert to comment on the plaintiff’s psychiatric condition after the 2012 accident was Dr Ball. His report[38] noted the plaintiff’s account to him that things were about the same as the last time he had seen her. He felt that her residual post traumatic stress symptoms and chronic adjustment disorder were exacerbated by the 2012 accident, but did not comment further.
[38]PCB 347.
Legal principles
51 In order to satisfy sub-paragraph (a) of the definition of serious injury in s 93(17) of the Act, the plaintiff must establish that she has suffered a serious long-term impairment or loss of a body function.
52 In determining an application under s 93(17)(a) of the Act, the Court must be satisfied that the consequences of the long-term impairment of the particular body function, in terms of pecuniary disadvantage and/or pain and suffering, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described at least as “very considerable” and certainly more than “significant” or “marked”.[39]
[39]Humphries v Poljak [1992] 2 VR 129; Mobilio v Balliotis & Ors [1998] 3 VR 833.
53 In cases involving aggravation of a pre-existing injury or condition, the plaintiff must establish what injury was caused in the relevant accident and there must be an analysis of the extent of the impairment of the relevant body function before and after the injury caused in the relevant accident.[40] In an aggravation case, the aggravation of the pre-existing injury must itself amount to a “serious long-term impairment or loss of a body function”.[41]
[40]Petkovski v Galletti [1994] 1 VR 436, 444.
[41]Ibid.
54 In an application under s 93(17)(a) of the Act, where a plaintiff who has suffered a significant physical injury has also developed a psychiatric response to that physical injury, it is permissible and appropriate for the court to take into account the development of any psychiatric condition in response to the physical injury when deciding whether the consequences of the impairment of the relevant body function meet the narrative test.[42]
[42]Richards v Wylie (2000) 1 VR 79, 87; Rodda v TAC [2008] VSCA 276.
55 Ordinarily, the endurance of permanent daily pain requiring frequent medication “must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence”.[43]
[43]Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267, [199].
56 Apart from the capacity for work, assessing the extent to which pain interferes with the ordinary activities of life will generally involve consideration of its effect on the plaintiff's sleep, mobility, capacity for self-care, performance of household and family duties, recreational activities, social activities, sexual activities and enjoyment of life.[44]
[44]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, [16]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52.
57 Some weight must be given, in considering that the pain and suffering consequences of the plaintiff's impairment are at least very considerable, to the adverb “very”.[45] Each case has to be determined in the light of its own facts.[46]
[45]TAC v Dennis [1998] 1 VR 702, 703.
[46]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.
58 In determining the application the whole of the evidence is to be considered. The Court must consider what the plaintiff has lost by virtue of the injury and what has been retained. The significance of what he or she has lost, which bears upon the seriousness of consequences, may be informed to an extent by what is retained.[47]
[47]Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260, [27]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52, [95].
59 I am entitled to take into account that the plaintiff is 48 years old and that, compared with other persons with impairments of the spine, she will experience the pain and suffering or other consequences relied upon for a longer period of time.[48]
[48]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, [44].
Findings and reasons
60 I found the plaintiff to be a straightforward witness who did her best to answer the questions put to her. However, I consider that her evidence demonstrates some clear difficulties with memory concerning past events, particularly the extent of her injuries, both physical and psychological, from the 1998 and 2008 accidents as well as her memory of the extent of treatment she received in respect of those injuries. This difficulty with memory has also affected the histories given to various specialists. For example, the plaintiff told Dr Ball and Mr Shannon that she had no medication or treatment for her back and neck pain for three years prior to the 2008 accident. In fact, the medical records of her treating doctor, Dr Andrianakis, reveal many consultations each year from 1999 to 2007 in relation to the injuries sustained in the 1998 accident. The plaintiff had extensive physiotherapy treatment between 1999 and 2003 and extensive osteopathy treatment in 2003 and 2004,[49] and was having chiropractic treatment in 2005 for neck and shoulder issues.[50] She regularly took MS Contin till at least 2003, and said she last took it in March 2008. There was consensus among the neuropsychologists who assessed her (Ms Bradbury, Mr Drury, Ms Molloy and Dr Scholes) that she suffered permanent cognitive deficits as a result of the head injury sustained in the 1998 accident. I therefore consider her evidence less reliable than would otherwise be the case.
[49]Defendant’s folder of exhibits, tab 1.
[50]Defendant’s folder of exhibits, tab 18.
61 The unreliability of some of the histories given by the plaintiff to various specialists, while perfectly understandable in the sense that it may arise from the cognitive deficits flowing from the 1998 accident, nonetheless complicates the already difficult task of establishing what the plaintiff’s situation in relation to her spine was prior to the 2008 accident, what it was after the 2008 accident and to what extent, if any, it was affected by the 2012 accident. The same difficulties apply to the assessment of her pre-2008 and post-2008 psychiatric state.
62 On the other hand, the plaintiff’s unchallenged evidence was to the effect that although she had suffered some lower back pain after the 1998 accident, after the 2008 accident she suffered persistent ongoing mid-thoracic pain and neck pain, as well as some ongoing lower back pain. To a large extent, her unchallenged account of an almost total recovery in the neck and back pain in the two years prior to the 2008 accident is consistent with the clinical notes of Dr Andrianakis.
63 I also note that Mr Mangos and Mr Shannon each assessed a whole person impairment of the spine flowing from the 2008 accident. Mr Mangos was satisfied that the plaintiff was totally incapacitated for her pre-injury employment due to the spinal and right shoulder injuries sustained in the 2008 accident. Mr Shannon, however, conceded that there may have been some aggravation of her ongoing back pains as a result of the 2008 accident but felt that the impairment was the same as it was after the 1998 accident. Dr Kenna felt that she had recovered from the 2008 injuries but that her clinical presentation was still affected by the consequences of the 1998 accident.
64 I prefer the evidence of Mr Mangos, in combination with the opinion of Dr Andrianakis and the evidence of the plaintiff, to the effect that any exacerbation in symptoms caused by the 2012 accident was short-lived and her symptoms have settled to their post-2008 accident level. I consider that on the evidence that as a result of the 2008 accident the plaintiff suffered injuries to the spine resulting in a permanent impairment in the function of the spine which continues to cause symptoms and restrictions as outlined above.
65 The weight of the expert psychiatric evidence (from Dr Ball, Dr Piperoglou and Dr Kornan) was to the effect, and I therefore find, that the plaintiff had largely recovered from the effects of the 1998 accident prior to the 2008 accident[51] and that as a result of the 2008 accident she suffered a substantial psychiatric whole person impairment of which at least half was secondary to the pain and discomfort occasioned by that accident. I am satisfied on the psychiatric and psychological evidence (from Mr Tsironis) that the 2008 accident and its physical sequelae continues to be a cause of the chronic adjustment disorder suffered by the plaintiff as at the date of the hearing.
[51]See, for example, Dr Ball’s report dated 26 May 2010: PCB 345.
66 I am satisfied that the pain and suffering sequelae of the plaintiff’s spinal impairment resulting from the 2008 accident, taken together with the substantial secondary chronic adjustment disorder referred to above, are more than considerable when compared with other cases in the range of long-term impairments of a body function.
Conclusion
67 Leave is granted to the plaintiff to issue proceedings for the recovery of damages in respect of the injury to the spine suffered as a result of the transport accident on 22 August 2008. I reserve the question of costs.
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