Guessab v Transport Accident Commission
[2023] VCC 676
•5 April 2023; Delivered ex tempore
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-22-03199
| SHEFIKA GUESSAB | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 29 and 30 March 2023 | |
DATE OF JUDGMENT: | 5 April 2023; Delivered ex tempore | |
CASE MAY BE CITED AS: | Guessab v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 676 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – injury to the spine – credibility
Legislation Cited: Transport Accident Act 1986 (Vic)
Cases Cited:Humphries v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Johns v Oaktech Pty Ltd [2020] VSCA 10; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Church v Echuca Regional Health (2008) 20 VR 566; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.
Judgment: Leave granted to commence common law proceedings for damages.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J J Fitzpatrick with Ms K S Gladman | Shine Lawyers |
| For the Defendant | Mr R Kumar with Ms J E Clark | Solicitor for the Transport Accident Commission |
HIS HONOUR:
Introduction
1The plaintiff, Ms Shefika Guessab, now 39 years of age, was born in Melbourne and completed school to year 11. Ms Guessab then completed a TAFE Beauty Certificate III, and more recently an Aged Care Certificate III which she completed in January 2017. Her work history comprised mainly of pick packing work in factories. She has four children, the eldest two from her relationship with her first partner aged 20 and 17; and the younger children from her marriage to her husband, Mustafa, aged 14 and four.
2On 21 November 2017, a workday for the plaintiff, Ms Guessab and her husband had picked up lunch at McDonald’s and were driving home from work to eat. The plaintiff was seated in the passenger seat when a car entered a roundabout and struck her vehicle on the passenger side door. An ambulance was called, and she was admitted to Werribee Mercy Hospital where she reported immediate pain in her left shoulder and neck. Various radiological examinations excluded severe traumatic injury, and she was discharged to her general practitioner.
3Ms Guessab seeks leave to bring common law proceedings pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) under paragraph (a) of the relevant definition of serious injury, being for the permanent serious impairment or loss of a body function. The injury relied upon is to the cervical spine.
4While the particulars of injury note injuries to the left shoulder, that was not pressed. The application in respect of paragraph (c) for a psychological injury was formally abandoned.
The issues
5The Transport Accident Commission (“TAC”) accept that the plaintiff sustained injury to her neck and left shoulder in the transport accident. The issues in this case are:
(a) whether those injuries have now resolved;
(b) the extent to which any pre-existing injury, or injury after the transport accident, has been productive of the impairment and consequences as at the date of this application;
(c) the extent to which any underlying degenerative condition explains her current presentation; and
(d) whether any accident-related consequences meet the narrative test.
6The TAC placed the credibility of the plaintiff in issue.
7The plaintiff’s claim was brought on the basis that despite initial scans revealing the presence of bursitis in the left shoulder, that injury has now resolved; however, that an aggravation to the plaintiff’s underlying degenerative condition in her cervical spine has occurred as a result of the transport accident.
8An MRI of the plaintiff’s neck and left shoulder on 22 August 2022 revealed:[1]
“CONCLUSION:
C5-6 disc degeneration with herniation causing underlying cord indentation. This is slightly progressed compared to the previous scan of 3/9/2020.”
[1]MRI of Neck and Left Shoulder dated 28 August 2022, Plaintiff Court Book (“PCB”) 48
9On 8 February 2023, neurosurgeon Professor Paul D’Urso opined that consideration should be given to C5/6 cervical discectomy and fusion, or cervical disc arthroplasty procedure, should the symptoms persist or deteriorate with time.
10Medical expenses including for physiotherapy have been paid by the insurer on an ongoing basis since the transport accident. Most recently in March, Ms Guessab received approval for a Cervical Traction and Support Cervicollar, and Car Seat Neck Support to support her rehabilitation.
Legal principles
11The relevant legal principles in applications of this type are well-known and not in dispute. The plaintiff bears the onus of proving that her impairment is permanent, and she must establish that her pain and suffering consequences are serious within the meaning of s93(17) of the Act.
12The seriousness of the impairment is determined by whether the pain and suffering and loss of enjoyment of life consequences, including any pecuniary disadvantage consequence, can:
“when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.”[2]
[2]Humphries v Poljak (1992) 2 VR 129, 140
13In determining Ms Guessab’s pain and suffering consequences, the factors indicative of serious injury identified in Haden Engineering Pty Ltd v McKinnon[3] are relevant. In determining the pain and suffering consequences of any injury, it is necessary to consider not only “what the plaintiff says about the pain (both in court and to doctors)”, but also “what the plaintiff does about the pain (for example medication, rest, seeking medical treatment)”, as well as “what the doctors say about the extent and intensity of the plaintiff’s pain” and “what the objective evidence shows about the disabling effects of the pain”.[4]
[3](2010) 31 VR 1 (“Haden Engineering”)
[4]Ibid at paragraph [11]
14I must be satisfied that the pain and suffering consequences of the impairment of the plaintiff’s neck are “at least very considerable” having regard to the consequences to the plaintiff of that impairment.
The proceeding
15The proceeding progressed in the “usual manner”, with each party tendering a court book, including a supplementary court book of the defendant, which included relevant documents, affidavits, medical reports, records and claim documents. The plaintiff relied upon oral evidence and was cross-examined as to the contents of her affidavits affirmed 21 October 2021, 21 February 2023 and 23 March 2023. The plaintiff also relied upon the affidavit of her husband, Mustafa, sworn 20 February 2023; and of her daughter, Aliya Eliz, also sworn 20 February 2023.
16I have considered all of the tendered evidence, transcript and the plaintiff’s written submissions. I shall refer to the tendered evidence and submissions only to the extent necessary.
Credit of the plaintiff
17In applications of this type, the credit of the plaintiff is of great importance.[5]
[5]Johns v Oaktech Pty Ltd [2020] VSCA 10
18I regard the plaintiff as being a witness of truth who did her best to give her evidence in a way that was responsive, notwithstanding difficulties with her memory. When she did not recall, she said so plainly. When she disagreed with something, she said so plainly. There were many occasions when she made appropriate concessions.
19I accept that Ms Guessab had an unsophisticated communication style and did not give her oral evidence in a particularly detailed or florid manner, but I appreciated that she instead spoke simply about her history.
20I do not accept I ought to draw an adverse inference about the plaintiff’s credit, because of a lack of elaboration about past marital difficulties, or previous prescription for anti-anxiety medication, which she clearly admitted during the course of cross-examination; or the circumstances of her travel having regard to the many and varied COVID restrictions.
21I generally accept both her oral evidence and evidence contained in her affidavits. Equally, though I accept the plaintiff’s credit generally, that does not mean that I must accept all of her evidence. I have had regard to the authorities in dealing with credit to the effect that the court must analyse and give appropriate weight to all the evidence, including objective evidence,[6] and that an adverse finding concerning credibility is not, by itself, sufficient to justify the refusal of the serious injury application.[7] Regard should be had to analysing and giving appropriate weight to all of the evidence, including objective evidence.
[6]Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108
[7]Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104, at [49]
Previous transport accidents
22The plaintiff was involved in a previous transport accident in 2014 and presented to her general practitioner complaining of pain in her neck and shoulder. The plaintiff did not recall this accident in cross-examination. She did not lodge a TAC claim. Save for the single attendance on her GP, there was no evidence of any other treatment or medication, or any ongoing pain impairment or other consequence from this injury.
23The plaintiff also suffered from some low back pain after a minor car accident in September 2018, which resolved. There was no evidence of any injury to the cervical spine in this accident.
24I do not regard either of these accidents as relevant to the issues in this application.
The injury
25The transport accident occurred on 21 November 2017. The Ambulance Victoria notes record:[8]
“34 yo female front passenger in a car travelling approx 40 km/hr going through a roundabout when pt states vehicle collided with another vehicle. Airbag inside vehicle did not deploy - Pt self extricated complaining of L sided neck pain - ambulance requested.” (Emphasis added)
[8]PCB 50
26The plaintiff provided a history of a very painful neck and left shoulder to her then general practitioner, Dr Frank Xia, the day after the transport accident.[9] The following day, on 22 November 2017, she was prescribed Naprosyn for her pain.[10] She then undertook various conservative treatments, including heat packs, physiotherapy, massage and exercise physiology throughout 2018.
[9]Supplementary Defendant’s Court Book (“SDCB”) 6
[10]SDCB 66
27In terms of the initial investigation, a left shoulder ultrasound on 14 February 2018 disclosed distal left supraspinatus tendinosis/tendinopathy without focal tear and left subdeltoid subacromial bursitis with bursal impingement.[11] An MRI of the left shoulder on 21 March 2018 concluded there was mild to moderate subdeltoid subacromial bursitis, confirming the ultrasound findings.[12]
[11]PCB 3
[12]PCB 39
28In submissions, the TAC sought to cast considerable doubt on the connection between the plaintiff’s current impairment having regard to initial improvement in symptoms, and a later deterioration in her condition. At some point after this initial improvement throughout 2018, the plaintiff’s pain levels went from a four or five out of 10, to a nine out of 10 at worst.[13] The clinical notes, it was said, did not reflect any such deterioration in 2019, despite presenting to her general practitioner on twenty occasions. The plaintiff made no complaint of pain in her neck and left shoulder during 2019 until November 2019.
[13]Transcript (“T”) 40, Line/s (“L”) 25
29The plaintiff, in cross-examination, disputed that if she had significant left shoulder or neck pain during the period from January 2019 to mid-November 2019 she would have attended her general practitioner for treatment. Her evidence included that during this period, she was on maternity leave, she had her fourth child, Armani, in March 2019, and travelled to Algeria where she was cared for by her mother-in-law for a period of three months in July to September in 2019. She also used heat packs, had hot showers and used a Transcutaneous Electrical Nerve Stimulator (“TENS”) machine.[14]
[14]T39
30On 18 November 2019, the plaintiff attended her GP, Dr Nath, complaining of left upper back and shoulder pain related to her transport accident. Thereafter she attended regularly with symptoms in her neck and shoulders, which led to an MRI of her cervical spine on 9 March 2020, with a referral to an orthopaedic surgeon, Mr Audi Widjaja, in September 2020. Mr Widjaja recommended a steroid injection and to continue physiotherapy and pain medication. She recommenced physiotherapy at Caroline Springs in April 2021.
31The plaintiff’s evidence in her first affidavit in 2021 is as follows:[15]
“As things stand, my neck and left shoulder pain is there most of the time. I have been living with the pain now for more than three years and I find that I am just putting up with it. I do not have much of a choice.”
[15]PCB 8
32Noting it is now five years since the accident, I accept that evidence.
Treating medical practitioners
33I have considered all of the reports tendered, including the general practitioner’s reports which record persisting injury to the neck and symptoms in the left shoulder since the transport accident. In April 2021, Dr Nath records:[16]
“Reports of difficulty doing her household chores.
Was informed by her insurance case manager that she is eligible for Home Help expenses.”
[16]PCB 71
34Dr Nath’s diagnosis relevant to the injury relied upon in this case is contained in his report of 22 August 2021:[17]
“Cervical Neck C5-6 Disc buldge (sic) with mild Nerve impingement”.
[17]PCB 72
35Regarding her capacity at the time of this report, he notes that she can lift up to 5 kilograms and she is not to lift any weight above the left shoulder. Preferable work includes administrative duties, as a clerk or administrative assistant. In his opinion she is able to perform work with stratified modifications.
36Upon referral from the plaintiff’s general practitioner for painful left shoulder symptoms, Mr Widjaja prepared a report and letter back to the GP dated 31 August 2022. His diagnosis having regard to his instructions to consider the left shoulder symptoms only was as follows:[18]
“Disc protrusion at C5/6 with mild nerve root impingement of C6.”
[18]PCB 78
37He notes:
“The pain is coming from the neck radiating to the left shoulder and left elbow.
…
At this stage the management will be as follows:
1.Analgesia as needed
2.Physiotherapy for the left shoulder and neck
3.Keep mobilising as tolerated
4.Steroid injection to the left shoulder maybe helpful
5.Review if she has any further problems”.
38This report and those opinions are consistent with his previous findings in his report of September 2020.[19]
[19]See Dr Widjaja report dated 9 September 2020 at PCB 77
39Most recently, on 22 March 2023, the plaintiff’s physiotherapist, Mikaela Xiberras, reported as follows:[20]
“Ms Shefika Guessab has a C5/C6 disc prolapse with impingement on the C6 nerve root (C6 radiculopathy). Ms Shefika Guessab has a substantial weakness in the left shoulder and neck due to the injury sustained in the motor vehicle accident. This affects Ms Shefika Guessab’s functional ability.
Ms Shefika Guessab is currently unable to raise her left upper limb to and above shoulder height which causes her great difficulty in completing most of her activities of daily living such as, shopping, cleaning, cooking and self-care.”
[20]Exhibit E
40Ms Xiberras noted a reduction in the range of motion both in the shoulder and the neck due to pain and weakness. Ms Xiberras also recorded the plaintiff reporting frequent headaches which she associated with the injury.
Medico-legal reports
41In a report dated 27 March 2023, Dr James Rowe, specialist occupational physician, noted:[21]
“I note that Dr Saxby, when he considers the radiological findings cannot explain the severity of Ms Guessab’s symptoms. My own findings were similar. Her symptoms were more severe than one would expect from her diagnosis, and so long after the event.
This does not however mean that Ms Guessab is exaggerating her symptoms. I do believe that she is capable of suitable employment within her restrictions but I also think it entirely unsuitable to return her to the type of work she was previously performing.”
[21]PCB 100
42In his earlier report,[22] Dr Rowe agreed with Mr Widjaja’s diagnosis of subacromial bursitis with disc protrusion at C5/6 with mild nerve root impingement of C6, and a cervical spondylosis. In terms of causation, Dr Rowe opined:
“Her symptoms are greater than that which the radiological findings would normally indicate they should be but this unfortunately sometimes happens; clinically she does have significant wasting and restricted and painful movement. Certainly her recovery has not followed the normal arc.
In the absence of any reported pre-existing conditions the accident may have been the precipitating factor in the previously asymptomatic conditions of cervical spondylosis and rotator cuff tendinopathy.
…
Although there is no radiological evidence that would explain her current symptoms, there are however clinical signs on examination, including wasting; this cannot be feigned. I did not observe anything during my examination that would suggest she was exaggerating her condition.”
[22]PCB 86
43In terms of work capacity, he notes that she will be incapacitated for pick-packing work, as well as any work that involves pushing, pulling or lifting with the left shoulder. He opined that she is no longer able to perform her pre-injury duties, although she retained capacity to work in administrative, clerical or other like work; and that Ms Guessab is likely to be precluded or restricted in relation to activities involving lifting, bending, twisting and stooping and neck flexion.
44The plaintiff was examined by Mr Ash Chehata on 1 February 2023 at the request of her solicitors. Mr Chehata was specifically directed to limit his examination and opinion to her left shoulder injury. In his report of 9 February 2023, he opined:[23]
“The history is that of a motor vehicle accident with the development of a likely soft tissue injury to the left shoulder with likely bursitis, which has essentially resolved on MRI scans performed in 2022.
…
Her current left shoulder symptoms are difficult to define. This may represent more of a chronic muscular spasm relating to a whiplash injury to the cervical spine but there are certainly no features of a specific left shoulder diagnosis.
…
It is more than likely that rather than a specific left shoulder injury, this may be more relating to radiating pain from an underlying whiplash style phenomena from the cervical spine.”
[23]PCB 111
45On 8 February 2023, Professor Paul D’Urso made the following diagnosis:[24]
“It would appear that Shefika has sustained a whiplash injury to the cervical spine contributing to the development of a C5-6 disc prolapse and possible minor prolapses at the C3-4 and C4-5 levels. Shefika would also appear to have suffered from an injury to the left shoulder and chest region.
…
It would appear that the transport accident precipitated the onset of symptoms and contributed to the development of a disc prolapse at the C5-6 motion segment in the cervical spine.”
[24]PCB 102
46He placed various restrictions on Ms Guessab’s physical capacity that are permanent in nature into the foreseeable future:
“The restrictions mentioned in the text above are likely to preclude Shefika from performing physical activity such as pick packing. Her employment in the future would need to fall within restrictions mentioned in the text above. Such restrictions are of a permanent nature into the foreseeable future.”
47Dr Clayton Thomas, consultant in rehabilitation pain medicine, provided a report of 4 April 2021 and diagnosed a whiplash-associated disorder to the neck.[25] He accepted that the condition stems from the transport accident. He opined specifically that there was nothing in the material which would indicate that the transport accident is no longer the genesis of her current condition.
[25]Defendant’s Court Book (“DCB”) 39
48On 22 March 2021, Dr David Elder, occupational environmental medicine specialist, following an impairment assessment for the claims agent, opined as follows:[26]
“In summary, the worker has cervical neck pain with no clinical evidence of radiculopathy with referred pain to the left upper extremity. I could identify no medical condition of the left shoulder.
...
I performed an impairment assessment for the accepted cervico-thoracic spine injury pursuant to Tables 70 and 73 and consider that the best descriptor is provided by signs of injury but without clinical evidence of radiculopathy equivalent to DRE II and 5% whole person impairment.”
[26]DCB 33
49Dr Francis Ghan in a report of 18 March 2020, opined:[27]
“Based on today’s examination of her neck and left shoulder, it is my opinion that her injuries have resolved and that she is fit to return to normal duties and hours.
…
The injury sustained from the motor vehicle accident was simple neck pain and left shoulder non-specific muscle sprain.
…
In my opinion the work related injuries have resolved.
…
In my opinion she has capacity to return to pre-injury duties and hours.”
[27]DCB 23
50Dr Terence Saxby prepared a number of reports from September 2018 to 15 March 2023, at the request of the TAC. In September 2018, his report states:[28]
“This lady has suffered a soft tissue injury to her neck and left shoulder as a result of a motor vehicle accident. This lady has made a slow but steady recovery from this but it is taking much longer than one would normally expect.”
[28]DCB 55
51In his report of 15 March 2022, he opined:[29]
“The diagnosis here is of a cervical spondylosis and rotator cuff tendinopathy. ...
As regards to the cervical spine there is evidence of pre-existing mild degenerative change or spondylosis. This was asymptomatic and perhaps has been aggravated by the motor vehicle accident. Once again in my opinion this aggravation would have been temporary and resolved and would not give rise to long-term problems.
…
I believe that the pre-existing or unrelated conditions are wholly responsible for the current symptoms. Ms Guessab was assessed for the traffic accident and there did not appear to be any significant injury based on the Werribee Mercy Hospital notes that she was diagnosed with a muscular injury and discharged with the GP. This would indicate that the treating doctors did not feel there was a significant injury. Therefore, I believe that the traffic accident has aggravated the underlying problem.”
[29]DCB 64
52This is a key reasoning of Dr Saxby as to why any injury of the cervical spine from the motor vehicle accident is no longer present. The underlying conclusion that there did not appear to be any significant injury is based on the Werribee Mercy Hospital notes which he says suggest she was diagnosed with a muscular injury and discharged to her general practitioner, from which he appears to infer that the treating doctors “did not feel” there was a significant injury. In stating his conclusion, he provides no further explanation or a proper basis for his opinion, in particular as to the onset of symptoms as recorded in the ambulance notes which have not remitted over time.
53At the time of preparing his March 2022 report, Dr Saxby did not have the benefit of the most recent MRI of the neck and left shoulder from August 2022.
54In Dr Saxby’s report of 31 January 2023, his opinion on this issue was unchanged; and in a further report dated 15 March 2023 which was conducted on the papers – including the August 2022 MRI – without further examination of the plaintiff, he maintained his opinion that it is “more probable that the cervical injury was a temporary aggravation”.[30]
[30]DCB 91
55Importantly, Dr Saxby accepted that there is a “possibility that the transport accident has resulted in a permanent aggravation, but I place this as a possibility rather than a probability”.[31] He gives no adequate explanation as to why the plaintiff’s neck and shoulder symptoms and complaints had continued in the regular pattern that they have from the time of the accident to the present time without remission.
[31]DCB 93
Video surveillance
56The court was shown video surveillance of the plaintiff taken in January and February 2023. The video did not reveal any significant loss of range of movement in the plaintiff’s cervical spine or shoulders. This needs to be seen in the context and consideration of factors such as:
(a) it has been given to the plaintiff’s medico-legal expert to comment. No doctor changed their opinion in relation to the plaintiff’s injury:
(i)Dr Rowe said:[32]
[32]Report of Dr Rowe dated 27 March 2023, PCB 100
“I also reviewed the 3 separate surveillance videos.
They show her seated in a car for 20 minutes, walking through a shopping mall and walking outside with a companion.
There is nothing in any of the videos which suggests she was less than straightforward about her capacity or which would cause me to change my opinion about my recommendations and findings.
Walking is not an issue, nor is being seated in a car.”
(ii)Mr D’Urso revised his opinion to the extent of her capacity for undertaking tasks of daily living.[33] Whilst initially, on the basis of his findings on examination and in particular her range of motion in her neck, he expressed the view that the plaintiff suffered a mild to moderate incapacity on her social, domestic and recreational activities, upon reviewing the video he revised this opinion to symptoms having a “mild effect” on her activities. He did not alter his opinion as to the nature of his diagnosis, the ongoing effects of the injury, causation or the need for further treatment including surgery.
(b) the circumstances of the surveillance, and the amount of it, must all be considered.[34] The total of 40 hours of attempted surveillance does not show anything inconsistent with the plaintiff’s evidence in her affidavits or under cross-examination, save that she appeared not to, on one occasion, have any restriction in performing head checks when driving. In her oral evidence she stated she recalled the day in question – only a matter of weeks ago – because of the amount of drop-offs and other activity she was required to perform on that day, and she had taken medication with this in mind. Both in her oral evidence, and in her affidavits, the plaintiff was quite upfront about her need to continue with the care of her young son in particular, and that she has to cope with her pain on a day-to-day basis in doing so;
(c) the video was entirely consistent with her affidavit evidence in that it showed her significantly favouring her left shoulder; and she was at all times accompanied by either her daughter or her husband who are assisting her with shopping and drop-offs, and putting her young son into the vehicle. She was also driving the smaller car which she had deposed to, as opposed to a larger SUV. Her evidence that her daughter also drove the vehicle about half the time that day was not challenged; and
(d) the plaintiff quite freely deposed in her affidavit material about the activities required of her as a mother of a child with a behavioural disorder and disability, which on any objective account is more active than what is depicted on the video surveillance.
[33]Report of Professor D’Urso dated 22 February 2023, PCB 109
[34]See cases such as Church v Echuca Regional Health [2008] 20 VR 566
Causation
57The plaintiff’s treating doctors all attribute the plaintiff’s current presentation to the transport accident.
58On 18 March 2020, Dr Francis Ghan provided a report to the claims agent which opined that the plaintiff’s injury was simple neck pain and left shoulder muscle strain which had now resolved.[35] His report records that she was brought to Mercy Hospital, but not admitted, and subsequent to the transport accident developed aches and pains in her neck and shoulder. Dr Ghan appears not to have been provided with the ambulance report which contains a contemporaneous record of left-side neck pain immediately after the accident; and nor was he provided the MRI of the neck dated 9 March 2020 which demonstrated pathology.
[35]DCB 23
59No other doctor is unequivocal in expressing an opinion that there is no causation.
60Counsel for the TAC relied on Dr Saxby’s opinion that ultimately the plaintiff’s current presentation was a natural progression of an underlying condition.[36] Counsel submitted that Dr Saxby’s opinion should be accepted as the most persuasive as his speciality was as an orthopaedic surgeon, which was said to be more appropriate when considering neck and shoulder injuries than, for example, Dr Thomas, who is a pain management consultant. Counsel also noted that by 2023 Dr Saxby had seen all the material including recent scans, where Dr Thomas had not.[37] Further, counsel submitted that Dr Saxby’s opinion was preferable on the basis that he had seen the plaintiff on multiple occasions in 2018, and again in 2022 and 2023. For the reasons expressed previously, I have some doubts about Dr Saxby’s opinion that the transport accident symptoms have resolved and prefer his evidence that there remains a possibility that the ongoing symptoms are as a result of the aggravation of that underlying condition.
[36]DCB 92
[37]T120-121
61On the whole of the evidence, in particular of the plaintiff’s treating doctors, I find the plaintiff suffers an ongoing compensable injury to her cervical spine as a result of the transport accident.
Permanence
62I find that the accident consequences are permanent.
63Professor D’Urso provided the following opinion with regard to permanence of the injury:[38]
[38]PCB 102
“With appropriate management of the condition the prognosis should be satisfactory. Shefika will be prone to degenerative progression at the C5‑6 motion segment which can be difficult to determine and predict. Shefika’s shoulder function is poor on the left side and management under the supervision of an upper limb orthopaedic surgeon and physical therapist would be appropriate.
…
Shefika will be prone to degenerative progression at the C5-6 motion segment which will be difficult to determine and predict. This could well cause a degree of nerve root impingement at some time into the future. Deterioration is more likely than not in the long term.
…
With regard to the cervical spine, consideration could be given to a C5‑6 cervical discectomy and fusion or cervical disc arthroplasty procedure, should the symptoms persist or deteriorate with time. The prescription of analgesic and anti-inflammatory medication and medication to manage adjustment disorder under the supervision of a general practitioner would be appropriate. Hydrotherapy exercise to mobilise the shoulder function would also be recommended into the future.”
and that the physical activity and employment restrictions he identified in his report:
“would be of a permanent nature into the foreseeable future.”
64I find that, five and a half years after injury, the plaintiff is still suffering from pain and restriction in function, and consistent with the opinions of Dr Rowe, Professor D’Urso and her GP, that the condition is permanent.
Impairment consequences
65The plaintiff experiences the following consequences as at the date of the hearing:
(a) ongoing pain which can reach nine out of 10 at its worst. She is never totally pain-free in her neck. With her neck pain, her head feels very heavy. She has some pain in her left shoulder even at rest. Her daughter’s evidence, which was not challenged, included that she sees her mother crying when in pain on a weekly basis;
(b) headaches most days, which two or three times a week are quite debilitating, involving her vision being affected and needing to lie down. They are unpredictable and can last for up to an hour;
(c) difficulties with the care of her son, Armani;
(d) poor sleep due to her neck pain, which means she wakes every couple of hours;
(e) consistent conservative treatment including weekly physiotherapy and over-the-counter analgesics, and from time to time prescription medication, together with home-based exercises, stretching and use of a TENS machine;
(f) significant assistance from her daughter in performing household tasks;
(g) assistance from her daughter with showering. The plaintiff’s daughter washes her hair two to three times a week and scrubs her back. Her daughter also assists her with brushing and styling her hair;
(h) weight gain; and
(i) loss of the ability to go to the gym to exercise, including with her daughter.
Care of her son, Armani
66In late 2022, the plaintiff’s son, Armani, was diagnosed with non-verbal autism at level three. He has high-care needs.
67Now aged four, he has severe speech and language difficulties, is non-verbal, socially restricted and displays aggressive behaviour. He also has severe ADHD and is not toilet trained. He has sensory issues, and requires close monitoring to ensure his safety and to control his behaviour. He has difficulty in communicating with his parents, and requires direct help to manage all of his daily activities. Dr Romanie Rodrigo, Armani’s paediatrician, set out Armani’s care needs as follows:[39]
“Armani needs direct help to manage hygiene, showering and bathing, changing clothes and toileting, need for close monitoring and supervision during feeding and bathing activities with constant prompting and reminders at each step and to also ensure their safety.”
[39]PCB 135
68The plaintiff’s husband is Armani’s carer, but he is assisted and supported in this role by his wife and daughter. I accept Ms Guessab’s evidence that the challenges of parenting and caring for Armani are magnified by her injury and that she struggles with the physical nature of her son’s condition. She struggles to lift and carry him, and to manage his behavioural issues and high-care needs.
69In the plaintiff’s second affidavit, sworn 3 February 2023, she states the following:[40]
[40]PCB 12
“The challenges of having an autistic child have been magnified by my injuries. Armani is non-verbal. He is a very physical child and had a lot of physical tantrums and meltdowns, as is common for his condition. I am not capable of physically handling him on my own during these times. It is very difficult to care for him with my injuries and I need a lot of help. Helping Armani to bathe or go to the toilet or get changed increases my left sided pain but he cannot do these things on his own yet. A lot of the tasks still fall to me as his mother, and the reality of his condition is that his behaviour is unpredictable, and I do not always get a choice in what I have to do for my son physically.
…
Due to his autism he has many appointments. It is difficult to get him there due to my injuries and trouble handling him, so I need help from my husband.
It is so hard to take Armani with me into public alone. When he has a tantrum or meltdown he needs to be picked up. I cannot lift him due to my left arm pain and stiffness. I hate the fact that I cannot do all of this on my own for Armani.
…
Now that my husband is back, my daughter has returned to study so my husband has had to take over her role in caring for Armani and helping me. Due to my significant limitations in safely caring for Armani on my own, my husband has not been able to work now that he has returned home.
If I did not have the injury to my left arm, I could handle Armani’s demands on my own. My husband could more easily go back to work, but for now I need him to care for Armani because I cannot do it on my own.
…
Armani is still non-verbal at this stage. Him having autism means he communicates physically rather than verbally. He will pull on my arm and lead me to where he wants to go. He does not understand that I have an injury in my left shoulder and neck, and that pulling on me can cause pain. I cannot explain this to him. He is very rough with his movements generally. He gets more forceful as he gets older.
Even when Armani wants to express love, it is very physical. When he wants to show me love he hurts me, he puts his arm around my neck and squeezes me hard. I have to pull him off me and this hurts me. But I do not want to push away because this is the way he communicates.”
70I regard the consequences of the neck injury to the plaintiff in the terms of the care of her younger son as very significant. There is no evidence to challenge these consequences directly, and many of them were supported both by the affidavits of her husband and daughter who were not cross-examined.
Employment
71Ms Guessab is incapacitated for her previous picking and packing work, and probably for types of physical work for which she is suited by reason of her training and qualifications, including aged care. She expressed a desire, but for her injury, to enter that sector, having taken the effort, time and expense of obtaining qualification, and she is now on the balance of probabilities precluded from doing so.
72Whilst she has capacity for suitable employment within her physical restrictions,[41] I find that by reason of her age her youth has increased the seriousness of her injury, as she will bear the injury and its consequences for the rest of her life.[42]
[41]See the reports of Mr Thomas of 4 April 2021, Dr Rowe 6 April 2023, Professor D’Urso 8 February 2023, Dr Terence Saxby 25 March 2022 and 23 May 2022
[42]See Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
Pain
73The well-known passages in Haden Engineering[43] are apposite to this case.
[43][2010] VSCA 69, [10], [11], [12] and [16]
74I accept that the plaintiff suffers from permanent constant pain emanating from her neck.
Sleep
75The plaintiff has sworn that she has trouble sleeping most nights, and often wakes in the night because of the pain she suffers.
76In Haden Engineering, the Court of Appeal stated:
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep.”
Intimate relations
77The plaintiff and her husband have both sworn that the neck injury has affected their intimate relations. This also is a matter of importance.
Stoic plaintiff
78I must also consider the extent to which Ms Guessab is a stoic individual.[44] I consider Ms Guessab as stoic, putting up with the pain and getting on with life as a mother of four children, including a severely disabled young son, as best she can. This should not be held against her.
[44]See for example Sutton v Laminex Group Pty Ltd (2011) 31 VR 100 at paragraph [83]
Analysis and findings
79On the evidence as a whole, I am satisfied that the plaintiff suffered a compensable injury in the transport accident, and that she continues to experience pain and suffering consequences from the impairment to her neck.
80The combination of ongoing pain, interference with her pre-injury work and other employment for which she is otherwise suited, interference with her domestic and recreational activity, and the requirement for ongoing conservative treatment, is such that the pain and suffering consequences to Ms Guessab of her injury are “at least very considerable”. She has discharged her burden of proof.
81I grant Ms Guessab’s application for leave to commence proceedings for common law damages pursuant to s93(4)(d) of the Act in respect of injuries sustained in the transport accident on 21 November 2017.
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