Haralabakos v TAC
[2010] VCC 1732
•24 November 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-06131
| PANAGIOTA HARALABAKOS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 and 20 October 2010 |
| DATE OF JUDGMENT: | 24 November 2010 |
| CASE MAY BE CITED AS: | Haralabakos v TAC |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1732 |
REASONS FOR JUDGMENT
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Catchwords: TRANSPORT ACCIDENT – Transport Accident Act 1986 – Section 93 – impairment to the cervical spine.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C J Blanden SC | Zaparas Lawyers |
| Ms K A Galpin | ||
| For the Defendant | Ms A M Magee | Solicitor to the Transport Accident Commission |
| HER HONOUR: |
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s.94(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 17 May 2003 (“the said date”).
2 Section 94(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied
that the injury is a serious injury.”
3 The definition of “serious injury” relied upon by the plaintiff is under s.93(17)(a) – “a serious long term impairment or loss of a body function”.
4 The body function relied upon by the plaintiff in this application is the cervical spine.
5 The enquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
6 The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can of itself constitute or be the producer of the impairment of a body function: see Richards v Wylie (2000) 1 VR 79.
7 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”?: see Humphries v Poljak [1992] 2 VR 129, at 140-1.
8 The plaintiff relied on two affidavits and gave viva voce evidence. She was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
9 The plaintiff is married with four adult children. She is presently aged sixty six, having been born in Greece on 9 September 1944. She is in receipt of an aged pension.
10 The plaintiff had six years’ schooling in Greece and was then taught to be a seamstress. She migrated to Australia in 1964.
11 Between 1976 and 1988, the plaintiff worked as a dressmaker. She and her husband then bought and ran a number of successful small businesses, before her husband retired in 1994.
12 In the late 1990s, the plaintiff developed intermittent neck pain, which worsened in 2001. At that time she attended her general practitioner, Dr Pragastis, who had been treating her since the 1960s. He referred her to Dandenong Hospital, where she received massage and physiotherapy on two occasions, which improved her neck pain.
13 The plaintiff deposed in her first affidavit that prior to the said date, she was having no ongoing neck discomfort. In 2002 (having deposed in 2004), the plaintiff noticed a lump at the back of her neck (“the lipoma”).
14 The plaintiff attended Dr Edwards at the Recreation Medical Centre for treatment of the lipoma. She was subsequently sent to Casey Hospital, where she attended a number of doctors. On 10 May 2005, the plaintiff underwent liposuction to remove the lipoma.
15 The lipoma subsequently grew back, and the plaintiff was sent to Dandenong Hospital in February 2008 for further treatment. The plaintiff had been on the waiting list for that surgery for some time when, in early 2010, she was diagnosed with breast cancer. She then became too scared to undergo this procedure, and has not done so.
16 When it was put to the plaintiff in cross-examination that the referral for the lipoma surgery was because of pain and discomfort, she said the lipoma was not painful but she was worried it was getting bigger.
17 The plaintiff explained that her pain was higher up in her neck than the site of the lipoma. The pain was in the middle of the top of her spine. She denied there was tightness in her neck because of the lipoma and said that she only had restriction in her neck after the accident.
18 On the said date, the plaintiff was involved in a transport accident at Keysborough when the vehicle she was driving was hit head-on by a vehicle that had come onto the wrong side of the road (“the accident”).
19 In the accident, the front of the plaintiff’s car was completely caved in. She stayed in the car and called Emergency and then rang her daughter, who attended the accident scene.
20 The plaintiff was in shock after the accident, and was not sure whether she lost consciousness. She had chest pain and difficulty breathing, as well as a stiff and painful neck.
21 The plaintiff’s daughter and an ambulance arrived at the accident scene, and the plaintiff was driven by her daughter to The Valley Hospital, where she was examined and x-rays were taken. The plaintiff was discharged that evening.
22 The following day, the plaintiff woke with a very stiff neck and had a headache. She saw Dr Pragastis, who gave her painkillers and sent her to Mr Cvetkovic, a physiotherapist, whom she saw twice a week for about six months, until he stopped working with Transport Accident Commission related claims.
23 The plaintiff then went to a Chinese physiotherapist in Springvale for about a year, on a weekly basis. The plaintiff stopped treatment for a while to see if it made any difference, but after six months her symptoms worsened, and she was sent to another physiotherapist, Mr Kokovas, from whom she had treatment for about six months. In 2006, the plaintiff tried acupuncture for about a year.
24 In about October 2005, the plaintiff had a further transport accident, when the car in which she was travelling was hit from behind (“the second accident”). The second accident made the plaintiff’s neck pain worse, and she also had some back pain. She saw Dr Pragastis in relation to these accident injuries. The back pain and extra neck pain gradually resolved over a few weeks, and the plaintiff’s neck returned to its previous state.
25 Over the years, as well as seeing Dr Pragastis, the plaintiff continued to attend the Recreation Medical Centre as it was often hard to see Dr Pragastis. The Recreation Medical was located near the plaintiff’s workplace in High Street, Armadale.
26 Since the accident, both doctors have suggested to the plaintiff that she undergo a CT scan of her neck. She was booked in for this investigation on one occasion, but was too scared to undertake it.
27 Dr Pragastis arranged further physiotherapy for the plaintiff’s neck for about three months in 2007 and also in 2008.
28 In about 2008, the plaintiff found casual employment, working about six hours a week with the House of Moshe in Armadale, a business that imports cloth from China and makes up wedding dresses.
29 The plaintiff’s job involved advising her employer about how dresses were to be sewn. The plaintiff consulted clients and assisted with fittings and did pinning but she did not do any sewing. She was paid about $100 a week for doing this work, which she continued to undertake until she was diagnosed with breast cancer in March 2010.
30 The plaintiff applied for this job herself. She worked when called, and had to drive from Springvale to the shop in Armadale. There were times when she was unable to come to work when requested.
31 Sometimes the plaintiff worked two days a week for two hours. Sometimes she worked for one day. Her hours were not regular.
32 In her affidavit sworn 25 May 2009, before breast cancer was diagnosed, the plaintiff deposed she had neck pain all the time, which was worse if she turned her head too quickly or tried to look up. If she looked up, that could also make her dizzy. She got headaches at times usually towards the end of the day, starting in her neck and spreading over the back of her head.
33 The plaintiff usually had a headache when she had the worst neck pain, which she suffered if her neck was unsupported for more than about an hour. After that time she needed to sit down and put a pillow behind the back of her neck. In the evening she usually had a couple of pillows behind her head which she moved around to reduce her discomfort.
34 As of May 2009, the plaintiff walked more slowly and carefully to avoid jarring her neck. She could drive, but only locally, to do shopping or visit friends or her children. She was very nervy in the car and did not like to drive.
35 When she drove, the plaintiff tended to drive in the left lane and avoided changing lanes to limit having to turn her neck, and she relied on her mirrors more than she did prior to the accident. If she had to turn and look at traffic, she turned her whole body. After about fifteen minutes’ driving, she usually had increased neck pain.
36 The plaintiff found it hard to get to sleep, and used a heat pack wrapped around her neck, which she had purchased from her physiotherapist. At that stage she woke because of neck pain most nights, and when that occurred she usually got up and reheated the pack. In the morning her neck was always stiff. She found a massage and a hot shower first thing helped, and she also took Panadeine Forte with her breakfast.
37 In cross-examination, the plaintiff confirmed that sleeping problems had worsened in 2010 but had been an issue for her since the accident.
38 As of May 2009, raising her arms tended to make the plaintiff’s neck worse. She tried to be quick when doing things such as brushing her hair and teeth. Bending her neck to put on pantyhose increased her neck discomfort.
39 The plaintiff deposed that since her injury she had put on a lot of weight. Prior to 2003, she weighed about 80 kilograms, and she now weighed 110 kilograms. This upset her but she did not seem to be able to do anything about it.
40 In her second affidavit, the plaintiff deposed that after putting on about 10 kilograms around the time of menopause, she went from a dress size of 12 to 14, but then put on an enormous amount of weight after the accident and she had gone up to a dress size of 22.
41 In cross-examination, it became apparent that prior to the said date, the plaintiff in fact weighed 110 kilograms. The plaintiff thought that this was not the case, but did not dispute it, and said she now weighed about 120 kilograms and felt bloated.
42 When two entries in her doctor’s file setting out the weight in 2002 as 110 kilograms were put to her, the plaintiff said if that was what the doctor said, she would not disagree.
43 In terms of more recent weight gain, the plaintiff denied that on 10 September 2008 she had reported to Dr Ngeow that she had been overeating since the accident as a result of her husband’s health and her daughter’s marital problems. She said she had neck pain which used to upset her and she could not do her housework.
44 When it was put to the plaintiff that she was comfort eating, she agreed this was the case not only for problems with her husband and children, but for her neck as well. Even if Dr Ngeow did not record the plaintiff’s continuing neck complaints, she knew about her neck problem as she sent her for a scan.
45 Although Dr Ngeow suggested on examination in March 2009 that the plaintiff walk for forty five minutes a day, the plaintiff could not increase her walking level because she became tired and because of her asthma and her neck. Dr Ngeow knew of the plaintiff’s pain and tiredness and that was the reason why she did not have to mention it on every visit.
46 On 22 January 2009, the plaintiff agreed she told Dr Ngeow she was feeling stressed and had comfort in eating cakes. She told her that she had difficulty controlling her diet and that she had seen a diabetes educator and had been following a diet plan for a while. Although the plaintiff agreed this entry was correct, she never stopped complaining about her arms and her neck.
47 As of May 2009, the plaintiff’s husband helped her with cooking and did the mopping of the wooden floors, as the plaintiff could not do so because of the bending and vigorous use of her arms involved. Her husband also had to clean the rugs. The plaintiff could put washing in the machine but she could not hang it on the line. She received a lot of assistance with housework from her daughter.
48 In cross-examination, the plaintiff said that she did not really understand the questions in the questionnaire completed by her before the lipoma surgery in 2005. She told everyone she went shopping. She could not remember saying that she had no difficulties with cleaning, but then said she had problems with domestic cleaning. She was able to cook, she could drive, but not all over Melbourne. She did shopping for small things. Her husband and daughter helped with the cleaning until her daughter moved out. The plaintiff agreed she was able to shower and dress herself, and carry out personal hygiene tasks.
49 The plaintiff in fact attended Springvale Sports Medicine for physiotherapy treatment on the date the questionnaire was completed.
50 Prior to the said date, the plaintiff used to maintain a vegetable garden and enjoyed digging in the garden and staking tomatoes, and also dug flower beds. As of May 2009, the plaintiff’s husband did all the gardening.
51 In October 2010, the plaintiff deposed that she loved her garden and took pride in its appearance. She could do very little in the garden without making her neck much worse. Her husband had taken over the garden, although he has not maintained it at the level she would have liked.
52 In cross-examination, the plaintiff said that she had not worked in the garden after the accident, because she “got dizzy; had no strength; the neck; everything”. She agreed her low back “probably played a part in that too but not like [her] neck”.
53 Prior to the accident, the plaintiff also used to enjoy embroidery and making clothes for her children and grandchildren. She cannot sew now because bending forward for a long time causes too much neck pain.
54 Since the accident, the plaintiff has had difficulty socialising, because after about an hour with her neck unsupported she gets increased pain and wants to rest. She also has difficulty concentrating on conversations because of continued pain, and she finds that she gets tired more easily and it is difficult to maintain her interest.
55 Since the accident, the plaintiff has become more depressed because of continued discomfort and frustration at her restrictions.
56 In October 2010, the plaintiff deposed that there has been little change in her situation. However, she now has more difficulty managing neck pain.
57 In addition to her neck pain, the plaintiff has other aches and pains, but nowhere near as bad as her neck. She also has some other health issues that have affected her life.
58 Having been diagnosed with breast cancer following a mammogram in March 2010, the plaintiff then underwent chemotherapy every few weeks on six occasions, which made her very ill and she had to be hospitalised four times.
59 Following chemotherapy, the plaintiff underwent surgery for the removal of a large part of her right breast and many lymph glands (“the breast surgery”). She was hospitalised for seventeen days in relation to that procedure.
60 Following recovery from the breast surgery, the plaintiff started therapy for the lymphatic system and a course of radiotherapy, the last session of which she was to attend on the date of this hearing.
61 As the plaintiff felt very ill when undergoing chemotherapy she did not feel she could take Panadeine Forte. She has continued to take Panamax on a fairly regular basis, taking six to eight tablets a day; however, that medication does not get rid of her pain, and does not give her as much relief as she had with Panadeine Forte.
62 Because of her restricted ability to take medication, the plaintiff feels her neck pain is now more of a problem than before. Her pain never goes away, and sometimes it is so bad she can hardly stand.
63 ‘Hands on’ treatment has given the plaintiff some reduction in her pain level for a day or so; however, having felt so ill from chemotherapy, the plaintiff stopped attending hydrotherapy.
64 The plaintiff continues to have problems turning her neck or looking up and down for a significant time. She continues to use pillows for neck support, both whilst sitting, and in bed. When hospitalised for cancer treatment, the hospital staff raised the top of her bed to help reduce the neck pain which she experienced from lying flat.
65 For a while after the breast surgery, the plaintiff did not drive at all, but she now tends to drive locally. Her driving is limited because of neck pain. Further, she has pain from the breast surgery. If she puts a towel under the seat belt, that pain does not affect her too much when she drives shorter distances. The plaintiff avoids parallel parking if possible, as looking back tends to increase her neck pain significantly.
66 The plaintiff deposed that virtually every night she is woken by neck pain and has to get up and reheat the heat pack.
67 The plaintiff’s neck pain increases if she tries to lift her arms up, for instance when putting the washing on the line. Because of this, she has had trouble managing the exercises that have been recommended for her lymphatic drainage after the breast surgery, and her exercise program was modified to allow for her neck restrictions.
68 The plaintiff deposed that her neck pain and disability have taken away her ability to enjoy many aspects of life.
69 Because of her neck pain, the plaintiff cannot perform housework effectively. She tends to get help from her husband with the more strenuous tasks. Since the breast surgery she has had council assistance in this regard. The plaintiff is frustrated at her inability to keep the house in the order she wishes to maintain it.
70 Prior to the accident, the plaintiff was active, looking after her grandson, now aged sixteen, when he was young, collecting him from school or looking after him on the weekends and after school.
71 Since the accident, the plaintiff is not up to playing with her son’s children, who are aged four and five, because she does not feel safe caring for them because of her neck pain. She is unable to lift them or get involved in activities with them. She sees them on Sundays when her son brings them over.
72 The plaintiff agreed that she had increased problems in this regard due to the breast cancer but confirmed that she had problems before that time following the accident.
73 Many other pastimes have effectively been taken away from the plaintiff by her neck pain.
74 Since the accident, the plaintiff can no longer do all the preparation involved in Greek cooking, with the requirement to look down for excessive periods. Her cooking is now limited to very basic food.
75 The plaintiff cannot enjoy going out to restaurants to have a meal and to dance because of neck pain. The pain makes it difficult for her to enjoy being out at all, and if she tries to dance it jars her neck. She dances only on rare occasions, and pushes herself to take part for the sake of special occasions, such as her daughter’s wedding, as she does not want to ruin things for others. However, the plaintiff then has very bad neck pain as a result.
76 In cross-examination, the plaintiff said she had not mentioned her trip to her daughter’s engagement party in America in 2008 because she was not asked about it. Her daughter, who worked for Qantas, arranged the trip. The plaintiff used pillows to support her neck whilst on the plane.
77 There was some Greek dancing at that party which the plaintiff did just to show other guests for a very short period and then she sat down. She did not do any sightseeing on that trip.
78 When the plaintiff’s pain is not at its worst, such as after she has medication or on a better day, she tries to get out of the house to do basic things such as shopping or visiting her children, just to have the chance to be with people.
79 Although she is undergoing radiotherapy, and is very tired from that treatment and does not have much energy, the plaintiff’s understanding is that that situation should improve once the treatment is over and the cancer has been successfully treated. It is a relief to her that the significant problems caused by the cancer are coming to an end.
80 In cross-examination, the plaintiff agreed this year has been a very difficult one and she does not have the energy to go back to work. Her ability to socialise has also been affected.
81 The plaintiff confirmed the numerous lymph nodes removed from under her right arm had increased her difficulties with her right arm. She had been advised since the breast surgery not to lift things that are too heavy and also not to have any injections or medical procedures in her right arm.
82 The plaintiff has had some physiotherapy in relation to her right arm movement since the breast surgery and she has been advised to do exercises.
83 The plaintiff started a new treatment the day after the hearing involving an injection every three weeks for a year. She takes hormones and also strong painkilling tablets, and she still takes Panamax.
84 When it was put to the plaintiff that breast cancer was the focus of her life, she said that was the case but her focus was also on her neck pain.
Other Medical Conditions
85 In cross-examination, the plaintiff could not recall having nerve conduction tests taken of her hands in 2000. She had had pins and needles in her hands for many years but not like now.
86 The plaintiff was asked about a visit to Dr Cohen on 7 August 2007 when it was noted :
“Hands were swollen, stiff in the morning and numb for the past month.”
87 When it was put to the plaintiff that she had not complained about her hands after the accident until 2007, the plaintiff thought Dr Pragastis sent her to someone in relation to her hands and tendons.
88 The plaintiff denied that the numbness and pain in her hands had nothing to do with the accident and said her hands got worse after the accident and her life changed.
89 The plaintiff agreed that before that accident she had been sent for x-rays of her lower back in April 2004, with sciatic pain going down her leg. Since then the lower back pain had come and gone – it was the neck pain that troubled her. She had back pain not very often, perhaps once a week.
90 Her back pain now hurt her, for example, when sitting down for too long. If she stands for a long time she has problems and also with walking. “It is a combination of everything: a bit of asthma; a bit of lower back; and the neck.”
91 Diabetes and high blood pressure were diagnosed after the accident.
The Plaintiff’s Medical Evidence
92 The plaintiff first attended the Monash Physiotherapy and Sports Clinic, where she saw George Kokovas, physiotherapist, on 22 August 2003 until she was discharged on 15 October 2003.
93 During that time, the plaintiff presented with a reduction of active movements because of her neck, shoulders and upper back, and she was tender in those areas.
94 In July 2007, the plaintiff was referred again to the Sports Clinic by Dr Pragastis for another course of treatment, which took place over three months.
95 There was a further referral in July 2008 when the plaintiff had similar symptoms of stiffness and tenderness.
96 Mr Kokovas thought the plaintiff had suffered soft tissue type injuries in her neck and upper back, and that her prognosis was poor, because the symptoms would persist. He reported in December 2008 that he thought she would require occasional treatment in the future to assist her in the management of her condition.
97 Dr Pragastis reported on 6 April 2009 that the plaintiff came to see him on 17 May 2003 after the accident.
98 Since that time, the plaintiff had experienced cervical pain, thoracic spine pain, painful headaches, and post-traumatic symptoms. She also experienced neck pain, neck stiffness, headaches and upper spinal pain stiffness.
99 These had been consistent symptoms, and the plaintiff had required long term acupuncture, hydrotherapy, and long term physiotherapy. She had also required medication, including Panadeine Forte, Feldene, Stemetil and Voltaren tablets.
100 In Dr Pragastis’ view, the accident had also impacted significantly on the plaintiff’s underlying illnesses, namely her diabetes, her blood pressure and her weight. Her weight gain had affected her diabetes, and her stress level had affected her glucose metabolism.
101 Even though it was then six years since the accident, Dr Pragastis noted that the plaintiff felt that she had not improved. She had required ongoing support, and although she was not working prior to the accident, she felt she had missed out on job opportunities since that time.
102 Dr Pragastis considered the plaintiff was very limited in her capacity for work. She told him she currently worked light duties eight hours a week with a very sympathetic employer.
103 Dr Pragastis concluded the plaintiff’s current symptoms included cervical spine pain, occipital headaches, bilateral upper limb pain, arm numbness, upper and lower spine pain, and leg weakness.
104 In his view, the prognosis remained guarded and somewhat pessimistic, and those symptoms had been long term since the accident.
105 Dr Pragastis briefly reported, on 13 October 2010, that the plaintiff had breast cancer and had had surgery, radiotherapy, and chemotherapy. In his opinion, she was not terminally ill, and her survival expectancy was beyond twelve months.
106 The plaintiff has been under the care of Southern Health for breast cancer, having first been seen on 2 March 2010, at which time a biopsy had been performed, and a diagnosis of inflammatory breast cancer was made.
107 A course of chemotherapy was arranged for the plaintiff to be managed at the Moorabbin campus with six cycles of chemotherapy between March and June, and then have breast preserving surgery.
108 The plaintiff was admitted to hospital from 12 to 17 March 2010 with chest pain and shortness of breath, and she was also admitted with a chest infection from 18 to 20 May 2010.
109 The plaintiff was followed up in the Breast Oncology Clinic on 23 March, 13 April, 11 and 25 May and 15 June 2010. When seen on 6 July 2010, she was recovering from her chemotherapy and awaiting surgery.
110 The plaintiff was admitted to hospital from 5 to 14 August 2010, and underwent a right total mastectomy and axillary clearance (“the breast surgery”) on the day of admission. Histology showed the cancer was still evident and the lymph nodes were involved.
111 The plaintiff was last seen on 28 September 2010, when it was noted that it seemed she had been receiving further chemotherapy. Therapy was to continue and she was to be reviewed at the end of December.
Investigations
112 Dr Edwards organised an x-ray of the plaintiff’s cervical spine on 19 October 2004. It was concluded there was moderate mid and lower cervical spondylosis affecting predominantly the discs.
113 An x-ray of the cervical spine carried out on 5 December 2005 at Dr Edwards’ request showed osteophytic lipping at C5-6 and C6-7 associated with mild loss of disc space height at C6-7. Normal alignment was maintained and there was no bony spinal canal stenosis detected.
114 An x-ray of the cervical spine was carried out on 14 October 2008 at Dr Ngeow’s request. Degenerative changes were present at C5-6 and C6-7 disc levels with osteophytic lipping which contributed to neural exit foraminal narrowing at these levels. No fracture was identified. The soft tissues that were visualised were normal, and alignment was preserved.
Medico-Legal Examinations
115 Mr Flanc, vascular and general surgeon, first examined the plaintiff on 11 March 2009.
116 The plaintiff told Mr Flanc that after the accident she had severe pain in the back of her neck, radiating up to the back of her head. Thereafter, she continued to suffer pain in the back of her neck, which fluctuated in severity.
117 The plaintiff told Mr Flanc about the second accident in 2006, after which she again felt some neck pain, and also low back pain for the first time.
118 On this initial examination, the plaintiff told Mr Flanc her most severe symptom was constant neck pain, but aggravated on movement. She had daily occipital headaches that started at the back of her head and spread to involve the whole head.
119 The plaintiff also stated that tingling in both hands started some weeks after the accident, and that pain radiated down her upper limbs into her index finger and middle finger of each hand. There was an associated ache in her upper limbs.
120 The plaintiff described low back pain not as severe as her neck pain.
121 The plaintiff stated she did not have any history of neck pain before the accident.
122 On examination, Mr Flanc noted the plaintiff was able to fully elevate her arms while taking off her blouse.
123 Forward flexion of the cervical spine was almost normal at 40 degrees but extension was impossible due to pain in the back of the neck. Lateral flexion was moderately restricted to 20 degrees by pain. Rotation was slightly restricted to 60 degrees to each side.
124 Examination of the hands was normal. Mr Flanc was unable to elicit any of the plaintiff’s upper limb reflexes but sensation was normal.
125 Forward flexion of the lumbosacral spine was slightly limited to about 60 degrees by pain which radiated up the plaintiff’s neck from her lower back.
126 Mr Flanc viewed the x-rays taken at Dr Ngeow’s request, which showed severe disc degeneration and osteoarthritis, especially at C5-6 -7 levels. At that stage Mr Flanc did not have the 2003 x-ray.
127 Mr Flanc concluded the exact mechanism of the plaintiff’s injury was unknown. He thought it was likely that she had sustained a whiplash injury of her neck.
128 Mr Flanc noted that on the plaintiff’s history, it appeared she had quite severe neck pain consistent with a musculoligamentous injury in its early stages, although persistence of her pain would, in his view, be consistent with an aggravation of pre-existing disc degeneration and osteoarthritis of the cervical spine.
129 Mr Flanc suggested information be obtained from Dr Pragastis as to the plaintiff’s complaints of neck pain in 2001 and also details as to her hospital admission after the accident.
130 The plaintiff told Mr Flanc of the second accident involving some further aggravation of her neck pain and initiating pain in the lower back. Mr Flanc understood the plaintiff did not attend hospital at that time and he commented it was doubtful whether there was any significant aggravation of her neck pain in that accident.
131 Mr Flanc explained that the term “lipoma” meant a benign fatty tumour, but from the notes of the Dandenong Hospital, he thought it was not clear whether the plaintiff actually had a lipoma or whether there was merely a diffuse accumulation of subcutaneous fat in the upper part of the thoracic spine, just at the junction with the cervical spine.
132 Mr Flanc commented that the information “surrounding this painful lump” was not very clear but from his examination, there was still a significant hump just below the base of the plaintiff’s neck. This, he believed, was related to her posture and probably osteoarthritis of the spine and there was still an excess of subcutaneous fatty tissue.
133 In his experience, pain was not a major symptom in these instances of increased subcutaneous fat or even a specific lipoma. It seemed more likely to him that the plaintiff’s original symptoms and continuing symptoms were related to the underlying problem of disc degeneration and osteoarthritis of the cervicothoracic spine.
134 In terms of the plaintiff’s pins and needles complaint, Mr Flanc thought there was no objective neurological abnormality at the time of his examination and it was more likely than not those symptoms were not related to nerve root compression at the cervical spine level.
135 On the information available to him at that time, Mr Flanc considered that as a result of the accident, the plaintiff had aggravated pre-existing disc degeneration and osteoarthritis of the cervical spine.
136 Mr Flanc re-examined the plaintiff on 28 July 2010.
137 At that stage the plaintiff told him that her neck pain was severe and had not changed. There was a constant background of pain which was aggravated at any time. Occipital headaches had now spread to her forehead and were frequently severe. She still felt heaviness in both upper extremities and there was some mild lower back pain.
138 Mr Flanc noted the diagnosis of breast cancer in early 2010 and the fact the plaintiff was still suffering from non-insulin dependent diabetes and hypertension.
139 On examination, the plaintiff was able to elevate her arms fully. Movement was associated with neck pain. Forward flexion was still only slightly limited at 40 degrees but extension was zero and lateral extension 20 degrees to each side and rotation 60 degrees to each side.
140 The plaintiff complained of neck pain at the extreme of elevation of her shoulders. Examination of her upper limbs was normal and there were no abnormal neurological findings. There was only a slight restriction of lumbosacral movement and forward flexion was measured at about 70 degrees.
141 On this occasion, Mr Flanc had available to him the plain x-rays of 17 May 2003, 19 October 2003, 5 December 2005 and 14 October 2008.
142 In his opinion, the plaintiff’s neck pain was related to the degenerative and arthritic condition of her neck which had been demonstrated on four sets of x-rays.
143 Mr Flanc noted the dominant symptom following the accident which was neck pain, which had persisted but fluctuated in severity.
144 In terms of the further medical material he had requested, Mr Flanc noted he had been forwarded the clinical file from the Emergency Department at Dandenong Valley Hospital where the plaintiff had been admitted on the day of the accident. He noted that Dr Pragastis’ report did not refer to any attendances for neck complaints in 2001.
145 Mr Flanc considered that the impact of the second car accident was much less severe than the first. After the second accident, the plaintiff was able to drive her car home and she attended her general practitioner later that day. He noted Dr Pragastis did not refer to the second accident in his report, but the plaintiff considered her severe neck pain just continued on from the time of the original accident.
146 On balance, Mr Flanc considered the accident caused significant aggravation of pre-existing disc degeneration and osteoarthritis of the cervical spine which became more symptomatic than before and persisted from that time onwards.
147 He also thought that the second accident would have influenced the condition of the plaintiff’s spine to a much lesser extent.
148 Mr Flanc considered that the aggravation of the degenerative condition of the plaintiff’s cervical spine had left her with persistent neck pain which was significantly influencing her activities at home.
149 Mr Flanc thought that the plaintiff’s low back pain was mild and probably related more to the second accident, and he also noted she suffered from intermittent heaviness and tingling in her upper limbs, but he did not believe there was evidence of radiculopathy.
150 Mr Mangos, general surgeon, first examined the plaintiff for the purposes of an impairment assessment in June 2009.
151 The plaintiff’s main complaint at that time was neck ache, which was constant by night and day, and occurred in the back of her neck and shoulder girdles and radiated into the occipital area. She had regular headaches associated with the neck ache.
152 In addition, the plaintiff had suffered chronic backache since the second accident. She had tingling in both hands intermittently at the fingertips.
153 Mr Mangos noted the plaintiff’s main problem was with chronic pain in the neck and back, and with restriction in her daily activities, such as social and leisure activities.
154 On examination, the plaintiff undressed with some difficulty.
155 There was normal alignment of the cervical spine, and the neck was thick. There was tenderness extending from the trapezius into the shoulder girdles. The plaintiff flexed to 35 degrees, extended to 30 degrees, laterally flexed to the right to 30 degrees and to the left to 35 degrees, and rotated to the right to 65 degrees and to the left to 60 degrees.
156 Mr Mangos noted the plaintiff had had a liposuction of a hump at the nape of her neck, but that was still present to a degree. Shoulder movements were satisfactory, and a good range of movement noted, and there was no tenderness. There was no wasting or deformity of the upper limbs, nor any neurological or muscular deficit.
157 There was some stiffness of the thoracolumbar spine, with inability to sit with extended legs. The plaintiff flexed to 50 degrees, extended to 10 degrees laterally, flexed to the right and left to 15 degrees, and rotated to the right to 20 degrees and to the left to 15 degrees.
158 There was no neurological abnormality noted.
159 Following this examination, Mr Mangos concluded that the plaintiff was a very nervous lady who had been involved in two car accidents, and he considered she had suffered musculoligamentous injuries to both her neck and back as a consequence of them.
160 He commented that undoubtedly the plaintiff also had some aggravation of degenerative processes in those areas. He thought that she had no real evidence of radiculitis in the arms or leg. He considered she carried out her daily tasks with a great deal of difficulty.
161 Mr Mangos thought the plaintiff would be much better off if she lost a good deal of weight. He considered that the accidents had certainly given her permanent partial impairment which interfered substantially with her life activities, and he considered those injuries had well stabilised.
162 Mr Mangos thought the plaintiff needed to have continuing treatment, noting that physiotherapy and hydrotherapy had been stopped.
163 The plaintiff was re-examined by Mr Mangos on 27 September 2010.
164 Mr Mangos noted that since the last examination the plaintiff had gained even more weight, and she had been diagnosed with breast cancer.
165 The plaintiff told him the condition of her neck and back had not altered since the earlier examination. She complained of chronic backache by night and day, aggravated by bending and straining. She also had neck pain and suffered a good deal of headaches associated with that pain. Sometimes she had tingling in the fingers. These symptoms seriously interfered with her daily activities.
166 On examination, the plaintiff weighed 119 kilograms. The cervical spine was quite thick. The alignment was midline. Muscular tenderness was present deep in the trapezius muscles and extending along the left side of the paravertebral gutter.
167 Flexion and extension were to 35 degrees. The plaintiff laterally flexed to 30 degrees on the right, and to 40 degrees on the left. Rotation to both sides was 60 degrees. There was no indication of wasting or deformity.
168 The lumbar spine revealed fairly marked restriction of movement with flexion to 50 degrees, extension to 5 degrees, lateral flexion to the right to 15 degrees and to the left, 20 degrees, and rotation to both sides was to 15 degrees.
169 Following re-examination, Mr Mangos concluded the plaintiff was still suffering from a painful neck and back associated with a chronic recurring headache as a consequence of the motor accidents.
170 He thought as a consequence of those accidents, the plaintiff had suffered direct injury to her neck and back, and she was suffering from not only musculoligamentous strain but also a permanent aggravation of degenerative processes in those parts of the spine.
171 Mr Mangos concluded the plaintiff’s condition was certainly consistent with the two accidents. He thought her prognosis should be guarded, as she had not improved since his earlier examination. He considered her chronically incapacitated with regard to her neck and back injuries.
172 Mr Mangos thought the plaintiff needed to have constant, or at least access to, care with physiotherapy and hydrotherapy from time to time, as her condition would deteriorate if not monitored.
173 The plaintiff was examined by Dr Kornan, psychiatrist, on 31 March 2009.
174 On mental status examination, the plaintiff showed some problems with memory and concentration. There was a disorder of perception.
175 Dr Kornan commented that the plaintiff’s judgment was affected by her general presentation. There appeared to be subjective distress and heightened mood features. There was anxiety and depression, and her behaviour showed some avoidant features and difficulties coping.
176 Dr Kornan noted at times the plaintiff appeared somewhat agitated. There were no psychotic features, delusions or hallucinations.
177 Dr Kornan concluded the plaintiff’s psychiatric ill health was caused by the accident, and probably temporarily aggravated by the second car accident.
178 He diagnosed a Post-Traumatic Stress Disorder, major depression, and a specific anxiety phobia. He concluded in overall terms the plaintiff’s psychiatric state was noticeable and marked.
179 Dr Kornan considered the plaintiff’s main symptoms were problems with sleeping, recurrent nightmares, recurrent thoughts of the accident during the day, keeping in the left lane when driving, now feeling nervous as a passenger, feeling generally stressed, neck pain present every day, numbness in the hands, headaches, and pain in the leg and back which worried her.
180 The plaintiff felt sad, and at times had some suicidal thoughts, but her religious views prevented her from making a suicide attempt.
181 The plaintiff slowed down whenever she went past the accident scene. If she saw a smash on television she avoided watching it, and the trauma of the accident was still on her mind.
182 The plaintiff told Dr Kornan that she had put on weight since the accident and had developed diabetes.
183 Dr Kornan thought there had been a significant diminution in the quality of the plaintiff’s life, and there were some significantly raised tension levels with her on a daily basis.
184 Dr Kornan considered it necessary for the plaintiff to be sent to a psychologist and perhaps to try some simple psychotropic medication from her local doctor. He considered her prognosis was not good, and he could see her remaining at current levels long term, even if she had treatment.
The Transport Accident Commission Printout
185 The TAC printout set out numerous attendances with Dr Pragastis and also what appears to be Recreation Medical Practice.
186 The plaintiff had physiotherapy treatment with Mr Cvetkovic on 27 August 2003.
187 The plaintiff saw Mr Kokovas between 20 August 2005 and 24 January 2009 for about thirty physiotherapy visits.
188 The plaintiff attended Springvale Sports Physiotherapy between 17 February 2004 and 13 April 2005 for about fifty visits.
189 The plaintiff had about fifty acupuncture treatments between 19 January 2006 and 14 December 2006.
190 The total cost of medical expenses was $13,634.
The Defendant’s Medical Evidence
191 The plaintiff was seen by an ear, nose and throat (“ENT”) surgeon, Mr Buchanan, in March 1997 on referral from Dr O’Donnell, as she had intermittent tightness in her throat and an inability to breathe clearly when she was stressed.
192 Mr Buchanan reported that there had been a 10 kilogram increase in the plaintiff’s weight over the previous twelve months.
193 On examination, the plaintiff was an overweight, concerned woman. She had fullness in the anterior triangle of the neck, but no cervical lymphadenopathy. Mr Buchanan could not find an obvious cause for her presenting symptoms. He organised further radiological studies to exclude any ENT-related symptoms.
194 Professor O’Brien reviewed the plaintiff in the diabetes clinic at Southern Health on 4 August 2005. He noted the plaintiff had been recently commenced on diabetic medication which he considered was highly appropriate.
195 The plaintiff’s blood pressure on examination was a little elevated, and she was given medication in relation thereto. Professor O’Brien noted the plaintiff would be seeing the dietician and diabetes educator at the hospital, with review in six months.
196 Dr Kenna, consultant in musculoskeletal pain management, first examined the plaintiff on 24 October 2006.
197 The plaintiff’s presenting complaint was neck pain with associated headaches, i.e. a whiplash injury. Dr Kenna noted at that stage the plaintiff had undergone extensive physiotherapy.
198 The plaintiff also presented with x-rays taken on 5 December 2005 following the second accident which confirmed osteophytic lipping at C5-6 and C6-7. Otherwise the x-rays were predominantly normal.
199 At the time of the first examination, the plaintiff was self funding
physiotherapy. She told Dr Kenna that she had two or three months of
Chinese acupuncture which she also had paid for.
200 The plaintiff told Dr Kenna she felt her headaches had decreased and she was sleeping better. Nevertheless, she only got relief for one or two days. She felt her neck pain never totally went, but that the pain had eased off.
201 The plaintiff advised Dr Kenna that associated with the symptoms there was some degree of weight gain, headache, depression and stress, and she was diabetic with hypertension.
202 The plaintiff’s main complaint continued to be her accident-related injuries. She continued to experience intense neck pain with symptoms involving both shoulders in symmetrical patterns.
203 On examination of the cervical spine, the plaintiff had global restriction of about 20 to 30 per cent. There was generalised tenderness involving the apophyseal pillars, but not marked spasm. The plaintiff was able to comfortably move her arms up to and including shoulder height.
204 Overall, the plaintiff had reasonable function and mobility of the cervical spine. However, Dr Kenna noted there were inconsistencies on presentation and some lowering of the pain threshold.
205 Dr Kenna thought the plaintiff’s overall health was poor. She was overweight, diabetic and quite unfit. She had had two car accidents, and her clinical presentation was one more of chronic pain associated with soft tissue presentation.
206 Noting that the plaintiff had had a substantive amount of physiotherapy, Dr Kenna believed it difficult to justify a continuation of attending or ongoing funding for physiotherapy. He also thought, in view of her current clinical presentation, there had been very little benefit from that treatment.
207 Dr Kenna commented it was difficult to tease out the two injuries, but one gained the distinct impression that it was the first which was the major cause of the plaintiff’s symptoms.
208 Dr Kenna recommended acupuncture for a further two or three weeks until November 2006.
209 Dr Kenna concluded at the first examination that, certainly over a period of time, the plaintiff seemed to have developed a pain focus, and from that perspective he recommended discontinuation of acupuncture. However, he had no problem with approving continuing hydrotherapy should the plaintiff so desire, as that would emphasise a non-passive approach. In Dr Kenna’s view, there had been too much passive therapy, which he thought was counter productive.
210 On re-examination on 22 December 2008, the plaintiff confirmed she continued to experience back and neck symptoms which had remained substantially unchanged since the earlier examination.
211 Dr Kenna noted the plaintiff wanted a referral for further physiotherapy to Mr Kokovas.
212 Dr Kenna was provided with documentation from Monash Physiotherapy Clinic, which set out that the plaintiff had attended there over a substantial period of time, with high frequency and had undergone a number of treatments, with no measurable progressive improvement.
213 On clinical examination, Dr Kenna noted the plaintiff appeared even possibly bigger than on earlier examination. There was uniform restriction of about 25 per cent of the cervical spine, but no frank muscle spasm involving either apophyseal pillar, and the plaintiff was able to freely move both upper extremities. She complained, however, of pain on ballottement, and there was increased muscle tone suboccipitally.
214 Having discussed the extensive treatment the plaintiff had received, Dr Kenna commented that she had long since maximised such benefit. Further, it was his view, having seen the October 2008 CT scan, that her clinical presentation was compatible with underlying and quite advanced degenerative change of the cervical spine.
215 Dr Kenna confirmed his earlier view that ongoing treatment was not justified.
216 Dr Kenna’s diagnosis was essentially now one of degenerative change of the cervical spine, causing cervical symptomatology. In his view, essentially the motor vehicle accident-related exacerbation had fundamentally ceased. He noted there also may be some substantial psychosocial issues, noting the plaintiff’s husband was aged seventy and that the plaintiff had been in receipt of a Carer’s Pension for some time looking after him.
217 Dr Kenna concluded ongoing physiotherapy was inappropriate because of lack of benefit, and there was also a decreasing relationship to the accident, as degenerative change was clearly playing more of a symptomatic role with regard to the plaintiff’s current clinical presentation, rather than overlying soft tissue injuries suffered.
218 Having seen Mr Flanc’s report of 5 August 2010, Dr Kenna confirmed his earlier opinion.
219 Mr Shannon, orthopaedic surgeon, examined the plaintiff on 29 September 2010.
220 The plaintiff told him about both accidents, and said she did not think her neck was much different as a result of the second, but her back was sore, having not had any back pain as a result of the first accident.
221 On examination, the plaintiff complained of pain at the back of the neck extending to the interscapular region. She had intermittent numbness in her hands, particularly at night. Neck symptoms were intermittent. In the low back the plaintiff had pain in the centre, extending down the right leg, which had been present only since the second accident.
222 The plaintiff told Mr Shannon she could walk for 15 minutes before she got breathless. She could drive a car for half-an-hour, and she was able to do her housework.
223 On examination, the plaintiff was somewhat overweight. She had a moderate restriction of cervical movement on formal examination, although she had a substantially better range of movement to observation. There was no neurological abnormality in the upper limbs. Thoracolumbar movements were apparently limited by about two-thirds, and there was no neurological abnormality.
224 Mr Shannon noted no investigations were available.
225 As a result of the accident, Mr Shannon though that the plaintiff sustained a soft tissue to her cervical spine which was temporarily aggravated in the second accident.
226 Mr Shannon noted there was no evidence from the hospital notes, or indeed from the plaintiff’s history, that she hurt her back in the accident. In his view, the plaintiff had underlying cervical disc degeneration, although he did not have details of her x-rays.
227 Whilst the plaintiff had apparently quite significant restriction of movement of the cervical spine to observation, Mr Shannon thought that she in fact had quite a good range of movement, although he was unable to say that her movements were unrestricted. Whilst she had some restriction of back movement, he thought that it would be difficult to attribute it to either accident.
228 Mr Shannon provided a supplementary report in October 2009, having been asked to apportion the plaintiff’s level of impairment between the two accidents.
229 Mr Shannon thought it reasonable to assess the plaintiff’s neck impairment as a result of the first accident at 5 per cent with no contribution of significance from the second accident.
230 Mr Shannon did not consider the plaintiff had a permanent impairment of the low back as a result of either accident because, on the history he was given, it appeared the plaintiff’s back was symptomatic prior to the second accident and he noted that her Statement of Claim indicated that her back pain resolved over a few weeks after aggravation in the second accident.
231 Having been forwarded Mr Flanc’s 2010 report, Mr Shannon noted the history was similar, except Mr Flanc obtained information that the plaintiff had neck pain in 2001.
232 Mr Shannon would not disagree with Mr Flanc’s view that, on balance, the accident caused a significant aggravation of pre-existing disc degeneration and osteoarthritis of the cervical spine which became more symptomatic than before and persisted from that time onwards.
233 Mr Shannon thought Mr Flanc’s view that the second accident would have influenced the condition of the cervical spine to a much lesser extent was not inconsistent with his own opinion.
Investigations
234 An x-ray of the plaintiff’s cervical spine was conducted at the request of Dr Westh on 17 May 2003.
235 It showed widespread degenerative change with reduction in disc space height and endplate osteophyte at C5-6 and C6-7. Facets were in normal position. Dens was intact. There was no paravertebral soft tissue swelling. Minor cervicothoracic scoliosis concave to the right was noted.
236 An ultrasound of the plaintiff’s neck carried out at Dr Lewis’ request on 8 November 2004 showed a huge soft tissue swelling, which was a huge lipoma on the posterior aspect of the neck.
237 An x-ray of the lumbosacral spine was carried out on 27 April 2005 at Dr Edwards’ request. The x-ray report revealed spine alignment was anatomical. There was normal vertebral body and intervertebral disc height. There were anterior vertebral body osteophytes present at L1-2 to L4-5. Endplate reactive changes were also present at L2-3 and L3-4. There was no evidence of bony foraminal stenosis or marked facet arthropathy, and the sacroiliac joints were normal.
238 An x-ray of the cervical spine carried out at Dr Edwards’ request on 5 December 2005 showed osteophytic lipping at C5-6 and C6-7 associated with mild loss of disc space height at C6-7. Normal alignment was maintained, and there was no spinal canal stenosis detected.
239 A further x-ray of the cervical spine organised by Dr Ngeow on 14 October 2008 showed degenerative change at C5-6 and C6-7 disc levels with osteophytic lipping which contributed to neural exit foraminal narrowing at those levels. Within the confines of the plain radiographs and patient body habitus, no fracture was identified. Soft tissues that were visualised were normal, and alignment was preserved.
240 It was noted that a CT scan was requested, but the plaintiff was not able to lie flat without becoming significantly short of breath.
241 Nerve conduction studies were carried out at Dr O’Donnell’s request by Mr White, neurologist, on 13 June 2000. It was concluded there was a distal motor delay in both median nerves, with sensory block on the right and slowing on the left. The findings were consistent with carpal tunnel syndrome, worse on the right.
Clinical Notes
242 Dr Pragastis’ notes dated 20 March 2002 and 5 August 2002 set out that the plaintiff weighed 110 kilograms on those dates.
243 A Southern Health questionnaire completed by the plaintiff on 20 January 2005 prior to lipoma surgery set out that she had no problems with shopping, cleaning, cooking or personal hygiene tasks.
244 The note of a pre-operative examination on 8 February 2005, at which time the plaintiff weighed 112 kilograms, set out that the plaintiff noticed a lump at the back of her neck, gradually increasing in size, associated with tightness.
245 Southern Health nursing notes of March 2005 set out the plaintiff’s problems at home, with her husband having been diagnosed with prostate cancer. The plaintiff said that she was generally a physically active person premorbid, who coped well emotionally. The plaintiff said at that time she was quite motivated to get up and complete the household tasks.
246 In the referral letter for the lipoma surgery, the plaintiff’s treating general practitioner set out that the plaintiff was agitated and was having pain and discomfort from the lipoma.
247 Dr Cohen’s note of 7 August 2007 set out:
“Hands swollen and stiff in the morning and numb - only for past 12
months.”
248 On 10 September 2008, Dr Ngeow reported:
“Weight gain. Comfort eating. Feels sad.”
249 On 22 January 2009, Dr Ngeow noted:
“Feeling stressed. Comfort eating cakes. Has seen DM educator and
followed diet plan for a while.”
250 On 5 February 2009, Dr Ngeow reported:
“Still having large amounts for dinner and late at night.”
251 On 26 February 2009, Dr Ngeow reported:
“Cervicogenic headaches and neck pain. Stress worries about daughter
and grandson … has been comfort eating.”
252 Dr Ngeow reported on 12 March 2009 that the plaintiff weighed 118 kilograms. She suggested the plaintiff increase walking to 45 minutes and start swimming.
253 The Southern Health’ Multidisciplinary Team meeting notes of 10 November 2009 set out comorbidities were asthma, appendectomy, cholecystectomy and tubal ligation.
Overview
254 There is no dispute that the plaintiff suffered injury to her cervical spine in the accident on the said date.
255 Dr Kenna was alone in his view that the pre-existing degeneration of the cervical spine, as acknowledged by all practitioners, had overtaken the plaintiff’s spinal injuries. Mr Shannon, Mr Flanc, Mr Mangos and the plaintiff’s treating general practitioner all considered that this accident related condition has not resolved, and the aggravation continues.
256 Having received the medical evidence he requested, Mr Flanc thought that –
“On the balance of probabilities the accident caused a significant aggravation of pre-existing disc degeneration and osteoarthritis of the cervical spine.”
257 Whilst Mr Mangos considered injuries from both accidents contribute to the plaintiff’s present spinal condition, no other doctor shares his view. In any event, even if there are other conditions contributing to the consequences, as Ashley JA commented in Dressing v Porter [2006] VSCA 215 at paragraph 47:
“… If, by reason of pain and suffering consequences the compensable injury met the serious injury test, it was beside the point that some other condition might also have satisfied the test by reason of its pain and suffering consequences. … .”
258 The issue for consideration in this application is whether the plaintiff’s neck injury produces a long term serious impairment.
259 It was submitted by counsel for the defendant that the plaintiff may well have some ongoing difficulties with her neck but such difficulties do not meet the test of seriousness. It was submitted that she does not have a serious injury relating to her neck when all her other problems are considered that is covered by the indicia set out in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69.
Pre-Accident Condition
260 The plaintiff had some treatment in relation to her cervical spine in 2001, but as the defendant conceded t was not alleged that the plaintiff had a longstanding problem with her neck prior to the accident and it was accepted she was not having treatment at the time thereof
261 A lipoma was diagnosed in 2002 and surgically removed in 2005. There was no evidence of ongoing treatment in relation to that condition prior to the transport accident.
262 In any event, I accept the plaintiff’s evidence that because the lipoma is not particularly painful and her pain is higher up in her neck, she does not want further surgery. Whilst there might be some tightness associated with the lipoma, the plaintiff’s restricted neck movement has resulted from her accident injury not the lipoma, which I accept was really a subcutaneous problem, not a problem of the neck itself.
Unrelated Medical Issues
263 The plaintiff’s application is complicated by, firstly, the development of lower back problems in 2005 when she first reported sciatica; secondly, the involvement in the second accident in October 2005; and thirdly, the diagnosis of breast cancer in early 2010.
264 In terms of her lower back, the plaintiff first complained of right sciatic pain in 2005 and an x-ray was arranged in April of that year. She had no ongoing treatment to her back after that time.
265 I do not accept that the second accident plays any significant part in the plaintiff’s continuing spinal presentation. After that accident, she attended her general practitioner but she did not have to attend hospital. There is no evidence that there was a significant increase in her neck symptoms at that time, although I accept there was a temporary aggravation in relation thereto. There was some back pain suffered after the second accident, although it does not seem to have been a major problem since that time.
266 In any event, the plaintiff’s evidence is that her back gives her pain on and off causing her some restriction in mobility but it not as bad as her neck pain.
Consequences
267 I am required to identify the consequences of the plaintiff’s transport accident related neck injury and consider whether they are long term and serious.
268 I am assisted in this regard by the plaintiff’s affidavit sworn in May 2009, some ten months before she was diagnosed with breast cancer.
269 For reasons I will detail later in my judgment, I accept that as of that date, the accident related consequences were serious, and continue to be so at the date of the hearing, despite the plaintiff’s supervening breast cancer condition.
270 In her May 2009 affidavit, the plaintiff deposed that she had experienced constant neck pain and regular headaches since the accident, which affected her enjoyment of life in terms of her ability to do housework and gardening, drive, sleep and play with her grandchildren.
271 By that stage the plaintiff had also undergone extensive physiotherapy and acupuncture treatment and was using a heat pack on a regular basis. She had required ongoing painkilling medication, Panadeine Forte and Panamax, since the accident.
272 Whilst there is limited material from the plaintiff’s general practitioner, Dr Pragastis, he confirmed in April 2009, again, before the diagnosis of breast cancer, that the plaintiff had had ongoing problems with her neck pain, stiffness and headaches since the accident and required treatment and medication in relation thereto. He also noted that she had some lower spinal pain but the focus of his report was on the plaintiff’s upper spinal pain.
273 As counsel for the defendant submitted, this was not really a credit case. I accept that the plaintiff was a credible witness, although she had a tendency to attribute her problems, in particular weight gain, to the accident
274 I do not accept that the plaintiff weighed 80 kilograms before the accident as she deposed. Obviously the plaintiff was a woman with a weight problem prior to the accident, having weighed 110 kilograms in March and October 2002 prior to the accident.
275 Since the accident, the plaintiff’s weight may have increased to 120 kilograms but that increase was more, in my view, as a result of comfort eating as described by Dr Ngeow, rather than a result of inactivity caused by her neck condition.
276 I accept that the plaintiff has had continuing neck pain and headaches since the accident with an increase in some of her problems as a result of her breast cancer.
277 The plaintiff has had extensive physiotherapy and acupuncture treatment for her neck. She ceased physiotherapy treatment in early 2009 when the defendant stopped paying for it.
278 The plaintiff has required ongoing hydrotherapy for her neck pain the frequency of which has been affected to some extent due to the adverse effects of her cancer treatment.
279 The plaintiff has, since the date of the accident, required ongoing painkilling medication and while of recent times she has taken painkillers in relation to her breast cancer and subsequent surgery and treatment, she continues to take Panamax also for neck pain.
280 Whilst the plaintiff did not mention her neck complaint regularly when attending Dr Ngeow, she was attending Dr Pragastis at the same time in relation to her neck complaint.
281 Claims were made on the defendant in 2008 and early 2009 in relation to medical attendances on Dr Pragastis and also physiotherapy treatment received by the plaintiff in relation to her neck.
282 The defendant’s printout sets out visits to Dr Pragastis on 20 February, 9 April, 6 June, 7 July, 22 September, 10 and 17 December 2008, 4 February, 4 March and 10 March 2009, and two visits in May 2009. The plaintiff was receiving physiotherapy on a monthly basis funded by the defendant from July 2008 until January 2009.
283 Counsel for the defendant submitted that it was significant the plaintiff could seek work after the accident and was able to drive from Springvale to Armadale to attend work. It was submitted that the plaintiff required a reasonable range of movement to do the pinning whilst fitting clients for their wedding dresses.
284 However, I do not consider the ability to do this job indicates the plaintiff does not have significant neck pain or that there had been an improvement or diminution in the plaintiff’s level of pain. Much to the plaintiff’s credit, she obtained a part time job for a few hours a week. In that role she simply gave advice and assisted with fittings. She was unable to use her training and experience to do any actual sewing because of her neck pain.
285 The plaintiff has similarly been restricted in her recreational sewing and embroidery activities which she enjoyed before the accident.
286 Further, the plaintiff is unable to look after her younger grandchildren and play with them to the same extent she enjoyed with her eldest grandchild before she suffered injury in the accident.
287 Having loved gardening and taken pride in her own garden before the accident, the plaintiff is prevented by her neck injury from engaging in this activity and it is now left to her husband.
288 The plaintiff has difficulty performing heavy traditional Greek cooking. She also requires assistance in the heavier household tasks from her husband and family. These matters of particular concern to the plaintiff as she was a very houseproud woman prior to the accident.
289 The plaintiff has experienced problems sleeping since the accident, being woken virtually every night because of neck pain. As Maxwell P set out in Haden Engineering Pty Ltd v McKinnon (supra), it is a matter of great significance for a person to be denied, seemingly for the rest of their life, the ability to enjoy uninterrupted sleep.
290 Whilst the plaintiff is able to drive locally, she has difficulty moving her neck to change lanes or to park her car.
291 In addition to these consequences, I am also permitted to take into account the plaintiff’s expected mental response to that her physical injury
292 As a result of her neck pain, the plaintiff has suffered some anxiety, nervousness, depression and frustration, mental consequences which I am permitted to take into account when considering her impairment under subsection (a): per Winneke P in Richards v Wylie (supra).
293 In my view, the physical consequences of the plaintiff’s neck injury, together with these mental consequences when judged by comparison with other cases in the range of possible impairments can be described as at least very considerable and more than significant or marked.
294 Whilst there has been an increase in her symptoms particularly in relation to right upper limb pain due to her cancer, I accept that the pain and suffering consequences of the accident injury are serious.
295 Having made this finding, I am not required to decide whether the decision of Forrest J in Acir v Frosster Pty Ltd [2009] VSC 454, dealing with a serious injury application under the Accident Compensation Act to which I was referred to by the parties, applies to an application under the Transport Accident Act.
296 I am satisfied that as it is now over seven years since the accident and there has been no improvement in the plaintiff’s condition, her condition is long term.
297 Accordingly, I grant the plaintiff leave to bring proceedings for damages in relation to the accident.
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