Hazim v Transport Accident Commission
[2022] VCC 954
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-02937
| JINAN HAZIM | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE ENGLISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 and 10 May 2022 | |
DATE OF JUDGMENT: | 15 July 2022 | |
CASE MAY BE CITED AS: | Hazim v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 954 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Damages – serious injury – serious long-term impairment or loss of a body function – function of the spine – pain and suffering and loss of earning capacity – credit
Legislation Cited: Transport Accident Act 1986, s93(4)(d)
Cases Cited: Humphries and Anor v Poljak [1992] 2 VR 129; Johns v Oaktech Pty Ltd [2020] VSCA 10; Church v Echuca Regional Health (2008) 20 VR 566; Mobilio v Balliotis [1998] 3 VR 833; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Abbas v Transport Accident Commission [2015] VSCA 217; Davidson v Transport Accident Commission [2015] VSCA 12; State of Victoria v Glover [1998] VSCA 93; Hunter v Transport Accident Commission and Another [2005] VSCA 1; Richards v Wylie (2000) 1 VR 79
Judgment: Leave granted to the plaintiff to bring common law proceedings for damages in relation to the transport accident suffered by her on 11 April 2016.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram QC with Mr J J Fitzpatrick | Slater and Gordon Lawyers |
| For the Defendant | Mr W R Middleton QC with Mr S Pinkstone | Solicitor to the Transport Accident Commission |
HER HONOUR:
Introduction
1This is an application for leave to bring proceedings for the recovery of damages pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) by the plaintiff, Jinan Hazim, in respect of injuries to the spine sustained in a transport accident on 11 April 2016.
2The plaintiff alleges she has a “serious injury” as defined by s93(17) of the Act; namely, a serious long-term impairment or loss of a body function, being the function of the spine.
3The plaintiff claims for pain and suffering and for loss of earning capacity.
4The onus of proof is on the plaintiff. In Humphries and Anor v Poljak,[1] Crockett and Southwell JJ stated, in respect of the definition of “serious injury” in paragraph (a):
“To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/ or pain and suffering. In forming a judgement whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments and losses, be fairly described as at least ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”
[1][1992] 2 VR 129 at 140
5The application proceeded in the usual manner. The plaintiff gave evidence and was cross-examined. She provided four affidavits in support of her application, sworn 7 November 2018, 10 October 2019, 25 February 2020 and 7 April 2022.
6By way of background, the plaintiff is thirty-five years old. On 11 April 2016, the plaintiff was at the Roxburgh Park Shopping Centre near the Aldi store, getting a trolley out of the trolley bay. With her trolley, she walked through the car park beside the trolley bay on her way to the pedestrian pathway. She heard the revs of a car and, without warning, was struck on the left side of her body at thigh height by a car, which caused her to fall back heavily onto the carpark surface. In addition to herself, the same car also hit another pedestrian.
7An ambulance was called for the other pedestrian, who was taken to hospital. The plaintiff was able to stand up and was not taken to hospital.
8On the same day, owing to significant pain in the right side of her body, as well as her buttocks and thighs, the plaintiff attended her general practitioner, Dr Wirasat Baig, at Hillcrest Health Centre in Broadmeadows. She was treated conservatively, and radiology tests were ordered.
9On 10 May 2016, an x-ray of her lumbosacral spine disclosed a reduced L5-S1 disc space with possible facet injury at L4-5 level.
10On 13 May 2016, a CT scan disclosed a transitional vertebra at L5, mild to moderate degeneration of the L4-5 facet joints and some mild degeneration in the left L5-S1 facet joint.
Issues
11In this application, under s93(4)(d) of the Act, I am required to determine whether the pain and suffering consequences, and/or the pecuniary disadvantage consequences satisfy the test stated in Humphries and Anor v Poljak.[2]
[2]Supra
12It is not in issue the plaintiff sustained a transport accident-related injury to her spine.
13The issue is assessing the impairment consequences of that injury and whether it constituted a “serious injury”.
14The plaintiff argues pain and suffering as a result of her organic injury to the lumbar spine which is now chronic for which she takes prescribed medication and has hands-on treatment, and also pecuniary consequences, as the plaintiff is not able to work as a teacher’s aide and has lost her designated career.
15It is also claimed the plaintiff suffered a psychological reaction to the injury to her spine. In determining the severity of injury to the spine, it is permissible to consider the psychological consequences of the injury.
16Counsel for the plaintiff put the case as an “accumulation of different factors, the pain and suffering, the inability to return to the perceived employment as a teacher’s aid[e] because of the physical demands of that position, and also the secondary psychological issues which are outlined in the report of Dr Weissman, …”.[3]
[3] Transcript (“T”) 7
17Counsel for the defendant argued the plaintiff’s injury does not meet the serious injury threshold, and that its “whole case” was an attack on the plaintiff’s credit.[4]
[4] T87
18With reference to the Court of Appeal in Johns v Oaktech Pty Ltd:[5]
“As has been said many times before, in cases of the present kind the credit of the applicant will often be critically important.”
[5] [2020] VSCA 10 at paragraph [76]
The Plaintiff
Background
19The plaintiff finished her secondary schooling and after leaving school, she worked for twelve months as a medical receptionist and then worked for three years for VBS Australia as a receptionist.
20She ceased paid employment when she married and had three children: sons, who are now aged thirteen, eleven and eight years old.
21In 2019, she undertook a course with ACE training to qualify as a teacher’s aide, receiving her certificate in 2021. The course included a placement component whereby the plaintiff had to complete 120 hours of practical training.
Evidence of the consequences of injury
22In her first affidavit sworn 7 November 2018, the plaintiff referred to being continually “troubled by … significant levels of lower back pain”. As she has three young, active boys, she finds it difficult to look after them and as she has to look after them and run a household on her own. Her sleep is disrupted, and she is taking Endep to help her sleep. Her day-to-day routine is significantly disrupted. For example she describes doing her cleaning duties “bit by bit”. She can no longer kick a soccer ball with her boys on an outing, nor spend any longer than half-an-hour at the zoo because of spinal pain. In evidence, she stated she now has a zoo membership “so my boys know when we go to the zoo we don’t finish it in that day. We finish off sections. That’s why I am a member at the zoo.”[6] She states her sitting and standing tolerances are limited, affecting her ability to drive.
[6] T25-26
23The plaintiff also stated she had symptoms of psychiatric trauma. She suffers flashbacks and gets nervous walking through parking lots. She is a nervous traveller in cars.
24In terms of treatment, she was seeing a physiotherapist twice a week and was prescribed Nurofen Plus and took over-the-counter pain relief.
25In her second affidavit sworn 10 October 2019, the plaintiff stated she struggles with constant variable levels of spinal pain, which is getting slightly worse with time.
26She had increased her medication and is still using Nurofen Plus. Her main medication is now Maxigesic (which has less side effects) and she is still taking Endep at night to sleep.
27She repeated the pain and suffering consequences described in her first affidavit and added that studying for a teacher’s aide certificate was placing additional strain on her spine.
28In her third affidavit sworn 25 February 2022, the plaintiff noted her treatment had been interrupted by the COVID pandemic. On 26 May 2021, on the advice of pain specialist, Dr Woodgate, she had a sacroiliac joint injection which was of benefit, however, the pain gradually re-emerged in late 2021. On 9 February 2022, Dr Woodgate recommended a further sacroiliac joint injection.
29The plaintiff was taking prescribed Allegron, an anti-depressant, however used at a low level for its pain relieving qualities, as well as Maxigesic and Nurofen Plus to “try and quell spikes of pain”. She has hydrotherapy and physiotherapy weekly and sees her general practitioner on an ‘as needs’ basis.
30The plaintiff stated activities such as walking tend to cause her to experience electric shock-type pain which can extend down her legs, particularly to the left knee.
31The plaintiff struggles with constant variable levels of spinal pain, her sleep is disturbed by the pain and her day-to-day activities are significantly disrupted.
32She cleans the house on a piecemeal basis and her sons assist with household tasks. She also has psychological trauma from flashbacks and is nervous in car parks and as a car traveller.
33In her fourth affidavit sworn 7 April 2022, the plaintiff was waiting on a second sacroiliac joint injection and her treatment continued on the same terms.
34She stated if she is at the movies she has to get up to move around and release tension in her spine. Standing for any length of time also causes pain.
35In cross-examination, the plaintiff estimated she could sit down without discomfort for “maybe half an hour” and she could stand, “without moving around, about 10-15 minutes max”.[7]She estimated she could drive for about 45 minutes to an hour and after that would get chronic pain in both her back and hip, both sides but more on the left.[8]
[7] T14
[8] T15
36In evidence, the plaintiff believed whilst she was improving, she also felt the pain was of an ongoing nature.
Evidence about pre-transport accident activities
37Before the transport accident the plaintiff stated she used to be very active in her children’s activities. Stating “I used to love a lot of outdoor activities with my children, wherein now I can’t as much”.[9]
[9] T30
38Whilst she stated the injury has affected her quality of living, she did not want it affecting the quality of living for her children “because of my pain and suffering”.[10]
[10] T31
39The plaintiff stated she tries to do things with her children as, “I don’t want my kids’ quality of life affecting them because of my injuries,”[11] although she conceded as her children grew older the physical intensity of their activities did lessen. She still has a reduced capacity regarding activities and has difficulty driving and walking long distances. She conceded whilst her domain pre and post collision concerned domestic activities and looking after her children, “how I do it now compared to how I did it previously to the accident is totally different”.[12] For example something that may have taken an hour to clean now takes five hours.
[11] T33
[12] T36
40Whilst she never had her own hobbies, and her focus pre accident was always her children, she stated “But I have boys. They are very active boys. I used to kick the ball with them and everything. Now I can’t do that. So I have them in actual sporting like places.”[13] It appears whilst the focus of her life remains the same, the plaintiff’s level of activity and engagement and enjoyment of life has reduced.
[13] T37
Medical evidence
41Medical evidence from the plaintiff’s general practitioners, Dr Baig, Dr Nashrin Nazim and Dr Jennifah Jantan was consistent with her reportage of lower back pain following the transport accident on 11 April 2016.
42The report of her physiotherapist, Ms Shuchi Gupta, dated 30 August 2018 noted the CT scan revealed an L4-5 bulge and facet degeneration at L4-5 and L5-S1. Physiotherapy and hydrotherapy were recommended. The report notes the plaintiff complained of constant deep-seated low back pain varying from 6-9/10.[14] Ms Gupta’s second report dated 25 October 2019 noted the pain now stood at 5‑7/10 with a constant dull ache of 5/10, thus her pain levels had slightly improved.
[14] Plaintiff’s Amended Court Book (“PCB”) 61
43The osteopath, Dr Joyce Caravas, in her report dated 28 October 2019, noted the plaintiff was in a “chronic pain state”[15] and remained so, and noted in her second report dated 4 March 2021, it was likely to continue.
[15] PCB 68
44The Dorset Pain Management Unit Assessment Report dated 17 March 2021 noted the plaintiff had a severe level of catastrophising. The defendant’s counsel submitted this meant she embellished. The report explains the “PCS”, the Pain Catastrophising Scale, “is a measure of Pain Catastrophizing beliefs (ie, the degree of feeling overwhelmed and fearful regarding one’s pain and associated disability). High scores, particularly on the total scale, suggest that clients are more likely to express adjustment difficulties associated with their pain condition.”[16] I am not clear if this definition aligns with definition put by defendant’s counsel.
[16] PCB 77
45Dr Christopher Woodgate, pain consultant, first saw the plaintiff on 22 December 2020 and he recommended the sacroiliac joint injection for the plaintiff which had good effect. He noted the plaintiff had low back pain with likely complicated peripheral and central drivers with an element of sacroiliitis on the right.[17] He felt it likely the plaintiff will “have ongoing difficulties and restrictions associated with her pain. Some of these deficits are likely to be lifelong and some of them will gradually improve over the coming months.”[18]
[17] PCB 90
[18] PCB 90
Plaintiff’s medico-legal reports
Dr David Weissman, psychiatrist
46In his report dated 16 March 2022, Dr Weissman diagnosed the plaintiff with mild chronic Post Traumatic Stress and Anxiety Syndrome and a mild Chronic Adjustment Disorder (with anxiety, depression and frustration), and her prognosis for the future was quite good. In his report dated “19 April 2021” [sic 19 April 2022], he confirms his diagnosis and prognosis of his earlier report and advised the surveillance material he was shown was not inconsistent with the history provided by the plaintiff.
Dr Peter Blombery, consultant physician
47In his report dated 19 April 2019, Dr Blombery diagnosed degenerative changes in the lumbar spine and, in his opinion, the injury resulted in previously asymptomatic degenerative changes being rendered symptomatic. Her condition had stabilised but was unlikely to change in the foreseeable future.[19]
[19] PCB 84
48In his report dated 28 February 2022, he noted she rated her pain as 7/10 and that she had no exaggerated pain behaviour.[20] In his opinion, the degenerative changes of the lumbar spine were aggravated by the injury. He noted her symptoms were very similar to three years ago and that her prognosis for recovery is poor.
[20] PCB 134
49His final report dated 7 May 2022, after viewing the surveillance footage, observed no difference between what the plaintiff described to him and what he observed, and were consistent with her injury described.
Professor Richard Bittar, neurosurgeon
50In his report dated 28 February 2022, Professor Bittar diagnosed the plaintiff with aggravation of lumbar spondylosis and left sacroiliac joint pain. In his opinion, the transport accident was the cause of her lumbar spine condition.[21] He recommended medial branch blocks targeting the L4-5 facet joints. He reported her condition had substantially stabilised.
Dr Khayyam Altaf, occupational physician[22]
[21] PCB 161
[22] His opinion reading the plaintiff’s work capacity is considered further on.
51In his report dated 26 April 2022, Dr Altaf noted the surveillance footage was in keeping with what he had been told by the plaintiff in assessment and his opinion was unchanged.
Defendant’s medico-legal reports
Mr Gary Speck, orthopaedic surgeon
52In his report dated 15 November 2019, Mr Speck diagnosed soft tissue injury to the lower back in the presence of facet joint degeneration with symptoms consistent with aggravation of facet joint arthritis. He suggested a pain management program and use of current medications (which at the time were Endep, Maxigesic and Nurofen Plus).
53In his report dated 21 March 2022, he diagnosed back pain consistent with the lower back facet joint aggravation “but her catastrophising identified in the Dorset Rehabilitation assessment and avoidance behaviour magnifies the disability”.[23] He considered her condition is stable. In his view, she did have capacity to work as a teacher’s aide, however stated ‘The control of pain to allow her to proceed with that would be appropriate and injury to the back condition is not likely to occur.’[24] He was also of the view she could also work as a receptionist and change her posture when necessary.
[23] Defendant’s Court Book (“DCB”) 35
[24] DCB 35
Dr David Elder, occupational and environmental medicine consultant
54In his report dated 15 February 2022, Dr Elder accepted the plaintiff could have suffered a pelvic/sacroiliac joint strain in this fall[25] and accepted she could have suffered a soft tissue injury/strain of the sacroiliac joints in this fall. He noted there were no inconsistencies in her presentation at all. He noted she currently described the pain as 5/10. Whilst he accepted she had restricted capacity for employment, in his view, she was capable of part-time employment of about 20 hours a week as a teacher’s aide.[26]
[25] DCB 44
[26] DCB 45
Pecuniary disadvantage
55The plaintiff explained the role of teacher’s aide as –
“… assisting children with special needs in the classroom, anyone that needs help. … So there will be a lot of lifting … kids that will get into physical altercations … you need to support. There will be a lot of uncomfortable seatings … you need to get down to their level … when you talk to them and make them feel comfortable.”[27]
[27] T59
56For example children with ADHD, she explained, can be hyperactive. She might need to calm that child down or deal with an altercation involving a child who does not want to listen to a teacher. “That’s where the role of a teacher’s aid[e] needs to come in and try and calm that child down.”[28] Or at times run after a child who is running off.
[28] T60
57She had to lift children as some have special needs: “… there are times where you are put in a position where you would need to use your body to help children.”[29]
[29] T13
58The plaintiff stated that although she would love to be a teacher’s aide, the advice was it is not recommended for her: “My intention was I would have loved to do it, but now at the moment my health is more important.”[30]
[30] T13
59When being a teacher’s aide or receptionist work was suggested to the plaintiff, she indicated she wanted to work, but “everything I look into doing is very difficult”. She was unable to sit or stand for long hours.
60The plaintiff described herself as invested with her older two boys’ schooling and volunteering at their school a lot. “So, I always thought once my youngest hit kinder I was just straight into the workforce. … But that never happened because of my injuries.”[31]
[31] T60
61Although she obtained the qualification in 2021, she decided this position is not for me, “… I’ve always wanted to work with children, and I just realised that I can’t, physically cannot do that”.[32]
[32] T60
62Dr Woodgate stated:
“Ms Hazim has some capacity to work, provided that it does not involve excessive bending or squatting. She should be limited to pushing or lifting to no more than 5kg. She should be provided with regular breaks every 30 minutes. It is likely she will not be able to return to work full time and will likely be restricted to around 25 hours of work per week.
While she may experience some improvement in this as she completes her rehabilitation program, I think it is unlikely that she will have a meaningful improvement going forward beyond what she has already achieved.”[33]
[33] PCB 90
63In his report dated 28 February 2022, the plaintiff’s expert, Dr Khayyam Altaf, occupational physician, was of the opinion a teacher’s aide position would not be suitable for the plaintiff given the physical requirements. Further, the plaintiff could not work in a sedentary role full time. He was of the view, given the length of time and severity of injury, this capacity is likely to be the case until retirement age.
64As previously noted, the defendant’s expert, Mr Gary Speck, in his report dated 21 March 2022, opined:
“Mrs Hazim has capacity for work as a teacher’s aide for which she undertook training, including practical work. The control of pain to allow her to proceed with that would be appropriate and injury to the back condition is not likely to occur.
She also has experience as a receptionist and would be able to undertake that work where she is able to change her posture as necessary and move around.”[34]
[34] DCB 35
65As previously noted, the defendant’s expert, Dr David Elder, in his report dated 15 February 2022, was of the view whilst the plaintiff has a restricted capacity for employment, she has finished the 120 hours of placement, therefore “she is [at] least capable of part-time employment working up to about 20 hours per week as a teacher’s aid[e]”.[35]
[35] DCB 45
The Plaintiff’s credit
66As the plaintiff’s credit was the defendant’s “whole case,” not surprisingly it was in issue and tested by the defendant, and also reflected by extensive covert video surveillance of the plaintiff over several years.
67The defendant’s counsel described the plaintiff’s evidence, taking into account her affidavits, her reportage to doctors, what was seen in the covert footage and her evidence to the Court as “inconsistent”[36] and in “discord”.[37]
[36] T73
[37] T74
68With respect to the transport accident on 11 April 2016, the plaintiff agreed she was not in pain in the immediate aftermath and drove her car to collect her children. She said it was after picking them up and she went home that “the pain started coming through”.
69On 11 April 2016, the same day as the accident, the plaintiff attended her general practitioner, Dr Baig. He has recorded her being hit on the right-hand side, which the plaintiff states was incorrect.
70Her first affidavit refers to being struck on “the left side of my body” and “When I saw Dr Baig my main concern was of significant pain to the right side of my body onto which I had been struck by the vehicle”.[38] The plaintiff explained the inconsistency in her affidavit, stating she was struck by the car on the left, but fell on her buttocks, landing on her right side, because she was struck on the left.
[38] PCB 11-12
71The plaintiff was cross examined about telling Dr Weisman, psychiatrist, she drove a Kia when in fact she usually drove a Mercedes. She explained the Mercedes, which is owned by her ex-husband, was damaged and she was driving the Kia, a rental car at the time.[39]
[39] T39
72Overall, I found the plaintiff to be a credible witness. She was reasonably straightforward, and able to explain some inconsistencies in materials. I did not find her to exaggerate or embellish her evidence. I also found the histories in the medical material to be largely consistent with plaintiff’s affidavits and evidence.
73It was put the covert footage (which I consider in more detail later) shows her actions as inconsistent with what she had told doctors. As an example, there is footage of her putting items in her boot, which was used as evidence, at odds with what she had said to Dr Weissman and Mr Speck about her son having to help her at the supermarket with the shopping. In my view, one example does not suffice to impugn her credit. Of the footage played to the Court, there was nothing shown that was inconsistent with either her reportage to doctors or her evidence to the Court about her range of activities. The footage showed examples of daily living, at a park, filling the car with petrol, and a day at the beach, all of which appeared to be low physical exertion activities. Dr Weissman, Dr Blomberg and Dr Altaf were shown the footage and did not alter their opinion or form the view the plaintiff’s reportage was at odds with the footage. The plaintiff also conceded that on occasions, she would do things herself rather than burden her young boys with more adult responsibilities, as seen in the footage of her packing the car in the evening following the day at the beach.
74With respect to her “catastrophising” or embellishing, the plaintiff’s evidence was that her pain was present all of the time but varied in intensity. She conceded to medical practitioners the variable, albeit constant, nature of her pain. As a result, various reports note her level of pain fluctuates and some reports, such as from her physiotherapist, stated at that point, her pain level had improved. In my view this indicates a level of nuance in her evidence which is inconsistent with embellishing.
75I also note, as a single mother to three sons aged eight, eleven and thirteen, the reality of the plaintiff’s situation is she has no choice but to do things for their benefit regardless, at times, of the level of pain she may be experiencing.
Video surveillance
76The defendant took covert surveillance of the plaintiff for 110 hours and 50 minutes between August 2019 and March 2022. Of that surveillance of the plaintiff, a video of two hours and 43 minutes was produced, parts of which were played in court.
77Footage of covert surveillance of the plaintiff taken on 22 January 2022 was played in court and the plaintiff was cross-examined. The footage covered the plaintiff’s trip to Safety Beach with her children during summer. The prequel to her arrival at the beach showed the plaintiff putting petrol in her car and buying a bag of ice. She was asked why she, rather than her son put petrol in the car, and she explained that at thirteen years old, her son was legally underage. Arriving at the beach at about 2.00pm, she stayed at there for about six hours, explaining that it was the first beach experience for her boys after the COVID lockdown.
78The end of the video showed the plaintiff pulling a collapsible wagon/trolley back to her car and then loading the contents, such as towels and camping chairs, into her boot. The plaintiff described this as an “empty load” and that the footage did not show her son “dragging it to where we were sitting”.[40] The plaintiff stated, “I did sacrifice a lot of my pain for that day, for a fun day that my kids can have”.[41]
[40] T46
[41] T47
79The defendant also played surveillance footage from 27 January 2022 showing the plaintiff unloading her car. Further footage from 19 February 2022 showed the plaintiff at the supermarket car park with her three sons. She was questioned why she said to doctors that her son had to assist her with the shopping and the footage did not show this, for example footage showed her carrying her own bag. She stated “… my kids help me as much as they can. I don’t like to rely on a 13-year-old or an 11-year-old, and that bag’s empty.”[42]
[42] T52
80In my view, the surveillance in this case echoes Ashley JA’s observations in Church v Echuca Regional Health[43] that the videos show the plaintiff “engaging in mundane, physically undemanding tasks for short periods”. I note the small amount of footage produced to the court from over 100 hours taken during 2019 and 2022. The videos also reflect the context of the plaintiff’s life circumstances, as single mother to three active young boys. I accept her evidence that she did things in that role and context even though she experienced pain, or she paid the price with a sequalae of days of intensified pain, reflected in her comment, “I did sacrifice a lot of my pain for that day”. I am not of the view the video footage impugned her credit regarding her evidence concerning the consequences of the injury.
[43] (2008) 20 VR 566 at paragraph [74]
Serious injury
81The plaintiff has sustained an injury as a result of the transport accident on 11 April 2016. This is not in dispute.
82Whether the plaintiff’s injury is “serious” depends upon the consequences of the injury in respect of pain and suffering and or pecuniary disadvantage and whether the consequences are at least “very considerable” and certainly more than “significant” or “marked”.
83The consequences of the injury must be serious to the particular applicant, and the question to be asked is: “can the injury, 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’?”[44]
[44]See Humphries and Anor v Poljak (supra) at paragraph 40. Also see Mobilio v Balliotis [1998] 3 VR 833
84The plaintiff’s injury is supported by the medical evidence. Her treatments are variously, physiotherapy, osteopathy, heat packs, and through her general practitioner, medication, including prescribed Maxigesic, Endep and Nurofen Plus. She is now prescribed Allegron as well as Maxigesic and Nurofen Plus and has alternate weeks of physiotherapy and hydrotherapy. In May 2021, she had a sacroiliac joint injection with good effect, however, the pain re-emerged in late 2021. Another injection has been recommended.
85The consequences of the injury are such that the plaintiff is in constant pain, although the level of pain is variable. She finds it difficult to look after her three sons and run the family household. Her sleep is disrupted, for which she is prescribed Endep. She can no longer kick a soccer ball with her boys, outings are limited, and she can only sit or stand for short periods, and this also affects the length of time she can drive. House chores take much longer than previously, and her day-to-day routine is disrupted.
86It is also a relevant consideration to look at the likely period these consequences will be experienced, and I note the plaintiff is still a relatively young woman.[45]
[45] See Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 at paragraph [43]
87She also suffers from a mild chronic Post Traumatic Stress and Anxiety Syndrome and a mild Chronic Adjustment Disorder (with anxiety, depression and frustration), and she describes getting flashbacks and being nervous in car parks and when travelling.
88In assessing whether the impairment consequences of an injury are “serious”, the defendant referred me to Dwyer v Calco Timbers Pty Ltd (No 2):[46]
“… It is true impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”
[46][2008] VSCA 260 at paragraph [27]
89In this case, it was put by the defendant’s counsel the plaintiff is still able to engage in daily living, personal hygiene, domestic chores, socialising, cooking, cleaning and travel.
90I am of the view, in this case, what is retained is less of an indicator, as the plaintiff as a sole parent, is responsible for three sons and has to continue the majority of those activities. However, her evidence is that since the accident, her ability to perform those activities are affected by her pain and mobility issues. This means she does less, in constant pain, with less enjoyment of life and her sons. As a mother who has devoted her time and energy to her domestic sphere, and was previously active with her children, this is not an insignificant consequence for her.
91With respect to pecuniary disadvantage, the defendant argued that the plaintiff had no motivation to go back to paid employment as she lives in a house and drives a Mercedes, both provided by her ex-husband. Further, as she was not working in paid employment at the time of the transport accident, the plaintiff has no direct pecuniary loss associated with her injury in the accident.
92Against this, the plaintiff was in the paid workforce for four years following school and stopped working in the paid workforce when she married and had children. She expressed her desire to be a teacher’s aide and has completed the requisite qualification. She gave evidence of a history of volunteering at her sons’ school and doing the teacher’s aide course as soon as her youngest son was old enough to attend kindergarten. In my view, her desire to pursue this employment is not merely speculative.[47] She is a relatively young woman and will be only forty-five when her youngest child is eighteen; therefore, she has a significant potential working life ahead of her.
[47] Davidson v Transport Accident Commission [2015] VSCA 12
93I note the opinions of Mr Speck and Dr Elder, however, I prefer and accept the plaintiff’s direct evidence regarding the difficulties she faced with the physical requirements as a teacher’s aide when she was on placement. Dr Elder’s opinion that she is capable of doing work as a teacher’s aide is based on the fact the plaintiff completed the 120-hour placement. Mr Speck states she has capacity for work as a teacher’s aide and that “the control of pain to allow her to proceed with that would be appropriate”.[48] There is no evidence as to how the pain is to be controlled “to allow her to proceed”. The plaintiff’s description of the duties involved with being a teacher’s aide and the difficulties she had in performing them were not disputed in cross-examination. I accept her evidence she is not able to pursue this career because the physical requirements are too onerous.
[48] DCB 35
94I refer to Abbas v Transport Accident Commission,[49] where the Court accepted –
“… The fact that there may be no actual pecuniary loss to the time of the application does not mean that a loss that may occur in the future, by reason of the relevant injury limiting an applicant’s capability for certain jobs, should not be properly considered as a relevant pecuniary disadvantage. … .”
[49][2015] VSCA 217 at paragraph [27]
95Further, I refer to the case of State of Victoria v Glover,[50] where the Court accepted the injuries had caused a lack of flexibility in the workforce in relation to future employment, noting:
“… The impairment may be ‘serious’ although it does not at present result in any substantial loss of income.”[51]
[50][1998] VSCA 93
[51] (Ibid) at paragraph [30]
96Both these cases are applicable here. The plaintiff’s injury has caused a significant consequence for her, being disabled from her preferred career, and I find this is a very significant pecuniary disadvantage.[52]
[52] Hunter v Transport Accident Commission and Another [2005] VSCA 1
97I accept the plaintiff’s evidence, and psychiatrist, Dr Weissman’s opinion, that she also has a “mild to moderate but closer to mild group of accident-related psychiatric conditions and mental injuries”. The plaintiff takes an anti-depressant at a level for sleep and pain at night. She also has flashbacks, is wary in car parks and is a nervous traveller. I accept Richards v Wylie,[53] and find the predominant cause of the plaintiff’s impairment is organic and as a measure of the seriousness of the organic impairment, it is permissible to take into account the psychological response.
[53](2000) 1 VR 79
98In conclusion, I take into account the pain and suffering consequences for the plaintiff, and I note she also has a mild psychiatric consequence. The pain and suffering consequences are chronic, and the evidence supports they are likely to remain so at least for the foreseeable future. When combined with her pecuniary disadvantage, which I have detailed above, which constitutes the loss of her preferred career, I am satisfied the combined consequences of the injury are serious to the applicant when judged by comparison with other cases in the range of possible impairments and losses and are at least “very considerable” and certainly more than “significant” or “marked”.
99Leave is granted to the plaintiff to commence common law proceedings for injuries suffered in the transport accident on 11 April 2016.
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