Hoehmann v Transport Accident Commission
[2016] VCC 1548
•16 June 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-15-03236
| FIONA HOEHMANN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE WISCHUSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 June 2016 | |
DATE OF JUDGMENT: | 16 June 2016 | |
CASE MAY BE CITED AS: | Hoehmann v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1548 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – injury to the thoracic spine – pain and suffering damages
Legislation Cited: Transport Accident Act 1986, s93(17)
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J McCulloch | Slater & Gordon Limited |
| For the Defendant | Mr A T Coote | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 In this proceeding, the plaintiff seeks leave to bring a proceeding for the recovery of damages in respect of injuries sustained in a transport accident on 24 September 2012. The application was made pursuant to s93 of the Transport Accident Act 1986 (“the Act”).
2 Discussion with counsel at the outset revealed that the plaintiff relied only upon injury to the plaintiff’s thoracic spine where a fracture of T4, and perhaps also of T2 and T3, was identified on radiology soon after the accident. So it was the plaintiff’s case that the thoracic spine injury had pain and suffering consequences which, for this plaintiff, satisfied the “very considerable” test. As to the test, the legal principles were not in dispute.[1]
[1]See Humphries & Anor v Poljak [1992] 2 VR 129 and other authorities
3 Counsel for the defendant explained that the application for leave was resisted on the basis that the consequences of the accepted injury to the thoracic spine (and in the end it did not much matter whether one, two or three thoracic vertebrae were fractured), were not “more than significant or marked” and certainly not “very considerable”.
The evidence
4 Only the plaintiff gave evidence before me in which she adopted as true and correct the three affidavits she had sworn. There was an affidavit from a friend of hers, and each of the parties tendered medical and radiological reports and the TAC Claim Form. Brief surveillance video was shown.
Background
5 The plaintiff is now fifty years of age, educated to university level. She has a Bachelor of Arts with a major in cinema studies. In the mid-1980s, she was involved in a motorcar accident, after which she suffered some neck pain.
6 The plaintiff has predominantly worked in administrative jobs in Victoria and Queensland and, since 2004, has worked for a company called Lanxess Pty Ltd where she works as the customer service officer and material safety data sheet coordinator. The company imports chemicals.
7 The plaintiff has had an almost lifelong interest in dance, and before the accident, attended classes in tango, flamenco and classical ballet on a weekly basis at the least. She was also an adventurous traveller.
8 As far as her pre-injury health was concerned, apart from some neck pain and low-back pain which had “substantially resolved”[2] by the time of the accident, the plaintiff said she was in good health.[3]
[2]Plaintiff’s Court Book (“PCB”) 9
[3]PCB 9, paragraphs [25] and [26]
9 On 24 September 2012, the plaintiff was the driver of a car which was struck on the front right quarter by another vehicle which had failed to give way. The collision was of such force that her car was a “write off”.
Chronology of injury and treatment
10 After the accident, the plaintiff was taken by ambulance to The Alfred hospital where she was admitted overnight. Radiological investigations followed, which revealed an “acute superior endplate compression fracture of T4”. According to the hospital’s report,[4] she was commenced on physiotherapy and occupational therapy and discharged home the next day to be followed up in outpatients.
[4]Transcript (“T”) 67
11 About a week later, on 1 October 2012, the plaintiff attended her usual general practitioner, Dr Marsh. He noted that her orthopaedic concerns had abated somewhat with less pain and restriction of movement, though, at that time, she had problems with speech, about which no persisting complaint is made in this case. On review by Dr Marsh on 8 October 2012, “her pain had decreased further”, is the history he recorded. She was seen next on 15 October 2012 by a locum, who noted that she had not yet returned to work and that she was then seeing an acupuncturist and taking analgesia.
12 On outpatient review at The Alfred hospital on 15 October 2012, they recorded:
“Clinically, the patient has minimal discomfort and no neurological symptoms. There was no tenderness on palpation at [the] thoracic spine. X‑rays were reviewed and no changes were noted. No new treatment was ordered.”
13 The plaintiff was discharged from the hospital’s care.
14 On 30 October 2012, Dr Marsh took a history that her condition was improving slowly, though she still had interscapular pain, and on 15 November 2012, Dr Marsh referred her for some psychological help because she was distressed, and, on review on 27 November 2012, Dr Marsh noted a new complaint of lumbar back pain which had not earlier been mentioned.
15 The plaintiff continued to attend Dr Marsh over the first six months of 2013. It seems that she was last seen for accident-caused problems at his clinic in June of that year. Of them, in his letter of February 2015, Dr Marsh wrote:
“Ms Hoehmann suffered not insignificant injuries from a motor vehicle accident in 2012. Her recovery, though protracted, is duly noted. No further consultation re TAC matters since June 2013.”[5]
[5]PCB 79
16 As far as work is concerned, the plaintiff had returned to work after an initial week or two off on a graduated return to work basis and, by early 2013, was working full time.
17 The most recent imaging study is an MRI scan performed on 5 June 2013. It showed, relevantly:
“Minor superior endplate depression of T2, T3 and T4 vertebral bodies consistent with trauma. No significant loss of vertebral body height.”[6]
[6]PCB 123
18 The radiologist concluded that no significant disc injury or neural compromise appears to have been shown.
19 In relation to the psychological consequences of the accident, the plaintiff was referred to Dr Christopher Morgan, psychologist, who saw the plaintiff in the early months of 2013 but not after that time.[7]
[7]PCB 80
20 Since early 2013, the principal mode of treatment seems to have been chiropractic from a Dr Moss, who first saw the plaintiff after the accident on 16 October 2012. Dr Moss’s report[8] sets out in some detail recorded complaints and the treatment given, and Dr Moss’s diagnosis, so far as relevant to the injury relied upon here, was of:
“A compression fracture at T4 with accompanying biomechanical joint dysfunction of the lumbar, thoracic and cervical spine.”[9]
[8]PCB 71
[9]PCB 72
21 At the time of writing her report, that is March of 2013, Dr Moss wrote that the plaintiff was making steady progress, had returned to full-time work with only a minor modification, had returned to some of her dance and was expecting her to be able to return to more, and to full-time work, which should be sustained over the long term.[10]
[10]PCB 73
22 Dr Moss wrote:
“Ms Hoehmann has permanent anterior wedging of the T4 vertebra, but as this is fairly mild, I expect her thoracic spine to adapt around this quite well. This may, however, predispose her to some mild degeneration in this area of the spine in later years, with resultant stiffness.”
23 At the time, Dr Moss expected her to reach her pre-injury[11] status in the second half of that year and that symptoms would diminish over time.
[11]At PCB 73 – Dr Moss noted that about a year before, the plaintiff had attended with headaches, middle and low-back discomfort, for which adjustments to the cervical and thoracic spine were provided and her care continued after that time, monthly, up until the accident relied upon here – T18, L24
24 So far as the reports tendered in evidence are concerned, that is the extent of the medical reporting of treatment the plaintiff has received since the accident, so that, at the time of hearing, it is about three years or more since any treating practitioner reported on the plaintiff’s accident-caused symptoms.
25 It is the plaintiff’s account that she continued to receive acupuncture treatment until early this year, and then changed to massage to manage her spinal symptoms. The plaintiff explained that she goes to a massage clinic for a “whole body” massage where she asks the masseuses to concentrate on her back.
26 Although not dealt with in any of the medical reporting or in the plaintiff’s account, for around twelve months between early 2015 and early this year, the plaintiff received regular physiotherapy treatment for rotator cuff problems affecting her shoulders, one of which she said was becoming frozen.
Current medical treatment
27 Over the defendant’s objection, evidence was led from the plaintiff in evidence-in-chief (and here the questioner asked if she “still” takes tablets) and the plaintiff said that she takes paracetamol three to four times a week, two at a time, four tablets some days, six if it is a really bad day, and that, on some days, when she notices her back is sore early in the morning, she takes ibuprofen once a week or once a fortnight and, on those days, she changes to paracetamol later in the day. In addition, the plaintiff said that, in the colder months, she applies a heat pack to her thoracic area, that she continually reheats in the microwave, and applies the heat pack for the whole of the evening. This account became something of a credit issue in the case.
28 The plaintiff had been quite specific about the steps she takes to manage her pain in her affidavits. In 2014, her affidavit dealt with medication in this way:
“When my pain is aggravated, I will apply heat packs and lotion to my back and occasionally take painkillers.”[12]
[12]PCB 8
29 In her affidavit of 20 May this year, the plaintiff swore:
“I try to take it easy when my back pain is bad. I still receive acupuncture treatment, approximately once every three weeks. If I have back pain and a headache, I will take ibuprofen, but I find that taking medication too often upsets my stomach so I do my best to avoid it. I tend to manage my back pain by lying on the couch and resting in the evenings after work.”
30 The contrast between these two descriptions of pain management and very little medication, and her evidence-in-chief, is even more marked when it is noticed that the plaintiff has never been prescribed prescription medication for the accident-caused symptoms, and that the medical history she has given to medico-legal examiners contained quite specific denials (set out later in these Reasons) of taking medication at all.
31 I must say that I found this somewhat belated attempt to introduce a regular analgesic regime into the plaintiff’s case quite unconvincing. The plaintiff is a university-educated woman and in evidence, showed herself to be quite articulate and capable of making herself understood. The passages from her affidavits I have set out were, in my view, most likely prepared from her responses to a direct enquiry from the lawyers involved in the drafting of them as to what medication she takes, and what else she does to manage her pain. If the plaintiff was taking Panadol at the rate she says, ibuprofen with some regularity, and applying heat packs for hours every night in the colder months, it is, in my view, in the highest degree unlikely that she would have been unable to communicate this to those preparing the affidavits for her to swear. Moreover, when she did get into the witness box in the hearing before me, she swore that the three affidavits, with their scant reference to medication, were true and correct. In my view, the greater likelihood is, as counsel for the defendant had submitted, that the evidence about regular analgesia and hours and hours of heat packs is something of an embellishment designed to fill a perceived gap in the plaintiff’s case.
32 The remainder of her evidence, though at first glance given in an apparently straightforward way, warrants more careful scrutiny because of the uncertainty that this “new” evidence brings to it as a whole.
33 The plaintiff’s account of her symptoms at the time of hearing is set out in her second affidavit in paragraph 2:
“I continue to experience pain and stiffness in my upper back which usually occurs daily, although I do get occasional pain-free days. The pain in my upper back tends to come on the more I do and the cold weather in particular triggers pain. Sitting at my desk at work tends to cause my upper back pain to come on, which generally starts within half an hour or so of sitting at my desk. I experience pain in my upper back most work days. Standing for long periods can also cause pain. Once upper back pain sets in, I experience a constant, dull ache in my upper back which can last for hours. I also continue to experience lower back pain [which is not relied on in this case] although not as frequently as upper back pain. I sometimes also experience headaches which seem to come on when my back pain flares up.”[13]
[13]PCB 10
34 In re-examination as to the variability of her back pain, the plaintiff, for the first time anywhere in the evidence or in the medical histories, rated her pain numerically on a scale out of ten. Without it being established what ten might represent, she said it is usually a “five or six”, which is the level her counsel had opened.
35 The plaintiff’s affidavit then set out that she struggles with domestic cleaning and chores – which she breaks up into smaller sessions; the size of the shopping she does is reduced to make it easier on her back; she avoids long periods of driving because of increases in pain that it causes, and that she is attending two sessions of dance a week but hoping to increase it to three, though she is disappointed that:
“… [t]here are now some moves I do not do as well as I did before my injury, for example, I struggle to do a back bend in ballet. I find it very frustrating that I cannot do certain moves as well as I could before, but dancing makes me happy.”[14]
[14]PCB 11
36 The plaintiff also sets out her regret that her previously adventurous and physically-demanding travel activities have been abandoned, and these are listed in some detail in her third affidavit sworn on 6 June this year in which she sets out some of the precautions she took on a recent trip to Europe to manage her back symptoms.
The medico-legal reporting
37 On 17 March 2014, the plaintiff was examined by Mr Peter Moran, orthopaedic surgeon.[15] He took a history of the injury in the accident, of having no symptoms of low-back pain in the two years prior to the accident, and also that it had taken her eight months after the accident to get back to all three of her dancing disciplines. On examination, he found well-preserved forward bending but limited extension and lateral flexion to each side, which he thought significant given her general level of flexibility. Mr Moran thought the accident had left her with persistent thoracic, lumbar (to a lesser extent) and neck pain, and thought her condition had stabilised.
[15]PCB 86
38 Mr Moran reviewed the plaintiff on 23 March this year when her upper thoracic back pain was her dominant concern. His history recorded that she complained of aggravation by her sedentary employment and difficulty with her housekeeping and cleaning.
39 On examination, he found the upper thoracic segments to be quite stiff and again, to have limited extension and lateral flexion. He remained firm in his opinion that the MRI scan of 25 September 2012 showed oedema at both T3 and T4 and was thus consistent with recent injury. Mr Moran accepted her complaints as genuine and stated that she was at risk of accelerated degenerative change in the thoracic spine. I should mention that there is no mention in either of Mr Moran’s reports that she told him that she was taking medication of any description at the time of his examinations of her.
40 The plaintiff was examined by Dr Leslie Sedal, consultant neurologist, who saw the plaintiff on 4 December 2013.[16]
[16]PCB 94
41 As far as the injury relied upon here is concerned, the current symptoms were described in the history:
“The upper back will get sore when she is busy at work.”[17]
[17]PCB 96
42 The history included:
“Her current medication is nil.”
43 Confining himself to his specialty, Dr Sedal diagnosed a compression fracture at T4 which was not –
“… complicated by the development of radiculopathy or myelopathy.”
44 In October 2013, the plaintiff was examined by Dr Nathan Serry, consultant psychiatrist. As no reliance on psychological sequelae of the injury was part of the plaintiff’s case here, I pause only to notice that under the heading “Medication History”, Dr Serry wrote “nil”.[18] Dr Serry thought she had an essentially favourable diagnosis.
[18]PCB 101
45 Dr Serry re-examined the plaintiff in February this year. According to the history he took, the only active treatment the plaintiff was having at that time was physiotherapy for an unrelated shoulder condition and then Dr Serry wrote: “Your client stated that she takes no medication.” Dr Serry continued to think that, from a psychiatric point of view, her prognosis was reasonably favourable.
46 On 15 March this year, the plaintiff was examined by Mr Paul Kierce, orthopaedic surgeon, on behalf of the defendant.[19] He concluded that the plaintiff had –
“… sustained a crush fracture of the fourth dorsal vertebral body which has healed without any significant restrictions and without any evidence of neurological complication.”[20]
[19]Defendant’s Court Book (“DCB”) 6
[20]DCB 8
47 At that time, the plaintiff’s treatment was acupuncture every three weeks, and under the heading “Medications”, Mr Kierce wrote:
“She does not take any regular analgesics, but take some herbal medicines.”
48 So far as relevant, on examination, he found –
“… bilateral paravertebral tenderness and muscle spasm, more marked on the left than the right, and rotation of the thoracolumbar spine to the right was decreased in range.”
49 Mr Kierce reviewed the x-rays and made a diagnosis that the plaintiff –
“… suffered a compression fracture of the fourth dorsal vertebral body of less than 15 per cent compression. The injury is not associated with any retropulsion of bone into the vertebral canal. She has no neurological abnormalities as a result of this injury.”
50 Mr Kierce thought her prognosis was good and that she was likely to suffer with recurrent minor backache intermittently for the rest of her life, and he made the additional comment:
“This lady is very uncomplaining, does not take any analgesics and this would be of benefit to her in my opinion, e.g. to take either Panadol or Panadol Osteo, one or two, three times a day. As she is highly motivated, she has been able to return to her recreational activity of dancing.”[21]
[21]PCB 16
51 I should mention that also in evidence were reports from the consultant radiologist, Dr Anthony Kam, addressing the question as to whether one, two or three of the thoracic vertebral bodies had been fractured in the accident. As it was not in question that she suffers from accident-caused thoracic pain, the parties readily agreed that this debate was of only passing relevance.
The video surveillance
52 Surveillance video which was the product of 64-odd hours of surveillance conducted over a six-month period on eleven different dates was shown during the plaintiff’s cross examination.[22] I have reviewed the footage in my chambers where my view of what is to be seen on it is rather better than it is in Court. Surveillance of the plaintiff’s activities conducted on 14 November 2015 appeared on two different discs
[22]Exhibit 1
53 The first showed her meeting a friend for a drink at a cinema complex at about 18:45, emerging from the cinema at about 21:22, walking around the city, then later, on the second disc (apparently after an evening meal), the plaintiff is seen in the gloom on foot returning home at about half past eleven. In a very brief earlier segment, the plaintiff retrieved something from the ground with no apparent discomfort.
54 Video on 25 November 2015 shows the plaintiff crossing the road to and from a dance session in Kooyong Road and she is seen walking quite normally, perhaps even with a little spring in her step, and similar video on 28 November 2015 shows a brief segment where she moves quite quickly to get across Kooyong Road in traffic. Other than to say that the video shows the plaintiff moves quite well after she has participated in her 90-minute dance class, given the plaintiff’s presentation to medical examiners, I did not think the video surveillance material showed anything abnormal or damaging to the plaintiff’s credit. Although she does often explain the effect of her symptoms in terms of fatigue, it certainly was not noticeable on the video.
55 In evidence was an affidavit from Philippa Harrison dated 9 September 2015. She and the plaintiff have been good friends from about 2006, and the two of them often go out for dinner or to the theatre together. She states that the plaintiff has spoken to her about her back pain on many occasions, that to her observation she has changed the way she holds herself and she frequently complains of migraines and difficulty in cold conditions. She also states that she has noticed that the plaintiff is not as carefree as before the accident.
Submissions of Counsel
56 On the defendant’s behalf it was submitted, by reference to a number of cases including Dwyer v Calco Timbers Pty Ltd (No 2),[23] Haden Engineering Pty Ltd v McKinnon[24] and Sutton v Laminex Group Pty Ltd,[25] that “very considerable” is not to be assessed by reference only to the subjective evidence as to the consequences of injury by any particular plaintiff, but should also be assessed by reference to the objective evidence that supports those assertions. It was submitted that here, the plaintiff’s broad descriptions of pain – encompassing both the thoracic and lumbar spine – were not sufficiently specific to be of much assistance in this case.
[23]Supra
[24](2010) 31 VR 1
[25](2011) 31 VR 100
57 Counsel pointed out that the current treatment, if it be acupuncture, is supported only by a report from Ms Campbell written as long ago as October 2012; that there is no current treating medical practitioner; that the chiropractor last wrote in 2013; that the general practitioner has heard nothing of accident-caused problems since June 2013, and although she had about a year of regular physiotherapy for shoulder problems, the provider of that treatment has not provided a report.
58 It was submitted that I should not accept the plaintiff’s evidence on the hearing about the consumption of Panadol and ibuprofen as it was nowhere earlier mentioned where you would expect it to be. It was submitted that the continued participation in dance – at least three hours per week in the two sessions – pointed strongly against the experience of disability or symptoms that meet the “very considerable” test, making the point that the video showed that she was moving well at the completion of a dance class.
59 Counsel submitted that less adventurous or rigorous holidaymaking, while still being able to travel overseas, is not a consequence pointing towards a finding of serious injury, and that holidaying in cold climates, here a reference to a cruise the plaintiff had done to Alaska, did not fit well with her account that in cold weather she has to spend the whole night using a heat pack.
60 Next, in relation to headaches, it was pointed out that the plaintiff’s evidence was that she attended for acupuncture for headache treatment every three weeks before the accident, and had done so for a number of years, and that this continued afterwards[26] and that until the plaintiff was pressed about this matter, I would have been left with the impression that the headaches were the consequence of this accident.
[26]T35
61 It was pointed out also, that it had emerged that the plaintiff was still seeing Dr Moss, the chiropractor, for the maintenance of her neck and back at the time of the accident, and that no attempt to disentangle the accident-caused thoracic problems and their consequences from these pre-existing conditions, the headaches, the neck and back pain, had been made in the course of the evidence.
62 On the plaintiff’s behalf, counsel began by submitting that I should accept the truth and accuracy of the plaintiff’s evidence, and it was submitted that she had been frank in her presentation, and that the 64 hours of surveillance had produced no video which damaged her credit in any way. It was submitted that I should accept everything the plaintiff says, and then examine the question as to whether, for her, the consequences meet the requirement set out in the authorities. It was submitted that I should regard the plaintiff as stoical, an expression that fitted with Mr Kierce’s description of her, which had been “uncomplaining”.
63 As to the credibility of her evidence before me about medication, counsel submitted that I should be cautious about concluding that the evidence was untruthful, because she had been otherwise quite ready to make concessions that did not help her case, and had not come across as a person attempting to overplay her disability.
64 Counsel pointed out that the medico-legal doctors agreed that the fracture of T4 at the least was a cause of her persisting thoracic pain and then listed eight matters that the plaintiff relied upon as pointing to the conclusion that the consequences of the injury were “at least very considerable”. They were: almost constant pain at the level of five or six out of ten, with only occasional days without pain; compromise of her enjoyment of work because she has pain most days whilst doing it; the restrictions imposed upon her previously adventurous overseas holidaymaking; restrictions on her weekend cycling; aggravation of her pain by, and difficulty in, performing domestic tasks; difficulty with longer driving, in particular, visiting her parents in Ararat; reduction in her dancing classes from three to two, and difficulty with some of the moves in dance; and, lastly, the risk of accelerated degenerative change.
Analysis
65 After reviewing the transcript of the plaintiff’s evidence, and of counsels’ submissions and the tendered material, I have concluded that the plaintiff has not discharged the onus she bears of satisfying me that the consequences of the only injury in the end relied upon, that is to the thoracic spine, is more than significant or marked and, after making the required comparison, I am not satisfied that they are such as to be regarded as “at least very considerable”.
66 A number of matters were important in reaching this conclusion.
67 The first of them is that no medical practitioner, chiropractor, acupuncturist or physiotherapist engaged in the treatment of the injuries here relied upon has provided a report in the last three years or so, so that there is no current evidence from anyone actually engaged in her treatment which might corroborate the level of disability by reference to current histories, responses to treatment or examination findings.
What the Plaintiff does about the pain
68 Regular acupuncture which the plaintiff had been having for a year or two before the accident for other problems and more recently regular whole-body massage to one side, the plaintiff has had no medical treatment for the injury for the last three years, though she continues to see the general practitioner who originally managed her accident-caused injuries for other matters. She has never been referred to a specialist for her thoracic pain.
69 I am not satisfied on the balance of probabilities that her account of regular paracetamol and less regular ibuprofen is the truth of the matter. No satisfactory explanation for the failure to mention these matters in her affidavits in support of this application, or those to whom she had been referred for medico-legal assessment, has been provided, and, given how clearly it has been affirmatively recorded that she took no medication by the medico-legal examiners, this is not merely a question of “not being asked”. It is a case where the plaintiff affirmatively swore that she used other forms of treatment, along with an explanation as to why she did not take medication.
70 So I am not affirmatively satisfied that the plaintiff’s treatment consists of any more than whole-body massage every three weeks or so, in which she asks the masseurs to direct the treatment to her back. I should mention also in this context, that the plaintiff has had no difficulty seeking and receiving active treatment in the form of cortisone injections and very regular physiotherapy in respect of persisting shoulder problems, nor in the past has she been unwilling to seek physical forms of treatment for musculoskeletal complaints and headaches which, it emerged, had been under continuous treatment since before the accident.
71 I pause here to mention that these two forms of regular treatment, chiropractic and acupuncture, that the plaintiff was having before that accident, casts in my mind some considerable doubt on the plaintiff’s assertion that she was in good health before the accident which is what she swore. These matters bear also upon the reliability of plaintiff’s complaint given in re-examination, that on very bad days the pain is at a level of seven out of ten, but that generally, it is at a level of five or six out of ten.
72 I am not persuaded that whatever these unexplained numerical scales may mean to the plaintiff, this is the truth of the matter either. These numerical descriptions suggest that her pain is at a level not far short of a very bad day nearly all the time. This seems to me to be a long way from her affidavit account which was, as I have set out earlier, that: “Once upper back pain sets in, I experience a constant, dull ache in my upper back which can last for hours.. If her pain was at the level she described in her numerical evaluation of it, I think the likelihood is that the plaintiff would be doing a great deal more about seeking treatment for her problems and avoiding activities which cause them to worsen. I am not satisfied on the balance of probabilities that this is an accurate description of her symptoms.
73 The next matter is often referred to as “what is retained”,[27] an expression which has its origins in the Court of Appeal’s decision in Dwyer v Calco Timbers Pty Ltd (No 2).[28] The plaintiff is now, and has been since not long after the accident, in full-time work performing all of her usual duties except for the picking up of milk for the coffee machine. The plaintiff has returned to her great love of dance. She is presently attending two 90-minute sessions per week, one of them flamenco, the other classical ballet. One of them she completes after her day’s work. When it is available, she also attends lessons in tango, though that is not currently the case.
[27]The origin of this expression is Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
[28]Supra
74 Whatever be the state of her back symptoms, the very brief surveillance shows that on leaving the dance studio at the end of 90 minutes of dance, her gait and movements are apparently remarkably normal and although nothing particularly vigorous is seen, there is certainly not the faintest sign of disability or of pain with movement.
75 Further, the plaintiff continues to attend to all of her domestic chores, though she breaks them up to cope with her symptoms. The plaintiff continues to take holidays overseas, although they are not as physically demanding or as adventurous as they had been in the past. She is able to travel on her own. In this setting, I should mention that although she described in great detail the manner in which she managed her trip to Europe in the year 2015,[29] that account was given without the faintest reference to the presence of bilateral shoulder symptoms for which she was having weekly or fortnightly physiotherapy for the whole of the 2015 year.
[29]At one stage, it seemed that this trip (Italy and Barcelona and a cruise) had been this year but it seems clear (T29) that it was 2015
76 The plaintiff continues to socialise, cook, to dine out, to go to the cinema and the theatre, attend the football, to drive and shop. Accepting that she has had difficulty with longer periods of driving, she is, in my view, functioning at near normal levels in a great range of activities. The plaintiff’s complaint of difficulty with sleep seems to have more to do with the low-back symptoms which in the end were not relied upon in this application,[30] and insomnia.
[30]T32
77 For these reasons, the plaintiff has not discharged the onus she bears of satisfying me that the consequences of the injury to her thoracic spine sustained in the transport accident are “more than significant or marked” and are such as to be regarded as “at least very considerable”. It follows that the plaintiff’s application is dismissed.
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