Honorato Parra v Mercy Health and Aged Care Inc
[2016] VCC 482
•29 April 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-05862
| TATIANA HONORATO PARRA | Plaintiff |
| v | |
| MERCY HEALTH & AGED CARE INC. | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 and 14 April 2016 | |
DATE OF JUDGMENT: | 29 April 2016 | |
CASE MAY BE CITED AS: | Honorato Parra v Mercy Health & Aged Care Inc. | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 482 | |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s134AB – leave sought in relation to pain and suffering damages only – reliance upon paragraph (a) of the definition – injury to the lower back – specific incident – pre-existing spinal defect – psychological condition existing before and after relevant accident – where the burden of proof discharged – factors to be considered
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Ruddle | Nowicki Carbone |
| For the Defendant | Mr R H Stanley | IDP Lawyers |
HIS HONOUR:
General background
1 This matter comes before me by way of an application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985, herein thereafter referred to as “the Act”. The plaintiff seeks leave to bring proceedings in respect of pain and suffering damages only. In so doing, she relies upon paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act. The injury relied upon is essentially one to the lower back and is specifically stated to be in the nature of an aggravation of a pre-existing L5 pars defect and of degenerative changes in the last three discs of the lower back, together with nerve root impingement. In other words, it was submitted that the plaintiff had a congenital problem with her lower back, which was previously asymptomatic, but had been rendered symptomatic by the accident in question – see Transcript, herein after referred to as “T”, 1. The accident upon which reliance is placed occurred on 10 September 2011, herein after referred to as “the accident.” The plaintiff, in the course of her employment as a personal care attendant, was grabbed around the neck by a patient and pulled forward. The occurrence of the injury was conceded, as was the acceptance of a claim pursuant to s98C of the Act – see T2 and 15. It was also conceded that the plaintiff suffered injury to her lumbar spine in the accident, but it was argued that this was a temporary aggravation – again, see T15. Exactly how this sits with an acceptance of a claim pursuant to s98C, which relates to permanent impairment, is something that was not explored. Other issues raised by the defendant related to the disentanglement of psychological or psychiatric factures, which indisputably exist, but upon which the plaintiff does not rely.
2 Mr M Ruddle of counsel appeared on behalf of the plaintiff. Mr R H Stanley of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of two affidavits as being true and correct. The balance of the evidence was documentary in nature and was tendered either by consent or without objection.
Factual background
(a)The plaintiff’s background, training and employment prior to the accident
3 The plaintiff is aged 26 years, she having been born on 24 August 1989. She is a single woman who, in comparatively recent times, broke up with her fiancé. She was born in Sydney, but her family are of Chilean origin. Her upbringing was somewhat troubled and, as shall be discussed, she suffered from various psychological and psychiatric disturbances, both before and after the accident.
4 After some interruption to her education, the plaintiff ultimately completed Year 12. She also obtained certificates in hospitality. She worked as a waitress and bartender for approximately two years. She trained as an apprentice motor mechanic for two months but, in approximately 2011, moved to Melbourne. The plaintiff commenced employment with the defendant as a personal care attendant on approximately 7 March 2011. As stated, the accident occurred on 10 September 2011.
(b) The plaintiff as a witness
5 I found the plaintiff to be a thoroughly credible witness. Obviously the credibility of a plaintiff is of importance in the overwhelming majority of these applications, unless the injury and its consequences virtually speak for themselves. The credit of the plaintiff was of particular significance in the present case. In my opinion, the plaintiff emerged from giving her evidence with her credit intact. I regard her as being a truthful and reliable witness.
(c) The state of the plaintiff’s health prior to the accident
6 There is no argument but that the plaintiff had an underlying deformity or weakness in the lumbar spine. There was a pars interarticularis defect on the right side involving the L5 vertebra, causing spondylosis. There may have also been present degenerative changes associated with this. However, I accept that the plaintiff had been free of any symptoms in her lumbar spine prior to the accident. The contrary was not argued. She had been fit and well and engaged in a number of physical activities. In relation to her mental health, there had been some considerable disturbances in her family life and, when aged about 15 years, she had seen a school counsellor for depression. However, there is no suggestion that she was not a physically fit and active person prior to the accident.
(d) The injury, its treatment and diagnosis
7 As stated, the injury is a specific one to the lower back, which occurred as a result of a specific accident. Following the accident, the plaintiff went to the staffroom, where she was given a heat pack. Ultimately, she broke down and was collected from her place of work by her then partner. She consulted her general practitioner, Dr Gehan Samarasinghe of Greenvale Medical Centre, four days later, on or about 15 September 2011. At this stage, she was still off work. Dr Samarasinghe advised pain relief medication and some mild exercises. He also referred her for a CT scan of the lumbar spine, this being performed on 16 September 2011. The conclusion of the radiologist was that there was a subtle pars interarticularis defect on the right side involving the L5 vertebra, with no significant listhesis seen at present. There was also minimal focal posterior disc bulge at L5-S1, producing minimal anterior faecal sac indentation. Dr Samarasinghe saw the plaintiff again on 21 September 2011. The plaintiff had persisting back pain and stiffness. The results of the CT scan were explained to her. Dr Samarasinghe advised continuing use of analgesia, rest and physiotherapy. It would appear that she had physiotherapy two to three times a week for a couple of months – see T20. The plaintiff made a WorkCover Claim, which was accepted. On 21 October 2011, Dr Samarasinghe recorded only very mild tenderness over the lower back. In October 2011, the plaintiff was having considerable mental health problems, essentially depression. However, on 14 November 2011, Dr Samarasinghe, apart from recording depression, recorded back pain (in capital letters) as persisting. It was also recorded that the plaintiff was in physiotherapy and was mentally and physically unable to work. Dr Samarasinghe again recorded back pain on 13 November 2011. In or about December 2011, the plaintiff apparently ceased work for the defendant. It is quite apparent that the plaintiff then returned permanently to Sydney, where her family is based, arriving there on New Year’s day, 2012. In the plaintiff’s affidavit of 30 July 2014, there would seem to be two errors as to the years involved in paragraphs 56 and 57.
8 The defendant terminated the plaintiff’s benefits by letter dated 24 February 2012, and subsequent to a medical examination by Dr David Barton on 22 December 2011. On 28 February 2012, the plaintiff attended at the Bonnyrigg Family Medical Centre, where she was seen by Dr Long Chau. She seems to have reported some dizziness and depression, also referring to her work-related back injury. She continued to attend at that clinic for a variety of conditions unrelated to her back injury. However, she commenced seeing Dr Thomas Tjeuw at the Cabramatta Medical and Dental Centre. The date of her first attendance upon him is not entirely clear. It was put to the plaintiff that Dr Tjeuw’s records indicate that he first saw her on 30 April 2012, whereas his report of 28 January 2016 would indicate that it was on 20 November 2012. In any event, Dr Tjeuw, who had been the plaintiff’s treating doctor previously and prior to her moving to Melbourne, referred the plaintiff for a CT scan. The radiologist reported that there was an L5 pars defect on the right, but no spondylosis. There was narrowing of the right neural exit foramen at L5-S1 causing potential right L5 nerve root impingement.
9 In a somewhat confusing medical history, it would seem that the plaintiff returned to Bonnyrigg Family Medical Centre, seeing Dr Loi Lam on 19 September 2013 in relation to her chronic back pain, which she related to her work injury. Dr Lam referred her for an MRI of the lumbar spine on 8 October 2013. The radiologist reported that there were minor multi-level disc bulges at the L3-4 and L4-5 levels and a cartilaginous pars defect on the right side at L5. There may also have been a sclerotic heel defect or fibrous defect in the left pars interarticularis.
10 Dr Lam referred the plaintiff for physiotherapy, and prescribed Tramil, Lyrica and Endep to manage her chronic pain and disability, also noting signs and symptoms of depression, complicated by an accident involving her then partner. She was certified as being suitable only for work in a sedentary capacity, where she did not have to bend, and with a standing tolerance of up to 30 minutes. Dr Lam saw the plaintiff on another four occasions, the last being 25 October 2013. Her condition was not improving, and Dr Lam thought it reasonable that the plaintiff’s mental and physical injuries would continue to be restrictive in all aspects of her life, such as work, leisure activities and social/creative activities.
11 Dr Lam had referred the plaintiff to Dr Ian Gotis-Graham, rheumatologist and consultant physician, who reported back to Dr Lam on 1 November 2013. He was of the view that the plaintiff had chronic pain, but anxiety and depression were major problems. He felt that her complaints of pain were out of proportion to objective clinical findings, there being no evidence of nerve root compression or canal stenosis. He commented that the bilateral L5 pars defect was a developmental abnormality unrelated to the work injury. He encouraged her to exercise and increased her Endep prescription, while telling her to try and reduce Tramadol. If necessary, she could recommence Lyrica. He concluded by saying he had organised another CT scan of the sacroiliac joints in order to completely exclude bilateral sacroiliitis as a contributing factor, which he felt was unlikely. Whether this CT scan ever took place is not clear. It would not appear that the plaintiff saw Dr Gotis-Graham again and, as stated, did not see Dr Lam after 25 October 2013.
12 In fact, the plaintiff seems to have returned to treatment at the hands of Dr Tjeuw. During 2013, she consulted a physiotherapist, Mr Henry Lee, sometimes seeing him two to three times per week. She found his services, including electrotherapy, to be helpful, but the relief was only temporary. The pain could still be set off by unusual or sudden movements. She ceased seeing Mr Lee in approximately August 2014. At about this time, the plaintiff travelled to Chile to visit relatives and whilst there, used analgesics and anti-inflammatory medication as needed. She returned to Australia in January 2015, returning to the care of Dr Tjeuw.
13 After visiting Chile, the plaintiff seems to have seen Dr Lam again on at least one occasion, but also continued with Dr Tjeuw. Indeed, on 17 September 2015 she saw Dr Tjeuw, but his note is that she had seen Dr Lam earlier that day. In any event, she had been suffering increased lower back pain for three days, with pain radiating down both legs and into the feet. Dr Lam had referred her for a CT scan, which had been carried out on that day. A right-sided spondylolysis at L5 had been seen on this investigation, but no spondylolisthesis as yet demonstrated. There was disc base reduction at L5‑S1. There was a minor generalised posterior disc bulge at L5‑S1 causing mild thecal sac indentation, and moderate narrowing of the left exit foramen with mild compression of the emerging nerve roots.
14 In approximately September 2015, the plaintiff presented at the emergency department of the Liverpool Hospital, suffering from an aggravation of lower-back pain. She remained in hospital overnight, and took a couple of days off work. On 4 January 2016, the plaintiff again presented to the emergency department of the Liverpool Hospital with pain in the left buttock and back, and paraesthesia to the left leg. This seems to have followed from her brother, who is disabled, falling onto her left knee. A report from Liverpool Health Service states that the plaintiff was advised that her presentation was consistent with an exacerbation of her chronic pain, and that she would benefit from analgesia, physiotherapy, and exercises.
15 The plaintiff then saw Dr Tjeuw on 13 January 2016, being the last visit before his report of 28 January. His diagnosis on this occasion was that there was CT scan evidence of nerve root impingement in the lumbar spine which was consistent with her presentation and her symptoms. He thought that the prognosis was fair, and that, given the length of time that the plaintiff had had the injury, it was likely that she would have chronic recurrent symptoms. The injury was likely to limit her functional capacity and employment prospects. Dr Tjeuw felt that the plaintiff should consult a neurosurgeon. She required further treatment in the form of physiotherapy, hydrotherapy and possible nerve-root cortisone injection. For this reason, he did not believe that the injuries had stabilised. It should be added that, following the aggravation which occurred when the plaintiff’s brother fell upon her left leg, she missed some 11 days from work before returning to her administrative position.
16 Following her hospitalisation in September 2015, the plaintiff had in fact been referred to a neurosurgeon, Dr Renata Bazina, the reference apparently being by Dr Umer of the Bonnyrigg Family Medical Centre. Dr Bazina saw the plaintiff on 16 October 2015, reporting to Dr Umer on 21 October. Dr Bazina expressed the opinion that the most recent CT scan confirmed a pars defect at L5 and evidence at the segmental level. It was considered that there should be a bone scan and an MRI scan, and that further management would depend upon the results. The plaintiff was having a pleasing response to the multi-modal analgesic regime of Lyrica, Endep and Tramal. Dr Bazina added that the MRI scan of 2013 showed the spondylosis on the right side. There was no evidence of disc herniation or spondylolisthesis.
17 The plaintiff has also been examined for medico-legal purposes. Associate Professor of Surgery Kenneth Myers, at the request of the plaintiff’s solicitors, reviewed some material, reporting on 7 July 2014. At that stage, the plaintiff herself was not available for examination, a problem caused by her living in New South Wales. Associate Professor Myers was provided with the radiological investigations, as well as the report of Dr Gotis-Graham and reports from Dr Prytula, psychiatrist, who examined the plaintiff on behalf of the defendant; Dr Barton; to whom reference has been made earlier; and Associate Professor Anthony Buzzard, who also examined on behalf of the defendant.
18 Having reviewed the material, Associate Professor Myers expressed the view that the plaintiff had a congenital weakness of the lumbosacral articulation and that the MRI showed associated degenerative intervertebral disc disease affecting the lower three intervertebral discs. The persistent symptoms following the injury to the lower back could be attributed to aggravation of the previously asymptomatic developmental degenerative processes in the lower lumbar spine. In the view of Associate Professor Myers, there was no reason to anticipate any future improvement of the plaintiff’s condition. He disagreed with Dr Barton, who expressed the opinion that the plaintiff did not require physiotherapy and should be encouraged to return to normal work activities. Associate Professor Myers considered that the plaintiff would benefit considerably from a structured course of conservative treatment involving physiotherapy and the like, as well as psychological counselling. He did not anticipate that the plaintiff would become a candidate for surgical treatment, but might benefit from referral to a specialist who was able to perform appropriate spinal injections. He thought that she could not return to her previous occupation, and that there would be appreciable restriction of social, recreational and domestic activities. The situation would probably continue into the foreseeable future.
19 Associate Professor Myers was able to see the plaintiff on 22 February 2016 and reported again on 2 March 2016. He noted that the plaintiff was on a number of medications, including Endep, Lyrica, Tramadol, Panadol, Nurofen and, in more recent times, Endone. He also recorded that she had been attending a chiropractor and having acupuncture, which gave temporary relief. Associate Professor Myers expressed the opinion that there had been an aggravation of an underlying weakness in the lumbosacral region causing damage to the L5‑S1 intervertebral disc and associated nerve roots and small joints, together with soft-tissue and ligamentous injuries. He related all of the disability to the work-related injury. Whilst surgery was a possibility, he thought it should be deferred as long as possible because of her age. He thought that she might benefit from referral to a pain-management specialist for consideration of a structured course of rehabilitation, but appreciated that this would interfere with her current employment. The plaintiff was incapable of returning to any form of employment as a nurse, but should be able to cope with her present relatively sedentary office work. However, there would be restriction of social, domestic, recreational and employment activities, and this was likely to be permanent.
20 A brief letter of 11 April 2016 from Associate Professor Myers followed his reading of the report of the MRI of 2 February 2016. He observed that it showed features of spondylolysis without spondylolisthesis. He stated that this congenital weakness of the plaintiff’s lumbar spine would markedly predispose to the development of lower-back pain. This was in keeping with previous investigations and did not cause Associate Professor Myers to alter the opinions previously expressed.
21 Dr David Kennedy, sports and industrial physician, examined the plaintiff at the request of her solicitors on 16 December 2015. In the opinion of Dr Kennedy, the plaintiff has suffered a serious impairment of function of the lumbar spine with damage to the lower lumbar intervertebral disc and posterior facet joints, with radiculopathy in the left lower extremity as a consequence of the damage sustained to the disc and posterior facet joints affecting the spinal theca and the lower lumbar and upper sacral spinal nerve roots. Further damage in relation to the lumbar intervertebral disc with more significant radiculopathy might lead to contemplation of surgical intervention, after pain management treatment, including injections, has been attempted. Restrictions exist in relation to the plaintiff’s employment capacity. Dr Kennedy expressed the view that the plaintiff is also restricted with respect to many activities of daily living affecting social, recreational, domestic and employment activities. These restrictions are likely to be of a permanent nature. The prognosis is fair, but on the balance of probabilities, in Dr Kennedy’s view the plaintiff will continue to have significant problems in the lumbar spine.
22 The defendant has also had the plaintiff examined for medico-legal purposes. Dr David Barton, consultant occupational physician, examined the plaintiff on 22 December 2011. This was comparatively soon after the accident, and the report has, to some extent, been overtaken by events. For what it is worth, Dr Barton described the incident in which the plaintiff suffered injury as trivial, and did not consider the CT scan findings as representing any particular pathology. He felt that the plaintiff suffered from a degree of illness behaviour and, in essence, said that she had a trivial and inconsequential mild soft-tissue injury that had resolved.
23 Associate Professor Buzzard saw the plaintiff at the request of the defendant on 23 May 2014. He took a history of constant lower-back pain and sleeping difficulties. Associate Professor Buzzard’s conclusion was that the plaintiff had suffered an injury to her lower back at the time of the accident. There was a radiological abnormality, but he did not think that it was significant. He felt that the injury was a soft-tissue one. However, the pattern of distribution of pain suggested right-sided sciatica. He believed that the radiological investigations suggested that the plaintiff might have a right L5 nerve root impingement, but he could not find any definite evidence of it. He thought that there was some functional overlay. Associate Professor Buzzard thought it appropriate that the plaintiff continue to have symptomatic treatment, including acupuncture. He thought that she was precluded from her pre-injury employment, but that her current employment was appropriate. He was prepared to make an assessment pursuant to the AMA Guides, an element of which is permanence. He did not believe that there was any evidence of pathology pre-dating the accident.
24 Dr Ross Gurgo, neurosurgeon, saw the plaintiff at the request of the defendant on 18 March 2016. He took a history of persisting lower-back pain radiating around the hips and down the left leg, which he described as being probably an L5‑S1 distribution. His diagnosis was of exacerbation of pre-existing lumbar spondylosis/L5 pars defect with lower-back pain and radicular pain. He stated that he could not fully explain why she was having persistent pain, as he would have expected symptoms to have settled by the time of his examination. He would have expected this to occur within six months of the event. Whilst he appears to have had some doubts, he concluded that it may be that, given the plaintiff’s persisting symptomatology, she needed to avoid employment which had a significant manual component. He believed that some elements of her presentation were inconsistent and that the injury in question did not contribute to any incapacity or impairment. He believed that any persisting symptomatology was due to the ongoing effects of pre-existing lumbar spondylosis/L5 pars defect, and repeated that he believed this would have resolved within six months of the accident.
25 Dr Gurgo provided a supplementary report dated 8 April 2016. He does not seem to have examined the plaintiff again prior to this report. He reviewed the MRI of 2 February 2016. He repeated that his diagnosis was an exacerbation of pre-existing, but clinically asymptomatic, lumbar spondylosis/L5 pars defect with lower-back pain and radicular pain. He commented that it was reasonable to say that the accident was a significant contributing factor to the development of the plaintiff’s described symptomatology. On this occasion, he stated that he would have expected this exacerbation to have ceased about 12 months after the described event (as opposed to six months in his report three weeks earlier). He stated his belief that any persisting symptomatology beyond 12 months would be due to the pre-existing condition and not the work-related event. However, he also stated that, if the plaintiff felt that she could not undertake employment with a significant manual component, given the nature of her spinal condition she may need to look for employment with a lesser such component.
26 In relation to diagnosis, I do not accept the observations which Dr Barton made shortly after the event. Apart from the observations of other medical examiners, I accept the plaintiff as a witness of truth and do not accept that the consequences of the accident were trivial and temporary. I am also not persuaded by the conclusions of Dr Gurgo. Where a person has been symptom-free prior to a relevant accident and suffers from ongoing symptoms thereafter, I struggle with the concept that, at some point in time, the effects of that aggravation have ceased and what is then causing the problem is the underlying condition. It could be argued, as was done by Mr Ruddle, that the logical consequence of such an argument is that, if the accident had not occurred, the symptoms would have emerged at some specified later date in any event and without any contribution from the accident. This, it is argued, is hardly logical. In the present case, I am not persuaded by the argument that, at some specified or unspecified date after an accident occurring against a background of pre-existing but asymptomatic degenerative changes, the impact of the accident disappears and the degenerative condition takes over. I find it even harder to accept such an argument in the present situation where Dr Gurgo was prepared to say that this change-over in responsibility for symptoms would have occurred about six months after the accident, but then, in a report approximately three weeks later and without seeing the plaintiff again, describes this transformation of responsibility as occurring about 12 months after the date of the accident. In short, it is not an opinion which I accept.
27 Whilst the opinion of Associate Professor Buzzard is more logical, on balance I do not accept that the injury sustained was a soft-tissue injury only. Nor do I accept his opinion that there is a suggestion of functional overlay at a deliberate level. As stated, I have no difficulty in accepting the plaintiff as a witness of truth.
28 I prefer the diagnosis of Associate Professor Myers. I accept that there has been an aggravation of an underlying weakness in the lumbosacral region, that weakness having been revealed by the radiological investigations. I accept that the consequences of that aggravation are ongoing.
29 I appreciate that Dr Gotis-Graham has stated that the bilateral L5 pars defect is a developmental abnormality completely unrelated to the work injury. However, he has stated that the plaintiff injured her back at work and has chronic pain. I note that, on examination, he did find spasming of the paralumbar spinal muscles, and that he referred to the plaintiff having disc damage at L3‑4 and L4‑5, this being revealed by an MRI scan. However, precisely what his diagnosis was is not clear.
30 Dr Tjeuw, one of the plaintiff’s treating practitioners, has stated in his report of 9 April 2016 that the plaintiff’s clinical presentations are more consistent with the CT scan report, which shows disc protrusion and nerve root compression, than they are with the MRI report of 2 February 2016. In other words, her presentation accords with a situation of disc protrusion and nerve root compression.
31 Dr Bazina, the treating neurosurgeon, referred to the most recent CT scan as confirming a pars defect on the right at L5 and evidence of spondylosis at the segmental level, adding that she suspected that the plaintiff had active disease at that level, which was contributing to her pain. Dr Kennedy has referred to the plaintiff having suffered damage to the lower lumbar intervertebral disc and posterior facet joints. The balance of the evidence, including the radiology, seems to me to favour the proposition that there is disc involvement, and the diagnosis of Associate Professor Myers appears to me to be logical and in accordance with the various investigations. Accordingly, as stated, I accept it.
32 As is evident, I accept that at least a substantial part of the injury is in the nature of an aggravation. However, I also accept that, prior to the accident, the plaintiff suffered from no back symptoms and was a fit, active person who engaged in activities such as bushwalking, dancing, home duties and the like. Accordingly, the consequences of the injury from which she suffers arise directly from the accident.
33 As previously stated, I do not accept the argument that, after some six or twelve months, the effects of the work-related aggravation disappeared and, in essence, were replaced by symptoms related to the underlying condition. I accept that the symptoms and restrictions from which the plaintiff suffers continue to be consequential upon the accident.
34 I am also satisfied that such consequences are permanent within the meaning of the Act, in that they will persist for the foreseeable future. Dr Tjeuw has stated that the plaintiff’s restrictions are likely to be long-term in nature. Associate Professor Myers expressed the opinion that the plaintiff’s restrictions are likely to be permanent, a view shared by Dr Kennedy. Associate Professor Buzzard, examining on behalf of the defendant, was prepared to make a Whole Person Impairment assessment in relation to the lumbosacral spine, an ingredient of which assessment is permanence. When discussing the issues at the outset, Mr Stanley, on behalf of the defendant, conceded that there had been acceptance of the injury for the purposes of s98C of the Act in June 2014 – see T15. Pursuant to s98C, an assessment of spinal impairment is done in accordance with the AMA guides. The impairment under consideration has to be permanent. In short, I am satisfied that the consequences of the accident suffered by the plaintiff are permanent within the meaning of the Act.
35 As earlier stated, in this case the plaintiff relies solely upon paragraph (a) of the definition of “serious injury”. It is a physical injury upon which reliance is placed. Accordingly, pursuant to s134AB(38)(h), psychological or psychiatric consequences are not to be taken into account. That the plaintiff has had some psychological or psychiatric problems over the years, both before and after the accident, is scarcely in dispute. She comes from a troubled family background. I note that Dr Albert Kaplan, consultant psychiatrist, examining the plaintiff at the request of her solicitors, felt that she had developed an Adjustment Disorder with Mixed Anxiety and Depressed Mood associated with her panic attacks, this being directly related to her injury and pain level. However, he also referred to her as having demonstrated a high degree of motivation. He linked her prognosis to that for her physical condition. Dr Richard Prytula, consultant psychiatrist, examined the plaintiff at the request of the defendant. He also diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood, considering this condition to be secondary to, and having arisen from, the back pain. However, he considered the prognosis to be reasonably good. It is apparent that the plaintiff was assessed by a psychologist, Ms Karina Feldmann, at the request of Dr Lam in October 2013. She may also have received some treatment – seeT54.. She also seems to have participated in some form of assessment relating to a Mental Health Plan in October 2011. As far as the handwritten aspects of the report can be read, this would appear to relate to some form of self-harm following an argument with her partner.
36 Thus, while the plaintiff certainly had pre-existing psychological or psychiatric problems, some of her present symptoms of this nature probably arise from the accident, whether or not that be by way of aggravation. In any event, such symptoms shall not be taken into account. The physical consequences, as set out in the reports of Associate Professor Myers, Dr Kennedy and the treating general practitioner, Dr Tjeuw, shall form the basis of this Ruling. Such “disentanglement” seems to me to be able to be achieved in this way. I would agree that the plaintiff seems to me to be highly motivated. As earlier stated, she was a completely credible witness. She has returned to the workforce. Her account of the symptoms and consequences from which she suffers seems to me to be consistent with the injury suffered and with the opinions of medical examiners, such as Associate Professor Myers, Dr Kennedy and Dr Tjeuw.
Other developments since the injury
37 I have already set out the course of the plaintiff’s treatment. After returning to Sydney at the start of 2012, the plaintiff started working for her uncle, who operated a restaurant. Apparently she did light duties, taking orders, handling cash and the like. This was for a brief period and, in approximately March 2012, the plaintiff commenced work for an entity called Munch Express. This involved her in driving a small food van, conveying prepared lunches to industrial sites – see T34. The plaintiff stated that she worked four days a week, having a one-day break because “the boss knew about my back”. The plaintiff continues to be employed by that entity. However, since January of this year, she has been transferred to an administration and sales position. She spends approximately half of her time standing and half sitting at her desk, so that the pain experienced from prolonged periods of sitting is lessened. It would seem that her earnings now exceed those which she received for performing her pre-injury duties.
38 In approximately August 2014, the plaintiff undertook a trip to Chile so that she could meet family members and find out more about her heritage. The visit seems to have coincided with her 25th birthday. Whilst there, she continued to take analgesics and anti-inflammatory medication as needed. On this trip, she also visited Peru. There she went to Cusco, and performed a walk along the Inca Trail. She found this very difficult, but pushed herself to her physical limits as it was something that she had always wanted to do. She stated that she was able to complete this with her Tramadol, Lyrica and straps for her back. Whilst on this trip, her group stayed in small bungalow-type houses, which had been prepared. The overall impression which I gained was that this particular trip, and with the particular guide, was one which was very much at the easier end of the scale of treks available. As the plaintiff said in re-examination, there were no heavy backpacks. Donkeys carried everything. She was able to go at her own pace and stopped if she wanted to. In the group, there were a couple of people who were severely overweight. The ascent upon which she went was not steep - see T68 and T69. I accept the plaintiff’s description of the trek and that, whilst she found it very hard, she also thought that it was good for her. A combination of that and meeting up with family members made the experience a positive one. In summary, given the nature of the trip and the plaintiff’s openness concerning it, I do no regard it as something which acts to her detriment in this application.
Ruling
39 I am of the view that the plaintiff has discharged the burden of proof. I am satisfied that, when the relevant comparison is made, the consequences of the plaintiff’s injury could be fairly described as being more than significant or marked and as being at least very considerable. I have come to that conclusion for the following reasons, which are not set out in order of importance.
(i) As I observed earlier, unless consequences of an injury are so manifest that they virtually speak for themselves, in applications of this nature the credit of a plaintiff is usually important. As was said by Brooking J in Palmer Tube Mills (Aust) Pty Ltd & Anor V Semi (1998) 4 VR 439 at [448]:
“Moreover, in ‘serious injury’ applications the credit of the applicant is of great importance ….”
This observation was referred to recently by the Court of Appeal in Papamanos v Commonwealth Bank of Australia [2014] VSCA 167.
As stated more than once, in the present case I find the plaintiff to be a witness of credit and I have no reason to doubt the accuracy of her evidence. A corollary of that is that I accept that she had no symptoms prior to the accident and that thereafter she has suffered the consequences set out in her affidavits. I do not accept the temporary aggravation proposition advanced by Dr Gurgo. I accept that the plaintiff went from being a person who suffered no symptoms related to an injured back prior to the accident to one who has suffered such symptoms and consequences thereafter.
(ii)The plaintiff gave evidence that she has not stopped having symptoms – see T70. She has referred to constant pain, both in her affidavit of 30 July 2014 and in her evidence. There was also a reference in her more recent affidavit of 31 January 2016 to persistent pain in her lower back and left leg. Persistent, ongoing pain is a factor of importance - see Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 and subsequent cases such as Sutton v Laminex Group Pty Ltd [2011] VSCA 52. In Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267, the Court of Appeal stated that:
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
The plaintiff’s ongoing and constant pain is a factor which I take into account in the present case.
(iii)The age of the plaintiff is another matter which should be borne in mind. She is 26 years of age. There is nothing to suggest that she has anything other than a normal life expectancy. If that be so, she probably faces many decades of pain and suffering as a result of the injuries arising from the accident.
(iv)The plaintiff has difficulty sleeping. She has a tendency to wake intermittently throughout the night due to her back pain. The plaintiff told Associate Professor Myers that pain keeps her awake so that she has trouble with sleeping. Associate Professor Buzzard also reported that the plaintiff has difficulty with sleeping because of her back. If she does take medication to assist, she is drowsy the next day, which presumably impacts upon her work performance. Interference with sleep is a factor referred to in Haden Engineering. As Maxwell P said:
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep.”
(v)In addition, the plaintiff has had problems in relation to her personal hygiene. She has experienced difficulties in relation to the use of the toilet. The importance of such matters is not to be under-estimated.
(vi)Prior to the accident, the plaintiff was an active dancer, participating with a group that performed dances of a Latin nature. This involved quite lengthy rehearsals. The group with which the plaintiff danced performed at events such as weddings and other functions. The plaintiff continued this on a restricted basis after the accident, ultimately ceasing dancing in 2013. She stopped because of the pain – see T68. I accept her sworn evidence in her affidavit of 30 July 2014 that it was something that she loved to do and which gave her joy and satisfaction.
(vii)The plaintiff is now restricted in relation to domestic activities. Such matters as cooking, cleaning and washing are now difficult. In addition, she used to engage in activities such as netball, basketball and track and field events. Further, she used to attend venues such as night clubs. She can no longer go dancing at such venues. I refer to the history given to Associate Professor Myers and to Dr Kennedy. As was said by Dr Tjeuw in his most recent report of 9 April 2016, her injuries have had a very considerable impact upon her activities. As was said by Dr Kennedy, the plaintiff is restricted with respect to many activities of daily living affecting social, recreational, domestic and employment activities and these restrictions are likely to be of a permanent nature.
Conclusion
40 Having considered all of the above matters, I have reached the conclusion that the plaintiff has discharged the burden of proof. Leave is given to her to pursue an action for pain and suffering damages. I shall hear the parties as to any ancillary orders that are required.
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