Horozovic v TAC
[2014] VCC 1694
•16 October 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised (Not) Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-03030
| EMINA HOROZOVIC | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 & 3 October 2014 | |
DATE OF JUDGMENT: | 16 October 2014 | |
CASE MAY BE CITED AS: | Horozovic v TAC | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1694 | |
REASONS FOR JUDGMENT
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Subject: Accident compensation – Transport accident.
Catchwords: Physical injury consequences and psychiatric injury – aggravation of pre-existing psychiatric injury.
Legislation Cited: Transport Accident Act 1986, s 93(7).
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Humphries v Poljak [1992] 2 VR 129; Richards v Wylie (2000) 1 VR 79; Transport Accident Commission v Zepic [2012] VCC 305.
Judgment: Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards QC with Mr N Griffin | Zaparas Lawyers |
| For the Defendant | Mr P Elliott QC with Mr P Gates | Lander & Rogers |
HER HONOUR:
1 On 5 May 2008 Emina Horozovic (“the Plaintiff”) was struck on the left thigh by a vehicle travelling at low speed whilst she was attempting to cross a pedestrian crossing in Lonsdale Street, Dandenong (“the transport accident”).
2 Ms Horozovic was taken to Dandenong Hospital Emergency by ambulance. It was recorded that she was able to weight bear with assistance. The records show “no head strike or loss of consciousness (LOC), no cervical spine tenderness, painful left thigh”.[1] An x-ray of the left femur showed no abnormality.[2] She was diagnosed as suffering from a soft tissue injury to the left thigh and given some Ibuprofen. She was discharged home and advised to rest.[3]
[1]Plaintiff’s Court Book (“PCB”) 135(a)
[2]PCB 135(e)
[3]PCB 135(d)
3 She re-attended the following day complaining of neck, back and loin groin pain. Pain increased on movement. On examination she was neurologically intact with no spine midline tenderness. There was extensor muscle tenderness in the neck, and the thoraco lumbar spine extensors were tender with no bony tenderness noted. Muscular pain was diagnosed and she was again sent home with a letter to her general practitioner to check her urine for blood and manage her analgesic needs. It was postulated that she may need physiotherapy for whiplash.[4]
[4]PCB 138
4 Over the next few days Ms Horozovic continued to experience pain on weight bearing and neck pain together with some low back pain. She hoped it would resolve. Eventually she attended a general practitioner, Dr Tony Wickins, on 16 May 2008 for treatment.[5]
[5]PCB 9
5 Dr Wickins has continued to monitor her condition and manages her with conservative measures.
6 Ms Horozovic continues to complain of chronic neck pain with some left thigh and upper leg pain and low back pain. She nominates the neck pain to be the worst pain.[6]
[6]Plaintiff’s Affidavit sworn 19 April 2013 [15], PCB 11
7 As a result of the transport accident, the Plaintiff claims to have suffered a serious long-term impairment of the function of her spine within the meaning of paragraph (a) of the definition of serious injury set out in s93(17) of the Transport Accident Act 1986 (“the Act”).
8 She also alleges that as a consequence of the transport accident she suffered a severe long-term mental or behavioural disturbance or disorder within the meaning of paragraph (c) of the definition of serious injury as set out in s93(17) of the Act.
9 The background facts are not controversial. Ms Horozovic is aged 64. She was born on 31 May 1950. She grew up in Bosnia where she married. There are two children from the first marriage. Her first husband died in 1989 from a brain haemorrhage. In 2006 she remarried an Australian Citizen of Bosnian background. She then came to Australia to live. Initially she settled in Perth and then she and her husband came to Melbourne to live.
10 Ms Horozovic separated from her second husband in about November 2007 in acrimonious circumstances. He forced her out of the home. He was abusive towards the Plaintiff.
11 Prior to the transport accident, the Plaintiff was seeing Dr Wickins and a Bosnian speaking clinical psychologist, Ms Ivana Pajkic. She was being treated for Major Depression and Post-Traumatic Stress Disorder relating to the circumstances concerning the breakdown of her marriage.
12 Ms Horozovic was also involved in a minor transport accident on 1 February 2008. On that occasion, she was a passenger in a vehicle being driven by a friend, who failed to ‘give way’, and their vehicle was struck by another vehicle on the rear passenger side. The Plaintiff was shaken but did not suffer any significant injury and did not seek medical treatment.[7]
[7]Plaintiff’s Affidavit sworn 19 April 2013 [6], PCB 9
13 In respect to the Plaintiff’s physical injuries relating to this earlier transport accident, there are no clinical records. Dr Wickins in a report dated 21 January 2010 states that Ms Horozovic told him that she had been in the earlier accident in 2008 and in the first one she injured her left shoulder, neck and upper back. He records that the Plaintiff re-injured her neck and upper back in the latter transport accident.
14 Given that there was no treatment in respect to any injury related to the earlier accident, I accept that Ms Horozovic did not have any pre-existing neck problems when she was struck on the 5 May 2008.
15 However, given that Ms Horozovic did suffer from a pre-existing psychiatric injury, it is necessary for her to establish that the psychiatric injury which has been caused by, or is a result of, the transport accident is a “serious injury”. This means that the Plaintiff must show that the aggravation injury itself is, in its consequences, a serious injury.[8]
[8] Petkovski v Galletti [1994] 1 VR 436, 444
16 Ms Horozovic gave evidence and was cross-examined extensively. She was assisted in Court by an Interpreter. No other evidence was called. As is usual in these applications, the parties tendered affidavits, medical reports and clinical notes that were all exhibited. I have read and had regard to all the exhibited materials.
The psychiatric consequences
17 I shall firstly deal with the psychiatric consequences of the injuries suffered in the transport accident.
18 Ms Horozovic’s case was opened by Mr Richards, QC on the basis that prior to the transport accident she was feeling much better in herself emotionally and had overcome the emotional trauma of the separation from her second husband.
19 A different picture emerged during cross-examination. In cross-examination, the Plaintiff confirmed that Dr Wickins saw her on 7 January 2008. At that time, he prescribed Zoloft for depression, Stilnox for sleep, and some blood pressure medication. She confirmed that prior to the transport accident, she was taking anti-depressants.[9]
[9]Transcript (“T”) 15, L26-31
20 Ms Horozovic explained in her evidence that after she saw Dr Wickins she “got over it” and that her anxiety passed and she started to settle down. She obtained her own home (a unit) and was looking forward to starting classes in English. She had started to live a life of her own and had started to see that everything was going to be alright and that she wanted to go to work to be independent. She had gotten over her problems and everything was looking well for her.[10]
[10]T16, L1-13
21 She stated that Ivana Pajkic, the psychologist, was helping her to get over her anxiety and she said that she had stopped seeing her at the time of the accident less and less, and she was feeling better, so she did not need to go as often anymore.[11]
[11]T16, L23-26
22 Ms Pajkic’s records show that the Plaintiff attended her in February 2008 and on 5, 12 and 26 April 2008. She also saw her on 3 May 2008, just a few days prior to the transport accident.
23 Dr Wickins’ notes on 16 April 2008 (10 days before the transport accident) show that he was treating the Plaintiff following her marital problems. He records, “She was crying less frequently. However, most often symptoms were not changed. She was a little bit happier and felt confident with her interaction with Ivana, her psychologist. That allowed her to feel a little more confident and hopeful.” When this entry was put to Ms Horozovic, she agreed with its contents.[12]
[12]T19, L19-30
24 Dr Wickins also recorded that she was still not enjoying any particular activity. She lacked motivation and needed to be pushed to go out and do activities. The Plaintiff acknowledged that was the case, but stated that she was still getting better, starting to get back to a normal life, and was leading a more normal life prior to the accident.[13]
[13]T20, L2-7
25 She stated that at that time in April 2008, she would go out on her own in public.[14] In contrast, Dr Wickins’ notes record that she always needed her friend, Semsa, to accompany her in public and that she was fearful of going outdoors “associated with paranoia”. Ms Horozovic could not recall that being said. She acknowledged that that must have been before the accident.[15] She said that Semsa her friend was helping her prior to the accident. That changed afterwards because she moved from North Dandenong to her unit in Doveton.[16]
[14]T20, L8-9
[15]T20, L10-17
[16]T20, L26-30
26 Further, in cross-examination, Ms Horozovic insisted that prior to her transport accident she was gradually getting better. She could not remember whether she was taking the Stilnox that was prescribed prior to the transport accident.[17] She also could not remember being prescribed Zoloft prior to the transport accident or whether she was taking it.[18]
[17]T21, L24-28
[18]T22, L2-6
27 Ms Horozovic was very unclear about what it was that both Dr Wickins and Ms Pajkic were treating her for prior to the transport accident. She could not remember, in particular, the prospect of Dr Wickins referring her to a psychiatrist for treatment prior to the transport accident.[19]
[19]T23, L19-23
28 She insisted that she was much better before the accident. She loved to live and all that has changed since the accident.[20]
[20]T23, L24-29
29 The clinical notes from Dr Wickins show that the Plaintiff attended on eight occasions in respect to the treatment for Major Depression and problems with sleeping prior to the transport accident. She was prescribed Zoloft and Stilnox.
30 On 30 April 2008, following an attendance, Dr Wickins wrote to Associate Professor Jon Jureidini, Psychiatrist, noting the Plaintiff’s background history and current mental status.
31 He described Ms Horozovic as follows:
“Mental state – frequent teariness, very depressed faces, poor eye contact, looking down, sad appearance. Slowed rate of thought, poverty of thought, pessimistic thought content, repetitive themes of abuse and terror. Attention span very short, unable to concentrate on a particular topic for more than a few seconds. Oriented, impaired short-term recall, long-term memory intact. Insight fair but uncertain, influenced by cultural and personality factors. Progress since that time - treatment …with community agencies to organise housing, food, English classes, support group, TV, outings. Otherwise poor support network, except a friend who keeps in close contact. Weekly counselling from psychologist who speaks Croatian/Bosnian. No psychiatric referral as yet. Gradually increased dosage of Zoloft to 200 mgs; current dose as from 16 April, hypnotics occasionally (Stilnox). Overall her progress is little changed. The main features that have slowly improved a lot are suicidal ideation, sleep patterns, appetite. Mood fluctuates a little less but themes of loss, pessimism, hopelessness ‘paranoia’ and helplessness continue.”[21]
[21]Defendant’s Court Book (“DCB”) 42-43
32 Dr Wickins sought advice with respect to what therapeutic options he ought to consider next. He anticipated that the Plaintiff would not cope well with a psychiatric admission but said that remained a possibility.[22]
[22]DCB 43
33 Associate Professor Jon Jureidini responded, “Although the patient continues to suffer a great deal things are moving in the right direction. Recovery from such a lifelong pattern of trauma will be slow”. He did not recommend any changes in the medication regime. He recommended that if Dr Wickins was unhappy to continue with her current medication then he suggested a referral to a psychiatrist. He recommended ongoing support.[23]
[23]DCB 44-45
34 Ms Ivana Pajkic’s clinical notes from 9 February 2008 to 3 May 2008[24] show the Plaintiff was having real difficulties coping with the breakdown of her marriage.
[24]DCB 46-59
35 The inference to be drawn from the clinical notes of both Dr Wickins and Ms Pajkic is that in the week leading up to the transport accident Ms Horozovic’s mental state was not settled. She was being actively managed for her Major Depression, anxiety and features of Post- Traumatic Stress Disorder related to the marriage breakdown.
36 Ms Pajkic, in a report dated 4 January 2010, states she has continued to treat Ms Horozovic following the transport accident. She considers she suffers from symptoms characteristic of Post-Traumatic Stress.
37 She acknowledges that Ms Horozovic has previously been diagnosed with a number of mental conditions including Adjustment Disorder with depressed mood, Major Depression, and Post-Traumatic Stress Disorder resulting from the breakdown of her second marriage.[25]
[25]PCB 21
38 In the course of therapy she made significant progress. However, the symptoms of the Post-Traumatic Stress Disorder returned as a result of the transport accident.[26]
[26]PCB 21
39 In her up to date report, Ms Pajkic states that Ms Horozovic reports a reduction in flashbacks and nightmares and a stable appetite but no progress in dealing with leaving home without feeling unsafe and anxious.[27]
[27]PCB 23
40 She considers that her psychological condition has not yet stabilised but signs of improvement have been reported and observed on an intermittent basis.[28]
[28]PCB 24
41 She is optimistic that with further psychological counselling, improvement is likely.[29]
[29]PCB 25
42 She considers overall that the transport accident aggravated her pre-existing mental state. The aggravation was moderate to severe.
43 For the purposes of these proceedings, Ms Horozovic has been examined by a number of independent medico-legal consultants, including psychiatrists. The Plaintiff seeks to rely on the reports of Dr Nicholas Ingram, Dr Paul Kornan and Dr Nigel Strauss.
44 Dr Nicholas Ingram, Psychiatrist, saw her on 25 October 2010. He was aware of the treatment prior to the transport accident for anxiety and depression as a result of her difficult personal circumstances and the fact that she was having psychological counselling and taking anti-depressant medication.
45 He assessed the Plaintiff for psychiatric impairment using the AMA Guides, 4th Edition. He rated her as suffering from a Chronic Adjustment Disorder with depressed and anxious mood. He assessed a 14% impairment, mostly a secondary consequence of the transport accident, and the subsequent chronic pain, although he said 2% was pre-existing. He also considered the Plaintiff was suffering from elements of a Post-Traumatic Stress Disorder and a phobia of crossing the road, and this causes 6% impairment, which is the primary consequence of the accident.[30]
[30]PCB 148
46 Dr Paul Kornan, Psychiatrist, saw Ms Horozovic on 6 December 2012. He diagnosed Major Depressive Disorder, Adjustment Disorder with anxiety and specific phobia, that is, fear of crossing the road and, in particular, crossing at a pedestrian crossing.[31]
[31]PCB 67
47 He noted that she was still attending a psychologist, Ms Pajkic, every two weeks or every month, and that she was being prescribed Effexor, an anti-depressant, one tablet per day. She was also taking Brufen and Panadol and receiving ongoing support from her family doctor.
48 Dr Kornan recommended that treatment should be continued. He assessed her whole person psychiatric impairment at 20%. He attributed 8% to the pre-existing condition relating to the break-up of her marriage. The prognosis is for her to remain at the current levels until the foreseeable future.
49 He acknowledged that the Plaintiff suffers from a pre-existing psychiatric condition aggravated by the transport accident. He considered that there has been a significant aggravation to her psychiatric condition as a result of the transport accident.[32]
[32]PCB 7
50 Dr Nigel Strauss, Psychiatrist, saw Ms Horozovic on 23 September 2014. He noted that she had been diagnosed with a Post-Traumatic Stress Disorder by Ms Pajkic and also an Adjustment Disorder related to the breakdown of her second marriage.
51 He confirmed that she suffers post-traumatic stress symptoms, Chronic Adjustment Disorder with mixed anxiety and depressed mood and disorder associated with her physical condition in psychological factors.[33]
[33]PCB 111.6
52 He accepted that she had personal issues and psychological difficulties before the transport accident but considered that the accident has been a significant contributing factor in her ongoing psychiatric difficulties, including evidence of traumatisation, anxiety and depressive symptoms.
53 Dr Strauss recommended ongoing psychological counselling for 6 to 12 months and also emphasised the need for therapeutic dosages of anti-depressants. He considered her prognosis to be guarded and stated he considered that she was significantly disabled because of the transport accident.
54 He believes that the pre-existing psychiatric problems were aggravated by the transport accident and that aggravation was significant, in his opinion, and remains so.
55 Dr Michael Duke, Psychiatrist, examined Ms Horozovic on 19 August 2014 at the request of the Defendant’s solicitors. He confirmed that she was suffering pre-existing Post-Traumatic Stress Disorder consequent to the violent abuse and sexual abuse from her former husband. He did not relate that to the transport accident.
56 He considered that she had acquired a specific phobia, that is, a fear of crossing roads, as a consequence of the transport accident that is untreated. Improvement would occur if she received any form of treatment that is recognised as the treatment for acquired specific phobias.[34]
[34]DCB 25
Conclusions in relation to the psychiatric injury
57 On the basis of the clinical information that was available at or around the time of the transport accident, in particular the clinical notes of Dr Wickins together with his correspondence to Associate Professor Jon Jureidini, Psychiatrist, and Ms Pajkic’s clinical notes, I consider that Ms Horozovic’s clinical presentation was acute at or around the time of the accident. Her psychiatric condition had not stabilised and was continuing to require interventions.
58 As a consequence of the transport accident, I find that Ms Horozovic suffered an aggravation of her pre-existing Post-Traumatic Stress Disorder and Major Depression and independently developed a specific phobia about crossing roads.
59 I accept on the basis of the expressed opinions of Drs Ingram, Strauss and Kornan that as a result of the transport accident there has been a significant aggravation of her psychiatric condition.
60 In assessing the psychiatric consequences I must have regard to the fact that the word ‘severe’ in paragraph (c) of the serious injury definition is a word of stronger force than the word ‘serious’ in paragraph (a) of that definition.[35]
[35]Accident Compensation Act 1985 (Vic), s134AB(38)(d).
61 Further, I am required by s 134AB(38)(d) of the Act to judge the relevant consequences ‘by comparison with other cases in the range of possible mental or behavioural disturbances or disorders as being more than serious to the extent of being severe’.
62 I consider in this case that there is an absence of features that are ordinarily seen in psychiatric disorders at the more severe end of the spectrum. There have not been any serious symptoms of suicidal ideation or attempts necessitating any admissions to hospital or emergency treatment. The Plaintiff has required ongoing counselling and medication but has had no psychiatric referral or treatment, nor any psychiatric admissions.
63 In those circumstances I do not consider that the Plaintiff has discharged the necessary burden of proof. I am not satisfied that she has sustained a mental or behavioural disturbance or disorder as a result of the transport accident, the consequences of which could be fairly described as being “more than serious to the extent of being severe”.
64 On that basis her claim, in relation to paragraph (c) fails.
Physical impairment and consequences
65 Ms Horozovic has been managed conservatively following the transport accident. She continues to see Dr Wickins on a monthly basis. He prescribes Brufen, Effexor and Pariet.
66 Dr Wickins has provided comprehensive reports detailing his treatment. He wrongly recorded that Ms Horozovic suffered a head injury which caused severe concussion following the transport accident. Neither the ambulance records nor the hospital records confirm this to be the case.
67 I reject his expressed opinion that Ms Horozovic suffered discal injury to her cervical spine as a consequence of the accident. I nonetheless accept his expressed opinion that her injuries are soft tissue, that is, musculo-ligamentous to the low back, left shoulder, neck, left hip and thigh.
68 Dr Wickins confirms that as a result of the long-standing need for anti-inflammatory medication, namely, Brufen, Ms Horozovic probably has a diagnosis of gastritis and/or oesophagitis.[36] He prescribed Pariet for that condition and confirms that she is currently awaiting a gastroscopy.
[36]PCB 38
69 He has recently started prescribing Endep to assist with sleep.[37]
[37]PCB 16
70 In August 2010 Ms Horozovic underwent treatment at the Victorian Rehabilitation Centre where she completed a five or six week course with extensive physiotherapy, hydrotherapy, occupational therapy and counselling. She had some temporary pain relief from the hydrotherapy and received instruction on how to avoid strain on her spine.
71 Dr Wickins injected the left upper thigh with Cortisone on one occasion in November 2012 to try and improve pain but this did not help.
72 In his latest report of 3 August 2014, Dr Wickins confirms that Ms Horozovic’s diagnosis remains unchanged in that she requires ongoing medication, oral and topical, when required for pain control and anti-inflammatory effect. Medication is also required for reduction of depression. Ice and/or heat packs are required for exacerbations of pain. Psychological counselling is required to assist with her symptoms of phobia and depression.
73 He considers that hydrotherapy is highly desirable and that that will continue weekly for the foreseeable future in order to achieve a more sustained degree of improvement. Unfortunately, she cannot afford the intensity and frequency of treatment that is required.
74 He notes, in respect to her functional capacity, that currently she retains restriction of speed and range of mobility when climbing up or down stairs, walking and bending her back. She still experiences an increase in pain in the neck and back after prolonged sitting for more than about 30 minutes. She has limitations to the amount of shopping she can lift or carry. He considers it is likely that her impairment is permanent. Her injuries have stabilised even though symptoms fluctuate considerably from day-to-day.[38]
[38]PCB 49
75 Currently, Ms Horozovic takes Brufen, an anti-inflammatory, one or two a day, and Panadeine in the morning and evening, and otherwise during the day or night if her neck pain feels worse. She also uses Voltaren cream and Methyl Salicylate to rub into her neck, back, hip and leg.[39]
[39]PCB 11, [14]
76 Ms Horozovic states that she experiences chronic neck pain with flare-ups. Sometimes she has to stop and lie down and take some Panadeine. The pain usually lasts for about 30 minutes or until she can go to sleep. She said it spreads to her shoulders, is worse on the left side, and at times when the pain is worse her left ear can feel blocked. The neck pain is made worse if she moves her head too quickly. She also gets increased discomfort when she feels more anxious. She also has pain in the left thigh and upper leg and in the back.[40]
[40]PCB 11, [15]-[17]
77 In her latest affidavit of 26 September 2014, Ms Horozovic states that she has neck pain all the time which radiates into the back of her head and the left shoulder. She also has episodic periods of neck pain which is so severe that she is unable to do much other than lie down, and that she usually experiences that type of sharp, severe pain two or three times a week. She also suffers from frequent headaches. She says she has difficulty sitting or standing for extended periods of time.[41]
[41]PCB 15, [3]-[5]
78 In re-examination she was asked by Mr Richards how her back felt as she was giving her evidence. She answered “It hurts, but I’ll put up with it.”[42] In so far as her neck was concerned she said, “I am trying to put up with it because we are here and I am trying to cope with it. It hurts, but we are here.”[43]
[42]T36, L1-5
[43]T36, L6-9
79 From my observations of the Plaintiff whilst she was sitting in the witness box giving evidence, there did not appear to be any apparent level of postural discomfort. Ms Horozovic moved her neck about freely and did not seem to be restricted in her range of neck movement.
80 Ms Horozovic states that she continues to experience disturbed sleep and has difficulty getting comfortable. She says that since the accident she often feels as though she has little to look forward to in life and she is very restricted due to pain and anxiety.[44]
[44]PCB 17
81 Ms Horozovic states that her friend, Catherine Sadikay, visits her two or three times a week and encourages her to get out of the house, to go and have a coffee together, or to go to the local shops.
82 Ms Catherine Sadikay, in her affidavit, states that she has known Ms Horozovic for about four years through a family friend. She was aware of the transport accident and the injuries suffered. She confirms that she sees Ms Horozovic two or three times a week and speaks to her daily on the telephone.
83 She says that Ms Horozovic has flare-ups of severe pain which seem to occur once or twice per month, the consequences of which is that she is unable to leave the house. She goes around and assists her with anything she can to make her a bit more comfortable.
84 She assists with heavier household duties such as mopping, vacuuming and gardening, which she has difficulty performing due to her pain and restrictions. She said that Ms Horozovic does not venture out of the house and is afraid of crossing roads and being a pedestrian generally. She encourages her to leave the house and accompanies her to local shops or a coffee shop. She drives her to medical appointments when she can and does try to support and assist the Plaintiff as much as she can.[45]
[45]PCB 18.2
85 In cross-examination, Ms Horozovic confirmed that she had returned home to Bosnia to visit following the transport accident. She could not precisely recall the actual number of visits. It was put to her that she returned in 2009, 2010, 2011, 2012 and recently in May/June 2014.[46]
[46]T11,L29-31; T12,L1-2
86 She agreed that she would stay upwards of two to three months.[47]
[47]T12, L14-16
87 This necessitated air travel from Australia. She agreed that it is over 20 hours flying time to Belgrade (Serbia)[48]. She would then be collected by relatives who would drive her to the various towns where they lived. Those travel times varied and were up to two or three hours to travel to her mother in Serbia, six to seven hours to travel to her son in Sarajevo, and four to five hours in respect to her daughter in Zenica.[49]
[48]T13, L9-10
[49]T14, L8-13
88 In respect to the most recent trip undertaken earlier in 2014 Ms Horozovic confirmed that she was able to travel between relatives. She attended family gatherings where she met friends. She enjoyed the company of her relatives and friends.[50]
[50]T14, L14-26
89 She confirmed that she would visit the mosque whilst in Bosnia if it was close by.[51]
[51]T30, L26-27
90 Ms Horozovic stated that she would take her medication with her and take it whilst she was away and she enjoyed the company of her closest relatives and friends.[52]
[52]T14, L27-31; T15, L1
91 The evidence about the numerous trips to Bosnia provides a rather stark contrast to the picture that was painted in the Plaintiff’s affidavits, that is, of a person who is virtually confined to her house due to pain who has to be encouraged to leave.
92 Ms Horozovic stated in cross-examination that she would like to attend the mosque but did not do so because of the pain.[53]
[53]T30, L26-27
93 It became apparent during the cross-examination that Ms Horozovic did attend the mosque in Noble Park for about three years after the accident. The reason why she was not able to go recently was due to the lack of a person to drive her now that she had moved to Doveton and not due to her injuries.[54]
[54]T13, L15-17; T31, L29-30
94 Medico-legal specialists have examined the Plaintiff on behalf of her solicitors in respect to her physical injuries.
95 Mr Charles Flanc, Vascular and General Surgeon, reviewed her on 26 May 2010, 3 April 2013 and 16 July 2014.
96 Following his examinations and review of all the relevant information, he confirms that she sustained a significant aggravation of a pre-existing degenerative condition of the cervical spine and that it became symptomatic as a result of the transport accident. There is no evidence of radiculopathy.[55]
[55]PCB 95
97 Insofar as the lumbar spine is concerned, he states that the transport accident has resulted in a significant aggravation of pre-existing degenerative condition of the lumbar spine and he has said that it became symptomatic with no evidence of radiculopathy.[56]
[56]PCB 95
98 He considers the left thigh diagnosis to be uncertain. He notes in respect to the tenderness in the outer part of the upper left thigh in the region of the greater trochanter and below, there is a possible diagnosis of trochanteric bursitis, but more investigation is required.
99 He considers the Plaintiff’s condition has stabilised and it is likely that she will continue to suffer the symptoms, although the severity may fluctuate.
100 Mr David Brownbill, Consultant Neurosurgeon, saw Ms Horozovic on 24 April 2013 and 15 July 2014.
101 He considers that she sustained aggravation of the cervical spine and lumbar spine degenerative changes in the accident of 5 May 2008, giving rise to pain which has continued in a fluctuating manner but without neurological damage.
102 He considers that there is a marked emotional response, as suggested by her demeanour, that may be accentuating her own perception of pain and restrictions. He considered it prudent for her to avoid any heavy lifting, forced spinal or cervical spine mobility, repeated bending or prolonged standing or sitting or holding her neck in a fixed position.
103 He regarded the Plaintiff’s condition as stable and did not anticipate any untoward neurological sequelae.[57]
[57]PCB 122
104 Mr Gary Grossbard, Orthopaedic Surgeon, examined Ms Horozovic on 12 March 2013. He considers that she was very difficult to assess, as there were many contradictions in her history and discrepancies in her physical findings, particularly between the formal and informal examinations, as exemplified by the difference he recorded in her neck movement.
105 He considers that she did have limited movement of the left hip with pain on internal rotation. The x-ray of the left femur undertaken shortly after the injury did not reveal any abnormality in the hip joint. He could not feel any fascial defect and stated that it would be interesting to see whether she has developed some extrosseous calcification, perhaps a haematoma, since the time of the original x-ray.
106 He considers that she had long-standing degenerative disease of both cervical and lumbar spine which relate to her neck and shoulder pain symptoms and back and, possibly, lower leg symptoms.[58]
[58]PCB 126
107 He confirms that the MRI scan of the cervical spine revealed degenerative disc disease in the mid-cervical area from C4 to C7 with broad based posterior central bulging and neural foramen compromises at C5-6 and C6-7. The lumbar spine scan confirms degenerative disease at L4-5 and lumbosacral levels with some mild broad based central bulging in posterior annular tear. There was no evidence of nerve root compromise.
108 He performed an impairment assessment and concluded that she had a 12% whole person impairment and the Plaintiff’s condition was stable and unlikely to change in the future.[59]
[59]PCB 127
109 Ms Horozovic was reviewed by a number of medico-legal specialists on behalf of the Defendant. However, Mr Elliott did not seek to rely upon earlier reports obtained from Dr Clive Kenna, consultant in Musculoskeletal Pain Management, Mr Tony Kostos, Rheumatologist, or Dr Kevin Fraser, Rheumatologist.
110 Mr Elliott relied upon the report of Mr Michael Dooley, Orthopaedic Surgeon, who reviewed Ms Horozovic at the request of the Defendant on 1 August 2014.
111 Mr Dooley noted the complaints of ongoing pain, particularly episodes of back and neck pain, pain in her left thigh, difficulty sleeping. He was aware of the Plaintiff’s history of conservative management and also the fact that she takes Brufen and Panadol for the pain and uses creams and gels on her thigh, and takes anti-depressant medication.
112 At the time he examined Ms Horozovic, he reviewed the reports of the MRI scan taken in January 2010 which showed the whole spine. He agrees that scan reported degenerative disease at C5-6 and C6-7 levels, mild degenerative disc disease of the thoracic spine and degenerative disc disease at L4-5 and L5-S1 levels in the lumbar spine.
113 He confirmed that Ms Horozovic suffered an impact soft tissue injury to the left thigh region with possible soft tissue injury to the cervical spine and a possible soft tissue injury to the lumbar spine as a result of the transport accident.
114 He confirmed that it was possible that she sustained soft tissue injury to her cervical and lumbar spine as a result of the accident and that may have involved some musculoligamentous damage and some aggravation of the naturally occurring degenerative disc disease. Ms Horozovic has reported ongoing pain in the spinal region with, at times, severe episodes of pain.
115 He says that clinically there is no evidence of an objective neurological deficit affecting the limbs. It is his view that the constancy and intensity of the Plaintiff’s ongoing pain and described disability are greater than one would expect to see for her condition. He considers psychological factors significantly influence her ongoing symptoms.
116 From an orthopaedic view, he believes that the appropriate treatment is for her to remain generally active and to undertake low impact exercise. It would be reasonable for her to continue to take simply analgesia/anti-inflammatory medication. She does not require ongoing formal conservative treatment or surgical intervention for her management.
117 From an orthopaedic view, he expects her to note some intermittent neck and back pain and occasional thigh pain. He does not expect her injuries to deteriorate in time.[60]
Conclusions physical injury
[60]DCB 30
118 I accept, having regard to the consensus of medical evidence, that Ms Horozovic suffered soft tissue injury and an aggravation of degenerative changes in the cervical and lumbar spine as a consequence of the transport accident.
119 It is now settled law that the spine is a single body function and therefore the Plaintiff’s impairment of the cervical spine and the lumbar spine can be aggregated for the purposes of paragraph (a) of the definition of “serious injury”.[61]
[61]Transport Accident Commission v Zepic[2012] VCC 305
120 Paragraph (a) of the definition of serious injury focuses upon impairment or loss of body function and requires that the impairment or loss be both ‘serious’ and ‘long-term’.[62]
[62]Humphries v Poljak [1992] 2 VR 129, 134 (‘Humphries’). This was the submission of the defendants, the correctness of which Crockett and Southwell JJ accepted.
121 The test for determining whether Ms Horozovic has suffered serious long-term impairment or loss of a body function is subjective in the sense that it is the effect on her particular body function that must be considered. That determination, however, must be objectively made: it is the judge’s opinion as to the seriousness of the impairment or loss – not that of the applicant or his or her medical practitioners – that is decisive.[63]
[63]Humphries [1992] 2 VR 129, 137.
122 Ms Horozovic has the burden of proving, on the balance of probabilities, that she has suffered an impairment or loss of a body function that, as a result of the injury complained of, is both serious and long-term.
123 In order to be ‘serious’, the consequences of the injury must be serious to her in relation to either pecuniary disadvantage or pain and suffering, or both. Moreover, it must be established that the injury, when judged by a comparison with other cases in the range of possible impairments or losses, can be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.[64]
[64]Humphries [1992] 2 VR 129, 140.
124 Ms Horozovic has not worked since she arrived in Australia. She had a history of working in retail in Bosnia but had not worked for many years.[65] She has very poor English skills that is a relevant consideration in terms of her not being able to work. Further, her reaction to her marital breakdown and the circumstances of her separation also precluded her from pursuing employment prior to and following the transport accident. I therefore do not accept she has suffered serious consequences in so far as pecuniary disadvantage is concerned.
[65]PCB 7, para [1]
125 I consider that the nature of the Plaintiff’s injury and the pain and suffering consequences relating to the physical injuries suffered in the transport accident were not as dramatic as how it is presented in the affidavit material relied upon by the Plaintiff.
126 Nevertheless I accept that the Plaintiff does suffer some neck, back and thigh pain of an intermittent nature managed by mild pain relief and Brufen. I accept that her condition does flare up occasionally causing her extra discomfort. I further accept that she has some sleeping problems and now has stomach problems due to the medication. I accept that the Plaintiff has suffered impairment to her spine as a consequence of her injuries that is long term and I accept that that impairment is serious to the Plaintiff.
127 In making my assessment of the Plaintiff’s impairment I have considered the psychological consequences of the physical condition pursuant to the principles set out in Richards v Wylie.[66]
[66]Richards v Wylie (2000) 1 VR 79, 86-8 [16]-[17], [19] (Winneke P), 89 [23]-[24] (Buchanan JA), 90 [28] (Chernov JA) (‘Richards’).
128 Ultimately, I am not satisfied that those consequences meets the narrative test for “serious injury”. This is so particularly when judged by a comparison with other cases in the range of possible impairments or losses. I am not satisfied that Ms Horozovic’s impairment to the spine can be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.[67]
[67]Humphries [1992] 2 VR 129, 140.
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