Jansen v Transport Accident Commission
[2015] VCC 29
•6 February 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-13-02851
| THEREASE CATHERINE JANSEN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 and 18 August 2014 (Defendant to serve and file written submissions by 2 September 2014 after which the plaintiff is to file and serve written submissions by 16 September 2014) | |
DATE OF JUDGMENT: | 6 February 2015 | |
CASE MAY BE CITED AS: | Jansen v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 29 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – paragraph (a) – issues of credit – limited radiological support – appropriate principles
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis & Ors [1998] 3 VR 833; Petkovski v Galletti [1994] 1 VR 436; Richards & Anor v Wylie (2000) 1 VR 79; De Agostino v Leatch & Transport Accident Commission [2011] VSCA 249; Sutton v Laminex Group Pty Ltd [2011] VSCA 52
Judgment: Leave to the plaintiff to bring common law proceedings in respect of the transport accident which occurred on 31 December 2008. Leave to the plaintiff to bring common law proceedings in respect of the transport accident which occurred on 2 July 2010 refused.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R M W McGarvie QC with Ms F Ryan | Robertson Gill |
| For the Defendant | Mr A Moulds QC with Ms S Manova | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 By way of Originating Motion dated 5 June 2013, Therease Catherine Jansen, (“the plaintiff”), seeks leave pursuant to s93(4)(d) of the Transport Accident Act 1986, as amended (“the Act”), to bring common law proceedings to recover damages for spinal injury (“the injury”) suffered by her arising out of:
(a)a transport accident which occurred on 31 December 2008 (“the first transport accident”); and
(b)a transport accident which occurred on 2 July 2010 (“the second transport accident”).
2 Senior Counsel for the plaintiff informed the Court that the “emphasis” was on the first transport accident, but if the Court was against the plaintiff in relation to that accident, he would rely on the second transport accident.[1]
[1]Transcript (“T”) 7, L29 – T8, L11
3 The plaintiff gave evidence and was cross-examined. Both parties tendered various documents.[2]
[2]See Annexure A
Relevant legal principles
4 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.[3]
[3]See s93(6) of the Act
5 The plaintiff relies on paragraph (a)[4] of the definition of “serious injury” contained in s93(17) of the Act, which reads:
“In this section –
serious injury means—
(a) serious long-term impairment or loss of a body function”
[4]Initially the plaintiff also relied on paragraph (c) but during the opening of the matter, abandoned any reliance on paragraph (c). T19, L14 – 17
6 The part of the body said to be impaired for the purposes of paragraph (a) in relation to the first and second transport accidents was said to be “the spine, particularly of the thoracic and cervical level”.[5]
[5]T9, L16 – 19
7 In order to succeed, the plaintiff must prove, on the balance of probabilities:
(a)“The injury” suffered by her was the result of the first transport accident and/or the second transport accident;
(b)The requirements of the test set out in the seminal decision of Humphries & Anor v Poljak,[6] wherein a majority of the then Full Court of Victoria stated:
“Subs(17) intends a division between injuries with physical consequences and those with mental consequences. The former fall under para(a) and the latter under para(c). It would be anomalous to regard the consequences of mental disturbance or disorder to fall under para(a) when the disturbance or disorder itself fell to be judged by whether they satisfied the criteria of para(c). A ‘functional overlay’ will, we consider, rarely amount to a behavioural disturbance or disorder as that term is used in the legislation.
Now, in the light of the various matters to which we have referred in the foregoing propositions that we have stated or conclusions to which we have come, we think that the task of a judge confronted with the requirement to determine an application made pursuant to subs(4)(d) when reliance is placed upon subs(17)(a) may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”;[7]
(c)“Serious injury” as defined in sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment – however, the mental disorder cannot in itself constitute or be the producer of the impairment of a body function.[8]
[6][1992] 2 VR 129
[7]Humphries (op cit) at 140. Also see Mobilio v Balliotis & Ors [1998] 3 VR 833
[8]Richards v Wylie [2000] 1 VR 79
8 When queried as to what were the issues, Senior Counsel for the defendant informed the Court that there was no issue in relation to the plaintiff being involved in both transport accidents and suffering a degree of soft tissue injury in each accident.
9 Issues arose as to whether there was any impairment of the spine in relation to the first transport accident or, indeed, the second transport accident and, if so, whether the consequences of either accident met the test set out in Humphries & Anor v Poljak.[9]
[9]Op cit
10 Furthermore, Senior Counsel for the defendant stressed (and later accepted by Senior Counsel for the plaintiff) that if it came to assessing the second transport accident, it would be on the basis that it aggravated a pre-existing condition and there would need to be application of the decision of Petkovski v Galletti.[10]
[10][1994] 1 VR 436 and in particular page 444
The background of the Plaintiff, her injury and medical treatment
11 The plaintiff gave evidence that her affidavits sworn on 5 December 2012 and 4 August 2014[11] were true and correct[12] save for the following:
[11]Such affidavits were sworn by Therease Jansen, which is the maiden name of the plaintiff rather than her married name “Popovic”.
[12]T21, L30 – T22, L1
(a)At paragraph 17 in her first affidavit, she states:
“As a result of the second accident I was diagnosed with a fractured sternum. I had to wear a neck brace for eight weeks. … .”
The plaintiff gave evidence that she was informed by Dr Kenneth Tate of the Yarra Valley Community Medical Service that she had a broken sternum, but she accepted that it was perhaps better put that she was “diagnosed” with a fractured sternum or a suspected fracture of the sternum.
The following evidence was given:
HIS HONOUR:
Q: “As events had turned out, Mrs Popovic, to your knowledge you have not got a fractured sternum?---
A: Because of the pain that I had suffered for many weeks after, I still believe that there was definitely some kind of fracture or something, even that wasn’t evident on the files. I understand it could have just been impact or bruising, but in my understanding and the way I was feeling and the fact that it took so many weeks, six to eight weeks, for the pain to really start diminishing.”[13]
[13]T20, L22 – 30
(b)In paragraph 10 of her second affidavit, the plaintiff states:
“I have developed depression as a result of the constant pain and restrictions. I take Cymbalta, an antidepressant medication. … .”
The plaintiff gave evidence that about a week prior to the hearing, her medication was changed from Cymbalta to Zoloft. Such change came about as a recommendation from her doctor, as it was considered that the Cymbalta was interfering with the Tramadol she was taking and causing heart palpations.
12 By way of her first affidavit, the plaintiff gave the following pertinent evidence:
·She is thirty-two-years-old, lives with her partner, Daniel, and four children aged between seven months and six years.
·On completing her VCE in 1999, she commenced a biotechnology course, of which she has completed two years of the four-year course.
·In 2003, she moved to Perth for eight months, where she managed a restaurant, after which she returned to Melbourne and obtained a job as a manager in a Fasta Pasta restaurant, where she worked as a manager until her eldest child was born in late 2006.
·She describes the circumstances of the first traffic accident in the following way:
“On 31 December 2008 I was driving along the Maroondah Highway at Narbethong when the car in front of me stopped suddenly and without warning and turned right. I managed to brake in time as did the two cars behind me but the third car behind me collided with the rear end of the car in front of it, causing a concertina type collision. My mother and two children were in the car with me.”[14]
[14]See paragraph 5 of the first affidavit
·“The force of the collision” immediately caused pain in the right side of her neck and some pain in her right hip, right shoulder and right arm.
·She did not seek treatment immediately because it was New Year’s Eve and it would have been impossible to get an appointment with a doctor, and also her “main concern” was getting her children home and making sure they were safe.
·At that time, she was separated from Daniel and was a single mother, but the two have since reconciled.
·She attended her general practitioner, Dr Ken Tate, on 2 January 2009 complaining of constant neck pain. She was referred for x‑rays of her cervical spine.
·Because of ongoing neck pain, she was referred to Dr Catherine Green, a chiropractor at the Healesville Back Clinic, where she underwent a course of spinal manipulative therapy consisting of twenty-four visits over fourteen months. The neck pain, which was focussed on the right side of her neck, did not improve.
·Her mother moved in with her on a temporary basis to help look after the children. She struggled to cope with family and work pressures after the first transport accident because of constant neck pain and stiffness. She also suffered pain and discomfort in her right arm.
·In March 2009, she commenced a Bachelor of Science, as she did not want to return to the restaurant business after the first transport accident because she would have not been able to perform such a physically demanding job.
·In the six months immediately following the first transport accident, she was trying to study and raise two small children alone and was prescribed Effexor in March 2009 for depression. She coped with attending university and taking care of children by taking large amounts of Panadeine Forte – an average of four to six tablets per day – and also took Mobic daily.
·Rather than use a backpack, she used a wheelie bag for her books and folders, and she had difficulty writing for long periods.
·Her sleep was interrupted due to chronic neck and arm pain and her concentration was “badly affected” because of pain, lack of sleep and effects of pain-relief medication.
·In November 2009, Dr Tate referred her to the pain specialist, Dr Timothy McCarthy, and at this stage, the pain in her neck and right arm was constant and severe, together with tingling in the right arm. At that stage, she commenced to take Tramadol for pain relief and was taking up to 400 milligrams of Tramadol per day.
·Dr McCarthy recommended that she undergo nerve blocks and this was postponed as she fell pregnant in May 2010. She ceased Effexor when she fell pregnant, although continued to take a reduced amount of Tramadol, as she was not able to get through the day without it.
·Prior to the first transport accident, she played competition basketball, but had to stop playing after the first transport accident as she could not shoot baskets because of the pain in her neck and right arm. She is “very upset” about having to give up basketball.
·She describes the circumstances of the second transport accident (on 2 July 2010) in the following way:
“… I was 13 weeks pregnant. Daniel was driving and I was a front seat passenger. We were driving along the Maroondah Highway when Daniel tried to swerve around a car that was turning right in front of us. The accident happened very quickly. We were travelling at 90 kilometres per hour. Our car spun numerous times and ended up in a paddock. The air bags activated. Our son who was in the back seat hit his head on the side of the car and was covered in blood. Daniel was knocked unconscious and his legs were pinned under the car.”[15]
[15]See paragraph 15 of the first affidavit.
·Immediately following the second transport accident, she could not breathe and was in severe pain. She was conveyed to the Box Hill Hospital, where she was suffering from throbbing pain in her middle back, and her neck and right arm were also sore. She was prescribed Panadeine Forte. Her major concern was for her son, Jay, who required sutures but did not suffer from any life-threatening injury.
·As a result of the second transport accident, the pain in her neck is worse than it was before, and the pain, weakness and discomfort in her right arm has also worsened. In particular, she describes her right arm as very weak and it often feels “dead”. She has lost strength in her right arm and cannot hold a cup of tea in her right hand, cannot hold her baby in her right arm and cannot move her right arm “because I cannot bear much weight on it”. She can carry very light groceries on her right arm, but tends to use her left arm for heavier items.
·The right arm is numb from the top of the forearm down to the right hand and she also suffers from a tingling and numb sensation in the right arm and hand. Her right arm is colder than her left arm and the colour of her right arm changes, with the skin appearing pale with red dots.
·She cannot type on a computer for more than five minutes at a time, after which pain becomes unbearable and the muscles in her right hand and arm “lock up”. She has difficulty writing with a pen because it requires her to put more pressure on her arm and she is only able to write three lines at a time before having to stop.
·When she drives, her right arm tends to “go dead”, so she holds the steering wheel with her left arm only.
·She is worried about her ability to study as she plans to return to university in March 2015 to recommence her biotechnology course. After completing such course, she hopes to perform laboratory work and focus on nano technology.
·She continues to suffer from interrupted sleep and wakes three or four times each night with pain and a dead sensation in her right arm and neck. Sometimes, she also wakes up with pins and needles. She has to shake her arm in order to relieve the pins and needles. She is unable to sleep on her right side and takes Mersyndol to help her sleep.
·She takes Tramadol (200 milligrams) daily, which she tried to cease during her last pregnancy, but the pain in her neck and arm was too severe. If she does not take Tramadol, her “quality of life reduces dramatically” and she gets short tempered and snaps at the children. She attends physiotherapy on an intermittent basis.
·She cannot do any heavy lifting or heavy housework and she has a cleaner who comes to the house once a week. Her cooking is limited because of neck and right arm pain and she has difficulty preparing food such as peeling potatoes and cutting vegetables.
·After the first transport accident, she suffered severe constant neck pain and stiffness and relied on strong painkillers, including Panadeine Forte and Tramadol. She had difficulty sleeping and problems with her concentration. She had to give up playing basketball.
·After the second transport accident, the condition of her right arm “worsened” due to increased pain and discomfort in the right arm. The pain in her neck has also increased since the second transport accident but she did suffer from constant severe pain after the first transport accident.
13 In her second affidavit, the plaintiff gives the following pertinent evidence:
· Since swearing her first affidavit, the condition of her neck and right arm has not improved.
· On 8 January 2013, she underwent a course of ramus blocks administered by Dr McCarthy, which gave her relief for only a very short time. Dr McCarthy has recommended further treatment by way of radiofrequency denervation but the Transport Accident Commission has not approved the funding.
· She suffers from constant pain in her neck, right shoulder and right arm. She describes the pain in her neck travelling up her head to the back of the right eye which leads to migraines, which she suffers at least once a week.
· The pain in her neck runs down into her right arm and the arm feels weak, and she often struggles to carry heavy items using her right arm. When she suffers a flare-up of pain, she has little use of the right arm.
· Although right handed, she tends to use her left arm.
· She suffers from “bad flare-ups of right arm pain” every few weeks. Such flare-ups are brought about by increased activity sometimes, although she has woken up with increased pain. Generally, it takes about three to four days for the flare-up to recover, during which time she takes Mobic.
· Her right arm feels weaker than her left arm, and when not suffering from a flare-up, she tries to do as much as she can. She cannot avoid carrying her children but she tends to rely on her left arm more than the right and finds that she is able to do more after taking Tramadol.
· She had trouble breastfeeding her youngest child, Ruben, because of pain in her right arm.
· She takes between 100 and 200 milligrams of Tramadol daily for pain relief. When she takes 200 milligrams of Tramadol, she suffers from light-headedness, so she prefers to take 100 milligrams per day. When she takes only 100 milligrams, she also takes between four and six Panadol per day, but when the arm pain is too bad, she has no choice but to take 200 milligrams per day.
· Dr Seneviratne, her general practitioner, prescribes the Tramadol.
· Her sleep is still badly affected by pain and she uses heat packs on her neck and right shoulder every night before bed. She takes Mersyndol for pain relief before bed. She wakes up almost every night in pain and obtains on average about four hours’ sleep per night.
· She refers to the first affidavit, wherein she stated she could not hold a cup of tea in her right hand, and states that this is when she is having a “bad flare-up of arm pain”. Most days she is able to hold a teacup or light items without any difficulty.
· She resumed university studies a couple of weeks ago (Bachelor of Science in Biotechnology at Swinburne University) and so far is coping “quite well”. She is able to type during lectures, which is helpful, but five minutes of fast typing will cause her pain, so sometimes she does not take complete notes.
· For assignments she uses voice recognition software, but when she has to write out mathematical calculations by hand, she suffers increased pain and cramping in the right arm and hand.
· She attends university four days per week, consisting of two half days and two full days.
· She has been able to do a bit of work for Daniel, whom she married earlier this year. Such work involves sending out invoices and emails for his business.
· She tries to be as active as she can for her children; however, she remains limited in what activities she can perform and is reliant on Tramadol every day.
Radiological material
14 The plaintiff relies on the following radiological reports:
(a) An x-ray of the cervical spine taken on 22 January 2009.[16] Such report concludes:
[16]See Exhibit 3 at PCB 38
“Slight kyphosis in the mid cervical spine but otherwise no bony abnormality. If there is ongoing concern, MRI may be useful for soft tissue oedema or ligamentous injury. CT could be correlated if an occult bone injury is suspected.”
(b) An MRI scan of the cervical and thoracic spine undertaken on 13 March 2010.[17] That report concludes:
[17]See Exhibit 3 at PCB 39
“Low grade degenerative change. No central canal stenosis, foraminal stenosis or nerve impingement demonstrated. Intervertebral ligaments intact.”
(c) An x-ray of the chest and cervical spine undertaken on 2 July 2010.[18] That report concludes:
[18]See Exhibit 3 at PCB 40
“Allowing for the AP projection, the heart mediastinum and lung fields appear satisfactory.
There is loss of the normal cervical lordosis, but alignment is otherwise maintained.
No fracture or subluxation is seen in the cervical spine.”
(d) An MRI scan of the thoracic spine dated 13 July 2010.[19] That report concludes:
[19]See Exhibit 3 at PCB 41
“… No evidence of an acute spinal injury. Minor spondylitic changes.”
(e) An MRI scan of the cervical and thoracic spine dated 6 July 2011.[20] That report concludes:
“… Stable small right para-central disc bulge at T1-T2. No new disc pathology. No other bone or soft tissue injury. No cord or nerve root compression.”
[20]See Exhibit 3 at PCB 42
Medical material relied on by the Plaintiff
15 Before I detail the pertinent cross-examination of the plaintiff, I will detail the medical evidence relied on by the plaintiff, as some of such evidence was the subject of cross-examination.
16 The plaintiff relies on the notes from the Yarra Valley Community Medical Service[21] and also the reports of Dr Tate dated 26 September 2011 and 3 July 2012[22] (being one of the doctors at the Yarra Valley Community Medical Service).
[21]See Exhibit 6
[22]See Exhibit 2 at PCB 29 – 30. The report of 3 July 2012 is identical to that of 26 September 2011.
17 Such medical records indicate that the plaintiff first commenced attending that clinic in April 2003 and attended on a variety of occasions for general medical treatment and pregnancy.
18 In particular, the plaintiff attended the clinic on 2 January 2009, where she consulted Dr Sophie Mancey-Jones and gave a history that she was involved in a motor vehicle accident “two days ago”. She described wearing a seatbelt and having to stop suddenly. Then a car from behind her “pushed cars into the back of her car” and she was “thrown forward and back in seatbelt”. The doctor records that there was no direct trauma but a “whiplash mechanism” and she was suffering pain and stiffness in her neck (the right being worse than the left), and low back pain.
19 On 14 January 2009, she was referred to physiotherapy, and on 21 January 2009, arrangements were made for her to undergo a cervical x‑ray as she was experiencing pain and numbness in the right arm, causing her difficulties carrying her baby. She was also referred to a chiropractor, Ms Michelle Toy.
20 On 13 May 2009, it is recorded by Dr Sophie Mancey-Jones that the plaintiff was “doing really well” attending a course, with children in care two days a week and her mother looking after them the rest of the time. It was noted that her partner was to be released from prison soon and she was concerned about how that would all work out.
21 On 22 June 2009, the plaintiff was still complaining of pain (particularly in the right hip) and attending the chiropractor. On 24 July 2009, she was still attending the chiropractor and was concerned that her arm and back were not improving after “whiplash injury” in the first transport accident. The doctor describes her as still being in “chronic pain” and not coping, and Major Depression was diagnosed.
22 On 3 August 2009, the plaintiff commenced Lovan, but continued to use Panadeine when “absolutely necessary” and was being weaned off Temaze.
23 When seen on 27 August 2009, Dr Alexandra Murray reported that the mood of the plaintiff was “much improved on Lovan” and again was diagnosed to be suffering Major Depression. At that time, she was prescribed more Lovan and Mobic.
24 Dr Tate consulted with the plaintiff on 8 October 2009, at which time she described pain in the upper back, neck and right shoulder, requiring her to take six Panadeine a day and Mobic. The plaintiff considered that she felt happier but there was some persisting anxiety. At that time, she was prescribed Mobic again and Panadeine Forte tablets.
25 Panadeine Forte continued to be prescribed over the ensuing months.
26 In November 2009, the plaintiff was referred to the pain consultant, Dr Tim McCarthy. On 19 January 2010, she was again prescribed Mobic and given samples of Tramadol to trial, together with Panadeine Forte.
27 On 29 January 2010, the plaintiff was examined by Dr Inam Khan at the clinic and had what the doctor described as “neuropathic pain” from the first transport accident, radiating to her right arm, and at that time, she was prescribed Tramadol and Endep.
28 Tramadol continued to be prescribed over the months leading up to the second transport accident.
29 The plaintiff attended the clinic on 5 July 2010 and again consulted Dr Khan, giving a history that she had had a further transport accident three days ago involving a “head-on collision”, causing her husband to be admitted to hospital with head injury. At that time, her Tramadol was increased from 100 milligrams to 200 milligrams and the risk to a foetus if such drug was taken was explained to the plaintiff.
30 She was again prescribed Panadeine Forte and, on occasion, Tramadol.
31 On 8 October 2010, the plaintiff presented at the clinic with a history that she had been physically assaulted by her mother-in-law and, in particular, had been kneed in the right side of the abdomen. It was noted that there was bruising on the right upper arm, shoulder and scratches on both arms. At that time, she was 28 weeks’ pregnant.
32 Some ten days later, she described she was on Tramadol, “300” per day, and Panadeine Forte at night, and again was prescribed Panadeine Forte and later, Tramadol.
33 The plaintiff’s last attendance at the clinic was on 4 January 2011, at which time she attended with her partner. Dr Khan notes that when her partner “was refused medication”, he became aggressive and punched the doctor, after which the patient and her partner were requested to leave. It is noted that the reason for contact was stated to be “opiate dependence” and, again, Panadeine and Tramadol (or a derivative of that drug) were prescribed for the plaintiff.
34 I refer to the report of Dr Tate dated 3 July 2012 which states, in part:
“… I saw her in October 2009 where she complained of pain in the mid thoracic spine and right shoulder, she had still been seen by the chiropractor Michelle Toy. She had been taking both panadeine forte and mobic for the pain.
During this time she was taking tramadol 100BD and efexor xr 150mg for her underlying depression. Dr Tim McCarthy had an MRI performed which showed a low grade degenerative change in the cervical spine only.
She attended the surgery on July 5th 2010 3 days post another head on collision. Therease was pregnant at the time and an ultrasound was performed to check the babies (sic) health. Her treatment at the hospital included a chest xray, cervical xray … . Despite her pregnancy Therease continued with both panadeine forte and tramadol which she needed for general pain post her second accident.
Therease continued to have pain in the right shoulder and neck both of which were made worse by the second accident.
… .”[23]
(sic)
[23]See Exhibit 2 at PCB 29
35 The plaintiff also relies on a report from the Healesville Back Clinic dated 20 June 2011.[24] The plaintiff attended such clinic for chiropractic treatment and was initially seen by Dr Catherine Green on 28 January 2009 (some four weeks after the first transport accident). She was referred to such clinic by Dr Tate and was complaining of right-sided neck pain and pain in her mid-thoracic spine. She underwent a course of spinal manipulative therapy for a functional spinal lesion of C5-6 and consulted the clinic twenty four times over a period of fourteen months, ceasing on 13 April 2010 (such treatment was carried out by Dr Green and another chiropractor, Dr Michelle Toy).
[24]See Exhibit 2 at PCB 23 – 24
36 In the report, Dr Toy asserts that the plaintiff responded to low-force mobilisation to the cervical spine, soft tissue therapy to the surrounding musculature and gained some relief from prescriptive exercises undertaken at home. In part, she also states:
“In answer to your questions;
(a)Therease’s cervical and mid thoracic injuries were contributed [to] by the MVA on 31.12.2008. This is not the only cause of these injuries. As stated by her GP Dr Alexandra Murray in a letter dated 31.07.2009, she had been diagnosed with ‘major depression which predates the MVA’.
(b)The 31.12.2009 … [scil 2008] MVA caused a whiplash associated disorder (WAD) involving a functional spinal lesion of C5/6; and chronic sprain/strain of her posterior cervical musculature on the right hand side.”
37 Dr Toy considered that the lifestyle of the plaintiff raising young children with little assistance and also attempting a university degree added stress and tension levels which needed to be improved to allow for “healing and rest”.
38 The plaintiff also relies on the reports from the pain specialist, Dr Timothy McCarthy, and in particular, the report dated 16 July 2014.[25] Dr McCarthy records that he first consulted with the plaintiff on 19 January 2010, at which time she was complaining of right thoracic, cervical and arm pain with paresthesias which had come on after the first transport accident.
[25]See Exhibit 2 at PCB 33 – 33(c)
39 At that time, Dr McCarthy noted that cervical x‑rays were normal and the plaintiff was taking a combination of Panadeine Forte twice a day and Tramadol, together with Effexor.
40 Examination at that time revealed a “good range of cervical movement” but “well localised tenderness around the right C5-6 region”. Furthermore, she was “focally tender around T5-6-7 paravertebrally”. Upper and lower limb neurology was normal.
41 Dr McCarthy arranged an MRI scan of the cervical and thoracic spine and also trialled the plaintiff on pregabalin. The MRI scan carried out on 13 March 2010[26] revealed, according to Dr McCarthy, degenerative changes in her thoracic and cervical spines.
[26]See Exhibit 3
42 On review on 24 March 2010, Dr McCarthy noted that the plaintiff was taking Tramadol, and approval was received from the Transport Accident Commission for the plaintiff to undergo cervical dorsal ramus blocks at C3‑4‑5‑6. Unfortunately, when these were approved, the plaintiff was then eight weeks’ pregnant and the procedure was no longer appropriate.
43 The plaintiff was again referred to Dr McCarthy on 28 March 2011, at which time the plaintiff gave a history that she had been in the second transport accident in July 2010. Dr McCarthy noted that she had “similar symptomology” with right neck pain, right arm pain and paresthesia. At that time, she was taking Tramadol, 400 milligrams a day, with two Panadeine Forte, and seeing a physiotherapist. He notes the headaches at that time were a “significant feature”.
44 When reviewed in April 2011, Dr McCarthy arranged for a thoracic MRI scan, which was performed on 6 July 2011.[27] Dr McCarthy was of the opinion that the MRI scan revealed a small right paracentral disc bulge to T1-2 persistent from her previous MRI scan. The plaintiff was reviewed on 24 October 2011 (when again she was pregnant and due in May 2012) and also reviewed in September 2012, when she gave a history that she still had right upper pain and right intermittent neck pain and headache. At that time, she was continuing to take Tramadol and Mersyndol at night, and whereas she had been attending a gym, her arm pain had caused her to cease such activity. On 5 September 2012, Dr McCarthy carried out triggerpoint injections, and on review five days later, the plaintiff advised that she had five hours of pain relief from the blocks but no long-term relief.
[27]See Exhibit 3
45 Dr McCarthy sought permission from the Transport Accident Commission to perform cervical dorsal ramus blocks, and this procedure was approved on 27 November 2012, with the procedure undertaken on 8 January 2013. At that time, dorsal ramus blocks were carried out at the right C3-4-5 dorsal rami. The pain in her upper back and arm was reduced from 9 out of 10 to about 3 out of 10 for a few hours, but returned the next day.
46 Dr McCarthy requested permission to perform a radiofrequency denervation of the cervical facet joints, to which the Transport Accident Commission responded that they needed further information. Ultimately, the procedure was not undertaken, as approval had not been forthcoming. Ultimately, Dr McCarthy was of the opinion that the plaintiff suffered from whiplash with associated neck, thoracic and right arm pain and headache. Dr McCarthy considered that the first transport accident was the “overriding one” in the presentation of the whiplash injury. Dr McCarthy was also of the opinion that the plaintiff did not require any surgery, and had a good capacity for employment once her “domestic situation” comes under control. Although not familiar with any recreational pursuits that she pursued, Dr McCarthy noted that whiplash with generalised hyperalgesia neuropathic symptoms can be a “very disabling condition”.
47 The plaintiff also relies on a report from the Box Hill Hospital dated 14 September 2011.[28] That report describes the plaintiff being brought by ambulance to the Emergency Department of the Box Hill Hospital at 3.04pm on 2 July 2010. At that time, she complained of pain in her neck and back and of a seatbelt mark on the chest, although there was no breathing difficulties or abdominal pain. She informed the attending doctor that she was thirteen weeks’ pregnant, which had been confirmed by ultrasound the previous day. She also informed the hospital that she had been involved in a previous transport accident involving her cervical spine (“a cervical 3-4 subluxation”) for which she was receiving physiotherapy and the prescription of Tramadol. Examination at that time revealed no focal neurological symptoms and cervical x‑rays showed no abnormalities other than some loss of normal cervical lordosis.
[28]See Exhibit 2 at PCB 27 – 28
48 The plaintiff was diagnosed as suffering from a soft tissue injury and provided with analgesia. She was discharged with Panadeine Forte to be taken as necessary for pain.
49 The plaintiff also relies on a report from the physiotherapist, Mr Ryan Carruthers, dated 30 June 2011.[29] Mr Carruthers initially consulted with the plaintiff on 27 July 2010 (some 25 days after the second transport accident) and thereafter, on one further occasion – 3 August 2010.
[29]See Exhibit 2 at PCB 25 – 26
50 Mr Carruthers obtained the history of the earlier transport accident and treated the plaintiff for cervical pain and subsequent right upper limb paresthesia/numbness. He considered, on the basis of his examinations, that it was “fair to say” that both transport accidents had played an “integral part towards her symptoms”.
51 Because of the short number of consultations, Mr Carruthers was uncertain as to an exact diagnosis in relation to the cause of the plaintiff’s cervical pain. However, he said it was reasonable to conclude that she may have been suffering from multilevel cervical disc prolapse and/or a cervical whiplash injury.
52 The plaintiff also relies on a report from the physiotherapist, Ms Carolyn Brandreth, dated 17 June 2011.[30] The plaintiff first attended on Ms Brandreth on 4 February 2011 and stayed under her care until 25 May 2011, when the plaintiff relocated to Pakenham. At the first consultation, the plaintiff gave a history of being involved in the two transport accidents and complained of a constant ache in her right forearm, intermittent pins and needles and numbness in the whole of her right arm, cramps in her right hand and headaches when her neck pain was bad. At that time, she was taking Tramadol and Panadeine Forte three times a day for pain relief.
[30]See Exhibit 2 at PCB 20 – 22
53 Ms Brandreth diagnosed the plaintiff to be suffering a T1-2 disc bulge (based on the MRI scan taken on 13 March 2010) and a whiplash injury that has caused compression in her right upper limb nerves. She opines that these problems cause headaches, right upper limb pain and altered sensation in her right upper limb and, accordingly, such limb is compromised and “sleep disturbed”.
54 Ms Brandreth noted that the plaintiff complained of “struggles” to keep on top of her housework, cannot play and attend to her children in the way she would like, and struggles with vacuuming the house and doing the laundry.
55 The plaintiff also relies on clinical notes from the Cardinia Medical Centre and a report from Dr Malka Seneviratne, a doctor at that clinic, dated 31 March 2014.[31] The clinical records would suggest that the plaintiff commenced at that clinic on 15 June 2011. Although she attended the clinic for general medical issues, Dr Seneviratne notes that she also attended to obtain prescriptions for analgesia (including Tramadol) which she was “already on” for ongoing pain issues resulting from the transport accidents.
[31]See Exhibit 2 at PCB 36 – 37. Further note, there is a report also from Dr Seneviratne dated 6 June 2013 which is in similar terms, save for more recent attendances.
56 Such notes continue until 22 November 2013, on which date Dr Mathie Chandrananth prescribed a further prescription for Tramadol to ease pain.
57 In her report dated 31 March, 2014, Dr Seneviratne, states, in part:
“I do not believe she has been employed in the past. She is a stay at home mum looking after 4 little children and I do not think at this stage she will be able to seek employment. Her pain levels did not seem to be incapacitating at any of the consultations I had with her.
She has had 2 children since her accident in 2008 and each time I saw her she seemed to have coped well with her pregnancies and bringing up of her children. She is prescribed regular medication and seems to be managing on them without any significant disruption to her daily activities.”[32]
[32]See Exhibit 2 at PCB 37
58 It is also convenient to refer to the medico-legal specialists relied on by the plaintiff. The plaintiff was examined by the following people:
(a)the psychiatrist, Associate Professor Nick Paoletti, on 22 October 2011[33] and on 13 December 2013;[34]
(b)the orthopaedic surgeon, Mr Thomas Kossmann, on 18 October 2011[35] and on 6 February 2014;[36]
(c)the consultant physician, Dr Peter A Blombery, on 6 February 2014.[37]
[33]See report dated 27 October 2011, Exhibit 4 at PCB 45 – 57
[34]See report of same date, Exhibit 4 at PCB 58 - 72
[35]See report dated 22 March 2012, Exhibit 4 at PCB 73 – 78
[36]See report of same date, Exhibit 4 at PCB 79 – 84
[37]See report dated 17 February 2014, Exhibit 4 at PCB 84 – 89
59 Professor Paoletti was of the opinion that the plaintiff suffered from a Post-Traumatic Stress Disorder (in relation to the second transport accident), a Depressive Disorder not otherwise specified and an Anxiety Disorder not otherwise specified, resulting from both transport accidents.
60 Professor Paoletti also noted that there were relationship difficulties which impact on her psychological state.
61 At that time, he considered that the plaintiff’s capacity for recreational pursuits, her interpersonal relationships, her socialisation and quality of life had been affected by the transport accidents. Furthermore, he considered the plaintiff had no work or study capacity in the foreseeable future given the level of her psychiatric symptoms.
62 At the time of the second consultation, the plaintiff gave the following history (in part):
“… Prior to her first child and the first motor vehicle accident, she was a restaurant manager at Fasta Pasta. She left during her first pregnancy. Before she left, her partner, Daniel (who, unknown to her, was on drugs) took her keys during the night, went to the restaurant and stole money. There was a court case and he ended up in jail (‘which he deserved’), and she found it hard that he ‘misused [her] trust and went behind [her] trust’. When it was time to go back, she did not think it was appropriate.
She then decided that she would follow her dream of going back to study and started the course Swinburne mentioned above.
After the first child, she worked in a café at Box Hill, but, after six months, she left, because there were a couple of people literally selling drugs out of the kitchen. She then went to work as a restaurant manager for four to six months in a café in Blackburn. She was then contacted by the owner of the café in Box Hill, because those people in the kitchen had gone, and she went back to work again for about three months until she moved to Healesville.
She has not worked since then, except for doing some paperwork for her partner’s business.”[38]
[38]See Exhibit 4 at PCB 60
63 After the last examination, Professor Paoletti was of the opinion the plaintiff suffered from an Anxiety Disorder not otherwise specified (with strong features of Post-Traumatic Stress Disorder, general anxiety, panic attacks and traffic anxiety) and Depressive Disorder not otherwise specified, both of which were significantly contributed to by the two transport accidents.
64 When seen initially by Mr Kossmann, the plaintiff complained of pain in her neck, which was causing constant headaches, and also an inability to use her right arm properly. After obtaining a full history and making his examination, Mr Kossmann diagnosed the plaintiff to be suffering pain and movement restrictions of the cervical spine and the right upper extremity. In particular, he states:
“Ms Jansen has suffered injuries, in particular to her cervical and upper thoracic spine. She has pain and movement restrictions. Furthermore, she has pain and movement restrictions in her right shoulder. I expect that Ms Jansen will suffer from pain and movement restrictions in her cervical-thoracic spine as well as her right shoulder, possibly for the rest of her life. In my opinion she has to undergo maintenance therapy in the form of physiotherapy and hydrotherapy on a regular basis. There may be an indication for her to undergo acupuncture to see if her pain issues can be improved.”
65 Although he considered both accidents played a role in her presentation, Mr Kossmann, in a subsequent letter dated 2 June 2012, considered that the first transport accident caused more damage, whereas the second one aggravated already existing symptoms.
66 When seen on 6 February 2014, the plaintiff complained of pain in her neck on the right side which radiates into her right arm, and also complained of numbness and tingling in the last three fingers of the right hand. At that time, she was taking Tramadol and Mersyndol on a regular basis. The plaintiff also described that she tries to take care of her household, but has difficulties doing cleaning, shopping and other heavy duties. She has a nanny, who comes once a week, and has a cleaner for the house. She has had to give up her sporting activities involving playing basketball prior to the transport accident and going to the gym on a daily basis.
67 After an examination, Mr Kossmann was of the opinion the plaintiff had suffered injuries to her cervical and thoracic spine and has developed movement restrictions in her right shoulder. He considers that the reduced mobility in the right arm is a consequence of pain originating from the cervical spine.
68 Furthermore, Mr Kossmann was of the opinion that such injuries and their resultant symptoms have impacted on her social, domestic and recreational activities and in particular, her ability to undergo her studies.
69 When seen by Dr Blombery on 6 February 2014, the plaintiff complained of ongoing pain in the right side of the neck and in the back of the right shoulder. Furthermore, the pain radiating into the back of her right arm with migraine-type headaches, together with pain, tingling and numbness in the right arm.
70 At the time of that consultation, she confirmed that she was taking Tramal and Panadol when required, and Mersyndol at night.
71 Examination by Dr Blombery revealed tenderness on pressure of the right trapezius muscle, the right shoulder, the right upper limb around the elbow and wrist, and generally through the right arm. There was no tenderness over the neck.
72 Dr Blombery was of the opinion the plaintiff suffered whiplash-type injuries in the first transport accident as a result of her jolting her cervical spine. Such incident resulted in previously asymptomatic degenerative changes becoming symptomatic and there were also soft tissue injuries to the joints, ligaments and muscles around the area, with sensitisation of pain nerve pathways, both in the periphery, as well as the brain and spinal cord, such that non-painful stimuli become interpreted by the cerebral cortex as being painful. In particular, he noted that whiplash injury is an organic disorder of pain nerve pathway.
73 Following the second transport accident, which also involved severe jolting, there was aggravation of her pre-existing injuries.
74 In particular, Dr Blombery, although of the opinion that there was no indication for surgical intervention, considered that her prognosis for recovery is poor now and that there “will be no significant change in her level of disability in the foreseeable future”. He recommended that she be managed as a patient with chronic pain with multidisciplinary therapy including the use of analgesic, antidepressant and anticonvulsant medications, physiotherapy, behavioural therapy, occupational therapy, as well as other techniques such as TENS and acupuncture.
75 Given the difficulties in her dominant right arm, he is of the opinion that she has no capacity for any employment.
The cross-examination of the Plaintiff
76 I set out details of the pertinent cross-examination of the plaintiff:
·The plaintiff gave evidence that she has four children, namely, Javier, born in December 2006; Chiara, born in November 2008; Tara, born in January 2011 and Ruben, born in April 2012.
·The plaintiff confirmed that on completion of her VCE, she performed hospitality work as a restaurant supervisor between 1999 and 2003, when she then travelled to Perth.
·On completion of her VCE, she had enrolled in biotechnology courses at Victoria University but only lasted a few months before withdrawing and not commencing again until 2009.
·She remained in Perth for about eight months managing a restaurant and thereafter, returned to Melbourne, she believed, in late 2003, and obtained a job as a manager at the Fasta Pasta restaurant. She left that restaurant because she was six months’ pregnant with her first child.
·She accepted that her partner stole money from the Fasta Past restaurant, ultimately causing him to be imprisoned. She also accepted that Daniel had a heroin addiction at that time.
·She accepted that she had been charged with impeding an investigation and later, with handling stolen goods, both of which were withdrawn. These offences arose out of the activities of her partner.
·When it was put to her that medical records would suggest that she was required to take a drug screen test over the period from 23 June 2008 to 2 July 2008, she had no recall of such event. Furthermore, she had no recall of obtaining a certificate being unable to attend Court for the period from 2 July to 2 August 2008.
·She accepted that she worked briefly in a café in Box Hill after the birth of her first child – “maybe a month”.
·The plaintiff was taken to the history that she gave Professor Paoletti in relation to her employment after the birth of her first child. In particular, the following evidence was given:
HIS HONOUR:
Q:“Do you understand, Mrs Popovic,[39] that what’s being put to you is what is said and reported by Dr Paoletti of you telling him these facts? Dr Paoletti, I think we can reasonably assume he hasn’t plucked them out of the air. He may be mistaken about dates and things like that, that sometimes happens; but seemingly what he’s reporting is that things that you told him and this report is December 2013 so not that long ago, 10 months ago, nine or 10 months ago and what you’re saying now you have what, no recall of any of these events?---
[39]“Popovic” is the married name of the plaintiff
A:No, I’m not saying I don’t recall the events. I don’t recall specifics of how long I may have been employed and I can’t recall working in a café in Blackburn. It may have been - - -
Q:As counsel has put to you, I think you had accepted you were in a café at Box Hill and you thought initially about a month. But according to Dr Paoletti you told him six months and left because of this drug issue in the kitchen, and then you went to work as a restaurant manager for four to six months in a café in Blackburn. You have no recall of that?---
A:Not of a café in Blackburn, no.
Q:Put it another way: you’ve talked about the one month or so in Box Hill. What other work did you do in that year?---
A:I recall working in the café in Box Hill. I remember I was paid cash at a cheap rate. I had left because of the chef and what he was doing in the kitchen.
Q:Yes?---
A:I think at a guess a short while after I was called because that chef had been fired and I was asked to come back. I really don’t recall a café in Blackburn. I’m sorry, I just – I recall doing a couple of hours for a friend in Mitcham, in a café in Mitcham, but I - - -.”[40]
[40]T35, L10 – T36, L9
·The plaintiff accepted that when she was working in restaurants, she was paid cash, which was not declared for income purposes, and was also receiving social security benefits at such time.
·The plaintiff confirmed that in the first transport accident, she was the driver, and the passengers were her mother and her two children, Javier and Chiara. She confirmed that none of the passengers were injured.
·The plaintiff explained that at the time of the first transport accident, she was coming down a hill towards Narbethong, heading towards Taggerty, and a car had stopped in front to turn into a service station, causing her to brake suddenly to prevent colliding with the car in front. The car behind her managed to stop but the car behind it could not stop and hit the last car, causing her car to be struck in a “domino effect”.
·The plaintiff accepted that it was a “low speed impact” and that minor damage was done to the rear bumper of her car. The plaintiff also accepted that she got out of the car and walked around. The plaintiff, although not attending hospital, asserted that the ambulance officers recommended that she do attend hospital but she was concerned to get her mother and children to her sister’s place.
·She confirmed that she commenced a Bachelor of Science at Swinburne University in March 2009, majoring in biotechnology.
·At that stage, the plaintiff was living in Pakenham and the course was undertaken at the Hawthorn Campus of Swinburne, which required the plaintiff to catch public transport to Hawthorn.
·The plaintiff completed that academic year and notes that she was “taking a lot of pain medication at the time”.[41] Such medication was because of her sore neck, headaches and right arm problems.
[41]T50, L25
·The plaintiff was shown a letter signed by her on 7 December 2009 addressed to the Faculty of Life and Social Sciences seeking special consideration in respect of units studied that semester for several reasons. She accepted that there was nothing in the letter about any pain in her neck or arm. In particular, the following evidence was given by the plaintiff:
A:“The purpose of this letter was to apply for special consideration so that I could resit the statistics exam that I had arrived to in a very emotional state, and therefore the focus of the letter was only on the things that had happened on that day.
Q:I understand that’s the assault.[42] I understand that, but what do you say about the first part where you seem to be highlighting your roller-coaster ride for the last six months, faced with many challenges and the depression which had been ongoing and indeed the miscarriage? You saw fit to put all those matters there didn’t you and they weren’t happening in the last week or so did they, prior to the exam?---
[42]Medical records would suggest that the plaintiff was assaulted by her mother-in-law at or about that time.
A:No, they didn’t happen in that week. It was just an opening paragraph, I suppose.”[43]
[43]T52, L29 – T53, L11
·The plaintiff confirmed that she was allowed to re-sit the examination and re-enrolled in the course in 2010.
·The plaintiff also identified a letter that she wrote and signed on 10 June 2010 addressed to “To Whom it May Concern” wherein she seeks special consideration for that semester. The plaintiff agreed that although there is reference to problems she was having with her wisdom tooth, the health of her children, morning sickness related to her pregnancy and the difficulties that she was having coming off antidepressants, there was no reference to any neck pain or headaches or right arm pain causing any difficulty.
·The plaintiff also accepted that she sent an email to Christina Matthews at Swinburne on 30 August 2010, seeking special consideration and, in particular, asking to defer the course for twelve months because of a further pregnancy. In particular, the following evidence was given:
Q:“Have you a got a document anywhere that can corroborate your evidence to His Honour that anyone at Swinburne [k]new the slightest thing about any neck pain, right arm pain or headaches that were causing you problems with your study?---
A:I don’t have anything on me, but I’m happy to go home and look through my computer and all my special applications and letters to the university and other emails that have been sent – like, emails prior to this one. I’m sure there would be mentions of the car accident and other things that I was – happening. Just because these things that have been brought forward do not mention them specifically, they were obviously quite short emails. They are continuing on from a special consideration application, and if Your Honour would like I’m happy to look at the computer at home and see what information I can bring in.”[44]
[44]T60, L21 – T61, L5
·The plaintiff asserted that she deferred her course from mid-2010 until mid-2011, a period of twelve months, and when she returned in 2011, she was again pregnant “very surprisingly”. The plaintiff explained that she made a further application for deferment because of such pregnancy, but was told that she could not have two deferments so ultimately, half way through 2011, she withdrew from the course, which meant she left the course temporarily. She did not return to the course until August 2014.
·When queried about when she was put on Tramadol, the following evidence was given:
Q:“When you had the first accident, I think your evidence on Friday was that you were put on Tramadol pretty well straight away. Is that your memory; that you were put on Tramadol pretty well straight away?---
A:After which accident?
Q:The first accident?---
A:No, I was not put on Tramadol straight away. That was a gradual thing. I was actually on Panadeine Forte, Mobic. I was on a lot of Panadeine Forte and so I don’t think I was on Tramadol – look, I really can’t give you dates but I recall going to Dr Tate and requesting something different because I was having obviously side effects from the Panadeine Forte. It was causing other bad side effects which I wasn’t enjoying, and so then he offered Tramadol prior to the second accident.”[45]
[45]T65, L20 – T66, L2
·When asked questions about the reference to the reason for her attendance at the clinic on 4 January 2011 was “opiate dependence”, the following evidence was given:
Q: “Ms Popovic, before we come back to 4 January 2011 – that’s the first in time. So to turn to January 4, 2011, and you’ve got the note there which indicates that the reason for contact was opiate dependence. If you look at the notes before that, you can easily see that you were regularly taking tramadol and then moved on to Tramahexal slow release – that’s so, isn’t it - leading up to January 2011 for a year or two before that, or certainly for a full year?---
A: I can’t - I agree with the note here, with what I was prescribed because I can't recall.
Q: Do you remember being put on Tramahexal after being on tramadol?---
A: Tramadol and Tramahexal are the same drug. One is a slow release version, so therefore, it last for 12 hours and I don't have to take so many tablets during the day.
Q: Why did the doctor tell you, whoever it was, that you would be better off on Tramahexal than tramadol? Did you have a discussion about that?---
A: Not as far as I recall. As far as I know, tramadol – there’s tramadol and there’s a slow release version of tramadol and there’s a short release version of tramadol. So I was advised to go on the long‑term one because I was still finding that halfway, after four hours or so, I was struggling, having extra tramadol halfway through the day was then causing me to stay awake at night, so that's why they put me on the 12‑hour slow release.
Q: Then to take you to 4 January 2011, did you ever have any discussion at or before January 2011 with either Dr Khan or any other doctor at Healesville, at this clinic at Healesville, about the addictive qualities or otherwise of tramadol?---
A: Not that I can recall but I’m sure I ‑ ‑ ‑
Q: I’ll as [sic] you to try and remember. Was there, according to your memory, any discussion with any doctor saying, ‘This stuff can be addictive. You better be careful on it’?---
A: I would have been warned of that, yes.
Q: You would have been warned about the addictive qualities of this drug, wouldn’t you?---
A: I would’ve been given a fact sheet on what side affects [sic] and, yes, all of those.
Q: One of those you understood to be addiction?---
A: Yes; as a side effect, yes.
Q: You were told that tramadol was an opiate derivative, weren't you?---
A: I can’t recall.
Q: Did you understand it to be an opiate derivative?---
A: I understood it to be a different type of painkiller that would last longer and not have the same side effects as Panadeine Forte.
Q: Did Dr Khan ever discuss with you the fact that you might be dependent or addicted to either the tramadol or the Tramahexal?---
A: No.”[46]
[46]T81, L3 – T83, L5
·The plaintiff considered that the reference to opiate dependence was a reference to Daniel.
·The plaintiff accepted that Dr Seneviratne warned her that Tramadol could pass across the placenta and affect the child but she could not cope without taking it because of the amount of pain that she was in.
·The plaintiff believed that she continued to play basketball after the birth of her children up to the first transport accident.
·The plaintiff described her husband running a painting business in which he was working full time, although it does not necessarily always generate full-time work. She described how she assists in the business by sending emails or producing invoices and helping him with computer matters related to the business. She does not get paid for such work and only assists when she can and if the business is busy, such as tax time.
·Her two older children are at kinder and the two younger children are in day care. The two younger children go to day care when she is at university, save for Tuesdays, when her mother looks after them.
·The plaintiff mostly does the family shopping and takes the children to their social obligations. Her two older children can bathe themselves but she is involved with bathing the two younger children and has some assistance with the housework from her mother and two older children.
·The plaintiff gave evidence she has difficulty, in particular, of hanging clothes up and vacuuming.
·At lectures, she chooses to use a computer to take notes because she finds her hand cramps after a few minutes of writing. She is concerned about sitting exams where she would have to sit and write for a period of time. In such circumstances, she will have to implement various strategies to try and get through the exam.
·The course has another two years to run. Presently, some lectures are one hour, some are two hours’ long and her longest day is Thursday, where there are four contact hours for the day. In any one week she has seven hours of contact lectures and six hours of practical laboratory work.
·When asked where she presently felt pain, the plaintiff described pain in her right shoulder, right arm and right neck, with infrequent pain in her right hip.
·The plaintiff accepted that she has flexibility in her neck but restriction of her right arm. In particular, she stated:
“I still have flexibility in my neck, but it still feels stiff and it causes pain. Like, when I turn that way it causes a lot of pain, whereas this way it doesn’t cause as much pain. And, yes, flexibility of the arm: basically when I’m getting to here, to lift any further than there, then it kind of causes the whole arm to feel numb suddenly, and if I lift above forcefully, it will cause the shooting pains down my arm, and also if I’m pushing down on my hand with any force of any way, then it causes shooting pains shooting up my arm.”[47]
[47]T96, L10 – 19
·The plaintiff describes the vehicle that she drives as a Ford Territory station wagon. She sometimes carries bags from the supermarket and sometimes uses a trolley.
·The plaintiff confirmed that she is restricted in her activities in respect of shopping and looking after the children, but went on to state:
“I still manage, due to taking medication, and I certainly have my good days and my bad days. When I suffer flare-ups my movement is very much restricted, but I can still manage to go to the grocery store and pick up some items and - - -.”[48]
[48]T97, L4 – 8
·The plaintiff stated she can still pick up her two-year-old but has to use her left arm, not her right arm.
·The plaintiff was shown 27 minutes of video taken on 26 March 2014 and 4 April 2014. The plaintiff was also shown video of about the same length taken on 15 and 16 July 2014.
·The plaintiff accepted that she was featured in the videos and she accepted that the videos “showed no hesitation of movement of your neck”.
·The plaintiff also agreed that she picked up her youngest child (Ruben) using both hands, with the children being held on her left hip.
·The plaintiff agreed that she was picking very light items from the supermarket shelves with both hands and used both hands on one occasion to pull the hatch of the car down, which did cause increased pain in her right arm.
·The plaintiff also accepted that she attended Officeworks, and when using her left hand to operate her mobile telephone, her right hand was on the mouse operating the computer.
·The plaintiff accepted that what was depicted on the videos was “fairly” typical activities.
·She tends to use a dryer rather than hanging clothes out, and if anything has to be hung out, they are hung over the back of dining chairs inside the house.
·She makes the children’s beds and operates the washing machine for four kids.
·Both she and her husband do the cooking.
77 Under re-examination, the following pertinent evidence was given:
·The plaintiff accepted that the chiropractic treatment she underwent was beneficial, in that it helped reduce the frequency of flare-ups and the amount of pain that she was experiencing.
·The plaintiff was reminded of the questioning earlier about a certificate certifying her to be unfit to attend Court from 2 July 2008 to 2 August 2008 and she accepted, after looking at the records, that related to possible placenta previa.
·At the time of the first transport accident, the ambulance driver did some spinal manipulations which were “very basic” seemingly, to determine that she was not in an “extreme emergency situation”, although they recommended that she go to hospital.
·On arrival at her sister’s place on the night of the first transport accident, she was given painkillers consisting of Panadeine Forte which had been obtained by her brother-in-law.
·The plaintiff accepted that she actually enrolled in the Swinburne course in early 2009 after the transport accident.
·The plaintiff was queried about her letter dated 7 December 2009 on which she was cross-examined and at which time, she stated that the lecturers were already aware of her neck and arm problems. In particular, the following evidence was given:
Q:“Just on that, you said that earlier today too. How did they become aware, as far as you’re concerned, about your neck and arm when you were at Swinburne in 2009 and 10 et cetera?---
A:I recall many times speaking to them in their private offices and explaining the situation and why I was struggling and - - -
Q:Just so I understand the context, you were explaining why you were having trouble in relation to what?---
A:I can’t recall, to be precise. It just would have been informing them about the difficulties that I was facing; why I was struggling with certain things; for example, during prac classes I’d find it – I’d always request my prac partners to take more results, writing them down, rather than what I would - - -
Q:I see - - - ?---
A:Because of the strain on my arm. There are certain considerations that they would allow me to do because of the struggles that I had with pain and writing.”[49]
[49]T107, L25 – T108, L10
·The plaintiff explained that in relation to lecture notes, there are recordings which can be downloaded at home and accessed that way.
·The plaintiff, after being questioned about some of the video material, asserted that she struggles to carry heavy items on her right side, and that anything past a kilogram really puts too much strain.
·Prior to the transport accidents, she did carry children on her right side using her right arm, as the right arm was stronger and she had “more faith in carrying children on that side”.[50]
·The plaintiff explained that when using a washing machine and dishwasher, she does have trouble pulling the clothes up from the bottom and putting them up into the dryer on top, and tends to use her left arm predominantly, and her right arm hurts if she raises it above shoulder height.
·The plaintiff also was referred to a letter from the psychologist counsellor, Ms Nicky Blager, supporting the plaintiff’s application for special consideration in relation to various examinations. In that letter, it is recorded, amongst other things:
“Therease reported that she was in a serious car accident late last year resulting in chronic body pain.”[51]
[50]T113, L27
[51]See Exhibit 7
Medico-legal reports relied on by the Defendant
78 The plaintiff relies on the following medico-legal examinations:
(a) The examination by the orthopaedic surgeon, Mr Paul Kierce, on 13 November 2012[52] and on 24 June 2014;[53]
(b) By the psychiatrist, Dr Lester A Walton, on 13 November 2012[54] and on 7 April 2014.[55]
[52]See report of same date, Exhibit H at Defendant’s Court Book (“DCB”) 1 – 11
[53]See report of same date, Exhibit H at DCB 15 – 24
[54]See report dated 19 November 2012, Exhibit H at DCB 27 – 37
[55]See report dated 6 May 2014, Exhibit H at DCB 38 – 47
79 When seen by Mr Kierce in November 2012, the plaintiff gave a history of both transport accidents. At that time, she complained of right-sided neck pain which radiates into the right shoulder blade and down the inner aspect of her right arm into the right little and ring fingers with associated pins and needles and tingling and some tingling in the area of the right shoulder blade as well. She also complained that her neck pain was constant but varied in intensity, and when very painful, she experienced headaches with referral of the pain at the back of the right eye.
80 At that time, Mr Kierce noted the plaintiff was prescribed 100 milligrams of Tramadol (twice a day), Mersyndol (one or two at night) and Panadol Osteo (two a day). She informed Mr Kierce that prior to the transport accidents, she used to play basketball and would go to the gym three times a week but could only now walk with a pram. She had struggles with her housework and preparing meals but was able to shop and travel on public transport.
81 After examination, Mr Kierce was of the then opinion that the plaintiff suffered soft tissue injuries to her cervical spine and dorsal spine as a result of the transport accidents. He noted there was no evidence of radiculopathy and considered that her condition was “likely to be affected” by the fact that she had been suffering from depression which had required anti-depressant medication.
82 Later, Mr Kierce was forwarded “medical imaging studies” consisting of an MRI scan of the cervical and dorsal spines undertaken on 13 March 2010. Mr Kierce considered such films revealed a loss of normal cervical lordosis at C3‑4 level, with all of the discs looking “completely normal”, and there was no evidence of disc bulging or nerve root compression.
83 Similarly, an MRI examination of the dorsal spine carried out on the same date showed no evidence of compression fracture of the dorsal vertebrae nor any disc pathology.
84 Mr Kierce was also forwarded MRI examinations of the plaintiff’s cervical and dorsal spines carried out on 6 July 2011, which he considered revealed no abnormality.
85 On the basis of such material, Mr Kierce revised his earlier opinion and considered that there was no evidence of impairment of the cervical and dorsal spines and that from a “purely physical viewpoint”, the plaintiff should have recovered from ligamentous injuries of her cervical and dorsal spines “by now”.
86 When later seen on 24 June 2014, the plaintiff complained of right-sided neck pain which radiates to behind her right eye and downwards to the outer aspect of the right shoulder, with some pins and needles there, and the outside of the right arm into the shoulder blade with also pain in the right forearm and pins and needles in the right little ring and middle fingers. At that time, she rated her neck pain as being 6 to 8 out of 10, and such pain is aggravated by lifting shopping bags and lifting children.
87 The plaintiff complained of flare-ups about once or twice a week in her neck pain, for which she needs extra medication. She informed Mr Kierce that she uses heat packs at night and a pain-relieving alternative medicine spray, which has a similar effect to Deep Heat. She was also continuing to consult Dr McCarthy regarding rescheduled radio-frequency denervation blocks for her cervical spine.
88 At the time of that examination, she was continuing to take 100 milligrams of Tramadol (one or two a day), Mobic (7.5 milligrams for flare-ups) and occasional painkilling tablets containing Panadol and ibuprofen. Furthermore, she took Mersyndol Forte – one or two a night – to assist with sleep.
89 After examination, Mr Kierce stated:
“In my opinion, from the purely physical viewpoint, any soft tissue injury she sustained to her spine in the accidents of 31st December 2008 and 2nd July 2010 have now resolved.
Records show that she had been able to resume studies after her first accident and that she had managed two pregnancies following the accidents without any particular problems in her spine.
Her general practitioner, in her report of 6th June 2013, states she has had two children since her accident in 2008 and each time her GP saw her she seemed to have coped well with her pregnancies and bringing up of her children. She is prescribed regular medications and seems to be managing on them without any significant disruption to her daily activities.
It is apparent that these accidents had a significant psychological effect on her.”[56]
[56]See Exhibit H at DCB 21
90 Mr Kierce was of the opinion that any soft tissue injuries to the cervical and dorsal spines suffered by the plaintiff in relation to the transport accidents had now “resolved” and he was unable to identify “any significant organic cause to explain her physical symptoms”.
91 Subsequently, Mr Kierce reviewed videos of the plaintiff taken on 4 April 2014 and 15 and 16 July 2014.
92 Mr Kierce confirmed his earlier opinion that there was “no basis for her complaints” following the first transport accident and any injuries suffered in the transport accidents had “now resolved”.
93 When initially seen by Dr Walton, he obtained a history and made a psychiatric examination. He made a diagnosis of “chronic mixed anxiety/depressive disorder” which had been “multiply determined”. Such factors involved an element (according to Dr Walton) of post-natal depression following the birth of her second child, relationship difficulties with Daniel, being assaulted by her mother-in-law and having difficulty maintaining work and studies in the context of financial strain.
94 When later examined in April 2014, he again diagnosed “chronic mixed anxiety/depressive disorder”.
95 In his report, Dr Walton does state:
“In my opinion the transport accidents are continuing to make a significant contribution to the current psychiatric condition. Essentially as long as Ms. Jansen is left with accident-related pain then the psychiatric condition will also remain accident-related.
As indicated above the prognosis is less than favourable. Ms. Jansen is not suffering from a severely disabling psychiatric condition but it does appear to be following a chronic course.”[57]
[57]See Exhibit H at DCB 38
96 In a later report dated 25 July 2014,[58] Dr Walton makes various comments after perusing the videos of the plaintiff taken on 4 July 2014 and 26 March 2014. (Dr Walton notes that the other DVD was not playable).
[58]See Exhibit H at DCB 46
97 Dr Walton states:
“The footage capturing Ms Jansen’s movement would tend to suggest that she was moving freely and not in obvious pain but it is for the physical specialist to make definitive comment about that. I simply remind you that she has always highlighted her pain rather than psychological problems as compromising her participation in activities.
The video I have viewed would suggest that Ms Jansen was not markedly disabled by any psychiatric condition but she has never claimed that, and my observations of her directly confirm the proposition of relatively mild psychiatric problems with quite limited impact upon her occupation, recreational and domestic activities and, in that sense, the video is consistent with her own account.
… .”[59]
[59]See Exhibit H at DCB 46
98 Dr Walton seemingly was later referred to the other video and ultimately stated he did not wish to make any alteration to his opinion.
Other material relied on by the Defendant
99 The defendant also relies on letters from the plaintiff to Swinburne University dated 7 December 2009[60] and 10 June 2010.[61] The defendant also relies on a letter from the plaintiff to Christina Mathews dated 13 August 2010[62] and a document headed “Withdrawal from Program” signed by the plaintiff on 27 October 2011.[63] It was put to the plaintiff during cross-examination that the contents of the foregoing documents do not make any reference to any problems resulting from either transport accident.
[60]See Exhibit A
[61]See Exhibit B
[62]See Exhibit C
[63]See Exhibit D
100 The defendant also relies on the ambulance report in relation to the first transport accident.[64] In that report, it is recorded that the plaintiff was complaining of generalised right neck pain with muscular pain in the right side of the neck, right side of the back mid thoracic, and right thoracic region pain. Under the heading “Initial Assessment”, the ambulance officers have noted:
“Soft tissue injury >> to R side of neck/back.”
Under the heading “Vehicle damage”, the report notes “Rear” and under the heading “Level of damage”, it is recorded “Moderate –drivable vehicle”.
[64]See Exhibit E at PCB 114 – 117
Analysis of the evidence
101 There is no issue that the plaintiff was involved in transport accidents on 31 December 2008 and 2 July 2010. Those acting for the plaintiff primarily assert that the plaintiff suffered injury to her spine and, in particular, her right neck (with radiating pain to her right arm) which has caused serious long-term impairment of the spine and consequences which satisfy the test set out in Humphries & Anor v Poljak.[65] The plaintiff relies on the “pain and suffering consequences” rather than “pecuniary loss disadvantage” to satisfy the test.
[65]Op cit
102 The defendant, although accepting that the plaintiff suffered soft-tissue injuries to her spine in each of the transport accidents, submits fundamentally that the plaintiff does not continue to suffer from any organic injury to the spine as a consequence of the first accident; or alternatively, if there is an ongoing organic injury to the spine from the first transport accident, the pain and suffering consequences of that injury do not satisfy the test as enunciated in Humphries & Anor v Poljak.[66] Furthermore, any injury suffered by the plaintiff in the second transport accident must be analysed on the basis of an aggravation of a pre-existing condition and, accordingly, when one applies the principles enunciated in Petkovski v Galletti[67] and De Agostino v Leatch & Transport Accident Commission,[68] any purported pain and suffering consequences do not satisfy the Humphries v Poljak test.
[66]Op cit
[67]Op cit
[68][2011] VSCA 249 at paragraphs [58] – [62]
103 It is probably apposite to make some comment about the credibility of the plaintiff.
104 In written submissions, those acting for the defendant submitted that “… the plaintiff is not a credible witness and her evidence regarding the nature and extent of her pain and suffering consequences is unreliable and inconsistent with the activities depicted in the surveillance films”.
105 Those acting for the defendant assert that the issue of credibility is “particularly important” in the circumstances of this matter, given there is “scant evidence” of any ongoing injury suffered by the plaintiff and there are no lay witness affidavits to corroborate the plaintiff’s complaints of “constant spinal and arm symptoms and disability”.
106 In support of such submission, the defendant refers to the following matters:
(a) The defendant submits that the plaintiff gave conflicting evidence as to when and where she worked over the period for the financial year ending 30 June 2008 and also over the period leading up to the first transport accident; [69]
[69]See generally T31, L30 – T39
(b) The plaintiff had a “selective memory” for matters that might not assist her case – for example, she could not recall ever providing a sample for a drug screen, notwithstanding that the Yarra Valley Community Medical Service confirmed that the plaintiff herself was “requesting a urine drug screen” just six months or so before the first transport accident. Furthermore, she could not explain two medical certificates certifying her unable to attend Court;
(c) Paragraph 9 of the plaintiff’s first affidavit is “clearly intended to infer or create the impression” that because of her injuries, she had to “realign her plans” – that is to say, forego her work in hospitality and commence at the university course;
(d) The plaintiff gave “misleading histories” to several medico-legal specialists that she stopped studying because of the effects of the second transport accident but made no mention of her pregnancy;
(e) The plaintiff “overstated” her diagnosed physical injuries to some doctors by claiming she suffered a “fractured sternum” and or “displaced vertebrae” and or “a lot of nerve damage in my arm” notwithstanding such diagnoses are not mentioned in any treating doctors’ reports.
107 In response to such submission, those acting on behalf of the plaintiff submit:[70]
[70]Counsel for the plaintiff also made written submissions
(a) The plaintiff was a frank witness who at all times was attempting to give accurate answers when cross-examined about matters that occurred many years previously.
(b) The plaintiff was prepared to give answers which, on occasion, were admissions against interest – for example that she was paid cash which was not declared to Centrelink when receiving Social Security Benefits.[71]
[71]T37, L23-30
(c) That rather than being evasive and giving conflicting answers about her employment, the plaintiff did volunteer that she had worked in a café in Box Hill and a café in Mitcham, but was unable to recall the precise periods of such employment (which was some seven years ago).[72]
[72]T32, L23 – T36, L9
(d)The plaintiff rejected the contention that by paragraph 9 of her first affidavit, the plaintiff intended to “infer” – probably it should be read “implied” – that her injuries caused her to commence a university course rather than continue in the restaurant business. Counsel for the plaintiff referred to paragraph 9 of the plaintiff’s first affidavit and also highlighted that she had always planned to return to her studies. In particular, reference was made to the following evidence:
Q: “So is it your sworn evidence before His Honour that at a point between the time of this accident on 1 January and March of the same year, you made the decision that this injury was going to be so bad for you, you wouldn’t go back to the restaurant business and you would start off, what is it, a three or four-year course of bachelor of science?---
A: No, I always had a passion for biotechnology, so I always hopefully one day planned to go back and I hadn’t made that decision because of the car accident. It wasn’t a direct ‘Oh, I’ve had a car accident, now I’m going to go and start a course’.
Q: No?---
A: No, it was not like that.
Q: You had made in your mind well before that to start a university course then, hadn’t you?---
A: Yes.”[73]
[73]T47, L26 – T48, L5
(e)The plaintiff did not have a selective memory with regards to a urine drug screen and two medical certificates covering the periods from 2 July 2008 to 2 August 2008 and 8 September 2008. The plaintiff gave clear evidence that she could not recall providing samples for a drug screen six months before the accident or at any other time.[74]
[74]T29, L24-31
Reference is made to Exhibit 6 and in particular, at pages 179 to 180 of the clinical notes of Dr Tate, wherein it is stated, under the heading “Monday June 23 2008, Dr Kenneth A Tate”:
“LEVLEN ED TABLET 150 mcg/30mcg (21), inactive (7) ceased.
nee[d]s drug screen Pathology requested: urine drug screen
mrs Jansen[’]s daughter was with a drug addict who is in jail and has got her into trouble
suggest that when he gets out she gets rid of him.”
It was submitted by those acting for the plaintiff that this is probably a consultation between Dr Tate and the mother of the plaintiff rather than the plaintiff. Those for the plaintiff submit that there is no evidence that the plaintiff herself has ever taken illicit drugs or been addicted to any particular drug.
In relation to the medical certificates, it was submitted that it is “clear” that the clinical notes in relation to the certificate dated 2 July 2008 relate to a hernia that was affecting her in pregnancy, as detailed in Exhibit 6 under the date 2 July 2008. The plaintiff could not recall “without any context”, the details of the court case to which the certificate of 8 September 2008 referred, but accepted it may have related to the charges in respect of handling of stolen goods.
(f)The plaintiff did not give “misleading histories” to some of the medico-legal specialists and assert that under cross-examination, the plaintiff always maintained that the pain in her neck and right arm caused her difficulties with her studies;
(g)The plaintiff did not overstate her claimed level of symptoms and, in particular:
(i) Dr Tate had informed the plaintiff that he believed she had fractured her sternum.[75] The plaintiff acknowledged in evidence-in-chief that the diagnosis of Dr Tate was a “suspected fractured sternum”;[76]
[75]T20, L10 – 16
[76]T20, L19 – 21
(ii) Counsel for the plaintiff also highlighted that Ms Brandreth (a treating physiotherapist) diagnosed the plaintiff as suffering from a T1-2 disc bulge that had caused compression of her right upper limb nerves;[77]
[77]See Exhibit 2 at PCB 21
(iii) Dr Tate diagnosed a spinal lesion at C5-6;[78]
[78]See Exhibit 2 at PCB 23
(iv) Mr Carruthers made a differential diagnosis of a multi-level cervical disc prolapse;[79]
[79]See Exhibit 2 at PCB 25
(v) The MRI scan in 2010 had shown a “disc bulge at T1-2”.[80]
Counsel for the plaintiff contends that such diagnoses are entirely consistent with the plaintiff’s “lay descriptions” of her injuries.
[80]See Exhibit 2 at PCB 32
108 After a consideration of all of the material, and obviously having the advantage of observing the plaintiff when giving her evidence, I have formed the view that the plaintiff was essentially a witness of credit who was attempting to give honest and accurate answers to the questions posed to her. I reject the fundamental submission of the defendant as to the credibility of the plaintiff and largely accept the submissions made by the plaintiff in respect to this issue.
109 Although noting that the history given to Associate Professor Paoletti in relation to her employment prior to the first transport accident seemingly was to some degree inconsistent with her viva voce evidence, I ultimately came to the view that such evidence more reflected uncertain memory rather than an effort to mislead. In this respect, it is to be stressed that the cross-examination on this topic was in relation to events prior to the first transport accident and, indeed, the plaintiff quite freely conceded that she did not declare any income to Centrelink and, did not declare an income for taxation purposes during this period. In my view, having made those concessions, which are clearly against interest, it is unlikely that the plaintiff would deliberately set out to mislead the Court in relation to when and where she was working.
The nature and the extent of any injury suffered by the Plaintiff
110 Counsel for the defendant submitted that the following matters are important when coming to a conclusion about the nature and the extent of any injury suffered by the plaintiff in the two transport accidents:
(a) The first transport accident involved a low-speed impact, causing minor damage to the plaintiff’s vehicle.[81]
[81]See Exhibit E, ambulance report dated 31 September 2008 at PCB 114 – 117
(b) The plaintiff’s mother and two children were passengers in the vehicle at the time of the first transport accident and none of those people were injured.[82]
[82]T43, L6 – 7
(c) Although an ambulance attended the scene, the plaintiff was not taken to hospital after the first transport accident. The objective radiological findings have “consistently shown no abnormality consistent with injury”. In this respect, reference is made to the orthopaedic surgeon, Mr Kierce, who reviewed the radiology of the cervical and thoracic spines and concluded that there was no abnormality.[83]
[83]See Exhibit H at DCB 12 – 13
(d) Mr Kierce found that the plaintiff had global numbness and weakness of the right arm, but no abnormality of her reflexes in the upper limbs; she had non-dermatomal numbness in the right leg, and her lower limb reflexes were equal and reactive, with no motor weakness in the lower limbs.[84]
[84]See Exhibit H at DCB 13
(e) For the whole of the academic year in 2009, the plaintiff travelled by bus from Healesville to Hawthorn to attend the Hawthorn Campus of Swinburne University.[85] Furthermore, the plaintiff had resumed such course shortly prior to the hearing of the matter, which involves her traveling from Pakenham to the Hawthorn Campus four days a week for “two half-days and two full days”.[86] The course presently involves 13 contact hours (which includes university lectures and laboratory work).
[85]T50, L9 – 25
[86]T65, L14 – 15
(f) The plaintiff is a mother of four children, aged seven and under, and that she is involved in a “busy household” and that the children can be “quite demanding”. She is involved in taking the children to day care and kinder; bathing the two and three-year-old children every day; doing the family grocery shopping; keeping the home tidy; operating the dishwasher and washing machine and cooking meals for the children. She also assists her husband in the running of his business, doing some clerical work.
(g) It is submitted that the surveillance film depicts the plaintiff undertaking a range of activities involving the care of her children and the management of the household. In particular, the plaintiff agreed that the video showed no hesitation of movement in her neck in any way whatsoever, and that although she was holding children on her left hip, she agreed that she is right handed and that when she has a child on her left, she has the right hand free to do whatever needs to be done.[87] During the video, the right arm was used to assist in pulling down the hatch of her car and it was submitted that no aspect of footage depicted the plaintiff to be in any obvious pain or discomfort, or to have any hesitation or restriction of movements.
[87]T100, L8 – 10
111 All of these matters have some force. I accept that the radiological material which I have set out gives limited support to any basis for an ongoing organic injury. However, it is to be noted that the physiotherapist, Ms Brandreth, considered that the mild T1-2 right paracentral disc bulge is shown on the MRI scan undertaken on 13 March 2010 “was probably attributed to the first accident and further aggravated by the second.”[88] Furthermore, the chiropractor, Ms Toy, was of the opinion that the plaintiff suffered a spinal lesion at C5-6 as a result of the first transport accident.[89] The treating specialist, Dr McCarthy, although noting that the cervical and thoracic MRI scan undertaken on 13 March 2010 revealed mild degenerative changes in the thoracic and cervical spines, did not seem to put much emphasis on this finding.
[88]See Exhibit 2 at PCB 21
[89]See Exhibit 2 at PCB 23
112 I also accept that the video material, which the plaintiff accepted depicted a “typical day”, shows the plaintiff performing a variety of duties consistent with her role as a mother and housekeeper. Again, although I accept that the video revealed reasonable neck movement in the plaintiff, it is to be noted that the plaintiff freely conceded that her neck is not particularly restricted and this has been stated consistently to doctors. Furthermore, as the video shows, the plaintiff, consistent with her evidence, held any of her children in her left arm rather than her right arm.
113 Given all these circumstances, the credit of the plaintiff is of some significance. As I have already found, I accept the plaintiff to be generally a creditworthy witness.
114 Her treating doctors have seemingly been all accepting that she does suffer ongoing pain, given the ongoing prescription of significant medication that she takes on a daily basis. Not one doctor has suggested that she is feigning symptoms or attempting to mislead them.
115 Taking all the evidence into account, I do accept that the plaintiff has suffered some type of injury to her neck which is perhaps best described as some type of “a whiplash” injury giving rise to pain symptoms with referred pain to the right shoulder and right arm. Such a finding is consistent with the following:
(a)the evidence of the physiotherapist, Ms Brandreth, who diagnosed the plaintiff to be suffering “a degree of whiplash and feel both accidents contributed to this”;
(b)the evidence of the chiropractor, Ms M Toy, who diagnosed, amongst other things, “a whiplash associated disorder … involving a functional spinal lesion of C5/6; and chronic sprain/strain to the posterior cervical musculature on the right hand side”;
(c)the evidence of the physiotherapist, Mr Carruthers, who made a differential diagnosis of cervical whiplash injury or cervical disc prolapse based on his subjective and objective assessment of the plaintiff;
(d)the evidence of Dr McCarthy, who diagnosed the plaintiff to be suffering from “whiplash with associated neck, thoracic and right arm pain and headaches”;
(e)the evidence of Dr Blombery, who was of the opinion the plaintiff suffered “whiplash type injuries” which resulted in previously asymptomatic degenerative changes becoming symptomatic together with soft tissue injuries to the joints, ligaments and muscles around that area. In particular, Dr Blombery noted that whiplash injury is an organic disorder of pain nerve pathways;
(f)the evidence of the orthopaedic surgeon, Mr Kossmann, who makes a general diagnosis of injury to the cervical and thoracic spine which give rise to pain and movement restrictions (although Mr Kossmann does not give any definitive diagnosis).
116 Given the period of time which has elapsed from the first transport accident with little change in the symptoms experienced by the plaintiff, I consider that the infliction of such neck injury is long term. I reject the evidence of Mr Kierce, as I consider that the weight of evidence would suggest that the plaintiff does have an ongoing organic neck injury manifesting symptoms in the right side of the neck, right shoulder and arm.
117 After a consideration of all of the evidence, I make the following findings of fact:
(a) The plaintiff is a thirty-two-year-old now married woman with four young children. She is naturally right handed.
(b) The plaintiff was involved in transport accidents on 31 December 2008 and 2 July 2010. Prior to the transport accidents, there is no history or record of the plaintiff suffering any symptoms in her neck (or spine generally), her right shoulder or right arm.
(c) Although I accept that the first transport accident involved a low-speed impact (as accepted by the plaintiff), the ambulance officer’ records do report that she complained of right-sided back pain and right-sided neck pain after that transport accident. On secondary survey, the plaintiff was complaining of a muscular pain to the right side of the neck, right side of the back, mid thoracic and right thoracic pain.
(d) On 2 January 2009, the plaintiff consulted Dr Mancey-Jones at the Yarra Valley Community Medical Service complaining that she had pain and stiffness in her neck since the transport accident some two days earlier. Shortly afterwards, she complained of pain and numbness in her right arm and being unable to carry her baby.
(e) The plaintiff underwent chiropractic treatment from 28 January 2009 until April 2010.
(f) By July 2009, the plaintiff was requiring daily Panadeine, and Temazepam at night. She had become depressed and was commenced on Lovan, although there had been some symptoms of depression prior to the first transport accident.
(g) The plaintiff continued to be prescribed Panadeine Forte and Mobic during 2009 when she was studying at Swinburne University. In particular, in order to cope with attending university, the plaintiff took four to six tablets of Panadeine Forte per day, as well as Mobic.
(h) In January 2010, the plaintiff commenced Tramadol for pain relief and has continued to take such drug, or one of its derivatives since that time. In particular, I do find that the plaintiff takes anything between 100 to 200 milligrams of Tramadol daily and if she takes less than 200 milligrams she frequently takes anything between four to six Panadol on a daily basis. At night she takes Mersyndol Forte (one or two) to assist with her sleep. I find that she always has a degree of pain in her neck, and referred pain to her right arm which is made worse through activity and causes her difficulties in being able to sleep appropriately (particularly when rolling onto the right side of her body).
(i) The plaintiff has had to give up her sporting activities of basketball and also attending a gymnasium because of her ongoing symptoms.
(j) I do find that the plaintiff did attend her tertiary studies from mid-2009 through to mid-2010, during which time she had difficulty with note taking, carrying books and attending various classes. In particular, she required to take extra medication to cope with ongoing pain. She returned to such studies in 2011 for about six months and then resumed in August 2014, again requiring to take medication to cope with such activity. I also find that the plaintiff, both informally and on occasion formally, has advised appropriate people at her place of learning as to her ongoing problems with her neck and arm. It must be borne in mind that the plaintiff is taking Tramadol on a daily basis together with other medication to control the pain symptoms that she experiences.
118 I accept the complaints of the plaintiff. Although it is clearly relevant to balance her assertions of pain against her perceived daily activities, the plaintiff, at no time, in my view, attempted to exaggerate her position. Indeed, she freely conceded that she could do various activities (albeit with difficulty) but always experienced some degree of pain which flared up with overactivity. Such pain needs constant and heavy medication for her to function and also to try and obtain some reasonable period of sleep.
Conclusions
119 Although the defendant asserts effectively, by its submissions, that the plaintiff could not perform the degree of activity that she undertakes if she experiences the pain which she claims, in my view, accepting the credit of the plaintiff as I do, the better view is how the plaintiff does cope with the degree of pain that she suffers requiring the quantity and frequency of medication.
120 I refer to the decision of Sutton v Laminex Group Pty Ltd,[90] wherein Tate JJA, (with whom Ashley and Hargrave AJA agreed), stated:
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”[91]
[90][2011] VSCA 52
[91](op cit) at paragraph [91]
121 In all the circumstances, I am satisfied that the plaintiff has satisfied the test set out in Humphries & Anor v Poljak & Anor and in particular, that her spinal injury is a “serious injury” within the meaning of the Act.
122 I grant leave to the plaintiff pursuant to s93(4) of the Act to bring common law proceedings in relation to the first transport accident.
123 In conclusion, I should add that although I accept it is clear the plaintiff was involved in the second transport accident, such accident, putting it at its highest, aggravated the pre-existing injuries suffered by the plaintiff in the first transport accident. Given the level of symptoms prior to the second transport accident and the continuation of similar medication after the second transport accident, I am not satisfied that the plaintiff has established that the extent of any aggravation would satisfy the test set out in Humphries & Anor v Poljak,[92] consistent with the authorities of Petkovski v Galletti[93] and De Agostino v Leatch & Transport Accident Commission.[94]
[92]Op cit
[93]Op cit
[94]Op cit
124 Leave is not granted in relation to the second transport accident.
125 I will hear the parties on the question of costs.
- - -
ANNEXURE “A”
1 The plaintiff tendered the following documents:
Exhibit 1:
–Two affidavits of the plaintiff sworn 5 December 2012 and 4 August 2014 (found at pages 8 – 19 Plaintiff’s Court Book (“PCB”))
Exhibit 2:
–Report of the treating physiotherapist, Ms C Brandreth, dated 17 June 2011
–Report of Dr Michelle Toy dated 20 June 2011
–Report of Mr R Carruthers dated 30 June 2011
–Report of the Box Hill Hospital dated September 2011
–Reports of Dr Ken Tate dated 26 September 2011 and 3 July 2012
–Reports of Dr Timothy McCarthy dated 23 November 2012, 24 April 2013 and 16 July 2014
–Report of Dr Malka Seneviratne dated 31 March 2014.
(All such reports are found at pages 20 – 35 PCB.)
Exhibit 3:
– X-ray of the cervical spine dated 21 January 2009
– MRI scan of the cervical and thoracic spine dated 13 March 2010
– X-ray of the chest and cervical spine dated 2 July 2010
– MRI scan of the thoracic spine dated 13 July 2010
– MRI scan of the cervical and thoracic spine dated 6 July 2011.
(All such reports are found at pages 38 – 42 PCB.)
Exhibit 4:
–Medico-legal reports of Associate Professor N Paoletti dated 27 October 2011 and 13 December 2013;
–Reports of Mr Thomas Kossmann dated 22 March 2012, 2 June 2012 and 6 February 2014
–Report of Dr Peter Blombery dated 17 February 2014.
(All such reports are found at pages 43 – 89 PCB.)
Exhibit 5:
– Clinical notes of the general practitioner – (pages 125 – 146 PCB)
Exhibit 6:
– Clinical notes of Dr Tate (pages 177 – 195 PCB)
Exhibit 7:
– Letter from Dr N Bleja dated 7 December 2009.
2 The defendant submitted the following material:
Exhibit A:
– Letter from the plaintiff to Swinburne University dated 7 December 2009;
Exhibit B:
– Letter from the plaintiff to Swinburne University dated 10 June 2010;
Exhibit C:
– Letter to Christina Matthews dated 13 August 2010;
Exhibit D:
– Document “Withdrawal from Program” signed by the plaintiff on 27 October 2011;
Exhibit E:
– Ambulance report dated 31 December 2008 (at pages 114 – 117 PCB);
Exhibit F:
– Summary of the plaintiff’s taxation returns (at page 134 PCB);
Exhibit G:
– Two DVD’s of plaintiff taken on 26 March 2014, 4 April 2014, 15 July 2014 and 16 July 2014;
Exhibit H:
– Medico-legal reports of Mr P Kierce dated 13 November 2012, 25 February 2013 and 24 June 2014
– Reports of Dr Lester Walton dated 19 November 2012, 6 May 2014, 25 July 2014 and 4 August 2014.
(All such reports are found at pages 1 – 47 of the Defendant’s Court Book (“DCB”)).
0
3
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