Jovceva v Transport Accident Commission
[2018] VCC 2062
•13 December 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-02201
| BETI JOVCEVA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28, 29, 30 November 2018 | |
DATE OF JUDGMENT: | 13 December 2018 | |
CASE MAY BE CITED AS: | Jovceva v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2062 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Transport Accident; application for leave to bring damages claim; whether plaintiff has suffered “serious injury”; whether injury primarily consequence of organic or functional factors; Transport Accident Act 1986 section 93(17)
Legislation Cited: Transport Accident Act 1986
Cases Cited:Humphries v Poljak [1992] 2 VR 129; Richards & Anor v Wylie [2000] VSCA 50; Petkovski v Galletti [1994] 1 VR 436; De Agostino v Leatch & Anor [2011] VSCA 249; Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46
Judgment: Leave refused/Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie QC with Mr J Chen | Slater and Gordon Ltd |
| For the Defendant | Mr G. Lewis QC with Ms M. Tait | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Background
1 Ms Jovceva was born in 1977. She grew up in Brisbane, beginning work in the wholesale fashion industry in 1996 and moving to Melbourne in 2001. (Plaintiff’s Court Book (“PCB”) 14, 17)
2 On 24 May 2013, she was at the wheel of her car, stationary at traffic lights in Hoddle Street, East Melbourne, “when without warning [she] was rear-ended with force by another vehicle”. She extricated herself from her wrecked car, having suffered the following injuries:
·injury to chest
·soft tissue injury to neck
·soft tissue injury to lower back
·soft tissue injury to thoracic spine
·injury to left and right shoulders, and
·psychological trauma. (PCB 14)
3 Ms Jovceva’s usual general practitioner, Dr Josefsberg, was on leave from her practice, so she consulted a Dr Lisner of the same clinic, who recommended osteopathy. On 24 May, she attended Mr Gaitz, an osteopath at the East St Kilda Sports and Spinal Clinic, who arranged for x-rays on 31 May 2013. Following Dr Josefsberg’s return from leave, Ms Jovceva attended her for treatment and assessment and was referred to undergo a CT scan of the spine “due to significant pain”. Meanwhile, she was continuing osteopathic treatment and acupuncture. (PCB 15)
4 On 16 June 2013, Ms Jovceva said:
“I developed intense pain on the right side of my body and ribs. On 18 June 2013 the pain in my chest and ribs intensified causing me to vomit and I developed paraesthesia in both hands. I called an ambulance and was transferred to The Alfred Hospital. I was admitted and underwent radiological investigations by way of CT scan and MRI of my cervical spine. I was fitted with an Aspen collar and discharged home on 22 June 2013 with a follow up review scheduled at the neurosurgery outpatient clinic on 12 July 2013.” (Ibid)
The “Aspen collar” referred to is a more elaborate piece of apparatus than the more usual “soft” collar and provides rigid support.
5 Following her discharge from hospital, Ms Jovceva consulted a Dr Bianca Scotney at Olympic Park Sports Medicine Centre. On Dr Scotney’s advice, a soft collar was substituted for the Aspen collar and Ms Jovceva was referred to Gary Cairnduff at the same centre for physiotherapy. She also undertook hydrotherapy and Pilates in early 2014, continuing treatment twice per week until June 2015.
6 An ultrasound of Ms Jovceva’s left shoulder in January 2014 revealed calcification in the supraspinatus tendon. She said a further ultrasound in February 2015 showed, in addition to the calcification, some scarring and subacromial bursitis.
7 In April 2015, Ms Jovceva was referred to Dr Clayton Thomas at the Victorian Rehabilitation Centre, at which she commenced a pain management program on 22 October 2015. She said, “This was an intensive multi-disciplinary program which I attended on a weekly basis until 4 March 2016.” (Ibid) She continued seeking to manage symptoms by daily exercise in “a light swim/gym program at St Kilda sea baths”. She walked daily.
8 Ms Jovceva said:
“Despite various modalities of treatment which remains ongoing, I continue to suffer from significant pain and restrictions as a result of my transport accident injuries.” (PCB 16)
9 She said that her physical limitations and constant pain “significantly affected me emotionally”. (PCB 18) She said before the accident she was ―
“… very social, fit and active. Walking was a part of my daily routine and I had a martial arts background having done Tae Kwon Do for over eight years. I had always worked since completing high school. I was very social and enjoyed attending openings, restaurants, bars, concerts, theatre, seeing live bands and was a regular at my local, Vineyard, at St Kilda. I enjoyed travelling overseas in Europe and Asia. I was passionate about cooking and enjoyed entertaining. I also attended private classes with a jeweller and was making my own silver jewellery collection …” (Ibid)
10 After the accident, she said she “spiralled into a pit of depression and avoided socialising and leaving home”. (Ibid) She said that she had gained 30 kilograms since her accident, and was seeking to lose that weight “but finding it difficult with diet alone”. (Ibid)
11 Ms Jovceva said that, aside from a referral to a psychologist:
“about one year before the transport accident due to stress caused by a personal issue. I was otherwise in good health, able to undertake an unrestricted range of social, domestic, recreational, work and sporting activities.” (PCB 19)
12 According to Ms Jovceva’s most recent affidavit sworn 19 September 2018, she continues “to experience ongoing pain in [her] neck, back, shoulders and right hip. The pain is present all the time but it fluctuates”. (PCB 20) She said she continues to be restricted in her day to day activities and recreation, both social and domestic. She said that before her accident she could not recall having any significant difficulty with her lower back. (PCB 21) Since then, however, she said she has experienced “constant debilitating pain in [her] neck which radiates into [her] back and both shoulders, and into [her] mid spine”. (Ibid) She said she experiences pain across her lower back and constant pain in her right hip. (Ibid)
13 She noted that Dr Clayton Thomas, of the Victorian Rehabilitation Centre, during his treatment of her from October 2015 to March 2016, diagnosed her as suffering from “fibromyalgia”. She said she undertakes the following:
“… intensive treatment regime in an effort to manage [her] pain.
·yoga twice a week at Humming Puppy in Prahran;
·clinical pilates once a week with physiotherapist Pav Deshmukh at Melbourne Physiotherapy Centre;
·an at-home program from Pav Deshmukh;
·chiropractic treatment once a week from Simon Floreani at Vitality Health;
·remedial and relaxation massage once a month at Arokaya Thai Massage;
·Bowen therapy at Fluid Health Management Systems, Port Melbourne;
·Fortnightly visits to St Kilda Sea Baths for independent hydrotherapy.” (Ibid)
14 She said she had also recently “re-engaged” in kinesiology treatment.
15 As to medication, according to Ms Jovceva, she takes Nurofen, Panadol and Valium. She said that the Valium assists to relieve tension in her body, but she tries to limit herself to taking it once a week. She tried Cymbalta, but found it made her nauseous. (PCB 22)
16 Ms Jovceva said that she experiences “constant burning pain” in her neck radiating into her mid-back and shoulders, and has restricted movement, stiffness and soreness in the back. The pain in her shoulders causes her significant discomfort. The pain in the right shoulder is a “burning sensation”. The left shoulder is affected by “an ache”. When pain is intense, she finds it hard to raise her arms and rotate her shoulders, and experiences difficulty “pushing and pulling items in any significant way due to the pain”. She said lifting items of any significant weight causes her “lower back pain to worsen”. It may also cause “[her] lower and middle back muscles to spasm”. She said she has difficulty twisting her lower spine. She said that she suffers multiple back spasms on a daily basis. She described a spasm which she suffered whilst standing in the witness box giving her evidence. (Ibid) The spasms may occur whilst she is attending public functions, for instance a women’s networking dinner which she had to leave prematurely in June 2018 as a result of pain from the spasm. (PCB 23)
17 Being self-employed, she is able to manage her work time by taking appropriate breaks, changing her posture and so forth. Her business entails earning commission on the brands which she promotes.
18 Her work requires her to undertake extensive business travel. In May 2018, she took a six day trip between towns on the central coast of New South Wales from Ballina to Sydney. Before undertaking this trip, she had attended a school reunion in Brisbane, following which she said she had “unbearable pain in my neck and back. I was due to start the work trip that week, however I knew that I would not be able to because of my pain levels”. (Ibid) Attendance at a work conference on 5 July entailed sitting for lengthy periods and “The following day [she] was unable to get out of bed … due to significant pain in my neck and back”. (Ibid)
19 According to Ms Jovceva, the relationship with her family is “strained as a result of my pain”. (PCB 24) She finds that she is “prone to snapping at [her parents] more often than [she] used to”. Living in Brisbane, she said, “They are far away and do not understand”. (Ibid)
20 Ms Jovceva says that she is anxious when driving or travelling as a passenger in a motor car. She suffers flashbacks and, in contrast to the situation before the accident, she suffers frequent nightmares. She enjoyed designing and making jewellery and using precious metals before the accident, but now she no longer has the capacity to sit for hours working on jewellery. (Ibid)
Expert opinions
21 Dr David MacDonald, a medico-legal consultant at Alfred Health, provided a report to Ms Jovceva’s solicitors by letter dated 11 February 2014 as to Ms Jovceva’s treatment in the Alfred Hospital in the period June 2013. According to Dr MacDonald, Ms Jovceva was admitted to a ward in the trauma unit. A CT scan of her cervical spine showed no abnormality, as did an MRI scan. Ms Jovceva was fitted with an Aspen collar and given analgesia. She was discharged on 22 June 2013, having been admitted on 18 June 2013 complaining of “cervical and lumbar pain and chest pain”.
22 Dr MacDonald reported Ms Jovceva attending at the neurosurgery outpatient clinic on 12 July 2013. The imaging at the Alfred Hospital, including the MRI scan, had failed to show any trace of a neck injury. Mr Jovceva “had been advised to wear a collar for comfort”. On 12 July, it was recommended that she remove her collar and have a further review in August. “It was again emphasised there was no abnormality on imaging”.
23 Dr MacDonald reported the next review of Ms Jovceva occurred on 30 September 2013, at which time:
“It was noted that her neck was improving and that she had no neurological signs or symptoms. Neck mobility was good and her pain was controllable. She had no neurological abnormalities on examination. It was again noted that her MRI and CT scans of cervical spine were normal. It was noted that the patient should continue physiotherapy. She was discharged from the clinic.” (PCB 30)
24 Dr MacDonald said that he had compiled this report from clinical records and he “had no personal involvement with the patient’s management”. (PCB 31)
25 Dr Bianca Scotney, of the Olympic Park Sports Medicine Centre, had a number of consultations with Ms Jovceva commencing on 13 July 2013. She provided a report by way of letter dated 14 February 2014 to Ms Jovceva’s solicitors. Following the accident, according to Dr Scotney:
“Beti was aware of pain in her jaw and lower back as well as left-sided shoulder and neck pain. In addition to pain radiating down the left arm, her left shoulder was quite stiff. She first saw her local doctor on a Monday, three days following the accident. There was no imaging at this time and she was advised to see an osteopath. Her osteopath obtained cervical spine x-rays which were reported as normal. He then treated her cervical spine. She then followed up with her usual doctor who requested a CT scan of the neck, as Beti later became aware, the initial report had suggested a C7 facet fracture.” (PCB 32)
26 According to Dr Scotney, Ms Jovceva told her that she had developed severe right lateral anterior rib pain and was having difficulty walking and sleeping. She began vomiting and reported indigestion-type pain. She feared she was having a stroke and called an ambulance, which took her to the Alfred Hospital. “Here, a fine-slice CT scan of the cervical spine was performed and Beti was told there was no fracture. She then had an MRI scan of the cervical spine which excluded ligamentous rupture.” (Ibid)
27 At the consultation on 13 July 2013, Dr Scotney said she:
“left Beti in her hard collar so that I could review the imaging she had presented to me to be happy for myself that there was no significant bony or soft tissue injury before transferring her into a soft neck collar.” (Ibid)
28 A few days later, Dr Scotney reviewed imaging material and concluded the:
“changes at the C4-C5, C5-C6 and C6-C7 levels in the neck with posterior disc bulge and narrowing of the neural exit foramina at these levels. The MRI scan of the thoracic and lumbar spine showed no fracture but broad-based disc protrusions at L3-L4, L4-L5 and L5-S1. On this occasion, Beti reported burning pain in the lumbar spine particularly toward the end of the day. She was taking Endep 25 mg daily, regular paracetamol and Panadeine Forte as required for ongoing headaches. She had experienced nausea with tramadol.” (PCB 32-33)
29 Dr Scotney said that her examination of Ms Jovceva on 17 July disclosed that as to the neck, there was “significant paraspinal muscle dysfunction only.” Accordingly, she recommended a change to a soft collar and referred Ms Jovceva to physiotherapist, Mr Garry Cairnduff, for a program of whiplash rehabilitation, trigger point therapy and treatment of the cervical, thoracic and lumbar spine and shoulder girdle muscles. (PCB 33) On further review, 14 October 2013, according to her report, Dr Scotney found significant improved range of neck movement with the most restriction in right lateral rotation and left lateral flexion. On review 28 August 2013, Ms Jovceva told the doctor that she had had a bad week at work but her neck was feeling better. She said she had had some pain-free days. Upon review on 27 November 2013, Dr Scotney noted that Ms Jovceva was without her soft collar but reported constant ache and tightness around her left shoulder girdle as well as thoracic and lumbar spine and muscle spasm. Her physiotherapy continued. (ibid) Dr Scotney noted a report of “a buzzing sensation through the index finger pulp when she placed it against any surface.” Ms Jovceva reported a rapid increase in pain but the doctor considered that this may have been due to a reduction in pain relief medication. Dr Scotney said:
“Examination on this occasion, revealed mild restriction in upper and lower cervical spine flexion and right lateral flexion only. This was further improved since her last review.”
30 On further review, 22 January 2014, Ms Jovceva described “a significant flare of her left shoulder pain.” Following a visit to Sydney for a funeral she had difficulty elevating her left shoulder and obtained osteopathic treatment in Melbourne and Sydney. She had also received acupuncture therapy. Her general practitioner had ordered an ultrasound scan of the [left] shoulder and repeat MRI scans of the cervical and lumbar spine. Dr Scotney said:
“Examination on this occasion revealed a markedly improved neck range of movement, although she continued to experience a pulling sensation through the thoracolumbar spine when performing cervical spine flexion movements. Her active range of movement in the left shoulder was significantly restricted; however, even her passive range of movement was limited to 150o of forward flexion and abduction. (PCB 34)
31 Dr Scotney’s final examination and consultation with Ms Jovceva was 29 January 2014. According to the doctor, Ms Jovceva was:
“… immensely relieved that she had a solid diagnosis regarding her left shoulder symptoms. Her active range of movement had improved significantly but was still not back to her pre-exacerbation levels.”
32 The doctor concluded that Ms Jovceva “presented with a post-traumatic left shoulder adhesive capsulitis.”
33 This injury, she said, was “self-limiting over 18 to 24 months.” As to spinal issues, Dr Scotney said:
“Her cervical spine whiplash injury has been associated with dysfunction in both the thoracic and lumbar spine. She has shown slow but progressive improvement in all areas.”
34 She advocated continuing physiotherapy. (ibid) The doctor concluded:
“I feel Beti should be able to make a significant, if not complete, recovery from the injuries sustained during the motor vehicle accident. While she should achieve full range of neck and shoulder movement, I suspect that it may take some years before she no longer experiences early fatigue in the spinal and shoulder girdle muscles and potentially minor exacerbation of pain. …” (PCB 35)
35 The first medical practitioner to examine and assess Ms Jovceva after the transport accident was Dr Chas Lisner of South Melbourne Family Practice. He provided a report to Ms Jovceva’s solicitors by way of letter dated 27 March 2014. The doctor noted presentation on 27 May 2013 reporting involvement in a transport accident “three days prior”. Complaint was of a “sore neck worse on the left side and pain radiating to her left upper arm.” (PCB 36) The doctor found decreased lateral flexion and rotation “especially to the left side” with “tender cervical tissues worse on the left side.” He also found tender trapezius muscles on the left side, tender upper chest wall left and tender “TMJ left side”. He noted:
“… good range of movement of her back but pain on lateral flexion and rotation, there was tenderness of the lumbar spine and lateral lumbar tissues but no radicular pain.” (ibid)
36 The doctor diagnosed “soft tissue damage”, prescribing Voltaren and referred her to her osteopath for treatment. The doctor next saw Ms Jovceva on 20 January 2014 reporting:
“… she told me that subsequent to seeing me she had been diagnosed with a fracture C7 vertebra in her neck and told me that she still had issues with her neck, left shoulder and lower back.”
37 The doctor suggested further scans. He noted Ms Jovceva was “unable to abduct, flex or extend the shoulder more than a few degrees due to weakness.”
38 He found tenderness of the lower left cervical tissues.
39 The doctor provided a further report to the solicitors dated 30 April 2015. (PCB 38-39) which covered the same material reporting upon the same consultations described in the earlier report.
40 Ms Aimee Turner, physiotherapist, provided a report by way of letter to Ms Jovceva’s solicitors dated 10 July 2015. She described her consultations and treatment of Ms Jovceva commencing 4 August 2014. Over the period from August 2014 to July 2014, Ms Turner said she had been “reviewing Beti once to twice a week since initial consultation.” (PCB 40) Ms Jovceva’s symptoms “fluctuated week to week depending primarily on her activity level throughout the week and how well she was pacing herself through daily activities.” Her main issues were “pain associated with her left shoulder, neck and upper back as well as fluctuating pain in her low back.” (ibid) Referring to the finding of scans and x‑rays, Ms Turner said:
“I believe Beti is likely to have some secondary musculoskeletal issues associated with these injuries which may include muscle spasm, pain inhibition to stability musculature in her low back/neck/shoulder, altered movement patterns and fear avoidance of activities. Additionally I believe that due to her pain levels and subsequent lack of activity, she became generally deconditioned.” (PCB 41)
41 According to Ms Turner, Ms Jovceva’s pain levels remained “relatively stable” though there had been functional improvement. Ms Turner said:
“It will take time for her [Ms Jovceva’s] neural processing of pain to be desensitized and her strength, endurance and postural endurance to improve.” (PCB 42)
42 Ms Jovceva undertook treatment at the Muscle & Bone Clinic in Prahran with a practitioner identified only as “Slav” who provided an undated report. (PCB 49) The report concluded:
“Betti is still suffering from trauma after the car accident which has affected her physical state, resulting in reduced muscular strength and postural stability.” (PCB 51)
43 Pav Deshmukh of Melbourne Physiotherapy Pilates & Fitness Group provided a report by way of letter dated 7 November 2018 to Ms Jovceva’s solicitors. The report on the same letterhead as Ms Turner’s earlier report. This physiotherapist said:
“I initially saw Beti for her physiotherapy consult on the 9th Apr 2018. She mentioned that she was back receiving physiotherapy treatment after a gap;”
44 The report stated:
“She mostly presented with L shoulder, neck & upper back pain + stiffness. This was associated with reduced muscle control & difficulty to maintain sustained postures, do repetitive movements.” (PCB 52)
45 The physiotherapist found:
·Reduced cervical spine on thoracic muscle control
·Reduced L>R scapular muscle control
·Reduced muscle control and endurance re: spinal and core muscles (PCB 53)
46 Ms Jovceva was referred by her treating general practitioner, Dr Yona Josefsberg, to Dr Clayton Thomas, a consultant in rehabilitation and pain medicine, carrying on practice at the Victorian Rehabilitation Centre. Dr Thomas had his first consultation with Ms Jovceva on 30 April 2015 during which he took a history of a rear end collision. According to his report, Ms Jovceva described the incident as follows: “She went forward to the left.” (PCB 55)
47 Dr Thomas observed:
“She had well-preserved movements of her neck and her lower back and indeed both shoulders. I could not pick up any intrinsic rotator cuff weakness.” (PCB 56)
48 According to the doctor’s report to Ms Jovceva’s solicitors dated 14 June 2018, he formed the impression that:
“What may have started as a simple whiplash and associated disorder seemed to have developed more into a posttraumatic fibromyalgic-type picture.” (PCB 56)
49 The doctor continued:
“I felt she needed more of the psychological input into the way she thought, felt and dealt with her pain in addition to the functional aspects of the occupational therapist …”
50 The doctor had a further consultation with Ms Jovceva on 11 May 2017. He said:
“Effectively she had gone on to develop a widespread pain syndrome and she met the criteria for fibromyalgia.”
51 He said:
“She reported cyclical mood, being happy and jovial one minute and then crying, teary and not getting out of bed the next.
I wrote to her GP as to whether there was a bipolar type II situation here but clearly this would need more evaluation to determine.”
52 He suggested a trial with Joncia 25 mg tablet twice daily and then 50 mg twice daily:
“… to see what impact this had on her pain experience. Joncia is a new medication, not on PBS, which has been developed primarily for fibromyalgia and I had certainly had positive response to the use of the medication in this group of patients.” (PCB 57)
53 In October 2014, Ms Jovceva attended Dr Nathan Serry, consultant psychiatrist, for medico-legal assessment at the request of her solicitors. The doctor diagnosed Ms Jovceva as suffering from “chronic adjustment disorder with anxious and depressed mood and with significant features of traumatisation.” (PCB 54)
54 In July 2018, Ms Jovceva attended Dr Serry for a further medico-legal assessment at the request of her solicitors. He provided a report of his findings in a letter to the solicitors dated 13 July 2018. Dr Serry noted Dr Thomas’s finding that Ms Jovceva “had a widespread pain syndrome and met the criteria for fibromyalgia” and “required more psychological input”. His diagnosis was as follows:
“The psychiatric illness arising from the subject accident is in my opinion still consistent with that of a chronic adjustment disorder with anxious and depressed mood and with significant features of traumatisation and further still, your client in my opinion presents with symptoms consistent with a diagnosis of a somatic symptom disorder with predominant pain persistent and of moderate severity.” (PCB 73)
55 Dr Serry made an impairment assessment of 15 percent; 1 percent of this psychiatric impairment was, he said, pre-existing and unrelated; 7 percent was direct or non-secondary; and 7 percent was secondary “and reactive to the physical injuries sustained in the accident and the ongoing pain and limitations.” (PCB 74-75)
56 Ms Jovceva also underwent an assessment for medico-legal purposes by Mr Stephen Doig, orthopaedic surgeon, who reported to the solicitors in a letter dated 20 August 2015. Mr Doig diagnosed the following:
·soft tissue injury to the cervical spine;
·soft tissue injury to the lumbar spine which has now mostly resolved;
·minor soft tissue injury to the right shoulder;
·calcification of the left supraspinatus tendon.
57 Presumably in accordance with the AMA Guides, he found a 5 percent impairment of the cervical spine based on restriction and range of movement and complaints of ongoing pain. He found zero percent impairment of the lumbar spine as well as impairments of the left and right shoulder combined at 5 percent of the whole person for the left shoulder and 1 percent for the right shoulder. He observed that the prognosis was “actually reasonably good. I think it is likely she will continue to slowly and steadily settle down from where she is at this stage.” (PCB 80-81)
58 Ms Jovceva’s solicitors sent her for medico-legal assessment to Mr Peter L. Moran, orthopaedic surgeon, on 21 February this year. Mr Moran forwarded his findings in a letter to the solicitors dated 3 August 2018. After reciting the history which Ms Jovceva gave him, Mr Moran said:
“Her dominant concern at present is pain in the neck, shoulders, hips and lower back. She has restless legs, and as well, persistent occipito-parietal headaches.”
She also complained of “persistent and significant sleep disturbance.” (PCB 83) Mr Moran said “I did not feel … that there was evidence of exaggeration of her clinical condition nor of abnormal illness behaviour.” (PCB 84) On examination, Mr Moran found movements of the neck “inhibited”, with right lateral flexion limited by pain to 15 degrees and left lateral flexion to 30 degrees. He said rotation was “mildly inhibited”, but flexion and extension were “relatively unimpeded”. He found a restriction to abduction to 100 degrees, but Ms Jovceva “otherwise had a full range of shoulder movement”. Neurological examination of her legs was “normal”. Neurovascular examination of the upper limbs [vis-a-vis arms] was considered normal. As to scans and x-rays, Mr Moran said that an MRI scan of the cervical spine of 23 January 2014 “failed to identify evidence of a major structural injury, apart from showing perhaps mild compression of the exiting C6 nerve root”. As to the lower back, he noted:
“At L5/S1 I noted a central to left sided disc prolapse of moderate severity. This may have impinged on the merging left S1 nerve root.” (PCB 84)
In conclusion, Mr Moran said that he found ─
“… a traumatic aggravation of underlying asymptomatic degenerative change in the neck and lower back. There is clear evidence of a lumbar disc prolapse of the lumbo-sacral junction, but this is not associated with evidence of neurological impairment.” (PCB 85)
He said that her condition was stable and her pain would persist indefinitely.
59 The Transport Accident Commission required Ms Jovceva to be assessed for medico-legal purposes by consultant orthopaedic surgeon, Dr John Owen, on 2 October 2018. Dr Owen found Ms Jovceva “extremely loquacious”, but he said she “frequently became distressed and tearful during recounting her history. She stood up for most of the interview.” He said the range of movement of her cervical spine was good, with only slight restriction of lateral flexion. Her arms showed normal reflexes. He found that her lumbar spine “moved well with good flexion of 90 degrees and extension 30 degrees. Lateral rotation 30 degrees but limited rotation to 30 degrees”. He said “There was no neurological loss in her lower limbs. She was areflexic but had good motor and sensory modalities.” He found mild tenderness in her shoulders “anteriorly on the left side”. Internal and external rotation were normal. Abduction was limited to 100 degrees and active elevation to 110 degrees. (PCB 103) Dr Owen said he suspected that there were some degenerative changes in Ms Jovceva’s rotator cuffs “causing her symptoms of clicking and pain in the shoulders, especially on the left side. I do not think that the motor vehicle accident was the cause of this problem.” (PCB 105) He said a diagnosis of frozen shoulder did not have “much substance”. He continued, “Ms Jovceva has recovered virtually all the range of movement in her left shoulder and only has mild signs of impingement of the left arm.” As to the spine, he said:
“I suspect that Ms Jovceva has underlying degenerative change in her cervical spine and lumbar spine that was asymptomatic at the time of the accident. She now has grumbling symptoms in these areas. I think her diagnosis is to remain much the same.” (PCB 105)
He concluded that ongoing pain would “impact” on activities of daily living. (PCB 105) This was particularly so with respect to her shoulder injury. He said:
“You would expect her to have some problems with heavy use of her arms overhead or doing activities such as hanging up washing. In really significant problems, doing activities such as cleaning or wiping a table can be a problem but I do not think she is quite at that stage yet.” (PCB 106)
In concluding, he said:
“I can imagine that there are significant psychological forces at play here which are not easily diagnosed or understood by an orthopaedic surgeon. I do think that it would be appropriate to have a psychiatric or psychological assessment of her.” (PCB 106)
60 Counsel for the plaintiff also relied upon reports from Ms Joanna Young, psychologist. The evidence showed that, prior to the accident, Ms Jovceva was attending Ms Young for counselling on referral from her general practitioner, Dr Yona Josefsberg, relative to matters unconnected with the transport accident. Indeed, Ms Jovceva was driving to a consultation with Ms Young when the accident occurred. In a letter dated 2 February 2015, addressed “To Whom It May Concern”, Ms Young recorded that Ms Jovceva had first presented to her in April 2012 on referral from her general practitioner. Ms Young assessed her as suffering mild depressive symptoms, in addition to “very severe, chronic anxiety and stress”. Ms Jovceva “lacked effective coping skills in the face of ongoing stressors. She responded moderately well in therapy, showing modest improvement in anxiety levels.” According to Ms Young, following the accident, Ms Jovceva developed “severe depressive symptoms”. She said:
“She has experienced greater fluctuations in mood, including depressive episodes, since her neck injury. It is worth noting that although she had an existing anxiety condition she did not have depressive episodes prior to her car accident and injury … Her impaired sleep since the injury almost certainly contributes to her depressive symptoms.” (PCB 109)
61 A letter from Ms Young to Dr Josefsberg dated 27 August 2013 reported that, following 12 sessions of counselling, Ms Jovceva ─
“… had been making moderately good progress but had a severe relapse of anxiety and depression in the wake of the injury sustained in the car accident … that disrupted her life significantly.” (PCB 110)
62 Counsel also referred to a letter from Dr Josefsberg, addressed again “To Whom It May Concern”, dated 24 April 2014 in mitigation of threatened penalties which might have been imposed on Ms Jovceva relative to accumulated parking infringement notices. The evidence showed that these infringements took place before the accident. The doctor said:
“Beti suffers from a history of anxiety and depression due to severe anxiety and exacerbated by financial difficulties, being involved in a Motor Car Accident on 28/5/14 which has left her with residual neck and back pain and compounded by a close friend being charged with murder and the ongoing investigation.” (PCB 118)
Next, counsel referred to another letter from Dr Josefsberg, apparently addressed to those administering the Medicare scheme, requesting “6 visits under exceptional circumstances”, presumably to clinical psychologist, Ms Young, on the grounds that Ms Jovceva ─
“… had a severe exacerbation of her GAD + depression due to recurrent episodes of severe pain due to an MCA [viz, motor car accident]. These episodes reinforce the loss of quality of her life.” (PCB 120)
Counsel also referred to Dr Josefsberg’s letter of referral to Dr Clayton Thomas dated 12 April 2015, where the doctor said:
“Beti suffers from a history of anxiety and depression being involved in a Motor Car Accident on 28/5/14 [sic] which has left her with residual neck and back pain and left rotator cuff syndrome with pain and weakness.” (PCB 121)
63 The Plaintiff’s Court Book also included reports on an array of x-rays, CT scans and MRIs and clinical notes from her treatment at the Alfred Hospital in 2013.
64 Following Ms Jovceva’s discharge from the Alfred Hospital, Dr Justin Moore, registrar of the Department of Neurosurgery, reported to Dr Ignatius Soosay of Camberwell Medical Centre that Ms Jovceva had attended the hospital “with a sore neck”. The imaging which Ms Jovceva had at the time “revealed a possible hairline fracture which was not unstable at any time”. Repeat imaging at the Alfred and an MRI scan have failed to find any trace of neck injury and thus no further specific medical treatment was required. According to Dr Moore:
“The patient was advised to wear a collar as a comfort measure but this is simply if she is having local neck pain as I repeat she did not have any instability.
Because it is only a comfort measure she is more than welcome to take the collar off should she feel that it is not aiding her comfort.” (DCB 13)
The doctor referred to the possibility of a claim for compensation from the Transport Accident Commission, but continued:
“… all I can reiterate is that our imaging did not find any abnormality but again she will need to discuss that with the TAC.” (DCB 13)
65 Mr Michael Fogarty, orthopaedic surgeon, provided a joint report for medico-legal purposes to the Transport Accident Commission and Ms Jovceva’s solicitors. He saw Ms Jovceva for consultation on 8 September 2014 and provided his report by way of letter to the two parties on 15 September 2014. Mr Fogarty reported:
“I found Beti Jovceva to be relatively tall at 175cm. She said that her present weight was 100kg but this had not really changed since the motor vehicle accident.” (DCB 19)
Mr Fogarty found a “virtually normal range of movement” in the thoraco-lumbar spine and could detect no neurological deficit in the legs with all reflexes “present, brisk and equal”. The range of neck motion was also normal. He also found no neurological deficits in the arms “and all reflexes were present, brisk and equal”. As to the scans and images made at the Alfred Hospital, Mr Fogarty reported “no cervical spine fracture evident”. He carried out an assessment in terms of the AMA Guide, finding 0 percent impairment.
66 The Transport Accident Commission required Ms Jovceva to attend consultant psychiatrist, Dr Brendan Hayman, for medico-legal assessment on 3 October 2018. The doctor reported on this consultation in a letter to the Transport Accident Commission of the same date. Dr Hayman took a history of symptoms immediately following the accident, including “headaches, neck pain, a displaced jaw, frozen jaw, right shoulder pain, spasm in my right and left back, pins and needles in my hands and spasms in my legs”. (DCB 28) He said she told him “three neurosurgeons thought I had a fracture”. (Ibid) As to a history of psychiatric problems prior to the transport accident, Dr Hayman said Ms Jovceva ─
“… gave a detailed account regarding events with a prior friend. She explained she had a former friend with whom she shared an apartment. The friend had gone missing and had been the subject of a police investigation with regards to a murder. She stated as such, she had been under police surveillance for two years. The police had apparently been following her. She stated a police officer, Angela Hantzis, from Operation Briar, a police corruption investigation, had been following her and indeed, stopped her at the site of the accident. This was because she was under surveillance at the time.
She explained this ongoing surveillance was highly stressful.” (DCB 29)
The doctor recorded Ms Jovceva describing herself as “essentially quite stable, intelligent, metaphysical type of person”. (Ibid) At the time of the accident though she was undertaking a course of psychological counselling with Ms Young and “she was doing very well. She said she had ‘no psychological issues at the time … I was dating, working, kicking goals’.” (Ibid)
Dr Hayman concluded:
“Diagnostically, it appears she developed a Chronic Adjustment Disorder with depressed and anxious mood. There was some mild post traumatic anxiety features. The Chronic Adjustment Disorder with depressed and anxious mood is largely resolved.” (DCB 35)
67 The Transport Accident Commission relied, in addition to the report from Dr John Owen summarised above, on a supplementary report dated 15 November 2018 when the doctor was referred to a number of surveillance videos, to which I will refer below. He commented:
“Overall the videos convey a person with very few obvious restrictions in their activities of daily living which includes shopping, carrying groceries, driving, using a mobile phone, talking and caring for young children, all of which can be quite provocative of cervical spine symptoms. From the videos it looks as if Ms Jovceva has very few symptoms provoked by these activities.” (DCB 49)
Dr Owen noted that, on clinical examination, he had found “not … very much in the way of physical limitations or restrictions”. He continued:
“I think from the video footage that … there would appear to be very little in the way of limitation on her activities of daily living and doing normal domestic chores.” (DCB 50)
The Transport Accident Commission also relied on a report dated 25 June 2012 from Ms Young to Dr Yona Josefsberg (11 months before the accident) wherein Ms Young reports on the completion of six sessions of counselling and continues:
“Beti has acknowledged that her anxiety is much more severe and long-standing than she had previously admitted to herself, and that she has deep-seated depression too. [my emphasis] (DCB 52)
Another report to Dr Josefsberg dated 1 August 2012 from Ms Young states:
“Beti has responded well to treatment for management of anxiety and depression. Her symptoms remain severe …” [my emphasis] (DCB 53)
The Transport Accident Commission also referred to a document syled “Brief Psychological Report”, authored by Ms Young and addressed to the Infringements Registrar of the Melbourne Magistrates’ Court. This document appears to have been prepared in mitigation of threatened penalties for an accumulation of parking infringements. Under a heading of “Diagnosis and history of mental illness”, Ms Young said:
“Ms Jovceva reported a history of anxiety and stress dating back to her early teenage years, emanating from her family environment and relationships. Her symptoms met diagnostic criteria for Generalised Anxiety Disorder and Major Depressive Disorder.” [my emphasis] (DCB 56)
She continued:
“Anxiety left untreated easily morphs into a depressive state. I believe Ms Jovceva has had these conditions for many years, perhaps since her mid 20s when she moved to Melbourne.” (Ibid)
She continued:
“Depression and anxiety are both characterised by impaired concentration and decision making.” (Ibid)
This report, whilst dated almost 16 months after the transport accident, makes no reference to it.
68 Counsel for the TAC relied on a series of medical certificates prepared for Centrelink, the Commonwealth’s authority administering social security benefits, given by Dr Josefsberg and certifying Ms Jovceva unfit for work or study due to “anxiety and depression” for the period commencing 26 June 2012 and concluding 26 May 2013. (DCB 58–61) The result, therefore, said counsel, was that at the time of the transport accident and for a period of almost a year previously, Ms Jovceva had been certified as unfit for work by her general practitioner. The Commission through its counsel also put into evidence a further report of Dr Clayton Thomas addressed to treating general practitioner Dr Josefsberg by letter dated 11 May 2017, where Dr Clayton Thomas said:
“Effectively she has gone on to develop a widespread pain syndrome and she meets the criteria for fibromyalgia.” (DCB 70)
This proceeding
69 The solicitors acting for Ms Jovceva have commenced this proceeding seeking pursuant to s93(4)(d) leave for her to bring a proceeding seeking damages as a result of the transport accident.
Legal considerations
70 Section 93(1) of the Transport Accident Act 1986 precludes a person from recovering damages in any proceeding in respect of injury as a result of a transport accident “except in accordance with [s93].” Sub-section (2) entitles a person to bring a damages claim for injury sustained in a transport accident inter alia if “the injury is a serious injury”. Ms Jovceva contends that her injury is a serious one as defined in s93. Sub-section (17) defines “serious injury” as follows:
“serious injury means—
(a) serious long-term impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c) severe long-term mental or severe long-term behavioural disturbance or disorder; or
(d) loss of a foetus.”
71 Ms Jovceva’s solicitors filed a document styled “Particulars of Injury” dated 19 July 2018 stating as follows:
“Injuries to be relied upon by the plaintiff:
1. Cervical spinal injury (including aggravation of degenerative changes);
2. Injury to the C7 disc in the cervical spine;
3. Thoracic spine;
4. Lumbar spine;
5. Aggravation of degenerative changes in the cervical, thoracic and lumbar spine;
6. Psychological reaction including anxiety, depression and chronic adjustment disorder.”
72 The particulars invoke paragraphs (a) and (c) of the definition of serious injury in s93(17) of the Transport Accident Act 1986. (PCB 13)
73 In opening the plaintiff’s case, Mr McGarvie QC, who appeared with Mr Chen on behalf of the plaintiff, said that his client relied only upon paragraph (a) of the definition. The body part said to have sustained the “serious long-term impairment” was the spine. (T1, L23-29)
74The application of this definition is to be guided by a seminal analysis of the majority of the Full Court of the Supreme Court of Victoria in Humphries v Poljak [1992] 2 VR 129, 140. Crockett and Southwell JJ stated:
“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 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’?”
75In Richards & Anor v Wylie [2000] VSCA 50 the Court of Appeal dealt with the interaction between paragraphs (a) and (c) of the definition of serious injury. Winneke P, having reviewed the joint judgment in Humphries v Poljak, said:
“Thus, the judge, in making the inquiry, must be careful - particularly in cases where mental disturbances or disorders have supervened - not to lose sight of the focus which the definition in sub-paragraph (a) calls for lest he falls into the erroneous reasoning process of allowing the consequences of a mental disturbance or disorder to govern, or even intrude into, a finding of ‘impairment or loss of a body function’. If, for example, a person loses the use of his or her limbs as a consequence of injury to the spinal column and cord, that loss is a consequence of the long-term impairment of the function of the spinal process. If, on the other hand, a loss of use of the limbs occurs as an hysterical response to minor trauma, it is the ‘mental or ... behavioural disturbance or disorder’ which is producing the impairment of body function and it is, accordingly, the severity of the mental disorder itself which must fall to be considered under sub-paragraph (c). Between the two extremes to which I have referred will, no doubt, be a range of differing circumstances; but if the body of evidence before the judge demonstrates that the consequences of a mental disturbance or disorder are themselves producing the impairment of body function complained of, it would be, as Crockett and Southwell, JJ. pointed out, ‘anomalous’ to regard those consequences as falling to be considered under sub-paragraph (a) of the definition when clearly it is the severity of the disorder or disturbance itself which falls to be judged under sub-paragraph (c). Although the textual distinction between sub-paragraphs (a) and (c ) has been touched upon in other decisions since Humphries v. Poljak (see, for example, Turner v. Love and The Transport Accident Commission) their Honours' statement of principle remains as a seminal statement of principle governing the interpretation of the sub-section and ought, in my view, to be followed.” ((2000) 1 VR 79, 87 [16])
76Buchanan JA delivered a short concurring judgment. Chernov JA also concurred, observing inter alia:
“I also agree that, for the reasons given by the President, the appeal should be allowed.
The requirement formulated by Crockett and Southwell, JJ. in Humphries v. Poljak that, in the context of determining whether the injury sustained by the plaintiff as a result of the accident is a ‘serious injury’ a distinction must be maintained between the physical consequences of the injury and those which have resulted in mental or behavioural disturbances, is a reflection of the wording of s.93(17) of the Transport Accident Act 1986. Thus, so far as is relevant, the consequences of the injury are to be determined by reference to the definition of ‘serious injury’ in either para.(a) or (c). Although the textual distinction between those paragraphs may be simply stated, it will often be a difficult task for the trial judge to determine which of para.(a) or (c) applies for the purpose of establishing whether an injury and its manifestations amount to a ‘serious injury’.
It is likely that in many cases the injuries caused by a transport accident will have physical as well as mental consequences for the plaintiff, with the result that it may appear that either definition could be appropriately applied in determining whether the relevant injury is a ‘serious’ one. In such circumstances, which test is appropriate will fall to be determined by the consideration of what is the dominant cause of the plaintiff's condition. Is it predominantly the result of the physical injuries arising from the accident, or is the dominant cause of the condition the mental and psychological factors flowing from the accident? But whichever test is to be applied, in determining if its requirements have been satisfied, all the relevant consequences for the plaintiff arising from the accident are to be considered. Thus, if it is decided that, in a given case, the test in para.(a) is appropriate because the plaintiff's relevant condition has been brought about predominantly by the relevant physical injuries, in deciding whether the relevant impairment is serious and long term, regard is to be had not only to the physical cause of the impairment, but also to any mental or behavioural disturbances flowing from the physical injury, such as ‘functional overlay’ to which the President refers in his judgment. The same applies where the dominant cause of the plaintiff's condition consists of mental or psychological factors. In such a case, any accompanying physical incapacity may be taken into account in determining whether the plaintiff's mental or behavioural disabilities are serious and long term. But the first task is to decide whether the dominant cause of the plaintiff's condition falls to be determined by reference to the criteria in para.(a) or (c). Such an approach is likely to prevent the tail wagging the dog or creating the ‘anomaly’ to which their Honours referred in Humphries v. Poljak which might otherwise take place as it did in this case. The medical evidence summarised by the President seems to establish that, although the plaintiff suffered a soft tissue injury of the cervical spine, it was the operation of mental and psychological factors that were the dominant cause of his condition. In those circumstances, it was inappropriate to determine the relevant issue by applying the criteria in para.(a) of the definition section. As the President has pointed out, in the circumstances of this case, the question whether the plaintiff suffered a ‘serious injury’ fell to be determined by the provisions of para.(c) and not para.(a).” ((2000)1 VR 79, 90-21 [28])
77Where the injury in question operates as an aggravation of a pre-existing condition, that aggravation must in itself meet the criteria of being a serious injury. It is not sufficient that the aggravation, when aggregated with the pre-existing and underlying condition, constitutes a serious injury. Petkovski v Galletti [1994] 1 VR 436, 443.
78Where an injury or disability could arguably be the result of another accident or some cause other than the subject accident, it is necessary to consider, for the purposes of the application of the definition of serious injury, only that injury or that part of the injury which is caused by the subject accident. The issue of causation is a necessary part of the enquiry of the s93 stage. It is not something which should simply be deferred until the hearing of the damages action should leave be granted. De Agostino v Leatch & Anor [2011] VSCA 249 [59]-[61] per Tate JA.
Conclusions
79 The evidence does not disclose any very significant pathology at either the neck or low back level. There is no evidence at all of any pathology at the mid or thoracic level. At a medico-legal assessment by consultant psychiatrist, Dr Brendan Hayman, as recently as October this year, Ms Jovceva told him that three neurosurgeons thought she had a bone fracture in the cervical spine ― [66] above. (DCB 28) The x-rays and scans relied on by the plaintiff do not support this (PCB 91-92). Dr MacDonald, providing a report on behalf of the Alfred Hospital, stated that no abnormality had been found in the neck and the Aspen collar was provided only for comfort ― [22]-[23] above. (PCB 30) Mr McGarvie, on behalf of the plaintiff, drew attention to the fact that, according to his report, Dr MacDonald had had no personal involvement with the patient’s management and was reporting based only upon a perusal of the hospital’s clinical records ― [24] above. He said that reference to the hospital’s clinical notes, which he added to the Plaintiff’s Court Book (PCB 124-25), was supportive of a finding that there had, in fact, been a hairline fracture. Nevertheless, Dr Moore, a registrar of the Department of Neurosurgery in the hospital, providing a report to a general practitioner, emphasised that the hospital’s imaging disclosed no abnormality in the neck and no instability ― [64]-[65] above. (DCB 13) I draw the inference that Dr Moore was involved with the treatment of Ms Jovceva, unlike Dr MacDonald. There is the further consideration that, upon referral by Dr Lisner before her admission to the Alfred, Ms Jovceva undertook osteopathic treatment. There was no indication as to precisely what manipulation of the neck was entailed in this treatment, but osteopathy has a reputation for the vigorous application of force. It was presumably for this reason that the osteopath took a plain x-ray before commencing therapy. Had there been even a hairline fracture, the consequences could have been catastrophic.
80 Mr McGarvie made his points as to the standing of Dr MacDonald under cover of the general observation that it was no part of the plaintiff’s case to assert that there was a persisting fracture at the C7 level, though this was one of the injuries specifically referred to in the plaintiff’s particulars of injury. Ultimately, therefore, it would seem not to be of great significance whether the fracture in fact occurred or not; however, the matters to which I have referred lead me to the conclusion that there was no fracture at the C7 level.
81 As to the low back, the scans and imaging disclose two disc bulges in the low back. (PCB 95-96) Mr Moran alone reports this as including a left-sided disc prolapse of moderate severity at the L5/S1 level ― [58] above. (PCB 84) I put Mr Moran’s opinion on this point to one side as an “outlier”. His finding of a disc prolapse is at odds with the findings of other treaters and medico-legal experts, and the radiological report. It may be thought less than plausible that a low back injury would be sustained in circumstances where a driver is secured in his or her seat by a seatbelt. The neck unrestrained is exposed to classic whiplash injury, but it is not obvious why or how a low back injury would be sustained whilst the seat and the belt system remained intact. As Mr McGarvie observed, however, in the history which Ms Jovceva gave to Dr Clayton Thomas, she described being jerked forward and to the left, which may account for a low back injury’s being sustained ― [46] above. (PCB 55) I proceed upon the basis that the pathology in the low back is accident related.
82 The various clinical examinations which have been undertaken demonstrate very little loss of range of movement. Mr Michael Fogarty found virtually no restrictions in range of motion ― [65] above. (DCB 19) Similarly, Mr Stephen Doig found relatively minor restriction of movement in the cervical spine and zero restriction in the lumbar spine ― [56]-[57] above. (PCB 80-81) As at August 2015, he found a reasonably good prognosis. Dr Owen found a good range of movement in the neck, with only slight restriction on lateral flexion, and a good range of motion in the lumbar spine with some limit in rotation. Dr Owen found only “grumbling symptoms” ― [59] above. (PCB 105) Mr Moran made no findings of restriction of movement for the lumbar spine.
83 What, then, accounts for the extensive spinal symptoms complained of by Ms Jovceva? Dr Clayton Thomas made a diagnosis of “fibromyalgia”. As far as I know, fibromyalgia is not an orthodox medical diagnosis ― [47]-[52] above. (PCB 56) He referred to “a widespread pain syndrome” and Ms Jovceva’s meeting the criteria for fibromyalgia ― [50] above. The doctor clearly treats the disorder “fibromyalgia” as being synonymous with “a widespread pain syndrome”. In Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46, Maxwell P, giving the leading judgment in a court consisting of himself, Neave JA and Kellam AJA, said:
“5.The term ‘chronic pain syndrome’ (or ‘chronic pain disorder’) is frequently used. The only authoritative definition of this term available to the Court is that contained in the fourth edition of the work best known by its abbreviation ‘DSM’, more accurately the ‘Diagnostic and Statistical Manual of Mental Disorders (Text Revision)’, published by the American Psychiatric Association. In DSM, pain disorders are described as a type of ‘somatoform disorder’. The common feature of somatoform disorders is –
‘the presence of physical symptoms that suggest a general medical condition (hence, the term somatoform) and are not fully explained by a general medical condition … or by another mental disorder (eg, Panic Disorder). The symptoms must cause clinically significant distress or impairment in social, occupational or other areas of functioning. … [T]he physical symptoms are not intentional (ie, under voluntary control).’
6.DSM defines a pain disorder as follows:
‘The essential feature of Pain Disorder is pain that is the predominant focus of the clinical presentation and is of sufficient severity to warrant clinical attention. … The pain causes significant distress or impairment in social, occupational, or other important areas of functioning. … Psychological factors are judged to play a significant role in the onset, severity, exacerbation, or maintenance of the pain. The pain is not intentionally produced or feigned … Pain Disorder is not diagnosed if the pain is better accounted for by a Mood, Anxiety or Psychotic Disorder … .’
7.Functional overlay is a somatoform disorder. Physical symptoms are present but they are not explained by any organic condition. In TAC v Lincoln, for example, the injured person had very substantial restriction of her left arm and shoulder movement, but this could not be explained by any ongoing physical effect of the relevant motor vehicle accident. Underlining the interchangeability of terms, the opinion of the rheumatologist was that the claimant had a ‘chronic pain syndrome’.
8.Because of s 134AB(38)(h), the Court must endeavour to separate the physical from the psychological causes of pain and suffering notwithstanding these difficulties. Of course, it may be that the clinical assessments in a particular case simply do not permit a sufficient ‘stripping out’ of the psychological causes of pain to enable the Court to be satisfied, on the balance of probabilities, that the physically- based pain and suffering consequences satisfy the ‘serious injury’ test. Where pain is referable to both physical and psychological causes, it will obviously assist the court if medical experts on both sides are asked to quantify, so far as possible, the respective contributions of the physical and the psychological to the pain and suffering being experienced by the injured person.”
The Court was there concerned with a process of “disentangling” required by the legislation governing workplace injuries – then the Accident Compensation Act 1985, now the Workplace Injury Rehabilitation and Compensation Act 2013. These matters are dealt with differently under the Transport Accident Act in accordance with the principles from the Court of Appeal’s decision in Richards v Wylie referred to above. However, in my view, his Honour’s general comments on the nature of pain syndromes are applicable here. It will be recalled that Dr Nathan Serry, apart from diagnosing a chronic adjustment disorder, also diagnosed Ms Jovceva as suffering “somatic symptom disorder with predominant pain” ― [53], [54] above. (PCB 54, 73) According to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), paragraph 300.82, the criteria for this diagnosis are as follows:
“A.One or more somatic symptoms that are distressing or result in significant disruption of daily life.
B.Excessive thoughts, feelings, or behaviours related to the somatic symptoms or associated health concerns as manifested by at least one of the following:
(1) Disproportionate and persistent thoughts about the seriousness of one’s symptoms.
(2) Persistently high level of anxiety about health or symptoms.
(3) Excessive time and energy devoted to these symptoms or health concerns.
C.Although any one somatic symptom may not be continuously present, the state of being symptomatic is persistent (typically more than 6 months).
D.Specify if:
With predominant pain (previously pain disorder): This specifier is for individuals whose somatic symptoms predominantly involve pain.”
84 The functional, as distinct from organically driven nature of Ms Jovceva’s impairments is demonstrated first by the diffuse nature of her symptoms. Mr McGarvie was at pains to note that early complaints of “frozen jaw” soon fell away, presumably as the overall soreness which the traumatic rear-end collision necessarily inflicted on Ms Jovceva eased with the passage of time. So much may be accepted. However, as recently as 19 September 2018, her second affidavit reports “constant debilitating pain in [her] back which radiates into [her] back and both shoulders, and into [her] mid spine”, (PCB 20) together with constant pain in her right hip ― [12] above. (PCB 20) She also complained of repeated and frequent back spasms on a daily basis ― [16] above (PCB 23) ― and a constant burning pain in her neck. Almost 2 years after the accident (30 April 2015) Dr Clayton Thomas described Ms Jovceva’s symptoms as “fairly diffuse”. (PCB 56) Mr McGarvie in his closing address asserted that there was objective evidence of Ms Jovceva’s reported back spasms. Ultimately, however, he referred to nothing beyond her own evidence and complaints to examiners. (T182, LL20-2; T187, L5)
85 The functional nature of the injury is also consistent with the striking contrast between, on the one hand, the extreme complaints of pain and restrictions referred to on the one hand and, on the other hand, the minimal findings on formal clinical examination and the apparent unrestricted range of spinal motion displayed informally on surveillance video taken on a number of occasions in the months immediately leading up to this hearing. In accordance with the principles in Richards v Wylie, the predominant cause of Ms Jovceva’s symptoms is psychological. Hence, a finding of serious injury based upon her reported pain and restriction cannot be made pursuant to paragraph (a) of the definition of serious injury. It can be made, if at all, only under paragraph (c), which has not been relied upon in this case.
86 I should say, for the sake of completeness, that, despite Ms Jovceva’s assertions to the contrary and the opinions of some examiners, including Ms Young, her symptoms of depressive illness cannot be regarded as having begun only following the transport accident. The contemporary material points away from the transport accident having marked the commencement of her depressive disorder. So, for instance, in her submission to the Infringements Registrar of the Melbourne Magistrates’ Court, Ms Young referred to a history of anxiety and stress dating back to Ms Jovceva’s early teenage years and her meeting the diagnostic criteria for generalised anxiety disorder and major depressive disorder ― [67] above. (DCB 56) In a report to Dr Josefsberg dated 1 August 2012 ― viz, before the accident ― Ms Young reported that Ms Jovceva had responded well to treatment for anxiety and depression ― Ibid (DCB 53) ― and she reported 11 months before the accident that Ms Jovceva had deep-seated depression as well as anxiety ― Ibid (DCB 52) There is also the fact that, prior to the accident, Dr Josefsberg certified Ms Jovceva as being unfit for work or study on account of anxiety and depression. (DCB 58-61) Nor can Ms Jovceva’s evidence in her affidavit that she “spiralled into a pit of depression and avoided socialising and leaving home” ― [10] above (PCB 18) ― be accepted. Mr Lewis undertook a lengthy cross-examination of the plaintiff by reference to her social media postings and other material demonstrating extensive socialising, work commitments and travel since the accident. (T72-T89) Again, the thought that the sequelae of this transport accident have embittered Ms Jovceva’s relationship with her parents, including her now deceased father, cannot easily be reconciled with the history of familial conflict in Ms Jovceva’s family as she grew up taken by psychologist, Ms Young. (DCB 53, 55) Since the accident Ms Jovceva has brought her business enterprise to a level of success it had not enjoyed before the accident. (T70, LL8-13; T68, LL25-30)
87 In addition to the clinical material, Ms Jovceva’s counsel relied on affidavits from lay witnesses who are friends of hers. For instance, in her affidavit sworn 14 February 2018, Tanja Karavesov (PCB 26-27) drew a contrast between Ms Jovceva before and after the transport accident, describing her as “very social and adventurous” and, after the accident, where she had changed “both physically and emotionally”, and describing her activities as restricted by neck and other pain. Mr Drossos (PCB 28-29) swore an affidavit on 5 November 2018 stating that, before the accident, Ms Jovceva was “a fun, strong, independent and incredibly spontaneous, social person”, in stark comparison to her condition after the accident where “she is visibly in pain and limited with her back … tense and cranky”, apologising and explaining “it is because she is in pain”. Mr Drossos said that Ms Jovceva “is a fraction of the person she was before the accident …”. (PCB 29) A number of these assertions seem difficult to reconcile with what emerged in cross-examination based on social media sites and the surveillance videos. Nevertheless, accepting them to the hilt, the finding that Ms Jovceva’s pain and restrictions are functionally driven, for the reasons explained, means that these affidavits cannot avail her on her present application.
88 Once one strips away the pain and limitation caused by functional injury, it cannot be said that, based purely upon this plaintiff’s organic injuries, that the consequences of these purely physical matters could lead her spinal injury to “be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.” (Humphries v Poljak [1992] 2 VR 129, 140)
89 This application must be dismissed.
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