Justice v Transport Accident Commission
[2019] VCC 835
•14 June 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-01841
| LISA ADELE JUSTICE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 April 2019 | |
DATE OF JUDGMENT: | 14 June 2019 | |
CASE MAY BE CITED AS: | Justice v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 835 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Pain and suffering damages – serious long-term impairment to the spine – disentangling – aggravation injury
Legislation Cited: Transport Accident Act 1986
Cases Cited:Richards & Anor v Wylie (2000) 1 VR 79; Dwyer v Calco Timbers Pty Ltd (No. 2) [2008] VSCA 260; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Petkovski v Galletti [1994] 1 VR 436; De Agostino v Leatch & Transport Accident Commission [2011] VSCA 249; Bezzina v Phi [2012] VSCA 161; Peak Engineering & Anor v McKenzie [2014] VSCA 67.
Judgment: Leave granted to bring a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Pierorazio | LN Christie & Co. |
| For the Defendant | Mr P Jens QC with Ms A Wood | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1 The plaintiff was born in Surrey in the United Kingdom.[1] She came to Australia at the age of seven. She commenced riding horses at age seven. She completed her secondary education. Over the course of many years she became both a trainer and a driver of harness racing. She and her former husband owned a business involved in harness racing. She is the mother to a daughter. She lives now with her partner in New South Wales. She is gainfully employed with Ranvet Pty Ltd (“Ravnet”), a company involved in the racing industry, and has been since 2010.
[1]The plaintiff’s evidence in chief comprised two affidavits sworn on 15 July 2015 and 18 February 2019
2 The plaintiff was involved in a serious motor vehicle accident on 24 January 2013 (“the 2013 transport accident”). Her claim for the grant of a serious injury certificate is for pain and suffering damages occasioned by a serious long-term impairment to her spine (back and neck) and/or the right shoulder although the neck was the area of principal focus and attention. The claim by way of Originating Motion also alleged a permanent severe mental disturbance, but that ground was not pursued at the final hearing, other than to the extent that the Court is permitted to take heed of by way of a mental response to a physical injury when assessing seriousness in accordance with Richards & Anor v Wylie.[2]
[2]Richards & Anor v Wylie (2000) 1 VR 79
3 In determining if a plaintiff has suffered a serious injury for the purposes of the Transport Accident Act 1986 (the “Act”), the consequences experienced by the plaintiff relating to both pecuniary disadvantage and or pain and suffering are considered as one, and not separately. In short, the question for me is whether the plaintiff’s injury, in comparison with other cases, is capable of being fairly described as “very considerable” and certainly more than “significant” or “marked”.
4 The plaintiff’s love of horses and her involvement professionally, recreationally and socially in the harness racing industry across its many sectors was evident and not doubted; however, it is the extent to which injuries suffered by the plaintiff as a result of the January 2013 transport accident took from her, in a manner that is more than significant or marked, those aspects of her life she once enjoyed, that lies at the heart of the plaintiff’s application for the grant of a serious injury certificate.
5 The defendant did not contest that the plaintiff had been involved in a serious motor vehicle accident, or that she did not suffer injuries as a result of it, but instead it contended that the accident has not had greater than a marked or significant effect on her by bringing with it pain and suffering consequences that are very considerable. The defendant argued that the consequences relied on by the plaintiff in support of her serious injury application had already been wrought by a series of non-compensable injuries she suffered before the 2013 transport accident, and moreover, the plaintiff has retained a capacity to undertake a great deal in her life.[3] The defendant developed its submissions by contending that the other injuries the plaintiff has suffered account for her relinquishing her involvement in the harness industry well prior to the January 2013 transport accident. Naturally enough, the plaintiff’s injury must occur as a result of a transport accident and the plaintiff may only be compensated for the consequences resulting from her transport accident. Therefore, the defendant said, the plaintiff has failed to discharge her obligation in law to disentangle her other injuries. Furthermore, the defendant argued that to the extent the 2013 transport accident aggravated the plaintiff’s pre-existing degenerative spine, the aggravation did not itself constitute a serious injury.
[3]See: Dwyer v Calco Timbers Pty Ltd (No. 2) [2008] VSCA 260
6 The plaintiff agreed that over the years she has suffered numerous injuries including a broken nose, injuries to her collarbones and to her ribs. No evidence was led or introduced about them.
7 In 2010, the plaintiff suffered a right knee injury playing netball whilst a member of the Army Reserves. She underwent reconstruction surgery. In late August 2011, she suffered a left hamstring injury that required surgery.[4] She also has had two operations[5] on her right thumb, the first of which was performed in 2012, and the second, in 2016. The injuries from 2010 significantly reduced the plaintiff’s capacity and involvement in harness racing and training. This was acknowledged in the course of the opening of the plaintiff’s case, by her counsel, Mr Pierorazio, who said that:
“… towards the latter part of, say, the last year before the motor vehicle accident the subject of this application she had tapered off in terms of training horses and driving horses. There’s no doubt. That was because of the various other injuries which she had but the plaintiff’s case today is, in terms of her involvement in horses after this motor vehicle accident on 24 January 2013, and she has in fact had a go on a few occasions at driving horses, the plaintiff will say that it is her neck that now restricts her and she is effectively – she is not involved in horses to the extent that she was, and that is a significant impact in terms of quite a considerable consequence to this lady.”[6]
[4]Defendant’s Court Book (“DCB”) 24, Transcript (“T”) 15
[5]T12-13
[6]T3-4
The 24 January 2013 transport accident
8 The circumstances of the 2013 transport accident are set out in the plaintiff’s first affidavit. She described the accident as follows:
“I was travelling north along Coburns Road in Melton West in my car, an Astra convertible, when I indicated to turn right into 743 Coburns Road. I had completed about three-quarters of the turn when a car travelling behind me T-boned me, sending my car into a spin with my car eventually ending up in a ditch. I was lucky there was a ditch otherwise my car would have careered into large trees. I was struck violently in the head against the 8 pillar of the car. I can still remember the smell of the airbags going off and the thought of my car potentially blowing up. Somehow I managed to extricate myself from the car.”[7]
[7]Affidavit of the plaintiff sworn 15 July 2015, Plaintiff’s Court Book (“PCB”) 6-7
9 The plaintiff was taken to the Western General Hospital by ambulance. She was transferred to the Royal Melbourne Hospital. She remained under observation for two days.
The medicine
10 On 30 January 2013 the plaintiff came under the care of her general treating practitioner, Dr Best, who has produced a number of reports.[8] Dr Best was instrumental in arranging a good deal of the investigations the plaintiff has undergone including an ultrasound of her right shoulder that revealed a tear of the supraspinatus tendon, together with subluxation of the long head of biceps and bursal thickening.[9]
[8]Dr Best’s reports prepared for the plaintiff in the management of a workcover claim and her current TAC claim covered the period of time from February 2013 until November 2017 when he was in practice at the Caroline Springs Superclinic and the Cairnlea Superclinic
[9]PCB 126
11 The plaintiff has undergone further investigations and treatments. In December 2013 she commenced myotherapy. On 11 February 2014, she underwent a MRI scan of the neck, that revealed a bulge of the C3/4 affecting her left C4 nerve root.[10] On 20 February 2014, she was referred to Associate Professor David Connell, the musculoskeletal radiologist, who organised CT-guided facet joint injections at C/3, C3/4 and C4/5 levels. The plaintiff said this afforded her only short-term relief and her pain returned. She underwent a further ultrasound of the right shoulder on 3 June 2014, that confirmed the tear of the supraspinatus tendon.
[10]PCB 125
12 In the course of 2012, the plaintiff was referred by Dr Best to Dr Datta, a psychiatrist for opinion and management for a mood disorder and for a trial of anti-depressants as she had already tried desvenlafaxine and mirtazapine without much success and was feeling anxious. Dr Datta said that prior to attending on him, the plaintiff had undergone three surgeries in relation to her legs, with numerous riding accidents, and she slipped into a depressive syndrome and she was subsequently started on escitalopram and then agomelatine in October 2012. The plaintiff said in her evidence that she thought she saw Dr Datta on about ten occasions. She said she continues to suffer flashbacks and to ruminate about the 2013 transport accident.
13 The plaintiff said that by early 2015 she was struggling with pain, and in particular, pain in her neck, together with restriction of movement and pain from headaches, and therefore, Dr Best referred her to Mr Peter Wilde, the orthopaedic surgeon. Mr Wilde who examined the plaintiff on 12 February 2015[11] thought that surgery was not likely to help the plaintiff and instead he recommended that she persevere with conservative treatment by way of physiotherapy and massage. He opined that an MRI from February 2014 showed mild to moderate changes of cervical spondylosis but no focal or severe nerve root compression and there were no identified disc prolapses. He believed the plaintiff “has aggravated pre-existing lumbar spondylosis but I do not think she demonstrates current features of radiculopathy”.
[11]PCB 88
14 Conservative and non-invasive treatment has very largely been the course the plaintiff has adopted to date.
15 In her second affidavit, the plaintiff deposed that her condition since the 2013 transport accident has not improved. She referred to further imaging that she has undergone, including on 22 March 2017, an x-ray of the neck that revealed C3/4 mild anterolisthesis and degenerative facet joint changes in the upper and lower cervical spine associated with degenerative endplate lipping, particularly in the mid-cervical spine at C5/6 and mild at C3/4.[12] The radiologist noted flattening of cervical lordosis, possibly due to muscular spasm associated with tilting of the upper cervical spine towards the right due to cervicothoracic left-sided scoliosis.
[12]PCB 11
16 An MRI scan of the plaintiff’s neck on 27 March 2017 showed prominent facet arthritis in the left-sided C3/4, and seen to contribute to severe narrowing of the left neural foramen with likely impingement of the left exiting C4 nerve root. The plaintiff’s second affidavit also referred to a further x-ray on 30 March 2017 with functional views revealing a 1 to 2 millimetre forward slip of C3 on C4 in the neutral position. There was also a one-millimetre forward slip of C5 on C4 occurring reflection. The C4/5, C5/6 and C6/7 disc spaces were narrow. Facet joint degenerative changes were present throughout the cervical spine, most marked on the left at C3/4.[13]
[13]PCB 12
17 On 23 March 2017, the plaintiff was referred to Ms Caroline Tan, neurosurgeon, who organised a CT-guided cervical facet joint injection and trial of bilateral C3/4 facet joint blocks, which was performed on 3 April 2017. Ms Tan organised a bone scan on 12 April 2017 that revealed advanced left C3/4 facet joint arthritis, and disc vertebral endplate degenerative change was shown at C6/7.[14]
[14]PCB 119
18 On 1 November 2017, Ms Tan organised a CT-guided repeat bilateral C3/4 facet joint blocks. The CT scan performed on the same day revealed C3/4 left severe neural exit foraminal stenosis due to hypertrophic degenerative facet joint, together with fusion of right C2/3 facet joint and partial fusion of the left C2/3 facet joint. Ms Tan recommended a C3/4 fusion and C4/5 disc arthroplasty.[15]
[15]PCB 12
The plaintiff as a witness
19 The plaintiff adopted her two affidavits made in support of her serious injury application as true and correct, subject to one correction she made to the first affidavit in which she had deposed that she had tried to get back to driving horses on “one” occasion. She said that this was a mistake, and in fact, she had endeavoured to get back on perhaps “six occasions”,[16] but every attempt proved unsuccessful because of the extent of the pain in her neck.
[16]T12-13
20 I assessed the plaintiff as presenting as an articulate, intelligent and forthright person; however, in some instances, her demeanour in response to questions put to her in cross-examination by counsel for the defendant, Mr Jens QC, was not in her best interests, as she too often endeavoured to engage in argument with cross-examining counsel. Her rancour with cross-examining counsel was evident at times in the manner of her answering questions. However, her attitude did not diminish my overall favourable impression I formed of the plaintiff as a witness of truth.
21 The plaintiff relied on an impairment to her cervical spine as a result of the 2013 transport accident, with particular emphasis placed on injury to her neck as well as the 2013 transport accident giving rise to a not insignificant right shoulder injury which has been investigated and revealed a tear in the tendons.[17] No point was taken by the defendant about the extent or nature of the impairment and the related impact on the plaintiff’s body function and I was not addressed on any issue as regards it.
[17]T4, DCB 12
The nature of the plaintiff’s injury
22 In opening the plaintiff’s case Mr Pierorazio of counsel referred to the opinion of Mr Etherington, orthopaedic surgeon, dated 10 October 2017 whose report was obtained at the request of the defendant’s WorkCover insurer. Mr Pierorazio referred to that part of it in which Mr Etherington having been asked the “cause of Lisa’s symptoms” wrote by way of response that:
“Lisa’s symptoms are consistent with the degenerative changes seen in her cervical spine imaging so far. As mentioned above, I think C3/4 is a significant contributor but it is not the only source of her pain.
Given the report of the MRI taken in 2010 it would seem that she had pre-existing degenerative changes, which were aggravated by the car accident. Certainly from her point of view, she said that prior to the car accident her neck was fairly good. Obviously, I do not have any direct evidence of this one way or the other.”[18]
[18]PCB 137
Aggravation of pre-existing injury
23 Although Mr Etherington said that he had no direct evidence about the state of the plaintiff’s neck prior to the 2013 transport accident, the plaintiff had indeed suffered from neck pain before the 2013 transport accident, and that seems to have been attributable to an earlier car accident she was involved in on 9 March 2007 (“the 2007 transport accident”). The plaintiff suffered consequences from the injuries sustained in that accident. The 2007 transport accident was also the subject of a Transport Accident Commission claim, with her Claim Form including complaints of “neck injury” and “headaches”. Indeed, even prior to the 2007 transport accident, the plaintiff had identified a history of experiencing chronic headaches for an indefinite period of time, as well as migraines.
24 Accounts of the plaintiff’s previous history of neck pain and headaches can also be found in clinical notes made following an MRI scan the plaintiff had on 29 November 2010. These notes included the following reference:
“ History of reversal of lordosis. Difficulty turning to left. Headaches. Neck pain worse on left…Impression: Mild multilevel degenerative disc disease”[19]. Furthermore, and in January 2013, and only a matter of days before the subject car accident, clinical notes from the plaintiff’s General Practitioner Dr Best, recorded the plaintiff as suffering “headaches for last couple of days not kicking them.”[20]
[19]PCB 129
[20]DCB 110
25 Mr Pierorazio accepted that by the time of the January 2013 transport accident the plaintiff presented with pre-existing changes to her spine. This acknowledgement was appropriate, based on the medical evidence.
26 Because I am satisfied by the evidence that the plaintiff suffered from a pre-existing spinal condition, then in order for the plaintiff to succeed in the grant of a serious injury certificate, I must be satisfied by the plaintiff’s evidence, that the nature and extent of any aggravation caused to her spine by the 2013 transport accident is a serious injury: Petkovski v Galletti[21] and De Agostino v Leatch & Transport Accident Commission.[22]
[21][1994] 1 VR 436 at 444
[22][2011] VSCA 249 at paragraph [60]
27 The defendant did not contest the characterisation of the plaintiff’s injury as an aggravation to her pre-existing spinal condition. Certainly Dr Etherington’s description provides an evidentiary basis for this as the appropriate characterisation.
28 In a case alleging an aggravation injury the Court of Appeal in cases such as Bezzina v Phi & Anor,[23] identified that a trial judge will look at how the consequences of the claimed serious injury affect the applicant as she or he was and would likely have been absent the injuries sustained from the compensable injury and that this will include looking at and considering the effect, and the likely effect in the future, of an applicant’s pre-existing injuries.
[23][2012] VSCA 161
29 When comparing the plaintiff’s condition before the 2013 transport accident her headaches or occasions of neck pain or indeed the effects on her from her pre-existing degenerative spine had not impeded her in the pursuit of her employment as a horse trainer and driver of harnesses. They had not disturbed her sleep. While the plaintiff’s spine and neck were not entirely asymptomatic before the 2013 transport accident, they did not have serious consequences for her. I am satisfied that at the date of the 2013 transport accident the plaintiff had suffered a non-serious pre-accident condition of the spine that had produced neck pain and that the plaintiff had as well experienced occasions of headaches and migraines. The evidence did not identify that the progress of any degeneration that existed prior to the 2013 transport accident would have brought the plaintiff to the state she has encountered without the intervention of that accident.
Loss of enjoyment of life
30 The loss of enjoyment of life consequences relied on by the plaintiff as caused by the 2013 transport accident concentrated very substantially, although not exclusively, on the interference to her pursuit of harness driving and training as it had existed before the 2013 transport accident. However, at the time of the 2013 transport accident, the plaintiff’s career was not in the harness racing industry, either as a driver or as a trainer. The evidence revealed, that this aspect of her life had very substantially been given away much earlier because of the impact on her of other injuries she suffered.
31 Mr Pierorazio, in opening the plaintiff’s case said that, whereas the plaintiff had derived income whilst training and driving horses, “we don’t rely on that per se. What we rely on is the huge consequence in terms of the loss of being able to do that now.”[24]
[24]T8
The picture of the plaintiff
32 The plaintiff was described by Mr Pierorazio as having been “quite a sporty person”[25] over and above her endeavours and activities with horses. For example, the plaintiff said in her affidavit evidence that she had been required to abandon activities which she had enjoyed prior to the 2013 transport accident, including working out at the gym, riding a bike, but most particularly, training and driving horses, which also provided her with additional income.[26] She said she has recently had to sell a horse which she was attempting to train because she was not up to it despite most of the training work having been performed by a friend.
[25]T7
[26]PCB 9
The evidence of previous non-harness racing/training activities
33 The evidence about the plaintiff’s bike riding was problematic. In cross-examination by Mr Jens, the plaintiff said that she has “actually ridden my push bike far more than I have had an attempt at getting back in the sulky”.[27] When asked about the statement made in her affidavit that she no longer rides a bike, she answered: “No, I do occasionally now.”[28] She said: “It’s not always easy but I do ride a bike occasionally” and “Every now and then I ride my push bike”. She said she did not ride it on the road in New South Wales where the plaintiff has now moved, because, “It’s kind of country roads. It’s a bit dangerous.”[29] As to her recent past of riding a bike in Victoria, the plaintiff said that as far as riding on the road was concerned, she thought it was a couple of years ago, and she said: “Yes. I recall going for an occasional bike ride maybe twice a year, from recollection at the moment. I remember riding around Caroline Springs at one point.”[30]
[27]T70
[28]T69
[29] T71
[30]T71
34 I am not satisfied by the plaintiff’s evidence that she was a keen bike rider before the 2013 transport accident or that a reduction in her bike riding has been a matter of significance for her but instead I am satisfied that the probable reason for the reduction in bike riding has less to do with injury from the 2013 transport accident than the topography of her domicile.
35 As to the plaintiff’s gym work, there was no evidence about the frequency of her attendances at gyms before or since the 2013 transport accident. The plaintiff led no evidence, for example, explaining exercises she had once performed which she can no longer perform, but in any event, I note the plaintiff deposed that she has weights at home that she uses to keep fit. Overall, I am not satisfied the loss of attendance at a gym is a matter that resonates as a loss of enjoyment of life caused by an aggravation of her spine resulting from the 2013 transport accident.
36 The plaintiff said that her day-to-day activities have been curtailed as a result of the 2013 transport accident.[31] She identified having experienced difficulties with performing domestic activities and certain household chores and these included mopping, changing the bed linen and scrubbing the shower. She recounted difficulty mowing lawns and that the use of a “Whipper Snipper” was painful because it caused vibrations. She said that although she continues to perform these activities out of necessity, whenever she does so, she experiences increased pain and she is required to take her time with them. In her second affidavit, the plaintiff deposed that her condition has not improved.[32] There is contradictory evidence about the plaintiff’s abilities in regard to the activities of daily living. In a report of September 2015,[33] Dr Boys recorded that the plaintiff was able to perform “normal household activities without specific restriction. She is able to do domestic cleaning and other tasks. This lady can work in her yard and mow her small rear garden.” I think the explanation for that account is readily accountable by the plaintiff’s evidence that her occasions in performing such activities has been achieved not because of a lack of pain but on occasions from necessity. On balance, I am satisfied that the plaintiff has established that the aggravation to her spine as a result of an aggravation from the 2013 transport accident is manifested by significant consequences in performing her everyday domestic household activities.
[31]Affidavit 15 July 2015, paragraph 55 – PCB 10
[32]Affidavit 18 February 2019, paragraph 2 – PCB 11
[33]DCB 9
37 The plaintiff also relied on consequences she has suffered as a result of the 2013 transport accident in how she is required to conduct her employment duties with Ranvet and that she also suffers from disruptions to her sleep. As to her sleep, the plaintiff said that she takes half a sleeping tablet as required, and she said that she needs to do this “most nights”.[34] She also continues to take over the counter painkillers two to three times a week. She said she stopped taking Lyrica because it made her feel “spaced out”.[35]
[34]T13
[35]PCB15
38 The consequences of an injury to a person including disrupted sleep and the need to take both pain relief and sleeping tablets on a regular and long term basis may well amount to a serious consequence.[36] In regard to her sleep the plaintiff told Associate Professor Doherty, consultant psychiatrist, that “falling to sleep is still hard and it depends on the day and what she has been doing and depends on the level of tiredness”. She said she did not “easily fall to sleep” and attributed this to her pain and discomfort more than any emotional turmoil. She said the quality of her sleep varies, depending upon her level of pain.[37] I accept her evidence on that she has disrupted sleep due to the experience of pain.
[36]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
[37]DCB 36
The plaintiff’s employment
39 The plaintiff commenced work with Ranvet Pty Ltd in April 2010 as a Technical Support Officer working in Equine Nutrition. She remains employed with Ranvet and by all accounts has proved herself a valued employee. She described her duties as including the provision of advice about horse diets and posture analysis, providing details of products to horse trainers, providing schedules for drugs and generally trouble shooting problems with horses. She said that a lot of driving is involved in the job, as well as frequent bending and lifting. She said that when delivering bags/drums of supplements, they can weigh up to 20 kilograms.
40 The plaintiff’s earnings with Ranvet have progressed over the years to be greater than her taxable income derived in years past from harness racing; however, the plaintiff said that when she was running a business under a company called “Chevelle Park” with her former husband, in the years 1986 to 1996, and prior to her divorce, “we would have earned well and truly above that”,[38] meaning the amount of $104,260 earned by the plaintiff with Ranvet in the 2018 tax year earned. Whatever the turnover of the businesses operated by the plaintiff and the income stream derived from them in past years, the evidence satisfies me that the plaintiff has a capacity to earn at least over $100,000 gross per annum from her current employment.
[38]T36
The work limitations
41 Throughout most of the episodes of injuries the plaintiff has sustained, including the 2013 transport accident, she has continued to work with Ranvet and she has been able to remain in her employment. Neither her previous injuries or the 2013 transport accident has altered that. The plaintiff has acquitted herself well in her job in the years since the 2013 transport accident. The fact that the plaintiff was able to return to work relatively soon after the 2013 transport accident and has remained in her employment since, whilst not a factor determinative against the 2013 transport injury occasioning an aggravation that itself is a serious injury, is a factor that I have considered in my overall assessment of the evidence.
42 The plaintiff testified that on her return to work with Ranvet in March 2013, and because of her neck pain, and the restrictions imposed by Dr Best, she was prohibited from any lifting and was required to maintain her head in a neutral position as much of the time as possible.[39]
[39]See report of Dr Best at PCB 31
43 The plaintiff said there remain aspects of her work duties that need to be carried out differently than had been the case before the 2013 transport accident. The plaintiff said that these restrictions continue to exist[40] and that she requires physical or mechanical assistance to carry heavy bags or containers of product, and that driving long distances increases pain in her neck and, therefore, she needs to take frequent breaks. Surveillance footage of the plaintiff carrying shopping bags tends to support the ongoing limitations imposed to the function of her shoulder by the injury.
[40]PCB 6
44 The plaintiff said that although her duties with Ranvet have remained the same since the 2013 transport accident, that is, advising on balanced diets, interpreting blood, participating in seminars and trade shows and visiting shops and vets, that she has been doing less work with shop visits and to vets and she estimated that nowadays she spends about 80 per cent of her time seeing trainers. Despite the restrictions imposed on the plaintiff by Dr Best limiting her from undertaking periods of lengthy driving, she said that her work still takes her by car through New South Wales, in addition to Victoria, Tasmania, South Australia and Queensland. Her work as well has taken her to New Zealand and Japan.
Tracking the extent of the plaintiff’s involvement in harness racing
45 The defendant argued that the plaintiff’s involvement in the harness racing industry had ceased before the 2013 transport accident, not as a result of injury to her neck resulting from the 2013 transport accident, but due to her other injuries. Furthermore, the defendant submitted that plaintiff had not been able to point to clinical evidence to support a finding that any aggravation to her spine caused by the 2013 transport accident has impeded her more than she was impeded before the accident.
46 The plaintiff argued that by the time of the 2013 transport accident, her other injuries, which she agreed had limited her ability to participate in harness riding as a driver and as a trainer, had resolved, and, therefore, that which remained as the operative cause of her ongoing inability to return to her much loved pursuit was, and continues to be, the effects of the 2013 transport accident. In short, the plaintiff argued, she had disentangled the effects on her from her other injuries. The competing arguments occupied much of the hearing and of the addresses by counsel. In order to fully appreciate them, it is appropriate to have particular regard to the following evidence.
47 An area of examination of the plaintiff by Mr Jens was the extent of her involvement in the harness industry just prior to her commencement of employment with Ranvet in April 2010. When asked about this, the plaintiff said:
“ Okay. I had wound right down. I had injured my knee by the time I started working for them. I had already injured my knee and I had reconstructive surgery to my knee whilst in their employ so in terms of at the time I had to do something. I couldn’t continue to train the horses at that time because I couldn’t walk properly so I had to do something else. I had a young daughter and I have to support her.”[41]
[41]T31
48 The plaintiff could not remember if she had allowed the business registration of an entity called “Lisa Justice Harness Racing” to lapse in 2010 when she was asked about it by Mr Jens. Counsel put to the plaintiff that she had, and this was a further indication that she had given up harness racing when she took up her employment with Ranvet, and was not merely a temporary winding down of her involvement in it. No evidence disclosing the registration status of the business entity “Lisa Harness Racing” was tendered by the defendant. The plaintiff said she could not remember if “Lisa Justice Harness Racing” was registered or, if it ceased operations in 2010, and she said that, “I have had several businesses that I’ve started where I am absolutely sure they were registered business names. To my knowledge, I don’t think Lisa Justice Harness Racing was a registered business”;[42] however, the plaintiff went on to say, that she thought it could be correct that the business, whether registered or not, stopped when she commenced work with Ranvet.[43] I am satisfied on balance that it did. The plaintiff also said that because of her earlier injuries, she had been forced to transfer horses into her brother-in-law’s name by the time she commenced employment with Ranvet and had been forced to finish her harness racing activities.[44]
[42]T33
[43]T34
[44]T31
49 I am satisfied by the evidence, and find, that approximately one year prior to January 2013, the plaintiff had tapered off training horses and driving horses. I am also satisfied, and find, that the other injuries I have referred to, prevented the plaintiff making a living from harness racing as a driver and a trainer and that, therefore, she was compelled by economic necessity to take outside employment, which she secured with Ranvet. I am satisfied, and find that none of those consequences are attributable to injuries and consequences from the 2013 transport accident.
50 I have arrived at this finding after having paid due regard to the plaintiff’s denial that winding “right down” her harness racing activities meant greater than being “forced to finish doing the horses at that time”.[45]
[45]T31
51 However, it is illogical on the assessment I have formed of the plaintiff, to suppose that given her long and established history in the harness racing industry and assuming her other injuries had resolved that she would have not returned to her passion.
52 The plaintiff agreed that the racing season commences each September. In the racing season commencing September 2013-2014, the plaintiff in fact drove on eight occasions. In the year September 2010-2011, the plaintiff only had one drive. She thought this made sense because she injured her knee in 2010 and she had to wait over six months for surgery due to the amount of swelling in the leg. She had snapped her anterior cruciate ligament. She said it was operated on and there were months of recovery and rehabilitation and then as soon as she got that right, she completely avulsed the left hamstring, which then took another six months out of her life.
53 In the 2011-2012 season, the plaintiff’s driving was precluded due to the hamstring avulsion, which she testified took over six months for recovery, and a double knee reconstruction, which also took a period of six months to recover.
54 Although the plaintiff contested the accuracy of the record of drives she undertook, she provided no contrary evidence. I accept the record as the best available evidence of the periods of time to which they relate. The probative worth of the record of the plaintiff’s drives is to identify that the interference to her harness driving occurred well before the 2013 transport accident and was due to her other injuries as opposed to the 2013 transport accident, when in fact in the subsequent year, there had been an uptake in frequency.
55 The fact of the plaintiff having driven after the 2013 transport accident at first impressions is consistent with a finding that any aggravation to the plaintiff’s spine may not have been serious but it can also be regarded as consistent with the other injuries having resolved and the period of her return to driving in the 2014 season having been subsequently stalled by the neck pain experienced as a result of the aggravating effects of the 2013 transport accident.
56 The plaintiff said that it is the condition of her neck and the pain she experiences in her neck and the instability occasioned by it that now stops her from pursuing her driving. She said that she is terrified of the neck instability and that if it was not for her pain in the neck she would be driving now. She said she would have scaled back her employment with Ranvet to possibly three days a week and she said she would have been training horses the rest of the time and going to meetings and driving at least 10 or 15 horses. I see no sensible reason to dispute the plaintiff’s evidence.
Analysing the non-compensable injuries sustained by the plaintiff and their impact on her
57 Following the 2007 transport accident, the plaintiff had regular attendances on a chiropractor, Dr Portelli, commencing on 29 March 2007 and continuing until March 2011. Her attendances were principally for adjustment to her spine. She did not recommence attendance on him until 2016. In the second of his two reports, Dr Poretlli addressed the fact of the plaintiff’s 2007 transport accident as well as the 2013 transport accident. He wrote that:
“Ms Justice has sustained cervical spine trauma from two motor vehicle accidents and associated degenerative changes to the cervical facets, discs and muscles.
Each traumatic injury has had an effect on the stability of neurospinal function of her neck. The advanced degenerative changes appear to be consistent with said cause of a motor vehicle accident on the 24th January 2013.
The impact described by the patient would account for the changes found on her recent x rays, MRI and her range of movement in her cervical spine. Wear and tear is now evident in her spinal joints and discal structures.
Neurological symptoms that the patient is now experiencing, including vertigo headaches, neuralgia neck pain are consistent with changes seen in the spine from her motor vehicle accidents”. [46]
[46]PCB 74
58 As can be observed, Dr Portelli implicated both accidents as accounting for the identified symptoms, but as I have already noted, the implications from the 2007 transport accident had not interfered with the plaintiff’s functioning and neither had they been productive of the experience of pain and limitations of the type the plaintiff said has beset her since the 2013 transport accident or had their effects on her spine impeded either her employment or her lifestyle.
59 I am satisfied that the 2013 transport accident aggravated the neurospinal function of the plaintiff’s neck. The question is whether the aggravation caused by that trauma has resulted in a serious injury to the plaintiff that is long term.[47]
[47]There is more than sufficient evidence that the condition of the plaintiff’s spine is long term and it was not suggested otherwise by the defendant
Assessing the mental reaction
60 Mr Jens put to the plaintiff that prior to the 2013 transport accident, she had been seeking assistance from Ms Vermont, a counsellor, for the emotional effects of having had to surrender her harness racing activities because of her other injuries and personal issues.
61 The plaintiff attended on Ms Vermont on 29 September 2011 and 7 November 2011, 6 January 2012, 27 February 2012, 20 March 2012, 11 May 2012, 23 May 2012, 9 July 2012 and 18 July 2012.[48] Mr Jens, by reference to Ms Vermont’s clinical notes, identified the emotional toll exacted on the plaintiff in 2011 and 2012 as a result of her other injuries having prevented her from continuing her career as a jockey. The plaintiff agreed this had been the case and she said of her condition at that time that:
“ I had leg issues and I hadn’t driven for that year and I may well have been distressed at the fact that I couldn’t drive at that particular time, or train”.[49]
[48]DCB 135
[49]T38
62 The plaintiff said she had previously been in an abusive relationship and was very depressed during the period from the end of 2011 and into 2012. Ms Vermont’s notes of counselling included as follows:
“The sessions moved away from focusing on her relationship to being more personally focused on Lisa’s grief and assisting Lisa to come to terms with her inability to continue her chosen career.”[50]
[50]DCB 136
63 The plaintiff said she thought this entry was written by Ms Vermont
“… during a period of time which we can tell by the dates where I had had three significant injuries and operations and I was struggling with not only pain, rehabilitation, loss of muscle mass, being able to do what I wanted and I imagine I sought help during this time because I was struggling with that and I would have dearly loved to have gone back and, you know, subsidised my income, done something that I love doing.”[51]
[51]T42
64 The plaintiff went on to say that:
“… perhaps I thought I wouldn’t be able to get back driving about my legs. I honestly I can’t honestly recall. I mean, if you’ve got one severe injury which required double knee reconstruction and you just managed to get that right and then you managed to do an injury which was by no stretch most likely one of the most painful things I’ve ever gone through, the complete avulsion of the left hamstring, it took a long time to rehabilitate the legs. I lost a lot of muscle matter mass said it was a very, very time-consuming.”[52]
[52]T29
65 To Mr Jens’ suggestion that Ms Vermont’s notes reflect that as at July 2012 she was “grieving over losing her career in the harness racing industry,” the plaintiff reiterated that in her way of thinking of matters she had not lost her career but rather it had been sidelined by her leg injuries, and she said:
“So at the time I was most likely struggling, as I’ve said now on three occasions, with the fact that I wasn’t able to get out there at that time, due to the three leg operations, due to the rehabilitation, et cetera, et cetera, and I just basically said that again.”[53]
[53]T43
66 I am satisfied that the preponderance of evidence is that the plaintiff’s mental response to the loss of her career is attributable to factors other than the 2013 transport accident and that to the extent I am allowed to take a mental response to an injury into account in assessing pain and suffering consequences that are serious, the plaintiff has not established that her mental response to the loss of her career was caused by the 2013 transport accident. Accordingly, I have discounted any mental anguish that the plaintiff still experiences at the loss of harness racing activities as being caused by the physical consequences of the aggravation to her cervical spine caused by the 2013 transport accident.
Assessing the impact of the other injuries
67 The plaintiff’s other injuries prior to January 2013 were a hamstring injury, an injury to her right knee and injury to her right hand. The hamstring injury occurred in late August 2011 and resulted in surgery. The plaintiff described the right knee as a complete avulsion of the knee sustained when she slipped in her bathroom. There was no ongoing medical opinions to implicate them as continuing to account in preventing the plaintiff’s return to harness driving.
68 In addition to the hamstring and the knee injuries impacting the plaintiff’s pursuit of harness racing, she was also cross-examined by Mr Jens about the effects of a thumb injury to her right hand. She said the right thumb injury occurred at the same time she avulsed her hamstring in about late August 2011 but because of the debilitating pain of the hamstring injury, the thumb injury became of secondary importance, and she kept wrapping it until such time that she had to get something done to it. The plaintiff agreed that two operations were performed on the thumb in July 2012 and August 2016 by Mr Harvey, orthopaedic surgeon. The initial surgery was an ulnar collateral ligament reconstruction. The plaintiff said that the thumb injury may well have been why she stayed out of action from driving and that she was confronted with the situation that there was “one operation on top of the other and it was quite depressing, quite difficult to deal with”.[54]
[54]T44
69 I am satisfied that the plaintiff’s right thumb injury was a factor that impeded the plaintiff’s harness racing activities. Dr David Fish, consultant occupational and environmental physician, reported on 22 October 2014 that her right hand limited her ability to return to harness racing.[55] Mr Harvey reported on 11 July 2016, that the plaintiff had experienced recurrent instability of the thumb that was causing pain.[56] However, the plaintiff said that her thumb is of no issue to her now. She deemed the second operation to it in August 2016 a success. Mr Speck, in a report dated 28 November 2018, wrote that:
“The plaintiff’s right thumb which she had reconstructed twice which is not truly satisfactory for her at this stage. No further surgery to the thumb was intended. She feels that the hand and the knee reconstructions are as good as it can be.”[57]
[55]DCB 81
[56]DCB 86
[57]DCB 47
70 Mr Jens put to the plaintiff that an inability as a driver to hold a whip with confidence would be something of great concern to her. The plaintiff agreed. She also agreed that if she could not hold a whip she could not hold reins and that this would prevent her from driving or racing; however, she said that the hand is “no issue now”.[58] I accept the plaintiff’s assessment about the state of her hand and, although her hand and knee may not be perfect but instead only “as good as they can be”, I am not persuaded they stop her involvement as a driver. Such interference with function is a result of the shoulder and restricted neck movement and pain.
[58]T47
71 I am satisfied that the plaintiff’s evidence has disentangled the knee injuries and the hand injury as a reason for an unrestricted return to the pursuit of harness driving as opposed to the 2013 transport accident as required: Peak Engineering & Anor v McKenzie.[59]
[59][2014] VSCA 67
72 The plaintiff was questioned about the extent of her training activities. She said she has two horses currently racing, and her partner, who is also a trainer, helps with the physical aspects associated with it. She said he had some 30 horses under training. No affidavit was forthcoming from the plaintiff’s partner but I accept her evidence. She says she is involved in tasks as diverse as diets and blood testing and diagnosis and such like.
Licences
73 The matter of the plaintiff’s licensing under the regulatory regime applicable to the harness racing industry was the subject of a good deal of testimony, but unfortunately, it was largely uninformative. No evidence was adduced to identify any mandatory requirements. The plaintiff’s viva voce evidence in cross-examination elicited, in anecdotal fashion, the licensing system that allows her to train and to drive a harness whether in Victoria or in New South Wales.
74 The plaintiff said that her licence permitting her to drive horses in Victoria came due for renewal in about the middle of 2014. Dr Best would not pass her fit for a license to drive. She did, however, manage to renew her trainers’ licence. She said that had she not done so, it would have been administratively unwieldy to obtain it anew.
75 The plaintiff said that throughout her physical travails, whether from the effects she attributed to the 2013 transport accident, or the other injuries, she has maintained her training licence. She said when she moved from Victoria to New South Wales, and because she had not had any horses in her name for the previous four or five years (a time line that equates to the 2013 transport accident), her training licence was downgraded to a “B” class licence, which she explained, meant that she could not train any more than three horses for outside interests. She said that in order for her to get back into training to any substantial extent she would need to apply for an “A” class licence but it was a necessary condition to have held her “B” class license for “some time”.[60]
[60]T50
76 As part of her effort to obtain her training licence in New South Wales, the plaintiff was examined on 1 August 2018 by Dr Parera, for Harness Racing New South Wales, and he reported that “I conclude in relation to driving, training or stable hand duties that yes you are fit for those duties”.[61] The defendant submitted that if I accepted the assessment of the plaintiff by a medical practitioner utilised by Harness Racing New South Wales, following an examination of the plaintiff, then her claim that she is restricted from involvement as a trainer and a driver because of the effects of an aggravation to her spine caused by the January 2013 is highly questionable. I do not accept that the approval about driving should be preferred and whatever the provenance of how the plaintiff’s separate endorsement about being unfit to drive because of her 2013 transport accident came about, the preponderance of evidence is that the spine is so unstable as to preclude a capacity on her part to drive.
[61]T53 and exhibit D22
The absence of neck complaint
77 Mr Jens questioned the plaintiff about the absence of reference in the document completed by Dr Parera, to her neck problem, despite the plaintiff’s account that her principal complaint is to her neck. The plaintiff said that she could not explain the absence of reference to her neck. She said:
“ I think he’s just made a genuine mistake. I certainly didn’t try to mislead anyone when I applied for my license and that is why I’ve added this to the back notwithstanding that apparently there is a record of it.”[62]
[62]T56
78 Whilst the omission in relation to the plaintiff’s neck is a matter of some disquiet, I am not satisfied, that the omission trumps the preponderance of medical opinion that there is an organic reason for the manifestation of significant neck pain. I am persuaded that the plaintiff has disentangled the consequences occasioned to her by the other injuries as reasons that explain the ongoing interference with her pursuit to them to the extent she had once enjoyed.
Aggravation of spine
79 The medical evidence relied on by the plaintiff provides some evaluation of the extent to which the 2013 transport accident has aggravated her neurospinal neck function. Dr Tan expressed the opinion that the plaintiff on investigation has demonstrated an unstable C3/4 segment, “likely related to ligamentous injury at the time of the accident”.[63] Dr Portelli has implicated the two transport accidents and said that the reason for the impaired function of the spine is the two motor vehicle accidents with the plaintiff’s advanced degenerative changes appearing to be consistent with the 2013 transport accident although, he has written, that her neurological symptoms being consistent with spinal changes from “her motor vehicle accidents.”[64]
[63]PCB 36
[64]PCB 74
80 Mr Farey has reported that the 2013 transport accident was productive of changes at C4/5, C 5/6 and C 6/7 that were previously asymptomatic.
81 Dr Best in his report dated 22 February 2017 reported that whilst the plaintiff was shown on MRI to have chronic degenerative changes that existed prior to the accident, “she was not experiencing any of the chronic symptoms that she currently has”[65] prior to the 2013 transport accident. That is, on balance a reasonable conclusion, because although the plaintiff did have some past experiences of headaches, her neck pain was not chronic.
[65]PCB 22
82 I have given consideration to the fact that although Dr Best wrote that the plaintiff had not previously experienced “chronic debilitating neck pain”[66] of the type she now suffers, the plaintiff has continued to work with Ranvet. I think the explanation for this is that the plaintiff has adapted to discharging her employment and that in combination with her resilience and the necessity to support herself and her daughter she has persevered.
[66]ibid
Finding on spine
83 Undoubtedly the plaintiff suffers from a degenerative cervical spine. What is plain is that the 2013 transport accident did not cause that degeneration. It was pre-existing. It is equally persuasive that in relation to symptoms, although the effects on the plaintiff of her spine before the 2013 transport accident, whilst not asymptomatic, were productive of headaches and neck pain, but were not productive of impairment consequences and, whether through ordinary progression, or in combination with the 2007 transport accident, the plaintiff’s work in harness racing was not impeded. That had been taken away by her other injuries. Also that state of affairs between 2010 and 2013, had not affected her employment with Ranvet or warranted restrictions in carrying out her duties.
84 Thus the onset of pain and restrictions and the inability to resume harness driving are matters that I am satisfied are the result of the 2013 transport accident caused by an aggravation to her neurospinal function by way of an additional impairment.
Does the additional impairment caused by the 2013 transport accident qualify as serious injury?
85 Dr Portelli, in a report dated 19 March 2019, dealing with the plaintiff’s prognosis, wrote that she:
“… is advised to cease all driving of trotters as any further trauma could be catastrophic to her health. Ms Justice’s prognosis is guarded and is dependent largely on her ability to maintain stability and functional rehabilitation.
The stability of her cervical spine is of concern and may possibly require surgical intervention. Her neck stability and neural involvement caused by her last motor vehicle accident have prevented her from working as a trotting driver and participating in other activities associated with risk.
At this stage she will require ongoing medical care including medication, massage, Physiotherapy, Chiropractic and Exercise Physiology. Her injury is a permanent and likely degenerative in nature.”[67]
[67]PCB 75
86 In January 2018, the plaintiff moved to Sydney with her partner. In New South Wales she now sees Mr Farey in lieu of Ms Tan. Mr Farey recommended further facet joint injections at C3/4 in an effort to decrease the plaintiff’s symptoms. He reported that the facet joint injections that had been administered at the C3/4 level on three occasions previously had not proved to be of long-term benefit. He suggested that the plaintiff consider stabilisation and fusion of C3/4 level; however, he also advised the plaintiff that this would not result in complete relief from her neck pain. He noted the plaintiff complained of “constant neck pain that was exacerbated by flexion and rotation of cervical spine and partially relieved by extension”. That statement is not consistent with the evidence.
87 Thus, Dr Tan in Victoria, and Mr Farey in New South Wales, have recommended surgery in the form of a fusion at the C3/4 level and arthroplasty at C4/5, and Mr Farey has also recommended a fusion at C3/4; however, given the invasive nature of the surgery, the plaintiff said that she does not want to undergo it, at least for the foreseeable future, because she said neither doctor can provide a guarantee that it would help with her symptoms and in fact that a possible outcome could be a worse position.
88 Mr Jens submitted that I should treat the plaintiff’s unwillingness for surgery as sitting oddly with her revealed history of facing up to necessary surgery and her professed desire to return to her harness racing as ably as possible. I do not accept this submission. The fact that a plaintiff elects not to undertake a surgical procedure other than a benign procedure and, as well, in circumstances where outcomes are debateable, is not a consideration that I would weigh adversely against the plaintiff but rather the prospect of a surgery as a result of an aggravation that has occasioned impaired function is a serious consequence for the plaintiff to contemplate.
89 I accept the plaintiff may very likely require to come to surgery and I am satisfied on the balance of probabilities that this is solely due to the aggravating effects to the plaintiff’s neurospinal function as a result of the 2013 transport accident.
Current pain and suffering
90 The plaintiff said that she continues to suffer from ongoing pain in her neck, particularly on the right-hand side, with pins and needles in her hand on occasions. She described the pain in her neck as a deep-seated burning sensation. She said the pain is constant and varies in intensity depending on the activity she is performing. She said she experiences restricted movement in her neck when she is turning her head from side to side. I accept her account. I accept too that the description of the nature of the pain the plaintiff experiences.
91 Mr Farey reported on 6 March 2018 that the plaintiff suffers from constant neck pain which radiates to the mid and lower cervical spine and to the interscapular region and that she has generalised headache, present most of the time. A subsequent report from Mr Farey dated 3 December 2018 reported the plaintiff as presenting with constant neck pain and he attributed the 2013 transport accident as the cause of her “difficulty driving horses, horse riding and inability to play netball”.[68]
[68]PCB 46 – although the reliability of the account of netball was put in issue, I was not troubled by it
92 In regard to the plaintiff’s efforts in returning to drive a horse and sulky, she said the jarring effect on her in doing so, together with the helmet which she is required to wear, dramatically increases her neck pain. Likewise, she said that when training horses, she said she must wear a vest and a helmet, and this proves difficult, which she said also accounts for why she has largely surrendered this activity. The surveillance footage of the plaintiff from 12 November 2016 on her horse for recreation with helmet and no outward manifestation of pain or discomfort is not evidence that the plaintiff’s account of pain from its use is untrue or that what was shown is commensurate with the necessity to wear the same in driving.
Relevance of the plaintiff’s social media
93 Nowadays it can seem a universal truth that countless numbers of people put various aspects of their life’s activities on various social media platforms. The plaintiff is one such person. Not surprisingly, a defendant will often enough interrogate such material in an effort to discern if some parts of it might be considered relevant to issues such as a plaintiff’s capacity or credibility. That has occurred in the course of this proceeding. Needless to say, the grant of a serious injury certificate is not dependent on a plaintiff proving they have withdrawn from all aspects of life. That is not the test. Nonetheless, aspects of apparent behaviour by a plaintiff over a sufficiently representative time frame may assist a Court as part of its overall consideration of the evidence of an applicant in assessing a claim for serious injury.
94 The plaintiff has not lived a hermit-like existence since the 2013 transport accident. She had not suggested otherwise. Nor is that part of the test to be applied at law. She has been able to travel for work, as I have already noted, and as well, for recreational reasons, including a trip to Bali in 2014, and Thailand in 2016. Photographs taken from the plaintiff’s postings to her Facebook page show her at the Melbourne Cup in 2016, and whilst there were other photographs about which evidence was given, the plaintiff suggested that the dates they were posted online were not necessarily the date the pictures were taken and, for example, she identified a photograph of her skydiving which she said occurred in 2012 before the 2013 transport accident but after her leg operation and was something she did to celebrate her recovery from that injury.[69] I accept that the date of some photos is questionable. The plaintiff accepted that part of her work with Ranvet requires her from time to time to attend race meetings, and she agreed with Mr Jens that she enjoys doing so, but she also said that over the course of 2018, she and her partner attended only one harness racing social event.[70] Nothing in the history of the plaintiff’s social life is at odds with her account of the effects of her pain.
[69]T97
[70]T99
Aggravation – whether “serious”
95 In assessing the seriousness to the plaintiff of the aggravation to her spine caused by the 2013 transport accident, I have not concentrated my attention solely on the consequence of the plaintiff’s claimed inability to pursue her abiding interest in harness racing, but to the other effects she said she suffers because of the effects to her spine from the 2013 transport accident. These include her evidence of constant and unremitting headaches and disrupted sleep caused by pain and the necessity to take painkillers and Tixol, and a need to wear a soft collar on a regular basis to give relief to her neck.
96 The plaintiff has suffered from headaches generally and migraine-type headaches prior to the 2013 transport accident but the medical evidence is that she now suffers from headaches perhaps three days a week or more often. The plaintiff’s account of the frequency of her headaches was to some extent inconsistent with the medical reporting. The plaintiff said that she suffers from ongoing headaches at least three times a week[71] or “constantly” as she said in her oral evidence or, as elsewhere described as, “four out of seven days and the time they last varies”. For headaches the plaintiff takes Panadol.[72] I accept her description of their frequency and severity and that it is much greater than she had previously encountered.
[71]PCB 9 and 55
[72]Associate Professor Doherty’s report dated 3 January 2019 at DCB 37
97 Although the plaintiff said that her work is made harder because of the effects of the 2013 transport accident because, for example, she on occasions requires assistance to lift weights beyond a certain amount and to take more frequent breaks in driving long distances than had been necessary before accident, she did not say that her headaches, whether constant or intermittent, impede her work. Whilst I have considered the plaintiff’s evidence that she had suffered migraine headaches before the accident but that they came and went, whereas now it is very different, there is a question why they have not impacted her work more markedly. I think the answer lies in the fact that the plaintiff has been able to moderate her work to account for her pain and that the severity of the pain accompanying her headaches is commensurate with the level and extent of her activity. I regard and assess her headaches as presenting far more than a modest impact to her life and that it is a very considerable consequence made worse by the aggravation to her spine as a result of the 2013 transport accident. I am satisfied that the plaintiff’s pain manifested by headaches and neck pain is also chronic.
98 I have found already that the plaintiff’s loss of sleep and disrupted sleep is caused by the aggravation injury to the plaintiff’s spine with resultant neck pain as a result of the 2013 transport accident is a serious consequence.[73] Such disruption had not been her condition previously.
[73]Haden Engineering Pty Ltd v McKinnon (supra) at paragraph [45] per Maxwell P.
99 The plaintiff told Associate Professor Doherty on 25 September 2018 that her pain is at a level of 6 out of 10. That is greater than a modest pain level.
100 The plaintiff takes Tixol and although her use of painkillers in the form of non-prescription medication is moderate, there is no suggestion there will be any let up to such a need.
Conclusion
101 I am satisfied that the aggravation to the plaintiff’s spine that has resulted from the 2013 transport accident is a serious injury. I am satisfied, on the balance of probabilities, that the plaintiff’s account that the 2013 transport accident alone has amounted to a serious injury by way of aggravation to her spine and that the pain and restriction to her neck as a result has led to consequences by way of pain and suffering and loss of enjoyment of life that are very considerable and hence serious and long term.
102 The loss of the plaintiff’s pursuit of harness racing was not a result of the 2013 transport accident but because of other injuries. They resolved. The aggravating effects from the 2013 transport accident is now what visits the plaintiff with pain and suffering consequences in relation to that aspect of her life and to which so much of her efforts had been directed.
103 Furthermore, the plaintiff’s experience of pain and the severity of it since the 2013 transport accident has led to the development of regular disrupted sleep, ongoing interferences to her domestic activities along with the prospects of surgery, such that overall her condition that when judged by comparison with the consequences of other cases in the range of possible impairments, are more than significant and are serious.
104 For the reasons expressed the application is granted.
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