Kamel v Transport Accident Commission

[2010] VCC 314

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
DAMAGES AND COMPENSATION LIST

SERIOUS INJURY DIVISION

Case No. CI-09-01849

Christine Kamel	Plaintiff
v
Transport Accident Commission	Defendant

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JUDGE:	S. Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	12-14 April, 2010
DATE OF JUDGMENT:	5 May 2010
CASE MAY BE CITED AS:	Kamel v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2010] VCC 0314

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Serious injury application – Transport Accident Act 1986– s93(17) – Permanent serious impairment or loss of a body function – thoraco-lumbar spine – left knee – secondary adjustment disorder

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Brett	Arnold Thomas and Becker
With Mr J. Valiotis
For the Defendant	Ms M. Hartley SC	Solicitor for the Transport Accident
With Ms A. Magee	Commission
HER HONOUR:

1 This is an application for leave under s.93(17) of the Transport Accident Act 1986 for leave to bring proceedings for the recovery of damages in respect of an injury to the left leg or lower back suffered in a transport accident on 17 October 1997 when the plaintiff, who was then 10 years old, was struck by a car while crossing the road on her way home from school. She suffered a fracture to the left tibia and fibula, a laceration to her left eye, and a head injury. She also had back pain. She spent 13 nights in hospital after surgery on her left leg. Although the fracture healed well, she developed a valgus deformity of the left leg which was surgically repaired in 1999 by the insertion of staples. The staples were removed in a further procedure in 2000.

2          Since then, she has suffered ongoing symptoms of pain in the left leg and lower back, with secondary psychological symptoms flowing from her physical injuries. She says she has suffered a serious injury within the meaning of paragraph (a) of the definition of serious injury, namely a serious long-term impairment of a body function, either of the left leg (particularly the knee) or of the thoraco-lumbar spine.[1] In terms of pain and suffering, she has ongoing pain in the left knee and the lower back. She also has physical restrictions flowing from her left knee problem and back problem (in terms of walking long distances and climbing stairs). In terms of pecuniary disadvantage, she says that she cannot work more than 15 hours in a café and cannot work in information technology without further study and therefore her range of employment options and ability to work full-time is limited. In terms of the psychological impact of her physical injuries, her self-image has been affected and she sees herself as a person with an ongoing problem.

[1]             Although the Particulars of Injury filed in support of the application listed additional injuries including scarring, laceration to the left upper eyelid, abrasion to the right cheek and the right elbow; these were not pursued at the hearing.

3          The TAC agrees that the plaintiff suffered an injury to the lower back and left leg in the transport accident but says that the application should be dismissed for a number of reasons. Firstly, there are concerns in relation to the accuracy and reliability of the plaintiff’s evidence. Secondly, she leads a relatively normal social life, takes minimal medication for her back or leg pain and takes no medication for any psychological symptoms. There has been no complaint of psychological symptoms to her treating doctor since late 2007, and the plaintiff has not separated out the primary from the secondary effects of the transport accident. The video surveillance footage shows her moving about freely. Thirdly, there is no radiologically confirmed pathology in either the left knee or the lower back which would explain her ongoing physical symptoms. To the extent that Mr Schofield diagnosed chondromalacia patella in the left knee and some injury to the lumbo-sacral disc,[2] neither condition has resulted in an impairment which meets the required threshold in terms of seriousness because of the unreliability of the plaintiff’s evidence. Finally, in terms of pecuniary disadvantage flowing from the effects of the transport accident, the plaintiff has chosen not to exercise her earning capacity in IT or in office work and has chosen to work instead in a café. However, her evidence that she can work a six hour shift with breaks suggests a capacity greater than 15 hours per week in any event.

Plaintiff’s evidence[3]

[2]             Plaintiff’s Court Book [PCB] page 69.

[3]             In her affidavit material, the plaintiff refers to a number of matters, such as ongoing headaches, not relied upon at the hearing of her application. I have confined my analysis to her evidence concerning the left leg symptoms, low back pain, and psychological sequelae of her low back pain and left leg symptoms.

4          In her first affidavit, sworn 29 September 2009, the plaintiff said that in relation to her pain she continues to see her treating doctor, Dr Boules or another unidentified doctor at a different clinic, about once per month. She said she is prescribed anti-inflammatory medication and also takes Nurofen Plus for pain relief. In relation to her back pain, she stated:[4]

I continue to suffer ongoing low back pain. Regularly that low back pain radiates to both of my legs. The low back pain is made worse by activity, particular sitting for too long, standing for too long, bending, twisting and lifting.

[4]             PCB page 6, paragraph 12.

5          In relation to her left leg symptoms, she stated:[5]

I continue to suffer pain at the fracture site on the lower part of my left leg. I suffer pain and stiffness affecting my left knee. My left leg is still not straight. I suffer sensations of aching and sensitivity particularly around the scars on my left leg. The left leg and knee symptoms are made worse by being on my feet for too long and by moving around. My left knee often locks, particularly on cold days or I engage in lots of activity.

[5]             PCB page 7, paragraph 13.

6          She stated that she completed Year 12 in 2004 and then completed an Information Technology Diploma at TAFE over four years, graduating in December 2008. She stated that in April this year she commenced part-time, casual work at a café, working about 15 hours per week. She stated:[6]

I struggle with the physical aspects of the work in particular because of pain affecting my left knee and the lower part of my left leg and my low back. However my employer is supportive of me and this certainly makes it easier to remain at work.

[6]             PCB page 7, paragraph 15.

7          She stated that prior to the accident she enjoyed playing sport, but after the accident found it difficult to play sport. She felt isolated at school. She found it difficult to study since that accident due to her pain, her headaches and her absences from school. She is anxious at night, and is often woken by back pain or leg pain.

8          In her second affidavit sworn 8 April 2010, she stated that she has been working up to 15 hours per week at the café, owned by her fiancé, and is also receiving a disability support pension. She has trouble mopping floors, lifting light objects off the floor and staying on her feet for more than an hour. Her left knee “locks up and weakens” numerous times at work. Two to three times per week after work she takes two Nurofen Plus tablets for her pain in order to help her sleep. Her self-esteem remains low because she is on the disability support pension. She is limited in helping her family with household chores due to her back and left leg pain, and worries about how she will manage as a wife and mother in her own home. She stated that she feels she has not achieved much in life, unlike her friends, and is limited with what she can do at work. She does not do sport because she would suffer knee pain afterwards. He knee “locks” nearly every day. Sometimes she feels she is limping due to pain. She gets a sore back from leaning over the sink. She “has been diagnosed with depression and still constantly suffer with bad anxiety”.[7]

[7]             PCB page 14(c), paragraph 10.

9          In cross-examination, she said she had become engaged four to five months ago to her boss. She agreed that her life was better and that she goes out with him to dinner, movies and family functions but said that they fight a lot because she complains about her pain. She denied ever saying that her life was “trashed”, but later conceded that she possibly said this to Dr Weissman in August 2005. She agreed that she did not tell him about her trip to Egypt and how happy she had been there, because she was focusing on her life at home here. She denied telling her solicitor that her doctor told her there was a high risk of getting leukaemia from MRIs, but agreed that she did discuss the risk of MRIs with Dr Boules, her doctor. She agreed that she could swim and that Mr Goldwasser encouraged her to resume sport in 1998 but said she avoided doing sport because she got knee pain from it. She did not recall complaining to Mr Goldwasser about back pain in 1998. However, she agreed that she may in fact have participated in a cross-country program in Year 7, and in volleyball, hockey and basketball in Year 8, but said this was because she was trying to fit in.

10        She agreed that she told doctors she was doing well at school prior to the transport accident and said this is what she believed. She agreed that prior to the accident she missed 15 days of school in 1995 and 43 days in 1996. She agreed that she went to Egypt in 1996, and again in 2004 and 2007. She agreed that she told many medico-legal examiners that her grades deteriorated after the transport accident, but conceded that her results in 1997 and 1998, after the transport accident, were in fact better than they had been prior to the accident. She agreed that she told Dr Weissman that she had to walk for “ages” to get to RMIT. She conceded that in fact the tram stop to RMIT was directly outside the train station but it took her some time to discover that. She agreed that part of the reason that she deferred her RMIT studies twice for a few months each time to travel to Egypt was to look after her mother; however she insisted that another reason was to have a break from the problems she was having travelling to and from RMIT.

11        She denied telling anyone that she “had the time of her life” in Egypt, but agreed that she had a good time there. When shown a copy of an email she wrote to her cousin asking him to enrol for her at RMIT, she agreed that she had in fact used that phrase.

12        She agreed that her parents’ ongoing health problems caused her stress and anxiety. She said she tries to help with chores at home but finds it hard to do dishes or tidying up, especially after work. She said her mother does the cooking, and her father does the ironing. She agreed that she has been unhappy and depressed about her breast development in the past years and has seen a number of specialists about this. She had never taken medication for any psychological problems. She agreed that she told Dr Boules in 2007 about panic attacks and that he may have recommended referral to a psychiatrist, but she said she did not want to have treatment.

13        She agreed that there was no reason she could not work more than 15 hours in a desk job which allowed her to move around. She said she had not applied for any jobs where she could use her computer skills but fell into the café work. She said that IT jobs for which she was qualified generally required a few years’ experience, which she did not have.

14        She said that she did not think she had told the other clinic about her transport accident or received treatment for her leg pain or back pain there. She said she got scripts for Mobic from Dr Boules on two occasions in 2007 but it made her nauseous and she did not keep taking them. She said she takes two Nurofen Plus per day about three times per week, for any sort of back or leg pain. She agreed that no doctor has told her there is any ongoing deformity in the shape of the left leg. She agreed that Dr Boules recommended that she have counselling for her depression concerning her breast development.

15        She agreed that she submitted an application for the disability support pension in around January 2010 and that her application was signed by Dr Boules. She did not recall why she asked Dr Boules for a medical certificate dated 16 March 2009 stating she was unfit to work for the next three months but agreed she did not tell him at that time she sought the certificate, that she was working. She agreed that she worked at the café during that period.

16        She viewed extracts of video surveillance taken on 8 and 9 February 2010 of her at work at the café. She agreed that she did not limp in those extracts, and walked, carried shopping and got into a car without difficulty.

Evidence of treating doctors

17        Dr Boules has treated the plaintiff at the Sydenham Medical Centre since 1994. He provided three reports.[8] In his first report he noted that she continued to have problems with her legs, back pain, headaches and loss of concentration, and these problems were causing her family stress. In his second report, he diagnosed “Post Stress Disorder”, chronic leg pain and post concussion headaches. He noted continuing complaints of headaches, back pain, left leg pain and loss of concentration. He noted she could not walk long distances or study for long periods. He felt her capacity for work was good except for physical work. In his latest report, he reached the same conclusions.

[8]             The reports were dated 24 April 2002, 25 May 2005 and 18 December 2009.

18        At the hearing he said she should continue with physiotherapy and psychotherapy. In cross-examination, he said he was not aware that the plaintiff was seeing doctors at another clinic. He agreed that in 2007 the plaintiff saw him 15 times and mentioned back pain once and did not mention leg pain at all. There were two mentions of panic attacks in 2007 in his clinical notes. He said that he tried to refer the plaintiff back to her former treating psychiatrist, Dr Tanaghow, but his list was closed, and she did not attend another psychiatrist. There were no further entries in his clinical notes concerning panic attacks up to the present. He agreed that there were 12 attendances upon his clinic in 2008 but only one complaint in relation to back pain, and two complaints of left leg pain. When he examined the left leg in December 2008 he found no abnormalities. He agreed that there have been no further complaints of back or left leg pain since then, no prescription of painkillers or anti-inflammatories since 2007, and no panic attacks recorded since 2007.

19         He said he would have told her that there was no risk of radiation from having an MRI, but agreed he may have sent a letter to her solicitor explaining her reluctance to have an MRI.

20        He agreed that he had provided medical certificates, each for three-month periods, to the plaintiff on 2 December 2007 and 17 March 2009. He agreed that the first of these certificates noted two temporary medical conditions: back pain, left leg pain and headache (date of onset:17 October 2007); and panic disorder (date of onset: 2 April 2007). He said the plaintiff gave him the dates of onset. He said he did not go back to his clinical records to check the accuracy of her complaints. He did not know what work she was able or unable to do. In relation to the certificate he issued on 17 March 2009, he agreed that it related only to one condition, the onset of left knee and left leg pain. He said he did not examine her when she attended for the certificate, which certified her unfit for work or study until June 2009. He said she did not tell him she was working, and he did not know she was working at that time. He said he would not have given her the certificate if he had known. He said he only learned after late 2009 that she has been working. He said her headaches prevent her from working full time in a sedentary capacity.

21        He said he had not diagnosed arthritis in her left knee. He was not aware that she had seen a neurologist for her headaches. He agreed that he referred the plaintiff to psychologist Juliette Hooper for counselling, and that the plaintiff’s parents had ongoing medical conditions which placed an additional strain on the plaintiff. He agreed that she had also been complaining since 2002 of distress about her breast development and that she had seen a number of plastic surgeons in 2002, 2003, 2008 and 2009.

22        He agreed that all the MRI examinations of the back and knee were normal, and that there was no clinical explanation for her symptoms. He felt there was something wrong with her walking, but agreed he would defer to the expert consensus that there was no abnormal gait. He agreed that she needed to exercise and get on with her life. He said it would not surprise him to learn that the plaintiff could work without pain.

23        The plaintiff relied on the report of Mr Goldwasser dated 25 January 1999[9] in which he noted the surgical treatment of the left leg fracture and the plaintiff’s recovery. In September 1998 he noted her complaint of daily back pain since March, and that she had not resumed her sporting activities. In December 1998, he noted that the left leg seemed longer by 3 mms than the right leg.

[9]             PCB page 30.

24        The defendant relied on a further report by Mr Goldwasser dated 5 February 1999[10] in which he noted that after her reports of back pain he arranged for X- rays and MRI of the thoraco-lumbar spine in late 1998 which were reported as normal. He noted her continuing complaint of low back pain, but felt it would take one or two years for her condition to stabilise. He encouraged her to increase her activities, including sporting activities, “as tolerated”.

[10]           PCB page 35a.

25        Mr Mark O’Sullivan saw the plaintiff in April 1999 and diagnosed a valgus deformity, which he repaired surgically on 7 May 1999 with a left upper tibial stapling on the medial side. The procedure was successful and the staples were removed in a further procedure on 10 March 2000. On 15 April 2002 Mr O’Sullivan reported[11] that on review in April 2000 “clinically her legs were straight and there was no clinical leg length discrepancy”, and that CT scan had showed only 2mm difference between the legs which was “well within the normal range”. He reviewed her in March and November 2001 in relation to low back pain. He noted the history that she had that back pain since the accident in 1997, although “that had never been reported to me”. In March 2001 she complained of 3 episodes of back pain per week in the previous six weeks. Examination and x-rays were normal. In November, she reported continuing low back pain with left leg pain. He felt her spinal range of motion was normal and noted that a bone scan showed no changes at the lower lumbar spine where her pain was situated.

[11]           PCB page 74d-f.

26        He felt that her valgus deformity had resolved well and should not cause her any further problems in future. He felt that her back pain may be related to adolescence.

27        The plaintiff received psychiatric treatment from Dr Rosemary Fawns between December 2001 and March 2002,[12] for matters which included her headaches and her mother’s illness. Dr Fawns concluded that the plaintiff did not have PTSD but “was worried about family issues”.

[12]           See the handwritten report of Dr Fawns at the Defendant’s Court Book [DCB] page 107.

28        In August 2004, Dr Tanaghow reported that he had been treating the plaintiff on a regular basis since 1998 for an Adjustment Disorder after her transport accident. He did not see her after August 2004.

29        The plaintiff received psychological counselling from Juliette Hooper on three occasions in 2004, in relation to coping with anxiety, back pain, knee pain and migraine headaches. There was no report before me concerning the substance of that counselling.

Plaintiff’s medico-legal experts

30        Mr Roger Westh, orthopaedic surgeon, reported on 4 July 2006[13] that when he saw the plaintiff in late June she told him her main ongoing problem was pain in the midline of the back, worse with prolonged walking, sitting or standing. She had ongoing left knee pain at the fracture site with some associated numbness, and occasional left knee stiffness. On examination he found restricted range of movement in her lumbar spine, and some “slight patello-femoral crepitus”, but no quadriceps or calf wasting, nor any significant limb length discrepancy. He found that she walks without a limp and that she recovered “very well” from her left leg injury. He also felt she sustained a low back injury in the accident and suffered chronic low back pain. He recommended regular exercise. He felt that her left leg injury should not interfere with her future work prospects but that her low back pain may prevent prolonged sitting or standing or any repetitive lifting or bending. He also felt she had a “significant accompanying post traumatic stress reaction with anxiety and this is directly related to her accident”. He felt there was no permanent impairment of the left leg, but a minor permanent impairment of the thoracolumbar spine in terms of back pain.

[13]           PCB pages 71-74.

31        Mr Schofield, orthopaedic surgeon, examined the plaintiff in December 2006 and January 2010. He provided two reports and three letters. His first report dated 7 December 2006[14] noted that when he saw her on 4 December 2006 she complained of pain in the left knee, aching in the left leg, locking of the left knee when walking long distances and occasional giving way. On examination, he found 2-3 cms lengthening of the left tibia, 1 cm wasting of the left thigh and 0.5 cm wasting of the left calf. The left knee had a full range of movement and normal stability of all ligaments, but “some pain on pressing the patella onto the femur and contracting the quadriceps muscle indicating chondromalacia”. He arranged x-rays of the left knee and lumbar spine (including erect functional views). The left knee x-ray was normal. X-ray of the lumbar spine “revealed evidence of disc space narrowing at the lumbosacral disc, especially in the erect view”. He concluded that apart from mild chondromalacia patella, which may have resulted from prolonged immobilisation and the impact of the injury on the knee cap, the left knee was normal. He concluded that the “reasons for continuing symptoms are not clear”, but felt that some of the leg pain could be referred pain from the back. He recommended further MRI scans.

[14]           PCB pages 55-58.

32        On 3 July 2007,[15] he noted that MRI of the lumbar spine and of the left knee conducted on 26 June 2007 were reported as normal. However, he felt that the plain x-rays of the lumbar spine showed “some instability which I believe is the cause of her ongoing back pain”. He felt that the supporting ligaments had been damaged, although the disc remained strong and intact. He also felt that there was clinical evidence of post-traumatic chondromalacia which “will continue to give her problems intermittently” and possibly could require surgery in the future.

[15]           PCB pages 60-63.

33        On 25 July 2007,[16] he noted Mr Dooley’s findings in 1999 and 2005 but felt these were overtaken by the results of the plain x-rays with erect functional views.

[16]           PCB pages 64-66.

34        On 13 January 2010,[17] Mr Schofield reported that when examined the previous day the plaintiff complained of an inability to squat due to pain over the kneecap, acute left knee pain when walking, some aching when at work, an inability to run, and the knee giving way from time to time. She also complained of low back pain when standing or sitting for long periods and when lifting or bending at work. She was taking Nurofen for that back pain. He found a 1 cm lengthening of the left leg. She had a full range of movement in the left knee, pain in flexion of the knee and compression of the kneecap with mild crepitus. She did not have an antalgic gait, nor any evidence of valgus deformity. He repeated his earlier conclusions, diagnosing “post-traumatic degenerative change affecting the lumbosacral disc and post-traumatic chondromalacia patella affecting the left knee”. Long-term prognosis would depend on the results of further MRI scans. He noted that “she had difficulty coping with work in the café” and that if she obtained work for which she was professionally qualified, “this will be less physical and more amenable to her current disability”.

[17]           PCB pages 67-70.

35        In cross-examination, Mr Schofield felt that the difference in leg lengthening reported by him was not significant and that there had been no change over time. He said that in his January 2010 report he noted all the symptoms she complained of, and that he assumed that the ones not raised (such as some of the symptoms complained of in 2006) had disappeared. He agreed that the MRI of the left knee and lumbar spine did not show major pathology. He agreed there was no scoliosis. He felt that in the absence of other identifiable causes, the likely explanation of her ongoing back pain was the transport accident. He agreed that there was some non-organic signs on examination consistent with some psychological factors. He felt that she could not stand for prolonged periods due to her lumbar disc problems. He viewed extracts of the video surveillance footage taken on 8 and 9 February 2010 and agreed she showed no apparent difficulties in moving around, leaning or carrying light objects. He said she could trial full-time sedentary work in her field, but may have difficulty sitting for long periods to do any further study if that was required. In re-examination , he said that intermittent back pain should not occur in a ten year-old without injury.

36        Dr Albert Kaplan, psychiatrist, assessed the plaintiff and provided reports in August 2006 and October 2009.[18] In his first report, he diagnosed an Adjustment Disorder with mixed anxiety and depressed mood. He felt that one-third of her psychiatric impairment was of primary origin and two-thirds resulted from her reaction to the chronic pain flowing from her physical injuries. He felt that she was incapacitated for all employment by her psychiatric condition. In his second report, he noted that her agoraphobic symptoms had improved but reaffirmed his previous diagnosis. He noted that work at the café had been beneficial and that future employment would be affected by impaired memory and concentration, but that otherwise her capacity for employment would be determined by her physical condition.

Defendant’s medico-legal reports

[18]           PCB pages 37-54.

37        Mr Robert Dickens, orthopaedic surgeon, reported on 8 October 2001[19] that when he examined the plaintiff on 4 October, she complained, relevantly, of back pain of varying severity, and of pain in the left leg mainly over the stitches. He found no asymmetry of the spine when she stood. Neurological assessment was normal. He found no scoliosis. He felt her back pain was unrelated to the transport accident, as it was common in adolescent girls. He felt she should return to all normal activities, including sport, as soon as possible.

[19]           DCB pages 8-13.

38        Mr Brendan Dooley, orthopaedic surgeon, examined the plaintiff in 1999, 2005, 2007 and 2009. In August 2005,[20] he reported that she had no scoliosis, a full painless range of movements in the thoracolumbar spine, and no evidence of muscle spasm. He felt the valgus deformity in the left leg had been “largely corrected”. The left knee straightened fully and flexed to 140 degrees. There was 5mms of lengthening of the left leg. He concluded that there was a small permanent impairment for minor loss of full flexion of the left knee and slight overgrowth of the left leg. He felt that she was unlikely to develop osteoarthritic changes in the left knee in future.

[20]           DCB pages 14-18.

39        On 16 February 2007, Mr Dooley reported similar findings.[21] The left knee was stable and he found no evidence of chondromalacia patellae. He detected no pain or crepitus on flexion of the left knee. He found marked limitation of flexion in the lumbo-sacral spine. He found 1 cm of discrepancy between the length of the legs and concluded that this was minimal, would not lead to progressive deterioration in any way of her lumbo-sacral spine and would not lead to uneven weightbearing. He felt that the prognosis for the back and the left knee was excellent. He felt that “almost certainly she will not develop osteoarthritis in her left knee as a result of the injury”. He felt her injuries would “in no way” affect her ability to work in the future in the field of information technology. He felt her back symptoms would resolve over time.

[21]           DCB pages 19-22.

40        On 16 November 2009,[22] Mr Dooley reported that on repeat examination there were no changes to the physical findings previously reported. He noted that the MRI of the lumbar spine was normal and he felt that the residual stiffness in flexion was “probably of a functional type, i.e. subconscious exaggeration”, and he felt the long term prognosis for her lower back was excellent. He felt her left knee had heaed very well. He felt that her ongoing back and left knee symptoms could not be explained on a physical basis. He agreed with Mr Westh’s opinion. On 1 April 2010 he noted the normal MRI results reported for the lumbar spine and left knee on 27 January 2010, and reaffirmed his previous opinion that the overall prognosis for the left knee and lower back was excellent.

[22]           DCB pages 25-30.

41        Dr David Weissman, psychiatrist, assessed the plaintiff in 2005, 2007 and 2009. In his report dated 3 August 2005[23] he noted her report of continuous pain in the left leg and lower back. He diagnosed a moderate Post-Traumatic Stress Disorder and a moderate chronic Adjustment Disorder with depressed and anxious mood. He felt that a number of post-traumatic stress and anxiety symptoms, along with social withdrawal, lowered self-esteem and confidence, self-confidence and part of her depression were primary or direct psychiatric symptoms, and that the primary psychiatric condition “outweighs the secondary or reactive condition”. However, he felt there was “still a not insignificant degree of depression that occurs consequential to her physical pain, injuries and disabilities (particularly regarding sport) and secondary to her scarring”. He noted she was avoidant about driving a car. She was reluctant to have further psychiatric treatment or medication, although Dr Weissman felt it would be a good idea.

[23]           DCB pages 31-42.

42        On 26 February 2007,[24] he reported that the plaintiff was suffering a mild to moderate chronic Post-Traumatic Stress Disorder which was primary in origin, and a moderate chronic Adjustment Disorder with Depressed and Anxious Mood which was secondary in origin. He now felt that the secondary Adjustment Disorder was “at least equal to or outweighs” the primary condition. He again recommended some psychiatric or psychological treatment.

[24]           DCB pages 43-53.

43        In his report of 13 October 2009,[25] he noted that there had been no improvement in her psychiatric state. He felt that her conditions have “had a moderate impact on her day to day domestic, social, leisure, recreational and interpersonal functioning” and that they have also affected her vocational opportunities. He noted that she had obtained her driver’s licence. She told him she was working and had to move tables and mop floors, and that she found this very difficult but “she has to do it”. In a supplementary report dated 1 April 2010[26] Dr Weissman noted that he viewed the video surveillance taken on 8, 9 and 10 February 2010 and felt that nothing he saw was inconsistent with the diagnoses he made.

Radiology

[25]           DCB pages 54-63.

[26]           DCB pages 63.1-63.3.

44        MRI of the lumbar spine and left knee on 27 January 2010 was reported with the following conclusion:[27]

1. Unremarkable lumbar spine MRI with patent central canal and exit foramina.
2. Medical post-surgical change of the left knee.

3. No focal knee joint chondral abnormality.

[27]           PCB page 74(c).

Legal Principles

45        To fall within paragraph (a) of the definition of serious injury, the plaintiff must establish that she has suffered a serious long-term impairment of a body function.

46        Secondly, the plaintiff must establish that, as at the date of the hearing, the consequences of the physical injury, in terms of either or both of pecuniary disadvantage and pain and suffering, are both long-term and serious. The test for determining whether the consequences of an injury are serious 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’?[28]

[28]           Humphries v Poljak [1992] 2 VR 129, 140.

47        Some weight must be given, in considering whether the pain and suffering consequences of the plaintiff’s impairment are “at least very considerable” to the adverb “very”.[29]

[29] See TAC v Dennis, [1998] 1 VR 702,703 per Callaway JA

48         When dealing with an application under paragraph (a) of the definition of serious injury, the court must consider the consequential psychological effects of a physical injury.[30]

[30]           Richards v Wylie [2000] VSCA 50 [17] (Winneke P), [28] (Chernov JA).

49        Assessment of the consequences for the plaintiff requires comparison of her position before and after the transport accident. The seriousness of the impairment is to be assessed by the Court and is not determined by the perceptions of the plaintiff or of doctors.[31]

[31] Ibid. 137; Ingram v Ingram [1996] 2 VR 435 at 438-439, per Callaway JA.

50        A stoic plaintiff who has been prepared to put up with her pain and suffering and get on with business as best she can should not be treated less favourably than another who, being of less strength of character, simply resigns himself to his injury.[32]

[32]           Dwyer v Calco v Timbers (No. 2) [2008] VSCA 260, per Nettle, J at [3].

51        The endurance of permanent daily pain requiring frequent medication must, according to ordinary human experience, raise a real prospect of very serious consequence.[33]

Findings and Reasons

[33]           Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267.

52        There is no consensus in the orthopaedic reports concerning the diagnosis of the plaintiff’s left knee and low back symptoms and the long-term prognosis in relation to them. The treating surgeons, Mr Goldwasser (in 1999) and Mr O’Sullivan (in 2002), felt that she should suffer no long-term difficulties in the knee or back. Mr Dickens felt (in 2001) that the back pain was not accident- related, while Mr Dooley felt (in 2009) that there was no physical explanation for her ongoing symptoms. However, Mr Westh (in 2006) felt there was a minor permanent impairment of the thoraco-lumbar spine but no permanent impairment of the left knee. On the other hand, Mr Dooley (in 2009) felt that there was no permanent lumbar spine impairment but a small permanent impairment for loss of flexion of the left knee. Only Mr Schofield (in 2006 and 2010) found accident-related post traumatic degenerative change affecting the lumbo-sacral disc and post traumatic chondromalacia patelle in the left knee. There was general agreement (from Dr Boules, Mr Westh, Mr Schofield, Mr Dooley and Mr Kaplan) that her physical condition did not prevent her from working full-time in a non-physical occupation.

53        On the other hand, there was consensus between the two examining psychiatrists in 2009 that the plaintiff continued to suffer from an Adjustment Disorder with depressed and anxious mood. Dr Kaplan felt that two-thirds of this impairment was secondary to the chronic pain flowing from her physical injuries. In 2005, Dr Weissman felt that the primary psychiatric condition (Post-Traumatic Stress Disorder) outweighed the Adjustment Disorder. By 2007, however, that the secondary Adjustment Disorder was “at least equal to or outweighs” the primary condition.

54        I consider the weight of the medical evidence to be to the effect that as a result of the transport accident the plaintiff has suffered a permanent impairment of the left knee (in the form of post-traumatic chondromalacia) and a permanent impairment of the lumbo-sacral spine (by way of an aggravation of degenerative changes affecting the lumbo-sacral disc). These cannot be aggregated for the purposes of this application. However, as a result of each of the chronic left knee and lumbar spine conditions, taken alone, the plaintiff has suffered a secondary psychiatric condition in the nature of an Adjustment Disorder with anxious and depressed mood. The psychological sequelae of each of the impairments must be considered in conjunction with each impairment.

55        I found the plaintiff to be a relatively straightforward witness. She was cross- examined at length. Some of the credit issues raised by the defendant, such as the confusion in relation to the risk of radiation from MRI, or the slightly different accounts of the length of her hospitalization, or her capacity for household tasks, or her evidence concerning her ability to swim, were trifling and I do not attach any significance to them. A number of other matters were characterised by the defendant as examples of exaggeration and inaccuracy, such her concession, after initial denials, that she did tell someone (her cousin) that she was having the time of her life in Egypt on holidays, and that she did tell Dr Weissman in 2005 that her life was “trashed” I note her concession that she did not tell many examining doctors of her trips to Egypt and of her enjoyment of them. However, I accept her explanation that she was not asked about these matters and that in any event her enjoyment of holidays did not change the fact that she perceived her daily life here as very badly affected by her injuries.

56        There were some further examples of evidence which bore the flavour of exaggeration, for example, telling Dr Weissman that a few years ago when her friends were partying, she was seeing doctors and having operations.[34] This comment could only have been a reference to a period up to 2000, when she was still only 14 years old. Another example is the complaint to doctors that she had to walk for ages to get to RMIT when in fact this was only until she realised there was a tram that went directly there from the railway station. A further example is her evidence that she was a good student before the accident and that her performance, and her prospects, deteriorated after the accident. In fact, she had repeated Grade 3 of primary school because of some academic difficulties and a recommendation had also been made earlier that she repeat Prep. Her results in the year after the accident were in fact better than those prior to the accident. Again, however, considering her age at the time of the accident and the fact that, on the psychiatric evidence before me, her developing self-image during adolescence has been affected by the injuries and their sequelae, I do not consider these matters detract from her overall credibility in relation to the pain and suffering consequences of her physical injuries.

[34]           DCB page 57.

57        I turn to her failure to tell Dr Boules in 2009 that she was working when she requested a certificate for Centrelink. Dr Boules said he did not know she was working at the time he issued the certificate, and, if he had, he would not have issued it. The plaintiff conceded that she did not recall telling him personally, but insisted that Dr Boules must have known she was working. In the context of the whole of the evidence in this case, I do not consider that this inconsistency undermines the plaintiff’s overall credibility in relation to the pain and suffering consequences of her physical injuries.

58        There was no attack on the plaintiff’s evidence concerning her symptoms and the medication she takes for them, nor was any issue taken with the psychiatric evidence concerning the secondary psychological sequelae of her physical injuries. Taking the evidence as a whole, I am satisfied that in terms of pain and suffering, the consequences of the injury to the lumbar spine or to the left knee, taken alone, when considered along with its psychological sequelae (an Adjustment Disorder), are at least “very considerable” when compared with other cases in the range of possible impairments. I am not so satisfied in terms of the pecuniary disadvantage flowing from the injury, because of the evidence that the plaintiff is fit to undertake full-time sedentary work, using her tertiary qualifications. However, on the authorities, the plaintiff must succeed in her application if she reaches the relevant threshold in relation either to the pain and suffering or the pecuniary disadvantage consequences of her injury.

Conclusion

59        For the above reasons, leave is granted to the plaintiff to issue proceedings for the recovery of damages in respect of the injuries suffered in the transport accident on 17 October 1997. I reserve the question of costs.