Karlsson v Transport Accident Commission

[2020] VCC 389

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

Kristina Karlsson	Plaintiff
v
Transport Accident Commission	Defendant

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JUDGE:

Judge Pillay

WHERE HELD:

Melbourne

DATE OF HEARING:

26 March 2020

DATE OF JUDGMENT:

8 April 2020

CASE MAY BE CITED AS:

MEDIUM NEUTRAL CITATION:

Karlsson v Transport Accident Commission

[2020] VCC 389

REASONS FOR JUDGMENT
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Subject:   Serious Injury Application

Catchwords:             Serious injury application – soft tissue cervical spine injury – whether consequences very considerable

Legislation Cited:     Transport Accident Act 1986
Judgment:                Application granted

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms M Pilipasidis with Mr T Nathanielsz	Slater & Gordon Lawyers
For the Defendant	Mr P Elliott QC with Ms S Manova	Solicitors to the Transport Accident Commission

HIS HONOUR:

1       Kristina Karlsson was involved in a motor vehicle accident on 22 October 2014. She claims that this accident has led to injury, the consequences of which should be considered serious when considered against the range of other cases to come before the court.

2       The parties agree on many components of Ms Karlsson’s case. It is useful to set out those points of agreement as, in the end, the debate between the parties is over very narrow ground.

3       The starting point is the agreement that on 22 October 2014, Ms Karlsson was involved in a motor vehicle accident which resulted in injury. Ms Karlsson describes that injury as a soft tissue cervical spine injury.[1] The defendant agrees with that.[2] While Ms Pilipasidis, who appeared with Mr Nathanielsz for Ms Karlsson, suggested that it would be further defined as a facet joint arthropathy at C2, C5-C7,[3] given the defendant’s concession as to soft tissue injury to the cervical spine, it is not necessary to go further. Both parties agree that such a cervical injury is a frank injury.[4] Both agree that such an injury is long-term.[5]

[1]Transcript (“T”) 6 Line (“L”) 8-9

[2]T 18 L 23-26

[3]T 14 L 8-10

[4]T 7 L7 and T 18 L 28

[5]T 19 L 18

4       The narrow ground being fought over then is whether the consequences of the soft tissue cervical spine injury are serious.[6] The defendant’s counsel identifies the central issue as being “range”.

[6]T 16 L 20

5       To determine this issue, a number of sub issues were raised by the defendant. These were:

1.    That Ms Karlsson had not given an accurate reflection of her limitations in her affidavit material or to doctors. It was submitted that if the canvas was properly painted it would reveal a picture of an active person who could not be considered seriously injured.

2.    When considering the question of consequences, Ms Karlsson had a number of other conditions causing consequences which needed to be stripped away namely:

a.    psychological conditions;

b.    Meniere’s disease;

c.    migraine and headaches; and

d.    lower back pain.

3.    When considering what Ms Karlsson has lost, it is also necessary to consider what she has retained and is able to do in order to assess the proper position in the range of cases her consequences fall into.

Is the affidavit material accurate?

6       Dealing with those matters in turn, I come first to a consideration of whether the affidavit material sworn by Ms Karlsson accurately depicts her circumstances. In making this argument, the defendant pointed to a number of inconsistencies between Ms Karlsson’s affidavit and the activity depicted in her Facebook posts.[7] The starting point was Ms Karlsson’s affidavit sworn in October 2018 at paragraph [40] where she deposed that she ‘… will try to stay close to home so I can easily get home to rest if a migraine comes on’.[8] It was suggested that this was inconsistent with her trips to Europe (Paris, London and Manchester) over the Christmas period of 2017-2018 and her trip to the Philippines with her husband in mid-2019. It was also suggested that Ms Karlsson had not disclosed the European trip in her affidavit of October 2018 at all. Ms Karlsson sought to answer this latter charge by suggesting she didn’t realise that the affidavit needed detailed information about all social events.[9] I did not find this answer convincing initially given that such affidavits are to set out the pain and suffering consequences in some detail,[10] however, when the affidavit is looked at it tends to support Ms Karlsson’s reasons. It is drawn in extremely broad brush strokes and descends to little detail. Furthermore, in re-examination Ms Karlsson made the point that prior to going to Europe her treating doctor gave her extended medication scripts, she took additional medication while on holiday and she took frequent rest days to cope with her symptoms while away.[11] I infer the same occurred in the Philippines, although she explained this trip was taken in an attempt to save her marriage, rather than for pleasure.[12] Similarly, none of this was in the affidavit material. It does suggest that she failed to put into her Affidavit detail which was both in her favour and potentially against her claim. In those circumstances I consider her explanation a reasonable one.

[7]The cross examination on this point begins at T 25 L 24

[8]Plaintiff’s Court Book (“PCB”) 12

[9]T 41 L 11-13

[10]See Transport Accident Act Common Law Protocols 2016 at 6.3.10

[11]T 76 L 4-13

[12]T 40 L 5-6

7       Ms Karlsson explained that her posts to Facebook depicted her visiting sites, seeing old friends and family and generally enjoying herself on Facebook. She made the point however that Facebook posting did not tell the full story.[13] Having closely observed Ms Karlsson in cross examination and considered the material as a whole, I accept that characterisation of the Facebook posts. I find that she did not disclose the overseas trips as this was not in keeping with the manner in which the affidavit was drafted.[14]

[13]T 41 L 26-28

[14]This is not a practice to be encouraged.

8       Further, I find that while on her overseas trips she was required to take additional medications and rest days to cope with neck pain and migraine. Such were brought on by the cervical injury caused as a result of the motor vehicle accident.

Was the past medical history adequately disclosed?

9       Next, it was suggested that her recounting of her past medical history of migraine in her affidavits and to various doctors was limited so as to give the impression that migraines only became an issue for her after the motor vehicle accident.[15] In her affidavit of October 2018, she deposed at paragraph [13] to about one migraine per year and that she could go several years without a migraine at all.[16]

[15]See the report of Dr Firestone at Defendant’s Court Book (“DCB”) 24, which states ““prior to the accident [Ms Karlsson] would have suffered no more than five migraines”.

[16]PCB 8

10      Ms Karlsson accepted that her affidavit evidence depicting her history of migraines was an estimate.[17] When regard is had to the history of such migraines from her teens and then over the years it is understandably hard for such detail to be given with any real precision. The best assessment seems to me that of Ms Pilipasidis who described Ms Karlsson as having sporadic ‘clusters’ of migraines.[18]

[17]T 52 L 26-31

[18]T 83 L8; T 110 L 10

11      She further noted that Ms Karlsson could well have periods of time where no migraines were recorded at all. That seems borne out when regard is had to the treating doctor notes and the medication lists from the Blackburn Clinic.   Mr Elliott QC, who appeared with Ms Manova for the defendant, put that the notes of the Blackburn Clinic showed on 21 June 2012 a recording of Digesic for migraines.[19] However, that is consistent with her affidavit evidence and it seems to take the defendant no further. The defendant broadened its attack to argue that Ms Karlsson, prior to the motor vehicle accident, was suffering from significant headaches.[20] Ms Karlsson was adamant that migraines and headaches are very different and that her doctors treated them as such.[21]  I accept Ms Karlsson’s evidence on this point. So much can also be inferred from the way the migraines are specifically noted and treated, as opposed to headaches, in the doctors’ records. In summation, I find Ms Karlsson suffered from migraines prior to the motor vehicle accident, possibly once per year that also specifically occurred in a cluster around 2007 and 2008, but also at times not occurring for years prior to the motor vehicle accident.

[19]DCB 213

[20]T 64 L 19

[21]T 64-65

12      The parties agree that prior to the motor vehicle accident Ms Karlsson also suffered intermittent neck pain for which she on occasion sought treatment.[22]

[22]T 70 L 27

13      Having made those central findings in respect of the main attacks to Ms Karlsson’s claim, I find Ms Karlsson’s affidavit material gives a substantially accurate picture of the impact that the accepted cervical injury has had on her life.

14      I turn then to consider the other conditions which Ms Karlsson suffered from prior to the motor vehicle accident, being episodes of anxiety, depression, Meniere’s disease, lower back pain and headaches. When considering each of these matters, I note that Ms Karlsson disclosed them in her affidavit material.[23] Further she was candid about their ongoing effects.[24]

[23]PCB 7-8

[24]Meniere’s disease at T 83 L 24 and PCB 8 paragraph [14]; depression at PCB 7 paragraph [9]; lower back pain at PCB 8 paragraph [10] and 9 paragraph [21]

15      Her lower back pain required Nurofen Plus and Panadeine Forte, but the point made by her Counsel was that after the motor vehicle accident the strength of these pain relieving medications for her cervical neck pain increased.[25] Much was made of the fact Ms Karlsson had a codeine addiction prior to the motor vehicle accident. But when examined, the records do not reveal a codeine prescription in 2014. Ms Karlsson also gave evidence that she was weaned from codeine in the months well prior to the motor vehicle accident in any event. In those circumstances I find that by reason of the motor vehicle accident her resultant neck pain was significantly worse. The pain was so initially severe as to require scheduled medications such as Fentanyl, Targin and Norspan. Thereafter the pain reduced to a level which still required treatment by Mr Weekes, a pain specialist, in mid-2019. He noted that she was taking Nurofen Plus 6 times per day and Panadeine Forte 4 times per day and had a pain score of 6/10 with migraines.[26] There is no suggestion that prior to the motor vehicle accident she was on these medications at this level. In fact, the evidence suggests that prior to the motor vehicle accident she was taking very limited pain relieving medication.  She had weaned off all codeine medications and the Blackburn Clinic medication list suggests that the only pain medication tablets in 2014, prior to the motor vehicle accident, were Endone twice and Oxycontin once in June and July.[27]

[25]T 106 L 5-13, detailing that Ms Karlsson was prescribed NORSPAN patches, Endone, Targin and Fentanyl patches.

[26]PCB 25

[27]DCB 80

16      Mr Weekes suggested she wean off the codeine based medication, given past addiction, and her latest affidavit suggests that she has done so successfully. However, she has attempted to replace such medication with Lyrica. She gave evidence that this has not been entirely successful.[28] I assume from this that her pain is constant, at 6/10 per day and requires medication which still does not keep the pain entirely at bay. In addition, Ms Karlsson seeks chiropractic treatment, regularly once per fortnight, but she says it provides only temporary relief for a few days.[29]

[28]T 24 L 2-3

[29]T 73 L 6-10

17      I consider such a history over the last five years to be significant in respect of the pain consequences. The frequency and intensity of pain are considerable. The treatment regime of strong medication and ongoing consistent treatment also is clearly substantial.

18      Aside from that cervicogenic pain, Ms Karlsson experiences migraines. Since the motor vehicle accident this has become weekly to fortnightly. It causes her to lose work and modify her holidays, as noted above.[30]

[30]See report of Mr Roberts at PCB 53 who notes the exacerbation of migraine but that is now well controlled, and Dr Cooke at PCB 26 and Dr Davis at DCB 19.

19      These are very significant consequences I consider.

20       The defendant noted that since the motor vehicle accident Ms Karlsson has successfully studied, qualified as a primary school teacher and commenced work at the Karoo primary school full-time. It is clear however that such work occurs in a situation where Ms Karlsson is taking medication (daily until recently and now Lyrica) and losing time regularly due to migraines. She is clearly a stoical person doing her best to improve her education and work prospects. In addition, she cares for two teenage children. She should not be penalised for her stoicism.

21      I accept her evidence as to consequences as set out in her affidavit, and I accept that these consequences flow from her cervical spine injury.

22      While she has retained the ability to work, holiday and run her house, such activities are significantly compromised by - primarily - her pain and migraines.

23 I consider the extent of such compromise, the fact of her pain consequences and migraines satisfies the necessary threshold to consider her injury a serious injury within the meaning of section 93 of the Transport Accident Act 1986 (Vic).

24      I will grant Ms Karlsson a serious injury certificate and hear the parties on the question of costs.