Kassiotis v TAC
[2019] VCC 2116
•18 December 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-01800
| DIANE KASSIOTIS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 and 12 November 2019 | |
DATE OF JUDGMENT: | 18 December 2019 | |
CASE MAY BE CITED AS: | Kassiotis v TAC | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2116 | |
REASONS FOR JUDGMENT
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Catchwords: Transport Accident Act 1986 – three car motor vehicle accident – injury primarily to the lower back – paragraph (a) of definition of serious injury – Richards v Wylie (2001) 1 VR 79 – whether back symptoms related to accident – whether burden of proof satisfied – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Valiotis with Mr D O’Brien | Zaparas Lawyers |
| For the Defendant | Mr J Ruskin QC with Mr A Anderson | Solicitor to the Transport Accident Commission |
HIS HONOUR:
General background
1 This matter comes before me by way of an application pursuant to s93(4)(d) of the Transport Accident Act 1986, (hereinafter referred to as “the Act”). In bringing her application, the plaintiff relies upon paragraph (a) of the definition of “serious injury” found in s93(17) of the Act. Insofar as any psychological or psychiatric consequences of the injury are concerned, the plaintiff does not rely specifically upon paragraph (c) of the definition. However, I appreciate that such matters can be taken into account in the way employed in Richards and Anor v Wylie (2000) 1 VR 79.
2 In essence, the plaintiff relies upon injuries sustained in a motor vehicle accident which occurred on 7 February 2013, when the vehicle which she was driving was struck on the passenger side by another vehicle, causing the plaintiff’s vehicle to spin and hit a car on the opposite side of the road. This shall hereinafter be referred to as “the accident”. There was no challenge in relation to the occurrence or the nature of the accident. The injury relied upon is principally one to the lower back, although there is an associated neck issue. I would refer to Transcript (hereinafter referred to as “T”) 2. The injury to which reference has been made shall hereinafter be referred to as “the injury”.
3 Mr J Valiotis with Mr D O’Brien of counsel appeared on behalf of the plaintiff. Mr J Ruskin QC with Mr A Anderson of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of two affidavits as being true and correct, and was cross-examined. Oral evidence was also given by Ms Eva Kallinikos, a cousin of the plaintiff and Mrs Thoula Kassiotis, the plaintiff’s mother. Each adopted an affidavit as being true and correct and was cross-examined. The remainder of the evidence was documentary in nature and tendered either by consent or without opposition.
Factual background
(a)The plaintiff’s general background
4 The plaintiff is aged 32 years, she having been born in 1987. She completed secondary education and then obtained a Bachelor of Arts (Psychology) at Deakin University and a Diploma of Education. She then worked for the State Education Department, teaching at primary schools, before undertaking similar work at a Coptic Orthodox College.
5 In April 2013, she went to London, where she taught for approximately three months. She then returned to Victoria and has worked as a primary school teacher with the State Education Department thereafter. She continues in such employment. She works full-time and it is not asserted that, as a result of the accident, she has suffered a decrease in earning capacity. She is not married.
(b) The plaintiff as a witness
6 I found the plaintiff to be a straightforward and honest witness who did her best to answer questions accurately. I note that Dr Brendan Hayman, consultant psychiatrist, who examined the plaintiff at the request of her solicitors, recorded that “She told her story in what appeared an honest and forthright fashion”. Mr Gary Speck, orthopaedic surgeon, who examined the plaintiff at the request of the defendant, described her as being cooperative on examination. In short, I found the plaintiff to be a frank, straightforward witness, who at times made concessions that were against her own interests.
(c) The state of the plaintiff’s health prior to the accident
7 Whilst the plaintiff had little recollection of having had any prior back problems of note, when cross-examined she was able to recall an incident some 10 years prior to the accident. She had been jumping up and down in the lounge room of her house and had some back symptoms. She was not quite 16 years of age at the time. I would refer to T14 and following pages. The plaintiff recalled being referred to a chiropractor and being given a heat pack and some Nurofen. She thought that the back problem was not an ongoing issue. She continued to play sports and it did not affect her daily life.
8 It was put to the plaintiff that, on 30 December 2005, she had seen her doctor in Burwood because of a low back strain and she had some Voltaren. She was uncertain concerning this, but would not quarrel with the medical records.
9 Dr Yang, the plaintiff’s treating general practitioner at the time, noted longstanding lower back pain, but the plaintiff had no recollection of it affecting her life in the way in which she is now affected. She could recall playing all her sports. She did not argue with the proposition that she had seen a physiotherapist in 2006, but had no recollection of this. The plaintiff speculated that it may have been that her mother advised her to see someone. If the physiotherapist had noted in 2006 that the plaintiff had intermittent low back pain that worsened periodically and that x-rays showed scoliosis, she stated that she would not quarrel with such a proposition – see T19. Her recollection of these matters was close to non-existent, but the plaintiff did not argue with recorded entries that were put to her.
10 In relation to prior psychological or psychiatric problems, these having the potential to be relevant pursuant to Richards v Wylie, the plaintiff has sworn in her initial affidavit that, in 2010, she had hallucinations in the context of a problem with a boyfriend. She was on medication for three months and saw a psychiatrist. The relationship with the boyfriend subsequently broke-up in early 2012 (or it may have been 2011 – see T21), and she has had no problems since. It would appear that the plaintiff had also received counselling in the context of a poor relationship. This would appear to have been approximately seven years prior to the accident, and her issues in that regard resolved.
11 The plaintiff agreed that, following the psychotic episode in approximately 2011, she was taking medication called Risperdal for three or four months, and said that she had not had any other psychotic episodes. She has had no treatment from a psychologist or a psychiatrist in relation to any symptoms arising out of the accident, and has not been taking any psychotropic medication.
(d) The injury, its treatment and diagnosis
12 As stated, the accident occurred on 7 February 2013. It has already been described. The immediate source of the plaintiff’s pain was in her chest and mid-back. As the plaintiff believed that she was suffering only from bruising, she did not seek immediate medical attention, although she rang a nurse approximately a week later. She was struggling with her breathing.
13 A CT scan of the plaintiff’s chest was arranged and this revealed a fractured sternum. Apparently, the plaintiff saw a specialist, Mr Adrian Pick, on 22 February 2013. However, he said that there was no need for surgery. The plaintiff indicated that she still has a dent in the middle of her chest – see T25.
14 The plaintiff stated that the accident and the early treatment to which reference has been made occurred shortly before she went to London for employment purposes. In fact, she departed for London on 23 April 2013. In her earlier affidavit of 30 January 2019, the plaintiff swore that the flight caused her a lot of back pain, involving both her middle and lower back. She also gave evidence, as did her mother, that her mother had put some tape on her lower back before she went on the plane to London. Whilst it was pointed out to her that this particular part of her history had not been given to medical examiners, the plaintiff stated that there was a lot going on in her life at that time, including whooping cough and Post-Traumatic Stress Disorder. She maintains that the whooping cough was affecting her on the flight to London. She disagreed with the proposition that her back pain did not really start until the end of 2013. She also disagreed with the proposition that the coughing and the back pain came on together, stating that she had the back pain and then the coughing made it much worse – see T29.
15 I would add that the plaintiff’s mother was clear that she could remember taping the plaintiff’s back up before she went on the plane. She also recalled the plaintiff’s breathing problems. I would refer to T46.
16 Certainly, the plaintiff was complaining of severe lower back pain whilst in London in June 2013. In a message home on 15 June 2013, she referred to waking up coughing with bad back pain. On 23 June, she messaged that her back pain was unbearable and that every morning she woke up coughing, something which she did not want to do because “it kills my lower back”. The plaintiff returned to Australia in July 2013.
17 As a result of her ongoing back pain, the plaintiff went to Pilates classes in Camberwell, attending weekly for about 18 months. She also attended an osteopath. On approximately 9 May 2014, the plaintiff had a CT scan of the lower back, this being on referral from Dr Sha Liao, who is apparently based at Burwood Family Health. In any event, the conclusion of the radiologist was that there was moderately severe chronic L5-S1 disc degenerative narrowing without any nerve root compression. Dr Elaxi Modi, from the same clinic as Dr Liao, referred the plaintiff to Mr John Cunningham, orthopaedic surgeon, and an MRI was organised and performed on 16 June 2014. The comment of the radiologist was that, at L5-S1 there was moderate disc degeneration with marked endplate oedema. There was a circumferential disc bulge with mild left foraminal narrowing. There was no definite neural impingement and no spinal canal narrowing.
18 Continuing to deal with radiology, the plaintiff on 8 May 2015 underwent an x‑ray of the lumbosacral spine area. The radiologist observed that there were five lumbar-type vertebrae with loss of normal lumbar lordosis most likely the result of muscular spasm. A further x-ray of the full spine and pelvis was performed on 27 September 2016, following which the radiologist observed that there was a moderate kyphosis replacing the normal cervical lordosis. At all levels the discs were well-preserved.
19 As stated, the MRI of 16 June 2014 had been requested by Mr John Cunningham, orthopaedic spine surgeon, and it is apparent that the plaintiff had been referred to him by Dr Modi. Mr Cunningham reported to that doctor on 27 May 2014. Mr Cunningham had taken a history of the accident and the diagnosis of the fractured sternum. However, he also recorded that, ever since the accident, the plaintiff had noticed a slight amount of pain which had slowly but progressively deteriorated and was now interfering with activities which the plaintiff wished to do. The pain was always in in the middle of the lower back. There was no sciatica, but the pain was worse if the plaintiff jarred her back or sneezed.
20 The report of Mr Cunningham predated the MRI, but, with some accuracy, he anticipated the result. I have referred to that above. Mr Cunningham had been able to observe the CT scan and the loss of disc height on either side of the L5-S1 disc space. He observed that, if the rest of the disc spaces looked normal, he could say with some confidence that the plaintiff’s symptoms were coming from the L5-S1 disc space. He also thought that, if the pain proved recalcitrant to non-operative treatment, the plaintiff would be an excellent candidate for an L5-S1 anterior lumbar interbody fusion.
21 The plaintiff did not go down that path. As she has sworn in her initial affidavit, she was apprehensive concerning surgery. She underwent further physiotherapy treatment.
22 The plaintiff saw Mr Chris Xenos, adult and paediatric neurosurgeon, upon referral from Dr Reuben Phiri of Burwood Health Care, reporting back to that doctor on 1 July 2014. He noted that the plaintiff had tried massage, physiotherapy and a lot of Pilates treatment, but continued to have problems. Back pain was her biggest complaint. Unfortunately, the plaintiff had needed to sacrifice and stop a lot of her activities. Her biggest complaint was of mechanical and muscular back pain and this was at its worst in the early morning. Leg pain was not a big issue.
23 Having reviewed the MRI (presumably that of 16 June 2014), Mr Xenos expressed the opinion that the key finding was of a degenerate collapse at the L5-S1 disc space with no features of instability. There was possibly some mild left lateral recess and foraminal narrowing that may be catching the L5 nerve, but certainly there was no big disc prolapse. Surgery such as a laminectomy and discectomy would be more appropriate for the alleviation of leg pain. Mr Xenos suggested that the plaintiff continue to exhaust conservative measures, even if this meant a formal referral to a pain management and rehabilitation program. Other interventions, such as epidural and facet joint injections, could be tried.
24 Apparently, the plaintiff asked as to whether a fusion would help. Mr Xenos expressed the view that, given that there were no features of instability or neurology, and given that the problem was back pain alone, surgery such as a fusion was not indicated.
25 Having seen Mr Xenos on 1 July 2014, it is apparent that the plaintiff saw Mr Craig Timms, neurosurgeon, on 13 August 2014, this being on referral from Dr Lorna Hargreaves of the Dandenong Super Clinic. To Mr Timms the plaintiff was complaining of back problems limiting her ability to carry out her normal activities. The history given was that these problems had come on since the motor vehicle accident of February 2013. Mr Timms noted that it must have been a medium to high impact involved, as the plaintiff suffered a fractured sternum. He reported to Dr Hargreaves that the plaintiff’s symptoms were coming from what he described as a significant disc injury at L5-S1, although there was not major neural compression. He recommended essentially conservative measures, including swimming, and the use of simple analgesics and topical anti-inflammatories. In the event of a prolonged and bad flare-up, an epidural cortisone injection at L5-S1 may be of benefit. He advised against any surgery, because this would involve major reconstructive surgery of the spine in the form of a lumbar fusion at L5-S1. Mr Timms warned that this would be a fairly major undertaking. At this time, he thought that non-operative measures were likely to provide the safest benefits.
26 Professor Richard Bittar reported to the plaintiff’s solicitors on 24 November 2018. It would appear that he first saw the plaintiff on referral from Dr Isaac Olaniyi of the Mentone Medical Centre on 31 August 2015. The plaintiff complained of lower back pain and some pins and needles and numbness in both legs, but these were not associated with any significant pain. The history which she gave to Professor Bittar was that she suffered a sternal fracture and had significant pain in that area for a number of months, but as those symptoms settled, the plaintiff started to notice lower back pain and associated leg symptoms.
27 When Professor Bittar initially reviewed the plaintiff, her main concern was lower back pain. She was continuing with her teaching work. She was not taking any medications due to side effects of vomiting. The diagnosis of Professor Bittar was of discogenic lower back pain and leg pain. He considered the accident to be the dominant contributing factor. It was most likely that the sternal fracture was a distracting injury. He had referred the plaintiff to Dr Gavin Weekes, who is a pain specialist.
28 Professor Bittar next reviewed the plaintiff on 29 March 2017. She was continuing to complain of lower back pain radiating intermittently into her legs. She had received some benefit from sacroiliac joint blocks and a degree of benefit from a caudal epidural injection. However, her back pain remained intractable.
29 When reviewed again on 14 July 2017, the plaintiff’s condition had not improved and she was having regular Pilates in an endeavour to control her pain. Spinal surgery in the form of an L5-S1 anterior lumbar interbody fusion with a supplementary posterior stabilisation procedure was discussed, and the plaintiff expressed a desire to proceed. However, it would seem that WorkCover approval was not obtained.
30 In the absence of such surgery, Professor Bittar considered the prognosis to be poor. He thought that the plaintiff would almost certainly continue to suffer from significant pain and disability into the foreseeable future. He commented upon the fact that the plaintiff had been very determined to remain at work and had done so despite her significant ongoing pain. He expected that various aspects of her life would be adversely impacted.
31 Professor Bittar also thought that the plaintiff had exhausted all reasonable conservative treatment options. He considered that the plaintiff’s condition was stable and that the injuries sustained as a result of the accident were likely to impact on her quality of life, lifestyle and treatment requirements into the foreseeable future. It was possible that the plaintiff may become incapacitated for work.
32 Professor Bittar provided a supplementary report on 19 October 2019. He reviewed a large amount of material, essentially medical reports, which had been forwarded to him. Included in this was a report of 4 October 2019 from Mr Gary Speck, who had examined the plaintiff at the request of the defendant. Having reviewed all the material, Professor Bittar stated that there was no reason for him to alter the opinions expressed in his report of 24 November 2018.
33 In addition, Professor Bittar stated that it was clear that the plaintiff did have a pre-existing lumbar spine condition which caused intermittent back pain without any leg symptoms, and had been treated at one stage with chiropractic, in addition to the occasional visit to her general practitioner. It remained his opinion that her ongoing lower back symptoms and disability are significantly related to the accident.
34 As stated, the plaintiff was also seen by Dr Gavin Weekes, pain specialist, who provided a report to Dr Modi at Burwood Health Care on 14 December 2016. Dr Weekes had reviewed the plaintiff on that day, following a caudal epidural steroid injection. This was of short-term benefit. Dr Weekes noted that the plaintiff had undergone a CT/SPECT lumbar spine, which had revealed increased tracer uptake in the L5-S1 disc. Medial branch blocks and bilateral sacroiliac joint blocks had all been negative in terms of diagnostic endeavours. Dr Weekes considered it worthwhile sending the plaintiff back to Professor Bittar for an opinion concerning surgery. Effectively, Dr Weekes was reserving judgment for another few months until he saw how the plaintiff progressed in the first part of the upcoming year. He also referred the plaintiff to an exercise physiologist. I note that Dr Weekes is at the same address as Professor Bittar, and both would appear to be associated with Precision Brain, Spine & Pain Centre.
35 A report from Dr Anthony Yeuong, who has a number of qualifications but essentially would appear to be a chiropractor, was also placed in evidence. The report is dated 5 September 2018. It states that the plaintiff presented on 27 September 2016 with a chronically acute L5-S1 joint dysfunction complicated by myospasm of limbs. Palpation revealed joint dysfunctions in the L5-S1 facet joints and bilateral S1 joints. An x-ray was recommended. Weekly treatments were proposed, these to consist of remedial massage, low force adjustments and dietary management.
36 Also placed in evidence by the plaintiff was a quite lengthy report from Mr Nathan Powyer, physiotherapist, who has treated her. As he had not seen her prior to 2017, he made no observations as to causation. He observed that the plaintiff had L5/S1 disc pathology for an extended period. The symptoms emanating from her lumbosacral spine were consistent with both disc and facet pathology. He commented that she had done “a great job of managing her symptoms” and was seldom prevented from working. He also referred to her determination to remain strong and active. He commented that she regularly attended work when in pain. However, whilst her ability to work may be impacted on occasions, her ability to carry out her life and live the way that she would have prior to the accident had almost certainly been affected to a far greater degree. Mr Powyer described various limitations upon the plaintiff’s activities, despite her regular attendances at a gym and her Pilates. He stated that she cannot now simply live her life freely from day to day. He considered the disc damage to be irreparable. He thought that her degree of disability and the intensity of her symptoms would increase gradually over time. He suggested that she avoid surgical input or more invasive procedures and referred to the need for episodic input from a physiotherapist. The injuries suffered by her are likely to deteriorate slowly over time.
37 The plaintiff has also been seen for medico-legal purposes. Dr Ales Aliashkevich, neurosurgeon and spinal surgeon, reported both to the defendant and to the plaintiff’s solicitors on 19 November 2018. He took a history that, whilst the plaintiff could recall having some scans of her back during the time that she was at high school, as she appeared to have a history of childhood scoliosis, she denied having any significant problems with her lower back prior to the accident. Dr Aliashkevich obtained a history of the fracture of the sternum and the fact that back pain started gradually deteriorating after a few months, becoming “really bad” after approximately six months.
38 Amongst other matters, Dr Aliashkevich obtained a history of the treatment by Professor Bittar, the recommendation of an L5-S1 lumbar fusion, and the referral to Dr Weekes. Dr Aliashkevich also viewed the available radiology. The diagnosis of Dr Aliashkevich was of chronic mechanical and arthritic low back pain with L5-S1 intervertebral disc degeneration and increased metabolic uptake in the L5-S1 intervertebral disc. He considered the accident to be a contributing factor to the aggravation of the pre-existing degenerative condition of the lumbar spine.
39 Dr Aliashkevich also agreed with the view of Professor Bittar that the sternal fracture could have masked spinal symptoms. He noted that the plaintiff was continuing to engage in full-time employment as a teacher, but placed various restrictions upon the type of work that she could otherwise do. He also noted a considerable number of restrictions in relation to her everyday life, sporting activity, sleeping and the like. He recommended that the plaintiff have ongoing treatment with a pain specialist, as well as having treatment such as physiotherapy, occupational therapy, myotherapy and the like.
40 Whilst consideration of an anterior lumbar interbody fusion would be appropriate if there was a significant exacerbation of the plaintiff’s symptoms, Dr Aliashkevich thought that ongoing conservative treatment would be justified at this stage. He considered her condition to have stabilised essentially and performed an assessment of permanent impairment in accordance with the Guides. He did not believe that the plaintiff would be able to achieve full function or recovery in the foreseeable future and considered the prognosis to be guarded. He also thought that the plaintiff’s injuries were essentially stabilised (which is consistent with his preparedness to make an assessment of permanent impairment).
41 Dr Aliashkevich saw the plaintiff again on 20 August 2019. Some additional material, such as reports from Mr Cunningham, Mr Xenos, Mr Timms and others, had been forwarded to him on this occasion. He observed that the provided documentation in relation to short non-specific back pain episodes in 2003 and 2005 was consistent with the history outlined in his initial report. He considered that the distribution of the right dominant back and buttocks and hip pain which the plaintiff experienced a few months after the accident appeared to be different from the described episodes in 2003 and 2005. Given the significant impact of the accident and the fact that it produced a sternal fracture, Dr Aliashkevich disagreed with the views of Mr Speck that the plaintiff had a constitutional condition not related to her transport accident. He remained of the opinion that the accident was a materially contributing factor to a significant aggravation of the pre‑existing degenerative condition of the lumbar spine. He continued to agree with the proposition that the sternal fracture could have masked spinal symptoms.
42 The defendant arranged for the plaintiff to be seen by Dr Timothy Wood, sport and exercise medicine physician, on 14 March 2018. I note that the history taken by Dr Wood was that, after the accident, the plaintiff was aware of chest, neck and lower back pain. He recorded that she rated her typical back pain as being 5/10, but, when it flared, 7/10. He thought that the prognosis was positive. Dr Wood was also of the view that the plaintiff’s low back pain appeared to be concordant anatomically with her imagining in relation to single level disc disease at L5/S1 of a moderate to severe nature. He expressed a view of the desirability of some specific pain literacy education. He also thought that the outcome of spinal fusion would be poor. A considerable part of the report of Dr Wood seems to be directed towards the desirability of surgery, the necessity for fortnightly physiotherapy (commenting upon it being funded by the defendant) and the like. Indeed, his ultimate consideration relates to whether spinal fusion surgery is appropriate or necessary, he responding in the negative to such suggestions.
43 Mr Gary Speck, orthopaedic surgeon, saw the plaintiff at the request of the defendant on 4 September 2019, reporting one month later. I note that, in the history taken by him, the plaintiff recounted that, whilst she was initially aware of soreness in the chest and difficulty breathing, within two months of the accident she noted that she was also getting back pain. She also referred to having whooping cough. Mr Speck took a history of various treatments undertaken by the plaintiff, also noting that there were intermittent flare ups in the back pain a couple of times a month, with the background of a more manageable constant pain. She complained of episodic symptoms in the neck a couple of times per month. These could last for a couple of days or more. The plaintiff also complained of extra pain when rising from sitting and sometimes while sitting itself. She had central low back pain and, when standing for more than half an hour, this was especially troublesome. She had not continued with squash or soccer and, while she continued to exercise, she avoided the heavy weights which she had previously lifted. She also complained that bending and twisting especially irritated her back, particularly after the event. Mr Speck was of the view that there had been pre‑existing degenerative change in the lumbar spine. He considered the plaintiff to have a constitutional condition affecting the lumbosacral intervertebral disc, this providing variable symptoms not related to the accident. He considered the prognosis to be excellent (there is some scope for ambiguity – this may be in relation to injuries such as that to the chest or to all injuries suffered in the accident).
44 Mr Speck provided a supplementary report of 22 October 2019. It would appear that he did not see the plaintiff again. Essentially he was asked to direct his attention to the report of Dr Aliashkevich of 20 August 2019. He was asked as to whether that caused him to alter his opinion. The bottom line is that it did not. Mr Speck considered that the likely explanation for the onset of back pain was the whooping cough with coughing and sneezing.
45 In relation to causation and diagnosis, I prefer and accept the evidence on behalf of the plaintiff. In relation to causation, I accept that the plaintiff’s complaints in the period immediately following the accident centred upon her sternum and the injury thereto. The scenario of the spinal symptoms being masked by the sternal injury, a view espoused by Dr Aliashkevich and Professor Bittar, seems to me to be a plausible and likely one. I accept the plaintiff’s evidence as contained in her second affidavit that, as her sternal pain improved, she noticed that she was suffering from increased back pain. Her back pain became more pronounced while she was in London between 23 April 2013 and July 2013. I appreciate that the plaintiff has sworn that her memory for dates is poor, but those dates would seem to be comparatively clear. I accept the evidence of the plaintiff’s mother, also an impressive witness, as to the plaintiff making some complaint of back pain prior to the flight to Europe. She could recall taping the plaintiff’s back up in relation to the flight – see T46. The plaintiff denied that her back pain started towards the end of 2013, also referring to the fact that her mother had helped put some tape on the plaintiff’s lower back before she went on the plane – see T28. Certainly the plaintiff was complaining about back pain whilst she was in London, and that could not be described as being late in 2013. Messages sent to her mother by the plaintiff on 13 and 23 June 2013 contained complaints about worsening back pain. I would also point out that the history taken by Dr Wood, examining on behalf of the defendant on 14 March 2018, is that the plaintiff went home after the accident, but was aware of chest, neck and lower back pain afterwards. There is then a reference to the fact that 12 days later she noticed the deformity of her chest. I would point out that the examination by Dr Wood is the earliest medico-legal examination. In addition, Mr Cunningham, reporting on 27 May 2014 and when describing the plaintiff’s back pain, recorded that ever since the accident she had noticed a slight amount of pain, which had slowly but progressively deteriorated.
46 My conclusion is that I accept that the plaintiff’s back symptoms are related to and were brought on by the accident. I prefer and accept the opinion of Professor Bittar, who has treated the plaintiff, that the accident has been the dominant contributing factor in relation to the plaintiff’s discogenic lower back pain and her leg pain. Dr Aliashkevich is also of that opinion. I prefer this to the opinion of Mr Speck that the plaintiff had a constitutional condition and that the whooping cough was a more likely explanation for the onset of back pain. In any event, the plaintiff’s whooping cough seems to have developed in London and I accept that symptoms in the back had commenced prior to then.
47 The diagnosis which I prefer is again that of Professor Bittar, the treating neurosurgeon and spinal surgeon. His diagnosis is of injury to the L5/S1 intervertebral disc as a result of the accident. That diagnosis is essentially consistent with that of Mr Xenos, neurosurgeon, and that of Dr Aliashkevich, neurosurgeon and spinal surgeon. The latter observed that the accident was a materially contributing factor to a significant aggravation of the pre‑existing degenerative condition of the plaintiff’s lumbosacral spine. I prefer their views, which appear to be logical and in accordance with the plaintiff’s history, to those of Mr Speck, although he acknowledged the existence of L5/S1 degeneration.
48 I accept that the injury was principally the aggravation of a pre‑existing degenerative condition. The radiology and the opinions to which I have referred would confirm this. However, I also accept that, whilst the plaintiff had a history of some prior back complaints, these were comparatively insignificant. In the years prior to the accident, the plaintiff was leading a full and active life and was, as she has sworn, “addicted to exercise”. It would appear that she may not have seen a doctor in relation to low back pain for in excess of six years prior to the accident and even then her visits seem to have been infrequent – four in 3 ½ years between January 2003 and September 2006. The plaintiff seemed to have no clear recollection of having seen a doctor again in relation to her back prior to the accident, although there does not appear to be any clear record in this regard. There then appear to have been none. In short, I accept that the symptoms and restrictions from which the plaintiff now complains were essentially entirely brought on by and result from the accident.
49 I am also satisfied that the consequences of the injury are long term within the meaning of the Act. It is now approaching seven years since the accident and the plaintiff’s back pain and restrictions are ongoing. Professor Bittar described the plaintiff’s condition as being substantially stable and her anticipated period of pain and disability being indefinite. He also refers to her back pain as being fairly intractable. Her treating physiotherapist, Mr Powyer, has stated that the plaintiff is largely stable and that any meaningful deterioration will happen slowly over many years. According to him, the injuries stated by her to be due to her accident are not going to repair themselves and are likely to deteriorate slowly over time. Dr Aliashkevich described the situation as being that the plaintiff had some prognostic red flags and predictors of unfavourable long-term outcome. I would also point out that the question of permanence was not raised as an issue of importance either in opening or closing addresses on behalf of the defendant. In the circumstances, I am satisfied that the consequences of injury are long term and will persist for the foreseeable future.
50 There is no reliance upon paragraph (c) of the definition, but some consideration can be given to matters of a psychiatric or psychological nature in accordance with the decision in Richards v Wylie. In any event, I do not consider that they have any substantial part to play in this case. The plaintiff had seen psychologists on approximately five occasions prior to the accident and in the context of relationship difficulties. She found the time spent with them to be of no great benefit. Since the accident, she has not seen any mental health professional or been on any psychotropic medication. Dr Brendan Hayman, consultant psychiatrist, has seen the plaintiff at the request of her solicitors. In his more recent report of 4 September 2019, he has stated that the plaintiff continues to impress as a stoic and positive young woman. She has not had any psychological treatment since the accident and does not wish for any. She has a favourable prognosis. She has not developed any discernable psychiatric disorder and does not require any psychological treatment. She presented to Dr Hayman as a robust and stoic young woman. Bearing this in mind, and taking into account that there has been no other assessment of her performed by a psychologist or psychiatrist, it is apparent that any allowance made in respect of Richards v Wylie would be very small indeed.
Other developments since the injury
51 The plaintiff has remained in full time employment as a primary teacher. She continues to receive physiotherapy treatment for her lower back pain every three weeks. She also does Pilates twice a week and cross training at a gymnasium on a modified program. For approximately four weeks this year she went to Greece. She found the flights to be “pretty bad”, although the warmer weather in Greece was helpful. Her back condition has been worse since her return. In September 2018, she went to Bali for a holiday and found that, during the flight, she had to walk up and down the aisles frequently, take Nurofen, and wear a back brace.
Ruling
52 I am of the opinion that the plaintiff has discharged the burden of proof and is entitled to bring proceedings for pain and suffering damages. The applicable test as set out in Humphries & Anor v Poljak [1992] 2 VR 129 has been satisfied. I have come to that conclusion for the following reasons, which are not set out in order of importance of significance.
(a) As was said by Brooking JA in Palmer Tube Mills Aust Pty Ltd v Semi [1998] 4 VR 439 at [448]:
“Moreover, in ‘serious injury’ applications the credit of the applicant is of great importance”
This observation has been referred to more recently by the Court of Appeal in Papamanos v Commonwealth Bank of Australia [2014] VSCA 167 and in Haidar v Transport Accident Commission [2016] VSCA 182. As earlier stated, I found the plaintiff to be a frank, straightforward and honest witness. I accept her oral evidence and what was contained in her affidavits.
(b) In her affidavit of 30 January 2019, the plaintiff has sworn as to the fact that she has ongoing low back pain, with sharp pain several times a week, this making all movements painful. She has increased back pain with prolonged sitting and when getting to her feet after sitting or lying down. Sudden jarring of the back will cause more pain. Bending too far causes increased discomfort. The same is correct for stretching up and out. There is an increase in back pain if she stands in the one spot for more than a minute or two. On some occasions she wears a back brace. The morning is the worst time of the day for her back pain. As she told Dr Aliashkevich, she has low back pain which increases with activities.
(c) As was said in Tatiara Meat Company Pty Ltd v Kelso [2010] VSCA 12:
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
In the present case, the plaintiff has sworn that she takes over-the-counter type medication, such as Panadol, Nurofen or Voltaren, two to three times a week when her pain is worse. However, she has an intolerance in relation to codeine-based medication, which can cause vomiting. She uses heat packs, takes breaks whilst working in order to perform stretches, has very regular physiotherapy, and performs Pilates and cross training. I see no reason why the observation in Kelso set out above is not applicable to a person with limited or no tolerance of certain medications, but engages in very regular physiotherapy, Pilates exercise and the like.
(d)In her affidavit of 30 January 2019, the plaintiff has sworn that she usually finds it more difficult to get to sleep because of back pain. She wants to keep changing her position to try and improve the discomfort. She wakes several times during the night because of back pain and, when this happens, she does gentle stretching exercises before trying to get back to sleep. Several times a month she gets out of bed and walks around in an attempt to ease the pain. Dr Aliashkevich has recorded that the plaintiff wakes once or twice a night and has to change position due to stiffness in the lower back. In Hayden Engineering Pty Ltd v McKinnon [2010] VSCA 69, Maxwell P stated as follows:
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep.”
(e)The plaintiff has sworn in her more recent affidavit that she was in a relationship for a few months, but intimacy was painful. This is also a matter of importance.
(f)The consequences of the injury have impacted upon the plaintiff’s everyday life and her enjoyment of it. Prior to the accident, she enjoyed playing sport. She engaged in such activities as competition indoor soccer and squash. She has had to cease these activities since the accident because of her back condition. There has been an adverse effect upon her social life. She has encountered problems in relation to her employment as a teacher, these at times resulting in her becoming tearful. Physical activities involved in her employment, such as moving boxes of material, putting up displays in the classroom and the like cause worsening back pain which can last for days. I accept that, in general terms, her back injury has caused interference with her social, recreational, employment and domestic activities.
53 Bearing in mind all of the above, I find that the plaintiff has discharged the burden of proof. She has satisfied the requirements of the test set out in Humphries v Poljak.
Conclusion
54 The plaintiff is successful. She has discharged the burden of proof. Leave is granted to her to bring proceedings. I shall hear the parties as to any ancillary orders that are required.
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