Kelly-Edwards v TAC
[2011] VCC 964
•23 June 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-03671
| APRIL KELLY-EDWARDS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7, 8 and 9 June 2011 |
| DATE OF JUDGMENT: | 23 June 2011 |
| CASE MAY BE CITED AS: | Kelly-Edwards v TAC |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 964 |
REASONS FOR JUDGMENT
---
Catchwords: TRANSPORT ACCIDENT – Transport Accident Act 1986, Section 93 – serious injury – Richards v Wylie (2000) 1 VR 79 – Chronic Pain Syndrome – impairment of the spine.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Lewis SC with | Slater & Gordon |
| Mr N Dubrow | ||
| For the Defendant | Ms J Dixon SC with | Solicitor for the Transport |
| Mr R McNeill | Accident Commission | |
| HER HONOUR: |
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s.93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident (“the accident”) which occurred on 27 February 2008 (“the said date”).
2 Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied
that the injury is a serious injury.”
3 The definition of “serious injury” relied upon by the plaintiff is under s.93(17)(a) – “a serious long term impairment or loss of a body function”. The body function pursuant to (a) relied upon by the plaintiff is the spine.
4 The inquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
5 The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can of itself constitute or be the producer of the impairment of a body function: see Richards v Wylie (2000) 1 VR 79.
6 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”?: see Humphries v Poljak [1992] 2 VR 129, at 140-1.
7 In the alternative it was submitted that the plaintiff had a Chronic Pain Syndrome which was a severe psychiatric impairment pursuant to subsection (c).
8 The judgment of the Court of Appeal in Mobilio v Balliotis [1998] 3 VR 833 resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission (1995) 21 MVR 314, that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.
9 Winneke P, in Mobilio, agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of sub-s.(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)
10 A Chronic Pain Syndrome can result in impairment under subsection (c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a Chronic Pain Disorder which meets the “severe” criteria of a claim under definition (c) – per Ashley JA in Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227.
11 The plaintiff relied on two affidavits and gave viva voce evidence. She was cross-examined. A number of lay witnesses, Leonarda Granato, Janice Kelly- Edwards, and Ashlee Marie Tsakmakis were required for cross-examination. The defendant also required general practitioners, Dr Mohan and Dr Kardom, and medico-legal examiner and psychiatrist, Dr Serry, for cross-examination. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
12 The plaintiff was born on 31 October 1989 and is presently aged twenty one.
13 The plaintiff left school in 2006 prior to completing Year 11. She commenced Year 11 at St Monica’s High School before transferring to Lalor High School, and left before completing that year.
14 The plaintiff deposed that she developed self esteem issues and bulimia upon changing from St Monica’s to Lalor High School where she was treated badly by other students. She subsequently left Lalor High School and made a rapid recovery from those issues.
15 In cross-examination, the plaintiff agreed her attendance was poor in her latter days at St Monica’s and at Lalor. Her friend, Alexia, left St Monica’s in Year 10 and transferred to Lalor High School. As the plaintiff did not want to attend St Monica’s without Alexia, the plaintiff often stayed home from her school. The plaintiff’s parents knew this was the case and agreed to let her go to Lalor High School although there were some arguments in this regard.
16 The plaintiff regularly attended Lalor High School for a term and then started to have issues with other students who bullied her because of her appearance. This situation caused the plaintiff a lot of grief and unhappiness.
17 The plaintiff was cross-examined about a history given by her to Dr Serry that she was a good student and she was never bullied. The plaintiff explained she was a good student up to about Year 11 and she really did not have a hard time at St Monica’s. By saying she was never bullied, she meant she was not bullied for most of the time she was in high school. Being bullied would not have been something she would have been proud of.
18 The plaintiff agreed that she told Dr Serry she did not have a formal past medical history because she did not have any medical conditions which she understood to be ongoing medical problems.
19 The plaintiff could not remember an assault after which her left hand was x- rayed in July 2005. She could recall in February 2007 falling at home and hurting her left wrist.
20 In cross examination, the plaintiff agreed that she had panic attacks in Year 10 with associated chest tightness and worry. Dr Kadom gave her breathing exercises to help her cope with this problem. These panic attacks predated the overdose.
21 In March 2006, the plaintiff attended the Austin Hospital suffering from a virus that made her severely ill. She agreed it was an illness that involved headaches and pain at the back of her neck but she thought the neck pain may have been because she could not stop vomiting.
22 The plaintiff had bulimia in 2006 when she was being bullied. When she was younger, that condition had started as a way of losing weight. It has not recurred since the accident. The only time the plaintiff has vomited since that time has been because of neck pain.
23 The plaintiff agreed in November 2006 she took an overdose in Year 11 (“the overdose”) as a result of bullying at school. She was seen by the CAT Team, having been taken by ambulance to hospital. She had psychiatric assessments at that time.
24 The plaintiff attended the Austin Mental Health Service about three times after the overdose. The counsellors she saw there were quite happy with the plaintiff’s progress and the fact she was not at school. The plaintiff thought the issue was also dealt with satisfactorily at home as she was able to speak openly with her family.
25 Following the overdose, the plaintiff’s parents offered to pay for a pre- apprenticeship to enable her to “start doing something she really wanted to do to get back into the swing of things”.
26 The plaintiff did not think she had a psychiatric problem at that time and she had no problems in that regard now. She denied she was trying to minimise her pre-accident mental state when giving Dr Serry this history in 2009.
27 The plaintiff agreed she had headaches before the accident but not migraines. Her headaches before the accident did not involve vomiting.
28 The plaintiff could not recall attending her doctor in November 2007 complaining that it felt like her skull was being pushed in unless it was a time when she had the flu or something. She could not recall being referred for a CT scan of her brain at that time.
29 After leaving school, the plaintiff started a pre-apprenticeship course through NMIT. In April 2007, she commenced a three-year hairdressing apprenticeship at True Colours for Hair (“True Colours”) in Bundoora. The apprenticeship also involved a certain amount of work and study at trade school.
30 At the time of the accident, the plaintiff had completed nine months of a three year apprenticeship. She was working forty hours a week and was earning about $288.60 gross per week.
Pre-Accident Activities
31 Before the accident, the plaintiff was healthy and active and kept fit by going on long walks and running with her dogs.
32 In addition to enjoying long walks and running with her dog, prior to the accident, the plaintiff enjoyed recreational horse riding as well as off road motorbike riding. She last rode a horse at her uncle’s property in Laverton at the end of 2006 and also last rode dirt bikes around that time.
33 The plaintiff played soccer competitively until about Year 9. She played social tennis with her father up until the end of 2007. Prior to the accident, the plaintiff also enjoyed swimming and having a kick of the football with her fiancé.
34 Prior to the accident, the plaintiff was a very social person and she enjoyed going out to dinner and to the movies. She frequently went to clubs and bars on Thursday, Friday and Saturday nights and on birthdays and other occasions. She also enjoyed going clothes shopping with her friends.
The Accident
35 On the said date, the plaintiff was involved in a transport accident when her stationary vehicle was hit from behind by another vehicle (“the accident”). The plaintiff deposed there was extensive damage to the rear of her vehicle.
36 In cross-examination, the plaintiff agreed that the cost of the repairs to her car was $830 and it was in fact the other driver who pursued a property damage claim. The plaintiff disagreed that it was a small impact but agreed “it was not large”.
37 The plaintiff was crying at the accident scene and she felt like she had been punched in the thoracic spine. Within an hour she could not move her neck. She also had minor bruising to her chest.
38 The plaintiff then went to work and later that day attended Dr Singh because her usual doctor, Dr Kardom, was not available. She trusted Dr Singh because he was her fiancé’s doctor. He arranged investigations and provided pain relief medication.
39 As a result of the accident, the plaintiff suffered injury to her neck, upper and lower back, bruising to her chest and psychological trauma. In the days following the accident, she continued to suffer from severe generalised pain in her neck, upper and low back. She again saw Dr Singh, who provided her with medication to deal with her excruciating pain.
40 On 29 February 2008, the plaintiff attended the Emergency Department at the Austin Hospital where she stayed overnight. Further investigations were carried out and she was given a cervical soft collar. In cross examination, the plaintiff denied her complaint of neck pain at that time resolved with medication. She felt a little bit better and was then given a soft collar.
41 In about April 2008, the plaintiff returned to Dr Kadom. She also had physiotherapy, hydrotherapy and osteopathy. Her physiotherapist provided her with a brace which she wore on and off for about two months.
42 After the accident, the plaintiff moved out of her ex fiancé’s house and moved back home so her parents could look after her.
43 On about 26 June 2008, the plaintiff was taken by ambulance to the Austin Hospital following a severe flare up of neck pain. She remained there under observation for several hours. The following morning, her severe neck pain continued and she attended the Emergency Department at the Epworth Hospital. She was then an inpatient at Epworth Hospital for one week.
44 Whilst there the plaintiff was seen by Mr David de la Harpe, spinal and orthopaedic surgeon, who arranged further investigations, including an MRI scan. The plaintiff was also seen by Dr Stephen De Graaf, a pain management specialist, and Dr Muir, who gave her acupuncture treatment.
45 In about August 2008, the plaintiff saw Dr Russell Buchanan, rheumatologist, who recommended further physiotherapy.
46 On 8 September 2008, the plaintiff attended a three-week rehabilitation program at Epworth Hospital (“the rehabilitation program”) which involved physiotherapy, counselling, hydrotherapy and occupational therapy.
47 Since the accident, the plaintiff has gone to hospital on occasions because medication she had been prescribed did not seem to be doing its job and she was in so much pain she did not know what to do. If she is feeling unwell and in pain she tries to manage her pain the best she can at home. She does not enjoy going to hospital.
48 On 31 October 2008, the plaintiff experienced a severe flare up of neck and back pain whilst at a club with friends. At that time, all of a sudden she felt sick and started vomiting and her neck started to swell. She had not been drinking or dancing.
49 The plaintiff was taken by ambulance to The Royal Melbourne Hospital where she remained under observation for six hours. The next day she attended Epworth Hospital.
50 In October 2009, the plaintiff attended the Northern Hospital complaining of chronic pain and requesting Pethidine.
51 In about October 2009, the plaintiff saw Dr Fraser, rheumatologist, who recommended further physiotherapy.
52 The plaintiff was initially prescribed Cymbalta but it had distressing side effects in the form of hallucinations and the plaintiff’s hair falling out. She was then prescribed Lyrica. However, that medication caused an exacerbation of suicidal thoughts and she was changed to Endep in December 2009.
53 When the plaintiff swore her second affidavit in December 2010, she had ceased seeing her naturopath although she continued to consult Dr Kadom regularly and she directed the plaintiff’s physical therapy and prescribed medication. The plaintiff also continued to see Dr De Graaf, who undertook ongoing monitoring of her condition.
54 In May 2010, the plaintiff underwent diagnostic medial branch blocks conducted by Dr Gassin, musculoskeletal physician, funding for which was denied by the defendant. The tests were positive. In examination-in-chief, the plaintiff said there was no anaesthetic with this procedure and it was not comfortable.
55 On 28 June 2010, Dr Verrills performed medial branch blocks to the right C4-5 and C6-7, a procedure which cost the plaintiff about $5,000 which she borrowed from her parents.
56 This procedure provided the plaintiff with the ongoing benefit of deadening the pain in the right side of her neck. Nevertheless, her pain persists and she continues to experience restricted movement. The plaintiff is reluctant to undergo denervation procedures that have been suggested to the left side of her neck and also her low back.
57 After completing the rehabilitation program, the plaintiff underwent a gym and hydrotherapy program funded by the defendant. When that funding ceased, the plaintiff paid for the program for about a year but then ceased as it only provided limited benefit.
58 The plaintiff continued to regularly consult Ms Coral De Boo, psychologist, until December 2010. Treatment consisted of a cognitive behavioural program. The plaintiff was provided with relaxation tapes and prompts to assist her in dealing with the pain and psychological consequences of her injury.
59 The plaintiff again saw Ms De Boo about one month prior to the hearing and was to see her again the following week. The plaintiff explained she did not mutually agree to stop seeing Ms De Bono around Christmas 2010. She missed a couple of appointments and had arranged to see Ms De Boo again.
60 The plaintiff deposed in her second affidavit that the symptoms described in December 2009 persisted although the severity and effect of her back pain had increased. If she is experiencing back pain, minimal activity causes an escalation in her symptoms.
61 The plaintiff suffers from persistent pain, discomfort and stiffness in her neck and upper back, with radiation of pain into her head and both shoulders. Her neck and upper back pain is constant and of at least moderate severity. About once a day she suffers some flare ups of her ongoing symptoms which are brought on by fatigue and over exertion.
62 During such flare ups, which usually last for about two hours, the plaintiff’s pain is severe. However, the flare-ups can last up to two days. Sometimes the plaintiff experiences swelling in her neck, shoulders and upper back during the flare ups.
63 The plaintiff experiences daily headaches. About three times each week she experiences shooting pains from her neck through to the front of her head and her eyes become sensitive to light.
64 The plaintiff’s neck movement is restricted and she finds it difficult to undertake activities that require looking down, carrying, lifting, bending, holding or twisting. Raising her arms and overhead movements aggravate her ongoing symptoms. When she sits down she usually supports her head and neck with her hands.
65 Since the accident, the plaintiff has also experienced pain in her low back and over the coccyx. The pain is usually mild and becomes severe with minimal activity. She finds that sitting for any length of time aggravates her ongoing symptoms. When standing the plaintiff has to constantly move around and usually sits down after about an hour and a half as the pain is excruciating. She has difficulty ascending or descending stairs.
66 The plaintiff deposed in December 2010 that she took OxyContin only with flare-ups. She continued to take Panadol Osteo, six tablets a day. She took Diazepam when needed, about 5 milligrams three times each day. She suffered a bad reaction to Endep, such that she ceased taking it. The plaintiff continued to use Somac, 40 milligrams once each day, but had ceased Zofran. She continued to use Maxillon, three tablets each day. She ceased Prednisolone and Agarol, as well as Mobic. Mobic has been replaced by Naprosyn. The plaintiff no longer took Motillium, Actilax and Microlax but continued to take Endone, as well as Alendron and Buscopan when needed. She regularly used heat packs and rubbed Deep Heat and Ice Gel, as well as utilising Voltaren for pain relief.
67 At the present time the plaintiff has a Norspan patch on her right shoulder. She takes Panadol Osteo two or three times a day and up to three Maxillon a day for nausea. She takes Valium when she needs it, a couple of times a week, and she takes either Endone or OxyContin if she is having a flare up. Depending on whether she is really sick during the day she takes one OxyContin, and if she feels that way at night she takes Endone. The dosage of both OxyContin and Endone is 5 mg.
68 In re-examination, the plaintiff confirmed she had taken OxyContin after work on the Saturday before the hearing because she was really sore in her neck having worked from 9.00 am until 1.00 pm. She last took OxyContin the Thursday before that.
Work After the Accident
69 The plaintiff was incapacitated for work as a result of the accident. Her return to work was planned by CAC, an occupational rehabilitation firm, following a site visit and in cooperation with her employer.
70 In about November 2008, the plaintiff returned to work at True Colours for one hour each week to answer the phone. She gradually increased her hours and remained on light duties. She also started studying on a part time basis at NMIT to obtain credits towards her apprenticeship, which she completed in about March 2009.
71 True Colours now comprises the owner and four staff, one of whom is an apprentice, Ms Tsakmakis.
72 Prior to the accident, the plaintiff had built up a good client base. Had it not been for the accident she would be working full time earning approximately double her present wage and with the prospect of significantly higher earnings as a subcontractor.
73 The plaintiff continues to work on average for twenty hours a week, working on Monday or Tuesday for five hours, as is the case on Friday. On Thursday, she works for six hours and on Saturday she works for four hours.
74 The plaintiff has had absences from work due to her injuries. She now manages about three haircuts a day with breaks and she continues to perform limited duties. The plaintiff can do a half head of foils and also light waxing, She cannot do style cutting which requires her to hold her arms up whilst cutting. True Colours did not need an apprentice but one was employed purely to help the plaintiff with her clients.
75 The plaintiff continues to have her own special customers. She is able to do two to three haircuts a cut whereas before the accident she completed up to fifteen a day without difficulty.
76 When the plaintiff has tried further jobs at the salon, she has suffered more pain and flare ups of her condition.
77 The plaintiff is aware that since the accident hairdressing is not the ideal occupation but it is what she is qualified for and what she has always wanted to do since she was a little girl. She does not want to give it up and really does not know what else she would do. She would not be able to get work elsewhere and has been lucky with her boss.
78 The plaintiff has discussed other jobs with Ms De Bono and agreed she thought she is more than capable of being retrained. She agreed she had basic computer skills and was familiar with Facebook, etc. The only other transferable skill she has is some limited experience in retail when she was fifteen. The plaintiff thought she would have problems carrying boxes and clothing around a shop.
79 The adviser from CAC suggested receptionist work was suitable for the plaintiff but then said she was not too sure because of the plaintiff’s back and that she could not sit for long hours without moving. The plaintiff agreed she would not be able to sit in one position using a computer.
80 The plaintiff did a piercing course but she could not work in that field because it hurt her body trying to get into different positions. She could not work as a nail technician because of the amount of leaning over required. The plaintiff has not been trained in make up.
81 The plaintiff agreed she put on a smile at work but she disagreed that she was able to enjoy her life as Dr Hayman suggested because for the majority of the time she has to drag herself to work. Working as a hairdresser is hard for the plaintiff. She works four days and then has three days off and she has to make herself well to go back to work so she does not do a lot.
82 There was some video taken of the plaintiff working at the salon on 11 November 2010. In that short film apparently taken through the salon window, the plaintiff was shown cutting a client’s hair. The plaintiff was not shown doing anything inconsistent with her reported level of pain and disability.
83 In cross examination, the plaintiff agreed she was wearing a Norspan patch at that time. She had learned to cope with her problems and she can socialise with clients as she has a job to keep. She confirmed that she had an incredibly supportive boss.
Activities
84 Since the accident the plaintiff no longer enjoys going swimming. Her walking distance and endurance has improved from about fifteen minutes since the accident. She can now walk longer distances than previously when she felt tired easily and struggled to go on walks for longer than fifteen minutes. Whilst she is now able to walk longer distances, she experiences an escalation of symptoms as well as fatigue. Prior to the accident, there was no restriction on the distance she could walk or any activities she could undertake. She no longer goes to the gym, where she used to do light weights and hydrotherapy. She now just pays to use the hydrotherapy pool when she can.
85 Prior to the accident, the plaintiff regularly went clubbing with her friends undertaking energetic dancing at venues such as Fusion, Odeon, Billboard, Robarta and Marrakech. In the last year she has been clubbing five times on friends’ birthdays. Most definitely the plaintiff would have gone more frequently if not for her injuries. It is painful to dress like her friends and wear high shoes; it is painful to move about and the plaintiff does not like the risk of getting knocked by anybody.
86 The plaintiff’s weight has now stabilised in the mid seventy kilogram range. She has recently lost a bit of weight but she denied in recent times that she had been able to exercise five times a week for thirty minutes a day, as noted in her general practitioner’s notes in September 2010.
87 The plaintiff’s accident injuries and restrictions had a detrimental effect on her relationship with her ex fiancé, Luke. At the time of the accident, they had been going out together for a bit over a year, just before the plaintiff started hairdressing.
88 They ended their engagement in November 2010 due to the plaintiff’s physical restrictions and emotional state as a result of the accident. They had planned to marry in February 2011 and were building a house together. Settlement of that property has not been finalised. The plaintiff intends to live there with a friend or family members as she cannot cope with living alone. Her parents are building on a nearby block and intend to live there to be close to the plaintiff.
89 Luke has not wanted anything to do with her case and not provided an affidavit, but had said he would do so before they broke up.
90 The plaintiff is presently in a relationship with Michael Noonan, a young man she has known since her school days. She is happy now but does not know whether she is happier than she was when with Luke.
91 The plaintiff’s social life with Michael consists mainly of staying at home whereas her friends go to the Luna Park, the beach and down Lygon Street. Her friends have a great sex life and “do everything that is fun”. The plaintiff is not well enough to do most of those things. She cannot go running across the beach and she is limited by her physical capacity. The plaintiff does not go shopping often with her friends.
92 When it was suggested to the plaintiff that her life before the accident “was not perfect” she said it was not too bad, she was doing alright. She felt she was in a perfect relationship, she had a good family and she had moved out of home. She was happy where she was. Things with her family were good and her father had just bought her a car. She felt she had the best job in the world. She had a lot more friends then and things were all really good. There was not much about her life that was not good.
93 During the hearing, the plaintiff became distressed at that time and there was a short adjournment.
94 In May 2011, the plaintiff went to Las Vegas with her family to celebrate her brother’s wedding. She did not cope with the plane trip very well. She took quite a bit of medication and had to move around the plane all the time. She also required further cushions on which to rest her neck during turbulence. The plaintiff explained that on a recent trip to the United States she did not go to the Grand Canyon with her parents, nor did she go on rides at a certain casino.
95 Earlier this year the plaintiff was assaulted by a female acquaintance and members of her family. The assault was reported to the police. The plaintiff did not suffer any lasting injuries in relation to these circumstances.
96 The plaintiff has learned to live with her pain and has tried to manage it. She did not think she would ever stop being angry at the other driver and agreed her mother had written letters to the other driver which were not abusive. The plaintiff agreed that her family was very supportive from the start.
97 Exhibited to the plaintiff’s affidavit was a statement made by her to the police on 7 April 2008.
Summary of the Plaintiff’s Earnings
Year Ending Source of Income Earnings
30 June 2007 Profile Fashion Accessories $4,577 A M de Betta and L Granato $1,846
Gross income $6,423
30 June 2008 TAC $5,617 AM DE Betta and L Granato $9,659
Gross income $15,276
30 June 2009 TAC $20,516
L Granato $3,681
Gross income $24,197
30 June 2010 TAC $2,584
Leonarda Granato $15,340
Gross income $17,924
98 A TAC print-out dated 16 April 2011 set out a grand total of payments of $130,209, including loss of earning capacity benefits for the first three years after the accident, and ongoing psychology and general practitioner’s charges.
Lay Evidence
99 Paula De Iacovo swore an affidavit on 4 May 2011. She is a twenty two year old friend of the plaintiff. They first met when they were at St Monica’s High School.
100 Whilst the plaintiff left in Year 10, they remained in contact and saw each other about once every couple of months. They became friends although they had different interests. She found the plaintiff to be a very friendly and bubbly person and they soon became close.
101 They saw each other more frequently after they finished school and she presently sees the plaintiff about once every two weeks.
102 Ms De Iacovo spoke to the plaintiff shortly after the accident and saw her after she was discharged from hospital.
103 Ms De Iacovo has observed that the consequences of the accident have hit the plaintiff hard and she now appears withdrawn and flat. She thinks the pain and restriction the plaintiff now suffers get her down emotionally, especially given the effects of her injuries on many aspects of her life.
104 Before the accident, the plaintiff took great pride in her physical appearance. Since then there has been a significant change in her confidence and her efforts with her appearance.
105 Before the accident, the plaintiff was very outgoing and sociable. Ms De Iacovo and the plaintiff socialised together whilst at school and after finishing high school the plaintiff enjoyed going out at night to bars and pubs. The plaintiff often wore high heels but she now struggles to wear them without experiencing increased pain.
106 Since the accident, it is common for the plaintiff to cancel social plans if she is feeling unwell, and they no longer go out socially as much as before the accident.
107 When she is able to go out, the plaintiff often tells Ms De Iacovo the next day that she is in a lot of pain. The plaintiff struggles to dance without pain in her back and neck and often tells her the pain is so severe that she has to sit down. The plaintiff then stretches out her back or takes deep breaths or goes outside.
108 The last time they went to a pub the plaintiff only stayed for forty minutes because she was too tired and had to go home, whereas before the accident the plaintiff usually stayed out for at least a couple of hours.
109 After the accident, the plaintiff lost contact with her large group of friends because she has had to cancel plans as she was feeling unwell.
110 The plaintiff is frustrated when she cannot participate in social activities organised in their social group such as a recent horse riding outing for a birthday. The plaintiff also recently cancelled a date catching up with friends at a local pub.
111 Ms De Iacovo deposed she understood the plaintiff struggled to cope at work. Since the accident, they still keep in contact and she sees the plaintiff is still experiencing back and neck problems which she tries to cope with as best she can but everything is much harder for her now and gets her down emotionally. The plaintiff is no longer as happy and energetic as she once was.
112 Leonarda Granato swore an affidavit on 4 May 2011. She is the sole proprietor and owner of True Colours where the plaintiff is presently employed. She has known the plaintiff since about May 2007 when she employed her as an apprentice hairdresser at the salon.
113 At the time of the accident, the plaintiff was nearly at the end of her first year in training. She was working full time at the salon, averaging thirty-eight to forty hours a week.
114 Although she qualified as a first year apprentice, the plaintiff’s skill set was quite advanced and beyond what was expected of someone of her training. Even as an apprentice she managed to develop a strong clientele and had regular clients.
115 Ms Granato was confident in the plaintiff’s abilities. The plaintiff was a very big asset to the business as she was capable of performing a number of tasks normally reserved for a fully qualified hairdresser.
116 In cross examination, Ms Granato said that probably years back the plaintiff first mentioned having her own salon.
117 Ms Granato is aware the plaintiff suffered injuries to her neck and back in the accident. Since that time, the plaintiff’s injuries have restricted her capacity to fully serve both her regular and new customers.
118 Ms Granato had a look at the plaintiff’s car on the said date following the accident and agreed it was minor damage. The plaintiff was calm but she was getting worse during the morning back at the salon. The plaintiff mentioned she had neck pain and Ms Granato suggested she go to the doctor.
119 Following the accident, the plaintiff had about nine months off work and returned on a gradual basis in November 2008. Her wages were subsidised by TAC until February 2011. The plaintiff started working for approximately four hours for the first two weeks and then nine hours a week, and gradually built up to her current hours of twenty a week from May 2009.
120 If the plaintiff tries to work up to twenty five hours she experiences severe pain at the end of the day and is often unable to work the following day.
121 Prior to the accident, it was very rare for the plaintiff to take any sick days and she was very reliable. However, she now cannot work a full day without experiencing neck and back pain and if the pain is particularly unbearable it may mean she has to take the next day off. The plaintiff also calls in sick on a regular basis.
122 The plaintiff’s injuries restrict her ability to do a full range of hairdressing tasks. Since the accident, Ms Granato has been very careful not to ask her to lift heavy objects. The plaintiff continues to do basic cutting and colouring but her abilities are significantly restricted. She cannot do a full hair of foils because she cannot stand for longer than an hour without feeling increased pain.
123 The plaintiff is now unable to blow wave the hair of customers with longer hair because of the increased pain she experiences in her neck and back when having to lean over, use her arms to pull and style the longer hair and also to stand for longer periods of time. The plaintiff is restricted in her ability to sweep hair from the floor.
124 Since the accident, Ms Granato has had to employ a full time apprentice to compensate for the time the plaintiff takes off work and she assists the plaintiff with many of the tasks she is no longer able to do because of her injuries.
125 Before the accident, the plaintiff was a very outgoing girl with a bubbly personality and a large network of friends
126 However, since the accident, she often appears withdrawn, flat and lacking in energy and she has complained that her personal relationships have also deteriorated.
127 Since the accident, the plaintiff has put on a brave face. She does not want to let people know what she is going through. She still, however, remains pleasant to customers and sociable with other staff members. However, she is frustrated on occasion and feels bad about her reduced capacity and more frequently apologises for not being able to complete some aspects of the job.
128 When the plaintiff experiences severe pain at work she sweats and her facial expression completely changes and she is told to take a break or go home sick. It is common for the plaintiff to look tired and fatigued. She also regularly complains of headaches and migraines. The morphine patches make her sweat profusely.
129 The plaintiff’s neck and back pain can be aggravated by small movements such as turning her head, with one recent example where she experienced such severe pain in those circumstances, she was unable to get off the floor and needed help to stand up.
130 Ms Granato has had to change the system, having to explain to clients that the plaintiff can do the cutting but not hair washing and blow drying.
131 The business has lost significant work since the accident as Ms Granato has had to turn customers away when they are too busy. Some of the plaintiff’s regulars have gone elsewhere because she cannot service them as well as she previously could.
132 The plaintiff was the only employee who was trained to do microbead hair extensions. The cost of a full head of extensions was $1,100. An average of three customers a week requested this service and the business received about fifty per cent profit per booking. Because of her injuries, the plaintiff cannot stand long enough to do that work and the business has lost money.
133 The plaintiff’s productivity is significantly reduced since the accident due to the limitation of her injuries. On an average shift of six hours, a hairdresser should be able to service ten or eleven clients with a variety of haircuts and colours.
134 Before the accident, the plaintiff was capable of meeting this expectation. However, she is now only able to service five or six clients within the same timeframe due to the need to take frequent breaks, get help from others and the fact that she works slower.
135 As she does not believe the plaintiff will be able to increase her skill set, she is unable to remain confident that the plaintiff will be able to continue her employment as a hairdresser in the long term. She is not sure she can keep the plaintiff on. She really likes the plaintiff but the plaintiff calling in sick on a Friday or Saturday (the busiest days) costs the business money.
136 In cross examination, Ms Granato confirmed the limitations in the plaintiff’s work and the fact that she had about twenty to thirty regular clients.
137 Ms Granato would like to keep the plaintiff on at the business because of her honesty and her loyalty; that is the main reason.
138 She has seen the plaintiff sweaty and taking morphine tablets at work and she cannot work without them. She confirmed one frightening incident where the plaintiff’s neck became inflamed. She sent the plaintiff home numerous times.
139 About six days since February she has had sick leave and then there are other days when she goes home.
140 Ms Granato may have to put the plaintiff off because it is very disruptive to the business with her only being able to do limited things and cancel clients and take time off.
141 Ms Granato would be prepared to try the plaintiff on further hours but she had been working for her for quite a while now and was very inconsistent. It was very hard to get a good run of her full time capacity of not being sick. She confirmed the plaintiff was more emotionally down at times when she had pain.
142 Ms Granato confirmed the plaintiff’s advanced skills at the time of the accident and the fact that most hairdressers do fifteen to sixteen customers a day against the four to five the plaintiff does. It costs the business money with the plaintiff not being able to do a full head of foils.
143 She did not consider anyone would employ the plaintiff on the open market.
144 The plaintiff’s mother, Janice Kelly-Edwards, swore an affidavit on 6 May 2011.
145 Mrs Kelly-Edwards deposed that since the accident, the plaintiff has experienced symptoms in her back, neck and across the shoulders on a daily basis, which vary in intensity. She can tell from the expression on the plaintiff’s face when she is having a bad day and the plaintiff generally withdraws from her.
146 The plaintiff complains of constant headaches being triggered by her pain which have affected her capacity to live and work.
147 Before the accident, the plaintiff rarely took naps and woke up easily in the morning. Now she is frequently tired and during her days at home she often remains in bed for most of the day.
148 Before the accident, the plaintiff was a person who valued her ability to take care of herself. Since the accident, Mrs Kelly-Edwards has had to assist the plaintiff with small tasks such as helping her dress, rub cream into her neck, style her hair and cut her toenails. The plaintiff has to rely on her parents to help with even the simplest tasks. Mrs Kelly-Edwards and her husband have had to supplement the plaintiff’s income by paying for her petrol
149 Pre-accident, the plaintiff lived a very active lifestyle, enjoying walking her dogs four times a week for an hour and a half. She rode a bike for exercise and played tennis with her father. She also participated in a bowling league when she was younger. However, she now avoids any physical activities that will exacerbate her pain. She cannot bowl and she has disposed of her bike since the accident.
150 Because of her pain, the plaintiff is unable to sit or stand for long periods. She is now unable to play the piano or undertake scrapbooking without experiencing increased pain and therefore no longer does these activities. The plaintiff no longer assists around the house like she did prior to the accident when she was responsible for household tasks such as laundry and washing the dishes. Now she avoids hanging clothes on the line because of problems putting her arms up and she is only able to load the dishwasher a few dishes at a time. Sometimes she puts the washing in the machine and occasionally puts the odd dish in the dishwasher.
151 Before the accident, the plaintiff often drove and accompanied Mrs Kelly- Edwards to go shopping for groceries but she now is unable to lift a heavy shopping bag without pain. Once the plaintiff felt such pain, that she dropped the bag and yelled out.
152 The plaintiff was previously very sociable and often went out with her friends to parties or for coffee but since the accident, she has lost contact with a number of her friends. The plaintiff was also engaged and had purchased a house with her ex-fiancé but the relationship ended after the accident.
153 When the plaintiff now does go out with friends she tires easily and comes home early. On one such occasion, having been accidentally knocked by a fellow patron whilst attending Bridie O’Reilly’s with a friend, the plaintiff came home crying and had to take OxyContin to help alleviate the pain. Further, several months after the accident, the plaintiff had severe pain in her neck and pain which lasted for a week after she tried to play pool.
154 Prior to the accident, the plaintiff took great pride in her physical appearance, styling her hair each day. When she went to nightclubs she always wore high heels. She has now donated most of her shoes to an op shop because of increased pain when she wears them. These changes upset the plaintiff and affect her self confidence.
155 The plaintiff is now constantly nervous as a passenger in a car, hanging onto the seat or complaining about the speed at which Mrs Kelly-Edwards is driving. Often when the plaintiff goes out with a friend she insists on driving because she wants to avoid being a passenger.
156 The plaintiff’s mood has changed significantly since the accident from a happy girl full of enthusiasm to being down emotionally. She is often down and withdrawn and is very different to how she was before the accident.
157 The plaintiff takes a large amount of medication daily, not having taken any before the accident. It causes significant side effects. OxyContin, Endone and morphine are the only drugs she can tolerate. Even those cause her headaches and to become nauseated. Despite the side effects, the plaintiff’s pain is so severe that the benefit of the drugs ultimately outweighs the side effects.
158 The plaintiff requires morphine patches on a daily basis and also uses heat packs at home, especially when she is working. When she experiences flare- ups, she takes OxyContin for relief.
159 Whilst being very motivated and generally enjoying her hairdressing before the accident, since then, the plaintiff tries to keep up a facade at work. When she has to go to work she pulls herself out of bed because she values her skills as a hairdresser and wants to stay in the industry. She uses up all her energy working. By the time she comes home she is exhausted and it is common for her to go to bed shortly thereafter. If the plaintiff goes out with friends on a particular night, it often means she will be so exhausted that she will remain in bed until lunchtime the next day.
160 Recently Mrs Kelly-Edwards saw the plaintiff crying in her bedroom and was told by her she was upset because of the restrictions on her work capacity and that she would never be able to have her own hairdressing salon as she had hoped.
161 Mrs Kelly-Edwards and her husband decided to sell a block of land in Torquay where they had intended to move before the accident because of the plaintiff’s injuries. They have purchased a block and are building near the plaintiff’s block so they can assist her.
162 In cross examination, Mrs Kelly-Edwards confirmed that she sees the plaintiff suffering pain. Probably her neck was worse, radiating to her shoulders and most of her back. She also had problems with her lumbar spine if she sat for long. She confirmed the plaintiff is sensitive to touch when she applies Deep Heat. The plaintiff is tearful a lot and is quite needy and she requires strong medication.
163 Before the accident, the plaintiff did not have any kind of physical illness.
164 Mrs Kelly-Edwards was asked about the overdose and confirmed there was a situation of bullying and the plaintiff was unhappy at school and it was better for her to leave. She confirmed the plaintiff’s attendance with the CAT Team and the fact that that treatment was ceased as they thought the plaintiff did not require more.
165 Mrs Kelly-Edwards was not really aware of any bulimia problem before the overdose. At the time of the overdose, the plaintiff told her she had been vomiting for a while. That sort of vomiting has not happened since the accident except when the plaintiff vomited from the tablets when her pain is very very severe. The vomiting episodes are not regular but a couple of times a month.
166 Mrs Kelly-Edwards was aware of the panic attacks, which she described as anxiety, after the overdose.
167 She could not remember the assaults but thought there might have been an incident concerning a next-door-neighbour in 2005.
168 She agreed that the plaintiff had undergone a number of tests prior to the accident to prove she was fine and she could recall an attendance at the hospital with a virus in March 2006. She did not know about the brain scan. When asked about the headaches in 2007, she could recall them in November but put it down to the plaintiff having her period.
169 The plaintiff had not had migraine-type headaches before the accident but now has them brought on by her neck.
170 The plaintiff had attended hospital rather than her general practitioner on about four occasions because she is so bad and cannot move. She and her husband look after the plaintiff at home and they have learned to cope. The plaintiff takes more tablets in a flare-up. Attending the hospital means the plaintiff can have a quick acting injection.
171 Mrs Kelly-Edwards confirmed the problems the plaintiff had in the United States.
172 She confirmed the plaintiff had pretty much resigned herself to the fact that she could not run her own salon. The plaintiff is depressed because she likes her job and now wonders who will hire her. The plaintiff wants to move into the house near her parents so they could take care of things.
173 The plaintiff has not wanted to take antidepressants because she is very determined. There has been a discussion with Dr De Graaf about the intake of tablets and Dr De Graaf has told her she should stay on them.
174 When she gets home from work she is tired and has no energy. She tries to do the dishwashing or put the washing on the line but does not hang it out.
175 She confirmed the episode at Bridie O’Reilly’s when someone accidentally ran into the plaintiff.
176 The plaintiff has worn patches consistently all year. She oversees the plaintiff’s medication to ensure she does not take too much but the plaintiff is conscious of her intake.
177 She confirmed she was very angry at the other driver and wrote a letter.
178 In re-examination, Mrs Kelly-Edwards confirmed the occurrence of spasms and how the plaintiff is at that stage and you can actually witness it starting in her neck.
179 Mrs Yvonne Raines swore an affidavit on 6 May 2011. She has been a regular customer of True Colours for over twenty five years and met the plaintiff when she was first employed as an apprentice hairdresser.
180 Mrs Raines deposed on initially meeting the plaintiff she was a bright and friendly girl who enjoyed her job and she admired the plaintiff’s attitude towards work.
181 The plaintiff invited Mrs Raines to family functions.
182 In the first year of her apprenticeship the plaintiff’s hairdressing skills were exceptional and she rarely stood still in the salon.
183 About twelve months after the accident she started booking hair appointments with the plaintiff again. She immediately noticed a significant change in the plaintiff’s ability as a hairdresser and she was physically limited in what she could do. She needed to sit when she would usually stand.
184 On numerous occasions since the accident when Mrs Raines had booked an appointment, she had been telephoned and told by other members of staff that the plaintiff had not come into work because she was unwell. Further, the plaintiff takes much longer to do Mrs Raines hair and sometimes other workers have to step in and take over the tasks.
185 The plaintiff’s general appearance and pride therein has been significantly reduced since the accident.
186 Mrs Raines has observed the plaintiff in severe pain, rubbing her neck and face, and appearing very pale and often walking out the back of the salon to have a break. Mrs Raines has not gone to another salon because it is a real credit to the plaintiff that she is still in the same industry given her obvious restrictions.
187 Ashlee Tsakmakis swore an affidavit on 9 May 2011. Ms Tsakmakis met the plaintiff when she commenced employment at True Colours as an apprentice hairdresser in August 2009.
188 Ms Tsakmakis is currently half way through her apprenticeship.
189 Ms Tsakmakis was advised when she was employed that her main role was predominantly to help the plaintiff doing tasks which the plaintiff felt were difficult after the accident.
190 The plaintiff gets frustrated when she encounters things she finds difficult as a result of her injuries. Ms Tsakmakis has observed the plaintiff in regular pain at work with her facial expressions and laboured movements. The plaintiff finds it hard to stand for long periods and often has to take a break and tells Ms Tsakmakis that she feels tired or fatigued, and also suffers from frequent migraines and headaches.
191 The plaintiff has told her Ms Tsakmakis that she takes a lot of medication for pain. She has noticed the plaintiff wears morphine patches which make her sweat profusely and the plaintiff has needed the air conditioning to be turned on to cool her down. She has to step in and help the plaintiff when she is doing foils so the plaintiff can take a break. The plaintiff has not done any hair perming or blow waving of long hair since the accident and gets help from others. The plaintiff avoids standing when cutting longer hair and a special chair has been purchased for her.
192 Recently there was an episode when the plaintiff was cutting a customer’s hair and she turned her neck quickly and awkwardly and felt a sudden sharp pain and had to leave the salon.
193 The plaintiff finds it difficult to complete some cleaning tasks and cannot do the high shelves.
194 The plaintiff is generally less efficient than other hairdressers due to her injuries. She only does six or so customers whereas the other hairdressers do ten or eleven in the same timeframe.
195 On average, the plaintiff is likely to call in sick about two days a month and on other days she has to go home early because she is not feeling well. The plaintiff has also regularly cancelled personal plans with Ms Tsakmakis because she was not feeling well. She is not confident about the plaintiff’s ability to continue in the hairdressing industry given her limitations.
196 In cross examination, Ms Tsakmakis confirmed that the majority of clients know about the plaintiff’s condition and often appointments are cancelled. There are certain things she cannot do and she needs to sit down and have a break and sometimes she needs to go home. She confirmed she had seen her in pain sweating and had seen her taking medication and she did not really know what sort it was. She complained about being hot with the patches and having to have the air conditioning on.
197 She has seen her crying a couple of times and there was one incident when she went funny and went out the back.
The Plaintiff’s Medical Evidence
198 The plaintiff attended Dr Singh at Epping Clinic on 27 February 2008.
199 The plaintiff advised of the accident and complained of pain in her neck and thoracic area. On examination, she had painful neck movements and some tenderness of the thoracic area. Panadeine was prescribed and x-rays were ordered.
200 The plaintiff’s neck pain worsened slowly and a CT scan was arranged. She was later prescribed Diazepam and Diclofenac tablets to reduce spasms, and she also used a cervical collar to relieve pain on movement.
201 Dr Singh noted the plaintiff’s neck pain slowly decreased and she was referred for neck physiotherapy/hydrotherapy to Olympia Private Rehabilitation Hospital on 11 March 2008. The plaintiff continued to have neck pain and requested to see a chiropractor and was referred to Dr Alivizatos.
202 The plaintiff last saw Dr Singh on 19 May 2008. She was then still having mild neck stiffness and pain but she wanted to go back to part time work. She was advised light duties of four hours three times a week.
203 The plaintiff attended the Emergency Department at the Austin Hospital on 29 February 2008, two days after the accident, with continuing uncontrolled pain. Following a period of observation in which she was administered fluids and simple analgesia, the plaintiff was discharged with a soft collar to the care of her local doctor.
204 The plaintiff again presented to the Emergency Department, this time by ambulance on 26 June 2008, because of persistent pain. At that stage she was currently attending an osteopath and receiving treatment such as ultrasound and massage. However, her neck pain was persistent, and she was unable to work.
205 On examination, there was tenderness over the cervical muscles and over the trapezius. The tenderness and pain were diffuse and quite severe but poorly localised.
206 The attending physician thought that the plaintiff was suffering from muscle spasm, and she was given oral OxyContin and Diazepam, as well as Ibuprofen and Amitriptyline, which resulted in some improvement of the pain. She was subsequently discharged without plans for further review.
207 Dr Kadom reported on 10 June 2010 that the plaintiff first saw her on 2 June 2008 with neck pains and aches extending into both shoulders and down the upper back to the mid back, associated with episodes of dizziness and frontal headaches.
208 The plaintiff consulted her several times, and her symptoms were the same most of the time, with a restricted range of neck movement and pain and tenderness. Neurologically, the plaintiff’s upper limbs were essentially normal.
209 Dr Kadom diagnosed a whiplash injury as a result of the accident. She noted strong analgesics like OxyContin, Panadeine Forte and Naproxen were used to control the plaintiff’s symptoms. Further, the plaintiff was not able to sleep from the pain, so she was prescribed Valium and Mogadon. She was referred to a number of consultants, including Dr Gassin, Dr De Graaf and Dr Fraser.
210 Dr Kadom noted the plaintiff had obtained some relief recently from a medial branch block to C-4-5-6-7 performed by Dr Gassin. Dr Kadom then thought the plaintiff’s prognosis was uncertain and would depend on her response in the future to current management by the consultants.
211 Dr Kadom reported on 6 June 2011 that the diagnosis was one of chronic pain and a whiplash injury to the spine. She considered that the plaintiff would have chronic pain permanently with a limited capacity to work due to chronic pain.
212 In examination in chief, Dr Kadom said that the overdose in 2006 did not play any role at all in the plaintiff’s current presentation.
213 In cross examination, Dr Kadom could remember the overdose when reminded but could not remember an assault in July 2005.
214 Dr Kadom thought the sweatiness and panic attacks in 2006 were due to the plaintiff’s problems at school and discussions with her parents about leaving school and becoming a hairdresser.
215 The initial prescription when she first saw the plaintiff after the accident was for strong analgesics like Panadeine Forte. If the plaintiff was not improving she referred her for specialist treatment such as Dr Fraser and Mr de la Harpe.
216 Dr Kadom was asked about an attendance on 13 November 2007 when the plaintiff saw another doctor at the clinic. Dr Kardom could not remember a brain scan being organised at that time.
217 Much of the cross examination related to the prescription of opiates and other medication.
218 On 27 June 2008, the plaintiff started Endep and on 15 August 2008, patches were commenced.
219 The plaintiff, in Dr Kadom’s view, had always been genuine compared to other people who “doctor shopped” for drugs.
220 Dr Kadom did not like prescribing a lot of medication and would vary it depending on the plaintiff’s level of complaint. She hated young people being on opiates. She was conscious of the problems of addiction and had emphasised those to the plaintiff and wherever possible she reduced the dosage.
221 The dosage of various opiates was at a low level. Dr Kadom confirmed the prescription of medication fitted in with the plaintiff’s pain which fluctuated all the time. The plaintiff was very compliant with the medication she had been prescribed.
222 OxyContin was not tried until October 2009. Everything else had been tried just to control the pain. Dr Kadom thought opiates had a role in the treatment of Chronic Pain Syndrome. She agreed that a doctor prescribing opiates and Valium would have concerns about their use in terms of addiction and that is why all the time she asked the plaintiff to try and cut down that medication.
223 Dr Kadom referred the plaintiff to a psychologist, not a psychiatrist, because she did not need to be referred to a psychiatrist.
224 In re-examination, Dr Kadom confirmed the medication had produced responses in the plaintiff’s pain level which showed it was not psychological, it was physical. She had never had any concerns about the plaintiff’s genuineness on presentation.
225 There was no permanent improvement after the denervation procedure in June 2010.
226 Dr Chitgopeker reported briefly in June 2011. He noted that the plaintiff was first seen by him on 16 March 2011. He diagnosed a whiplash injury of the spine. He thought the plaintiff would have chronic pain permanently as a result of which she had limited capacity to work.
227 In examination in chief, Dr Chitgopeker said he thought the majority of the plaintiff’s problem was organic and it was not purely psychological. In his view, the plaintiff had sustained a significant whiplash injury to her neck and had experienced chronic pain and had procedures to alleviate the pain and was left with a Chronic Pain Syndrome. He stated “unfortunately she was still very troubled by her symptoms and fortunately she was brave enough to work part time and was trying to deal with it as best as possible”.
228 In cross-examination, counsel for the defendant went through Dr Chitgopeker’s notes of attendances in 2011 in some detail, in particular, in relation to the prescription of various medications and the decrease and increase in dosages thereof.
229 On attendance on 16 March 2011, the plaintiff complained of ongoing neck interscapular pains from a whiplash injury, and chronic pain and she was seeking a referral to a neurosurgeon. Norspan patches were tried. On 18 March, a Medicare plan was compiled, with a review to a referral to a physiotherapist.
230 On 25 March 2011, the plaintiff needed Endone for breakthrough pain. On 1 April 2011, the dosage of Endone was reduced.
231 On 13 April 2011, the plaintiff’s pain was better controlled on Norspan and Dr Chitgopeker wanted to keep Endone in reserve. It was noted the plaintiff was suffering from chronic insomnia.
232 As of 27 April 2011. when he last saw the plaintiff, she was taking Endone very infrequently over the previous two weeks. She was also taking Maxillon, Alodorm, OxyContin, Endone and Norspan and she was “coping okay on Norspan”.
233 Dr Chitgopeker confirmed the side effects of opiates included hypersomnia, insomnia, irritability, mood swings and sweating. He prescribed Valium for muscle spasm.
234 He confirmed that the plaintiff had attended the clinic about eighty times, seeking Dr Kadom fifty six times, others in the clinic twenty nine times and him eight times.
235 Dr Chitgopeker could not recall the plaintiff having a drug overdose in November 2006.
236 Dr Chitgopeker had some experience in pain management, having practised in that area in New Zealand. By chronic pain, Dr Chitgopeker meant unrelenting pain that interfered with an individual’s ability to function effectively. He thought chronic pain was both an organic and a non-organic disease.
237 In Dr Chitgopeker’s view, a treatment plan for a patient with chronic pain should address the physical pain with analgesia, address any structural problems and also address psychological issues. He would identify the cause of the pain, deal with it per se and deal with the other co-existing medical conditions.
238 He considered OxyContin could be used with other opiates. In his view, opiates had a role in the treatment of chronic pain. He had not seen opiate dependence in his medical career. He was asked about the controversy as to the prescription of OxyContin in chronic pain and was not aware of the Four Corners program.
239 Dr Chitgopeker thought the plaintiff was prescribed with very little analgesia of the opiate type for somebody with so much chronic severe pain. He could not see any risk in the plaintiff’s current medication regime.
240 Dr Chitgopeker did not think, and he hoped that the plaintiff would not require this medication for the rest of her life. He noted chronic pain was such a difficult condition to treat.
241 In his view, the plaintiff was a young lady who was very disabled with her pain. He would be seeking the assistance of an appropriate pain specialist to guide him in managing her and certainly hoped she did not need to be on those tablets forever.
242 Dr Chitgopeker was not sure if the plaintiff had asked to see a psychiatrist. When it was put to Dr Chitgopeker that a psychiatric referral would not be out of place, he said he would certainly be going back and looking at that and he had asked the plaintiff to make an appointment so they could probe that further.
243 In re-examination, Dr Chitgopeker said that the plaintiff responded as appropriately as one could expect to the various medications and her response told him that he was dealing with organic pain.
244 The plaintiff was examined by Dr Fraser, rheumatologist, at the request of Dr Kadom on 4 September 2009.
245 Dr Fraser noted that at some stage the plaintiff had blood tests which included an elevated ESR and positive ANA, but there were no symptoms to suggest any of the connective tissue diseases.
246 General examination was unremarkable. All spinal movements were somewhat restricted and painful, and there was mild local tenderness in the lumbar and dorsal regions. There were no motor or sensory deficits.
247 Further investigations which were arranged by Dr Fraser were essentially normal. There were no signs or symptoms of a connective tissue disease.
248 Dr Fraser thought the plaintiff appeared to have a Chronic Pain Syndrome, presumably secondary to trauma sustained in the accident. He recommended she continue to see Dr De Graaf for management.
249 When last seen on 22 October 2009, Dr Fraser noted the plaintiff was now on OxyContin, 5 milligrams, and Endep, 50 milligrams at night. He did not alter her treatment.
250 Dr Fraser encouraged the plaintiff to continue with the exercise program, including hydrotherapy. He noted always in such cases the prognosis was guarded, but in the long term he thought it was likely that the pain would resolve.
251 The plaintiff consulted Dr Robert Gassin at the Metropolitan Spinal Clinic on three occasions between 22 January and 30 August 2010.
252 On initial examination, the plaintiff had a significantly restricted range of cervical and thoracic movement in all planes due to pain. She was tender to palpation along the cervical spine centrally and bilaterally and in the upper back. Neurological examination of the upper limbs was essentially normal.
253 The MRI scan of August 2010 was noted.
254 Right C4-5-6-7 medial branch blocks performed on 14 and 28 May 2010 were positive, suggesting that the plaintiff’s pain was arising from the right C4-5, C5-6 and/or C6-7 facet joints.
255 A right C4-5, C5-6 and/or C6-7 facet joint radiofrequency neurotomy was performed on 28 June 2010.
256 On review in August 2010, the plaintiff reported that the right lower cervical facet joint radiofrequency neurotomy had resulted in good relief of her right neck pain. However, she still suffered persistent pain on the left side of the neck and in the mid thoracic region as well as in the low back.
257 Dr Gassin noted that the recent MRI scan had not revealed any significant abnormality. It revealed a central disc prolapse at L5-S1 which contacted the thecal sac as well as facet joint arthropathy mainly at L4-5 and L5-S1. Dr Gassin thought those changes may well be contributing to the plaintiff’s low back pain, but the main issue remained one of neck and thoracic pain.
258 Dr Gassin suggested consideration of left C4 to C7 medial branch blocks with a view to radiofrequency neurotomy of the left low cervical facet joints. He suggested the discontinuance of Naprosyn, but that the plaintiff remain on Panadol Osteo twice a day, and Endone as required.
259 Dr Gassin diagnosed a whiplash injury and mid and low back injuries as a result of the accident. He thought the plaintiff’s right low cervical spine pain was arising from the mid and low cervical facet joints. In his view, the source of the remainder of her symptoms was unclear.
260 Dr Gassin reported on 10 September 2010 that he thought the plaintiff’s condition had stabilised and her symptoms were likely to persist into the foreseeable future. He thought that she had a current work capacity, avoiding awkward postures, prolonged elevated arm positions, repetitive neck movement and heavy lifting. He noted that it was interesting that the plaintiff had obtained adequate relief from her right sided neck pain from the radiofrequency neurotomy, which the defendant had refused to pay for as it did not meet the criteria for that procedure.
261 Dr Gassin wrote to Dr Kadom on 30 August 2010 following a right low cervical facet joint radiofrequency neurotomy two months earlier. He advised that the procedure had resulted in good relief of the plaintiff’s right neck pain. However, she still had persistent pain on the left side of her neck and in the mid thoracic region and lower back.
262 Dr Gassin noted that the recent MRI scan did not show any significant abnormality in the cervical or thoracic spine, but revealed a central disc prolapse at L5-S1 contacting the thecal sac, as well as facet joint arthropathy, mainly at L4-5 and L5-S1, which he felt may be contributing to the plaintiff’s low back pain. However, he thought her main issue was one of neck and thoracic pain.
263 Dr Gassin suggested consideration of a C4-C7 medial branch block with a view to a radiofrequency neurotomy of the left low cervical facet joints. He also suggested Naprosyn be discontinued but otherwise the plaintiff remain on Panadol Osteo and Endone. He advised he would review the plaintiff once she had made up her mind whether to go ahead with the further blocks.
264 Mr de la Harpe reviewed the plaintiff at Epworth Hospital on 29 June 2008. The plaintiff reported having intractable neck pain since the accident.
265 On examination, the plaintiff had restricted cervical movement and complained of no neurological radicular signs in the upper limb. Her biceps reflexes were diminished bilaterally. Her MRI scan showed no surgical pathology. Mr de la Harpe organised a blood test which showed an elevated antinuclear antibody level.
266 A further review took place on 21 September 2009. The plaintiff complained of neck pain, stiffness, mid thoracic pain and lower lumbar pain.
267 On examination, the plaintiff had a reduced range of movement by fifty per cent in all directions. Mr de la Harpe recommended ongoing physiotherapy.
268 Mr de la Harpe diagnosed a whiplash type injury and the facts of the diagnosis were that of the onset of neck pain following a rear end collision in the absence of any significant MRI findings. He noted treatment provided had been conservative and included referral to pain management and rheumatology. His recommendations for treatment in the future revolved around conservative management. He believed the plaintiff’s prognosis was somewhat guarded, and he was unaware of her capacity for work at that time or in the future.
269 Dr De Graaf saw the plaintiff on 1 July 2008 after she was admitted to Epworth Hospital with an acute on chronic pain profile.
270 Dr de Graaf wrote to Mr de la Harpe on 4 July 2008, noting that in the week prior to admission the plaintiff had marked increase in neck and shoulder pain, as well as arm and leg pain. She was taken to the Austin Hospital Emergency Department, given IV morphine and sent home, and she came to the Epworth Hospital on 28 July 2008 in desperation with an initial analogue pain score of 9 out of 10 at worst.
271 On examination on 1 July 2008, the plaintiff was unwilling to move. She had a decreased range of all of her spine, shoulders and hips. Given the acuteness of her picture and the possibly inflammatory nature, he suggested a trial of Prednisolone for three days.
272 On 1 July 2008, there had only been a mild improvement but by 4 July 2008, there was a significant improvement in the plaintiff’s profile with more free movement and a visual analogue score of 3 to 4 out of 10. Given her significant improvement, Dr De Graaf was happy for her to be discharged but suspected she may need pain management, and he organised a review on 11 July 2008.
273 On that occasion, the plaintiff was taking Endep, 5 milligrams, up to four times a day which was having some abating affect on her pain. She had ceased taking Tramadol and she was backing up the Endone with Valium and Panadol. She had continued on Prednisolone, low dose.
274 Given her pain had not really settled, Dr De Graaf thought the plaintiff was not fit to return to work then and had not progressed since the accident. He thought it was necessary to “nip the [plaintiff’s] pain in the bud” and he advised Mr de la Harpe that the plaintiff was an ideal candidate for pain management.
275 Dr De Graaf also advised Mr de la Harpe he had taken the liberty of prescribing Norspan patches as the plaintiff’s pain was not controlled and was inhibiting her function. He noted the plaintiff had put on ten to fifteen kilograms since the accident and that was having a dramatic affect on her function as well. He prescribed Motillium to cover any nausea issues.
276 On 3 March 2009, Dr De Graaf wrote to Ms De Boo, occupational therapist, recommending the plaintiff continue with her hairdressing course with an increasing involvement.
277 On review on 13 May 2009, Dr de Graaf advised the plaintiff was progressing slowly. She was then taking Lyrica and Panadol Osteo and averaging four to five flare ups of her thoracic pain per week with variable instigation of the pain but generally coping better with it. He thought that with her severe exacerbation of pain the Endone would have a role.
278 Dr de Graaf advised the plaintiff had had two collapses in the past three months which he thought may well be medication abuse but other factors including sleep deprivation and pain and general wellbeing. He noted one of the plaintiff’s constant complaints had been persistent headaches which he thought appeared to be cervicogenic in nature associated with overactivity of her erector spinae. He noted, pleasingly, the plaintiff had completed her hairdressing course. He recommended at the first instance she return to twenty hours a week with adequate time for rest for four weeks. He thought the plaintiff required flexibility in her duties. Once she had stabilised at that level he suggested it would be appropriate for her to increase to twenty five hours a week.
279 On review on 26 March 2010, the plaintiff continued to work twenty hours but continued to complain of thoracic and cervical pain and some shoulder pain.
280 In Dr de Graaf’s opinion, noting the recent referral to Dr Gassin which he supported, it was highly likely the plaintiff’s ongoing issues related to her thoracic spine with some involvement of the truncal musculature and structures, with associated neck and shoulder issues.
281 On review on 16 May 2010, the provocative tests had been performed. The plaintiff’s symptoms continued but she felt she had started to deteriorate. She described an episode when her back seized up in May 2010 and she was admitted to Accident and Emergency and treatment with Toradol injections, Pethidine and Ketamine with minimal impact.
282 The last review of the plaintiff occurred on 25 August 2010 after the radiofrequency denervation which resulted in no significant improvement in the plaintiff’s right neck, shoulder or thoracic pain. The plaintiff was then also noting more low back pain.
283 He noted there had been some discussion about the plaintiff increasing her hours at work. She was then taking less Endone. Clinically she was exquisitely tender from T3 in the midline down to L5 and para-spinally in the lumbar region. Dr de Graaf suggested a review on 24 November 2010 following further management from Dr Gassin but that appointment was not kept.
284 Describing the circumstances of the accident, Dr De Graaf thought the plaintiff appeared to have sustained a whiplash type injury. He considered that she now had chronic ongoing cervicothoracic pain and shoulder pain which was principally mechanical in nature but he thought she had developed a fulminant Pain Syndrome. He thought at that stage the plaintiff would need to undertake her home exercise program looking at core stability around the neck, shoulders, thoracic and lumbar regions, as well as maintaining her fitness and general wellbeing, and at times he thought she may require physiotherapy.
285 Dr De Graaf considered that the plaintiff’s symptoms have never really settled and have inhibited her progress in terms of her vocation and life. He thought she had clearly had a persistent picture with a mechanical basis for her pain.
286 Dr De Graaf thought the plaintiff’s prognosis was guarded given it was now over three years since her original injury. He noted that she had persistent pain which had not responded to conservative management, and no surgery was indicated. Trials with a spinal musculoskeletal physician intervention also did not appear to have altered her wellbeing and he thought it was likely she would continue to have ongoing pain indefinitely.
287 When last seen, the plaintiff was managing twenty hours a week, performing hairdressing with modifications within the worksite. He thought it was unlikely she would progress beyond the level she was functioning in August 2010 due to the inhibitory nature of her pain.
288 Ms De Boo, psychologist, initially saw the plaintiff on referral from Dr Chaudry on 13 May 2009. From then until January 2010, the plaintiff attended fortnightly for psychological counselling.
289 The plaintiff told Ms De Boo she remained angry at the other driver in the accident because her life had been changed forever.
290 The plaintiff told Ms De Boo her childhood was very happy and she had always wanted to be a hairdresser, going into that field after Year 11.
291 Ms De Boo had no hesitation in believing the accident was a life changing experience for the plaintiff. Treatment thereafter consisted of cognitive behavioural regimes.
354 Dr Serry confirmed the involvement of the accident in the plaintiff’s relationship breakup and his comments that she would require some monitoring thereafter. He agreed that the new relationship was a good thing but it depended on the relationship.
355 He thought that the plaintiff’s prognosis would be guarded, he explained that one of the features in the chronic pain scenario, was that pain itself produces a degree of anxiety and depression. People become upset and emotionally distressed by their pain and the interaction between the pain itself and unpleasant sensation and anxiety and depression tends to increase the two.
356 He did not use the word “chronic pain” or “Chronic Pain Syndrome” as he was more struck by the symptoms of anxiety, depression and some traumatisation than he was by the impact of the pain itself and that was where he differed from Dr Hayman’s view.
357 Dr Serry thought Chronic Pain Syndrome was a diagnosis made by a non psychiatrist and was “an appalling diagnostic entity”. Psychiatrists would use different words within the three categories; CPS where pain was the predominant clinical feature; secondly, a CPS with psychological factors and a general medical condition; and, thirdly, where psychogenic factors were mediating the pain and there was no medical condition, or it had resolved it would be described as a CPS with psychological features.
358 Dr Serry thought Ms De Boo’s suggestion of two years further psychological treatment was a long time and it would be preferable for there to be psychiatric involvement.
359 Dr Serry thought there tended to be significant fluctuations and improvement was often nonlinear and adopted a “sore tooth pattern” so he was not as optimistic as to the plaintiff’s prognosis.
360 Dr Serry was struck by the fact the plaintiff was actually continuing to work, which he thought was a very positive sign speaking to a level of resilience and a desire to keep on going. He thought with people with chronic pain, if they can work that is a positive prognostic feature.
361 Having been told of Dr Hayman’s view, Dr Serry said if he is accepting there is no clear organic base, then he should not be making the diagnosis of a Chronic Pain Disorder associated with both psychological factors and a general medical condition. He should simply be making the diagnosis of a Chronic Pain Disorder associated with psychological factors.
362 Dr Serry noted people who come from an abusive background are ones most likely to develop the “so-called Chronic Pain Disorder” because of a sense of being uncontained if they are growing up during critical developmental stages and then they encounter an issue which results in pain but which they find it very very difficult to contain themselves and march on.
363 Dr Serry agreed with Dr Hayman that a multidisciplinary pain regime was the most appropriate. He hoped the plaintiff would not be on that medication regime for the rest of her life.
364 In re-examination, further matters of the plaintiff’s history were put to Dr Serry. He said it did not change his opinion, having found out how the plaintiff improved after counselling post overdose.
365 He agreed that the gold standard treatment was that received by the plaintiff in the rehabilitation program at Epworth Hospital.
366 He confirmed the effect the accident had had on the plaintiff’s first relationship and the breakup of her engagement. In his view, the plaintiff’s general medical condition had not resolved.
The Defendants’ Medical Evidence
367 Dr Baker, occupational physician, examined the plaintiff on behalf of the defendant on 12 January 2009.
368 On examination, there was no postural abnormality noted. There was tenderness to palpation over the trapezius on either side, and there was a restricted range of neck movement.
369 Dr Baker noted there appeared to be an overreaction to light touch along the neck, the thoracic spine, as well as into both trapezius muscles. There was no specific tenderness around the plaintiff’s bra strap. There was some tenderness in the coccygeal region to palpation.
370 The plaintiff told Dr Baker that she wanted to work and go out and enjoy herself again.
371 Dr Baker noted concluded the plaintiff was involved in an accident where there was relatively little damage to her car. She was able to continue on to work, and from work was sent home. However, Dr Baker noted the plaintiff appeared to have developed a Pain Syndrome with marked pain and tenderness in the neck and trapezius region on both sides, suggesting a myofascial Pain Syndrome.
372 Dr Baker considered that in the accident the plaintiff suffered soft tissue injuries of a musculoligamentous strain to the cervicothoracic and lumbar spine, but there was no evidence of radiculopathy.
373 Dr Baker thought the plaintiff’s injuries were consistent with the forces to which she was exposed. He noted that it was a relatively minor physical injury, and the plaintiff did not have any obvious physical pathology other than persistent pain. From a physical perspective, Dr Baker considered she had a capacity for employment, but was trapped in a vicious circle of pain related to activity, although in discussion she was aware that the pain was necessarily synonymous with injury or damage.
374 In view of his diagnosis, Dr Baker wondered whether the plaintiff would benefit from being referred to Dr Lim to do dry needling to try to relieve those conditions.
375 Dr Baker considered, other than her Pain Syndrome, the plaintiff would be fit to perform her pre injury employment. However, she was trapped with pain which restricted her ability to exercise and also to work. Dr Baker therefore did not consider that she was capable of undertaking her pre accident employment and administrative tasks, but she said she wanted to practise as a hairdresser. Without further treatment he believed those restrictions would continue.
376 Dr Baker concluded that the plaintiff was suffering with chronic pain, although he did not consider there was any skeletal abnormality. He thought that with time, appropriate treatment and exercise her overall state would improve. However, noting the accident occurred in February 2008 and she was still very restricted, Dr Baker thought the plaintiff only had a fair prognosis.
377 Dr Kostos, rheumatologist, examined the plaintiff on 19 April 2010.
378 The plaintiff then complained of constant pain throughout her spine and shoulders, with occasional pain in her hip. She told Dr Kostos her general health prior to the accident had been good.
379 On examination, the plaintiff’s neck movements were markedly restricted with pain in all directions. She had diffuse mid line cervical and bilateral paravertebral tenderness to light touch. Shoulder elevation was limited to 90 degrees on both sides with a full range of other movements and full glenohumeral movements, but these were all painful. The plaintiff had diffuse tenderness with allodynia and dermatographia around both shoulder girdles.
380 Movements of the thoracolumbar spine while seated and standing were markedly restricted with pain in all directions. The plaintiff also had pain with simulated rotation, but with extremely light axial compression she complained of neck pain and her knees bent.
381 The plaintiff had diffuse tenderness along the entire thoracolumbar spine, sacrum, adjacent paravertebral areas, buttocks and hips, and the medial aspect of both knees. Neurologically she had collapsing weakness proximally.
382 Dr Kostos thought it was quite apparent the only diagnosis that could be made was that the plaintiff had a Chronic Pain Syndrome. In his view there was no evidence of a localised physical abnormality on the basis of information currently known.
383 Dr Kostos noted it was quite apparent in all cases of Chronic Pain Syndrome the prognosis was extremely poor. It was quite clear in his view that that syndrome was significantly influenced by non physical factors, and it would be unlikely any localisable musculoskeletal abnormality was present.
384 Dr Kostos supported denervation treatment only in limited circumstances. He could not see that ongoing treatment from a naturopath or osteopath was appropriate, nor did he believe Naprosyn was appropriate. He thought that, in general, use of narcotic analgesics in chronic pain states should be avoided. However, in his view, the plaintiff should be encouraged to exercise. He made no comment about the plaintiff’s employment capacity.
385 Mr Michael Shannon, orthopaedic surgeon, examined the plaintiff on 18 April 2011.
386 On examination, the plaintiff had significant restriction of all movements of the cervical spine, particularly lateral flexion and rotation. There appeared to be some spasm, although the plaintiff rotated her neck more freely in conversation. There was no neurological abnormality in her upper limbs, although reflexes were relatively inactive. The plaintiff had tenderness over the sacrum and coccyx, and had a normal range of movement of the thoracolumbar spine, and, although movements were a little hesitant, there was no spasm.
387 No investigations were brought to the consultation.
388 Mr Shannon noted the plaintiff’s initial treating general practitioner’s report described x-rays of the neck reported to show a mild scoliosis suggesting muscle spasm, but disc heights were normal, and there was no fracture, dislocation or abnormality of paravertebral soft tissues. The plaintiff’s thoracic spine x ray was reported to show a minor scoliosis. A subsequent CT scan was reported to show no bony injury, and normal bony alignment, and no significant disc herniation or foraminal stenosis.
389 Mr Shannon diagnosed soft tissue injury to the cervical spine and a possible soft tissue injury sacrum. He considered the plaintiff’s prognosis was a little uncertain, as she had had ongoing symptoms and apparent physical signs some three years after the accident.
390 Mr Shannon noted that the accident was apparently a relatively minor one. Nevertheless, he considered the nature of the accident was consistent with producing extension injuries to the cervical spine.
391 Noting the association of recurrent vomiting and severe headaches was not typical of whiplash, Mr Shannon commented that there had been a continuity of symptoms since the accident, and to some extent he thought that the physical findings were consistent with a soft tissue injury to the neck.
392 As the plaintiff currently presented, Mr Shannon doubted she could work full time, and thought she would probably have some difficulty with overhead work such as using the blow-dryer.
393 Mr Shannon thought overall there appeared to have been some improvement in the plaintiff’s condition over the years, noting she had not had a severe attack of pain, headache and vomiting for more than a year.
394 Mr Shannon thought that the plaintiff’s symptoms had at least in part an organic basis and they were attributable at least in part to the accident. He thought the symptoms were not inconsistent with the stated cause, although they seemed to be more severe than the relatively mild accident described.
395 Mr Shannon thought treatment should remain conservative.
396 Mr Shannon concluded that he would not have thought that hairdressing was not an ideal profession in the plaintiff’s situation, but there was still reason for optimism. He thought she may be able to get back to full time work, although with some restrictions.
397 Dr Kam, consultant radiologist, provided a report on 1 June 2011, having seen the MRI of 2 June 2008. Dr Kam concluded there was no convincing evidence of a significant recent or remote soft tissue or osseous trauma at the level of the cervical spine. Further, in his view there was no significant degenerative change, neural compressive lesion, or spinal cord abnormality demonstrated.
398 In summary, he thought the available MRI obtained four months after the accident demonstrated no significant traumatic injury to the neck. He considered the non neural compressive disc bulge seen at C5-6 may well be an incidental finding and asymptomatic.
399 In the absence of any detectable associated osseous or soft tissue injury, and, in view of the background of the low speed transport accident, he thought the minimal disc bulge at C5-6 was favoured to be unrelated to the effects of the accident.
400 On 16 July 2010, Dr Hayman, psychiatrist, first examined the plaintiff on behalf of the defendant.
401 In terms of past history, the plaintiff told him that she had not had any childhood difficulties. She was a good student. She knew she always wanted to be a hairdresser, and dropped out midway through Year 11 to pursue that career.
402 On mental state examination, the plaintiff’s affect was mildly depressed. reactive and communicated. She described a heightened sense of awareness when in cars. No other perceptual abnormalities were elicited at interview.
403 The plaintiff’s thoughts centred on her pain and the limitations it caused her and also on anger and resentment at the other driver. She felt on occasion that life was not worth living, but denied any suicidal intent or plan. No psychotic features were elicited at interview. Cognitive assessment was unremarkable. The plaintiff’s insight was partial.
404 Dr Hayman thought the plaintiff had subsequently gone on to develop a chronic pain disorder associated with both psychological factors and a general medical condition. He noted Dr Kostos’ and Dr Baker’s view that there was no clear organic focus. In Dr Hayman’s view, the plaintiff’s condition did occur in a setting of significant emotional psychological issues.
405 Dr Hayman considered that the plaintiff had developed a Chronic Adjustment Disorder with Depressed and Anxious Mood. He thought she had depressive symptoms which included relative anhedonia, lowered mood, some anergia, impaired concentration, etc. The plaintiff also had some evidence of phobic anxiety with regard to driving. He suspected there was a significant degree of anger and bitterness about the other driver.
406 Dr Hayman thought that it was concerning that two years after the accident where she received soft tissue injuries only, the plaintiff remained entrenched in a significant Chronic Pain Syndrome. He noted she was having opiates and remained entrenched in the sick role.
407 Dr Hayman was concerned about the nature of the plaintiff’s mental health treatment. He thought psychological treatment was appropriate, but it should be done in concert with psychiatric treatment. He also thought optimally the plaintiff should receive anti-depressant treatment in concert with psychological treatment, the latter of which should be outcome focused, in particular dealing with her chronic pain. He considered that was best done through a multidisciplinary pain clinic rather than a psychologist or psychiatrist alone.
408 Dr Hayman felt that weekly counselling sessions for twelve months was somewhat excessive. In his view such treatment may be appropriate for the first three months, but then with a view to weaning to fortnightly in a progressive fashion. However, in general he believed that the defendant had liability for the plaintiff’s psychiatric and psychological treatment.
409 At that stage Dr Hayman thought the plaintiff was not fit to return to her pre- accident employment from a psychiatric perspective, and that further addressing of the Chronic Pain Syndrome was required. In his view, that disorder at that stage precluded a full return to return to the plaintiff’s pre accident employment.
410 Dr Hayman re-examined the plaintiff on 2 February 2011. The plaintiff told him since the previous examination she had improved with regard to her endurance.
411 Further, the plaintiff told him that she was “not great” in terms of her current psychological condition. Her fiancé had left her in 2010 because he had had enough of it all. The plaintiff described herself as sad and said she put on a smile at work.
412 On mental state examination, the plaintiff’s affect ranged from euthymic to mildly depressed. It was reactive, appropriate and communicated. She described a heightened sense of awareness in cars. Her thoughts centred on her limitations, which had occurred by virtue of her pain. She had on occasions felt life was not worth living, but there was no active suicidality described, and no psychotic features were elicited at the interview. Cognitive assessment was unremarkable, and her insight was partial.
413 Dr Hayman noted on re-examination, in general there appeared to have been some improvement both physically and psychologically.
414 He considered the plaintiff continued to have evidence of a chronic pain disorder associated with both psychological factors and a general medical condition. However, by the plaintiff’s account she was more adaptive in her dealings with this and had increased her work. Dr Hayman also noted there was not the previous account of frequent attendances at hospital requiring opiate analgesia.
415 Dr Hayman considered there was still ongoing evidence of an adjustment disorder with depressed and anxious mood and some phobic anxiety with regard to driving – both of which appeared relatively mild. He thought the plaintiff’s main issue was the chronic pain disorder associated with both psychological factors and her general medical condition. In his view, this was psychological rather than organic.
416 Whilst he thought the plaintiff’s response appeared disproportionate to her accident injuries, that did not imply any conscious feigning. He suspected it related to her response to the accident, given her premorbid personality style and vulnerability.
417 Dr Hayman’s impression was of a woman who genuinely wished to try and move on in a work capacity. He thought it was the chronic pain disorder which was interfering with her capacity to work, and unless it was more aggressively treated he expected the plaintiff’s incapacity to be ongoing.
Lay Evidence
418 The defendant relied on an affidavit of Catherine Scott sworn on 16 April 2011 in which she exhibited the statement made to the police in relation to the accident and also exhibited the assessment of the plaintiff’s damage which totalled $830.
419 Ms Scott described how whilst being stopped at an intersection for a while there was a bump and she felt her foot slip off the brake pedal; the car rolled forward tapping the white vehicle in front of it.
420 After the accident, she followed the plaintiff to a nearby shopping centre. She saw the plaintiff bend down to inspect the rear of her car and upon inspection they both agreed there was no visible damage to either vehicle. The plaintiff said she was fine and told her she worked at the hairdressers. She also told her that she had a bad back and had to be careful because hairdressing was not helping her. Neither of them exchanged details as there was no damage to the cars and neither of them was hurt. Ms Scott did not think the matter would proceed any further. She was then contacted by Epping police where she attended and made a statement on 21 March 2008.
421 Diamond Valley Smash Repairs set out repair costs of $830.50 in relation to the plaintiff’s vehicle.
Overview
422 I am satisfied that in the accident the plaintiff suffered an injury to her cervical spine which has been diagnosed as a whiplash/extension injury, or soft tissue injury.
423 Whilst the accident was a relatively minor one, Mr King, who explained the accident involved a very significant degree of kinetic energy, was not cross- examined. Further both Dr Baker and Mr Shannon accepted the mechanism of the accident could result in the plaintiff’s injury.
424 The main issue in dispute is whether, at the date of the hearing, the plaintiff’s neck condition is organically based or whether she now suffers from a Chronic Pain Syndrome, a mental impairment which is more appropriately dealt with under subsection (c).
425 Counsel for the plaintiff submitted the plaintiff had satisfied the requisite test in relation to both impairments.
426 Counsel for the defendant submitted that the plaintiff’s situation fell somewhere between (a) and (c). The physical injury had resolved and was overtaken by a Chronic Pain Syndrome that did not meet the “severe” test.
427 Further, it was submitted that the treatment of a Chronic Pain Syndrome by opiates was not optimal and as the plaintiff’s condition had not been fully treated it could not be considered long term.
428 Both the plaintiff’s general practitioners thought there was an organic basis for the plaintiff’s ongoing complaints and they confirmed that the plaintiff had responded to treatment because of the physical nature of her complaints.
429 The plaintiff’s current treater Dr Chitgopeker thought the majority of her condition was organic. In his view, she was taking very little in the way of opiates for her significant amount of neck pain.
430 Previous treater, Dr Kadom, confirmed the plaintiff’s intake of opiates was at a low level. She thought the plaintiff was a genuine patient who did not “doctor shop” for drugs. In her view, the plaintiff was compliant and the levels and type of medication varied according to her fluctuating condition.
431 Significantly, neither general practitioner saw the need for psychiatric referral or the prescription of therapeutic dosages of anti depressants.
432 Whilst treating rheumatologist Dr Fraser who last saw the plaintiff on the one occasion in October 2009, diagnosed a Chronic Pain Syndrome secondary to trauma, he did not elaborate on his findings.
433 Dr Gassin thought the plaintiff’s cervical spine pain was arising from the mid and low cervical facet joints. This view was confirmed when the plaintiff received some relief from treatment of her facet joints in 2010.
434 Dr De Graaf, who instigated the plaintiff’s present opiate regime, thought it highly likely that her ongoing issues related to her thoracic spine with some involvement of the trunkal musculature and structures with associated neck and shoulder issues. He considered her condition was principally mechanical in nature but with a fulminant Pain Syndrome.
435 Medico-legal examiner, Mr King, who saw the plaintiff most recently in April 2011, thought the plaintiff had damaged the spinal discs and associated ligamentous structures in the accident. He found spasm on examination on both examinations, a finding also made when the plaintiff attended the Austin Hospital in June 2008.
436 Mr King thought there was no suggestion of exaggeration and the degree of pain complained of was consistent with the nature of the underlying organic injuries to the plaintiff’s spine. On that basis he disagreed with the diagnosis of Chronic Pain Syndrome.
437 Dr Hocking’s diagnosis of a soft tissue injury with an Adjustment Disorder is now somewhat outdated having seen the plaintiff only once in July 2008.
438 Dr Serry did not diagnose a Chronic Pain Syndrome as he “was more struck by the symptoms of anxiety, depression and some traumatisation than he was by the impact of the pain itself.” He thought there was persistent physical symptomatology.
439 Whilst in the body of his report Dr Hayman seemed to support the contrary view, his ultimate diagnosis of a Chronic Pain Syndrome included a medical condition which, as Dr Serry explained, involved a continuing organic involvement in the plaintiff’s condition.
440 Although diagnosing a soft tissue injury, taking into account his findings of exaggeration on examination, Dr Baker thought the plaintiff appeared to have developed Chronic Pain Syndrome with marked pain and tenderness in the neck and both sides of trapezius suggesting a myofascial Pain Syndrome. However, whilst making this diagnosis, Dr Baler suggested a referral to Dr Lim who utilised dry needling to try and relieve the plaintiff’s condition.
441 Having examined the plaintiff in April 2010, Dr Kostos thought the only diagnosis he could make was Chronic Pain Syndrome having found no evidence of any localised abnormality.
442 Mr Shannon, following examination of the plaintiff in April 2011, did not share Dr Kostos’ more extreme view. Mr Shannon noted there had been a continuity of symptoms since the accident and to some extent the physical findings were consistent with a soft tissue injury to the cervical spine. In his view, the plaintiff’s symptoms had at least in part an organic basis.
443 Dr Kam’s opinion was based solely on his interpretation of the MRI and he did not examine the plaintiff.
444 As this overview demonstrates, most medical practitioners in this case are of the view that the plaintiff’s neck injury has produced an organic impairment or loss of body function. The two general practitioners who were cross examined confirmed this view and the evidence of various specialists in this regard was not challenged.
445 Further, I accept that plaintiff is a genuine witness whose complaints of pain are corroborated by her mother and workmates. She has been compliant with the various treatment modalities suggested to her and she has acknowledged improvement in her condition at different times.
446 There was nothing shown in the very limited surveillance film that was inconsistent with the plaintiff’s description of her level of pain and restriction.
447 As Dr Serry described, the fact that the plaintiff continued to work “speaks to a level of resilience and a desire to keep going.”
Pre-Accident Condition
448 There was extensive cross examination of the plaintiff in relation to her pre- accident health.
449 Before the accident, the plaintiff had some psychiatric issues involving bulimia and an overdose in November 2006 - problems which occurred largely in a setting of bullying at school.
450 After a couple of counselling sessions following the overdose, the plaintiff did not require any further treatment. She left the unhappy school environment and embarked upon her chosen career of hairdressing.
451 Dr Kadom and the plaintiff’s mother both confirmed that after that brief period of counselling, the plaintiff had no psychiatric problems.
452 When advised of a more extensive history of these matters in both cross- examination and re-examination, given the plaintiff’s recovery shortly after the overdose, Dr Serry did not think that the overdose and other matters at that time were of ongoing relevance to the plaintiff’s mental condition.
453 The plaintiff explained that the reference to neck pain in March 2006 was in the context of a virus in March 2006 and she had no ongoing neck problems. The complaint of headache in November 2007 was an isolated incident. The plaintiff did not have a history of severe headaches before the accident.
454 In terms of her personal life, prior to the accident, the plaintiff was engaged to be married, she was involved in the first year of her apprenticeship, which she loved, she had a wide circle of friends and enjoyed a very active teenager’s social life of clubbing and other activities.
Consequences
455 At twenty one years of age, the plaintiff is a particularly young woman.
456 In Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181, Ashley JA and Beach AJA, at paragraph 43, discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.
457 The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, it was relevant to look at the likely period for which those consequences would be experienced. It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.
458 I accept that as a result of her neck injury, the plaintiff’s life has changed dramatically.
459 Since the accident, the plaintiff has experienced constant neck pain of varying degrees, which at times is so severe she has required assistance in hospital emergency. Those flare ups came on after no particular activity and involved the plaintiff vomiting and being unable to move because of severe neck pain. Further her neck movement is restricted and she continues to suffer from significant headaches.
460 Various treatment modalities have been undertaken, including the Epworth Pain Management Program which Dr Serry described as “gold standard”.
461 In more recent times the plaintiff has undergone branch block procedures n procedures performed by Dr Gassin which have resulted in some improvement.
462 The issue of the plaintiff’s medication was the subject of much cross examination, with it being submitted by counsel for the defendant that the plaintiff’s present regime was somehow not addressing her condition.
463 The plaintiff continues to require opiate medication for pain. She has always been compliant with treatment and medication suggested and as Dr Kadom confirmed she has not abused her access to such medication or developed any dependency problems whatsoever.
464 Both general practitioners when cross examined confirmed the low level of opiate prescription and the response of the plaintiff thereto. Both were conscious of prescribing opiates to a young person and also the risks of addiction and they monitored the plaintiff’s intake accordingly.
465 Dr De Graaf, who initiated the regime, was not cross-examined nor were any other specialists involved in the plaintiff’s treatment.
466 Whilst Dr Serry agreed with counsel for the defendant that a pain management program was the correct treatment for the plaintiff, this in fact has occurred without significant improvement in the plaintiff’s condition.
467 In addition to her pain and restriction, there are a number of other consequences of the plaintiff’s physical impairment.
468 A major consequence of the plaintiff’s neck injury is its effect on her ability to pursue her chosen career as a hairdresser.
469 Work in this field was something the plaintiff had wanted to do since she was a young girl. Her ambition was to run her own hairdressing salon.
470 I accept that despite her best efforts, because of her physical restriction the plaintiff is only able to work twenty hours a week. Attempts at further duties have resulted in flare ups as confirmed by Ms Granato and other lay witnesses.
471 That twenty hours work is not without its problems. The plaintiff can only manage a much smaller client load than she serviced prior to the accident. The actual duties the plaintiff performs on a part time basis are limited. She cannot do a full set of foils or do long style cutting. She is unable to complete all the tasks involved with a client such as washing, styling and blow drying. An apprentice has been engaged solely to help the plaintiff in her tasks. The plaintiff is only able to undertake unrelated jobs such as cleaning on a very limited basis.
472 As confirmed by lay witnesses, it is a frequent occurrence for the plaintiff to call in sick or go home early because of her pain. Whilst at work, the plaintiff is obviously in pain and has to take rests as her fellow workers have described. As at the hearing date, the plaintiff had missed six days from work since February this year because of her neck condition.
473 Whilst the plaintiff is a very valued employee, Ms Granato has concerns about the business’ ability to keep the plaintiff on given her unreliability and the limited duties she can perform. Further Ms Granato considered the plaintiff would be unable to get hairdressing work on the open market.
474 The consensus of medical opinion is that because of her neck condition the plaintiff would have difficulty with hairdressing tasks and there is no suggestion that she could work further hours.
475 The plaintiff herself acknowledges that hairdressing is not the ideal career for her but it is what she loves and knows. Other jobs in the beauty field such as a nail technician or a “piercer” would be difficult for her because of the bending of the neck which is involved. In terms of alternative employment the plaintiff would have problems with prolonged standing or sitting. She would be unable to carry clothing and other items in a shop if employed in retail.
476 From a social point of view, the plaintiff’s life is now very limited as a result of her neck pain and her resultant lack of energy. No longer is she able to go out with her friends to bars and clubs at least three times a week as she enjoyed prior to the accident. She is limited in her sporting pursuits and cannot do simple activities such as running on the beach, going to Luna Park or shopping with her friends.
477 In addition to these physical consequences, the plaintiff is also entitled to rely on the expected mental consequences of her neck injury in terms of establishing seriousness: see Winneke P in Richards v Wylie (supra). The plaintiff is upset and frustrated about her pain and restriction and the effect it has had on her life in general. In the past her relationship with her ex fiancé was affected and the plaintiff continues to be concerned about the restrictions on her work and what her future holds in that regard..
478 I accept that the plaintiff’s condition is long term. Her pain and restriction have continued for over three years. She has not increased her working hours from twenty hours per week for the last two years and I do not consider this situation will change.
479 I am not persuaded that the plaintiff’s treatment regime is such that her condition is not being properly addressed or that she is not taking up alternative treatment that would resolve her condition.
480 Taking into account all the evidence, I am satisfied that the impairment of the plaintiff’s neck is serious and long term.
481 Accordingly, leave is granted to the plaintiff to bring proceedings for damages in relation to the accident.
- -
0
3
0