Kenneally v Transport Accident Commission

[2021] VCC 990

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-20-04901

MELINDA JOY KENNEALLY	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

---

JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	29 June 2021
DATE OF JUDGMENT:	26 July 2021
CASE MAY BE CITED AS:	Kenneally v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2021] VCC 990

REASONS FOR JUDGMENT
---

Subject:TRANSPORT ACCIDENT

Catchwords:              Serious injury – impairment to the spine – aggravation – causation 

Legislation Cited:      Transport Accident Act 1986, s93

Cases Cited:Richards & Anor v Wylie (2000) 1 VR 79; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Petkovski v Galletti [1994] 1 VR 436; Dordev v Cowan & Ors [2006] VSCA 254

Judgment:                  Application dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Monti QC with Mr S Carson	Arnold Thomas & Becker
For the Defendant	Mr R W Middleton QC with Mr A Coote	HWL Ebsworth Lawyers

HER HONOUR:

Introduction

1This is an application brought by an Originating Motion for leave pursuant to s93(4)(b) of the Transport Accident Act 1986 (the “Act”), to bring proceedings to recover damages for injuries suffered by the plaintiff arising out of a transport accident which occurred on 2 February 2014 (“the 2014 accident”).

2The application is brought pursuant to s93(4)(d) of the Act. Sub-section (6) provides:

“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”

3The definition of “serious injury” relied upon by the plaintiff is under s93(17)(a):

“Serious long-term impairment or loss of body function.”

4The relevant body function is the spine.

5The enquiry under ss(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. 

6The serious injury defined by sub-paragraph (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 itself constitute or be the producer of the impairment of a body function.[1]

[1]        Richards & Anor v Wylie (2000) 1 VR 79

7In 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 “at least very considerable” and “more than significant or marked”.

8The plaintiff relied on three affidavits and gave viva voce evidence.  She was cross-examined.  She also relied on an affidavit sworn by her mother, Cathleen Kenneally, on 23 June 2021, and an affidavit of a family friend, Barry Gamble, sworn 13 June 2021.  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

9The plaintiff is presently aged forty-four, having been born in May 1977.  She is not working and has been in receipt of Transport Accident Commission (“TAC”) loss of earnings benefits since 1997.[2]

[2]Transcript (“T”) 50

10When aged seventeen, the plaintiff was involved in a transport accident on or about 24 September 1994 (“the 1994 accident”)  when she was driving a car which left the road and hit a tree. 

11The plaintiff was taken to The Alfred hospital with multiple injuries, including a closed head injury, ruptured spleen and chest injuries.  There were also multiple fractures of the pelvis, a fractured mandible and a fractured left clavicle.  She was in intensive care for about a month and then in rehabilitation for several months.  She ended up spending about eighteen months in a wheelchair before becoming ambulant.

12The plaintiff has had difficulties since, in finding employment.  She left school at Year 11 and worked in different areas of hospitality.  Her Acquired Brain Injury (“ABI”) made it very difficult for her to be able to hold down a job.  Having said that, she believed she had the best recovery possible from a physical perspective, bearing in mind the quite massive injury she had suffered.

The 2014 accident

13The plaintiff was involved in the accident on 2 February 2014 (“the said date”)  when her car was hit from behind by another car while stationary at traffic lights in Centre Dandenong Road.[3]

[3]The Victoria Police Incident Report dated 17 March 2014 described the level of damage to the plaintiff’s car as moderate and the vehicle was driveable

14She suffered a whiplash injury to her neck and upper back, with subsequent pins and needles in her arms and hands.  She also suffered panic attacks, her car having been pushed forwards, and she felt quite terrified about being potentially hit by another car. 

15After the 2014 accident, the plaintiff called her parents, who took her home first, before taking her to see her general practitioner.  Eventually, she ended up at Sandringham Hospital Emergency. She was prescribed painkillers and discharged home to her parents.

16The plaintiff later saw a physiotherapist at Southern Suburbs Physiotherapy Centre (“SSPC”) Bentleigh.  She did not remember what year that was, but she had physiotherapy for about three months.  She had been asking the TAC for help and they often would not give it to her.[4] 

[4]T22

17After the 2014 accident, the plaintiff had trouble finding a doctor who could help her with “all her TAC stuff”.  She found Dr Varney and had seen him for years, but did not remember what year she started seeing him.[5]  After he left, she saw Dr Sultana at the same clinic, but she had also seen doctors at various other clinics.[6] 

[5]T22

[6]T23

18After the initial shock of the 2014 accident, the plaintiff began to notice that she had very significant neck, upper back and shoulder pain.  This did not settle with time.  She was left with arm and upper neck pain 24/7.

19As of July 2020,[7] her base level of pain was 5 out of 10 and at most severe, 9 out of 10.  That more severe pain came on every couple of days and was usually associated with headaches.

[7]First affidavit sworn 9 July 2020

20While she had issues with aches and pains after the 1994 accident, this upper back and neck pain was new to her, as were headaches and shoulder pain. 

21The flare ups of neck pain were hard to predict and sometimes came on for no obvious reason, or when she had to move her head to either side a lot, such as when driving.

22She then got an occasional feeling of pins and needles in her hands, which was quite random, and it worried her there might be some nerve damage. 

23She was unable to walk long distances.  Roughly, she could walk for up to five minutes.  Before the 2014 accident, she used a walking stick for longer distances; however, these days, she found using a stick jarred her neck, which compromised her walking significantly.  She was able to drive her dogs to the park and then let them run free, but that was usually about all in terms of going for a longer walk.

24Her lumbar/lower spine pain came and went, as it had for many years since the 1994 accident.  She usually experienced this pain a number of times every day.  It could often be very severe and travelled down into her buttocks and also her right leg to just above the knee.

25She found lower back pain started to build up to a problematic level after sitting for about ten minutes.  There was not much she could do then to make the pain go away, but sometimes lying down would help. 

26On a day-to-day basis, she was able to dress, shower and toilet herself independently.  She could still drive short distances, although sitting while driving brought on buttock pain. 

27The local council provided some assistance with cooking and cleaning.  She usually shopped online and had food delivered. Council assistance had stopped with COVID and she had significant problems with arm pain as she struggled to do her own cooking.

28The plaintiff also realised she had suffered severely from a mental perspective.  As at the said date, she was not working, but felt she was relatively stable with her pain levels and had her emotions under good control.

29Since the 2014 accident, she had been much more anxious and on edge.  She worried much more about being in a car.  She was a very nervous driver and passenger.  She realised that she had become significantly more depressed about her pain and predicament since the 2014 accident.

30Her neck pain was helped by physiotherapy and Nurofen, although sometimes the tablets did not seem to be able to do much at all if the pain was really bad.  She saw Zoe Lorenzo for physiotherapy at SSPC. She felt the treatment had been very helpful.

31The plaintiff had seen a physiotherapist at the Caulfield Pain Clinic but did not remember if she had seen another physiotherapist before she stared seeing Zoe Lorenzo in June 2019.  She probably had seen “people” in between, but she could not remember.  She thought she might have seen another physiotherapist in Parkdale once or twice, maybe between Caulfield and SSPC.[8]  She kept trying to ask the TAC for more physiotherapy and “things” and they said she was not getting any better so they were not going to approve anything.[9] 

[8]T28

[9]T27

32In more recent times, the plaintiff had also started seeing “Bec” at the same clinic for myotherapy.  It was hard at that early stage to say how much the treatment helped.  Apart from these practitioners, the plaintiff saw a new general practitioner, Dr Nicholas Nicola, who kept an eye on her overall condition and medication and referred her to a number of specialists. 

33The plaintiff was then waiting to start a pain management program to try and help with her neck and associated pain.  She had done some preliminary paperwork and was hopefully starting the course soon. 

34While things were not great before the 2014 accident, they were now much worse.  Before that accident, she was managing reasonably well with day-to-day life, whereas now her neck and upper back pain had compromised what she was able to do with her hands.  She also suffered from constant significant neck pain associated with very bad headaches.  These added problems had really knocked her around and she felt her quality of life had suffered greatly since the 2014 accident.

35In her second affidavit, sworn 15 June 2021, the plaintiff confirmed very little had changed in the last year.  She still suffers from very significant neck, upper back and shoulder pain.

36Her longstanding lower back pain had remained much the same for many years, but may have got a little worse; it was hard to say.  Her upper back and neck pain was much worse than the lower back pain.  She felt she was able to cope with the lower back pain before, but the upper back and neck pain had really stopped her in her tracks.

37Her mental state continues to be very bad, and she feels significantly more anxious and has a real sense of sadness since the 2014 accident. 

38The plaintiff has tried to think of various things that had changed in her life compared to how she was before, and then since the 2014 accident.  The following were the main things that stood out to her:

(a)   She had set up a business called Mel’s Pals, but never really got started.  She paid to set up a website and even had some business cards printed.  She thought the business might work as people already used to come to her for dog tips, training and advice, and she sometimes minded dogs while their owners were away.  These tasks made her feel useful and intelligent.  She also had experience, when growing up, training police and guide dogs.  There is no way she could now do that with her pain and lack of mobility and that made her feel very sad;

(b)   She used to occasionally do animal fostering and animal care, volunteering with animal shelters;

(c)   She used to take her dog to Bayside Companion Dog School (“the Dog School”).  She was asked to be a teacher as they were in the top class and went twice a week for many years.  The Dog School also had many social events, like bowling and lunches, and club members came to her birthday dinner.  That had all gone since the 2014 accident as a result of her lack of mobility;

(d)   She had had a romantic interest with the main helper at the Dog School, Neale, however, he wanted her to cook for him, which was too much pressure with her neck injury;

(e)   She now did not feel like she could cope with having a baby.  Carrying a baby or babysitting would now be too hard for her because of her upper neck pain and restriction, and that made her feel incredibly sad;

(f)    She struggled to carry her dogs if they were unwell or if they were injured, and she could not play with them like before;

(g)   She was embarrassed telling people she could not do things because she was in too much pain;

(h)   She used to be quite social, going out drinking, dancing, shopping and to dinners, and pretty much always had a boyfriend;

(i)    She went out with an amateur golfer for about a year.  They played golf two or three times a week and she often walked around with him for exercise, but she could not do that now because of her upper back and neck pain;

(j)    She felt she was stuck at home mostly these days due to pain since the accident.  She did not feel she could date, or hug, or have sex;

(k)   She was missing out on life experiences, such as family gatherings, parties, children and grandchildren;

(l)    She would love to be able come home to chat to someone and make plans for the future;

(m)     Since the accident, she has not been able to play sport like golf, tennis, beach volleyball, bowls and bowling, or play piano and guitar as she did when she was growing up;

(n)   She could no longer attend Buddhism classes;

(o)   She was previously involved in the vegan community, attending associated events, but could not participate since the accident;

(p)   She also volunteered with church and community services given the limitations of her ABI. She did that on and off for years in Hampton and Parkdale, but had not been able to since the accident;

(q)   She had lost her confidence, motivation and hope for the future;

(r)   Her dogs were now her main reason for living;

(s)   Her upper back and neck pain usually decided each day what she could do for the day, or the next hour.  If she did not have the dogs, she would not want to go on;

(t)    Before the 2014 accident, she saw a specialist at Monash about having a baby, but now she did not really have a plan about the future;

(u)   Since the 2014 accident, she had been robbed of a decent life, living pain free and waking up feeling glad to be alive;

(v)   Some days, things are so bad she has been talking to her mother about moving in with her.

39The plaintiff takes Nurofen and similar tablets most days.  They can help with upper back and neck pain, as well as lower back pain.  If the upper back and neck pain is really bad, the tablets do not seem to do much at all.

40She currently takes Nurofen for neck pain – two, four, six a day.  She has two tablets every time she takes them for her neck and upper back pain.  Her lower back is more manageable than her upper back, but the medication sometimes also helps her lower back pain.[10] 

[10]T28

41The plaintiff would like to do a pain management program.  This has been held up by COVID and she is waiting for approval. 

42She usually sees Dr Mittal monthly and also has physiotherapy every couple of weeks, although COVID has made this more difficult.  She does exercises each day, which she was taught at the gym. 

43Most of the things she does with physiotherapist Ms Zoe Lorenzo (“Zoe”) are for her neck, but the only way she can get approval is for physiotherapy for her lower back.  She has treatment on both her back and neck but “they” have told her to “put everything under the lower back”.  Zoe told her she writes her notes on the 2014 accident, but puts the bill on the 1994 accident because that is what “they” have told her to do.  Zoe is treating her neck the majority of the time.[11]

[11]T28; T41

44Things were not that great before the 2014 accident, but they are now very much worse.  The plaintiff feels like her quality of life has really suffered since then.

45In her third affidavit, sworn 25 June 2021, the plaintiff gave further details of activities she was involved in after the 1994 accident, but is no longer able to enjoy as a result of her neck and upper back injury suffered in the 2014 accident.  Her memory is usually not too good when she is put on the spot, and these various memories have come back to her.

46She used to go with a group of about ten people to bars or restaurants in Bentleigh once a week.  Her general group of friends also went for dinner in St Kilda, in particular, but there had not been dinners like this since the 2014 accident.

47Her friend, Neale, came over and she would regularly cook a meal for them both, but that had not happened since the 2014 accident.

48She went to the dog park more frequently and often sat and talked with other people for a couple of hours or more, sometimes going to another dog park the same day.  She enjoyed the companionship, but she now missed it.

49With a group of friends, they would try to go to various vegan restaurants around Melbourne, but she now missed doing that.

50Before the 2014 accident, she very much enjoyed golf.  She played with David Gough and Matt Pike in Dingley.  She was not a long hitter, but her putting was quite good, and she missed playing.

51She also used to play indoor volleyball, doubles’ tennis, lawn bowling and ten-pin bowling.  In these team or social type sports, she greatly valued the company of playing with others, but missed that since the 2014 accident.

52She also liked going to the football, having met a group via a dating site who would go together quite often.  They would meet for drinks and watch the game.  She felt part of something and met lots of different people. 

53She also went to Queensland with friends, and also with her mother.  She went to places like Fraser Island and Magnetic Island and enjoyed that very much.

54The plaintiff lived in both the Gold Coast and Cairns.  She thought she was in Cairns for about five years.  The Gold Coast was “up and back to Melbourne” a lot through her twenties.[12]

[12]T12 – examination-in-chief

55She lived with her boyfriend, Justin Little, who was in the Navy in Cairns.  They went camping and hiking on the weekends, and jogging and riding, always having an adventure.  She was involved in a beach volleyball team and they were always going to the waterfalls.  They visited Magnetic and Fraser Islands.  They went walking, swimming and snorkelling.[13]

[13]T13

56All these activities were in massive contrast to her present lifestyle.  Her upper back and neck pain has changed everything.  She now feels very lonely and a great sense of loss of these activities.

Cross-examination

57Cross-examination focussed largely on the plaintiff’s condition leading up to the 2014 accident.

58After the 1994 accident, she had a limp for a long time which she had almost got rid of by the time of the 2014 accident. Sometimes she could walk okay and sometimes she would limp.  She thought she got a walking stick while she was doing the pain management course at Caulfield in 2013.  It was a very bad limp initially, but it got better over the years.[14]

[14]T15

59She did not agree a limp stopped her doing the sporting activities she described.  It was not long before the 2014 accident that she played golf.  She played regularly with David Gough at Edithvale.  She had her own sticks, but sold them a few years ago.[15]

[15]T15

60The plaintiff did not run much after the 1994 accident, but her boyfriend had told her they used to go jogging.  She would have gone jogging a year or two before the 2014 accident.  She dated another guy and he used to take her to the gym and they used to try and jog around the football oval.[16] 

[16]T42

61The plaintiff was not working at the time of the 2014 accident and thought it would not have been too long before that that she last worked.  She may have told Dr Sullivan on examination in April this year that she was working at the time of that accident; she did not remember back then. That would have been what she believed at the time, but she just cannot remember.[17] 

[17]T17

62While Mr Mills noted that the plaintiff was working up to 30 hours a week at the time of the 2014 accident, she could not remember when her last job was.  She did work the entire time since the1994 accident right up until 2014, but she did not know what date it was she stopped.  She went to Centrelink between each job and then got another job, and eventually “they” put her on a disability support pension, but she did not know when.[18]

[18]T18

63It was not long before the 2014 accident that she had had her last job.  She was working at a call centre, Capital Transport.[19] 

[19]T41

64The plaintiff started going to Caulfield Pain Management in December 2013 because she had a lot of breathing problems, she had issues with ribs, lungs, the limp, her pelvis, the leg, just all the problems from the 1994 accident.  She thought she attended that course for about year.[20] 

[20]T16

65The TAC paid for the course and a second one.[21]  It was all a little bit confusing because the lady from the TAC, her case manager, said everything had to go under the 1994 accident even if she was getting help for the 2014 accident.  The plaintiff did not really understand the situation.[22] 

[21]T16

[22]T17

66The plaintiff agreed with the contents of the functional assessment report completed at Caulfield in late 2013, prior to the 2014 accident. She confirmed her interests were as reported,[23] and her past sporting history was accurately described.[24]

[23]T20

[24]T21

67When it was suggested that things were deteriorating for her before the 2014 accident, she said she had tried to get health professionals on and off all the time over the years.  She might have had a burst of treatment in 2012-2013; she did not remember.  That was the case if it was mentioned in the Caulfield records.[25]

[25]T22

68The plaintiff did not dispute the contents of Dr Varney’s letter to her solicitors of 26 January 2014.[26]  She did not tell Mr Mangos the 2014 accident was not a severe accident.  She did not recall describing the accident as he reported.  She might have, but she did not recall saying that but she “did not expect it to last forever either”.[27] 

[26]T23

[27]        T24

69She did not recall telling Mr Mangos about severe back and neck ache after the 1994 accident.  It was “a little bit tricky” because she had the neck pain but she was meant to be there talking about the other injuries.  So if she told him she had neck pain, then, yes, she did.  She did not recall neck pain being one of the main issues of the 1994 accident – “it definitely was not, not this pain [she has] got, not the stabbing pain in the spine”.[28] 

[28]T25

70She could not remember seeing Mr Brownbill in June 2014.  She explained that doctors were always asking whether she banged her head on the steering wheel in the 2014 accident.  She felt like she hit her head on the seat.  She did not fling forward and hit the steering wheel.[29] 

[29]T26

71Before the 2014 accident, the plaintiff may have had one or two migraines over the years.  She did not recall, but she gets them all the time now.[30]

[30]T29

72She did not deny she told Professor Davis in October 2012 that she readily became confused and had recurrent headaches and dizziness – “The point is it was not as regular as it now is.”  She had slipped in and out of depression since the 1994 accident, but the 2014 accident “just makes everything worse”.[31]

[31]T30

73The plaintiff agreed, as at October 2012, she may have been getting frequent headaches; she did not remember.  When asked about Professor Davis’ history of variable pain in the neck and upper thoracic spine, she said she did not have the chance to read through the reports before she came to Court and maybe that could have jogged her memory, but she did not remember most of it.  She really did not even remember having neck pain and migraines or headaches before the 2014  accident.  The main thing with the 1994 accident was ribs and the breathing and the pelvis.[32]

[32]T33

74The plaintiff agreed psychologist, Katrina Bottomley diagnosed Post-Traumatic Stress Disorder “PTSD”).  In August 2013, the plaintiff told her she was having nightmares of the hospital after the 1994 accident.  She had lost many of her friends following the 1994 accident and rarely spoke to others.  It was not inaccurate that she then felt her life was over and she often wished she had not survived.  She slipped in and out of depression over the years.[33]

[33]T33

75While Dr Varney’s note of 27 July 2013 mentioned physiotherapy for her hips, neck, back, pelvis, ribs and bladder, the plaintiff denied physiotherapy was for her neck; it was for her pelvic floor.[34]

[34]T34

76The plaintiff did not recall irregular panic attacks before the 2014 accident as Associate Professor (“AP”) Brewer recorded in September 2013, but maybe they were just happening before that.  She just moved around a lot and that might have set off a panic attack.[35] 

[35]T34

77She did not remember telling AP Brewer that she had neck and lower back pain that fluctuated, but she was not denying it.  The lower back pain has remained much the same, but the upper back or neck pain, or whatever it was before, it was not the same as it is now.  Now it is constant.[36]

[36]T35

78She agreed, as AP Brewer reported, that she had not learned to be an adult and she was not able to cook.  She did struggle a lot.  She agreed she was not able to maintain friendships and relationships and was somewhat estranged from members of her family.  She explained:

“Well, after the first accident I had loads of jobs and I had loads of different friends and I’ve been in and out of relationships with my family and all of my disabilities are invisible, apart from when I had the limp.  So it’s hard for people to understand, but I – to most people they thought I was normal.  I lived quite a fairly normal life.  My ex-boyfriend thought it was great I had lots of jobs, you know, I did all of the sports.  I used to go out all the time.  I did have lots of friends that I went out with every weekend.  I – I did a lot in the vegan community.  I did a lot at the dog school.  We had a lot of dog events.  No, I was functioning okay even though I was struggling a lot.”[37]

[37]T36

79When it was suggested that before the 2014 accident she could only walk for two or three minutes because of back pain, the plaintiff said she was going to different doctors –

“[She] was going there to get help for the problems that … [she was] having.  … [She was] not going there to tell them all about the good things that … [were] happening.  So that’s how … [she] can account for everything that … [counsel’s] reading … [to her].  Some days were better than others.”[38]

[38]T36-37

80The plaintiff then became visibly distressed and cross-examination ceased.  It was agreed there would be no criticism of the defendant’s counsel if the further consequences deposed to were not challenged.[39]  

[39]T37

81In re-examination, the plaintiff gave further details about her relationship with Justin Little, which she thought went for about two years.  She confirmed the various physical activities that she did with him.  She met him when she had gone to Cairns to help her best friend and she stayed with him.[40] 

[40]T40

82She used a walking stick after the 1994 accident if she went for longer walks.[41] 

[41]T40

83She last played golf within a year of the 2014 accident.  She used to have a boyfriend, James McMillan, who was a member at Royal Melbourne.  She played a lot with him.  She also played at Cheltenham, Dingley, “all over the place”, and they “even went to Adelaide for a holiday and she also played there with him.[42]

[42]T40

84Before the 2014 accident, the plaintiff was looking after and training her dog.  She went to the Dog School, where they went through all the grades to the top.  Then they just kept going for fun because they really enjoyed it.  She had two dogs, Pippa and Jazzy, whom she still has.  The training involved positive reinforcement.  She does not do those things with her dogs, not as much now.  She has attempted to go back to the Dog School and has gone down to the beach with the dogs once or twice, but not every day like she used to.  The Dog School is just too hard for her now.  Also, at the park all the dogs jump on her, which she used to love.  She cannot let them do that now because it hurts her neck.[43]

[43]T42

85Her social interaction over the years before the 2014 accident was just basically living the life of a normal twenty year old, going out all the time, different boyfriends, going to different parties, social activities like dinners and lunches, bowling and playing tennis.  Since the 2014 accident, her social interaction has been very, very limited and she spends most of the time in bed.[44] 

[44]T43

86The neck and upper back pain now is new pain.  If she had any sort of pain before, it would just be like normal pain but it is not normal pain now; it is constant and it stops her from living her life.[45]  Before the 2014 accident, her sore back, neck, bottom, and sore feet and limping did not prevent her from going out and doing different things, like playing sports or going out dancing with friends and trying to live as normal a life as she could with the limitations she already had, and she used to be able to work.[46] 

[45]T43

[46]T44

87She thought the 2014 whiplash would go away, but it never did and it is never-ending.  She takes the Nurofen to try to stop the neck or upper back pain, or the shoulder pain or the headaches or the nightmares.  She takes it at all different times.  It can be to go to sleep; it can be first thing in the morning or any time during the day.[47] 

[47]T44

88She now gets headaches all the time and often gets migraines.  Before the 2014 accident, she did not have to live with headaches all day, every day.  She cannot even remember complaining about them, whereas she now complains about them all the time.[48] 

[48]T44

89After the 2014 accident, there was a time when she felt like she was going blind and she went to hospital for a couple of hours, and they just gave her more Panadol.[49] 

[49]T45

90The neck and upper back pain post accident 2014 is “100 times worse”.  It is always on the forefront of her mind and it determines how she is going to spend the day or hours.  It determines whether or not she gets a good sleep.  She is so tired all the time.  She finds it hard to think about what she can go out and do for the day because there is so much pain and she cannot make it go away.[50]

[50]T45

91Before the 2014 accident, she did a lot in the community and the Dog School.  She used to help out at a church community centre with daily activities and lunches, and with the different games played there.  She was able to help set up and distribute everything and then pack it all up at the end of the day.  That was very rewarding.  She also worked in a lot of aged care facilities and really enjoyed that.  She could not remember exactly when she stopped doing this before the 2014 accident.[51]

[51]        T46

92She went to the Dog School right up until the 2014 accident.  She went twice a week and really enjoyed it.  There was also a social aspect, going out for meals with other dog owners.[52]

[52]        T46

93Some days were better than others before the 2014 accident, meaning she could do more those days than she could on others.[53] 

[53]T47

94In further cross-examination, the plaintiff confirmed she now drives her dogs to the park and walks around with them for ten minutes.[54]  It was not true, as was suggested to her, that in the years 2012 and 2013, she was not doing any of the activities she described because of her condition relative to the 1994 accident.[55]

[54]T47

[55]T48

Lay evidence

95The plaintiff’s mother, Cathleen Kenneally, swore an affidavit on 23 June 2021. 

96The 1994 accident left the seventeen year old plaintiff with physical injuries and a head or brain injury.  While the effects of that accident were life changing in terms of her head injury, the plaintiff was well able to keep busy and had an active social life.  She also did plenty of volunteer work with church and animal groups.  She was able to keep up with household chores and was involved in various sports on a social basis.

97Almost all of the above was taken away by the 2014 accident.  The plaintiff now stays home most of the time and has very few active interests.  She can take her dogs for a short walk.  Sometimes she and the plaintiff meet up when the plaintiff is walking the dogs, otherwise the plaintiff does not really have much of a social life.  That situation upsets them both.

98She usually catches up with the plaintiff weekly, but this contact has been affected by COVID to some extent.  They regularly discuss how life is going and how much pain the plaintiff is now in. 

99The plaintiff now complains more of upper back, neck and shoulder pain, in addition to lower back pain, whereas before the 2014 accident, it was about her lower back pain and her complaints were far less.  Their discussions used to be more about what the plaintiff was doing next and how busy she was with her various interests and activities, and things were much more positive.

100From her observations over many years, the 2014 accident certainly seems to have taken things to a whole new level in terms of the plaintiff’s reporting of pain, and her own observations of how the plaintiff moves and is able to physically cope due to obvious pain and restriction.  Sadly, the plaintiff is clearly now much less able to participate in all aspects of life and she is a far lonelier young lady, which is sad for them both. 

101She can see the plaintiff is far less able to take care of many basic household chores which are often left waiting to be done, although the plaintiff is mainly at home.  That situation worries her as a parent and also upsets the plaintiff.

102Barry Gamble, a family friend, swore an affidavit on 13 June 2021.  He is a retiree living in Queensland, and knew the plaintiff through his son, Courtney, and their friendship has continued.  He knew her before and after the 2014 accident and was able to comment on the changes to her that had followed.

103While he was well aware the plaintiff had issues relating to the 1994 accident, before the 2014 accident, he observed she was largely able to cope with day-to-day life and show a great deal of resilience.  She was busy, happy and active.

104The plaintiff was very active in a social group which involved his son, Courtney, and he was aware she had a relatively busy lifestyle through this group.  They would often be at their family home.  They went out to dinner and bars, and did all the things you would expect young adults to do.

105After the 2014 accident, things changed significantly.  Initially, he knew only what Courtney told him; however, over time, he came to understand for himself more of the impact the accident had on the plaintiff.  In fact, he had almost become family to her and in the years since the 2014 accident, they spoke pretty much every day by phone now that he lives in Queensland, often more than once a day.  They discussed her worries and challenges, and he tried to help her with guidance and encouragement. 

106He described her level of activity and engagement with others these days as almost non-existent – chalk and cheese compared to how she was.

107The plaintiff now leads a sedentary and quite lonely existence and tells him it is due to the added pain she now has to deal with.  While he cannot comment on her experience of pain, he can say it is the constant theme of their discussions and it is clearly something that now troubles her a lot and results in her being so inactive.

108He also still visits Melbourne, and the plaintiff in particular, from time to time, at least once a year.  He stays at her place and can see how she is coping.  His observations on those occasions confirm what they discuss over the phone.  She is clearly troubled by significant pain and is not the active and cheery person he can recall before the 2014 accident.

109It is very sad to see what has become of her since then.  It is also upsetting how her existence is now such a lonely one, where she can no longer go out and about very much due to her pain level.  From his observations and knowledge, the 2014 accident was a life changing one for her and one that she has never been able to bounce back from.  He wished he was able to help her more than he could.

The Plaintiff’s medical evidence

110The Alfred Health/Sandringham Hospital Emergency Report of 2 February 2014 set out the plaintiff was a thirty-eight-year-old female restrained driver, single occupant, involved in a motor vehicle accident when rear-ended by another car at an unknown speed while stationary at the lights.  Her car was a write-off. 

111Initially, she went home, however, started to experience thoracic and cervical neck tenderness and attended her general practitioner, at which time her spinal tenderness increased in severity.  She stated she then started to have bilateral finger tingling at the tips, although stated that may be due to a panic attack.  She was subsequently referred from her general practitioner.  She stated chronic chest pain, pelvic pain and lumbar back pain post multitrauma age seventeen.  Fearful of current situation in light of past history.

112The plaintiff was not happy to be discharged in a collar.  She was feeling panicky, hyperventilating and not happy for a transfer to The Alfred for an MRI scan.  She was discharged home; paracetamol was required and she was advised to see her general practitioner in a couple of days. 

113A CT scan of the thoracic, lumbar and cervical spine on 3 February 2014 was reported to show no acute fracture or malalignment of any level of the spine.

Dr Sultana

114Dr Azra Sultana, general practitioner, from Aspendale Gardens Medical Centre reported in June 2020.  She had seen the plaintiff occasionally for medical conditions since 2015 and more regularly since October 2018. 

115Dr Sultana gathered from The Alfred Discharge Summary notes that the plaintiff presented to the clinic with thoracic back pain, neck pain and anxiety relating to the 2014 transport accident.  In her opinion, the plaintiff was suffering with chronic pain and anxiety disorder due to that accident.  She was unable to predict on the likelihood of further deterioration, but thought the plaintiff required ongoing psychological support and pain management to prevent further deterioration.

116The plaintiff required conservative pain management with regular physiotherapy and analgesia when needed, neuropsychological assessment, ongoing psychological counselling and support for anxiety and chronic pain management.  She thought that the plaintiff’s condition had not stabilised to the full extent and was most likely to stabilise in the future with ongoing pain management and counselling.

117In addition to chronic pain and anxiety, the plaintiff suffered from social isolation, panic attacks when driving, and at traffic lights, as a consequence of the accident.

118The plaintiff had ongoing anxiety attacks, was more anxious in relation to driving, unsettled and petrified at traffic lights.  Due to anxiety, she did not have a great deal of socialisation and spent time mostly at home.  She thought the plaintiff’s chronic pain and anxiety disorder post the 2014 accident had an effect on her social, recreational and domestic activities. 

119Dr Sultana noted the plaintiff had not been working for a long period of time due to ongoing psychiatric conditions and chronic pain related to the 2014 accident.  She thought the plaintiff did not have a current work capacity.  She was unable to predict or comment on the plaintiff’s future, but it looked very unlikely she would be able to work in the future, considering she was not able to work for so many years after the 2014 accident.

120Dr Sultana made no mention of the 1994 accident or injuries.

Ms Lorenzo

121On 18 July 2019, Zoe Lorenzo, physiotherapist, advised she had been working with the plaintiff over the preceding five weeks, with the plaintiff having described an extensive history of musculoskeletal injuries as a result of two car accidents.

122Ms Lorenzo wrote to Mr Mills, orthopaedic surgeon, on 18 April 2020, thanking him for seeing the plaintiff regarding her ongoing neck and lower back pain.  She noted the plaintiff had a complex and protracted history of musculoskeletal pain.  She advised she had been primarily addressing the plaintiff’s ongoing migraines and neck pain and, more recently, lower back pain.

123Ms Lorenzo reported again on 14 September 2020, noting that in terms of prognosis, the plaintiff was currently working on functional goals of increasing ease of independent living and self-care through a pain management program.

124She thought the plaintiff’s symptoms were currently in a plateau rather than a period of stabilisation.  The plaintiff was then participating in an intensive pain program and it was hoped there would be gains over the next twelve weeks.

125Ms Lorenzo last reported in February 2021, at which time she thought the plaintiff needed further pain education.  She noted the plaintiff often had to leave domestic tasks unfinished or task completion was compromised as a result of pain and fatigue.  From a physical perspective, the plaintiff had reduced capacity and notable deconditioning, significantly limiting her work capacity.

126In her diagnosis and prognosis section in the last two reports, Ms Lorenzo made reference only to the plaintiff’s lumbar spine, although she said in April 2020 that she had been working with the plaintiff over the last nine months, primarily addressing her ongoing migraines and neck pain and, more recently, lower back pain.

Associate Professor Ford

127Associate Professor (“AP”) Jon Ford, Associate Professor of Physiotherapy at Advanced Healthcare Dandenong, initially saw the plaintiff on 19 August 2020 as part of a multidisciplinary assessment.

128AP Ford noted that the plaintiff’s pre-injury activity/recreation was unclear.  She reported she was currently driving to the park with her dog daily, doing stationary bike and walked occasionally.  Apart from that, she was spending most of the day in her house.

129Over the past three months, the plaintiff had described the condition as worse in terms of increased pain, panic attacks and paraesthesia in the hands.

130It was recommended the plaintiff would likely benefit from a multidisciplinary pain management program two to three times a week for eight to twelve weeks.  She was seen again on 9 October 2020.

131However, the plaintiff was critical of the clinical team’s attempts to engage her  with a pre-program focussing on setting goals.  Her exchanges with the team were sarcastic and patronising and it was agreed that an early discharge from the program was the best option.  

132He noted the plaintiff had already had effective treatment and had not been able to effectively participate in a multidisciplinary pain management program.  In that context, he did not believe further treatment or investigations were likely to change her prognosis.  That said, it would not be unreasonable to perform further scans to rule out any unidentified pathology and to provide some limited physical and psychological support to assist her to become more independent and self-manage her pain program.

133He described the plaintiff’s various tolerances, predominantly limited by lumbar pain as follows – sitting for thirty to sixty minutes, static standing to five minutes, unable to repeatedly forward bend, unable to lift more than 2 kilograms.  Walking was limited to 5 minutes by lungs, lateral hip pain and feet.  Her ability to do heavy gardening was limited by all pains.  She was markedly restricted in social/recreational activities.  Relationship issues were associated with the injury.  All pains limit her ability to drive to thirty minutes. 

134Due to the plaintiff’s complex physical, psychosocial and neurophysiological problems, it was highly unlikely she would be able to perform any occupation within the scope of her knowledge, skill set and training.

135It was very difficult to disentangle the different contributions of these accidents, pre-injury factors and between accident factors regarding causation of the ongoing pain problems.  On balance, it would seem the pain problem is consistent with the incident circumstances when physical, psychosocial and neuropsychological factors are considered.  

Dr Gingold

136Dr Michael Gingold, rheumatologist, reported to the plaintiff’s solicitors in May 2021, having seen the plaintiff once on 5 October 2020. 

137He thought the plaintiff’s current symptoms were a combination of residual problems related to the 1994 injury and then further injury in 2014, which was more of a whiplash-type injury, as a result of which the plaintiff experienced neck pain radiating down into the upper thoracic spine, which was not a problem for her previously.

138Dr Gingold thought the plaintiff clearly had clinical features of fibromyalgia, which while it may have been an issue for a while, had clearly been exacerbated by the 2014 accident, particularly the symptoms around her neck and thoracic spine. 

139He thought she needed to continue with physical therapy and focus on pacing strategies, as well as other pain management strategies.  He suggested to her general practitioner that a dose amitriptyline may be worth trying at night.

140Dr Gingold noted that the plaintiff struggled to do anything outside the house, so clearly, she would not be a candidate for regular employment.  He did not really ask her about her social activities and domestic situation before the 2014 accident.

Dr Nicola

141Dr Nicholas Nicola, general practitioner, from Aspendale Gardens Medical Centre has been involved in the plaintiff’s care since 2019. 

142In his March 2020 report, he advised he always found the plaintiff to be respectful, polite and calm during consultation.  She was punctual with her appointments and appropriately behaved and presented.  She had always been courteous to staff and always asked appropriate questions when advice was given, and generally followed the advice. 

143On 18 May 2021, Dr Nicola again reported, noting the plaintiff’s first attendance after the 2014 accident. 

144His diagnosis was increased neck pain and cervicogenic headaches.  Overall, the  prognosis was considered poor.  He thought the plaintiff’s injuries had substantially stabilised and she did not need further investigation, although a comprehensive pain management course may help to improve her conditions, noting that previous attempts to complete this had been unsuccessful.

145While Dr Nicola could not answer from direct experience with the plaintiff, he noted from specialist opinion that she experienced a reduction in her ability to perform day-to-day tasks, such as socialising and walking her dogs, due to a deterioration of function since the 2014 accident. 

146He perused the plaintiff’s file and could not find any mention of a chronic C4 wedging or requirement for mobility aids prior to the 2014 accident.  He found reference to migraine and blurred vision in Professor Davis’ report.  Pins and needles were mentioned in a report by Dr Michael Silverstein, ENT, on 3 July 2013.

Dr Mittal

147Dr Meena Mittal, pain physician and specialist anaesthetist, first saw the plaintiff on 2 December 2020 on referral from general practitioner, Dr Miao.

148Dr Mittal noted the initial pain history with the injury suffered in the serious motor vehicle accident in 1994.  Since that accident, the plaintiff had suffered from intermittent chest pain, lower back pain and right lower limb and groin pain.  The lumbar pain was constantly present and aggravated by increasing activity.

149There was then the 2014 accident, since which the plaintiff had not been able to engage in any form of work.  Since that accident, the plaintiff had had persistent neck and thoracic back pain with daily headaches and had also been diagnosed with new onset migraines (noting the episode of blindness).

150The pain in the plaintiff’s neck, upper back and headaches was generally rated at 6 to 9 out of 10 on average and worsened towards the end of the day.

151After the 2014 accident, the plaintiff also started to have panic attacks, with memory loss and poor concentration. She was waiting for a neuropsychological appointment.

152Since the 2014 accident, the plaintiff had attended Caulfield Pain Management for about a year and had been utilising a walking stick since then.

153The plaintiff had been having physiotherapy for the last twelve months and had seen an occupational therapist over the preceding three months.

154On examination, the plaintiff mobilised using a walking stick, her gait was slowed and antalgic, and her affect was flat.

155There was a restricted range of motion in the cervical spine in all directions.  There was no obvious paravertebral muscle spasm, but increased tenderness.

156Thoracic spine examination revealed bilateral paravertebral muscle spasm with increased tenderness.  Lumbar spine examination revealed normal flexion and mildly restricted extension.  There was mild paravertebral muscle spasm and increased tenderness.  Neurological examination of the lower limbs and upper limbs did not reveal any evidence of radiculopathy. 

157Dr Mittal thought neck pain was most likely secondary to whiplash and there may be an underlying component of facetogenic pain.  She did not believe C4 anterior wedging was significant. 

158There was bilateral upper limb neuropathic pain which was not problematic.  If it became persistent, then that required further elucidation.  Thoracic back pain was most likely secondary to myofascial spasm and underlying facetogenic pain.  Lower back pain was secondary to facet joint arthropathy, as well as myofascial deconditioning.  Right lower limb pain was most likely referred from the lumbar spine and fortunately was not problematic.

159Dr Mittal reviewed the plaintiff after a further MRI scan of the thoracic and lumbar spine was obtained, and also a CT/SPECT bone scan of the axial spine.

160Dr Mittal explained the investigation findings and the sources of the plaintiff’s pain.  She requested further x-rays and a weightbearing MRI scan.  She discussed a trial of medication, physiotherapy, interventional pain management and a pain management program, the plaintiff being more inclined towards the latter. 

161When last seen on 24 February 2021, Dr Mittal explained the investigation findings.  She asked the plaintiff to commence Norflex, but warned her of the side effects.  She also suggested Reformer Pilates twice a week. 

162Dr Mittal intended to reconsider interventional pain management in the form of medial branch blocks for spasmogenic pain and/or a pain management program in three to six months, depending on plaintiff’s progress with the physiotherapist. 

163Dr Mittal anticipated the prognosis to be guarded, as the plaintiff had just commenced treatment. This was due to the chronicity of her symptoms, the multiple locations of her pain and the lack of response to therapy so far. 

164Dr Mittal believed the plaintiff’s injury had affected her ability to carry out social, recreational and domestic activities.  Prior to the 2014 accident, the plaintiff was still functional, being able to engage in her day-to-day social, occupational, recreational and domestic activities; however, since then, her situation had completely changed.  She had not only had an exacerbation of her pre-existing injuries, but she developed new onset of neck pain, headaches and bilateral upper limb pain, as well as thoracic back pain.

165As a result of the increased burden of chronic pain, whether that may be in the form of severity, intensity and/or increased location, the plaintiff’s overall function status had significantly declined with her inability to be able to engage effectively in occupational, social, domestic or recreational activities.  She believed the plaintiff’s injuries were certainly consistent with the incident circumstances.  She noted the plaintiff had no previous history of migraines, headaches, blurred vision or pins and needles in bilateral upper limbs prior to the 2014 accident, noting that that was best confirmed by clinical notes obtained by her previous general practitioner.  She was unable to comment on whether or not chronic C4 wedging was present prior to the 2014 injury.  She noted that the plaintiff only commenced using mobility aids after she attended Caulfield Pain Management some time in 2015.

Investigations

166The plaintiff underwent a lumbar CT scan in March 2020, an MRI scan of the thoracolumbar spine, a whole body scan in December 2020 and an x-ray and MRI scan of the lumbar spine in January 2021.

The Plaintiff – medico-legal opinion

Dr Sullivan

167Dr Richard Sullivan, pain specialist, examined the plaintiff in March 2021.

168The plaintiff described constant pain in her posterior cervical region, moderate to severe at rest, with significant exacerbations that could be spontaneous.  She also had lower back pain which was fairly tolerable at rest, but increased with activity and exercise.

169Dr Sullivan noted the plaintiff had a significant transport accident in September 1994, where she suffered a closed head injury, injury to the chest, abdomen, fractured pelvis, fractured mandible and fractured clavicle, and then two years convalescence in a wheelchair.  She was left with an ABI which impacted her ability to focus, function, concentrate and obtain and maintain gainful employment.

170He noted the plaintiff, however, had worked in administration and call centres, also as a personal assistant and in retail.  At the time of the 2014 accident, the plaintiff believed she was working part time, but close to full-time hours, in a call centre. 

171The plaintiff described the 2014 accident circumstances.  She was initially seen at Sandringham Hospital and assessed for significant traumatic injuries and then discharged.  There was really no follow up thereafter, as it occurred at a time her general practitioner was retiring and his successor was unfamiliar with TAC claims, and did not really feel empowered to help the plaintiff obtain rehabilitation despite her persisting and debilitating pain.[56]

[56]        She had been seeing Dr Varney before the 2014 accident

172Several years later, the plaintiff started to see a general practitioner with an interest in TAC claims and who referred her for interdisciplinary care towards pain management, including a physiotherapist and clinical psychologist. 

173Prior to the 2014 accident, the plaintiff had no issues with posterior cervical pain and those ensued following the 2014 accident.  She had adequate control over her lower back pain and was walking with the dogs for up to five hours a day, however, she had been unable to return to that level of exercise since her 2014 accident.  She had obtained adequate control of her psychological disturbances following the 1994 accident and this situation was dramatically upset following the 2014 accident.

174The plaintiff reported a sitting tolerance of about twenty minutes, walking tolerance of around ten, standing of about fifteen and driving of about twenty minutes.

175The plaintiff told him of her respiratory problems resulting from a chest injury in the 1994 accident. She advised that she had been previously diagnosed with fibromyalgia, but she did not have any obvious management or pharmacological treatment for this and was not being managed for it at the time of the 2014 accident.

176The plaintiff told Dr Sullivan she was independent with personal care, but limited in her domestic activities. 

177The plaintiff reported her mood had been persistently low since the 2014 accident.

178From a recreational and social perspective, prior to the 2014 accident, Dr Sullivan noted the plaintiff enjoyed walking her dogs and did so for up to five hours a day, taking them from park to park and along the beach.  She engaged in social activities during those walks and this was really the central focus of her social life.  She attended dog training twice a week for the social aspect rather than because it was required.  She had noticed since the 2014 accident, her social circle and social network had been substantially restricted.

179On examination, the plaintiff engaged appropriately and there was only a very mild, almost unnoticeable vagueness to her speech.  She answered questions in an otherwise frank and forthright manner, and rapport was easily established.  There  was no abnormal illness behaviour present. 

180Cervical flexion and extension were mildly to moderately restricted and exacerbated her pain.  Cervical rotation and lateral flexion were mildly restricted, again, aggravating pain.  She had an adequate range of movement of bilateral shoulder joints. 

181There was moderate lumbar flexion and extension with aggravation of pain.  There was tender paravertebral muscles extending from the occipital region down through and including the trapezius muscles, and there was tenderness in the lower back from the rib margin to the iliac crest and beyond.

182Dr Sullivan noted the plaintiff had recovered substantially from the 1994 accident and was gainfully employed, and had adapted her life to her longstanding injuries and had achieved significant meaning in her day-to-day activity, including social engagements while walking her animals.  She had recovered substantially from the psychological injuries of the 1994 accident and in general was managing well with her life. 

183These things were disrupted in the 2014 accident in which the plaintiff sustained injury, especially to her cervical spine, and she was now suffering from an aggravation of cervical and lumbar spondylosis.  There has been a consequent significant shift in terms of her functional capacity and recreational and social engagements, and she has been unable to return to paid employment. 

184Dr Sullivan thought the plaintiff’s clinical condition was permanent, she was unlikely to see significant improvement, and would be unable to return to gainful employment.

185While the plaintiff clearly had residual limitations consequent to the 1994 accident, her situation had changed significantly for the worse as a consequence of the 2014 accident.

186Dr Sullivan diagnosed neck pain, most likely secondary to whiplash injury, bilateral upper limb neuropathic pain, thoracic back pain most likely secondary to myofascial spasm, and underlying facet joint pain and lower back pain secondary to facet joint arthropathy, as well as myofascial deconditioning, right lower limb pain and most likely referred pain from the lumbar region.

187Ongoing treatment should be of interdisciplinary paradigm and it would be prudent for the plaintiff to be reviewed by a structural spinal surgeon to ensure there is no need for structural surgery.  She could then be considered for percutaneous injection strategies as per her pain physician, Dr Mittal. In spite of the recommended treatments, it is exceptionally unlikely that the plaintiff would be able to rehabilitate to a point where she could return to paid employment, now or into the foreseeable future, as a direct consequence of the injuries sustained in the 2014 accident.

Professor Bittar

188Professor Bittar, neurosurgeon, examined the plaintiff in May 2021. 

189The plaintiff then complained of intermittent lower back pain, exacerbated by bending, lifting et cetera, which had been present since the 1994 accident and had not changed significantly since the 2014 accident.  She also complained of constant neck pain, with an average severity of 6 out of 10, maximum 9 out of 10, varying in character between dull and sharp, radiating to a number of locations.

190The plaintiff’s past medical history was significant for a previous transport accident in 1994 with multiple injuries – a closed head injury, abdominal and chest injuries, as well as a fractured pelvis.  She had ongoing lower back pain, and denied experiencing any significant neck pain prior to the 2014 accident.

191The plaintiff said, as a result of her neck pain and headaches, she socialised much less than she previously did due to sitting and standing intolerances, as well as constant pain.  Her recreational activities were also severely impacted, including her ability to enjoy cooking, exercise and other recreational activities.  Her sleep was severely affected.  Domestic activities were severely impacted and she had help with cooking, cleaning and gardening.   Overall, her quality of life was markedly diminished.

192The onset of the plaintiff’s symptoms occurred following the 2014 accident.  She  experienced immediate onset of pain in her neck and upper back, with subsequent development of pins and needles in her arms and hands.  Her ongoing neck and upper back pain, with pain in her shoulders, had continued, and she had not been able to return to work since the accident.

193Professor Bittar noted the treatment undertaken since the 2014 accident, including pain management with Dr Mittal.  He reviewed the relevant radiological investigations.

194On examination, the plaintiff walked with a non-antalgic gait. There was a moderate restriction of thoracic and lumbar flexion, and extension and severe restriction of cervical spine flexion, with moderate restriction of spine extension.  There was marked tenderness on palpation of the cervical paravertebral musculature with associated muscle spasm.  There was no evidence of radiculopathy or myelopathy.

195In his opinion, the 2014 accident had been a significant contributing factor.  He thought the plaintiff should continue with the current pain management and should be considered for participation in a multidisciplinary pain management program.

196While the plaintiff had ongoing lower back pain that was attributable to the 1994 accident, he thought that she was incapacitated for any type of work on a reliable and consistent basis as a result of the 2014 accident-related cervical spine condition.  He thought it unlikely she would gain any realistic capacity for suitable employment, noting that she had had a very minimal work capacity prior to the 2014 accident due to previous injuries. 

197The plaintiff has permanent restrictions on her ability to maintain her neck in a fixed position for more than short periods to engage in repetitive neck or arm movements, to sit or use a computer for more than a short period of time and engage in lifting objects weighing more than a few kilograms.

Dr Mills

198Dr Craig Mills, orthopaedic surgeon, examined the plaintiff on 1 April 2020 at the defendant’s request in relation to both accidents. 

199He diagnosed TAC-related motor vehicle injuries, multiple.  There was aggravation to cervical, thoracic and lumbar spondylosis without neurological involvement.   He thought it was a very complex set of injuries that, as a result of the initial injury, left the plaintiff very disabled with multiple areas of ongoing pain, stiffness and weakness that had been aggravated in cervical, thoracic and lumbar spines, but without additional impairment.

200Dr Mills thought the plaintiff suffered cervical spondylosis referable to both accidents.  He noted the difficulties apportioning impairments relating to both accidents under the AMA Guides, assessing her current impairment of the cervical spine and lumbar spine at 5 per cent. 

201He noted the plaintiff had a previous reported impairment under different assessment techniques of a 61 per cent whole person impairment, which he presumed largely related to central nervous system injury.  On that basis, he apportioned all the impairment to both lumbar and cervical spines to the 2014 accident.

Associate Professor Damodaran

202Associate Professor Damodaran, consultant psychiatrist, examined the plaintiff on behalf of the TAC on 14 April 2020.

203Noting the injuries suffered in both accidents, he thought the plaintiff was suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood, with some features of traumatisation which was an aggravation of her pre-existing psychiatric condition, along with a Panic Disorder with no agoraphobia and a Chronic Pain Disorder associated with the general medical condition, and possible psychological factors. 

204From a psychiatric point of view, he considered the plaintiff had no current work capacity.  He attributed 8 per cent of the total whole person impairment to the 2014 accident, and the remaining 8 per cent to the 1994 accident, and also non transport-accident related factors.

The Defendant’s medical evidence – treaters

Dr Varney

205Dr William Varney, general practitioner from Aspendale Gardens Medical Centre, first saw the plaintiff on 22 March 2013.

206In his report to the plaintiff’s solicitors in January 2014, he noted the plaintiff’s involvement in a single-vehicle accident in 1994 with multiple injuries.  His knowledge of her medical state, treatment, treatment outcomes and progress, personal life, employment history et cetera from 1994 to 2013 were patchy, to say the least.  She came to him with a long list of complaints and symptoms which appeared to fall into the following categories or areas of specialisation: cognitive, emotional, neurological, musculo­skeletal, urological, respiratory, immunological, ENT, gastrointestinal, cosmetic, and general.

207Under “Musculoskeletal”, he noted:

“Sore back, neck, bottom, feet and fingers.  Limp.  Can’t stand or sit.  Sore feet if stands for a while [possible neuropathic pain].  Sore bottom with prolonged sitting [referred from lumbar spine].  Sore L and R hip.  Calves pain at times.  Sore L knee, upper patellar area.”

208Under “Neurological”, he noted:

“Headaches.  Dizziness, eg after walking up stairs.  [Post-traumatic headache.]”

209Under “Emotional//”, he noted:

“No skills.  Anxious.  Depressed.  Can’t sleep.  Constant tiredness.  Perceived lack of support, friends.  Nightmares.  Jumpiness.”

210Dr Varney then thought the plaintiff was unlikely ever to be fit for gainful employment.  He was pleased with the referral to the Caulfield Pain Centre.  He noted the plaintiff was taking three Panadol a day for pain control, and Lyrica capsules would be trialled.

Mr Allen

211Mr David Allen, physiotherapist, wrote to Dr Varney in April 2013 thanking him for referring the plaintiff in relation to her 1994 injuries.

212He noted the plaintiff now complained of low back pain, left neck pain and pains radiating to her left buttock and down to her left knee.  Her low back pain appeared to be the worst of these.  Walking for two to three minutes caused low back and left hip pain.  There was limitation and pain on lumbar movement.

Occupational therapy assessment

213An occupational therapy assessment was conducted in May 2013.[57]

[57]Occupational Therapy and Driver Assessment Group Pty Ltd

214Under “Current functional status”, the plaintiff advised that she had attempted to attend multiple groups, for example Buddhism groups, but due to pain and/or concentration issues, she had ceased attending. Her sitting tolerance was  30 minutes; standing, 5 to 10 minutes, and she avoiding walking.

215The plaintiff developed postural techniques to do the washing.  Vacuuming could aggravate her pain.  She did the housework one room at a time, and did not really clean the bathroom, and avoided ironing.

216She described pain across her low back, in the middle of her back, in between the shoulder blades, in her neck, and across her hips, left greater than right.  She stated that she did not know what to do about the pain.  She took Panadol, and found if she lay down that could help relieve it.

217The plaintiff said she found it hard to get along with people, and had issues with memory and concentration.

218She was then seeing a physiotherapist, David Allen, weekly.  He had been manipulating her back.

219The plaintiff said she had had hundreds of jobs over the years but had not been able to hold down a job due to either pain issues or cognitive issues.

220Her goals then were to decrease pain, not feel so weak, build up her muscles, some domestic help and cooking assistance so she could lead a more pain-free life, gardening assistance, and getting massage. 

221It was recommended that the TAC fund an occupational therapist to conduct a domestic and gardening assessment.  It was also recommended the plaintiff be assessed by a chronic pain management team for work hardening physical exercises and psychological counselling.  If that was not approved, it was recommended an occupational therapist become involved to assist her manage some of the functional issues she was having as a result of her cognitive deficits.

Dr Bottomley

222The plaintiff was seeing Dr Katrina Bottomley, psychologist, in August 2013.

223At that stage, the plaintiff had nightmares of the hospital where she experienced severe pain as a result of the broken pelvis when being encouraged to mobilise.  She had nightmares about the 1994 accident, and found it difficult to travel in a car.

224Following the 1994 accident, she had been unable to complete further education or resume a career.  Her ability to concentrate had been compromised, and she often experienced memory loss.  She reported often feeling on edge and getting startled reasonably easily.  She was scared of everything.

225The plaintiff was diagnosed with a Borderline Personality Disorder in 2010 and often experienced depression and anxiety.  The implications of the 1994 accident and aspects of the personality disorder continued to impact on her.

226During sessions, the plaintiff reported feeling quite stressed and panicky, and felt relief at the conclusion.  She often reflected on the accident, causing some distress and sadness as she pondered on the significant impact it continued to have on her life.  Ms Bottomley thought the plaintiff met the criteria for PTSD.

Associate Professor (“AP”)Brewer

227AP Warrick Brewer, neuropsychologist, wrote to Dr Varney in September 2013 thanking him for referring the plaintiff.

228The plaintiff presented with a dog and a suitcase containing various reports and files.

229She told AP Brewer that since the 1994 accident, she had been evicted from her house, been trapped into a dependent relationship with her mother, lost relationships, lost her employment, lived on the streets and had been to several psychologists who were not much help.

230She finally contacted the TAC a year or two ago and had physiotherapy and hydrotherapy approved.

231The plaintiff told him that before the 1994 accident, she had had a paper round for years, and rode her bike for that job and to and from school.  She was also working at McDonald’s for three years, had many friends, and engaged in gymnastics, karate and trampolining growing up.  She was a long distance runner, winning awards for school.  Physical education was her favourite subject.

232The plaintiff listed numerous current problems including neck and lower back pain at L5.  This pain fluctuated.  She also described numbness or pins and needles in the legs, feet, arms and hands.  PTSD: accident-related nightmares and panic attacks (irregularly).  Depressed mood.  Cannot cook and did not learn how to become an adult.  Little confidence and self-esteem: cannot engage in her Buddhism studies weekly because she found it difficult to read out loud and monitor what she was saying simultaneously.  She was not able to sit or stand for long enough.

233Structured intervention by AP Brewer focused on engaging the plaintiff via assessment to identify her current emotional milieu and to gain an understanding of the impact of that emotion upon her cognitive ability and schema formation generally and upon her adjustment to the impact of her accident more specifically.

234The plaintiff had indicated that at times, she had thought of jumping in front of a train.

235AP Brewer noted the history since the 1994 accident revealed multiple failed attempts at further study, and that the plaintiff had been evicted from the family home after the accident multiple times, being more likely a reflection of ongoing spats between the plaintiff and her parents.

236He noted the plaintiff returned to Melbourne from Cairns when aged twenty-seven to live in a unit her mother purchased for her.  She could not maintain rental payments, and left when there was an IVO placed upon her neighbours by the plaintiff’s mother because they were threatening her.

237Socially, the plaintiff lived in a rental property with her two dogs who were currently in training to become accredited under the Queensland government scheme which had accredited service dog training.

238AP Brewer noted the plaintiff was scoring higher than most “fake bad” profiles on depression symptoms.  In general, that could be driven by either external inducements or pre or post-MVA psychopathology, which is also exaggerated at the time of test.

239Overall, he thought the plaintiff’s diagnostic formulation was consistent with a Chronic Adjustment Disorder which reflected the exacerbating impact of accident-related anxiety on pre‑morbid borderline personality vulnerabilities.  He thought she would benefit from structured fortnightly therapeutic intervention.

240Professor Brewer reported to the plaintiff’s solicitors in February 2014.  He advised he thought the plaintiff presented with features consistent with a Borderline Personality Disorder.

241He also noted pre‑accident, the plaintiff was experiencing a functional and typical lifestyle characteristic of adolescence premorbidly.  Following her accident, she continued to present with ongoing physical, cognitive, emotional and behavioural compromise. He thought she was significantly compromised in her ability to maintain employment, despite various and numerous attempts post her accident.

242The plaintiff’s current goals were to reduce pain and increase strength and sleep and to acquire domestic assistance and receive massage. She would like to write a book, increase her energy, improve her mood, learn interpersonal skills, study with the assistance of a tutor, exercise, increase self-esteem and self-worth, improve her cognition, achieve goals, work with animals, increase home/domestic abilities such as cooking, own her own home, begin a relationship and a family, acquire a friendship network, feel independent to travel, improve her financial skills and be financially responsible. 

Caulfield Hospital

243The plaintiff had a pain management assessment at Caulfield Hospital on 30 October 2013 (psychology and physiotherapy), and on 6 November 2013, occupational therapy.

244The presenting problem was noted as pain, lower back, chest, ribs, buttocks, feet, hips and calves.

245The plaintiff reported limitations with standing, sitting, walking, and finding a comfortable position lying due to pain in her hips, back, feet and chest.  She could manage a personal care task, but fatigue and motivation could impact on performance.  Her sleep was disrupted by pain and bladder issues.

246She currently lived alone in private rental with her two dogs and a large back garden.  It was difficult to cope financially with the rent, and she was on a waiting list for Ministry of Housing accommodation.  She struggled with cooking due to cognitive issues and reduced standing tolerance.  She received cooking assistance twice weekly through the council.  Cleaning the house was also difficult due to breathlessness, back, foot and hip pain.  She was receiving fortnightly home help from the council.  She struggled to care for the garden.

247She had tried study and a large range of jobs since the accident but could not sustain them.  She had also tried volunteer work, with the same outcome.  She said she was tired of failing and had lost confidence in her ability to ever engage in a productive role.  She would like to be a dog behaviourist/and had trained two dogs of her own, but tried volunteer work with dogs and struggled.

248She described her interests as reading (struggles to concentrate), and looking after and training her dogs.  Sport in the past was important, and before her accident, she enjoyed running and gymnastics.  The accident had significantly impacted on her ability to socialise and sustain relationships.  She was very conscious of being let down by others and described difficulty reading social situations, and she did not have a supportive social group.

249Overall, she described her main occupational performance issues as reading, active interests such as Tai Chi and walking, cooking, and being able to be a dog behaviourist.

321In Petkovski v Galletti,[62] the Full Court of the Victorian Supreme Court accepted the proposition that –

“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused.  …”

[62] [1994] 1 VR 436

322Counsel for the plaintiff submitted, on the strength of lay evidence and medical evidence, the Court should find the plaintiff suffered from injury to the cervical and upper  thoracic spine, chronic in nature, remaining symptomatic which has had a disturbing effect on her quality of life and lifestyle over the past seven years and that it is long term.[63] 

[63]T70

323Counsel for the defendant submitted that the plaintiff was a totally compromised person who had a 61 per cent whole person impairment in relation to the 1994 accident and was particularly symptomatic in relation to her spine before the 2014 accident.[64]

[64]T52

324My task as mandated by the Court in Petkovski v Galletti[65] is made somewhat easier than usual in this case, because at the time of the subject accident in 2014, the plaintiff was still being treated for her 1994 accident injuries, as a result of which her activities and lifestyle were significantly restricted.  Also, around the time of the 2014 accident, the plaintiff was still undergoing medico-legal examinations in relation to her 1994 accident no fault benefits claim.  

[65]ibid

325Generally, the plaintiff did not take issue with the histories given by her to examiners prior to the 2014 accident but maintained she led an active lifestyle in the years leading up to that accident.[66]  

[66]        T43

2014 accident circumstances

326The 2014 accident involved the plaintiff’s stationary vehicle being hit from behind, as she described to Mr Mangos weeks after the accident and to Mr Brownbill three months later, in June 2014.

327Mr Mangos also reported that this was not a severe accident and the plaintiff suffered a slight whiplash as a consequences.[67]  The plaintiff did not dispute giving this history, however, adding that at that time, she “did not expect it to last forever”.

[67]T52

328The Victoria Police Accident Report described the damage to the plaintiff’s car as “moderate” and it was driveable after the accident.

Neck pain

329The plaintiff has described suffering from very significant neck, upper back and shoulder pain since the 2014 accident. This pain was new to her, as were headaches and shoulder pain.  She also had occasional pins and needles in her hands.[68]

[68]        July 2020 and June 2021 affidavits

330The plaintiff has given a similar description of her pain to treaters and medico-legal examiners.

331However, while her spinal complaints before the 2014 accident predominantly involved her lumbar spine, the plaintiff complained to a number of treaters and medico-legal examiners of also experiencing neck pain.

332Dr Varney included in his January 2014 report under “Musculoskeletal” problems, the plaintiff had a sore neck and was taking three Panadol a day, noting his knowledge of her 1994 injuries “was patchy to say the least”.

333The plaintiff complained to her physiotherapist, David Allen, in April 2013, of left neck pain and radiating pains down her left side, in addition to lower back pain.

334In the May 2013 Occupational Therapy Assessment, the plaintiff described pain across her lower back, middle back, in between her neck and across her hips.

335AP Brewer, neuropsychologist, in September 2013, noted the plaintiff listed numerous current problems, including neck and lower back pain at L5.  She also described numbness and pins and needles in the legs, feet, arms and hands

336Medico-legal examiner, Professor Davis, in October 2012, noted chronic left leg and hip pain, chronic lower back pain and variable pain in the neck and upper thoracic region.

337Mr Mangos, in February 2014, reported that the list of injuries relating to the 1994 accident included severe back pain and ache, and that the plaintiff was taking Lyrica for pain.

Tolerances

338While the plaintiff claimed that as a result of her 2014 accident injuries her activities have been severely restricted, before that accident her sitting, standing and walking tolerances were significantly reduced as a result of her 1994 accident injuries.

339As she told Professor Davis in October 2012, she limped and felt her left leg was shorter.

340In April 2013, Mr Allen noted walking for two to three minutes caused the plaintiff lower back and left hip pain.  The occupational therapist, in May 2013, reported a sitting tolerance of 30 minutes, standing tolerance of 5 to 10 minutes and that the plaintiff avoided walking.  The plaintiff told AP Brewer in September that year that she was not able to sit or stand long enough.

341The Caulfield Hospital Pain Assessment in October 2013 mentioned problems with prolonged postures and movement due to pain in hips, back, chest and feet.  Limitations with standing, sitting and walking were reported.

342In his January 2014 report, Dr Varney noted the plaintiff  “can’t sit or stand.  Sore feet with prolonged standing and sore bottom with prolonged sitting.”  When the plaintiff saw Mr Mangos in February that year, she was using a walking stick.

Headaches

343The plaintiff had significant problems with her mood, mental state and migraines/headaches before the 2014 accident.

344Following his October 2012 examination, Professor Davis noted a follow-up at The Alfred after the 1994 accident for some issues with migraines.  The plaintiff readily became confused, and described frequent recurrent headaches which could be associated with nausea.  She also had episodes of dizziness.

345In his 2014 report, Dr Varney noted under “Neurological,” headaches and dizziness and post-traumatic headache.

Mood

346In October 2012, Professor Davis described the plaintiff as chronically anxious, and she was suffering panic attacks.

347The occupational therapist, in May 2013, noted problems with memory and concentration. 

348Psychologist, Dr Katrina Bottomley, in August 2013, diagnosed depression and anxiety and also PTSD, noting the plaintiff was stressed and panicky, had nightmares about the accident and was always scared.  There had also been a diagnosis of Borderline Personality Disorder in 2010.  She thought “the implications of the [1994] car accident and aspects of the personality disorder continue to impact on … [the plaintiff]”.

349In September 2013, AP Brewer also diagnosed noted PTSD, Depressed Mood and nightmares.  He noted that the plaintiff, at times, had thought about jumping in front of a train. In his view, the diagnosis was “consistent with a Chronic Adjustment Disorder that reflects the exacerbating impact of the accident-related anxiety on her pre-morbid borderline personality vulnerabilities”.

350Later in 2013, the plaintiff told Dr Entwistle her mood was horrible.  She had good and bad days.  He diagnosed pre-existing borderline personality traits, family dysfunction, ABI, depressed and anxious mood, and traumatisation features.

351Dr Varney, in January 2014, described the plaintiff as anxious, depressed, nightmares, jumpiness.

352In June 2014 , the plaintiff told Mr Brownbill of problems with memory and panic attacks.

Sleep

353The plaintiff reported difficulties with sleep due to pain to both the occupational therapist in May 2013 and to Caulfield Hospital later that year.  Dr Entwisle also noted sleep complaints in November 2013, as did Dr Varney in January 2014.

Activities – housework

354There were numerous references in the medical reports that the plaintiff was having significant difficulties with housework and cooking prior to the 2014 accident.

355She told Professor Davis in October 2012 she did minimal housework.  In May 2013, the occupational therapist noted similar limitations, as did AP Brewer in September that year, where he also stated the plaintiff could not cook or learn to be an adult.

356The Caulfield Hospital, Dr Entwistle in 2013, and Mr Mangos in early 2014, noted the plaintiff reported problems with cooking and cleaning the house and had council assistance.  In June that year, Mr Brownbill noted the plaintiff could do very simple cooking and she was trying to get the TAC to get her an attendant carer.

Socialising – relationships

357I do not accept the plaintiff’s social and leisure activities as at the date of the 2014 accident were at the level she described in her recent affidavits and her viva voce evidence.  To the contrary, prior to the 2014 accident, she was very limited in her social life and leisure/sporting activities and had significant difficulties with interpersonal relationships.

358Professor Davis noted in detail the plaintiff’s relationship problems as of October 2012.  She told him there had been various relationships over the years but she was sick of failed relationships and was currently not seeing anyone.  People tended to give up on her.  She used to be more outgoing before the 1994 accident.

359She had trouble getting on with people and often felt they taunted or criticised her. She hated the last eighteen years of her life and even wished she had not survived the accident.

360In May 2013, the occupational therapist noted the plaintiff found it hard to get along with people. In September that year, AP Brewer reported that the plaintiff had been trapped into a dependant relationship with her mother and had lost relationships.  

361In October 2013, the Caulfield Hospital reported that the 1994 accident had significantly impacted on the plaintiff’s ability to socialise and sustain relationships.  She was very conscious of being let down by others and described difficulty reading social situations and she did not have a supportive social group. 

362Dr Entwisle, in November 2013, noted the plaintiff had last had a relationship five years earlier and she struggled in relationships, never married, had been pregnant twice, resulting in termination. She readily acknowledged feeling lonely and isolated.  She had intermittent and conflicted contact with her parents and sister. She had no friends as such.  She felt affected by people who put her down all the time.

Sport

363As counsel for the defendant submitted, “it beggars belief”, with her mobility issues resulting from the 1994 accident, that the plaintiff could run, jog, play volleyball and the like.[69] 

[69]T53

364In any event, in October 2012, the plaintiff told Professor Davis she used to be physically active, but because of pain, spoke of not being so now and had put on considerable weight.   She was no longer engaged in leisure activity.  She told him she was a very good gymnast before the accident and had a range of other leisure activities, including running, volleyball and swimming.

365Caulfield Hospital also reported in October 2013 that sport in the past was important, and before the accident, the plaintiff enjoyed running and gymnastics.

366Dr Entwisle noted in November 2013 that the plaintiff used to be physically active but because of pain, spoke of not doing so now and had put on considerable weight and had grown fat.

Other activities

367The plaintiff’s involvement in volunteer groups, Buddhism classes and dog training was also very limited due to the 1994 injuries as at the said date.

368As the occupational therapist noted in May 2013, before the 2014 accident, the plaintiff had unsuccessfully attempted to return to multiple groups, including Buddhism, due to pain and or concentration issues and had ceased attending.  In September that year, she told AP Brewer she could not engage in Buddhism studies weekly because of difficulties reading out loud and monitoring what she was saying simultaneously.

369Caulfield Hospital reported in October 2013 that the plaintiff had tried voluntary work but could not sustain it.  She would like to be a dog behaviourist/trainer and had trained two dogs of her own, but tried volunteer work with dogs and struggled.

370Dr Entwisle reported in November 2013 that the plaintiff tried to walk the dogs daily.  In February 2014, she told Mr Mangos she walked the dogs slowly for half an hour. 

371Although the plaintiff told Dr Sullivan earlier this year she used to walk her dogs for five hours a day before the 2014 accident, I do not accept this was the case.

372As Mr Mangos commented in early 2014, the plaintiff’s domestic, social and recreational life had been severely shattered by the 1994 accident.  The 1994 accident had “marked effects” on the plaintiff’s social, domestic and recreational activities, as Mr Brownbill described. 

Work 

373Although it was not submitted there were work consequences relating to the plaintiff’s 2014 accident injuries, as at February 2014, she was significantly compromised in her ability to maintain employment.  Any suggestion that she was working at the time of that accident such as noted by Dr Sullivan, is clearly inaccurate.

374As at January 2014, Dr Varney thought the plaintiff was never going to be fit for gainful employment.  As the plaintiff told the occupational therapist in May 2013, she could not hold down a job due to pain and cognitive issues.

375While the plaintiff may have had aspirations for the future as AP Brewer described in September 2013, I do not accept her counsel’s submission that they were an indication she was “still well mobile and had hopes for the future”.[70]  This long list of hopes in fact confirmed the level of difficulty the plaintiff was experiencing at that time.

[70]T64

376As this treater concluded, the plaintiff continued to present some nine years after the 1994 accident with ongoing physical, cognitive and behavioural compromise and was significantly compromised in her ability to maintain employment.   

377While there was no cross-examination of the plaintiff’s mother or  Mr Gamble, their affidavits, like the plaintiff’s evidence, understated the significant problems the plaintiff was experiencing as a result of the 1994 accident at the time of the 2014 accident. 

378It was inaccurate, as the plaintiff’s mother deposed, that before the 2014 accident, the plaintiff was well able to keep busy and had an active social life, did plenty of volunteer work with church and animal groups, was able to keep up with household chores and was involved in various sports on a social basis.  It was not correct that all of these had been taken away by the 2014 accident.

379The plaintiff was clearly not busy, active and happy before the 2014 accident, as Mr Gamble described.

380Further, the medical opinion supportive of the plaintiff’s current application was based largely on a lack of detail as to her significantly compromised functioning as at the time of the 2014 accident due to her 1994 injuries.

381I am mindful of what was said by the Court of Appeal in Dordev v Cowan[71] in relation to the plaintiff’s credit in this type of case.  As Chernov JA said,[72] a plaintiff’s credibility is relevant not only to whether his evidence should be accepted, but it is also relevant to the reliability of the medical evidence, because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.

[71][2006] VSCA 254

[72]        (Ibid) at paragraph [14]

382Accordingly, in this case, what appear on their face to be medico-legal opinions supportive of the plaintiff’s claim, must be looked at in the light of my views as to her credit/reliability.[73]

[73]T56

383While Dr Sultana thought the plaintiff had ongoing chronic neck pain and anxiety related to the 2014 accident, and that she needed pain management,[74] Dr Sultana made no mention of the 1994 accident in her report.[75] 

[74]T64

[75]T59

384Although Dr Mittal, the treating pain physician and specialist anaesthetist,  accepted the plaintiff was suffering from ongoing chronic neck and upper thoracic spinal pain related to the 2014 collision,[76] she does not seem to have any idea of the migraines, headaches, blurred vision, pins and needles, panic attacks, memory loss and poor concentration that predate the 2014 accident.[77]  She thought the plaintiff first used a walking stick after the 2014 accident

[76]T68

[77]T54

385Further, Dr Mittal is clearly incorrect when she concluded that prior to the 2014 injury, the plaintiff was still functional and able to engage in a range of activities. The situation had not completely changed since the 2014 accident, as she reported.[78]

[78]T55

386Dr Gingold thought the plaintiff’s current symptoms were a combination of residual problems related to the 1994 injury and then further injury in 2014, which was more of a whiplash-type injury, with resultant neck pain.

387Dr Gingold thought the plaintiff clearly had clinical features of fibromyalgia, which while it may have been an issue for a while, had clearly been exacerbated by the 2014 accident, particularly the symptoms around her neck and thoracic spine. 

388While he noted that the plaintiff struggled to do anything outside the house, so, clearly, she would not be a candidate for regular employment, Dr Gingold did not really ask her about her social activities and domestic situation before the 2014 accident.

389Pain specialist, Dr Sullivan, was wrong about the plaintiff continuing to work up until the time of the 2014 accident and having no posterior cervical spine pain before.  He cannot say she had recovered substantially from the 1994 accident and had been gainfully employed and adapted her life and in general, was managing well as at 2014.[79]

[79]T57

390Mr Mills just seems to accept there is an involvement of the lumbar and cervical spine, and it is very difficult to interpret his report.[80]

[80]T60

391While Professor Bittar thought the 2014 accident was a significant contributing factor to the plaintiff’s current spinal condition, he had limited details of the 1994 accident, noting only the injuries received.  He does not appear to have been provided with any reports of treaters or medico-legal examiners before the 2014 accident to make any real analysis of her condition prior to the 2014 accident.

392Mr Laidlaw found it difficult to assess the degree to which the 2014 accident exacerbated the plaintiff’s symptoms in the absence of extensive notes of her condition and treatment prior thereto.  In any event, he found inconsistencies on examination and had difficulty diagnosing the plaintiff’s current condition.

Treatment 

393While the plaintiff was significantly compromised as at the said date from her 2004 accident injuries, I accept there has been an increase in neck/thoracic pain thereafter, requiring conservative treatment.  

394The plaintiff was under the care of Dr Sultana at the Aspendale Gardens Medical Centre since 2015 and more regularly from October 2018.   Since June 2020, Dr Nicola has been the plaintiff’s regular treater.  The practice has been prescribing Nurofen at times and has referred the plaintiff to specialists and for pain management.

395However, it is difficult to know the role, if any, the 1994 injuries play in the need for this treatment as that is not really commented on by those practitioners.

396The plaintiff has had physiotherapy from Zoe Lorenzo since mid 2019 for both her neck/migraines and also lower back, the latter having been a significant problem for her since the 1994 accident.

397The plaintiff was referred to Dr Gingold, rheumatologist, on one occasion in October 2020.  While noting her neck injury in the 2014 accident, he thought her current symptoms were a combination of residual problems related to the original injury in 1994 and then further injury in 2014.  He did not suggest any further treatment, just continuation with physical therapy, a focus on pacing strategies, as well as other pain management techniques.   

398The plaintiff was seen as a part of a multi-disciplinary pain assessment by physiotherapist, AP Ford, in August and October 2020 but was discharged early from the program because of her attitude and she did not receive any treatment. AP Ford’s focus in those limited sessions seemed to be on the plaintiff’s lower back issues. 

399The plaintiff was referred by general practitioner, Dr Miao, to pain physician, Dr Mittal, who reviewed her three times between December 2020 and February 2021.  After organising a range of spinal investigations, Dr Mittal asked the plaintiff to commence the relaxant Norflex.

400Save for an increase in neck/thoracic pain and this additional conservative treatment following the 2014 accident, little has changed in the plaintiff’s situation since then. She continues to have the significant problems with mobility, limited postural tolerances, sleep, relationships, social interaction, anxiety and depression, mood  and memory and concentration that she was experiencing prior to 2014 accident.  Her significant difficulties with household duties and cooking, leisure activities, including dog training from before the 2014 accident, continue.

401Taking into account all the evidence, including the expected emotional consequences of the 2014 spinal injury,[81] diagnosed as aggravation of an Adjustment Disorder resulting from the 1994 accident,[82] I am not satisfied any aggravation of the plaintiff’s spinal condition in the 2014 accident is “serious”.

[81]        Richards & Anor v Wylie (supra)

[82]        Dr Schutz and Dr Damodaran

402Accordingly, the application is dismissed.

- - -