Koutroulis v Transport Accident Commission
[2022] VCC 1636
•10 October 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| Serious Injury List |
Case No. CI-19-04055
| ANGELA KOUTROULIS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE CLARK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 and 21 April 2022 | |
DATE OF JUDGMENT: | 10 October 2022 | |
CASE MAY BE CITED AS: | Koutroulis v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1636 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – pain and suffering – spinal impairment – causation – disentanglement – range
Legislation Cited: Transport Accident Act 1986
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67; Richards & Anor v Wylie (2001) 1 VR 79; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Stijepic v Once Force Group Aust Pty Ltd & Anor [2009] SCA 181; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S McCredie with Mr P Haddad | Shine Lawyers |
| For the Defendant | Mr P Jens QC with Mr M Clark | HWL Ebsworth Lawyers |
HIS HONOUR:
Introduction
1On 9 October 2014, the plaintiff, Ms Angela Koutroulis, was driving along High Street, Lalor, when a vehicle travelling in the opposite direction crossed to the wrong side of the road and collided with her vehicle (“the accident”).
2As a result of the accident, Ms Koutroulis says that she has suffered a neck injury, which continues to cause her pain and impacts very significantly on her life.
3Prior to the accident, Ms Koutroulis had a difficult life. She had not worked for many years and had been in receipt of a disability pension. She had an extensive medical history. She had suffered from depression, anxiety and panic attacks.[1] She had also suffered from asthma; varicose veins requiring surgery; stomach ulcers; carpal tunnel syndrome; lower back pain; ischaemic stroke and had her gallbladder removed. In 2006 and 2008, she had suffered from neck pain. On 22 February 2008, she underwent a CT scan which showed degenerative changes in her neck.[2] She had not received any treatment for her neck between 2008 and the accident. Ms Koutroulis had also suffered from headaches prior to the accident. These headaches were said to have been “incredibly bad, crippling headaches”.[3]
[1] Plaintiff’s Amended Court Book (“PCB”) 16 at paragraph 9
[2] PCB 190
[3]PCB 18 at paragraph 17
4After the accident, Ms Koutroulis sought medical treatment for her neck at the Austin Hospital. As a coincidental finding while being assessed at the hospital, she was diagnosed as suffering a meningioma. She underwent surgery at the Austin Hospital to remove this growth.
5In the years after the accident, Ms Koutroulis attended various doctors and physiotherapists, complaining of neck pain, left shoulder pain and headaches, which she attributed to the accident.
6As time progressed, her left shoulder problem got worse. At the time of the hearing, she was on the waiting list at the Austin Hospital to have surgery on her left shoulder. She also developed left carpal tunnel syndrome. The combination of her left shoulder injury and the left carpal tunnel syndrome impacted on her capacity to use her left arm.
7Ms Koutroulis has suffered other health problems since the accident. These problems include severe urinary incontinence, gastric problems, knee pain and gynaecological problems, possibly requiring a hysterectomy.
8Ms Koutroulis claims that, by reason of her neck injury, a range of domestic, recreational and social activities have been either lost to her, or she is limited in what she can do. She said she continues to suffer neck pain. She said she suffers headaches which are related to her neck injury. She also said that, at the time of the accident, she enjoyed dancing, playing basketball and playing tennis, and that after the accident she was no longer able to do these activities.
9While the defendant, the Transport Accident Commission (“TAC”), accepts that Ms Koutroulis continues to suffer a neck injury, they do not accept what she says about the nature and extent of that injury and the impact on her. The TAC says that Ms Koutroulis is an unreliable historian. The TAC also says the real cause of her restrictions is her left shoulder injury and other medical conditions, not her neck.
10The TAC told the Court that they believed, when properly assessed, the consequences of Ms Koutroulis’ neck injury are not serious.
The application
11The application by Ms Koutroulis was brought pursuant to s93(17)(a) of the Transport Accident Act 1986 (“the Act”). The injury relied upon was the spine. In particular, the neck.
12The question of whether an injury is “serious” for the purposes of s93(17)(a), is to be answered in accordance to the narrative test laid down by the Full Court of the Supreme Court of Victoria in Humphries and Anor v Poljak[4] (“Poljak”).
“… To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”[5]
(Emphasis added.)
[4][1992] 2 VR 129
[5]Poljak (ibid) at 140 per Crockett and Southwell JJ
13Crockett and Southwell JJ identified, in Poljak, that many disturbances are considerable in the sense that they are “important” or “substantial” without being “very considerable”.
14It is necessary for me, as far as the evidence in the case permits, to identify the consequences properly referable to Ms Koutroulis’ neck injury and to exclude the consequences referable to her left shoulder injury and other medical conditions unrelated to the accident.[6]
[6]Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67
The credit and reliability of Ms Koutroulis
15As has been said many times, when assessing the “seriousness” of the claimed injury, the credit and reliability of Ms Koutroulis is an important starting point. In this case, her credit was raised in the context of the reliability of her evidence.[7]
[7]Transcript (“T”) 114, Lines (“L”) 15-29
16The TAC attacked Ms Koutroulis’ reliability and, in particular, what she had told the doctors over the years, and the extent of the consequences flowing from her neck injury. Their Counsel, Mr Jens, said, at times her evidence was “a complete fog”.[8]
[8]T114, L22
17After considering all of the evidence, I have concluded that there were many aspects of the Ms Koutroulis’ evidence which were confusing, inconsistent and/or contradictory, and some which ultimately proved to be just plain wrong. It was difficult to work out just what her real restrictions were and what medical condition was the cause. There were many aspects of Ms Koutroulis’ evidence and the histories which she had provided to doctors which were unreliable. Indeed, there were many aspects of her oral evidence which was at odds to her affidavit evidence. While the TAC did not submit that she had been dishonest, what they said was that it was wrong to attribute many of the consequences which she relied upon to her neck injury. They maintained the ongoing restrictions which she complained of were due to her left shoulder injury, which she conceded was not as a result of the accident.
Assessment and treatment of Ms Koutroulis’ neck, left shoulder injury and other medical conditions
Treating doctor reports
18In the years after the accident and through to February 2019, Ms Koutroulis consulted general practitioners, Dr Aneesa Iqbal and Dr Songita Rahman. She was also referred to Mr Grant Pang, orthopaedic surgeon, and Mr Tim McCoy, physiotherapist. Throughout this period, she complained of neck pain, ongoing headaches and left shoulder pain. Mr McCoy assessed her neck injury as a whiplash injury with secondary cervical dysfunction.[9]
[9] PCB 65
19On reviewing the medical materials, it is apparent to me, that from 2018, Ms Koutroulis’ left shoulder problem was getting worse.
20On 20 February 2019, Ms Koutroulis commenced attending Dr James McKenzie at the Plenty Valley Medical Centre. When she first saw Dr McKenzie, he obtained a history of ongoing neck pain and left shoulder pain dating from the accident.[10]
[10]PCB 54
21On 24 February 2020, at the referral of Dr McKenzie, Ms Koutroulis consulted Dr Hazem Akil, neurosurgeon. Dr Akil, on examination, found she had a good range of movement of her cervical spine and that neurological examination did not reveal any sensory or motor abnormality.[11] Dr Akil reviewed the MRI scans undertaken 28 October 2019. He said that, while showing signs of degeneration, the scans did not reveal any particular neural compression that could explain her shoulder pain or neck pain.[12] Dr Akil concluded that Ms Koutroulis was suffering from an aggravation of cervical spondylosis and thought it was most likely that the origin of the pain was facet joint arthropathy.[13] Dr Akil recommended Ms Koutroulis be reviewed by an orthopaedic surgeon to assess her ongoing shoulder problems.[14]
[11]PCB 63
[12]PCB 63
[13]PCB 63
[14]PCB 63
22On 16 March 2020, at the referral of Dr McKenzie, Ms Koutroulis consulted Mr Devinder Garewal, orthopaedic surgeon, for assessment of her left shoulder. Mr Garewal provided two reports, dated 16 April 2021[15] and 2 January 2022.[16] Mr Garewal provided very clear and strong opinion in respect to Ms Koutroulis’ left shoulder condition. He diagnosed that she was suffering from a left shoulder supraspinatus tendon tear, and he recommended she undergo arthroscopic rotator cuff repair.[17] Mr Garewal thought that her left shoulder condition was likely to deteriorate in the long term.[18] Mr Garewal considered that the left shoulder injury did affect Ms Koutroulis’ activities of daily living and domestic, leisure and social pursuits, given that she had significant pain and dysfunction.[19] In the context of this application, the findings made by Mr Garewal are very important. It is clear that Mr Garewal considered the left shoulder injury to be the cause of significant pain and restriction to Ms Koutroulis.
[15]PCB 58
[16]PCB 60
[17] PCB 58
[18] PCB 58
[19]PCB 58-61
23Two reports were obtained from Dr McKenzie. The first report is dated 3 May 2021[20] and the second is dated 17 November 2021.[21] These reports were identical, except for an addendum, which Dr McKenzie added to the second report.
[20]PCB 54
[21]PCB 56
24As noted, Dr McKenzie had referred Ms Koutroulis to Dr Akil for assessment of her cervical spine injury. Dr McKenzie, in respect to this assessment, said:
“On 24/2/2020 [Ms Koutroulis] attended Dr Hakem Akil (Neurosurgeon). He felt that her neck pain might be originating from the facet joint arthropathy but most of her problems are related to her left shoulder.”[22]
[22]PCB 56
25In the course of the trial, there was dispute in respect to what Dr McKenzie was attributing to Dr Akil and what was, in fact, Dr McKenzie’s own opinion. On one interpretation, it was Dr Akil who considered Ms Koutroulis’ left shoulder injury to be the cause of most of her problems. The other interpretation attributes that belief to Dr McKenzie. Either way, that most of Ms Koutroulis’ problems are related to her left shoulder, is consistent with the balance of Dr McKenzie’s report. Dr McKenzie said:
“… [Ms Koutroulis’s] shoulder pain has stabilised in that she has chronic pain that is neither improving nor worsening.
Her injury is not likely to deteriorate unless she has another accident.
… [Ms Koutroulis’s] injury needs surgery as per Dr [sic] Garewal. Physiotherapy is also needed to keep her shoulder mobile and to avoid having a frozen shoulder.
The injury to … [Ms Koutroulis’] left shoulder does not really impact her capacity for employment as she has other medical conditions that preclude her from working.
The injury makes a negative impact on her daily living as she struggles to lift anything above shoulder height such as placing things in overhead cupboards and putting washing on a line for example. She is in constant pain and this has a negative effect on her mental health.
Due to … [Ms Koutroulis’] other chronic medical conditions she struggles with day to day activities and caring for herself and her children. Her left shoulder injury has exacerbated an already difficult social situation.”[23]
(My emphasis.)
[23]PCB 54-55
26Referring to the Addendum to the second report, Dr McKenzie said:
“… [Ms Koutroulis] attended the Orthopaedic outpatients at the Austin Hospital on 26/7/2021 . She was seen by Dr [sic] Devinder Garewal. He noted … [Ms Koutroulis] still had an irritable left shoulder with isolated weakness of her Supraspinatus tendon. This had not settled with non-operative measures. He recommended arthroscopic cuff repair and had placed … [Ms Koutroulis] on his waiting list at the Austin Hospital.”[24]
(My emphasis.)
[24]PCB 57
27Dr McKenzie, who has treated Ms Koutroulis for in excess of three years, did not, in his most recent report, provide any history of ongoing complaint and/or management of her neck injury subsequent to the referral to Dr Akil. In the context of this case, the focus by Dr McKenzie on the left shoulder injury, and the lack of reference to complaint and treatment in respect to her neck injury, is important.
Conclusions from the treating doctor reports
28I conclude from Dr McKenzie’s report that he considers it is Ms Koutroulis’ left shoulder which is the significant problem for her. Specifically, he said that it was her left shoulder injury which has exacerbated her already difficult social circumstances. Dr Akil’s report did no more than confirm the existence of a neck injury, which has already been conceded by the TAC. Dr Akil’s report provided the Court with no assistance in respect to the impact which Ms Koutroulis’ neck injury has on her activities of daily living.
29As noted in paragraph 22, the opinion of Mr Garewal is of real concern to me. He concluded that it Ms Koutroulis’ left shoulder injury which severely impacts upon her activities of daily living, including her domestic, leisure and social activities.[25]
[25]PCB 59
30In the course of the hearing, Ms Koutroulis gave evidence that she continues to receive physiotherapy treatment. No evidence was provided from that physiotherapist. Ms Koutroulis’ counsel conceded that an inference could be drawn by the Court given the absence of this evidence.[26] I conclude that a report from her current physiotherapist would not have assisted her case.
[26]T15, L13-16
Medico-legal reports
31There were many medico-legal reports relied on by both parties.
Reports of Dr Clayton Thomas, pain physician, and Dr David Brownbill, neurosurgeon
32Dr Clayton Thomas assessed Ms Koutroulis on 2 December 2016.[27] Dr Brownbill assessed Ms Koutroulis on 5 October 2017.[28] Both these doctors provided support to the proposition that she had suffered neck injury. Both advised that MRI scanning was indicated. Neither were provided with the subsequently obtained MRI scans, or asked to undertake an updated assessment. These reports are now more than four-and-a-half years old. I find these reports of no real assistance in assessing Ms Koutroulis’ current level of impairment.
[27] PCB 213
[28] PCB 114
Dr Symon McCallum, pain specialist
33Dr Symon McCallum provided four reports dated 28 November 2018,[29] 25 May 2020,[30] 15 March 2021[31] and, finally, 21 December 2021.[32] Dr McCallum concluded that Ms Koutroulis was suffering from cervical whiplash and cervicogenic headache. He concluded that, as a result of the accident “there will have been aggravation of the cervical spondylosis”.[33] Dr McCallum formed the view that the aggravation of the cervical spondylosis was causing her to suffer neck pain and upper thoracic paravertebral muscle pain. Having said that, Dr McCallum also advised:
(a) that he considered Ms Koutroulis to be “somatically focused”;[34]
(b) that her pain was extremely widespread and that he felt she was suffering from a “chronic pain syndrome”;[35]
(c) in respect to the proposed left shoulder surgery, he concluded she had many risk factors for a poor outcome.[36]
[29]PCB 120
[30]PCB 125
[31]PCB 131
[32]PCB 137
[33]PCB 140
[34]PCB 140
[35] PCB 141
[36]PCB 141
Mr Thomas Kossmann, orthopaedic surgeon
34On 2 March 2021, Ms Koutroulis was assessed by Mr Kossmann. In respect to her neck injury, he made a diagnosis of “aggravation of pre-existing cervical spondylosis”.[37] Mr Kossmann concluded that her prognosis regarding her neck injury was guarded.[38] He considered she would require further treatment with pain medication and anti-inflammatories.[39] In respect to the headaches of which Ms Koutroulis complained, he recommended a referral to a neurologist.
[37]PCB 159
[38] PCB 160
[39] PCB 160
Dr David Weissman, psychiatrist
35Dr Weissman assessed Ms Koutroulis on 8 April 2021. He provided a report of that date.[40] Dr Weissman, under the heading “Current Physical Symptoms”, reported:
“I asked her about her current pain. She told me that the worst pain is in her shoulders with the left shoulder being worse than the right. (She is predominantly right hand dominant. Having said this she told me that she used to clean a lot using her left hand.)
She told me that she also experiences neck pain that ‘travels’ to her shoulders.
She experiences tension headaches every day that affect the front, sides and top of her head. The headaches are either mild or moderate in intensity she said … .”[41]
(my emphasis)
[40]PCB 171
[41]PCB 175-176
36Dr Weissman noted this was a “complex case” and went on to note:
“She now suffers from significant pain. Even though the pain seems to have been ‘caused’ by the subject transport accident, I think that the psychological and emotional foundations for the pain were laid well and truly prior to the subject transport accident given her history of chronic recurrent anxiety, depression and psychological and emotional vulnerability.”[42]
[42]PCB 186
37Dr Weissman considered Ms Koutroulis to be suffering a multitude of psychiatric conditions which included:
“…
5. accident-related cross-sectional mild to moderate but closer to mild chronic Adjustment Disorder with Anxious and Depressed Mood; …
…
7. probable Somatic Symptom Disorder with predominant pain, persistent (or Chronic Pain Disorder associated with psychological factors and a general medical condition) ꟷ the main, current accident-related psychiatric diagnosis.”[43]
[43]PCB 187
38Dr Weissman went on to conclude:
“There seems to be (sic) have been a further mild to moderate decline, deterioration, and downturn in Ms Koutroulis’s quality of life, level of enjoyment and pleasure, and level of function since her involvement in the subject transport accident. This seems to be predominantly physically based and therefore predominantly outside my area of expertise.”[44]
[44]PCB 188
39Ms Koutroulis did not pursue a claim for psychiatric injury in this application. That aspect of her case was abandoned at the commencement of the hearing.[45] I note the findings of Dr Weissman as far as they are relevant to this application.[46] However, I note that Dr Weissman did not disentangle the pain and psychological consequences between her neck injury, the left shoulder injury or, indeed, the pre-existing psychiatric condition. I also note that Dr Weissman referenced her headaches as being “tension headaches”.
[45] T1, L31
[46] See Richards & Anor v Wylie (2000) 1 VR 79
Professor Stephen Davis, neurologist
40On 17 March 2021, Ms Koutroulis was assessed by Professor Stephen Davis. Professor Davis obtained a history of Ms Koutroulis suffering recurrent bad headaches before the accident and noted the surgery for the removal of the meningiomas subsequent to the accident. Professor Davis recorded that, subsequent to this surgery, “she still has headaches”.[47] Professor Davis obtained the history from Ms Koutroulis that, while she had pain in her neck, it was the pain in her left shoulder which was particularly bad.[48]
[47]PCB 165
[48]PCB 167-168
Mr Stephen Doig, orthopaedic surgeon
41Ms Koutroulis was first assessed by Mr Doig on 2 April 2020. On that day, on examination, he found no specific tenderness of her neck.[49] Mr Doig considered that she had suffered a soft-tissue injury to her cervical spine.[50]
[49] PCB 143
[50] PCB 144
42On 13 December 2021, Ms Koutroulis was re-examined by Mr Doig.
43At the time of this assessment, Mr Doig obtained a history in respect to the her neck that:
“… she still gets some aches and pain in the cervical spine. It continues to cause her some ache. There is no real radiation of it. There have been no recent referrals as far as her neck is concerned … .”[51]
[51]PCB 147
44When examining Ms Koutroulis, he found that she suffered a mild restriction in range of movement of her neck.[52] However, Mr Doig found there was no specific tenderness around the neck. He found there were no focal neurological signs in the upper limbs.[53] Mr Doig again made the diagnosis of a soft-tissue injury to the cervical spine.
[52]PCB 149
[53]PCB 148
45Mr Doig concluded:
“The prognosis for Ms Koutroulis[’] transport related accident injuries for the right shoulder is excellent and for the cervical spine is excellent. She has essentially made a reasonable, but not complete recovery from both of those. As far as her left shoulder is concerned, I considered that she had evidence of a traumatic subacromial bursitis with subsequent calcification which on the last CT scan had resolved. She does continue to have some ongoing ache and pain in the left shoulder … .”[54]
(Emphasis added.)
[54]PCB 149
Mr Peter Wilde, orthopaedic surgeon
46On 20 December 2019, Ms Koutroulis was assessed by Mr Wilde. On examination, he found her neck movements were slightly restricted, principally because of pain. There were no neurological findings in the upper limbs. Mr Wilde concluded that she was suffering ongoing neck symptoms with headaches attributable to the accident.[55] At that time his prognosis was guarded.[56] Mr Wilde concluded that any shoulder pathology which she suffered was not related to the accident.[57]
[55]Defendant’s Court Book (“DCB”) 8
[56]DCB 9
[57]DCB 8
47On 28 July 2021, Ms Koutroulis was re-examined by Mr Wilde.
48Mr Wilde detailed her complaints of symptoms:
“Current Symptoms:
At present Mrs. Koutroulis complains of pain mostly about her left shoulder referring into the left scapula region. This is the most severe pain and seems to have arisen over recent years. She rates the pain at 5 out of 10 on an average day and on a bad day 8 or 9 out of 10. She cannot reach above her head into cupboards or use her left arm at bench height. She has difficulty using her left arm to do up her bra. She is left-handed so this is quite an inconvenience. She cannot sleep on her left side as the pain wakes her at night. It causes her to wake two or three times per night.
Regarding her right shoulder, there is slight pain which she rates at 2 or 3 out of 10. She can sleep comfortably on her right side.
Her neck pain is not so severe and she rates pain levels at 2 or 3 out of 10. The pain refers into the left periscapular region and is not associated with neurological symptoms in the upper limbs such as numbness or weakness or bowel and bladder dysfunction.”[58]
(Emphasis added.)
[58]DCB 15-16
49When examining Ms Koutroulis’ neck, Mr Wilde found that her movements were slightly restricted, mostly because of pain. There was no dysmetria or muscle spasm. There were no neurological findings in the upper limbs.[59]
[59]DCB 17
50Mr Wilde made a diagnosis of an aggravation of cervical spondylosis without radiculopathy.[60]
[60]DCB 18-19
Ms Koutroulis’ evidence, her reliability and the consequences flowing from the neck injury
51I am conscious of the need to disentangle the consequences flowing from Ms Koutroulis’ accepted neck injury from the consequences flowing from her numerous other problems, particularly her left shoulder injury.[61] In doing so, I shall break down and assess the various consequences complained upon by her.[62]
[61]See for example Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67
[62]See Maxwell P in Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Recreation and sport
52Ms Koutroulis said, in her affidavits, that prior to the accident, she participated in and enjoyed playing basketball, playing tennis and dancing.[63]
[63] PCB 33 at paragraphs 11 and 13
53Dealing firstly with basketball. She said that, at the time of the accident, she enjoyed playing basketball. However, when pressed, Ms Koutroulis conceded that she was not playing basketball in a team at the time of the accident and had not done so for many years. She explained that her basketball activities were limited to social interaction with friends and family, which involved the throwing and bouncing of a basketball and shooting baskets. In the course of her oral evidence, contrary to what she asserted in her affidavits, Ms Koutroulis conceded that she has continued to play basketball. Indeed, it was her evidence she could, and did, bounce and throw a basketball. The major restriction she identified was that she could not shoot a basketball.[64] When asked to explain her inability to shoot a basketball, it was her evidence that:
Q:“What I am suggesting to you is that one of the main reasons for that is the problems with your left shoulder?---
A:That's right. Bouncing is one thing, shooting is another. It is like when I do some shopping on my own. My right hand carries most of that weight.”[65]
[64]T56, L19-31
[65]T58, L11-15
54I find that Ms Koutroulis, contrary to her affidavit evidence and her history to various doctors, continues to play basketball. I accept there is a restriction for shooting a basketball. However, this is a consequence of her left shoulder injury, which is unrelated to the accident.
55Turning now to tennis. Ms Koutroulis said that, prior to the accident, she was playing tennis.[66] When I sought clarification from her whether she was, in fact, playing tennis at the time of the accident, or in the months leading up to the accident, it was her evidence:
Q:“… My question to you is, were you playing tennis at the time of the accident or in the months leading up to the accident in 2014?---
A:Much prior to the accident I was playing tennis.
Q:So was that a year or two or three or four years?---
A:I can't remember, it was a while back.
Q:But it was a number of years before the accident?---
A:That’s right.”[67]
[66]T50, L1
[67]T67, L24-31
56Ms Koutroulis’ evidence, in her affidavits, and in response to Mr Jens, that she was playing tennis up to the time of the accident, and that she ceased playing tennis by reason of her neck injury, was simply not correct.
57Referring now to dancing. In her affidavit evidence, Ms Koutroulis said that, prior to the accident, she would go dancing with friends. In cross-examination, she said that she did not go dancing anymore because of her left shoulder and neck.[68] She attributed her inability to both her neck and left shoulder. This can be contrasted to the history provided to Mr Wilde that:
“She used to enjoy dancing and Zumba but does not do these anymore because of the left shoulder pain. … .”[69]
[68]T54, L29 ꟷ T55, L1
[69]DCB 17
58When giving oral evidence, Ms Koutroulis conceded that she has continued to go dancing and last danced “maybe a few weeks ago”.[70]
[70]T55, L22-23
59I find Ms Koutroulis’ evidence in respect to her participation in dancing unsatisfactory.
Household and domestic activities
60Ms Koutroulis, in her affidavit evidence, said that her capacity to participate in household and domestic activities has been limited.[71] When giving her oral evidence, however, I found it difficult to assess and analyse:
(a) the true level of her capacity to undertake household and domestic activities; and
(b) what, if any, restriction was due to the neck injury, as opposed to her left shoulder and other health problems.
[71]PCB 22 at paragraph 34 and PCB 34 at paragraph 16
61In respect to shopping for example, it became evident in the course of cross-examination, that Ms Koutroulis did go shopping on her own and, on those occasions, used her right hand to carry items.[72]
[72]T58, L14-15
62When Mr Jens further explored with her, her reliance upon her right hand and arm to do things like shopping, it was her evidence:
“I use a lot my right arm. And I have got a light vacuum clean, whenever I have to - if I have to do some light cleaning, it is always with nigh right.”[73]
(sic)
[73]T60, L14-16
63When taking this issue further, Mr Jens put to Ms Koutroulis that the reliance upon her right arm was due to her shoulder injury. She agreed:
Q:“So these days that, because of your shoulder, you use your right arm more?---
A:That's right, yes.”[74]
[74]T60, L20-21
64It became clear in the course of Ms Koutroulis’ oral evidence that she continues to undertake a range of domestic activities, such as vacuuming, washing dishes and shopping. Any restrictions in undertaking these activities was attributed to the pain in her left shoulder. Ms Koutroulis also said that she was able to hang clothes up, but hanging clothes on the line caused a worsening of the pain in her left shoulder.[75] She also said that she continues to wash dishes. Again, it was her evidence that washing the dishes at the sink caused pain in her left shoulder.[76]
[75]T39, L17-19
[76]T39, L12-13
65I conclude that it is Ms Koutroulis’ left shoulder injury which is the real cause of her household and domestic restrictions. It is apparent, based on her own evidence, that she is able to, and does do, a range of household and domestic activities and uses her right hand/arm. The neck injury did not feature as the principal cause for any restriction. Indeed, she undertook these activities within the restriction caused by her left shoulder injury.
Her children
66In the course of final submissions, Mr McCredie relied upon the impact which Ms Koutroulis’ neck injury had upon her ability to care for and provide services to her children. That submission can be contrasted to Ms Koutroulis’ evidence in her most recent affidavit, where she said:
“… Despite my limitations, I am responsible for Frank and take him shopping, do most of his laundry, pay the bills and go to appointments with him. I use my right arm whenever possible to avoid aggravating the pain in my left arm.”[77]
[77]PCB 34 at paragraph 16
67It is apparent that Ms Koutroulis continues to undertake a range of activities for her son, Frank, including doing his laundry. Again, it became clear that she undertakes these activities with her right arm to avoid aggravating the pain in her left shoulder.
68A further consequence relied upon by Ms Koutroulis was her inability to provide assistance to her daughter.
69While she asserted that she had lost her capacity to assist her daughter,[78] when cross-examined, Ms Koutroulis conceded that she receives $130 a week in government benefits to be her daughter’s carer.[79] She said that she continues to provide her daughter with services, such as buying clothes, managing her money and providing recipes.[80] This is in the context of her daughter, and her daughter’s family, living independently.
[78]PCB 34 at paragraph 17
[79] T28, L30 – T29, L14
[80] T29. L8-10
Driving
70The impact on Ms Koutroulis’ capacity to drive, and, in particular, her inability to drive for lengthy periods, was another specific consequence identified by her counsel as an important consequence of her neck injury. However, referring to Ms Koutroulis’ most recent affidavit, she said:
“My mobility has been restricted by my injuries. Holding the steering wheel and driving long distances aggravates my left shoulder and arm pain.”[81]
[81]PCB 33 at paragraph 12
71Again, it is her left shoulder and arm pain that she said is the cause of her restriction.
Social life ꟷ cooking and entertaining
72Ms Koutroulis’ evidence in respect to her social life and, in particular, cooking for, and entertaining family and friends, was difficult to understand.
73In her most recent affidavit, she said that she no longer entertained, as her neck and shoulder pain prevented this.[82]
[82]PCB 33 at paragraph 13
74When cross-examined, Ms Koutroulis agreed that she still did go out with friends and still entertained at home. Indeed, it was her evidence that her family and friends came around to her home[83] and, as well as sharing a cup of tea, there were times when she would “put the barbie on”[84] and had cooked on the barbeque.[85]
[83]T55, L24-31
[84]T56, L1
[85]T56, L3-4
75Taking the issue of cooking further, she said:
“… I can still cook and do shopping, but everything is more difficult now as I have to rely on my right hand and arm. … .”[86]
[86]PCB 22 at paragraph 34
76I find that Ms Koutroulis does continue to go shopping, entertain family and friends, and cook. Again, it is her left shoulder, and not her neck, which causes her problems.
Sleep
77Ms Koutroulis, in her most recent affidavit, said:
“I continue to have difficulties sleeping. Rolling onto my left shoulder wakes me up. I have difficulty falling to sleep due to pain.”[87]
[87]PCB 34 at paragraph 15
78In the course of re-examination, she said that it was her neck and shoulder pain which wakes her a night. When specifically questioned by her counsel whether it was one or the other, or both, that woke her, she said, “both”.[88]
[88] T70, L27
Medication
79At the time of the hearing, it was Ms Koutroulis’ evidence that she was taking Endep, Panadol Osteo and Panadeine Forte. There was, however, no assistance provided to the Court in identifying what medication related to the treatment of which injury. It was her evidence that medication was used for headaches, neck and shoulder.[89]
[89]T71, L21
Headaches
80Initially, Ms Koutroulis sought to attribute her ongoing headaches to the neck injury.[90] That evidence can be contrasted to what she said when further cross-examined about the pre-existing and ongoing headaches. She said:
Q:“… But unfortunately for you those headaches have continued on?---
A:They were continuing, yes, before the accident.
Q:Yes. What I am saying now is they have continued?---
A:After the accident, yes.
Q:Yes. So that despite the fact of having the tumours, as it were, removed, in the operation before that, that the headaches have continued?---
A:Yes. I had a brain MRI recently again, as well.”[91]
[90]T44, L30– T45, L2
[91]T46, L11-18
81Ms Koutroulis accepted that she did suffer quite severe headaches prior to the accident. Indeed, I accept that these headaches were regular and, at times, crippling. I also accept that she has continued to suffer headaches since the accident. While Ms Koutroulis sought to attribute the pre-accident headaches to the meningioma, and to attribute the ongoing headaches after the accident to her neck injury, I do not accept this.
82No reports were provided from the neurologist/neurosurgeons who treated Ms Koutroulis at the Austin Hospital at the time of the surgery to remove the meningioma, or subsequently. The only treating neurologist report was from Dr Tomlinson at the Northern Hospital. This report was of no real use.
83Professor Davis said that Ms Koutroulis suffered recurrent bad headaches before the accident and that those headaches had continued.[92]
[92]PCB 164-165
84Ms Koutroulis, when cross-examined, conceded that the headaches which she suffered prior to the accident have continued. Further, she said that she has recently undergone assessments in respect to these headaches and had an MRI scan of her brain. There was no evidence from any of her treating doctors in respect to these assessments and the recent MRI scan.
85While some medico-legal assessors, such as Dr McCallum, attributed the headaches to cervicogenic factors, I am not convinced. Those doctors who support the relationship of the headaches to the accident are reliant upon the history provided by Ms Koutroulis. I do not accept the reliability of such history. I do not accept Ms Koutroulis has discharged the onus of establishing that the headaches which she complains of, are, in fact, attributable to the neck injury.
Conclusions in respect to Ms Koutroulis’ level of activity and the consequences of the neck injury
86I find Ms Koutroulis’ level of activity, as conceded under cross-examination, significantly exceeds the picture painted by her in her affidavits and to various medico-legal assessors. She still:
· participates in basketball
· goes out with friends
· drives her car
· participates in dancing
· cooks and entertains
· goes shopping
· vacuums
· does the laundry
· hangs clothes on the line
· provides a range of services to her children.
87I conclude from Ms Koutroulis’ evidence and my assessment of the medical reports that any restriction which she has in respect to these activities is due primarily, if not totally, to her left shoulder injury, her other health problems and her inability to use her left arm. I find Ms Koutroulis is not precluded from undertaking these activities by reason of her neck injury. That is evidenced by the fact that she continues to undertake them.
Are the consequences to Ms Koutroulis of her neck injury “very considerable”?
88It is Ms Koutroulis who has the onus to show that the consequences of her neck injury satisfy the serious injury test.
89To establish serious injury, the threshold is high. As set out in Stijepic v One Force Group Aust Pty Ltd & Anor,[93] while the evidence may disclose pain and suffering consequences which are both marked and significant, for Ms Koutroulis to be successful, I have to be persuaded that the consequences due to the accident can fairly be described as being “more than significant or marked” and as being at least “very considerable”.
[93][2009] VSCA 181
90I accept that Ms Koutroulis’ neck injury does cause her some pain and there are some consequences, for example:
(a) there is some impact on her sleep;
(b) that she does not dance for lengthy periods of time because her neck gets sore;
(c) that some of the heavier domestic tasks, such as taking out the Wheelie Bins, will cause an increase in her neck pain;
(d) that she does take painkilling medication from time to time for her neck injury.
91However, I must also consider that capacity which Ms Koutroulis has retained.[94] I find that her level of activity is much greater than set out in her affidavit evidence. Indeed, Ms Koutroulis still participates in basketball, goes out with friends, drives her car, participates in dancing, cooks and entertains, goes shopping, vacuums, does the laundry, hangs clothes on the line and provides a range of services to her children. It is clear to me, that whatever restriction she suffers in these activities, is due to her inability to use her left arm as a consequence of her left shoulder injury and left carpal tunnel syndrome.
[94]See Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
92I accept the opinion of Mr Doig that Ms Koutroulis has made a reasonable, but not complete, recovery from her neck injury. When carefully assessing the consequences of which Ms Koutroulis complains, I find a great majority are attributable to her left shoulder injury and other health problems. I do not accept that the consequences attributable to her neck injury alone satisfy the serious injury test.
Conclusion
93Taking into account all of the objective evidence, I am not satisfied that the consequences of any accident-related neck injury are “serious”.
94Accordingly, the application is dismissed.
95I shall hear the parties in respect to costs.
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