Kutic v TAC
[2011] VCC 1373
•28 October 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
DAMAGES & COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-01153
| Gospa Kutic | Plaintiff |
| v | |
| Transport Accident Commission | Defendant |
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| JUDGE: | Judge S Davis |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 13, 14 and 17 October 2011 |
| DATE OF JUDGMENT: | 28 October 2011 |
| CASE MAY BE CITED AS: | Kutic v TAC |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1373 |
REASONS FOR JUDGMENT
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Catchwords: Serious injury application – Transport Accident Act 1986 – s 93(17)(a) – serious long-term impairment or loss of a body function – aggravation of pre-existing asymptomatic degenerative changes of cervical spine
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Keogh S.C | Zaparas Lawyers |
| Ms K. Galpin | ||
| For the Defendant | Mr D. Myers | Transport Accident Commission |
| Mr P. Gates | ||
| HER HONOUR: |
1 The plaintiff applies under s 93(17)(a) of the Transport Accident Act 1986 (the Act) for leave to issue proceedings for the recovery of damages for pain and suffering[1] only in respect of the injury to the cervical spine suffered as a result of a transport accident on 2 November 2005 (the accident). She was a passenger in the car being driven by her husband. The car was stationary waiting to turn right when it was struck from behind by another car and pushed into the path of an oncoming car. She suffered a fracture of the thumb, abrasions and lacerations and an injury to the cervical spine by way of an aggravation of pre-existing but asymptomatic degenerative changes in the cervical spine (at C5/C6) which has resulted in a long-term impairment of the function of the cervical spine. She says she has also suffered an Adjustment Disorder with Mixed Anxiety and Depressed Mood as a result of her chronic neck pain and the physical limitations imposed upon her by her pain. In all the circumstances, she says that in terms of its pain suffering consequences the injury is a serious injury.
[1] The claim in respect of pecuniary consequences flowing from the transport accident was abandoned at the commencement of the hearing before me.
2 The defendant relies on a number of credit issues which it says adversely affect the reliability of the plaintiff’s evidence concerning the pain and suffering consequences of her neck injury. Firstly, the defendant says that because the plaintiff abandoned her claim to pecuniary disadvantage at the commencement of the hearing, and in the absence of a pathological explanation for her ongoing pain, and the failure of treatments with physiotherapy or medication to improve her pain, the plaintiff’s complaints of ongoing pain at the level complained of are inherently unlikely and ought not to be accepted. Secondly, the defendant points to a number of inconsistencies in the plaintiff’s evidence concerning a number of matters including: how much she was working after the transport accident; whether the sole reason for the sale of the bakery was the physical restriction flowing from her neck; whether or to what extent she was able to drive; and how far she was able to walk before and after the transport accident. Finally, the defendant relies on the contrast in the plaintiff’s evidence between her claim in her affidavits that she is totally isolated and has no enjoyment of life evidence and her viva voce evidence to the effect that she tries to keep busy and active, that she enjoys seeing her children and grandchildren, that she has friends visit her at home, that she goes to the supermarket with her husband and that she enjoys watching television with him.
The hearing
3 Five witnesses were called on behalf of the plaintiff: the plaintiff, her husband, her elder daughter, and her two treating general practitioners. There were no other witnesses.
4 I have considered the evidence of the witnesses and all of the material tendered by the parties.
Plaintiff’s evidence
5 The plaintiff’s evidence may be briefly summarised. She is 64 years old and came to Australia from Bosnia in 1971. She speaks some English, but does not read or write it. She lives with her husband. They have two adult daughters who live close by, and three grandchildren. She worked as a process worker and kitchen hand from 1976 to 1984. From 1985 to 2000 she operated a bakery in Narre Warren with her husband, working from 1am to 6pm, seven days per week. She had one month off work in 16 years. They closed the bakery after a downturn in business.
6 From 2000 to 2002 she was in receipt of a carer’s allowance while caring for her husband.
7 In 2002, Mr and Mrs Kutic purchased a bakery in Murrumbeena, in partnership with their elder daughter, Ms Snezana Colley. Mrs Kutic worked 16 hours per day from Monday to Friday, and 12 hours per day on weekends, until the accident. Her duties included preparing the dough, putting goods on trays, washing dishes, mixing the meat for the pies, and cleaning the shop. She was on her feet all day.
8 After the accident, she was off work for about one month. When she returned to work, she worked four hours per day, seven days per week. She was unable to do any of her previous duties, and only served the customers. Her younger daughter had to come to work to assist the family perform the duties the plaintiff had performed before the accident.
9 In her first affidavit she stated that prior to the accident she enjoyed socialising with friends and family and going out. She used to love cooking and enjoyed reading. She goes out less, cooks less due to neck pain, and can only do a bit of housework. She cannot read much because of her headaches and neck pain. Her sleep is so disturbed that she sleeps in a separate room from her husband.
10 She was involved in a transport accident in 1992 but did not recall having neck pain at the time as recorded in the notes of Dr Leanne Myerscough. However, she could recall no lasting symptoms and returned to work a day later. She saw a neurologist in 2001 and was diagnosed with benign positional vertigo. She said the daily severe headaches and pain in the back of the head she has had since the accident are very different from the symptoms she experienced in 2001. She stated that her daughter filled in her claim form, but that she did not specifically recall a pre-accident history of lower back pain, neck pain, and/or hip, knee and shoulder pain.
11 Dr Myerscough, referred her to Mr Frank Andrews, physiotherapist, who treated her for about six months, and then to an osteopath, Mr Mathieson who treated her from 2008 until November 2010. She found it difficult to get appointments with Dr Myerscough and in 2008 began to consult Dr Peter Pjesivac (whom she had consulted sporadically since 1998). Dr Pjesivac referred her to a psychologist, Ms Stojanka Stefanovic, whom she saw for about one year, and then to a psychiatrist, Dr Albert Kaplan, whom she has been seeing since late March 2011.
12 At paragraphs 21-23 of her first affidavit the plaintiff stated:
As I was unable to work in the bakery full time and unable to do all the jobs I did before the accident, we were forced to put the bakery on the market in 2006. It was very difficult to sell and after 2 years on the market we ultimately sold it on 24 February 2008. From 2006 - 2008 I continued to work 4 hours per day on restricted duties in the bakery. However I came home exhausted, drained of energy and in pain. I have not worked since February 2008.
I was devastated that we had to sell the bakery. The sole reason for having to sell it was my inability to work my pre-accident hours and my pre-accident duties. My family had been in the bakery industry since 1985. It was my intention to wok in the family bakery as long as I could. I loved the fact that I was self-employed and working alongside my husband and daughter. I derived a lot of my self-esteem from being a hard worker. I very much miss the interaction with my customers.
I would like to be working. I miss feeling useful. However my entire working background has been as a process worker or in a bakery. I do not know what type of work I could do given my injuries.[2]
[2] Plaintiff’s Court Book (PCB) 14.
13 In her second affidavit, the plaintiff stated that prior to the transport accident her duties at the bakery involved lifting, bending, and holding her neck in a flexed position.[3] After the accident, her duties were limited to serving customers, and even this was difficult because of the pain in her neck. She assisted in the bakery for four hours per day, two hours in the morning and two hours during lunchtime. She regretted the sale of the bakery, as she had intended to keep the business for many more years. She was granted a disability pension on 3 March 2008.
[3] PCB 17.
14 In her third affidavit, sworn 18 January 2011, the plaintiff stated that she had learned from her solicitor after swearing her second affidavit (on 11 January 2011) that documents from the real estate agent who sold the Murrumbeena bakery in 2008 indicated that the bakery had been put on the market at the end of 2004.[4] The plaintiff stated that at the time of swearing her earlier affidavits she did not recall that this had occurred. At paragraph 3 the plaintiff stated:
After my solicitors gave me this information, I discussed the matter with my daughter Snezana, who was a partner in the business at the time. She told me that in 2004 we had discussed the possibility of selling the Murumbeena bakery and opening another bakery closer to her home in Berwick. She was finding the length of travel very difficult with her young son and wanted to work closer to home. She told me that she had entered into an agreement with Mr Russo to put the property on the market.
[4] PCB 20a.
15 At the hearing, the plaintiff said she was taking the following medications on a daily basis: two Panadeine Forte tablets, two Endep tablets, eight Panadol Osteo tablets, and two Tramal tablets. In cross-examination she explained that her current treating doctor, Dr Pjesivac, had told her to stop taking Panadeine Forte and to take only four Panadol Osteo tablets per day, but she could not manage without Pandeine Forte and was still taking two per day.
16 The plaintiff said that from 2002 until the accident she went into work with her husband at 3am and worked at the bakery until 6pm on weekdays and until 2pm on the weekends. After the accident, she travelled to work each day with her husband at 3am but stayed in the car until 7am, sleeping. She helped her daughter in the shop from 7am until 2pm, then waited for her husband to finish work so she could travel home with him. She insisted that she only did light duties such as serving in the shop. She agreed that she may have told doctors she was working full time but in fact she was present at the bakery for full time hours but did not work all of those hours. She was waiting for her husband to take her home.
17 The plaintiff insisted that at the time she swore her affidavits and told doctors that the only reason for selling the bakery was because her physical restrictions caused by the accident she had forgotten that she and her daughter had discussed selling the bakery in 2004 or that it had been on the market at that time. She said that her daughter, Ms Colley, dealt with the real estate agent.
18 The plaintiff insisted that the only reason to sell the bakery in 2004 was to purchase another one closer to home and said that after the accident she could not do her pre-injury duties and that was why the bakery was sold in 2008. She can no longer drive long distances or do heavy lifting, and continues to have headaches and neck pain in spite of her medication. She said that physiotherapy was ceased because it was not helping her. She had some osteopathic treatment for about one year. She did not get relief from the pain management program she attended. She stopped attending a psychologist because she did not find it helpful. She denied that psychiatric treatment had helped her mood. She agreed that on one occasion she had walked 12 kilometres with her husband but said she found the distance too excessive. She said that while doing the pain management course she walked about two kilometres a day with her husband, but stopped doing it because she felt pain when walking. She now only walks around the garden at home. She continues to do daily exercises recommended by the pain management clinic.
19 Her sleep is interrupted. She has stopped going to church because she cannot stand for two hours through the service. She said that she had not looked for work since 2008 because if she was able to work she would work in her own business and not for someone else. She is upset that severe pain prevented her from doing her pre-injury duties and led ultimately to the sale of the bakery.
Other lay witnesses
20 The plaintiff’s husband, Mr Svetin Kutic, adopted his affidavit sworn 11 January 2011 in which he confirmed that after the accident the plaintiff’s work hours and work duties were significantly reduced. Whereas prior to the accident she worked 16 hours per day during the week and 12 hours per day on the weekend preparing dough, placing goods on trays, washing dishes, mixing the meat for the pies and cleaning the shop, after the transport accident she worked only four hours per day, assisting during morning tea and lunch times. As a result of his wife’s reduced physical capacity, he and their elder daughter struggled to maintain the bakery, and were forced to sell it.
21 At the hearing, Mr Kutic confirmed that their elder daughter, Ms Colley, who speaks English, dealt with the real estate agent. He agreed that he knew in 2004 that the bakery was on the market but neglected to put that in his affidavit. He said his daughter was handling the sale as the bakery was too far away from her home and she had a small child. He also confirmed that after the transport accident the plaintiff was present at the bakery for the same hours as him, as she travelled to and from work with him, but did not work much.
22 The plaintiff’s daughter, Ms Colley, adopted her affidavit sworn 18 January 2011, in which she confirmed that in 2004 she was approached by the real estate agent, Mr Russo, who told her he had some people who were interested in buying a bakery. She talked to her parents about selling the bakery and buying one closer to her home in Berwick to reduce the travelling time to work and to make things easier for her and her young son. Her parents agreed. She signed an authority appointing Mr Russo as the agent. The intention of Ms Colley and her parents was to open another bakery, closer to home. Her parents were not ready to retire, and the bakery was Ms Colley’s only form of income. Ms Colley stated that after a few people came to see the bakery, Mr Kutic was not happy with the offers he received. He felt that business had picked up a little and that it was not the right time to sell the bakery. Ms Colley stated that after the accident the plaintiff returned to work for four hours per day only, and this reduction in hours put an enormous strain on Ms Colley and Mr Kutic. She stated that once it became clear that the plaintiff would never be able to resume her pre-injury work duties, the decision was made to sell the bakery and not to buy another one. Ms Colley confirmed this evidence in cross- examination.
Medical treatment and reports of treating practitioners
23 The plaintiff attended her general practitioner, Dr Myerscough, the day after the transport accident and was treated by her until September 2007. Dr Myerscough put her off work for one month and prescribed medication. The plaintiff’s evidence concerning her current medication intake is outlined above.
24 Dr Myerscough provided a report dated 18 December 2007 to the TAC. She stated that to her knowledge there were no pre-existing injuries or neck pain. The injuries sustained by the plaintiff in the accident were, relevantly, “neck and shoulder pain soft tissue injury and cervical dysfunction with on-going headaches and neck pain”.[5] As at 18 September 2007, the last consultation with the plaintiff relating to the transport accident, “she was complaining of daily headaches and neck aches, extending from the mid cervical region to the occiput.” She was sitting up in bed most nights to sleep and was taking Endep and Panadeine Forte. There had been initial but no long term benefit from physiotherapy, acupuncture and massage. She noted that the pre-existing degenerative changes at C5-6 level “were not symptomatic”. Her symptoms appear to be related to the facet joint arthropathy which has developed since the accident.
[5] PCB 120.
25 At the hearing, Dr Myerscough was taken through her clinical notes. She said there was a previous transport accident in 1992 with no ongoing symptoms and no neck pain prior to the accident of 2005. She said that the consultations in August 2005 related to balance issues and the headaches related to the vertigo she was suffering. She said there was no complaint of ongoing headaches. Dr Myerscough noted that after the accident the plaintiff told her she had trouble rotating her neck when driving.
26 Dr Myerscough noted that in the accident the plaintiff’s head had struck the windscreen. Dr Myerscough said that she saw the car after the accident and that there was a dome shaped indentation in the windscreen on the passenger side. On this basis, she felt that the impact was of moderate, not mild, force. She said that her entries in December 2005 relating to complaints of pain radiating from the lower cervical spine and increasing headaches causing her to wake every two hours were symptoms which had been occurring since the transport accident. She said that occipital headaches are usually associated with neck injury. She related the plaintiff’s headaches to cervicogenic neck pain. She attributed the ongoing neck pain and headaches to the effects of the accident. Dr Myerscough said that some soft tissue injuries could produce long term symptoms. Dr Myerscough said the plaintiff stopped seeing her for matters related to the accident because of the distance to the practice, but continued to see her for other issues.
27 Dr Pjesivac, general practitioner, has been seeing the plaintiff since 1998. He first saw her in early November 2005 in relation to the sequelae of the accident. He provided three reports. In his first report dated 8 August 2008 he detailed the consultations and the symptoms she complained of, which included occipital headaches and neck pain. He concluded that as a result of the accident the plaintiff “aggravated her pre-existing degenerative changes of her cervical and lumbar spine”.[6] In addition, he noted that she was “depressed as a consequence of her chronic headaches, neck and lower back pain and disability.” He felt that her prognosis was poor and she would remain “totally and permanently disabled for work.” In his subsequent reports dated 27 October 2009 and 16 September 2011, Dr Pjesivac reached similar conclusions.[7]
[6] PCB 32.
[7] PCB 36(a)-(d).
28 At the hearing, Dr Pjesivac agreed that the plaintiff does not have a radiculopathy. He agreed that she had minimal restrictions of movement of the cervical spine in December 2005 but now has more substantial restrictions. He said that she was getting steadily worse in 2008. He agreed that there was no radiological evidence of injury and that the main feature of her presentation was the complaint of pain. He agreed that neurological investigations by Dr A. Ragav, Dr Hans Tu and Associate Professor Peter Kempster found no neurological cause of her ongoing headaches. Dr Pjesivac did not disagree with this conclusion but maintained his opinion that the plaintiff’s pain was due to aggravation of pre-existing cervical degenerative changes which, prior to the transport accident, had been asymptomatic. He said that not all people suffering such aggravations respond to treatment. He said that the plaintiff was very genuine and was a tough, hard working woman who did not like taking medication and resisted taking stronger medication like MS Contin.
29 Associate Professor Kempster saw the plaintiff on 20 October 2008 at the request of Dr Pjesivac and wrote to him suggesting that no further investigation of her symptoms was required.[8] He recommended daily medication for her headache and continued osteopathic treatment as required. He did not consider it necessary for her to see him again.
[8] PCB 198.
30 Associate Professor Kempster reported on 7 November 2008 to the plaintiff’s solicitors that the CT scan of the cervical spine showed “some moderate spondylitic changes at lower cervical levels, which were not particularly unusual for age.”[9] His conclusions were that her chronic daily headache and neck ache are probably caused by scalp and neck muscle tension, but that he could find no evidence of a “significant organic neurological problem on the basis of the clinical examination and review of her previous head and neck imaging studies.” He also stated:
…The road traffic accident occurred almost three years ago and I could not identify any organic neurological disorder or injury, or likely pathophysiological mechanism that would reliably link the ongoing symptoms to the original non- severe deceleration event. She says that she has chronic headaches and neck ache and cannot work. I can do little more than document her statements as I can give no good medical explanation for the fact.[10]
[9] PCB 37.
[10] PCB 38.
31 Dr Mithu Palit, rehabilitation physician, reported to Dr Pjesivac on 15 July 2010 that the plaintiff completed her rehabilitation program but her complaints of neck pain and headaches remained unchanged.[11] He concluded that the plaintiff was suffering “a high level of baseline pain associated with a whiplash injury”. He had discussed the possibility of surgery with her, but noted that she was not keen, and also that in any event the proposed intervention was more effective for cervicogenic headache than for actual neck pain.
[11] Defendant’s Court Book (DCB) 430.
32 Associate Professor Richard Bittar, neurosurgeon, saw the plaintiff at the request of Dr Pjesivac on 8 November 2010 and reported in relation to her complaints of neck pain and headaches.[12] On examination he noted that her range of cervical spine motion was restricted in all planes. He felt that she was suffering from “probably cervical radiculopathy” as well as “cervicogenic headaches.”[13] He recommended an MRI of the cervical spine. After seeing the MRI results Mr Bittar reported on 26 November 2010 that he felt that the appropriate diagnosis was “aggravation of cervical spondylosis.”[14] On 12 January 2011, Mr Bittar confirmed that the accident “has been the dominant contributing factor to her cervical spine condition.”[15] He felt that she was totally incapacitated for employment as a result of her transport accident related cervical spine condition.
[12] PCB 42.
[13] PCB 43.
[14] PCB 44.
[15] PCB 44(c).
33 The plaintiff’s treating clinical psychologist in 2008, Ms Stefanovic, reported on 9 October 2010 that her sessions with the plaintiff focused on pain management strategies and dealing with panic attacks and depressive feelings.[16] Ms Stefanovic stated that no other factors apart from the transport accident and its consequences were creating the “physical and emotional discomfort” that the plaintiff was experiencing.
[16] PCB 41.
34 The plaintiff’s current treating psychiatrist, Dr Kaplan, reported on 25 July 2011 that prior to the accident the plaintiff told him she was very happy, loved working hard, and liked to see people. After the accident, she lost confidence and her feeling of self-worth.[17] Dr Kaplan diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood, a condition which he stated was “directly related to her injuries, her chronic pain and the physical limitations imposed upon her by her pain.”[18] She was intensely frustrated with her physical limitations and pain, and had become irritable and socially withdrawn. He felt that she was likely to remain prone to anxiety and depression as long as her pain persists.
[17] PCB 44(d).
[18] PCB 44(i).
Medico-legal reports
35 Dr Paul Kornan, psychiatrist, provided a report dated 26 August 2008 to the plaintiff’s solicitors. He diagnosed a number of conditions: a Post Traumatic Stress Disorder; a Panic Disorder; Specific Phobia (fear of travelling in cars or having further accidents) and an Adjustment Disorder with Depression. He felt that her psychiatric condition was moderately severe.[19] He felt that her Adjustment Disorder was secondary to the “pains and discomforts” suffered as a result of the accident. He felt that her psychiatric condition rendered her permanently incapable of employment. He reached similar conclusions in his later reports dated 29 September 2010 and 12 July 2011.
[19] PCB 70.
36 Dr John Colman, gastroenterologist, reported to the plaintiff’s solicitors on 19 March 2009 that the plaintiff suffered gastrointestinal symptoms after taking a range of medication for the pain resulting from the accident.[20] He diagnosed a permanent impairment in the form of gastro-oesophageal reflux disease/gastritis, which required continuous treatment. In his subsequent report dated 10 June 2009, he noted that there had been some symptoms of reflux prior to the accident, but concluded that the medication required for her relief of pain and inflammation after the transport accident caused an exacerbation of her reflux disease.
[20] PCB 85.
37 Dr Garry Grossbard, orthopaedic surgeon, provided a report dated 16 December 2009 to the plaintiff’s solicitors in which he noted that in spite of pre- existing features of degenerative change on radiological examination, the neck had remained asymptomatic until the accident.[21] For this reason, he felt that the accident had been a significant factor in the development of symptoms in the cervical spine. He noted that on examination there were restrictions in the range of movement of the neck. He assessed a permanent whole person impairment in relation to her cervical spine. He did not assess her headaches.
[21] PCB 95.
38 Mr Charles Flanc, vascular surgeon, provided three reports to the plaintiff’s solicitors. In his first report dated 28 July 2008, Mr Flanc noted the complaint of neck pain and headache.[22] On examination, he found her neck movements were very restricted. He noted that the plaintiff was probably leaning forward at the time of impact and this was consistent with a direct injury to the top of her head and a whiplash injury to the neck. He noted the radiological evidence of significant pre-existing disc degeneration at the C5/6 level with osteoarthritis, but felt that, given the history of no neck pain prior to the accident, the “accident resulted in a signification aggravation of this pre-existing condition which became symptomatic”. He felt she was likely to continue suffering neck pain in the future which would fluctuate in severity. He felt that there was a permanent impairment of the cervical spine, with no evidence of radiculopathy. He reached the same conclusions in his second report dated 24 November 2010.[23] In his third report dated 26 August 2011, Mr Flanc noted that on examination he found all movements of her cervical spine were “very severely restricted and some of this restriction is probably related to non-organic factors.”[24] Nonetheless, he reaffirmed his opinion that “a significant component of her neck pain is caused by the physical aggravation of the degenerative condition of the cervical spine.”
[22] PCB 54.
[23] PCB 24 November 2010.
[24] PCB 69(e).
39 Mr Michael Dooley, orthopaedic surgeon, reported to the TAC on 13 January 2011 that the plaintiff complained of constant ongoing neck pain which, at times, radiates down the right arm, and of headache at times. He noted that she “is of an anxious disposition.”[25] On examination he noted limitation of movement in the cervical spine. He concluded that the plaintiff sustained a soft tissue injury to the cervical spine in the accident. He noted that this will have “involved some musculoligamentous damage and some aggravation of naturally occurring degenerative disc disease of the cervical spine.”[26] He found no evidence of objective neurological deficit in the upper limbs. However, some five years after the accident, he felt that much of her ongoing neck pain relates to the psychological conditions of anxiety and depression for which she had been reviewed by others. He accepted from an orthopaedic viewpoint that the injury sustained would cause her intermittent neck pain, but felt that “one cannot explain the severity of her ongoing pain and disability on the basis of the organic injury.”[27] He felt that the injury to the cervical spine would prevent her from doing regular heavy physical activities and any domestic and leisure activities involving a lot of activity at and above shoulder level. He felt that at a subconscious level, the injury gave the plaintiff a reason to no longer carry out regular heavy hard work. He concluded:
As outlined above, I do not believe that Mrs Kutic is deliberately exaggerating her symptoms or exaggerating her clinical presentation today in any way…Some of the restriction of shoulder motion and cervical spine motion would probably relate to Mrs Kutic’s apprehension…A complaint of constant ongoing pain in this setting five years after the episode is in keeping with a significant psychological reaction to pain and/or injury.[28]
[25] DCB 3.
[26] DCB 4.
[27] DCB 5.
[28] DCB 5-6.
40 Dr Timothy Entwistle, psychiatrist, reported to the TAC on 10 October 2011 that he assessed the plaintiff and diagnosed an Adjustment Disorder with Depressed and Anxious Mood resulting from the accident, although he noted that there were pre-existing issues of depression and anxiety. He felt that her psychiatric injuries impact minimally on her lifestyle and experience of life, and do not prevent her from working. He noted that she “did not evidence any abnormal illness behaviour” when he saw her.
Legal Principles
41 In determining a pain and suffering application under s 93(17)(a) of the Act, the Court must be satisfied that the pain and suffering consequences of the physical injury, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described at least as “very considerable” and certainly more than “significant” or “marked”.[29]
[29] Humphries v Poljak [1992] 2 VR 129; Mobilio v Balliotis & Ors [1998] 3 VR 833.
42 In cases involving aggravation of a pre-existing injury or condition, the plaintiff must establish what injury was caused in the relevant accident and there must be an analysis of the extent of the impairment of the relevant body function before and after the injury caused in the relevant accident.[30] In an aggravation case, the aggravation of the pre-existing injury must itself amount to a “serious long-term impairment or loss of a body function”.[31]
[30] Petkovski v Galletti [1994] 1 VR 436, 444.
[31] Ibid.
43 In an application under s 93(17)(a) of the Act, where a plaintiff who has suffered a significant physical injury has also developed a psychiatric response to that physical injury, it is permissible and appropriate for the Court to take into account the development of any psychiatric condition in response to the physical injury when deciding whether the consequences of the impairment of the relevant body function meet the narrative test.[32]
[32] Richards v Wylie (2000) 1 VR 79, 87; Rodda v TAC [2008] VSCA 276.
44 Ordinarily, the endurance of permanent daily pain requiring frequent medication “must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence”.[33]
[33] Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267, [199].
45 Apart from the capacity for work, assessing the extent to which pain interferes with the ordinary activities of life will generally involve consideration of its effect on the plaintiff's sleep, mobility, capacity for self-care, performance of household and family duties, recreational activities, social activities, sexual activities and enjoyment of life.[34]
[34] Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, [16]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52.
46 Some weight must be given, in considering that the pain and suffering consequences of the plaintiff's impairment are at least very considerable, to the adverb “very”.[35] Each case has to be determined in the light of its own facts.[36]
[35] TAC v Dennis [1998] 1 VR 702, 703.
[36] Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.
47 In determining the application the whole of the evidence is to be considered, and a successful return to work by a stoic worker is not determinative against a worker on the issue of pain and suffering, particularly where the alternative employment found by a worker has not had the effect of reducing his or her symptoms.[37] What matters is the extent to which an area of work which the plaintiff enjoyed has been closed off to her or him. Overall the court must consider what the plaintiff has lost by virtue of the injury and what has been retained. The significance of what he or she has lost, which bears upon the seriousness of consequences, may be informed to an extent by what is retained.[38]
[37] Sutton v Laminex Group Pty Ltd [2011] VSCA 52, 79; Dwyer v Calco Timbers Pty Ltd
[38] Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260, [27]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52, [95].
48 I am entitled to take into account that the plaintiff is 64 years old and that, compared with other persons with impairments of the cervical spine, she will experience these pain and suffering consequences for a shorter period of time.[39]
[39] Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, [44].
Findings and reasons
49 I found the plaintiff to be a straightforward witness who answered the questions put to her directly and emphatically. She acknowledged the omissions in her affidavit and explained them. Her explanation was corroborated by the evidence from her husband and her elder daughter, who were also impressive witnesses. None of the doctors who treated the plaintiff or examined her for medico-legal purposes challenged the genuineness of her presentation, even if some doctors (Mr Dooley and Mr Flanc) felt that there was a non-organic component to the degree of restriction of cervical movement and in the intensity of the ongoing pain complained of. Those doctors acknowledged, however, that some neck pain and restriction of movement flowed from the injuries sustained in the accident and that these symptoms made it impossible to the plaintiff to return to her pre-injury employment or to some of her pre-injury domestic and leisure activities. Mr Flanc concluded that a significant component of the plaintiff’s neck pain was caused by the physical aggravation of the degenerative condition of the cervical spine.
50 The absence of any worsening in the radiological picture of the plaintiff’s cervical spine since the accident does not detract from the unchallenged evidence of the plaintiff to the effect that she was asymptomatic prior to the accident, working 16 hours per day in a bakery during the week and 12 hours per day on the weekends doing a wide range of duties including heavy physical work but since the accident has experienced ongoing neck pain and restriction of cervical movement which has made it impossible for her to undertake her pre-injury work duties, has substantially affected her other activities, and requires the ingestion of substantial daily amounts of prescription medication. Her account of her pain and restrictions is broadly consistent with the accounts given to the treating and examining doctors.
51 The weight of the expert evidence (from Mr Grossbard, Mr Flanc, Mr Bittar, Mr Dooley, Dr Myerscough and Dr Pjesivac) was to the effect that the accident was a cause of the aggravation of the plaintiff’s pre-existing but asymptomatic cervical disc degeneration or spondylosis and produced ongoing symptoms of neck pain and restriction of cervical movement. None of the orthopaedic surgeons (Mr Grossbard, Mr Flanc, or Mr Dooley) assessed the plaintiff’s complaint of headache. Associate Professor Kempster, a neurologist, assessed the headaches “as probably caused by scalp and neck muscle tension” but could find no significant clinical neurological problem. Mr Bittar, a neurosurgeon, opined that the headaches were cervicogenic. So too did Dr Myerscough, who felt that the ongoing neck pain and headaches were attributable to the neck injury sustained in the accident. I accept the evidence of Dr Myerscough that the reference in her clinical notes prior to the accident to headaches and balance problems related to an issue of vertigo.
52 On the evidence before me, I consider that as a result of the accident the plaintiff suffered a long-term impairment of the body function of the cervical spine comprising an aggravation of pre-existing, asymptomatic degenerative changes in the cervical spine which has left her with ongoing neck pain, restriction of neck movements, and cervicogenic headaches. I accept the unanimous psychiatric opinion (from Dr Kornan, Dr Kaplan and Dr Entwistle) that the plaintiff has suffered an Adjustment Disorder with Depressed and Anxious Mood as a result of the pain and physical restrictions flowing from the accident.
53 I turn to the pain and suffering consequences of the long-term impairment of the body function of the spine flowing from the accident.
54 I accept the plaintiff’s evidence as to the impact of the accident upon her. I find that prior to the accident she was asymptomatic in the neck region, working extraordinarily long hours in work involving strenuous physical activities. She was able to carry out her housework, drive unrestricted, and was not taking prescription pain relieving medication. She was able to share a bedroom with her husband, socialise freely with friends and family, and attend church. She derived enormous satisfaction and sense of self-worth from being a hard worker. She could walk without restriction.
55 As a result of the accident, she has experienced the onset of significant and ongoing neck pain and restriction of cervical movement, as well as persisting headaches. The pain and physical restrictions have dramatically affected the number of hours she could work and the duties she could perform. Her labour was critical in enabling the family bakery to survive. Without it, the family bakery has had to be sold. She has lost the pride she felt in being a hard worker in a family business. She is unable to do many household tasks, can no longer drive more than short distances, cannot walk far, and cannot stand in church through an entire service. Her sleep is interrupted by neck pain each night to the point where she sleeps in a separate room to her husband. Her pain requires a substantial amount of daily prescription medication but is not fully relieved by that medication. She suffers from an Adjustment Disorder as well as irritability due to her pain and physical restrictions.
56 I consider that the physical symptoms of pain and restriction which require substantial medication and which have the consequences outlined above, taken together with the psychological sequelae secondary to the chronic neck pain and headaches flowing from the aggravation of pre-existing degenerative changes to the cervical spine, are sequelae which in terms of pain and suffering are more than considerable when compared with other cases in the range of long-term impairments of a body function.
Conclusion
57 It follows that leave is granted to the plaintiff to issue proceedings for the recovery of damages in respect of the injury to the cervical spine sustained as a result of the transport accident on 2 November 2005.
(No.2) [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.
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