Lewis-Korver v Transport Accident Commission
[2017] VCC 835
•4 July 2017
| IN THE COUNTY COURT OF VICTORIA AT WODONGA COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-15-03217
| SHERINA LEWIS-KORVER | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Wodonga | |
DATE OF HEARING: | 6 and 7 June 2017 | |
DATE OF JUDGMENT: | 4 July 2017 | |
CASE MAY BE CITED AS: | Lewis-Korver v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 835 | |
REASONS FOR JUDGMENT
---
Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – impairment of lower back – whether the plaintiff has suffered an injury to her lower back – credibility of the plaintiff – whether the consequences are “serious”
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Richards v Wylie (2000) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129; Church v Echuca Regional Health (2008) 20 VR 566
Judgment: Application for leave to bring proceedings for damages is dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T S Monti QC with Mr R Morrow | Slater & Gordon Ltd |
| For the Defendant | Mr P B Jens QC with Mr J L Batten | Solicitor for the Transport Accident Commission |
HIS HONOUR:
1 This is an application brought by Originating Motion dated 3 July 2015. The plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 5 July 2004 (“the said date”).
2 Section 93(6) of the Act provides:
“A court must not give leave under ss(4)(d) unless it is satisfied that the injury is a ‘serious injury’.”
3 The definition of “serious injury” relied upon by the plaintiff is under s93(17):
“(a) serious long-term impairment or loss of a body function; … .”
4 In this application, the plaintiff was seeking serious injury certificate by the Court for the loss of body function of the spine, particularly to the low back.
5 The inquiry under s93(17)(a) of the Act 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.
6 The serious injury defined by ss17(a) can have its seriousness measured, in part, by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute, or be the producer of, an impairment of the body function.[1]
[1]Richards v Wylie (2001) 1 VR 79
7 In this application, the plaintiff did not rely upon a mental response to the alleged physical impairment to her spine.
8 In forming a judgment as to whether the consequences and the injury are “serious”, the question to be asked is:
“… can the injury, when judged by a 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’?”[2]
[2]Humphries & Anor v Poljak [1992] 2 VR 129
9 In this application, the plaintiff swore and relied upon two affidavits dated 22 June 2015 and 31 May 2017. The plaintiff also gave evidence and she was cross-examined by Mr Jens QC, for the defendant.
10 The plaintiff also relied upon affidavit material sworn by her partner, Nicholas Adam, dated 24 June 2016, and her mother, Tami Leanna Korver, dated 11 May 2017.
11 In addition to the sworn affidavits and sworn evidence, both parties relied upon medical reports and other medical notes and material tendered during the course of the proceeding. I have read all of the tendered medical material.
12 The plaintiff tendered the following documentation in support of her application:
·Exhibit A – the Plaintiff’s Court Book (“PCB), pages 6-70 and pages 87-89;
·Exhibit B – x-ray report of Dr James Wong dated 9 June 2005;
·Exhibit C – clinical note of Dr Christina Tolentino dated 11 February 2013 from the Nixon Street Medical Clinic;
·Exhibit D – six pages of undated notes and reports from Mooroopna Chiropractic Centre.
13 The defendant tendered and relied upon the following documentation:
·Exhibit 1 – the Defendant’s Court Book (“DCB”) pages 1-12 and page 87;
·Exhibit 2 – DVD surveillance film of the plaintiff (15 seconds);
·Exhibit 3 – hospital notes from Goulburn Valley Health for the dates 18 November 2002, 5 July 2004, 29 January 2006, 1 February 2006 and 18 April 2011.
Issues identified by the parties
14 Mr Jens QC, on behalf of the defendant, identified the issues in this application as follows:
(a)There is no diagnosis for injury to the plaintiff’s back;
(b)The credit and reliability of the plaintiff;
(c)The plaintiff’s injuries and or impairments are not in “the range of cases considered to be a serious injury under the Act”.
The Plaintiff’s background
15 The plaintiff was born in 1990. She is now aged twenty-seven.[3] The plaintiff lives with her partner and her two children, aged nine and three years.
[3]PCB 7
16 The plaintiff has lived in and around the Shepparton district for the whole of her life. The plaintiff has endured an unhappy childhood in a family setting, and on occasion lived with her grandparents.
17 The plaintiff was educated to Year 10 level and completed her secondary schooling at TAFE. After leaving school, the plaintiff has been employed as a shop assistant and as a restaurant supervisor for three years. In more recent times, she has worked in a party planning shop. Her current work is at the premises of Cheap As Chips for fifteen hours per week.[4]
[4]PCB 14
The transport accident involving the Plaintiff
18 The plaintiff alleges that she was injured as a result of a transport accident on the said date when she was a passenger in a motor vehicle. The plaintiff describes the transport accident in her affidavit in the following terms:
“The accident occurred on around 5 July 2004 at about 7 or 8 p.m. I was 14 years old at the time. The accident took place in Shepparton on Wyndham Road at the corner of Sobreon Street.
I was a rear-seat passenger in my uncle’s car. My nan was sitting in front of me in the passenger seat. My uncle was making a right-hand turn into a street and was T-boned by another car. My uncle’s vehicle was badly damaged. My nan broke her collar bone in the accident. My uncle’s car was written-off due to the extensive damage to his vehicle.
I remember my head smashing against the window and recall the airbags going off. I recall climbing out of the window and falling to the ground. I remember a number of people came to help me and then an ambulance arrived.”[5]
[5]PCB 8, paragraphs 8, 9 and 10
19 At the time of the accident, the plaintiff was a child. A Transport Accident Commission Claim Form was completed with instructions from her mother. The defendant accepts that the transport accident occurred on the said date. The issue in this case is that the defendant does not accept that the plaintiff suffered an injury to her spine or neck as a result of the transport accident.
Medical treatment received by the Plaintiff as a result of the transport accident
20 The plaintiff was taken from the scene of the transport accident by ambulance to the Goulburn Valley Hospital in Shepparton.[6] The plaintiff had an x-ray of her cervical spine on the said date. A report dated 7 July 2004 noted the results of that x-ray as follows:
“The alignment is anatomical. There is no evidence of a fracture, joint disruption or paravertebral haematoma, but if there is persisting clinical concern, then CT examination should be performed.”[7]
[6]PCB 8, paragraph 11; exhibit 3, entry of 5 July 2004
[7]Exhibit D
21 According to the hospital notes,[8] the plaintiff was discharged home on the day of the accident. The plaintiff, in her affidavit, states that she spent about a day or so in hospital.[9]
[8]Exhibit 3
[9]PCB 8, paragraph 11
22 The next documented treatment for the plaintiff occurred on 8 June 2005 at the Mooroopna Chiropractic Centre. On that occasion, the plaintiff was complaining of back problems. The chiropractor, Dr Sam Hatzopoulos, noted there was chronic mechanical cervical, thoracic and low-back pain with associated moderate posterior spinal/gluteal myospasm.[10]
[10]Exhibit D
23 Dr Hatzopoulos requested an x-ray of the plaintiff’s spine. The x-ray was performed on 9 June 2005. The conclusion of the x-ray examination was there was no significant thoracic or lumbar spine abnormality seen.[11]
[11]Exhibit D
24 It appears from the notes of the Mooroopna Chiropractic Centre that the plaintiff attended on 8 June 2005 and 23 June 2005. She had a further appointment for 5 July 2005 but the notation for that date is “DNA” (did not attend”).[12]
[12]Exhibit D
25 The plaintiff then attended at the Goulburn Valley Health Emergency Department on 29 January 2006. On that occasion, she was complaining of back and neck pain. The histories she gave at the Goulburn Valley Hospital on that occasion was that she had a sore back and neck for three days, to the upper back. The history taken indicates that the plaintiff had been lifting heavy boxes at work that day, and at the pool someone had jumped onto her back. The plaintiff was complaining she was unable to move her head due to pain and unable to stand straight due to pain.[13]
[13]Exhibit 3
26 The plaintiff re-attended the Goulburn Valley Base Hospital on 1 February 2006 for review. On review, the plaintiff had a full range of movement in her neck. The soft collar was returned to the hospital.[14]
[14]Exhibit 3
27 The plaintiff, in her evidence, agreed that the notations for the hospital were a correct history at that time.[15]
[15]Transcript (“T”) 59-60
28 On 30 April 2011, the plaintiff again attended at the Goulburn Valley Health Emergency Department. On this occasion, she attended as a result of assault by her mother. She had been struck to the head.[16] The hospital notes tendered did not say or indicate whether there was any injury to the plaintiff’s neck or back as a result of this assault.
[16]Exhibit 3
29 In the period of 2004 through to 2008, the plaintiff was a patient of the Wydnham Medical Clinic. There was no report from that medical practice tendered in this application.
30 From 2008 through to 2015, the plaintiff attended at the Nixon Street Medical Clinic. The first notation of any complaint of back pain by the plaintiff was made by Dr Christina Tolentino on 11 February 2013. The notation reads: “Also had low back pain again.” The reason for contacting the doctor on that occasion was back pain to the lumbar area.[17]
[17]Exhibit C
31 For the sake of completeness, in the report prepared by Dr Christina Tolentino dated 27 April 2015, Dr Tolentino noted that there was no record of anything related to a car accident or back pain in the clinical notes of other doctors from 2008 until December 2014.[18] The reference to December 2014 was an attendance by the plaintiff on Dr Clerigo. Dr Clerigo, on that occasion, prescribed the plaintiff with Lyrica.
[18]PCB 28
32 The plaintiff attended at the Shepparton Chiropractic Centre on 3 December 2014. Mr Graeme Sinclair was the attending chiropractor. He referred the plaintiff for a CT scan of the lumbosacral spine. The CT examination on 19 December 2014 is reported as follows:
“Clinical Notes: History of low back pain, previous MVA with sciatica to the right.
Technique:Multislice helical acquisition made from T12 to the sacrum with reformatted images parallel disc spaces in the axial, safittal [scil sagittal] and coronal planes.
Findings:No disc protrusion[s] have been identified in any of the imaged levels.
The bony central canal and exit foramina are all quite patent. No disc protrusions or exit foraminal narrowing has been identified.
There is no evidence of old vertebral body or process fractures. Limited views of the retroperitoneum are unremarkable. The sacroiliac joints have a normal appearance.”[19]
[19]PCB 68
33 The plaintiff attended consultations with the chiropractor, Graeme Sinclair, until 18 February 2015.[20]
[20]PCB 25
34 The plaintiff’s evidence is that she was recommended to wear a back brace by the chiropractor and that she started wearing the back brace approximately from December 2014 onwards.[21]
[21]PCB 9, paragraph 17
35 The plaintiff’s evidence is that she continued to receive medication prescriptions from her general practitioners.
36 The plaintiff stated that she continued to see Dr Tolentino until 2015. Dr Tolentino became pregnant and was no longer working at that practice. The plaintiff then changed her general practitioner’s practice to the Market Place Medical Centre in Shepparton, where she is currently a patient, and sees Dr Emil regularly.[22] There was no medical report from Dr Emil at the Market Place Medical Centre or any other doctors from that practice.
[22]PCB 14, paragraph 4
The medical opinions
The Plaintiff’s doctors
Graeme Sinclair, chiropractor
37 Mr Graeme Sinclair prepared a report dated 27 February 2015. The plaintiff had attended Mr Sinclair on eight occasions by the time he made his report. Mr Sinclair’s provisional diagnosis was as follows:
“I told Ms Lewis-Korver that in my opinion she had suffered a disc derangement/herniation most likely at the L5/S1 level which was causing her low back and leg pain.
I said that due to the chronic ongoing nature of her problem that she should obtain a CT scan to determine the degree of injury.
The basis for my provisional diagnosis was the chronic recurrent nature of the condition, the presentation with leg pain like a neuralgia and the positive orthopaedic test.”[23]
[23]PCB 26, paragraph 5
38 Later in that report, Mr Sinclair notes the CT scan results as “no abnormality seen”. Mr Sinclair’s opinion on prognosis was that it was somewhat difficult, as the plaintiff stated she still suffers considerable pain and disability which also involves other systems with respect to the migraines. Mr Sinclair stated he did not have a clear picture if she was suffering this level of pain continuously since the accident or if it was relatively new.[24] Mr Sinclair does not note in his report that he prescribed or recommended the use of a back brace for the plaintiff.
[24]PCB 27
39 Mr Sinclair does not give an opinion stating that the injury to the plaintiff’s spine, neither thoracic, cervical or lumbar, was as a result of the transport accident the subject of this application.
Dr Christina Tolentino
40 Dr Tolentino prepared a report dated 27 April 2015 for the purposes of this application. The plaintiff’s evidence was that at or around this time in 2015, she ceased attending Dr Tolentino and transferred her treatment to the Market Place Medical Centre in Shepparton.
41 Dr Tolentino, in her report, noted that in December 2014, the plaintiff attended Dr Clerigo of the practice, complaining that she had had back pain since the transport accident in 2004. Dr Tolentino stated that the plaintiff had reiterated the same history details to her.[25] The medical notes from the Nixon Street Medical Centre indicate that the plaintiff did not make any complaint of back issues between 2008 and February of 2013.[26]
[25]PCB 28
[26]Exhibit C
42 In December 2014, Dr Clerigo had prescribed Lyrica for the plaintiff’s back pain. The CT scan of the lumbosacral spine showed no abnormalities. Dr Tolentino’s opinion was that the plaintiff’s prognosis was good. Dr Tolentino’s opinion was that the plaintiff could learn to deal with her chronic pain through counselling. The plaintiff was able to work without unnecessary strain of lifting and bending.[27]
[27]PCB 29
Treatment – No reports tendered
43 In the course of the plaintiff’s treatment and complaints, she was taken to hospital by ambulance. There was no report from the ambulance officers in respect of the plaintiff’s condition. At the Goulburn Valley Health Accident and Emergency Section, the only reference to the plaintiff’s condition was in the hospital notes which were part of exhibit 3. There is no report from the treating or attending doctor as to the condition of the plaintiff at the time of her attendance at the Goulburn Valley Hospital in Shepparton.
44 The plaintiff’s next treatment was from the Mooroopna Chiropractic Centre. There is no report from Dr Sam Hatzopoulos of that Centre setting out his opinion of the accident and its sequelae for the plaintiff.
45 In 2017, the plaintiff underwent an MRI examination of her spine at the instigation of Dr Dimantha Cooray, general practitioner.[28] There is no report from Dr Cooray in relation to the plaintiff’s ongoing condition or the opinion connecting the plaintiff’s symptoms with the transport accident the subject of this application.
[28]PCB 70
46 The plaintiff has also stated that Dr Emil of the Market Place Medical Centre in Shepparton is her general practitioner. There was no report from the Market Place Medical Centre tendered or relied upon by the plaintiff in this case. The lack of these reports from treating and time-relevant medical practitioners has not assisted the plaintiff’s application in this proceeding.
Professor Stephen Davis, neurologist
47 Professor Stephen Davis examined the plaintiff for medico-legal purposes. He prepared a report dated 30 January 2015.[29] Professor Davis noted that the plaintiff had had a number of medical complications over the period since 2004. In particular, he noted that the plaintiff had suffered an ectopic pregnancy in 2012, and had mild asthma, migraine and depression in that period. She had a miscarriage in 2008. The plaintiff had had two successful pregnancies since the accident. In 2001, the plaintiff suffered from a right-sided Bell’s palsy. She continues to have ongoing weakness and some pain in her right cheek as a result of that condition.
[29]PCB 30
48 Professor Davis took a history from the plaintiff that she had had low-back pain following the transport accident.
49 In relation to the plaintiff’s back symptoms, Professor Davis gave his opinion as follows:
“She states that she has had back pain and intermittent right-sided leg pain ever since the accident and seems to have had quite a deal of chiropractic therapy, with a flare-up in recent months. There are no objective signs and a recent lumbosacral CT scan was normal. She is adamant that this problem came on in the wake of the accident and that her back has never been normal. It is plausible she has some soft tissue injury not visualised on a CT scan and I think it would be reasonable to say that there is a DRE II, 5% impairment which has stabilised.”[30]
[30]PCB 33
50 Professor Davis has not had the advantage of seeing and commenting upon the MRI examination report of 2017.
Dr Nathan Serry, psychiatrist
51 Dr Nathan Serry examined the plaintiff for the purposes of medico-legal reporting. He prepared a report dated 15 September 2015.
52 I note that this application for serious injury is not based on a psychiatric condition. Nevertheless, Dr Serry noted that the plaintiff had had a difficult childhood and had a family history of mental health issues. He noted that the plaintiff had previously been involved in a very abusive relationship. He noted that the plaintiff had been considerably affected by the transport accident itself.[31]
[31]PCB 42
53 The plaintiff has been prescribed anti-depressant medication by her general practitioner. Dr Serry noted that the family history of significant depression involved both her mother and aunt.
54 Dr Serry’s opinion and history taken from the plaintiff sets out the depth and complexities of the problems facing the plaintiff. These include family-related issues, family violence, other health issues not related to the transport accident in any way, the plaintiff’s depression and treatment for it, and the ongoing pressures of bringing up two young children. All of these matters make it more difficult to obtain a clear picture of the plaintiff’s symptoms and impairment relating to any injury she may have suffered in the transport accident.
Dr James Rowe, specialist occupational physician
55 The plaintiff was examined by Dr James Rowe on 23 February 2015 for medico-legal reporting purposes. Dr Rowe prepared a report dated 23 February 2015. I note that prior to his consultation with the plaintiff, Dr Rowe had read more than 200 pages of clinical notes relating to the plaintiff.[32] He took a history from the plaintiff that she does wear a back brace, but noted that she was not wearing it on the day he examined her.[33] Dr Rowe took a history from the plaintiff in relation to her medications of Endep, Panadeine Forte and Lyrica, and ondansetron for nausea.[34]
[32]PCB 44
[33]PCB 46
[34]PCB 45
56 Dr Rowe described the plaintiff as a somewhat histrionic lady who was quite pleasant. On his examination of the plaintiff, he noted that the low-back movements were somewhat restricted but he could find no significant abnormality on examination of her arms or legs. There was no sign of radiculopathy in the arms or legs. Dr Rowe’s opinion was as follows:
“… at the most she has suffered soft tissue injuries to her neck, back and thoracic spine and possibly a closed head injury. …
…
Although she takes multiple medications in various dosages and attends her GP on a regular basis, there is not a lot to find on physical examination other than some stiffness of movements of her neck and back. … .
…
If you can obtain reports from the treating chiropractor and/or GP, there may be some indication for an MRI scan of her spine but not based on this examination here today.
…
… She has been left with fairly small impairments in the neck and back … .”[35]
[35]PCB 47
Mr David Brownbill, consultant neurosurgeon
57 The plaintiff was examined by Mr Brownbill on two occasions for medico-legal purposes. He prepared two reports dated 30 March 2016 and 21 February 2017.
58 In his first report, Mr Brownbill noted that the plaintiff was prescribed Lyrica, 75 milligrams twice daily. He noted that there had not been any previous examination finding in the clinical notes but examination on 31 March 2015 only showed limitation of bending forward due to pain. There were no neurological signs.[36]
[36]PCB 49
59 Mr Brownbill took a history from the plaintiff that she was working three to four days a week, five hours a day, in a party events shop. Mr Brownbill’s opinion, as of 30 March 2016, was there is a restriction of thoracolumbar spinal movements. There was no objective neurological abnormality of the lower limbs. There were no signs of radiculopathy.[37]
“On the history provided by Ms. Lewis-Korver there had not been any previous back or leg pain before the described collision of the 5th July 2004 with the onset of back and right buttock pain following the accident and radiating fluctuating sensory disturbances of the right leg since then. On that information I consider it likely that she has sustained soft tissue injuries to structures about the lumbar spine with likely lumbar intervertebral disc derangement. A full assessment would require a current MRI scan. If her treating doctors arrange for such an investigation, I would appreciate receiving a copy of the report.”[38]
[37]PCB 51
[38]PCB 51
60 The plaintiff was further examined by Mr Brownbill on 21 February 2017. He noted that the plaintiff had been married in September 2016. He also noted that she had not returned to dancing.[39] On this occasion, Mr Brownbill had received the MRI examination results of 1 February 2017. He noted the report as follows:
“In his report of an MRI lumbar spine scan of the 1st February 2017 Dr. Kent of Focus Rad concluded ‘the lumbar spine and upper sacral spine alignment is normal. At the level of L4-5 there is asymmetrical early disc bulge present towards the left side but no exiting nerve impingement is seen at the foraminal level. No spinal thecal sac compression.’ Also ‘the vertebrae are normal in height. The distal cord and cauda equina are normal. There is normal lumbar lordosis maintained. The visualized upper three sacral segments are intact. No evidence of deformity or remodelling due to old healed fractures. No focal soft tissue abnormalities are see in the pre vertebral soft tissue spaces’.”[40]
[39]PCB 54
[40]PCB 55
61 Mr Brownbill then gave his opinion as follows:
“Examination on the 21st February 2017 has shown slight restriction of thoraco lumbar spinal flexion. There was no objective neurological abnormality of the lower limbs. There were no signs of radiculopathy.
Current radiological investigations (lumbar spine MRI scanning) has not shown any significant abnormality.
I note that this lady is now working five days a week (from 9 o’clock to 3 o’clock) as a retail outlet assistant.
As stated in my earlier report, on the information provided I consider it likely that this lady has sustained soft tissue injuries to structures about the lumbar spine (although radiological investigations have not demonstrated any significant abnormality).
…
I am unable from a physical neurosurgical point of view to provide the basis for her described ongoing unremitting low back pain (noting the examination findings and the radiological investigation results) however I consider on her descriptions that there is an underlying organic basis for her described pain. A full assessment would lie within the provinces of orthopaedic surgery and pain management medicine.”[41]
[41]PCB 56
62 Mr Brownbill then went on to state:
“I consider it possible that forces applied to her lumbar spine in the described accident could have resulted in some physical injuries giving rise to her described pain. However from a physical neurosurgical point of view I am unable to provide the precise basis. It is appropriate for her to be reviewed by an orthopaedic surgeon and a pain management specialist.”[42]
[42]PCB 56
The Defendant’s doctors
Mr Paul Kierce, orthopaedic surgeon
63 Mr Kierce examined the plaintiff on 5 April 2016 for the purposes of medico-legal reporting. He prepared a report dated 5 April 2016. Mr Kierce noted that at the time of his examination of the plaintiff, she exhibited abnormal pain behaviour with a positive axial compression test and pelvic rotation test.[43] Mr Kierce did not have the advantage of the MRI examination in February 2017 in forming his opinion.
[43]DCB 8
64 Mr Kierce’s diagnosis was as follows:
“I have not been able to identify evidence of any ongoing injury to her cervical or lumbar spines related to the motor vehicle [accident] of the 5th of July 2004. It is my impression that she is suffering from a psychological and psychiatric illness currently and may be suffering from a chronic pain disorder which is a psychiatric diagnosis.”[44]
[44]DCB 9
65 In relation to the plaintiff’s ability to work, Mr Kierce’s opinion is as follows:
“In my opinion the claimed injury sustained by the plaintiff in the transport accident of the 5th of July 2004 do not interfere in any way with her ability to work.”[45]
[45]DCB 10
66 Based on all of the medical opinions in this case, I am unable to be satisfied, on the balance of probabilities, that the plaintiff suffered a diagnosable physical condition to her spine as a result of the transport accident. The lack of treatment and documentation relating to the limited treatment the plaintiff had at the time of the transport accident and after indicate that the plaintiff’s difficulties have manifested approximately from 2014 onwards. The reason for the flare up of alleged symptoms and pain in 2013 and 2014 are hard to explain on the basis of the physical examinations by the medical practitioners tendered in this case.
The credit of the Plaintiff
67 In the conduct of this proceeding, the defendant has squarely placed the plaintiff’s credibility and reliability as a witness in issue.
68 The starting point for the defendant’s attack on the plaintiff’s credibility was the contents of her affidavit sworn on 22 June 2016. In particular, the plaintiff swore the following:
“My social life is restricted. I almost never get dressed up and go out anymore. I can’t wear high heels due to my back. I wear flat shoes only. Part of the change in my social life is due to having young children, but my back pain also restricts my social activities. Sitting for long periods is difficult, so going to watch a movie increases my pain. I can sit in a café for lunch or a coffee, so long as I’m able to stand and have a stretch as I need to. Standing for a long period while out would also aggravate my back pain. These days, my social life happens mostly at home. My friends come and see me because they know it is hard to get out with two young children and because my lower back pain is aggravated by going out. I often end up having chats with friends while lying on the couch to rest my back.”[46]
[46]PCB 12
69 The plaintiff, when she was called to give evidence by Mr Monti QC, her counsel, stated that she wanted to make corrections to part of her affidavit. In particular, she stated that she wanted to change the allegation that she cannot wear heels any more due to her back. She stated she did not wear them as often as she would like.[47] She stated that she does wear flat shoes for the majority of the time as opposed to all of the time.[48]
[47]T9
[48]T10
70 The plaintiff also stated that she still enjoys a social life and goes out. She stated that she wears a back brace full time while she is at work. She did not have the back brace with her at the time of giving that evidence.
71 In cross-examination, the plaintiff sought to explain how she had made an error in her affidavit and the reason for her changing it. She stated:
A:“And it had been quite a period of time since I’d seen that affidavit, so I wasn’t sure what I’d spoken about. Since reading through it again, I had seen that a few things had been misinterpreted and I needed to clarify that before today.
Q:And that was well learnt. In relation to paragraph 29, when did you realise that there were errors in it?‑‑‑
A:When I re-read it.
Q:When was that?‑‑‑
A:This morning.”[49]
[49]T12, L26 – T13, L3
72 On the following day, when the plaintiff was taken to this topic about changing her affidavit for the second time, she stated as follows:
Q:Then we had the situation yesterday at the start of your evidence when my learned friend Mr Monti, your senior counsel, was taking you through your affidavit and correcting the affidavit?‑‑‑
A:Yes, and that was mine. He hands me an affidavit in the morning and told me that if there was anything that was not entirely correct that I needed to tell them before the case began. So I read through my affidavit which I hadn't seen for quite a period of time and said there was a few things that were misworded.”[50]
[50]T62, L7-16
73 The plaintiff gave evidence that she just looked over the affidavit quickly before she swore it. The following question was then put to her:
Q:I suggest to you that when you swore the affidavit, the first affidavit, that's exactly what you were told, read it over carefully and see if there was anything that was incorrect?‑‑‑
A:And like I suggested that when I had done my first affidavit a few years ago and I had worded things I then still didn't understand fully that things had to be exact and precise.”[51]
[51]T63, L20-26
74 The plaintiff denied that she had been shown or was aware of the social media pages that were in the possession of the Transport Accident Commission prior to her making changes to her affidavit.
75 I do not accept the plaintiff’s explanation for the obvious and demonstrable contradiction in her evidence in Court with the original affidavit statements about wearing flat shoes only.
76 A second area of concern in the plaintiff’s evidence related to her evidence concerning the back brace. In her first affidavit dated 22 June 2015, the plaintiff deposes to wearing a back brace to try and minimise the strain on her back.[52] This statement is made in the context of being a passenger or driving a car. In her evidence before this Court, the plaintiff stated that she wore a back brace full time whilst she was at work. She described the back brace as being quite heavy duty. It wrapped around her entire torso, strapped over both her shoulders and was very restricting. She said she struggled to breathe in it and to wear it for long periods of time and that it does seem to help her while she is at work.[53] There was no mention in her evidence about using the back brace for the purposes of driving or being a passenger in a car.
[52]PCB 11, paragraph 27
[53]T10-11
77 On the first day of giving evidence, 6 June 2017, the plaintiff did not have the back brace with her, nor was she wearing it. At the request of Mr Jens QC at the close of evidence on the first day, the plaintiff made arrangements for her husband to bring the back brace from Shepparton. In the course of the hearing on 7 June 2017, the plaintiff removed her jumper to reveal the back brace that she was wearing. She stated that she had had the back brace for two years.[54]
[54]T79
78 I note that Dr Rowe, when he examined the plaintiff on 23 February 2015, was told that she required the use of a back brace. On that occasion, Dr Rowe noted that the plaintiff was not wearing the back brace but told him that she wore it most of the time. The examination by Dr Rowe took place in Albury. The plaintiff lives in Shepparton.[55] Coincidentally, the plaintiff did not wear the back brace to Court on the first day of the hearing in this application. She had the back brace on the second day.
[55]PCB 46
79 The plaintiff was cross-examined about when she obtained the back brace and for what reason. The evidence was as follows:
Q:“How long after seeing the chiropractor did you start wearing a brace?‑‑‑
A:I think by the - the second or third week.
Q:And do you say that every day that you worked since that time you've worn the brace?‑‑‑
A:I can say ‑ ‑ ‑
Q:Now I want you to think about that very carefully?‑‑‑
A:Yes, I - I can say almost every day, yes.
Q:Almost?‑‑‑
A:Yes.
Q:That’s not every day?‑‑‑
A:Well I’m not going to say every day for you to correct me on that so I'm going to say almost every day.
Q:Did you say I would correct you on that?‑‑‑
A:Yes.
Q:The way Mr Monti corrected you about your affidavit?‑‑‑
A:Yes, I can see you doing that so I’ll just be very careful with what I say.
Q:So if you wear ‑ ‑ ‑.”
HIS HONOUR:
Q:“Sorry, what was that?‑‑‑
A:I’ll just be more clear with what I say.”
MR JENS:
Q:“Perhaps more accurate?‑‑‑
A:Yes.
Q:If you say it’s almost every day it would be unusual then for you not to wear it?‑‑‑
A:Yes.
Q:So for instance, you had started seeing the chiropractor and you were attending work and not wearing your brace, that would be a very unusual day?‑‑‑
A:Yes, there are some days it is extremely tight around my stomach, so the whole thing wraps around my stomach. It is under my breasts and straps over my shoulders. It is an extremely uncomfortable thing to have to wear throughout the entire day and it does also restrict movement. So if there are days for instance that I'm having women issues, I cannot wear the brace because it restricts the bloating around my stomach. So things like that I can't wear it.”[56]
[56]T52, L9 – T53, L8
80 I do not accept the plaintiff’s evidence in respect of the frequency with which she states she wears the back brace. On two random occasions to do with this application – for example her examination by Dr Rowe and the first day of this Court hearing – the plaintiff did not wear the back brace. The circumstances were that she travelled from Shepparton to the Wodonga-Albury area on both occasions. The chiropractor, in his report, does not refer to prescribing the back brace for the plaintiff.
81 The plaintiff gave evidence in her second affidavit of a subsequent injury at work in November 2016. The injury is to her right shoulder.[57] The plaintiff stated that because of her shoulder injury, she reduced her work hours from twenty hours per week to fifteen hours per week. This work history is in contradiction to what she told Mr Brownbill, neurosurgeon, on 21 February 2017. At that time, Mr Brownbill took a history from the plaintiff that she was working five days a week from 9.00am until 3.00pm. When the plaintiff was cross-examined about this inconsistency, the plaintiff conceded that she had reduced her hours of employment because of her caring for the children and her injury to her right shoulder.[58]
[57]PCB 15, paragraph 8
[58]T16, L16-21
82 The next area of concern for the plaintiff’s credibility and reliability was her evidence in relation to pole dancing. The plaintiff did not mention any activity of pole dancing in her first or second affidavit. The plaintiff agreed in evidence that she posted the photograph of herself in a pole dancing pose from May of 2015. This photograph appeared at page 87 of the Defendant’s Court Book.[59] The plaintiff’s evidence in relation to her activities of pole dancing was as follows:
[59]T38
Q:“What was involved with the pole dancing, how much activity did it involve?‑‑‑
A:So for half an hour at the first part of the class you were on the ground learning stretching techniques on a mat um, just trying to stretch your legs and arms very minimal stuff. Once you'd warmed up and stuff they would then teach you a technique where it could be at the start lifting your body weight up off pole um, then over the weeks being able to um, you know hold on by one arm and things like that, so it was purely for exercise and strengthening purposes that I done it.
Q:What I suggest is that on numerous occasions over the years you've discussed with your doctor matters about weight, amongst many other things?‑‑‑
A:Yes.
Q:You were keen to retain your fitness?‑‑‑
A:Yes, that’s correct.
Q:As I understand what you're saying is that part of your fitness routine was to take this course in pole dancing?‑‑‑
A:It was part of the reason after I had my son and like I said, a friend had said to me that it helped because that was my main concern when I was going to sign up, that I couldn’t do it.
Q:But you were able to do it?‑‑‑
A:I was able to do it for a short period of time. Like I said, I didn’t attend all the classes every week.
Q:To what degree of - do you know the expression proficiency - to what degree of proficiency were you able to achieve in the pole dancing routines?‑‑‑
A:Um, by the end of the - the lessons I was able to climb to the top of the pole and slide down with one of their techniques that they'd showed us or get to the top of the pole and cross my legs over and hold on with one arm and things like that.
Q:Yes. What I suggest is, you’ve got to be pretty fit?‑‑‑
A:Yes.”[60]
[60]T29, L10 – T30, L9
83 The plaintiff stated that she had told her general practitioner at the Market Place Medical Centre about her pole dancing activities and exercise. There was no report from the Market Place Medical Centre.[61]
[61]T31
84 The plaintiff did not know if there was a report from Market Place Medical Centre supporting her case.[62]
[62]T45
85 Exhibit 2 in this case was a very short film of 15 seconds of the plaintiff’s activities as a pole dancer. The film showed the plaintiff shimmying up a pole and going into a ball shape with her head on her knee. She then, without using her arms, slid down the pole.[63] This activity showed great flexibility and strength on the part of the plaintiff.
[63]T40-41
86 I am mindful of the pronouncements made by the Court of Appeal in the case of Church v Echuca Regional Health[64] regarding surveillance film. The plaintiff had given, and maintained her evidence, that she was incapacitated in a significant way in respect to the use of her back and body in general. In the short film posted by herself on social media, the plaintiff displayed great flexibility and movement. This piece of surveillance film on its own would not have been sufficient to displace or attack the plaintiff’s credibility; however, in the context of her evidence and the lack of other supporting documentation in relation to her treatment and complaints to doctors, it is a significant piece of evidence.
[64](2008) 20 VR 566
87 The plaintiff was taken to the Goulburn Valley Hospital medical records for 29 January 2006 and 1 February 2006. On that occasion, the plaintiff attended at the Goulburn Valley Hospital with a history of lifting boxes at work and that she had a sore neck. She also gave a history that she had been jumped on whilst in the pool.[65] She was unable to move her head due to pain and was unable to stand up straight due to pain.[66]
[65]Exhibit 3
[66]Exhibit 3
88 In her evidence, the plaintiff, when cross-examined about this, initially stated that she had injured her neck when she turned her neck incorrectly.[67] It was not until after she was challenged about the total history given at the hospital on 29 January 2006 that the plaintiff conceded that it was possible. I find this part of her evidence is indicative of her unreliability as a witness.
[67]T59, L14-16
89 In conclusion, I do not accept that the plaintiff is a credible witness. She presented as a clever, calm and articulate person. The plaintiff was someone who understood the court process system. I find that she was attempting to place the best interpretation on the evidence that would assist her application in this proceeding.
Consequence of the injury to the Plaintiff’s spine
90 The plaintiff relied upon two affidavits sworn on 22 June 2015 and 31 May 2017. In those affidavits, the plaintiff sets out the consequences of the alleged injury to her back.
Sleep
91 The plaintiff stated that her sleep was impacted by her back pain. She stated she gets pain in her back and restlessness in her legs. The plaintiff attributes the interruption to her sleep to her back pain.[68]
[68]PCB 12, paragraph 28
92 In the course of that evidence, it was clear that the plaintiff suffered from depression and was being treated for it. There was no supporting evidence from her treating medical practitioners in relation to interference with her sleep as a result of back injury. I do not accept that any interruption to the plaintiff’s sleeping patterns is as a result of her back injury.
Pain
93 In her history to the medical examiners for the purposes of this application, the plaintiff has made complaint of pain in her back. She attributes this pain as arising from the transport accident in 2004. The plaintiff has made a claim for worker’s compensation as a result of a shoulder injury which occurred in November 2016.[69] The plaintiff has not led any evidence from medical practitioners treating her to distinguish between the pain in her shoulder and the alleged pain in her back. The fact that there is a hiatus between the time of the transport accident in 2004, and the complaints of pain in her back as a result of the transport accident in 2013, leads to a conclusion that there is not a continuous or related problem between the transport accident and any pain the plaintiff now says she experiences in her back.
[69]PCB 15, paragraph 8
Medication
94 The plaintiff has given evidence that she takes the prescribed medications of Lyrica, Brufen, Panadeine Forte and Ondansetron.[70]
[70]PCB 14, paragraph 3
95 In cross-examination, the plaintiff conceded that the only time she has been prescribed Panadeine Forte, from the medical notes, was 28 April 2009. This was the time of her caesarean section birth of her daughter.[71]
[71]T72-74
96 The medical opinions of Mr Brownbill, Dr Rowe and Professor Davis do not support the prescription of medication for the plaintiff based on their clinical examinations and findings. I do not accept that the pain-relieving medications the plaintiff is taking are reasonably related to any back injury she received in the transport accident.
Work
97 The plaintiff was able to work five days a week from 9.00am until 3.00pm in February 2017. She reported as much to Mr Brownbill. The injury to her right shoulder occurred in November 2016. Her evidence is that she reduced her hours to fifteen hours a week because of the injury to her right shoulder and her responsibilities in looking after her children. I do not accept the evidence of the plaintiff that she has reduced her hours of employment due to the alleged back injury received in the transport accident.
Mobility, sport and activities of daily living
98 I do not accept the plaintiff’s evidence in relation to the reduction in her ability to engage in sport or assistance with her activities of daily living. Mr Adams, in his affidavit, states that the plaintiff tries to do simple tasks and that he assists her with hanging out the washing. Mr Adams was not cross-examined in this case. I find that the plaintiff is able to do tasks like carrying the washing out and hanging it out and retrieving it from the washing line.
99 In relation to sport, whilst it was only a short video, the plaintiff was able to display great movement and flexibility in the pole dancing exercise. The still photograph set out on age 87 of the Defendant’s Court Book is a clear indication of the strength and flexibility that the plaintiff can utilise in order to perform as a pole dancer.
Conclusion
100 In conclusion, I do not accept that the plaintiff has a diagnosable injury to her spine or low back as a result of the transport accident on the said date. That conclusion leads to a finding that the plaintiff does not suffer consequences as a result of the transport accident as alleged in her affidavit material and in her evidence.
101 I dismiss the plaintiff’s application for serious injury.
102 I will hear the parties on costs.
- - -
0
4
0