Lewis v TAC
[2012] VCC 2049
•21 December, 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for publication |
AT BENDIGO
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-11-03036
| WENDY JEAN LEWIS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE COHEN | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 19, 23, 24 & 25 July 2012 | |
DATE OF JUDGMENT: | 21 December, 2012 | |
CASE MAY BE CITED AS: | Lewis v TAC | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2049 | |
REASONS FOR JUDGMENT
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Catchwords: Serious Injury application; “whiplash” injury to neck; whether long term symptoms caused by organic injury arising from transport accident; interference with work capacity but no measurable loss of income as running business with husband; significant pre-existing low back disability and depression; serious injury found; Transport Accident Act 1986, s 93.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell SC with Mr D Purcell | Arnold Dallas McPherson |
| For the Defendant | Mr A Moulds SC with Ms S Manova | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 On 17 August 2006, Ms Wendy Lewis was driving her small delivery van in Bendigo when, while stationary at an intersection, it was hit from behind by a vehicle pushed into it by another. She seeks leave to bring proceedings for damages in respect of injuries sustained in that transport accident, and must satisfy the court that she suffered a “serious injury” within the requirements of the definition in s 93(17) of the Transport Accident Act 1986.
2 Although her case was opened on the basis that she relied on both parts (a) and (c) of the definition of “serious injury”, by the end of the hearing her application was confined to reliance on part (a) of the definition, namely that she had suffered “serious long-term impairment … of a body function” her neck. Her case is that she suffered an injury to her neck, with consequences including referred pain into her left shoulder, and another consequence being aggravation of pre-existing depression and anxiety as a secondary response to her physical impairment.
3 The test which the Court must apply in determining whether the plaintiff has suffered “serious injury” under part (a) of the definition, is whether the consequences of the injury, when judged in comparison with other cases in the range of possible impairments or losses of function, can be fairly described as at least “very considerable” and more than “significant” or “marked”.[1] The seriousness of consequences to the plaintiff can be measured in part by a mental response to a physical impairment, but the mental disorder cannot itself constitute or be the producer of the impairment of a body function.[2]
[1]Humphries v Poljak [1992] 2 VR 129 at 140-141.
[2]Richards v Wylie (2000) 1VR 79 at 88 lines 1-4.
4 There is no real dispute that the plaintiff suffered some soft-tissue injury to her neck in the transport accident. In issue is:
(i) whether the plaintiff has suffered any long-term injury of a physical or organic nature as a result of the transport accident;
(ii) the extent to which her pre-accident lifestyle was limited by pre-existing physical and psychological conditions;
(iii) the extent of her pre-accident capacity for work, and whether it was reduced by the effects of the accident;
(iv) whether any long-term consequences of any physical injury suffered in the transport accident satisfy the test of being more than significant or marked and at least very considerable.
5 The evidence consisted of the documents set out in the schedule to these reasons, together with oral evidence from the plaintiff, her de facto husband Mr William Dawson, her long-time treating general practitioner, Dr Jean Douglas, and Dr David Murphy, her long-time treating consultant rehabilitation and pain management physician, all of whom were required by the defendant to attend for cross-examination.
6 As in most applications of this nature, the credibility and reliability of the plaintiff’s own evidence is very important as not only the court, but doctors whose opinions are in evidence are also reliant on the plaintiff’s description and history of the onset and extent of symptoms and their effect on her daily living and activities.
7 My impression of Ms Lewis was that she was genuinely trying to recall and describe events and the effect of her symptoms. She was shown to be mistaken in several estimates of dates or timing, but it was not my impression that she was deliberately trying to mislead on these. The evidence is that she has been taking very strong medication for pain for some years, and still does, and although the specialist who has recommended it, Dr Murphy, said she had probably become somewhat inured to its effect on her concentration, I thought that she has surprisingly good recall and ability to concentrate in these circumstances. The defendant submitted that her answers were largely self-serving; many were, but that is not unusual as most parties give evidence which largely supports their case.
8 Ms Lewis gave the impression of a forthright personality, who has worked hard over her lifetime, and made continuation of working a large part of her life and is proud of it. I did think her pride at times led to reluctance to concede having needed help, including from Mr Dawson in the courier work before the accident, and to assert an almost uninterrupted prior work history which was probably not as complete as she likes to recall it. I have subjected some critical parts of her evidence to extra scrutiny where I have had any reservations about its reliability.
9 Mr Dawson’s attitude to giving evidence did not reflect that he regarded it as important enough to pay much attention to accuracy, and did not lead me to place much reliance on what he said.
Plaintiff’s relevant personal and work background
10 Ms Lewis is now aged 57, and was 51 at the time of the transport accident. She grew up in country Victoria, left school at age 15, and has worked, at least part-time, for most of her life since.
11 She started work in a supermarket, then worked on the family farm, and then in a fruit and vegetable shop during which time she married, at age 18. A couple of years later she and her husband moved to Queensland where she worked in a roadhouse for about a year until they returned to Timboon and she started to work as a child minder. Her first child was born in 1979, and within a few months she returned to child minding, part-time. In 1981 her marriage to Ronald Lewis ended.
12 Ms Lewis then started working in a bakery, where she continued to work for some 10 years. During that time she bought a takeaway food shop which she also ran with her mother. In 1991 the takeaway food business was sold, but she stayed on to work for the new owners for a further six years. During the same period she was in another relationship, and in 1992 she gave birth to twins. She stopped paid employment for a few months after their birth, then worked weekends or after school hours at the takeaway food business. Her relationship with those children’s father also broke down.
13 In about 1997 she commenced a relationship with William Dawson, with whom she still lives. She and her twins moved to Bendigo to live with him in about 1997. Her twins, now aged 20, still live with them. Her eldest son has lived independently for many years and has his own family.
14 Mr Dawson’s main occupation for many years has been driving, including of 00heavy trucks. After Ms Lewis moved to Bendigo, they started a courier business in which they were both sub-contracted to VicFast Couriers. There are differing versions as to how soon after she arrived in Bendigo the VicFast sub-contracting business started, but I find that Ms Lewis was working actively making deliveries in that business by April 1999[3], and did so for some years. They ceased that business because Vic Fast was lowering rates and making it uneconomical for them to continue, although the timing of that is also uncertain. She did not work after ceasing with VicFast for at least some months and possibly a year or more, while Mr Dawson ran a brick delivery business for which she did paperwork.
[3]Exhibit 11 – GP notes on 21/4/99 that her back was troublesome as now runs a courier service “in and out of car”.
15 By late 2004 Mr Dawson had bought a bin delivery sub-contracting business, and shortly after that they both entered upon a further courier business – Westberg Forwarding Australia Pty Ltd – which was run from what she calls their “shed”, which I take to be a small storage structure used as their warehouse. Although the precise dates of her commencing work in the second courier business are unclear, I am satisfied that well before the transport accident she was working actively in the Westberg Forwarding courier business, which mainly dealt with deliveries and collections of mechanical parts.
16 The extent of her participation in this courier business before the transport accident and since is important to this application, so I must deal with it in some detail. She has told most doctors that both she and Mr Dawson worked 10 to 12 hour days until her transport accident. From the evidence of both her and Mr Dawson, I am not satisfied that that many hours for her was constant, or even frequent, although it may have felt like it to her. However, she is not really challenged that they both started at about 5.30 to 6am, with sorting of parcels and loading into vehicles, Mr Dawson having to load the heavier or more cumbersome items. He regularly did at last one early delivery run in his ute, but I am satisfied that she drove most of the deliveries over the course of each morning, while Mr Dawson did all of the bin delivery driving.
17 Ms Lewis says that at the end of the morning deliveries she would go home and do paperwork and then, in the afternoons at approximately 2 or 2.30pm, commence the pick-ups, the number and size of which varied. These would take between one and two and a half hours, and all had to be at the shed and sorted by 5pm, when they would be picked up by the company taking them away from Bendigo. I am satisfied that she did that work.
18 It is not disputed that due to a long-standing low back condition the plaintiff was not able to run the courier business alone, and, in particular, was not able to lift or load heavy items, but I am satisfied that she did the majority of the deliveries and all of the pick-ups, and a substantial part of the sorting and loading except for heavy or awkward items. She managed to perform these functions, as well as to run her household, taking Panadeine Forte from time to time for back pain before the accident.
19 She also had a long history of depression, of fluctuating degree, which apparently partly stemmed from childhood events. She was taking Efexor as prescribed at the time of the accident. She said that no-one in her family knew about this before the accident. It emerged that soon after she moved to Bendigo to live with Mr Dawson, her mood levels were so unstable that after she had been screaming at him, he had said she ought to get help for it. That does not necessarily meant that he knew she did, but does undermine her affidavit description of “prior gregarious and extroverted nature”[4]. I am satisfied that there was already a chronic instability in her moods before the accident, but that condition was not reducing her ability to work in the courier business.
[4]Exhibit A, affidavit of 23/2/11, paragraph 42.
The transport accident
20 It is not disputed that while she was sitting in her vehicle stationary at a red light, the car behind was pushed into the back of her vehicle by another whose driver was at fault in failing to see the stationary vehicles and to stop. I am satisfied that the force of the collision with the plaintiff’s vehicle was considerable. I accept the plaintiff’s description that the contact was strong and she heard a big bang, that her car was forced forwards approximately three metres, and that the jolt was so strong she felt it “was like my head had left my shoulders”. She says that she immediately felt pain in her neck and shoulders, thinks her head hit something but is not sure what, and was shocked because the impact was unexpected.
21 She was taken by ambulance to hospital where Xrays of her neck showed no fracture, and she was kept under observation for some hours, given a cervical collar and analgesics and discharged home.
22 A week later she attended her general practitioner, Dr Jean Douglas, complaining of significant pain and headache. She was referred for physiotherapy, a brain scan which showed no post traumatic sequelae, and a CT scan of her neck in September, which was reported as showing no significant post traumatic sequelae[5]. An ultrasound of her left shoulder showed intact tendon and cuffs and no fluid or impingement.
[5]Exhibit C. In fact it reported no disc bulge, protrusion or central canal or lateral recess stenosis, and facet joints appeared normal, at variance with one taken at the hospital and showing some degenerative changes in facet joints, as quoted by Professor Disler (Exhibit J), and also with the MRI results ordered in March 2007.
23 With pain in her neck and left shoulder persisting she was referred to Mr Huw Williams, orthopaedic surgeon, in October 2006. He diagnosed a hyperextension-flexion injury of her cervical spine with pain situated around the left side of her neck, radiating to the shoulder and upper chest[6]. When osteotherapy recommended by him did not bring improvement, he referred her for pain management to Dr David Murphy.
[6]Exhibit E
24 In about March 2007 she first saw Dr Murphy, Rehabilitation Physician, who has continued to treat her ever since. He administered trigger-point injections into her left shoulder. He altered her medication several times, and settled on hydromorphone – a strong opiate-based drug - in long-acting form called Junista, and in breakthrough or short-acting form called Dilaudid, both of which were prescribed for her.
25 She was referred to the Pain Management Team at John Liddell Unit for support and therapy, which included psychological counselling for management of the psychological sequelae of chronic back pain and more recent neck and upper arm pain[7].
[7]Exhibit H
26 In early 2009 her psychological health worsened, with heightened anxiety, and she faced criminal charges for shop-stealing. She was referred to a psychiatrist, Dr Ryan, who apparently diagnosed agitated depression associated with family background, but after very few sessions Ms Lewis was not comfortable with Dr Ryan, who then referred her to a psychologist, John Cooper[8]. She was prescribed Cymbalta, and later Seroquil. She has been taking prescribed anti-depressants over most of the period since the accident.
[8]Exhibit F
27 She has continued to be treated by Dr Douglas, who prescribes her medication as advised by Dr Murphy, and to be reviewed by Dr Murphy although now only every few months.
28 She continues to be prescribed and to take daily Junista and Dilaudid, and also up to 8 Panadeine forte per day.
What injury was suffered in the transport accident?
29 Despite different descriptions, I am satisfied that at the time of the transport accident the plaintiff suffered injury to her neck in the nature of soft tissue strain or disruption, traditionally called a “whiplash type” injury. Her general practitioner, Dr Douglas first described the diagnosis as Myofascial Syndrome, affecting the left shoulder girdle and cervical spine[9]. Mr Huw Williams, orthopaedic surgeon, diagnosed a hyperextension-flexion injury of her cervical spine with pain situated around the left side of her neck, radiating to the shoulder and upper chest[10]. Mr Brendan Dooley, on medico-legal examination in April 2007[11], diagnosed “a whiplash type soft tissue injury to the cervico-thoracic spine, resulting in onset of neck pain and referred pain to the left shoulder region and left upper arm”.
[9]Exhibit C – report dated 8/5/10
[10]Exhibit E
[11]Exhibit 5
30 The real issue is whether that injury (or another organic condition developed from it), has continued to cause symptoms and consequences in the long-term. That question has been complicated by her having developed, according to her current treating doctors and some medico-legal reports, a chronic pain syndrome or disorder, which the majority of medical opinion considers is the cause of her ongoing symptoms or perceptions of them.
31 Dr Douglas said that the accident involved an injury to her neck and left shoulder, and that Ms Lewis has developed Chronic Pain Syndrome[12], for which she requires narcotic pain relief, and which would not alter much in the coming years apart from normal age related wear and tear.
[12]Exhibit C, report 25/1/12
32 Mr Williams said that the prognosis for the hyperextension/flexion injury of the cervical spine is guarded in that individuals tend to have persisting symptoms for a considerable period of time. However, as he has not seen Ms Lewis since January 2007 when he referred her to Dr Murphy, he does not refer at all to the issue of a chronic pain syndrome. [13]
[13]Exhibit E, report 8/9/10
33 Mr Dooley also has not seen Ms Lewis since April 2007. I note that at that stage he commented that she appeared to be genuine in her symptomatology, with no marked functional overlay of her symptoms, but that the recovery was slow and she had not yet fully stabilised. He predicted she should be stable within 12 months of injury.[14]
[14]Exhibit 5.
34 Dr Murphy’s opinion was that the plaintiff had sustained a soft tissue injury to her cervical spine and left shoulder region in the motor vehicle accident and, by the time of his first report[15], had a well-established chronic pain syndrome compounded by major depression. In oral evidence, he explained that his opinion is that the primary cause of the plaintiff’s pain is from her having sustained a fairly typical flexion extension type injury and a chronic post-traumatic cervical spine pain disorder. He said hers was a fairly typical picture in that it was not an uncommon disorder after such an accident, that the prognosis of this so-called whiplash injury varies considerably, one common course being that it can last up to three months with fairly good resolution, but that unfortunately there is a sub-group where people develop a more chronic disorder which can go on for years and that the plaintiff clearly fits the second group.
[15]Exhibit D – 27/04/2010.
35 He did not like using the description “syndrome” as it implied that “we” don’t know the true pathological diagnosis[16], so he described her condition as a “chronic soft tissue pain disorder” in her cervical spine.
[16]T133, lines19-25
36 Professor Peter Disler in a medico-legal opinion in January 2011[17], thought she had a chronic pain syndrome associated with an initial soft tissue injury to her neck and left arm, stating that he agreed with Dr Murphy’s diagnosis, but also recommending a psychiatric assessment to determine whether she had a chronic pain disorder within the DSM.
[17]Exhibit J
37 Dr Clayton Thomas, in providing a medico-legal opinion in February, 2012[18], said she was suffering from a whiplash and associated disorder with radicular quality pain but no evidence of radiculopathy involving her left upper limb. His view was that her symptoms stemmed from the motor vehicle accident.
[18]Exhibit K
38 Mr Paul Kierce, orthopaedic medico-legal consultant for the defendant, disagrees[19]. Examining her on 31 August 2011, his conclusion was that she suffered a minor injury to her cervical spine in the transport accident, and that it was an aggravation of pre-existing cervical spondylosis, but that when he saw her she was exhibiting non-organic signs. His opinion was that she had developed a chronic pain syndrome and was addicted to opiate analgesics. He concluded from the description of the injury, which occurred in 2006, that the effects of the accident from a physical viewpoint would have resolved long ago. It is implicit that his use of the term chronic pain syndrome is of a condition of non-organic origin.
[19]Exhibit 4 – three reports, but only one physical examination, being August 2011.
39 Dr Michael Epstein, consultant psychiatrist, provided a medico-legal assessment for the plaintiff in October 2010, and (two reports) in February 2012[20]. He thought that she had developed symptoms of a post traumatic stress disorder following the accident that were still present in October 2010. However, the major problem had been the increasing pain and discomfort suggesting the development of a chronic Pain Disorder associated with significant problems with dizziness leading to falls. He felt it more likely than not that her cognitive problems related to her chronic depressive condition. He thought it likely that the transport accident had exacerbated her pre-existing level of depression, and that she now had a chronic depressive condition.
[20]Exhibit 7
40 After Professor Disler’s suggestion of an independent psychiatric assessment, Dr Epstein analysed the features necessary for a diagnosis under the DSM IV TR, and said in his view the term chronic Pain Disorder with psychological factors was the preferred diagnosis for Ms Lewis. He though she continued to have depression that had been present before the accident but had become worse since then and that she had a chronic Adjustment Disorder with anxious and depressed mood together with a Panic Disorder with Agoraphobia, and mild Post Traumatic Stress Disorder. He thought she continued to be disabled by her chronic Pain Disorder and her prognosis for improvement is poor, with her condition stable.
41 The defendant obtained a medico-legal psychiatric assessment from Dr Timothy Entwisle[21], consultant Psychiatrist, in April 2012. He observed her to exhibit “pain behaviours” throughout the assessment, to be fully compliant with the interview, not visibly distressed or agitated, and a person of direct if not blunt demeanour. She cited some memory and concentration difficulties. His diagnosis was an adjustment disorder with depressed mood pre-existing recurrent depressive epiodes. He tought her tendency to depression of neurotic origin had been aggravated by her experience of pain subsequent to the accident, and that psychological factors made a large contribution to her experience of pain which in turn aggravated her previous level of depression and anger. He considered her prognosis mixed, as she had returned to work, but she remained vulnerable with her sense of emotional deprivation from early and childhood experiences. Her experience of pain aggraved her depression and contributed to a vicious circle. Her psychiatric condition, in the context of chronic pain and recurrent periods of depression do have some impact on her ability to work. He thought she continues to work but not at the level of hours she previously did, and he thought her psychiatric condition subsequent to the accident has interfered in her ability to enjoy her garden, and made a significant impact on her domestic and leisure activities.
[21]Exhibit 6
Has injury of an organic nature caused long-term consequences?
42 Apart from Mr Kierce, every other doctor’s opinion is of a causative relationship between injury arising from the transport accident, and ongoing disability from chronic pain in her neck, left shoulder and its vicinity, and most also accept that the perception of this pain has exacerbated her pre-existing depression and mood disorder.
43 The plaintiff argues that I should give minimal weight to Mr Kierce’s opinion because Mr Kierce does not explain why he concludes that the physical injury would have resolved long ago. He does explain that she presented to him with a left frozen shoulder which, if it had been due to the accident in 2006, he would expect to have resulted in wasting of the left shoulder girdle muscles and winging of the left scapular. However, as he concludes that she had developed a frozen shoulder but due to what he called constitutional factors, I am unsure why wasting would not be expected of a frozen shoulder whatever its cause, and that does not assist with understanding why he believes the whiplash injury would have resolved as early as other doctors acknowledge it does in some people.
44 Mr Kierce concluded that after an initial period of a few months following the accident, the injuries themselves should not have interfered with her ability to work, however as he noted that when he saw her she was on high doses of opiate and analgesics and, in his view, should not be driving at all, it is implicit that she should not be doing any of the deliveries of the courier business.
45 As to whether she is suffering a chronic pain condition of organic or psychiatric origin, it is only Dr Epstein who gives the opinion it is the latter, as Mr Kierce, while retrospectively talking of her pain after the first few months being of non-organic origin (in contrast to Mr Dooley’s opinion when he assessed her eight months after the accident in April 2007), does not diagnose a chronic pain disorder or syndrome or other condition.
46 The plaintiff’s pre-existing psychiatric condition and what both psychiatrists call her emotional vulnerability have probably played a part, and have complicated the condition, but on the principle that a tortfeasor must take a plaintiff as [he] finds [her], that would not preclude the plaintiff from establishing her case, and might well support it.
47 I need to make a finding at this interlocutory stage, without the benefit of hearing every doctor cross-examined to assess the fine differences between their views and how the evidence supports the histories and facts on which their views are based. I did see the two long term treating doctors, Dr Douglas and Dr Murphy, cross-examined. The defendant implied that the quantities of very strong opiate-based medication which Dr Murphy is prescribing reflects poorly on his opinion, and it is certainly the opinion of Mr Kierce that that medication should not be prescribed. Dr Murphy did concede that the dosage that Ms Lewis has been taking of 24 milligrams per day of Junista, is about as large a dose as he would like to prescribe without special considerations, being equivalent to 120 milligrams of morphine a day which is the Australian Pain Society’s recommended maximum dose in usual circumstances for chronic pain. However I do not see it as the role of the judge in a case of this type to decide on the appropriateness of medication or treatment recommended by appropriate professionals in their field.
48 Dr Douglas, the local and long-time treating general practitioner of the plaintiff, describes her as not abusing the narcotic medication, and never requesting extra (although the plaintiff has said that at times she has taken 10 Panadeine Forte a day).
49 I heard Dr Murphy cross-examined. He explained that the sources of pain in that situation are trigger points in the muscles around the cervical spine and the facet joints in the cervical spine, and when irritable they refer pain cross-linking with the pain fibres in the cervical spine[22]. On the basis of his explanations, there is no reason for me to not accept his opinion on the nature of the chronic pain condition which he says she now suffers as being of physical of organic origin. Moreover that view is supported by other doctors’ opinions – that of Dr Douglas, the treating general practitioner (albeit likely to be at least partly deferring to the opinion of Dr Murphy as the treating specialist), and also expressly of Professor Disler, although the latter has not been asked to comment after Dr Epstein’s opinion as to the psychiatric nature of the chronic pain disorder, and implicitly of Dr Thomas.
[22]T 140, lines10-24
50 In these circumstances, I am satisfied from the medical evidence that on the balance of probabilities the plaintiff is suffering now from a chronic pain condition that is of organic origin or nature, which arose from the initial injury received in the transport accident, and which continues to cause her significant symptoms of pain in her neck, right shoulder region.
51 I am also satisfied on the balance of probabilities, that the ongoing pain from her neck and left shoulder region, has exacerbated her mood disturbances and depression, although already long-term.
52 Dr Murphy’s opinion was that the major depression was causing some cognitive impairment with difficulties in concentration and short-term memory loss which would preclude her from undertaking much work and also make it difficult for her to adapt to any new job or learn new skills. He thought her injury to be stable with the ongoing hydromorphone medication, and her psychiatric condition improving. He considered her to have considerable incapacity which was likely to be permanent and that she would have difficulty undertaking tasks involving lifting more than five kilograms, use of the upper limbs above shoulder or below waist height, sitting or standing in one position for a long time and, in particular, sitting in a position where the cervical spine is held in a static position for more than 30 minutes. She would also have difficulty being exposed to jobs which involve jolting to the cervical spine.
Do Consequences to Plaintiff fairly meet the “very considerable” test?
53 I am satisfied that although Ms Lewis had a long history of back pain, it was not constant, albeit requiring medication such as Neurofen and at times prescription of Panadeine Forte. She had also some other significant health concerns, and had suffered depression and mood disorders for many years, being prescribed Zoloft at times. However, I am also satisfied that despite all of those conditions, she had managed to remain employed for most of her adult life, and indeed that it was a large part of her self-esteem and confidence to show that she could continue to work and to doggedly do so. I am also satisfied that from a financial point of view it was important to her and her family that she continue to contribute to the earning of income in partnership in small businesses with her de facto husband.
54 The defendant argues that I should not accept the plaintiff’s descriptions of her symptoms, of her pain or disabilities, because her reliability as a witness is low. I have already explained that on some critical issues I have subjected her version to extra scrutiny, but I did not take her to be deliberately exaggerating her pain from her own perception of it.
55 I have taken into account what was shown on video surveillance of her[23]. There was a delivery where she seemed to me to be moving awkwardly and with difficulty in placing a long parcel on a doorstep. She wheeled a loaded trolley in an unusual manner and leaning on the handle rail, consistent with being in some pain or at least discomfort. As I said during the hearing, it was not my impression that she was shown acting inconsistently with what she described in her evidence or to doctors.
[23]Exhibit 1
56 As a result of the whiplash and consequent chronic pain condition which I have found that she suffered as a result of the transport accident, I am satisfied that she has experienced pain in her neck and left shoulder region where she had not had significant pain previously, and of an ongoing level and nature that has been quite different and significantly worse than the previous lower back pain. As a result, she has needed constant strong medication, and since 2008 on the very strong hydromorphone recommended by Dr Murphy. The long term consumption of this medication for pain which still troubles her daily, in my view takes her well towards meeting the test for “serious injury”[24].
[24]“The endurance of permanent daily pain requiring frequent medication must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.” per Kyrou J in ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31 at para 71.
57 In addition, I accept that she is more restricted in various home activities as well as gardening which she used to enjoy.
58 I am satisfied that as a result of her injury she has been able to engage considerably less in the courier business than she could before the accident, and that in the months before the hearing she was engaging for substantially less time, doing only about two half days a week. That she has continued to work at all while taking this medication reflects a large degree of stoicism. In fact, there is a strong argument that she should not be driving at all on her medication. Further, Dr Murphy’s view was that she may be aggravating her pain to some degree by continuing to work, but he noted there is a compromise for her to come to terms with the pain in being able to maintain some level of physical ability, and that was helpful for her state of mind as well. He considered she was, if anything, aggravating her pain by doing the amount that she was.
59 Even if not reflected in actual losses of income, I am satisfied that in her case the decrease in her ability to engage in the courier work has caused significant distress through loss of self-esteem, having always regarded herself as a hard worker and battler, and now requiring not only her partner Mr Dawson but also his son to perform much of her previous duties. I infer from my assessment of Mr Dawson that that has put greater strain on her relationship with him.
60 In addition, the exacerbation of her mood disorder or depression as a result of pain and frustration at her limitations, has contributed to her suffering.
61 Finally I also accept that she has suffered several falls to which dizziness and her strong medication have contributed.
62 Taking all of these consequences into account, and notwithstanding that she was already suffering limitations in her lifestyles before the transport accident, I am satisfied that the consequences to her by way of pain and suffering and loss of enjoyment of life, of the injury to her neck suffered in the transport accident, fairly meet the description of more than significant or marked and at least very considerable when compared with other possible impairments.
Conclusion
63 I am satisfied that the plaintiff suffered injury to her neck in the transport accident of 17th August 2006, the consequences of which meet the test for a “serious Injury”, and I propose to grant her leave to bring proceedings for damages accordingly.
Court Ref: CI-11-03036
SCHEDULE OF EXHIBITS
Serious Injury Application commencing on 20 July 2012
Wendy Lewis v. Transport Accident Commission
| Number and Identifying Mark on Exhibit | Short Description of Exhibit | Date tendered |
| A | Affidavits of Plaintiff dated 23.02.11 and 23.02.12 | 24.7.12 |
| B | Affidavit of William James Dawson dated 28.02.12 | 24.7.12 |
| C | Reports of Dr Jean Douglas dated 8.05.10, 31,03.11, 25.01.12 | 24.7.12 |
| D | Reports of Dr David Murphy dated 27.04.10, 9.0811, 3.01.12 | 24.7.12 |
| E | Reports of Mr Huw Williams dated 22.11.06 and 8.09.10 | 24.7.12 |
| F | Report of Dr John Cooper dated 14.08.11 | 24.7.12 |
| G | Report of Ruth Norris dated 12.08.10 | 24.7.12 |
| H | Report of Bendigo Health dated 20.07.10 | 24.7.12 |
| J | Report of Professor Peter Disler dated 13.01.11 | 24.7.12 |
| K | Report of Dr Clayton Thomas dated 20.03.12 | 24.7.12 |
| L | Radiology of cervical spine dated 17.08.06, CT cervical spine dated 18.09.06, left shoulder ultrasound dated 30.01.07, MRI cervical spine and left brachial plexus dated 27.04.07 | 24.7.12 |
| 1 | DVD of video surveillance taken 20 and 21 September 2011 | 24.7.12 |
| 2 | Ambulance Case Sheet dated 17.08.06 | 24.7.12 |
| 3 | Virginia McDonald dated 5.06.08 | 24.7.12 |
| 4 | Reports of Mr Paul Kierce dated 31.08.11, 27.01.12, 9.07.12 | 24.7.12 |
| 5 | Report of Mr Brendan Dooley dated 2.04.07 | 24.7.12 |
| 6 | Reports of Mr Timothy Entwisle dated 12.04.12 and 25.05.12 | 24.7.12 |
| 7 | Reports of Michael Epstein dated 25.10.10, 3.02.11, 21.02.12 | 24.7.12 |
| 8 | Report of Dr Michael Brownstein dated 12.08.98 | 24.7.12 |
| 9 | Radiology of Left shoulder and cervical spine dated 2.06.03 | 24.7.12 |
| 10 | TAC Claim form dated 24.08.06 | 24.7.12 |
| 11 | Clinical Notes on Plaintiff of Strathdale Medical Centre from February 1999 to date | 24.7.12 |
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