Lind v Transport Accident Commission
[2015] VCC 1886
•1 October 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-02832
| SOPHIE LIND | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 and 29 September 2015 | |
DATE OF JUDGMENT: | 1 October 2015 | |
CASE MAY BE CITED AS: | Lind v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1886 | |
REASONS FOR JUDGMENT
---
Subject: TRANSPORT ACCIDENT
Catchwords: Damages – serious injury – injury to the spine – nature and extent of such injury
Legislation Cited: Transport Accident Act 1986
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Richards v Wylie [2000] 1 VR 79; Aburrow v Network Personnel Pty Ltd [2013] VSCA 46; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100
Judgment: Leave granted to the plaintiff to issue proceedings seeking damages at common law arising out of a motor vehicle accident which occurred on 2 April 2010.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P A Jewell QC with Mr J Goldberg | Slater & Gordon |
| For the Defendant | Ms R Annesley QC with Ms J Frederico | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 By way of Originating Motion dated 11 June 2014, Sophie Lind (“the plaintiff”) seeks leave pursuant to s93(4)(3) of the Transport Accident Act 1986, as amended, (“the Act”), to bring common law proceedings to recover damages for spinal injury (“the injury”) suffered by her arising out of a transport accident which occurred on 2 April 2010.
2 The plaintiff tendered in evidence two affidavits and was cross-examined. The parties also tendered various other documents, all of which I have read.
Relevant legal principles
3 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.[1]
[1]See s93(6) of the Act
4 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s93(17) of the Act, which reads:
“In this section … serious injury means –
(a) serious long-term impairment of loss of a body function … .”
5 The part of the body said to be impaired for the purposes of paragraph (a) in relation to the transport accident was to “the spine, particularly at the lumbar and cervical levels”. The plaintiff relies predominantly on the lumbar level.
6 In order to succeed, the plaintiff must prove, on the balance of probabilities, that “the injury” suffered by her was the result of the transport accident.
7 The requirements of the test are set out in the seminal decision of Humphries & Anor v Poljak,[2] wherein a majority of then Full Court of Victoria stated:
“Subs(17) intends a division between injuries with physical consequences and those with mental consequences. The former fall under para(a) and the latter under para(c). It would be anomalous to regard the consequences of mental disturbance or disorder to fall under para(a) when the disturbance or disorder itself fell to be judged by whether they satisfied the criteria of para(c). A ‘functional overlay’ will, we consider, rarely amount to a behavioural disturbance or disorder as that term is used in the legislation.
Now, in the light of the various matters to which we have referred in the foregoing propositions that we have stated or conclusions to which we have come, we think that the task of a judge confronted with the requirement to determine an application made pursuant to subs(4)(d) when reliance is placed upon subs(17)(a) may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”
[2][1992] 2 VR 129
8 “Serious injury” as defined in subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment; however, the mental disorder cannot in itself constitute or be the producer of the impairment of a body function.[3]
[3]Richards v Wylie [2000] 1 VR 79
9 Senior Counsel for the defendant informed the Court there was no issue in relation to the plaintiff being involved in a transport accident and suffering a degree of soft-tissue injury to her spine on account thereof. The main issue in the case was whether the plaintiff was able to prove the impairment to the necessary threshold as defined in Humphries v Poljak[4] or more colloquially known as a “range case.”
[4]Supra
Identifying the injury
10 The plaintiff’s case is that she has suffered trauma to the spine, producing discal damage and pain with some neurological symptoms. This proposition is supported largely by the medical practitioners’ evidence tendered on behalf of the plaintiff.
11
The defendant adduced evidence from orthopaedic surgeon,
Mr Robert Dickens, who examined the plaintiff on 15 June 2015.[5] His diagnosis was that the plaintiff had sustained a soft-tissue injury to the cervical spine and the lumbosacral spine as a consequence of the transport accident.[6] In particular, he cited the MRI scan of the lumbosacral spine taken on 13 September 2011 which:
“… demonstrated loss of hydration in the L4 5 disc with a suggestion of an annular tear posteriorly on the right side but no disc protrusion. There was no other obvious pathology and no evidence of disc prolapse or neural compression.”[7]
[5]Exhibit 1
[6]Defendant’s Court Book (“DCB”) 19
[7]DCB 18
12 Further, as a result of the injury, he stated:
“… she has ongoing symptoms referrable to her cervical spine and lumbosacral spine with neurological symptoms affecting both the right arm and the right leg but without hard neurological signs sufficient to make a diagnosis of radiculopathy … She also indicates that she is taking medication for anxiety and depression. I believe that is impacting on her physical symptoms. There was no overt embellishment or abnormal illness behaviour.”[8]
[8]DCB 21
13 In my view, Mr Dickens’ opinion is not dissimilar to the plaintiff’s medical practitioners, in that he has opined that there was discal damage in both the cervical and lumbar spine as a result of the motor vehicle accident which resulted in referred pain affecting both the right arm and the right leg, but without a diagnosis of true sciatica. Indeed, when the plaintiff travelled to Western Australia in 2011, her treating specialist there, Dr Michael Kent, procured an MRI scan of the lumbar spine dated 13 September 2011. The findings recited therein include:
“At the L4/5 level there is some disc desiccation present. Posterior annular fissuring is noted associated with a broad-based posterior central and paracentral disc protrusion.”[9]
[9]Plaintiff’s Court Book (“PCB) 138
14 In the comment section, the radiologist states, inter alia:
“Accelerated degenerative change is noted at the L4/5 level with posterior annular fissuring and a broad-based posterior central and paracentral disc protrusion.[10]
[10]PCB 138
15 Dr Kent, himself, having sited the relevant MRI scan, stated:
“The MRI scan she’s had once again shows transitional anatomy over the lumbar sacral junction, but it does show early discopathic changes to L4-5 and some minor facet arthropathy adjacent. This is more than sufficient to account for her pain which, historically, is discal in nature.”[11]
[11]Exhibit K, PCB 44B
The Plaintiff’s evidence
16
The plaintiff adopted her two sworn affidavits dated 6 January 2014 and
24 August 2014.[12] She was born in May 1982 in Denmark and completed her education in that country to the age of twenty. She then travelled to Perth as an exchange student and ultimately took up residence in Australia. She qualified as a bookkeeper/accountant at a TAFE college in Perth.
[12]Exhibit A
17
Thereafter, she commenced employment with King Pro Marketing Pty Ltd on
2 April 2007 in Perth. Later that year, when the company opened an office in Melbourne, she relocated to Melbourne. She stated she enjoyed this job immensely and was working approximately 50 hours per week, as well as pursuing a “crazy” lifestyle with respect to recreational activities. Her contract included being flown home to Perth four times each year to visit her family. In addition, she travelled frequently interstate for meetings to train administrative staff and also attend the annual company meeting held in Port Douglas in Queensland. She was encouraged to, and did attend, professional development seminars. She swore that she was happy and well-regarded in this employment. In particular, in 2009, a bonus was paid to her which was an around-the-world air ticket which allowed her to complete a ten-week holiday in New York, Europe, Egypt and Africa, and for her birthday presents in the years 2008 and 2009, she was able to attend annually organised ski trips to Mount Hotham.
18 Just prior to her motor vehicle accident, the plaintiff had purchased a house, taken out a mortgage and planned to settle down and raise a family with her then partner.
19 On 3 April 2010, the plaintiff was the sole occupant-driver of a vehicle involved in an intersectional collision which she described as “severe”. She briefly lost consciousness. Immediately after the accident, she was aware of severe back pain with pains in the legs, neck pain and head pain. The following morning, she was taken to the Austin Hospital for treatment. Later, she was rung by the hospital and told to return immediately by ambulance and she was fitted with a neck brace. Thereafter, she has continued to suffer ongoing, fluctuating neck pain and mid-lower back pain.
20 During May 2010, the plaintiff tried to return to work doing her normal job but struggled because the work “… involved sitting for prolonged periods and frequent movements of [her] back and neck when doing filing, archiving and other manual tasks”.[13] She experienced difficulties with her then boss on account of her inability to perform her tasks and she said that the Transport Accident Commission (“TAC”) had told her to stop work. She was subsequently paid loss of earning benefits until approximately March or April of 2013.
[13]Exhibit A, first affidavit, paragraph 11
21 In the meantime, the plaintiff had regular physiotherapy at the Auburn Spinal Therapy Centre and later, at Life Care La Trobe Sports Medicine.[14] She took medications, including OxyContin and Tramadol, for the pain in her spine.
[14]Exhibit N
22 In about August 2010, the plaintiff was referred to a psychologist, Fiona Batchelor,[15] for support. She was prescribed an antidepressant, Effexor. She remained under the care of her treating general practitioner, Dr Rana.[16]
[15]Exhibit L
[16]Exhibit M
23 In about March 2011, the plaintiff returned to Perth, mainly to look after her mother who was ill with cancer. She attended a general practitioner, Dr Chua, and was referred to a pain specialist, Dr M Kent,[17] and underwent rehabilitation as recommended by the TAC. Dr Kent arranged for a further MRI scan performed on 13 September 2011.[18] He recommended her to continue with conservative treatment and pursue a multi-based exercise program and continue to take the medications, Tramadol and Mobic.[19]
[17]Exhibit K
[18]Exhibit X
[19]Exhibit A, first affidavit, paragraph 19
24 In the meantime, the plaintiff continued to suffer from mid-lower back pain and had symptoms in both legs. She also continued to have episodes of neck pain and headaches. She gained weight, approximately 25 kilograms, and continued her treatment.
25 During 2012, the plaintiff participated in a pain management course at a spinal management clinic, LifeCare La Trobe, after her return to Victoria. This treatment involved physiotherapy, psychology and participation in an independent gym program.[20]
[20]Exhibit A, first affidavit, paragraph 21
26 In April 2013, the plaintiff returned in an administrative secretarial role with Hughes, O’Dea & Corredig of Essendon. She was able to cope with the full-time work but stated that the lack of energy to exercise on a regular basis had resulted in exhaustion from pain when she finished work and she often had “blinding headaches”.[21]
[21]Exhibit A, first affidavit, paragraph 22
27 The plaintiff continued to use medication such as Panadol Osteo and Cymbalta, but her general practitioner, Dr Rana, retired in late 2013. She then consulted general practitioner, Dr Camilla Holdstock, who supervised her medication; however, the plaintiff managed to significantly reduce the amount of medications.[22]
[22]Exhibit A, first affidavit, paragraph 30
28 Further, the plaintiff swore that prolonged used of medications, including Tramadol, Mobic and other narcotics, had resulted in stomach-abdominal-gastrointestinal symptoms, causing frequent bloating, bloody urine and stools, with cramping abdominal pain.[23] The plaintiff has received corroboration of these complaints from Associate Professor Paul Desmond, Director, Department of Gastroenterology at St Vincent’s Hospital, Melbourne who, having examined her on 24 May 2014, stated:
“Since the time of the accident, she has been treated with physiotherapy, rehabilitation and numerous analgesics. Initially she was on narcotics, including Morphine and Tramadol, but in recent times has been managed by a Pain Management Clinic and is now on Cymbalta, Gabapentin and Panadol Osteo. With regard to her gastrointestinal tract, she was initially quite constipated but this settled with bulking agents, and she now has problems with cramping central lower abdominal pain with abdominal distension and her bowels open two or three times a day. Her bowels are soft and there is no blood, but she doesn’t have constipation any more. She does get occasional indigestion after taking drinks containing cola.”[24]
[23]Exhibit A, first affidavit, paragraph 31
[24]Exhibit U, PCB 111A
29 In summary Associate Professor Desmond recited:
“… Ms Lind received cervical and lumbar injuries in a motor car accident in 2010. She has had ongoing pain since that time, although managed to significantly reduce her analgesics. With regard to her gastrointestinal tract, she has cramping abdominal pain with distension suggestive of irritable bowel syndrome which has been precipitated by medications taken for pain.”[25]
[25]PCB 111B
30 The plaintiff remained in employment with Hughes, O’Dea and Corredig until June 2014 and left that employment for reasons other than her injuries. She swore that the tasks and responsibilities were much less than her previous employment but nonetheless she struggled to cope with the full-time work.[26] Thereafter, she looked for a number of jobs, ultimately obtaining employment with OHM Australia in January 2015 as a full-time administrative assistant. She swore that the job involved sitting for prolonged periods. She stated: “This causes havoc with my back.”[27] She also stated that during the working day, she needs to change her posture frequently, stand up and walk around to ease soreness and pain in her back and her neck. Commuting to work each day involves a total of three hours by train.
[26]Exhibit A, second affidavit, paragraph 8, PCB 19
[27]Exhibit A, second affidavit, paragraph 21, PCB 21
31 Prior to returning to work, the plaintiff had been in receipt of TAC loss of earning benefits until March 2013.
32 Presently, the plaintiff swears that she continues to have headaches, although they have eased and are not as severe as described in paragraph 28 of her first affidavit. However, she swears:
“… But they still occur frequently, lasting for short periods of time or at other times all day. The onset and the severity of headaches are linked to the severity of my neck pain and low back pain and how I am coping with my day-to-day activities.”[28]
[28]Exhibit A, Second affidavit, paragraph 23, PCB 22
33 The plaintiff also alleges that, because of her injuries, she has struggled to find and establish a long-term relationship. It had been her ambition to marry and establish a family with her, then, boyfriend at the time of the accident. She swore:
“About four (4) months after the accident, my then boyfriend ended our relationship. I have since tried repeatedly to establish a relationship, but only twice since the accident have I come close to establishing a worthwhile relationship, the last in late 2014 which lasted about two (2) months.”[29]
[29]Exhibit A, Second affidavit, paragraph 25, PCB 23
34 In cross-examination, the plaintiff conceded that her boyfriend had “ended the relationship” by having an affair and, thereafter, the plaintiff terminated their relationship. By way of explanation, she stated that her physical injuries had prevented her from contributing physically to the relationship as she had done prior to the accident and she believed that this was the reason why her boyfriend had the affair.[30] Whether or not this is the whole story is impossible to say, but certainly I accept that, in the plaintiff’s mind, her inability to contribute physically to the relationship was, also, at least one factor contributing to the end of the association.
[30]Transcript (“T”) 28, L19-2; T108, L20 – T109, L15
35 Further, she swore:
“I purchased my home in Bundoora and moved in about February 2010. I was enjoying a demanding, full time job and was looking forward to establishing a long term relationship, settling down and starting a family. This has all been lost to me because of the accident”,[31]
[31]Exhibit A, second affidavit, paragraph 26, PCB 23
36 I accept that these factors are causally related to the accident.
37 Further, the plaintiff swore that before the accident she was “… very active, fit, and enjoyed a wide variety of recreational activities”.[32]
[32]Exhibit A, second affidavit, paragraph 27, PCB 23
38 I accept defence counsels’ submission that the extent of the plaintiff’s skiing and horseback riding was, perhaps, somewhat spasmodic prior to the injury, but I do accept that the plaintiff focussed on strenuous physical activities such as “pole dancing”. She describes the latter activity as such:
“… Pole dancing is a series of exercises, designed to build body strength and fitness. It is a demanding form of exercise that requires a lot of strength. I attended a pole dance studio, Pole Princess, Kew each week, usually a Wednesday. This studio is a training and exercise facility which promotes pole dancing skills. I participated in classes with about 15 to 20 female participants. These classes lasted about an hour. Classes for both males and females were held regularly each week.
I am no longer capable of pole dancing. I no longer have the movement, flexibility and the fitness that would permit me to train and practice pole dancing techniques. I enjoyed this activity very much. Before the accident, I had a dance pole fitted inside by house; I used it frequently. Because of the injuries and the substantial gain in body weight, I am no longer able to participate in this sport.”[33]
[33]Exhibit A, second affidavit, paragraphs 31-32, PCB 24-25
39 The plaintiff further swore that:
“Prior to moving to Melbourne I was singing for 5 years in a rock band and was performing live regularly. Upon moving to Melbourne, I had yet had the opportunity to locate a new band, but I would perform when the opportunity arose to sing with bands in Perth when I travelled home, and also on social occasions or open microphone nights in Melbourne. I was a competent singer, I enjoyed singing very much. Now, I have lost self confidence to sing in public. I have lost the self esteem and I am now unable to sing and perform like I could in the past.”[34]
[34]Exhibit A, second affidavit, paragraph 34, PCB 25
40 At present, the plaintiff swears that she ingests medications as prescribed by her current general practitioner, Dr Holdstock, including Cymbalta, 60 milligrams by one daily, and Panadol Osteo. She states that she generally uses Panadol Osteo three or four days each week, sometimes more frequently, depending on the level of discomfort, pain and difficulty she is having with her back, neck and spine. She wears that she tried, but found that she is unable to get by without using medications as prescribed.[35]
[35]Exhibit A, second affidavit, paragraph 36, PCB 26
The Defendant’s submissions
41 Senior Counsel for the defendant submits the consequences from which the plaintiff suffers do not meet the required statutory threshold. In particular, she cites:
(a) The plaintiff’s return to full-time work;
(b)The infrequency of the need to visit her general practitioner (four times since December 2013, with perhaps two occasions relating to obtaining material for a report);
(c)The infrequent need for Endone as the last prescription would appear to be in 2012;
(d)The references on Facebook to her attending rock concerts and other enjoyable activities;
(e)The reference on Facebook to attending the Melbourne Cup in 2013 and consuming two bottles of champagne with a girlfriend;
(f)The failure to adduce evidence from her “new” friend, Mr Barnett, who would be able to corroborate any disability from which she is currently suffering.
The Plaintiff’s submissions
42 Senior Counsel for the plaintiff counters these propositions as follows:
(a)The pathology in the lumbar and cervical spine probably consists of disc damage;
(b)A comparison of her lifestyle before and after the motor vehicle accident is one where the plaintiff was “… in the prime of life, the prime of activity, describing herself as having a crazy work life and a crazy social life all at the same time”[36], such that now she is left with a considerably compromised lifestyle with chronic pain which she has learned to manage as best as possible through a pain management process;
[36]T95, L28 – 31
(c)She was a person who was physically very fit and had developed a strong core strength as exemplified by her pole dancing, compared to a person who is now considerably restricted and has put on 25 kilograms in weight;
(d)The plaintiff has suffered in her personal relationships and that I should accept her explanation as to how the relationship, extant at the time of the accident, came to an end;
(e)Her pathology is such that she has neurological symptoms in her cervical spine and lumbosacral spine, although not sufficient to make a diagnosis of radiculopathy, still amount to referred pain from discal injuries;
(f)Although there is limited recourse to her general practitioner in recent times, I should accept that she has chronic pain, mainly from the lumbar spine but also, to some degree, in the cervical spine, which symptoms become worse with activity;
(h)Historically, her treatment has been quite intense, commencing with Dr Rana in August 2010; psychologist, Ms Batchelor, in July 2010; Dr Chan and Dr Kent in Perth in 2011; the Pain Management Clinic from May to July of 2012 and then Dr Holdstock, general practitioner, in December 2013;
(i)Although there was a gap in treatment from September 2014 through to July 2015, she was, nonetheless, consuming Panadol Osteo, Cymbalta and Endone, as required. He submitted that I should accept the plaintiff met the criteria of “stoical” in accordance with the jurisprudence concerning serious injury;
(j)Approval has recently been given by the TAC to have her medication regime re-assessed by a pain specialist;
(k)I should be satisfied that there is no doubt that the pain interferes with her concentration and memory with respect to her current employment and, as such, is likely to continue to impede on her productivity as a result;[37]
(l)The references in Facebook should be seen as “scattered references to outings”. For example, in 2010, there are two entries in relation to recreational activity. In 2011, there are four spaced between March, April, May and September. In 2012, there are eleven, which are spaced well throughout the year. In 2013, there are ten references but, thereafter, they diminish. In 2014, there are three, and in 2015, there are three.
With respect to her attendances at concerts, there were four in 2012, three in 2013 and two in 2014.
I am urged to accept the plaintiff’s evidence that she had to prepare in relation to these events by means of prophylactic painkillers. I am also urged to have regard to the complaints of pain contained in the Facebook material, in particular, the bottom entry on the second page, the bottom entry on the third page, the top entry on the fourth page and the bottom entry on the fifth page.[38]
[37]Exhibit W, Dr Middleton, occupational physician, PCB 117-132
[38]Exhibit Z
The medical evidence
43 The plaintiff’s first general practitioner, Dr Champak Rana, reported on 19 March 2013.[39] The plaintiff was referred to him on 3 August 2010 from the Life Care Clinic at Latrobe University Medical Centre. She reported severe low-back symptoms and stiffness of the neck. At that stage, she was attending a physiotherapist and a psychologist and was continuing medications. The latter consisted of Tramadol, 200 milligrams, one tab bd; Effexor, 150 milligrams daily; Endone, one tablet prn; Panadol Osteo, two tablets tds and Coloxyl (for constipation), one to two nocte.
[39]Exhibit M
44 After returning to Melbourne from Perth in January 2012, the plaintiff was still complaining of neck and low-back pain. She was then referred to “… Spinal Management Clinics of Victoria, for pain management program and further treatment as her condition was not improving”.[40]
[40]PCB 53
45 The plaintiff completed an eight-week multidisciplinary Network Pain Management Program and a six-month post-program. There was some improvement.
46 When seen on 22 April 2013, Dr Rana noted the plaintiff had started working full-time for one week with the following restrictions:
“No repeated bending or lifting.
No continuous seating.
Advised to continue taking her medication.
Gym program and swimming.”[41]
[41]PCB 54
47 Thereafter, she was to be reviewed monthly.
48 In August 2011, the TAC referred the plaintiff for a functional rehabilitation program known as “WorkFit Western Australia”. Physiotherapist, Erin McLoughlin, reported back on 12 August 2011.[42] The plaintiff’s subjective complaints at the time consisted of:
“Constant mid to lower back pain Constant 4/10 ache, sharp pain most afternoons 6/10 Unable to sit or drive> 10 mins …
Lifting anything from the floor Increases pain immediately to 7/10
Forward flexion Increases pain immediately to 7/10.”[43]
[42]Exhibit F
[43]PCB 33
49 It was recommended the plaintiff undergo a three-month program consisting of gym membership, exercise program and home exercises. An addendum to the report dated 4 October 2011stated:
“Sophie has recently had an MRI scan which shows degeneration in her lumbar spine and a disc protrusion at L4/5. This means that Sophie should avoid repetitive bending and lifting, and sustained postures to prevent further changes in her lumbar spine.”[44]
[44]PCB 37
50 Further, the plaintiff’s general practitioner, Dr Chua, in Perth, referred her to anaesthetist and consultant in pain medicine, Dr M J Kent. He, in turn, reported back to Dr Chua on 25 August 2011.[45] Relevantly, he took a history that, within 24 hours of the accident, she developed lower back pain which had persisted and which was her main problem now. He considered that the plaintiff’s back pain was:
“… historically discopathy and needs further investigation by way of a lumbar MRI scan … .”[46]
[45]Exhibit K
[46]PCB 44A
51 In a follow-up report dated 22 September 2011, Dr Kent recited that an MRI scan recently taken had shown:
“… early dysipatic (sic) changes to L4/5 and some minor facet arthropathy adjacent. This is more than sufficient to account for her pain which historically is discal in nature.”[47]
[47]PCB 44B
52 At that stage, he noted the plaintiff was continuing to take Tramadol 150 milligrams a day, and Mobic.
53 Physiotherapist, Mr Matthew Richards, attached to the La Trobe University Medical Centre, reported to the plaintiff’s solicitor’s on 13 March 2013.[48] He noted consultations with the plaintiff were conducted as part of a Pain Management Program involving three sessions per week over the period 21 May 2012 to 30 July 2012. Thereafter, the plaintiff attended the clinic for physiotherapy and psychology review sessions on an infrequent basis over the months leading up to March 2013. The history taken included the following:
“Before the injury Ms Lind was active in dancing, horse riding, skiing, and gym four times per week. Currently Ms Lind attends gym for an independent program four times per week and walks 3km per day, but is not performing her other pre-injury activities. She had experienced digestive issues and weight gain (nearly 20kg) since the accident, and she had more recently managed to lose 10kg with diet modification and activity.”[49]
[48]Exhibit N
[49]PCB 57
54 Degenerative changes were noted in the cervical and lumbar spine. Medications taken at the time of the report were “… Meloxicam 15mg (1 tablet per day), Tramadol 150mg (2 tablets per day) and Oxycodone 5mg (1-2 tablet per month)”.[50]
[50]PCB 60
55 Functionally, the plaintiff reported limitations including:
“… walking 15 minutes, sitting 10 minutes, standing 30 minutes, lifting 4 kilograms and driving 30 minutes. She reported being unable to forward bend, perform heavy housework or gardening, perform intercourse, ride horses or snow ski. Sleep was affected by her not being able to get to sleep for 60-120 minutes at night and waking 5 times due to symptoms. She reported morning pain and stiffness lasting 60 minutes and increased pain towards the end of the day depending on activity.”[51]
[51]PCB 60
56 By way of overview, it was reported the plaintiff had participated in an intensive multidisciplinary pain management program, involving psychology, physiotherapy and rehabilitation specialist reviews over eight weeks. Thereafter, she continued her established gym-based exercise program independently, with infrequent clinical reviews to assess progress and to modify exercises.[52]
[52]PCB 62
57 The plaintiff’s current working capacity was assessed at the time as:
“• working 5 days, 4 hours per day
• lifting and carrying limited to 8kg
• no sustained or repeated forward bending or twisting
• sitting 30 minutes.”[53]
[53]2013 PCB 63
58 In a follow-up report dated 23 September 2015, Mr Richards noted that on review on 30 May 2013, the plaintiff had reported returning to work but was “exhausted”. She had not attended the gym recently and reported an increase in pain.[54]
[54]PCB 64E
59 The current general practitioner, Dr Camilla Holdstock, reported on 15 July 2015.[55] That report recites inter alia:
[55]Exhibit O
“using p.osteo daily, most in arvos
sitting job, aggravates pain, numbness in left buttock first, shooting pains into left anterior abdo, at least weekly posterio full leg shooting pains
…
can also feel it in right lower back
…
also shoulder and neck now, also gets neuro Sx in right arm
…
more pain as not taking stronger pain meds – eg nurofen, p.forte
also having neck pain now and going into head, with headaches
endone for flights sometimes
… very tired after work,
…
does gentle back exercises at least twice weekly
trying to do back stretches at work, using heat packs in chair at work
Cymbalta daily helping somewhat but feeling lost in terms of no rehab anymore … needs to work as in debt … .”[56]
[56]PCB 67
60 Dr Holdstock considered the plaintiff to suffer from chronic neck and back pain but considered that she was able to cope with her full-time paid work.[57]
[57]PCB 69
61 The plaintiff was assessed for medico-legal purposes by orthopaedic surgeon, Mr Kevin King, who reported on 11 June 2013.[58] He considered her to be a … clear, detailed and articulate historian … .”[59] He noted that she had been investigated with various CT and MRI scans and considered that there were minor disc changes in the mid-cervical region and a moderate loss of signal and distortion of the L4-5 disc, “… consistent with trauma in view of her young age … .”[60]
[58]Exhibit S, PCB 101
[59]PCB 99
[60]PCB 101
62 Mr King noted that her most severe problem was consistent aching pain in the low-back region and a less serious complaint of constant neck pain radiating into the shoulder.
63 On examination, he could detect no element of exaggeration. He noted mild to moderate limitation of neck movements, accompanied by spasm and pain. There was also marked limitation of lower back movements accompanied by pain and spasm.[61] His opinion was:
“She would have been exposed to what was potentially a severe degree of generalised trauma to the whole of her spine in view of the circumstances of the accident resulting in damage to cervical and to thoracolumbar discs and associated ligamentous structures at multiple levels.”[62]
[61]PCB 102
[62]PCB 103
64 Ultimately, he considered:
“She seems to be a genuine, straightforward young woman and I can detect no element of exaggeration. She is still moderately disabled by neck and back pains and further improvement may occur but it is more probable than not that she is now stabilised at her present level, three years after the accident.”[63]
[63]PCB 104
65 The plaintiff was also seen for medico-legal purposes by orthopaedic surgeon, Mr Peter Moran, who reported on 12 June 2015.[64] On examination, he stated:
“I found no evidence of overt exaggeration in her clinical presentation and I did not detect evidence of abnormal illness behaviour.”[65]
[64]Exhibit V
[65]PCB 114
66 Mr Moran reviewed an MRI scan of the plaintiff’s lumbar spine performed on 13 September 2011, which he considered showed mild desiccation of the L5-S1 disc, but no evidence of prolapse nor of neural compression. Further, an MRI scan of the neck performed on 23 January 2015 reported desiccation of the C4-5 and C5-6 discs, with an incomplete congenital fusion of the C3-4 segment. Further, he noted “Scanning of the thoracic spine confirmed desiccation of the T7-8, T8-9 and T11-12 discs”.[66] In his opinion, the plaintiff had been:
“… subjected to violent deceleration forces, that has left her with persistent neck, thoracic and lumbar back pain, which has not responded to appropriate conservative treatment.
Perhaps the dominant legacy of this collision has been lumbar back pain, which does inhibit your clients tolerance of sitting and walking, and in her own words, has made it extremely difficult to maintain employment in an office managerial capacity.
I felt that your clients clinical presentation was consistent with the mechanism of injury, and I felt that her prognosis for significant clinical improvement was poor.”[67]
[66]PCB 115
[67]PCB 115
67 Finally, the plaintiff was examined for medico-legal purposes by occupational physician, Dr David Middleton, who reported on 24 July 2015.[68] He also considered that the MRI scan of 23 January 2015 confirmed disc degeneration at C4-5 and C5-6. He also considered that an MRI scan of the thoracic spine identified disc degeneration at T7-8, T8-9 and T11-12 and, finally, an MRI scan of the lumbar spine identified “… minimal disc degeneration at L5-6”.[69] Dr Middleton took a history that “after a day’s work, Ms Lind gets home exhausted and must lie down”.[70] Her current symptoms consisted of pain remaining in the lower back, extending into both legs. The intensity of the pain varied, extending into the buttock and around into the groin. She complained of an aching pain and developing into burning and stabbing pains with activity. She reported: prolonged sitting caused numbness in the backs of her legs which can extend into the dorsum of her feet “… in an L5 dermatome distribution… .”,[71] describing it as “sleeping on a bed of nails”.[72] Her current treatment was reported as Cymbalta 60 milligrams, Panadol Osteo, one to two tablets three times a day and Endone 5 milligrams as an opiate analgesic for severe pain. The plaintiff reported that she tries to keep in contact with friends but “… has no capacity for recreational activities of a physically demanding nature”.[73] In essence, Dr Middleton’s opinion was:
“There is no doubt that the pain interferes with her concentration and memory and will likely continue to impede on her productivity as a result. Noting the violence of the forces put on Ms Lind’s spinal column in particular, it will continue to have an impact on her capacity for work, which may include reducing her attendance time at work and certainly limiting the level of seniority in an organisation.”[74]
[68]Exhibit W
[69]PCB 119
[70]PCB 119
[71]PCB 120
[72]PCB 120
[73]PCB 120
[74]PCB 131
Evaluating the pain and suffering consequences
68 The template for assessing an injury such as the present is succinctly set out by the Court of Appeal in Aburrow v Network Personnel Pty Ltd,[75] as follows:
[75][2013] VSCA 46 at paragraphs 10 and 11
“As Maxwell P suggested in Haden Engineering Pty Ltd v McKinnon,[76] it is of assistance in reviewing a body of evidence like this — for the purpose of evaluating the ‘pain and suffering consequence’ of an injury — to distinguish between:
• the plaintiff’s experience of pain as such; and
• the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.
These are not, of course, rigidly separated categories. For example, evidence about the disabling effect of the pain may enable inferences to be drawn about the intensity and frequency of the pain, and vice versa.[77] But the distinction remains important for the purposes of the pain and suffering assessment, as this appeal shows.
[76](2010) 31 VR 1
[77]See for example Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12, at paragraphs 46-47
The experience of pain as such
We deal first with Mr Aburrow’s experience of pain as such. The approach suggested in Haden, and subsequently endorsed in Sutton v Laminex Group Pty Ltd,[78] was as follows:
[78](2011) 31 VR 100
‘The experience of pain
As to the experience of pain as such, the court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale ‘mild/moderate/severe’. Unless the pain is constant, the court will need also to assess the frequency and duration of the pain episodes.
The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
(b) what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c) what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d) what the objective evidence shows about the disabling effect of the pain.
As to (a), the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility. The court will make its own assessment of the plaintiff’s credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.
…
As to (d), the cases recognise that some plaintiffs may be more ‘stoical’ than others. This means that such a plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injury suffered by the ‘stoical’ plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain. In such a case, the ‘objective’ evidence of the disabling effect may be of less significance than usual.’”[79]
[79]Haden (supra) at paragraphs 46-48
69 The plaintiff has returned to full-time work, but I am satisfied is suffering ongoing pain and limitation of movement with respect to her spine, particularly due to the discal damage in the lumbar and cervical spine. In her viva voce evidence before the Court, I found her to be honest and straightforward and, in my view, would qualify for the adjective “stoical” as used in the various authorities. I accept that the intensity and frequency of her pain is such as it has interfered in her pursuit of the robust and energetic lifestyle that she engaged in prior to injury.
70 Further, the evidence contained in her affidavits and corroborated by her mother, Annelise Lind,[80] Naja Cunningham[81] and Tom Patton,[82] support the contention to the effect:
·the plaintiff experiences daily pain
·the pain is with her when she wakes up in the morning and interferes markedly with her sleep
·the pain interferes with her work capacity, such that she is exhausted by the end of the day
·the pain has resulted in a fit, active and strong person being completely deconditioned such that she has put on 25 kilograms in weight, despite timely recourse to rehabilitation.
[80]Exhibit D
[81]Exhibit C
[82]Exhibit B
71 As Maxwell P and Tate JA stated in Aburrow v Network Personnel Pty:[83]
[83](supra) at paragraphs 19-20
“The disabling effect of the pain:
As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this court (Ashley JA) said in Dwyer v Calco Pty Ltd (No 2):[84]
[84][2008] VSCA 260
‘[I]mpairment is concerned with what has been lost. But the significance of what has been lost … may be informed, to an extent, by what is retained.’[85]
[85]at paragraph 27
As suggested in Haden (and endorsed in Sutton),[86] the disabling effect of the pain is to be assessed by considering the impact of the pain on the worker’s capacity for work and the degree to which it interferes with the ordinary activities of life, as follows:
[86]at paragraphs 49-50
‘As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed ha[s] been closed off to [him or her]’.”
Capacity for work aside, assessing the extent to which the pain interferes with the ordinary activities of life will typically involve consideration of its effect on the plaintiff’s:
• sleep;
• mobility;
• cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
• capacity for self-care and self-management;
• performance of household and family duties;
• recreational activities;
• social activities;
• sexual life; and
• enjoyment of life.
Whether and to what extent the matters listed are relevant to the court’s task in a particular case will, naturally, depend on the circumstances of the case.’”[87]
[87]Haden (supra) at paragraphs 15-16
72 In the present matter, there is evidence as to interference with sleep, cognitive functioning in terms of concentrating at work, interference with her sexual life such that she terminated her relationship with a man she had hoped would be her life partner, and her mobility has been restricted to a marked degree in the manner already described.
Findings
73 I am satisfied in this matter that the plaintiff has suffered a compensable injury by way of discal damage in the lumbar and cervical spine and, perhaps, the thoracic spine. In my view, the plaintiff has established pain and suffering consequences which, when judged by comparison with other cases in the range of possible impairments, may be fairly described as being “more than significant or marked” and as being “at least very considerable”. I am satisfied that the plaintiff is in need of ongoing analgesia, despite infrequent recourse to Endone.
74 In all the circumstances, I find the plaintiff has discharged the onus of proof with respect to the statutory threshold.
75 Accordingly, leave will be granted to the plaintiff to issue proceedings seeking damages at common law arising out of a motor vehicle accident which occurred on 2 April 2010.
76 I will hear the parties as to consequential orders.
- - -
0
5
0