Lukacevic v Transport Accident Commission
[2011] VCC 503
•18 April 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES – COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-03590
| MARIA LUKACEVIC | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | First Defendant |
| and | |
| EDMOND BOWEN | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 24 and 25 March 2011 |
| DATE OF JUDGMENT: | 18 April 2011 |
| CASE MAY BE CITED AS: | Lukacevic v Transport Accident Commission & Anor |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 503 |
REASONS FOR JUDGMENT
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Catchwords: Application pursuant to s.93(4)(d) of the Transport Accident Act 1986 – aggravation of pre-existing symptomatic degeneration of the spine – whether consequences of aggravation sufficient to constitute serious injury.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Richards SC with | Victorian Compensation |
| Mr G A Worth | Lawyers Pty Ltd | |
| For the Defendants | Mr J R Moore QC with | Solicitor to the Transport |
| Mr C G K Madder | Accident Commission | |
| HIS HONOUR: |
1 On 8 June 2005, the plaintiff suffered injuries in a transport accident in which, whilst standing at the rear of a motorcar, she was struck by another motorcar as it reversed and sandwiched her between the two vehicles. In this application, the plaintiff seeks leave under s93 of the Transport Accident Act (the Act) to commence a proceeding claiming damages for the injuries sustained by her in that accident (“the accident”).
2 In the application, the plaintiff relies upon three affidavits sworn by her on 21 November 2007, 4 February 2011 and 9 March 2011 respectively.
3 In addition, the plaintiff relies upon an affidavit of her sister, Ms Ruzica Paric, sworn on 7 March 2011 and an affidavit of her daughter, Ms Kathy Barun, sworn on 17 February 2011. The plaintiff, Ms Paric, and Ms Barun, gave evidence in the proceeding and were cross-examined. Otherwise, the parties rely upon medical and like reports tendered by them.
4 In this application, the injury relied upon by the plaintiff is an injury to her low back, and the impairment of function relied upon is that of the lower spine in “the lumbar area, the coccyx and the surrounding area”.[1]
[1] Transcript (“T”) 112
5 It is not contended by the defendant that the injury and impairment relied upon by the plaintiff is one which involves an inappropriate characterisation of a relevant body function or an inappropriate aggregation of injuries.
6 The plaintiff was born in Croatia on 9 September 1952. She migrated to Australia in 1969 and between that date and 1997 she was employed generally in unskilled labour. Between 1978 and 1997, the plaintiff was employed by Container Packaging Pty Ltd. In the course of that employment, she developed back and leg pain in respect of which she made a claim for compensation pursuant to s.98 and 98C of the Accident Compensation Act (“the work injury”).
7 In her first affidavit, the plaintiff deposed:
[2] JCB 4-7
• That in 1997 she had accepted a retrenchment package from Container Packaging Pty Ltd, and that she had suffered an injury to her lower back and right hand in the course of her employment with that company; • That after ceasing employment with Container Packaging Pty Ltd, she continued to receive treatment in the form of physiotherapy and chiropractic treatment for her low-back condition which gradually improved; • That the accident of 4 June 2005 aggravated her back condition and caused her to suffer pain in her legs, pelvis and coccyx. She said that by reason of back pain, she was unable to remain standing for long periods of time and that she also suffered from an anxiety state with symptoms of nightmares and difficulty sleeping.[2] 8 In her second affidavit, the plaintiff deposed:
• That prior to the accident, she was, by a comparison to her post-accident state, in much better health; and was able to participate in the full range of her normal activities of daily living. She said that immediately before the accident her work injuries had improved and that although she still experienced discomfort, this discomfort was not substantial and she required minimal treatment and the use of minimal medication to manage it; • That following the accident: (i) She “experienced varied feelings of depression and anxiety”;
(ii) The quality of her relationships with her children, grandchildren and husband had suffered enormously;
(iii) She had difficulty sleeping and suffered from a disrupted sleep pattern which often left her feeling lethargic;
(iv) She suffered from pain in her lumbar spine, hip-pelvis and lower extremities which impacted upon her ability to bathe, groom and dress herself, and that the pain which was present in her lumbar spine and lower extremities was aggravated by standing or sitting for long periods of time; walking long distances; bending; twisting or leaning; carrying or lifting;
(v) She felt “left out of the lives of my children and am missing out as
I am unable to play or interact with my grandchildren as much as I had hoped”;
(vi) Her symptoms had caused her to significantly reduce her involvement in bingo or attending and dancing at Croatian social functions;
(vii) Her symptoms had reduced her libido and her sexual relationship with her husband had suffered by reason of her symptoms of pain;
•
That whereas prior to the accident she was able to perform her household duties, since the accident she had required assistance from her husband and her sister to perform her housework. She said that she was unable to carry out “physical activity for any prolonged length of time without experiencing more pain which means that I tend to break up what used to be routine activities of daily living into stages that I can complete or seek assistance for”;
•
That prior to the accident, she was “independent in terms of being able to perform the activities required within my household”;
•
That the accident had caused her to put on approximately 10 kilograms in weight;
•
That the accident had caused her to lose many friends and to reduce her social contact;
•
That she suffered from anxiety and depression following the accident and experienced symptoms of losses of concentration, intrusive recollections of the accident and shortness of temper;
•
That by reason of ongoing symptoms of pain she was unfit to return to any field of employment.
9 In her third affidavit, the plaintiff deposed:
• That she had consulted her general practitioner, Dr A Sherriff, with reduced frequency, having been told by Dr Sherriff that there was little that could be done for her injuries; • That she had reduced her intake of prescription-based painkilling medication and now made use of Panadol and Panadeine to control her symptoms; • That her back pain had been aggravated by the accident and that immediately prior to the accident she was not restricted in her day-to-day activities by reason of her prior work-related back injury as this had substantially resolved. 10 In her affidavit of 7 February 2007, Ruzica Paric, the plaintiff’s sister, described the plaintiff as being a different person since the accident. She said that the plaintiff was no longer able to perform her household duties, including:
“Vacuuming, cleaning and cooking without suffering exacerbated pain
from her transport accident injuries”.[3]
[3] JCB 22
11 That whilst prior to the accident she would regularly see her sister at Croatian social functions where she enjoyed socialising and dancing, since the accident, the plaintiff has tended to avoid functions of that type.
12 In an affidavit of 17 February 2011, the plaintiff’s daughter, Kathy Barun, described her mother as functioning normally in her daily life immediately prior to the accident. She said the plaintiff “was proud that she was a great mother and grandmother” and that she did not recall the plaintiff having any significant difficulties with her back or legs prior to the accident.
13 She said that since the accident, she had observed her mother to be in constant although varied pain. She described her mother experiencing pain in her hips if she attempted to perform heavier home duties and said that her mother often held or massaged her back.
14 She described her mother as being fit and energetic before the accident and said that she had enjoyed walking and playing bingo.
15 She said that since the accident, her mother had avoided activities such as standing and walking for extended periods as these activities exacerbated the pain in her back, hips and legs.
16 She said that since the accident, her mother was much less active in the home and that she had been increasingly required to assist her mother in the performance of home duties which Ms Barun undertook approximately “three times a week”. She said:
“My mother, with the help of my aunt, does try to cook and contribute around the house, but is often left in much increased pain afterwards. I often find her lying flat on her back on the floor later in the day to relieve the pain she feels after performing general household duties.”
17 She described the plaintiff as having become withdrawn and isolated since the accident and as suffering from a poor sleeping pattern. She said that her mother regularly made use of medication and that she had not generally been reliant on medication prior to the accident. She described the plaintiff as being anxious, stressed and depressed in respect of her inability to contribute to her family.
The Viva Voce Evidence Adduced in the Course of the Application
The Evidence of the Plaintiff
18 In evidence-in-chief, the plaintiff described the presence of pain in her lower back and her buttocks as being always present but as being:
“Sometimes it’s easier, sometimes it’s worser.”[4]
(sic)[4] T 20
19 She said that for four or five days each week her pain was such that it prevented her doing what she wished to do.
20 In cross-examination, the plaintiff gave evidence:
•
That whilst she had developed symptoms, including back pain, during her employment with Container Packaging Pty Ltd, her primary reason for ceasing employment with that company was because she wished to assist her daughter. She agreed however that as the result of working for Container Packaging Pty Ltd, she suffered from symptoms involving leg pain from time to time in both her legs;
•
That between 1997 and 2000, she had been unable to work by reason of her injuries in that she was experiencing severe pain in her back and legs, and her symptoms limited her in walking and climbing stairs;[5]
•
That in November 1999 her symptoms had been such that they interfered with her ability to sleep[6] and that her back pain, when severe, interfered with her ability to perform her housework and drive a car. When asked as to her current level of injuries, she said:
[5] T 30-34
[6] T 39
“But now, it’s just worse.”[7]
[7] T 41
•
That in the lead up to the accident she suffered from back and leg pain but whereas in 1999 her pain could be minor but could get worse with physical effort, these days it was worse;
•
That she had back and leg pain immediately before the accident which caused symptoms of aches and pains as she did her housework and that whilst she had difficulty doing those duties:
“It was difficult but not that much like how I experience it now.”[8]
[8] T 59
• That the accident had just aggravated her pain; • That whilst following the accident her general practitioner, Dr Sherriff, had prescribed medication to control her pain until 2007, but that he had not been prescribing pain control medication for her condition prior to the accident;[9] • That whilst prior to the accident she enjoyed going to bingo which she would play a couple of times a week, she now rarely went to bingo;[10] • That whilst she had problems with walking following her injury with Container Packaging Pty Ltd, those problems were not ongoing in the months leading up to the accident;[11] • That she may not have mentioned symptoms of back pain to Dr Sherriff between July 2008 and January 2010 – [9] T 62
[10] T 62
[11] T 69-70
“… because he told me I can’t do nothing. He can’t do nothing so what’s the point. I was – he said ‘stick to your tablets’ and that’s the painkillers, because they can’t do nothing.”[12]
(sic)
[12] T 74
•
That before her accident, the problems with her back and her legs did not slow her down at social functions but they did slow her down in performing her housework, and would occasionally impact upon her ability to stand or sit for long periods, or walk for longer distances, or bend and reach;[13]
•
She accepted that her level of symptoms before the accident were such that they could be worse at times and were annoying to live with but denied that they caused her problems engaging in sexual activity.[14]
[13] T 74-75
[14] T 75
21 In re-examination, the plaintiff said that before the accident her back was manageable but that:
“Since the car accident it’s all aggravated. It puts me in bad moods and I can’t cope with it. … The back pain, I can’t do things that I want to do and it makes me frustrated. It’s just upsetting with it. I cannot do more with my grandchildren, especially for my son now with two little ones. I helped my daughter a lot with her kids but with my son I can’t do that much. Plus like today, it’s so upsetting me because the little one had the first grandparents and I couldn’t be there. It’s nothing for him – it’s all this that puts me, upsetting me.”[15]
[15] T 78
22 The plaintiff said that she had five grandchildren, her daughter’s children being sixteen, twelve and nine, and her son’s children being five and eight- months.[16] She said that before the accident she was able to play with her grandchildren; to take them to the park and take them to school; but that she was now unable to walk with them, to play with them and to lift them.
[16] T 78
23 She said that the accident had aggravated her back pain so as to severely impact upon her sexual relationship with her husband;[17] that she had difficulty sleeping at night and was required to make use of Endep three or four times a week “just to give me a bit of rest”;[18] that whereas before the accident she had not used prescription medication, for pain control, this had been prescribed for her since the accident. She said that she was presently taking Endep for her sleep; Panadeine; Panadol and Mobic (the latter only occasionally because it gave her an upset stomach).[19]
[17] T 80
[18] T 80
[19] T 80
24 She said that:
• In the three years before the accident, she would attend Croatian functions and dances: “Before the accident I used to love it, yes, because as soon as the music goes, I’m on the dance floor, but now I go I think maybe once or twice after the accident and I just – when I see someone dancing I try but I couldn’t so I said that makes me upset to go and I’m not dancing or – to sit and watch somebody else – you know.”[20]
(sic)
[20] T 81
[21] T 82
• Prior to the accident, she provided a lot of assistance to her parents but that since the accident she could only go with her sister.[21] 25 She described the activity of playing bingo as being relaxing for her before the accident; and that in the course of playing she would sit for three or four hours taking some breaks. She said that since the accident she had stopped going to bingo, because she found that if she sat for a long time she could not walk, commenting:
“When I sit and when I want to get up and I could sort of, and then I think everybody is looking at me and say, ‘what’s she doing in this place?’, you know, that’s why I stopped, yes.”
(sic)
The Evidence of Kathy Barun
26 The viva voce evidence of Ms Barun painted a striking contrast of the plaintiff, both before and after the accident.
27 Ms Barun said that before the accident her mother had been happy but that following the accident she was not as happy and was in pain.[22]
[22] T 84
She said that before the accident her mother:
•
had been there to support her in raising her children. She described her mother as having been able to play with her grandchildren (including playing with them whilst sitting on the floor and rolling around with them); and to engage in activities with them such as taking them to the park and playing ball. She said that her mother had played with her grandchildren all the time; that her grandchildren enjoyed playing with her;[23] but that since the accident her mother did not play with her grandchildren any more;[24]
•
had been able to manage her housework but that she now had difficulty with the heavier aspects of her housework such as vacuuming and cleaning. Mrs Barun said that she now did these things for her mother commenting; “before I never used to do that”.[25] Mrs Barun said that she now went to her mother’s house”three times a week and do what can,”[26] including vacuuming, mopping and normal household chores;[27]
•
would attend bingo a few times a week. Mrs Braun said that both she and her mother would regularly attend bingo on a Friday night[28] and that although Mrs Barun was as that time a busy mother “that was my time to go with her to Bingo”.[29] She contrasted this with the present situation in which she said that in recent times “I don’t even recall when (sic) the last
[23] T 89
[24] T 84
[25] T 91
[26] T 88
[27] T 92
[28] T 92
[29] T 92
time she went”[30].
[30] T 92
28 In the course of cross-examination, Mrs Barun:
•
agreed that in the late 1990s her mother would mention symptoms of back pain being associated with activities such as vacuum cleaning;
•
said that before the accident if her mother had walked too far or had “done too many things throughout the week”, she would complain that her back was sore; and that if she walked too far whilst shopping her back might get sore or she may have needed to take a rest.[31] She said that after the accident on the occasions that she had gone shopping with her mother “she’d say she can’t walk any more, lets go home”;[32]
•
said that following the accident her mother was in a lot of pain and that she was not as active as she used to be.
[31] T 89
[32] T 85
The Evidence of Rosica Paric
29 Mrs Paric, the plaintiff’s sister, said that:
•
In the three years prior to the accident, she would regularly go shopping with the plaintiff and that they would exercise by walking around the lake at Taylors Lakes for forty minutes in the morning or at night.
•
She and her sister would visit their mother regularly as their mother was disabled and required substantial care; that prior to the accident she and the plaintiff would divide the assistance their mother required between them, the plaintiff taking her to the doctors and shopping; and Mrs Paric looking after her house. Mrs Paric said that following the accident the provision of assistance for their mother had been left to her.[33]
•
Whilst before the accident she had not observed any restriction in the ability of her sister to go walking or to go dancing,[34] her sister had complained to her of back pain before the accident and it was for that reason, at her suggestion, they had commenced walking around the lake.[35]
•
Prior to the accident she was not aware of her sister having difficulty walking longer distances and that her sister had not complained that she had difficulty performing housework.
[33] T 96
[34] T 96
[35] T 98
The Medical Evidence
30 In a report dated 4 July 2007, Dr A Sherriff, the plaintiff’s treating general practitioner, described the plaintiff as having “a history of back pain which has symptomatically worsened since the car accident”. He said that since the accident, the plaintiff had suffered from significant pelvic pain and sacrococcygeal (sic) pain. He described the plaintiff’s back pain and pelvic pain as progressively worsening, and said that she had “intense spasm of the lumbo sacral muscles and significant problems with day-to-day function”.[36]
[36] Jcb60-63
31 In a further report dated 14 November 2010, Dr Sherriff described the plaintiff as suffering from intense spasm of the lumbo sacral muscles and the quadratus lumborum muscles. He said:
• That all of the plaintiff’s spinal movements were painfully restricted; • That her symptoms had become well-entrenched; and that she struggled with activities of daily living; • That the plaintiff’s chronic pain had caused her to become depressed and to suffer from poor sleep; • That she concentrated poorly and was easily agitated; • That she required home help for at least three to four hours per week and that she had significant problems with day-to-day function. 32 He opined that the plaintiff’s prognosis was guarded and that the accident had left her with a long-term permanent impairment.[37]
[37] JCB 59-69
33 Mr Brian Barrett, an orthopaedic surgeon, assessed the plaintiff in early September 2010 at the referral of Dr Sherriff. In a report dated 10 September 2010, Mr Barrett opined that the plaintiff presented with –
“… multilevel lumbar disc desiccation, without any significant nerve root involvement at any lumbar level, but no doubt these pre-existing degenerative disc changes have been somewhat aggravated by the motor vehicle accident of 4 June 2005, while no hip or sacral injuries have been sustained.
There is really no specific orthopaedic treatment that is likely to alter your patient’s symptoms, particularly as there are multiple discs involved in these pre-injury and fairly longstanding degenerative changes.”[38]
[38] JCB 70-71
34 In a report dated 21 November 2007, Dr Alex Stockman, a rheumatologist, opined that, whilst in the absence of scans of the plaintiff’s lumbar spine he could not make any specific diagnosis, he suspected that the plaintiff suffered from “lumbar spondylosis/disc degeneration”[39] and thought that it was probable that her symptoms of back pain would continue for a long time and that her condition was likely to have stabilised.[40]
[39] JCB 81
[40] JCB 80
35 In a report dated 2 December 2001, Mr Kenneth Brearley, a general surgeon, opined that in the accident the plaintiff had sustained soft-tissue injuries to her thighs; lower anterior abdominal wall and right hip area; together with a soft- tissue injury to her low-back which comprised an aggravation of pre-existing degenerative changes in the back. He opined that the aggravation of these pre-existing changes continued to contribute to her ongoing back pain and that whilst she presented with some depressive symptoms, it was his opinion that seventy per cent of her pain was physical and thirty per cent was due to psychological causes.[41]
[41] JCB 108
36 In a report dated 17 March 2008, Mr Peter Mangos, general surgeon, expressed the opinion that the plaintiff had suffered from soft-tissue injuries involving her lower abdomen, hips and thighs and that “she probably also suffers an aggravated back injury also”.[42]
[42] JCB 72-73
37 In a report dated 1 March 2011, Dr H Sutcliffe, an occupational physician, commented that an MRI scan of the plaintiff’s lumbo sacral spine performed on 20 November 2008 indicated the presence of multilevel degenerative disc disease, together with a small left intra-foraminal disc protrusion at L2-3. She opined that the plaintiff’s symptoms of continuing pain, which included persisting pain in the low-back in the area of the coccyx; was consistent with the injury sustained by her in the accident which had resulted in a permanent limitation in the plaintiff’s capacity for activities of daily living, which was likely to continue permanently.[43]
[43] JCB 73.1 – 73.3
38 Mr Michael Kahn, in a report dated 4 February 2009, opined that an MRI scan of the plaintiff undertaken on 20 November 2008 revealed the presence of multilevel disc degenerative disease in her lumbar spine and a small left-sided intra-foraminal disc protrusion at the L2-L3 level, but without radiculopathy. Other than in commenting;
• that the plaintiff suffered from multilevel disc degeneration; • that he reassured the plaintiff that she had “some residual problems which do not require surgery at the moment”; • that the plaintiff could be weaned off Panadeine for which she should substitute Panamax; Mr Khan did not opine further.
39 Mr Peter Blombery, in a report dated 12 February 2008, opined that the plaintiff had developed a chronic pain syndrome which he described as an organic disorder of pain nerve pathways as the result of sustaining severe soft tissue injuries in the accident of 4 June 2005.
40 In a further report dated 14 October 2010, Mr Blombery maintained the position expressed in his earlier report and commented that the plaintiff’s prognosis for recovery was extremely poor.
41 In a report dated 10 March 2010, Dr Blombery commented:
“As noted in my history taking that most of the pain was in her legs and buttocks rather than the low back and (sic) I therefore do think that the previous low back injury was playing a major role in her presentation.
In regard to the apportionment of her symptoms in the lumbar spine in regard to the previous work injury versus the motor vehicle accident, it is my opinio0n that the lumbar spine symptoms, which I found were minimal, were 30% due to the previous working injury and 70% due to the motor vehicle accident … “
42 Mr Robert Dickens, an orthopaedic surgeon, who examined the plaintiff on 17 January 2011, obtained a history from the plaintiff that on a visual analogue scale, her pain when she presented to him was 7 out of 10 and that at its best it was reduced to 5 out of 10, and commented:
(i)
that an MRI of the plaintiff’s lumbosacral spine dated 20 November 2008 revealed the presence of multi level disc degeneration;
(ii)
that he believed that the plaintiff had significant pathology in her back prior to the accident;
(iii)
that the plaintiff was “pleasant and straightforward in her presentation” and he did not get the impression that she was “over embellishing her symptoms”;
(iv) that the plaintiff’s injuries were consistent with the accident; (v)
that given that the plaintiff already had significant pathology in her back prior to the accident, the natural history of this would have been to produce ongoing symptoms, and that:
“I think that the accident has accentuated some of these symptoms and may have produced a temporary affect on the lumbosacral degenerative changes which by now I suspect have resolved and we are simply seeing the natural history of this condition.”
43 With respect to the opinion of Mr Dickens, whilst I accept his opinion that the accident was responsible for aggravating the plaintiff’s pre-existing lumbosacral degenerative condition; I am not persuaded by his opinion that the effect of the accident was temporary and that her present symptoms are caused merely by the natural history of her underlying condition. I express this view having regard to the way in which Mr Dickens describes that opinion; namely as being a suspicion only; and in the absence of any explanation by Mr Dickens as to the grounds for that suspicion (specifically why and when the influence which he opined the accident played in accentuating the plaintiff’s symptoms, ceased).
44 Mr John Hart, a clinical associate professor of surgery, in a report dated 21 January 2008, expressed the opinion that the plaintiff suffered soft-tissue injuries in the accident, which have now resolved.[44]
[44] JCB 106-114
45 I note that:
• Mr Hart’s opinion is clearly based upon his interpretation of the CT scan of the plaintiff’s lumbar spine undertaken on 15 February 2007, which he reported as revealing no abnormality apart from mild disc bulges at L4-5 and L5-S1 which were within normal limits for the plaintiff’s age. • Mr Hart was not aware of the findings of an MRI scan of the lumbosacral spine performed on 20 November 2008 which Mr Dickens reported as showing the presence of multilevel disc degenerative changes. In my opinion, given that Mr Hart was not aware of either the presence of or the extent of, the pre-existing degenerative condition within the plaintiff’s lumbar spine, he was not in a position to consider the effect of the accident on that condition. In these circumstances, I am of the opinion that Mr. Hart’s opinion that the plaintiff suffered only soft-tissue injuries in the accident carries little weight.
46 Associate Professor Richard O’Brien, to whom the plaintiff was referred by Dr Sherriff, has provided a number of reports upon her progress:
•
On 11 August 2005, Associate Professor O’Brien opined that the plaintiff had suffered significant trauma to her low abdomen/back/upper thighs, that she had slowly improved; and that he was hopeful that her condition would improve gradually;
•
On 11 October 2005, Associate Professor O’Brien opined that whilst the severity of the plaintiff’s pain was such that on days she was unable to engage in any significant activity, she was gradually recovering from very significant lower abdominal and back trauma, and she still presented with symptoms from musculoligamentous strain of her lumbosacral spine and an ongoing traumatic injury to the suprapubic region;
•
On 17 February 2006, Associate Professor O’Brien opined that the plaintiff continued to gradually improve; an opinion which he repeated on 17 August 2006;
•
On 9 February 2007, Associate Professor O’Brien reported that he had not seen the plaintiff since 15 August 2006, at which time he held the opinion that her prognosis for a reasonably full recovery was good, but that further review in six or twelve months would be required to give a more conclusive assessment of her prognosis.
Issues Raised by the Defendant
47 In this application the defendant:
(i) Takes issue with the credit of the plaintiff on the grounds that the plaintiff has sought to deliberately minimise the effect and the
consequences of her work-related injuries upon her day-to-day life;
(ii) Submits that:
ƒ The plaintiff is an unreliable witness who prevaricated whilst giving
her evidence;ƒ The reliability of the plaintiff’s evidence as to the effect of her injuries and her recovery from the same is called into question, by the conflict between the evidence given by the plaintiff that there has been no improvement in her condition; and the statements attributed to her in the medical reports of Associate Professor O’Brien which suggested otherwise;
ƒ That the plaintiff has not identified the relationship between the
various injuries she suffered in the accident and the consequences
in terms of impairment of body function which she relies upon;
ƒ
That the plaintiff has not established, insofar as her case involves an aggravation of a pre-existing condition, that the consequences of such an aggravation are such that they meet the definition of a “serious injury” within the meaning of the Act;
ƒ That the plaintiff has the onus of establishing the natural course
which her pre-existing symptomatic condition would have followed and has not done so, with the result that it is not possible to gauge; the consequences of the accident-related aggravation of the condition and whether that aggravation has resulted in an injury which is appropriately described as being “serious” within the meaning of the provisions of the Act.
Does the Plaintiff have an Onus to Establish the Natural Course which her Pre- existing Symptomatic Condition Would Have Followed?
48 Whilst I accept that the decision in Petkovski v Galletti[45] is authority for the proposition that, in the presence of a pre-existing symptomatic condition, the onus is upon the plaintiff to establish that the consequences of the impairment of body function as caused by the accident (namely those associated with the additional impairment caused by the accident) are such that they, in themselves, can be said to give rise to a serious injury within the meaning of the Act, and that this necessarily involves an analysis of the extent of the impairment of body function before and after the relevant injury so that the effect of the accident-related additional impairment can be measured and assessed:
[45] [1994] 1 VR 436
[46] [1999] VSCA 129 (27 August 1999)
• I do not accept that the Act imposes upon the plaintiff a duty to establish the course which the underlying condition, with which the plaintiff presented at the time of the accident, would have followed but for the aggravation caused by the accident. • Nor do I accept the submission on the behalf of the defendant that the decision of the Court of Appeal in Angelatos v Museum of Victoria[46] is authority for this proposition. 49 In my opinion, the obligation of the plaintiff in an application under s.93 of the Act for leave to commence a proceeding claiming damages is merely to establish that a serious injury within the meaning of the provisions of the Act has been occasioned.
50 If, in the course of such an application, the plaintiff establishes that the aggravation in itself gives rise to an impairment which satisfies the definition of “serious injury” under the Act, I am of the opinion that the plaintiff’s onus under the Act has been made out.
Has the Plaintiff Established that that Accident has Occasioned Injury which has Resulted in a Serious Impairment of a Body Function?
51 It is submitted on behalf of the defendants that “the potential progenitors for the injury consequences with which the plaintiff presents are that of injury to:
ƒ the back ƒ the left hip
ƒ the abdomen ƒ the thighs ƒ the legs ƒ the coccyx.”[47] [47] See the defendant’s Statement of Issues
52 In making findings as to the consequences associated with the plaintiff’s accident-related injuries, I am satisfied that I should adopt the approach espoused by Ashley JA in Dressing v Porter,[48] in which his Honour observed:
“In concluding that the appellant had not established that his then inability to work, and his daily restrictions and limitations, were due to his neck injury, it may be, I put the matter no higher, the judge approached the matter from an incorrect standpoint. What his Honour had to do was to decide what symptoms afflicted the appellant in consequence of his compensable injury, and with what effect. If, by reason of pain and suffering consequences the compensable injury met the serious injury test, it was beside the point that some other condition might also have satisfied the test by reason of its pain and suffering consequences. His Honour’s reasons rather suggest that he approached the matter on the footing that there must only be one condition which could satisfy the test.”
[48] [2006] VSCA 215 (17 October 2006)
53 In my opinion, there is a considerable body of persuasive evidence which identifies the injuries suffered to the plaintiff’s back in the form of a soft-tissue injury involving an aggravation of pre-existing degeneration in the plaintiff’s lumbar spine as being a continuing cause of her present symptoms. Whilst I accept that there is evidence to support the presence of other causes of the plaintiff’s symptoms and disability, in my opinion this does not detract from the injury sustained to the plaintiff’s lumbar spine as being a significant cause of those symptoms and disabilities, and I am satisfied that this is so.
54 Further, I am satisfied, given the duration of the condition and the medical evidence to which I have referred, that the plaintiff’s impairment is likely to persist at its current level for the foreseeable future.
Findings as to the Plaintiff’s Credibility
(i) The Plaintiff’s Viva Voce Evidence
55 It is clear that the plaintiff had difficulty in coping with the task required of her in giving evidence whilst under cross-examination. Her evidence at Transcript page 34, in which she gave conflicting evidence that she initially said that her difficulties with walking and climbing stairs ceased after the accident; when seen in the context of the evidence given by her immediately before this statement that she was not having difficulty climbing stairs in the few months leading up to the accident, clearly establishes that fact.
56 I accept the defendant’s submission that the plaintiff sometimes gave non responsive answers and that she had a tendency to argue the point. Having had the opportunity of observing the plaintiff give her evidence however, it was my impression that the plaintiff did not seek to deliberately prevaricate; but rather that it was likely that, by reason of a combination of;
• cultural factors; • the fact that English is not her first language; • her level of education and her personality; that the plaintiff had difficulty processing the content of questions she was being asked and coping with the discipline of answering questions relevantly and succinctly.
(ii) The Plaintiff’s Challenge as to the Histories Attributed to her by Associate Professor O’Brien
57 It is put on behalf of the defendant that the plaintiff made statements to Associate Professor O’Brien that her condition was improving, which she now denies, and that this tells adversely against her reliability and credibility.
58 I note that when the plaintiff presented to Associate Professor O’Brien on 11 August 2005, she reported:
ƒ Ongoing pain in the suprapubic region and also pain in the
sacrococcygeal area;
ƒ That she developed more severe pain across the low-back and
particularly on the left side when she walked;
ƒ That her symptoms were satisfactory at night and that she was able to
sleep.
59 When she presented to Associate Professor O’Brien on 11 October 2005, she complained of:
ƒ pain and burning in the suprapubic region; ƒ pain in the coccygeal region and across her low-back at the sacroiliac level, and she reported that her pubic pain was aggravated by tight clothing and her low-back pain was aggravated by walking and also by bending, twisting and lifting; ƒ that she was experiencing intermittent cramps in both her legs and had symptoms of some pain spreading into her buttocks and her upper thigh on the left; ƒ that she was taking Mobic for right heel pain and this helped with her back pain and that because of the severity of her pain, she was, on some days, unable to do any significant activity.
60 In my opinion, given the extent of these complaints and the modest nature of her improvement as evidenced by those complaints, the fact that the plaintiff may some years later recall her presentation as involving no improvement, is hardly a telling point against her
61 When I take into account:
(i)
the comment by Associate Professor O’Brien that as at 17 August 2006 the plaintiff felt that there “may have been some minor improvement in her pain over the last six months”;
(ii)
the comment by Associate Professor O’Brien in his report of 9 January 2007 that he required a review in six or twelve months before he was able to give a conclusive assessment as to her progress;[49]
[49] The tone in both statements by Associate Professor O’Brien is hardly one which was recording substantial improvement
I am not persuaded that any inconsistency which might exist between the plaintiff’s evidence as to her recollection of conversations between herself and Associate Professor O’Brien which occurred some years ago; and the actual content of those conversations insofar as they reported any improvement in
the plaintiff’s condition; is such that I should either:
ƒ draw an adverse inference as to the plaintiff’s credit; or ƒ not be satisfied as to the ongoing relationship between the aggravation of the plaintiff’s injuries which occurred by reason of the accident and her present condition. (iii) The Material the Subject of the Work Injury
62 In an affidavit filed in support of the work injury which the plaintiff swore on 6 April 2000, she deposed to the fact that she suffered from severe pain in her neck, back, right arm, right hand and both legs; that she believed that that pain would remain with her for the rest of her life; that she was limited in the ability to walk, to sit for long periods of time, to perform general housework, and to drive her car; and that her symptoms were such that they precluded her from returning to her pre-injury duties.[50]
[50] Joint Court Book (“JCB”) 159-161
63 On 20 June 2000, some nine weeks after swearing her affidavit, the plaintiff was examined by Mr Ian Jones, an orthopaedic surgeon, to whom she provided a history:
ƒ that she suffered from slight back pain which required her to exercise care when she moved or dressed and was exacerbated by activities such as twisting or mopping or sweeping; ƒ that she was restricted in her ability to stand for more than ten minutes or so and that she had difficulty when getting up from a seated position after sitting for any length of time; ƒ that she suffered from intermittent symptoms of neck stiffness.
64 In his report as the result of this consultation, Mr Jones opined:
ƒ that the plaintiff’s outlook for her neck was good; ƒ that the plaintiff would continue to experience minor recurrent episodes of backache given evidence of the presence of a slight disc disruption at the L4-5 level.
65 I accept that there is an inconsistency between the description by the plaintiff in her affidavit of 6 March 2000 as to the ongoing severity of the symptoms associated with the injury occasioned in the course of her employment with Container Packaging Pty Ltd, and the symptoms described by the plaintiff to Mr Ian Jones in his report of 20 June 2000.
66 Whether the inconsistency should be interpreted as being telling against the plaintiff’s credit however, is difficult to gauge.
67 If the inconsistency arose by reason of a deliberate intention on the part of the plaintiff to exaggerate the severity of her symptoms for the purpose of advancing her case, it is difficult to understand the motivation for the plaintiff in minimising her symptoms when giving a history to Mr Jones who was examining her on behalf of her employer.
68 For this reason, I am not persuaded that the presence of the inconsistency between the symptoms described by the plaintiff in her affidavit of 6 March 2000 and those described by her to Mr Ian Jones in 20 June 2000 calls into question the plaintiff’s credibility. I am satisfied however that this evidence raises an issue as to the plaintiff’s reliability as an historian; and that I should bear this in mind when making findings as to the seriousness of the consequences associated with the aggravation suffered by the plaintiff of her underlying condition by reason of the accident.
69 Approaching my analysis of the evidence adduced as to the consequences to the plaintiff of the aggravation of her pre-existing back condition on the basis that I should not necessarily accept her evidence at face value, I was particularly impressed by the evidence given in support of the plaintiff by her daughter.
70 I had no reason to doubt the reliability of Mrs Barun as a witness. I was impressed both by the balance in the evidence which she gave and her readiness to make appropriate concessions in cross-examination. In providing her evidence, Ms Barun became visibly upset as she described the effect which the accident had had upon her mother and the difference in the physical capacity of her mother after the accident when compared with that which pertained prior to the accident. Her reaction in this regard left me in no doubt as to the significance of the change in her mother’s capacities which Mrs Buran believed that the accident had initiated. I have no hesitation in accepting her evidence in this regard and I am satisfied that this evidence substantially underpins that of the plaintiff.
The Plaintiff’s Claim under paragraph (c) of the definition of “Serious Injury” in
Section 93(17)71 In this application, very little emphasis was placed upon the emotional consequences of the accident upon the plaintiff. Whilst there is evidence to support the fact that the plaintiff suffers from a mild adjustment disorder I am of the opinion that this condition could in no way be described as being severe for the following reasons;
(i)
The medical practitioners who have opined upon the condition, namely Dr Kaplan and Dr Epstein, fail to classify it as a severe psychological condition;
ƒ
Dr Epstein in his report of 5 September 2007 described the plaintiff as presenting with a mild adjustment disorder with depressed mood and commented:
“She appears to be coping well with the situation and there
seems to be no requirement for any specific treatment.”[51]
ƒ Dr Kaplan opined that the plaintiff had developed an adjustment disorder with mixed anxiety and depressed mood and noted that whilst the plaintiff’s presentation was largely determined by her physical condition, her psychiatric condition has had a significant impact upon her ability to engage in social activity. (ii) The plaintiff’s description as to the consequences of that condition which are set out primarily in her second affidavit, whilst in my opinion might be appropriately described as bordering on significant, fall well short of those which could be appropriately described as being severe.
[51] JCB 78
Conclusion
72 The task which I am required to perform in an application of this nature is a difficult one. It requires me to determine whether the aggravation of the plaintiff’s pre-existing condition is such that it can be said to give rise to a serious long term impairment of body function. This in turn requires me to analyse the extent of the impairment of the plaintiff’s lumbar spine both before and after the accident for the purpose of evaluating the additional impairment which has been caused by the accident.[52]
[52] See Guppy v Victorian WorkCover Authority & Anor [2010] VSCA 164 (25 June 2010); Petkovski v Galletti [1994] 1 VR 436
73 In this respect I must:
(i) Be satisfied that the plaintiff has established that the consequences to her of the accident related aggravation of her low back condition, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than significant or marked and as being at least very considerable; (ii) Assess the consequences in terms of pain and suffering which the accident has occasioned to the plaintiff and determine where the facts of this case sit in the broad spectrum of cases. 74 The task which I am required to undertake has been described as involving “a value judgment, in which matters of fact and degree, and of impression, are operative,”[53] and one in which I am required to take into account –
“… not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to some extent, by what is retained.”[54]
[53] Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
[54] Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260
75 Having considered all the evidence, I am satisfied:
(i)
That the plaintiff was, prior to the accident, suffering from ongoing but intermittent symptoms of spinal pain which did not:
ƒ require her to employ medication or seek medical treatment; ƒ limit her activity to engage in relatively strenuous play with her
grandchildren;
ƒ prevent her from carrying out her domestic duties (although she was required to pace herself in the performance of those duties to accommodate symptoms of back pain); ƒ prevent her from, with her sister, providing the support which her
mother required;ƒ limit her ability to engage in her leisure activities which involved primarily attending bingo on a regular basis but included attending Croatian dinner dances and walking with her sister. (ii) That the plaintiff presents as a simple woman with simple and basic interests which revolved around her family.
(iii) That the performance of the activities which I have listed above occupied most of the plaintiff’s time prior to the accident and that it was through the mix of these activities, and most particularly her involvement with her grandchildren, that the plaintiff derived great pleasure, gained a the point of reference for her life.
(iv) That the effect of the injury to the plaintiff’s lumbar spine occasioned in the accident; involving as it did an aggravation of a pre-existing mildly symptomatic degenerative condition in the spine; has been to alter the plaintiff’s position from one in which she was able to engage in each of the activities to which I have referred without significant restriction prior to the accident, to one in which her ability to engage in these activities is now greatly restricted if not precluded.
(v) That the plaintiff has developed an adjustment disorder the consequences of which I take into account in accordance with the decision of the court of appeal in Richards v Wylie.[55]
[55] (2000) 1 VR 79
76 In these circumstances, I am satisfied that the effect of the accident has been to occasion upon the plaintiff an impairment, the consequences of which are appropriately described as being more than significant or marked and as being at least very considerable when judged by comparison with other cases in the range of possible impairments.
77 For the reasons expressed above, I consider the plaintiff is entitled to the leave which she seeks in this application.
78 I will hear the parties as to the precise order which should be made in the application and as to any orders which should be made as to costs.
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