Macleod v Transport Accident Commission
[2017] VCC 757
•30 June 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-16-03913
| AREZZO MACLEOD | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 and 2 June 2017 | |
DATE OF JUDGMENT: | 30 June 2017 | |
CASE MAY BE CITED AS: | Macleod v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 757 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – neck injury – whether the consequences meet the statutory test of seriousness – credit
Legislation Cited: Transport Accident Act 1986
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Humphries & Anor v Poljak [1992] 2 VR 129
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D J N Purcell with Mr M Fogarty | Slater & Gordon Ltd |
| For the Defendant | Mr P A Scanlon QC with Ms J L Clark | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1 The plaintiff is a fifty-two-year-old woman who was injured in a transport accident which occurred on 9 October 2011. She was a passenger in the front seat of a stationary motor vehicle which was struck from behind by another motor vehicle with great force.
2 The plaintiff contends that she has suffered a neck injury which constitutes a serious long-term impairment or loss of the function of her neck.
3 Mr D Purcell appeared with Mr M Fogarty of Counsel for the plaintiff. Mr P Scanlon QC appeared with Ms J Clark of counsel for the defendant.
The Plaintiff’s background
4 The plaintiff migrated to Australia with her family in 1980. She completed her secondary education, after which she commenced a science degree which she did not complete. She worked in various jobs including casual work with the retail store, Myer. The only other qualification she obtained prior to the transport accident was a three-month course in web design and business management which led her to commence a business in web design and graphic design in about August 2011.
The transport accident and the Plaintiff’s medical treatment
5 There was nothing controversial about the plaintiff’s medical treatment. Counsel focused on a number of issues which I will summarise below, both Counsel accepting that the diagnoses and prognoses of the injuries made by treating and medico-legal consultants were also not controversial.
6 I propose, therefore, to summarise the plaintiff’s medical treatment consistently with the manner in which Counsel dealt with the same.
7 Following the transport accident, the plaintiff was taken to The Alfred hospital where she was kept overnight. A CT scan was performed of her head and neck. It would appear that a view was taken that she was fit to be discharged from the hospital the following day with advice to use anti-inflammatory medication for pain relief.
8 One of the medical practitioners who treated the plaintiff early on and at The Alfred hospital was Dr Hwang, neurosurgeon, who provided a report to the plaintiff’s general practitioner, Dr Silvana Puzsar, dated 13 August 2012. Dr Hwang referred to an MRI scan taken on 30 November 2011 which, in his opinion, showed only mild cervical disc degenerative changes at C3-4, C4-5 and C6-7. He considered that there were no neurological abnormalities of a kind requiring any further treatment from him, so he discharged her from his care. He did not provide a diagnosis of the plaintiff’s injury.[1]
[1]Plaintiff’s Court Book (“PCB”) 52
9 The principal medical practitioner who treated the plaintiff from early on is Dr Puzsar. The plaintiff first attended Dr Puzsar’s clinic on 20 October 2011. In her report dated 15 October 2012,[2] she recorded the occurrence of the transport accident in graphic terms. The plaintiff told her that the impact on her neck was like being hit with a cricket bat. She was complaining of pain and stiffness in her neck, pressure headaches, and pain radiating down the side of her neck into her right arm, with paraesthesia and tingling in her second, third and fourth fingers on her right hand.
[2]PCB 18-22
10 Dr Puzsar referred the plaintiff to Dr Lewis, rheumatologist, who saw the plaintiff on one occasion on 5 December 2012. Dr Lewis diagnosed that plaintiff had suffered a soft tissue injury to her neck with features consistent with fibromyalgia.[3]
[3]PCB 55-57
11 According to Dr Puzsar, the plaintiff was prescribed Endep, and later Cymbalta. The plaintiff ceased using Endep because it caused drowsiness. The Cymbalta was prescribed to treat both chronic pain and depression.
12 There was a break in the plaintiff’s treatment when she moved to Perth in June 2013 to study a course in migration law. She returned to Melbourne in January 2014, after which she returned to the care of Dr Puzsar.[4] It was at this time that she was referred to a myotherapist, a clinical psychologist and a physiotherapist. She also resumed the use of Cymbalta.
[4]PCB 23-26
13 Through 2014 and up to the present time, the plaintiff has complained to Dr Puzsar of “… chronic persistent neck pain and bilateral arm pain, and occipital headaches. The pain is aggravated by moderate physical duties of lifting, pushing or pulling. …”[5]. In addition, the plaintiff complained of interference with her capacity to work and to engage in social, recreational and domestic activities.
[5]PCB 24
14 The plaintiff is no longer having any active medical treatment. What treatment she has is self-regulated administration of over-the-counter medication. Dr Puzsar referred to the plaintiff using analgesics and anti-inflammatory tablet medication and a Nurofen gel and Tiger Balm. The plaintiff described using only analgesics at present.
15 Despite the references by Dr Puzsar in the body of her second report to evidence of a secondary psychological-psychiatric condition, she provided a subsequent report in which she described the fibromyalgia as relating to an underlying organic condition being a musculoskeletal injury with secondary central sensitisation.[6]
[6]PCB 27
16 Dr Puzsar considered that the plaintiff had suffered a musculoskeletal injury to her cervical spine with exacerbation of facet joint arthrosis and the development of secondary fibromyalgia. It is a diagnosis which the defendant accepted. The defendant disavowed any reliance upon the authorities relevant to how I am to treat an injury which is an aggravation,[7] or that any unravelling of the consequences of the physical injury from the secondary psychological-psychiatric injury needed to be undertaken.[8]
[7]Petkovski v Galletti [1994] 1 VR 436
[8]Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605
17 Essentially, the other medical opinions are consistent with the diagnosis made by Dr Puzsar, and her opinion of the interference which the plaintiff’s injury is likely to have with her capacity to engage in work and social, recreational and domestic activities.[9]
[9]Dr Sedal, neurologist, at PCB 69-70 and 71; Mr King, orthopaedic surgeon, at PCB 94 and 96; Mr O'Brien, orthopaedic surgeon, at PCB 101-102; Professor Davis, neurologist, at PCB 107-108, and from the Defendant's Court Book, Dr Elder, occupational physician, at DCB 4-5, and Dr Powell, orthopaedic surgeon, at DCB 32-34
18 Essentially, the preponderant view of the medical practitioners who have treated the plaintiff, or have examined her on a medico-legal basis, do not doubt that she suffered an injury to her neck nor that the injury has, is and will interfere with her capacity to work and engage in social, recreational and domestic activities.
19 Professor Davis turned his attention to the complaints of the plaintiff of numbness in both of her hands which she experiences each morning. He was armed with nerve conduction studies which showed no electrophysiological evidence to support a diagnosis of carpal tunnel syndrome in either limb, but nonetheless, he considered that the limb pain was due to the plaintiff’s work and not a result of the transport accident. This is an area within the special interest of neurology. There is no strong opinion to the contrary, so I accept Professor Davis’ opinion of the relationship between the plaintiff’s limb pain and her neck injury.
The Plaintiff’s evidence
20 The plaintiff worked as a casual employee at Myer immediately prior to the transport accident. She was absent from that employment for a few days before returning. She suffered the onset of an infection which made her quite unwell. It would appear that the combination of the consequences of the infection and her neck injury were responsible for Myer reducing her shifts. She was not given a shift for about four or five months, and it would appear that it was not long before her employment with Myer ceased altogether.
21 After completing the migration law course in Perth, it would appear that the plaintiff was unemployed until late 2015, when she undertook some volunteer work and then casual cleaning work with a firm known as Bluegum.
22 The plaintiff’s evidence of the work she is currently doing, and the work she says she could do, consumed the larger proportion of the cross-examination of her. It also constituted the platform from which the defendant submitted that if the plaintiff is capable of full-time work, then that must impact upon my impression of whether the consequences contended for by the plaintiff can meet the statutory test of seriousness.
23 The plaintiff conceded that she has a capacity for full-time work in sales, but notwithstanding that, she submitted that the neck injury has consequences which are serious.
24 I will now turn to the plaintiff’s evidence of the work she did with Bluegum, and her subsequent work.
25 The plaintiff worked through Bluegum as a cleaner from about December 2015 until before Easter 2016. She worked about 3.5 hours per day, five days per week, earning about $21 per hour.
26 The plaintiff then obtained work through an internet network site known as Airtasker from Easter 2016. The plaintiff advertised on Airtasker that she had the capacity to undertake a variety of work including cleaning. As a result of that advertising, she obtained work as a cleaner. Whatever she earned was paid to Airtasker, which took a percentage commission[10] and then remitted the balance to her.[11]
[10]The plaintiff’s initial evidence is that Airtasker claimed a 30 per cent commission (Transcript 29); however, during further cross-examination, the plaintiff corrected this claim, confirming that Airtasker claim a 15 per cent commission (Transcript 69).
[11]Transcript 29
27 The plaintiff continued her association with Airtasker for a few months before operating through her own business. It would appear that some of the persons for whom she undertook work had previously engaged her through Airtasker. The benefit to her in setting up her own business was that she avoided paying commission to Airtasker.[12]
[12]Transcript 32
28 The evidence that was ultimately adduced under cross-examination regarding the cleaning work which the plaintiff has undertaken through her own business was not disclosed in her affidavits. It was adduced in a most unsatisfactory way.
29 The plaintiff did not disclose the names and addresses of her clients, nor the income she derived from doing work for those clients. At the conclusion of the first day of hearing, a call was made by the defendant for the plaintiff to produce all of her financial documents relevant to the work she undertook in her business and the income which she derived through the business. She said that she had invoices and other documents which she could produce the following day, and from what she said, I was left with the strong impression that she had a body of documents which would clearly demonstrate her client base, hours of work and income earned.[13]
[13]Transcript 35, 53-56, and 59-61
30 What was produced was a folder containing 22 invoices relevant to some of her clients and “miscellaneous documents” which contained an A3 page on which the plaintiff had written extracts from an Excel spreadsheet said to demonstrate the cleaning work she did for various clients and the dates upon which she undertook that work.[14]
[14]Exhibit 4
31 At the commencement of the cross-examination on the subject of the plaintiff’s own business activity, she said that she was working an average of 10 to 11 hours per week.[15] She identified the following as the cleaning work she presently undertakes:
[15]Transcript 23
an office in Malvern Road, Malvern –
1.5 to 2 hours per week[16]
·an office in Molong Street, Highett – 2 hours per fortnight[17]
·Blue Plumbing – 1 to 1.5 hours per week[18]
·Lygon Street, Caulfield East – 1.5 hours per week[19]
·premises at Castlewood Street, Bentleigh East – 4 hours per fortnight[20]
·premises at Barkly Street, Elwood – 2 hours per week.[21]
[16]Transcript 23
[17]Transcript 24
[18]Transcript 24-25
[19]Transcript 25-26
[20]Transcript 33
[21]Transcript 33-34
32 The plaintiff estimated that she was probably earning about $300 gross per week, although, when she was pressed, she said she was unsure about what she earned.[22]
[22]Transcript 54
33 What the plaintiff produced on the second day of hearing was nowhere near the volume of documents that she said she had in her possession covering the period over which she has worked as a cleaner through her businesses. The folder that was produced contained only 22 invoices, the A3 page I referred to earlier, and miscellaneous documents.
34 It must have occurred to the plaintiff that in order to prove that she has suffered a serious injury it would be necessary for her to prove, among other things, that she had suffered a pecuniary disadvantage.[23] Her failure to adduce evidence of her cleaning work through her business has left me in some serious doubt about the volume of cleaning work the plaintiff has undertaken and the income she has earned from that activity.
[23]Humphries & Anor v Poljak [1992] 2 VR 129 at 140
35 The plaintiff could not explain why she did not disclose all of her business activities in her affidavits, and why she said she had documents proving that she was earning a relatively modest income, when in fact when she bothered to look for her records, she was only able to disclose very few documents which were barely edifying.
36 In the end, what I am left with is the plaintiff’s oral evidence that she is working 10 to 11 hours per week and earning about $300 gross per week in work which she finds difficult. The defendant made a telling point under cross-examination that if the plaintiff does not have invoices and other relevant financial records, then it simply is not possible for her to give an accurate picture of not only the work she has undertaken, but the income earned.
37 Despite my misgivings about the plaintiff’s evidence regarding her present work activities, she conceded on a number of occasions that if she were offered work at Myer selling “ladies wear”, then she would be able to undertake that work full time, and if she were placed in the “homewares section”, she would be able to do that work “to some extent but not fully”.[24]
[24]Transcript 77-78 and also 46, 47 and 62
38 I do not have any doubt that cleaning work is arduous work. Although the plaintiff did not give any direct evidence of the tasks she performs for her clients, I infer that it probably involved, among other things, sweeping, dusting, vacuuming and rubbish removal over an hour to 2 hours of time. These tasks would almost inevitably place strain on the plaintiff’s neck. On her evidence, she has been able to tolerate that reasonably well for 10 to11 hours per week, and would be able to tolerate whatever strain she suffered on her neck if she obtained full-time employment with Myer in the lighter sales work.
39 In addition to the foregoing evidence, the defendant showed film taken on 10 January 2017, 29 March 2017 and 5 April 2017. The films were provided by the defendant to the plaintiff’s solicitors prior to the hearing. The plaintiff said that she had seen the films before they were shown to her in Court.
40 The film taken on 10 January 2017 was very short. At 2.14pm, the plaintiff was seen emptying bags into a wheelie bin.
41 The film taken on 29 March 2017 showed the plaintiff doing the following:
·At 9.00am, pulling a wheelie bin to the front nature strip.
·At 10.42am, driving an SUV motor vehicle.
·At 10.58am, at the rear of an SUV motor vehicle with a towel over her arm, and it later showed her bending into the passenger-side of the motor vehicle.
·At 1.50pm, she was again at the rear of the SUV motor vehicle carrying a pole and handling what appeared to be cleaning equipment and what appeared to be a vacuum cleaner.
42 The film taken on 5 April 2017 showed the plaintiff doing the following:
·At 10.36am, standing for some minutes with a dog on a leash near a nature strip.
·At 10.38am, going down onto her haunches, and later bent over reaching to the ground on two occasions.
·Between 10.40am and 10.47am, she walked a dog on a leash.
·At 10.47am, she carried the dog (a small dog) down steps to a beach, and then walked along the beach for some minutes.
·At 11.01am, she was seen walking along a street towards a house, and probably her domestic premises.
43 The films were not shown to any medical practitioners; however, I do not think any of the medical practitioners who have undertaken a physical examination of the plaintiff would have been surprised by anything shown in the films. What the films do is to demonstrate that the plaintiff is able to drive a motor vehicle to and from places where she undertakes cleaning work, and is otherwise able to move her upper body and arms with confidence and with some freedom.[25]
[25]The cross-examination of the plaintiff about the content of the film was undertaken through a report, presumably from an investigator, which the plaintiff was also provided. The cross-examination was at Transcript 50-63
44 Under cross-examination, the plaintiff admitted that she picked up visitors in a motor vehicle who engaged her through Airtasker, drove them to the Yarra Valley, and returned them to where she picked them up. Under further cross-examination, she agreed that she does her own shopping, can drive a motor vehicle, goes for walks to the beach, but not often, and rides a pushbike, but not for long. She denied that she can use her home gym equipment. She denied that she is able to do her house cleaning at the present time because of tiredness.[26]
[26]Transcript 49
45 The defendant produced three lever arch folders of documents which the plaintiff identified as an accurate representation of the degree of her activity on Facebook.[27] The plaintiff did not quarrel with the defendant’s estimation that what was contained in the folders were something around 2000 pages. The plaintiff conceded that she is on Facebook every day through a computer, phone and/or a tablet.
[27]Exhibit 2
46 There was no issue that the plaintiff is not having any active medical treatment. Under cross-examination, she said that she uses over-the-counter medication which she described as Panadol, paracetamol and a medication known as Advil. Whether she takes the medication depends upon the severity she is experiencing. She said that she “definitely” would take that medication twice a week and sometimes more.[28] Under re-examination, the plaintiff said that she sometimes takes medication three times a week, and when the pain is severe, she would probably take six to eight tablets. The plaintiff did not say how often she has severe pain, so there is no evidence that it is a frequent or infrequent occurrence.
[28]Transcript 62
47 It was on the basis of the defendant’s attack on the plaintiff’s case that I could not be satisfied that if the plaintiff is able to work as a cleaner; could work full-time in sales; is having no medical treatment; is only taking over-the-counter medication; is able to use a computer, phone and tablet to access Facebook on the internet every day, and is able to engage in recreational activities such as going for a walk with her dog along the beach without apparent restriction, that when a comparison is made with other cases and like impairments, that I could not be satisfied that the plaintiff has suffered a “serious injury”.
48 The plaintiff referred to the consequences set out in her affidavits, submitting that even if she can work in her present occupation and full-time in sales, that there are consequences which nonetheless are consistent with her having suffered a serious injury.
49 Under paragraph 27 of the plaintiff’s first affidavit, the draftsman of the affidavit set out the plaintiff’s “Symptoms and Conditions” something akin to the pleading of injuries in a statement of claim. It is not a practice which is to be condoned. In other parts of the plaintiff’s affidavits, she describes the consequences, which I will summarise as follows:[29]
[29]PCB 7-8, and 12-14
·Constant discomfort and pain in her neck, and neck and shoulder stiffness.
·Feeling worn down by her physical pain.
·Daily headaches, which vary in severity.
·Needing over-the-counter medication up to three times per week, and up to six to eight tablets when the pain is severe.
·Difficulty cooking, cleaning and caring for her daughter and, in particular, undertaking heavier domestic tasks cleaning the bathroom, mopping and vacuuming.
·Interference with the enjoyment of walking, running and cycling.
·Difficulty reading and sitting for long periods of time at a computer.
·Waking with stiffness in her neck.
·Worsening pain after physical activity.
·Difficulty driving, with a limitation of driving for more than 30 to 40 minutes and needing breaks when driving for longer periods.
·Interference with the enjoyment of painting, photography and other visual work.
50 It was on this basis that the plaintiff submitted that constant pain, the need for medication, the interference with social, domestic and recreational activities, the inability to work full-time as a cleaner, and the limitations on the plaintiff’s capacity to work in sales, are consequences which measure up favourably with other cases of like impairments, and that I could be satisfied that the plaintiff suffered a serious injury.
51 There are now many decisions of the Court of Appeal in which references are made to the sort of consequences which are likely to substantiate a finding of serious injury, if they are present. I do not propose to refer to any of those decisions because they are well known, but I have approached the determination of this application by having regard them.
52 The presence of pain, the need for medication, interference with the plaintiff’s capacity to work as a cleaner and in some sales work, and the interference with her capacity to engage in social, domestic and recreational activities are factors which are often seen in applications of this kind which may be within the range of what is contemplated by serious injury.
53 However, the pain which the plaintiff experiences is not of such gravity that it prevents her from undertaking cleaning work, and as I have observed already, cleaning work, by its very nature, is arduous work. This factor needs to be seen in the context of the plaintiff’s evidence that she could work full time, and indeed, wants to work full time with Myer in sales of ladies wear.
54 It is clear that the plaintiff underwent quite a bit of medical treatment early on, but since about 2012, she has had medical treatment which can only be described as modest, and needing no greater symptomatic treatment than the intermittent resort to over-the-counter medication in an average week.
55 The plaintiff’s evidence is not that she has been deprived of all of the social, domestic and recreational activities which were part of her life beforehand. My impression, in an overall sense, from the cross-examination, re-examination and consideration of her affidavits and the medical reports, is that the neck injury interferes with her capacity to engage those activities to some degree.
56 The conclusion I have reached is that when I consider the whole of the evidence, and the consequences contended for by the plaintiff, I am not satisfied that the interference with her capacity to work and in the social, domestic and recreational activities she describes are, to use the well-worn words of interpretation in Humphries, more than significant or marked, and therefore, I am not satisfied that the consequences contended for by the plaintiff meet the statutory test of seriousness.
57 I should add that I have some doubts about the plaintiff’s creditworthiness and reliability. That springs from the very unsatisfactory nature of the plaintiff’s evidence about her cleaning work through her business and the income she earned from that activity. I am far from convinced that the evidence she ultimately gave paints an accurate picture of the hours she works and the income she earns.
58 I think that the plaintiff had not given the thought to her application that she should have and was seriously underprepared which resulted in the serious difficulty regarding what her cleaning work activity amounts to. However, and having said that, my overall impression of the plaintiff stemming from this issue is that she is an unreliable witness whose evidence I have treated with some caution in accepting the extent to which she says the consequences contended for by her are as significant as she says they are.
59 It is for these reasons that I conclude that the plaintiff has not discharged the onus which she bears to satisfy me on the balance of probabilities that the consequences for which she contends satisfy the statutory test of seriousness. I have reached the conclusion after making the comparison with like cases in impairments as I am required to do.
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