Mahoney v Transport Accident Commission
[2021] VCC 495
•18 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-03366
| JANINE MAREE MAHONEY | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25, 26 and 29 March (via Zoom hearing) | |
DATE OF JUDGMENT: | 18 May 2021 | |
CASE MAY BE CITED AS: | Mahoney v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 495 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – injury to the spine – co-existing conditions – credit of the plaintiff – deficient affidavit
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Siddel-Whipp v Transport Accident Commission [2020] VSCA 109; Humphries & Anor v Poljak [1992] 2 VR 124; Johns v Oaktech Pty Ltd [2020] VSCA 10; Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Winneke QC with Ms K Manning | Henry Carus & Associates |
| For the Defendant | Mr P B Jens QC with Ms J Clark | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Preliminary - the nature of this application
1This is a “serious injury” application brought pursuant to s93 of the TransportAccident Act 1986 (“the Act”). The legal principles in respect to such an application are well known and do not need to be repeated. It is an application commenced by Originating Motion with supporting affidavit. It was conducted in the ‘usual way’, as has been observed in the context of similar applications[1] to mean that the plaintiff’s evidence was not led viva voce, but rather was contained in affidavits, before cross-examination and re-examination.
[1] Siddel-Whipp v Transport Accident Commission [2020] VSCA 109 at paragraph 89
2Anyone familiar with the “serious injury” process, will know that the affidavit of the plaintiff is a critical document.
3In this application, the plaintiff relies on two affidavits. The first affidavit was sworn by her on 17 February 2020 (“the first affidavit”).[2] The second affidavit was sworn by her on 16 February 2021 (“the second affidavit”).[3]
[2] Plaintiff’s Court Book (“PCB”) 15
[3] PCB 21
4Consistent with the usual practice, the plaintiff was the only witness required for cross-examination. The parties otherwise tendered medical reports, medical records and other relevant documents. I have taken all of the oral and tendered evidence including transcript into account but I only refer to it to the extent necessary in these reasons.
5The plaintiff was represented by Mr C Winneke QC and Ms K Manning of counsel. Through her counsel, the plaintiff submitted that because of a motor vehicle accident, she had suffered a “serious injury” within the meaning of s93(a) of the Act, namely, injury to the spine. It was submitted that the consequences to her by way of pain and suffering, disability, loss of employment, and loss of employability is “serious”.[4]
[4]Transcript (”T”) 3
6The defendant was represented by Mr P Jens QC and Ms J Clark of counsel. The defendant denies that the plaintiff has suffered a “serious injury”. In support of such denial, the defendant submitted that this application was essentially a factual contest.[5] I agree with that submission.
[5] T169
7The factual contest essentially boils down to whether the plaintiff continues to suffer the consequences (either in respect to pecuniary disadvantage and/or pain and suffering) of an injury to the spine which, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described at least as “very considerable” and certainly more than “significant” or “marked”.[6]
[6] Humphries & Anor v Poljak [1992] 2 VR 124 at 140
8Counsel for both the plaintiff and the defendant provided a written outline of closing submissions, which were of considerable assistance and I acknowledge the effort of counsel to provide detailed submissions. The written submissions were accepted as exhibits, because counsels’ oral submissions were directed to the written submissions. I take into account both the oral and written submissions in the preparation of these reasons.
Background
9The plaintiff, Janine Mahoney, is now fifty-nine years of age. She is a high achiever, with an extensive and impressive career working in the field of family violence. After completing a Bachelor of Arts, majoring in psychology, she moved to work in the field of family violence and homelessness. She married in 1990. She has three children. Her daughters were born in 1990 and 1993. Her son was born in 1995. From approximately mid 1995, she was employed as the Chief Executive Officer (“CEO”) of a charitable organisation, Safe Futures Foundation (“SFF”), which provided accommodation and support for vulnerable women and children exposed to family violence. She continued as the CEO of SFF, including during a period when she went through a difficult marriage breakdown. In 2015, she was a finalist for the Telstra Businesswoman of the Year. In July 2017, after leaving SFF, she travelled to Timor to assist the Timorese Government in the oversight of an election. She is, on any view, an articulate, intelligent and well educated person.
10The plaintiff was involved in a motor vehicle accident on 20 March 2016 (“the accident”). At that date, she was still the CEO of SFF. She had been at a speaking engagement in Shepparton and was driving along the Hume Highway back to Melbourne in the early afternoon when her car was hit by a stolen truck/large van, causing a multi-car pileup, with considerable damage to the cars involved. After the accident, the plaintiff was shaken up and developed symptoms in her neck and back. Soon after, she commenced conservative treatment. I shall come to a more detailed discussion of the injury and medical evidence in due course.
11There is no dispute that the plaintiff was involved in the accident or that it was a major accident. There is no dispute that following the accident, she developed symptoms in her spine. The dispute is whether she continues to suffer such symptoms and, if she does, whether they produce a “very considerable consequence”.
What are the issues in dispute?
12Before dealing with the evidence in detail, it is convenient to set out what I consider to be the issues in this application relevant to the resolution of the factual dispute, as helpfully addressed in both the written and oral submissions. At the conclusion of the evidence, I indicated to the parties that the issues were:
(a) the credit of the plaintiff;
(b) the identification of compensable injury;
(c) the consequences referable to such compensable injury (as distinct to referable from other conditions or injuries from which the plaintiff might suffer); and
(d) the absence of reports from treating medical practitioners.
Was the Plaintiff a reliable witness?
13As has been said many times,[7] in “serious injury” applications, the credit of the plaintiff will often be critical to the resolution of the application.
[7]See as an example Johns v Oaktech Pty Ltd [2020] VSCA 10
14In this application, the credit – or at least the reliability – of the plaintiff is a relevant issue.
15The plaintiff’s reliability as a witness arises because the first affidavit is deficient in respect to several relevant pieces of evidence. The description of the first affidavit as deficient is a statement of fact. The plaintiff herself accepts that the first affidavit is deficient.
16However, counsel for the plaintiff submitted that she should be accepted as a credible witness. Her counsel appropriately acknowledged that the first affidavit is deficient, particularly by failing to accurately set out her work history since the accident. It was submitted on her behalf that on the whole of the evidence, the Court should not be persuaded that her unreliability was such so as to cause the application to fail.
17On the other hand, the defendant submitted that the plaintiff was an unreliable witness and the Court should not accept her evidence in respect to a number of important matters. Defence counsel said in closing address:
“As my learned friend indicated to Your Honour correct, we do submit that the plaintiff's reliability is in issue. And her evidence as to the nature and extent of the pain and restrictions ought to be carefully considered by the court. And we further add to that that, indeed, when it is properly considered, that is the consequences - that it would not satisfy the test.
And we respectfully submit that there has been raised - properly, in our submission - to you some reliability matters of the plaintiff, which have turned out, in our respectful submission, to be significant and require, in our submission, the plaintiff to have some corroboration of matters that she asserts before they ought be accepted.”[8]
[8]T170, Lines (“L”) 19 – T171, L1
18In order to properly analyse the competing submissions in respect to the reliability or credit of the plaintiff, it is necessary to commence with an analysis of the plaintiff’s affidavit material, bearing in mind she accepts that the first of her two affidavits is deficient.
The deficient affidavit
19The first affidavit of the plaintiff was sworn on 17 February 2020.[9] In that affidavit she sets out some matters of history, including that as at the date of the accident she was the CEO of SFF. She describes the accident and the immediate history thereafter. In respect to her employment with SFF, she said that:
“When the Accident happened, I was the Chief Executive Officer of the ‘Safe Futures Foundation’, a charity which I founded. The organisation provided accommodation and support for vulnerable and at risk women and children who had experienced family violence, it employed approximately 45 staff members and managed 70 properties.”[10]
[9]PCB 15
[10]PCB 15, paragraph [8]
20The plaintiff then said that after the accident:
“Due to ongoing pain and restrictions, I developed stress, anxiety and depression. Dr Theresa Chau referred me to Dr Kelly Murray, psychologist, in about early 2017. I saw Dr Murray until about late 2018 for my accident related injuries, as well as the subsequent work-related stresses. Dr Kelly diagnosed that I was experiencing Post Traumatic Stress and provided EMDR psychotherapy treatment.
Although I continued to work after the Accident, I was experiencing difficulties performing my usual work duties. I was having difficulty coping with the physical job demands including extensive travel. This led to significant stress. I felt bullied and pressured by the chairman of the board.
Eventually, I could not cope physically and mentally, so I was forced to resign from my role as CEO of the ‘Safe Futures Foundation’ in about mid-2017.”[11]
[11]PCB 17, paragraphs [21]-[23]
21The plaintiff said, further:
“As a result of my injuries and consequences, I was forced to resign from my Position as CEO of the Safe Futures Foundation. It is devastating that I had to walk away from an organisation that I founded and was extremely passionate about.”[12]
[12]PCB 19, paragraph [47]
22In respect to her unrelated health issues, she said:
“In 2019 I was diagnosed with early stage cancer in my cervix and suspected cancer in my uterus. I underwent a laparoscopic hysterectomy. I am cancer free now but have experienced Post-operative complications involving my bowels and bladder.”[13]
[13]PCB 16, paragraph [11]
23The plaintiff then swore the second affidavit,[14] in which she elaborated on a number of relevant matters and on any view attempted to correct some of the deficiencies in the first affidavit. In particular, in the second affidavit, the plaintiff provides more detail regarding difficulties she was having with SFF at the time of the accident, her employment post SFF and her unrelated medical conditions. Relevantly, in the second affidavit she said:
[14]PCB 21
“Further background:
Further to paragraph 10 of my previous affidavit, I note that it’s more accurate to say that in addition to some stress, I also experienced emotional distress and psychological upset due to my bitter marital breakdown. During this time, I sought psychological counselling. Likewise, I have sought psychological support in the past in relation to a workplace bullying situation (referred to below).
Further to paragraph 11 of my previous affidavit, I note that my post-surgical complications have been difficult and traumatic. As a result of tibial nerve stimulation treatment, my bladder incontinence issues have improved significantly, however, I continue to have bowel incontinence. Likewise, I continue have a post-operative cognitive impairment that effects my concentration and memory. Naturally, this situation has impacted upon my emotional and psychological state.
Further to paragraphs 22, 23 and 47 of my previous affidavit, I note that my resignation as the CEO of Safe Futures Foundation (‘Safe Futures’) came about as a result of a number of issues. I was being bullied by some members of the new Board, I was accused of being a bully and was investigated for misconduct in my role as CEO. Before I resigned, I was attempting to deal with all of these things whilst in physical pain and discomfort caused by the transport accident.
Importantly, I note that the allegations of misconduct and bullying were made about me prior to the transport accident. Until I was injured in the transport accident, I was managing to cope and deal with these unpleasant professional hurdles. However, once I was injured and experiencing daily pain and discomfort, I felt vulnerable. It was in this context that I felt forced to resign. I lost my resolve and resilience to continue pushing on and defending myself. As stated in my previous affidavit, I had to walk away from the charity organisation I had founded and was extremely passionate about.
Thereafter, I managed to make a fresh start at IPP Consulting Pty Ltd (“IPP”). IPP is a technology and security consulting company. In summary, I was employed to work on creating solutions to protect vulnerable and at-risk people. Whilst this work had an overriding objective that was consistent with my life passion (protecting vulnerable people), the work was far less rewarding than my handson work at Safe Futures. I did not enjoy working in the corporate world and my renumeration package was less than my previous role.
Despite being the CEO at Safe Futures, my role was not strictly corporate. I often spent time with women and their children, and would regularly assist with intake, case management and attend court as a support person. As stated in my previous affidavit, the physical demands of the job, in particular, attending numerous off- site meetings, became very difficult for me after the transport accident and this was a factor in my resignation. At IPP, I found sitting at a desk difficult because of the pain in my neck and low back. I was required to alternate from sitting to standing to manage throughout the day. My pain was also very distracting and my productivity was far less than before I was injured
But for a very short term, temporary role in 2019, I have not worked in a paid capacity since my hysterotomy. This procedure left me with ongoing incontinence and cognitive issues (as stated above). In 2019, I set-up a company called Difference By Design in the hope that I could work for myself at my own pace providing advice to charity organisations and the community sector. This did not work out due to my ongoing pain and other medical conditions.”[15]
(sic)
[15]PCB 21-23
24It is immediately clear by comparing the two affidavits that the first affidavit is deficient. It does not properly deal with:
· The plaintiff’s pre-accident relationship with her employer (SFF) and various issues that had arisen between her and some members of the Board, including allegations against her of financial mismanagement and allegations by her of bullying against various board members.
· Her unrelated medical conditions and the significant complications following the cancer diagnosis and hysterectomy, including ongoing incontinence problems.
· Her employment post SFF and the failure to include any reference to the full-time employment with IPP.
Why was the first affidavit deficient?
25As mentioned, it is accepted that the plaintiff’s first affidavit is deficient. The defendant does not put the deficiencies “as high as a sinister approach”.[16] Rather, the defendant says that “it’s not the absolute sinister way that the nature of the conclusion that we’re putting to Your Honour. It’s just the reliability of the fact. And the truth was very different.”[17]
[16]T181, L16
[17]T183, L4-7
26There was no real attempt to provide an explanation for the deficiencies in the first affidavit until re-examination, when the plaintiff was asked questions about the circumstances in which the first affidavit was prepared. After an objection to the evidence being led, the parties agreed that the plaintiff would give evidence on this issue and then be cross-examined about it.
27The thrust of her evidence in re-examination was that her first affidavit was deficient and incomplete because it was drafted by a barrister who, in her opinion, was ill-prepared and she was very disappointed with him. In answer to a question from me as to why she would swear an incomplete affidavit, the plaintiff said that:
Q:“Forget about that. Why swear it then, when you know it's incomplete?---
A:Because I was given advice by him, that this was the important matters, and that some matters that I thought were important he did not, and would not put in and why it was important. And he gave me the guidance that I have to accept, as he's the legal expert, and I'm his clients. But - - -
Q:I understand that. You've got to swear it. You've got to swear that it's accurate?---
A:Well, it was. What – what I put in was accurate. There was nothing in there that was nothing in there that was not accurate. It's what was not put in there that appears to be the problem now. And I was guided by him on what was important to put in the affidavit. But I – I asked Henry Carus that I not ever use that barrister again, post my time with him. And they – the office has notes – a note to say that I requested not to him.”[18]
[18]T142, L3-19
28In response to questions from her counsel, she said she had raised issues with her solicitors regarding her grievances with the (unnamed) barrister and the draft affidavit. Her evidence was that she indicated there were errors and inconsistencies, and she was disappointed with the quality of it. She said:
“I correct his mistakes around - yeah. Things that were errors and didn’t reflect things that I’d told him. I think I added a few things that I told him in relation to what he had put into the affidavit.”[19]
[19]T145, L28 ꟷ T146, L2
29The plaintiff said further:
A:“Because I am not a legal expert in this area of law by any means and I engaged a solicitor who engaged a barrister who I believed guided me on what was important. So he left it out. He had all of the information on my employment. He had my resume and all the details and he didn't seek to put it in the affidavit. So I assumed that – that that was correct. I didn't think – I didn't even think that I would need to add all of the information about other employment, because I provided it all. So, I – yeah.
Q:Did you turn your mind to whether it should be there or not? ---
A:No, I didn't.
Q:Subsequently, you swore another affidavit more recently, and in that affidavit that information is there?---
A:Right.
Q:Can you explain why it's in that affidavit and not in the earlier affidavit?---
A:Because I had a - - -
Q:How did that come about?---
A:I had a new barrister, who was very thorough and went through all of the materials and um, then a new affidavit was done with greater detail. She believed that the previous affidavit did not contain enough detail.”[20]
[20]T146, L8-28
30There was then further cross-examination as to the circumstances surrounding the drafting and swearing of the first affidavit. She agreed that she had told her solicitors there were aspects of the first affidavit that were wrong. There was an amendment done and then she signed it. It was fixed up on the issues that were actually contained in it but not on the things that were left out, as she was unaware of their importance. The plaintiff accepted that there was no reference to the employment with IPP and when asked by Mr Jens QC why she did not correct that, she said:
“I didn't – because of the advice the barrister gave, I had no understanding that it was an important thing to put in the affidavit in the first place. So, I couldn't then think to go put it in, because I didn't get advised by the barrister that it was important.”[21]
[21]T151, L1-6
31Further, it was put to her and she ultimately agreed that the reason the IPP employment was left out of the first affidavit was because at no stage did she tell the solicitors that the barrister had left it out.
32In final address, her counsel submitted that the Court should accept that she is a person who is an honest and decent person, contrary to the submissions of the defendant.[22] The first affidavit was deficient in many respects, not just that because it did not mention IPP.[23] Mr Winneke QC posed the question “Why should the plaintiff be visited with the deficiency of the affidavit?”[24] The defendant did not suggest there was anything sinister about it and so the Court should accept that there should have been a more detailed discussion with the plaintiff at the time that the first affidavit was prepared, she was not a legal expert and had been guided by a barrister in the preparation of that document. Material had simply been overlooked in the first affidavit, at least substantially in part because the initial barrister did not take the time to properly prepare the affidavit. This does not create a reliability issue so as to defeat the application.
[22]T206, L8-10
[23]T207, L23-26
[24] The trite answer to this question is because it was sworn by her as to the truth of it
33Pausing, I find this a most troubling submission. The plaintiff is an articulate and intelligent person, as evidenced by the fact that she was aware of deficiencies and errors in the initial drafting of the first affidavit. She swore to the truth of the affidavit after her own input into the preparation of the first affidavit.
34The first affidavit is now said to be deficient due to incompetent drafting by counsel, but the plaintiff’s evidence on this point was not particularly compelling. Her evidence was that she was disappointed with the barrister and the initial drafting of the first affidavit and she had corrected mistakes in it and added a few things to it[25] before swearing it, but she had not told the barrister about the IPP job.[26] There is no compelling explanation why she did not include the IPP job in the first affidavit. I do not accept that she did not appreciate that the IPP job was important information to put in the affidavit. She swore the first affidavit with full knowledge that the evidence contained in it was incomplete and misleading in several ways and not just by omission of the IPP job.
[25] T145, L24-31
[26] T152, L4
35When the first affidavit is compared with the second affidavit, in the absence of some other explanation, the inescapable conclusion is that the second affidavit is a “construct”[27] that sets out to correct, or fix, the problems caused by the deficiencies in the first.
[27] Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8
36The plaintiff swore to the truth of the first affidavit when she deposed to the accuracy of it. It is wholly unsatisfactory, in my opinion, to attempt during re-examination for the first time to seek to justify how such a misleading and deficient affidavit came into existence.
37Indeed, if I had been asked to do so, I would have been receptive to a submission that it was open to conclude that the first affidavit was deliberately misleading. But that is not the submission made by the defendant. I make this point to highlight the significance that I attach to an assessment of the reliability of the plaintiff’s evidence as a whole, because of the deficiencies in the first affidavit and her unsatisfactory explanation for those deficiencies. I do not accept her explanation that the deficiencies were caused by the barrister who drafted the affidavit. They were caused by her leaving out relevant evidence when swearing to the truth of the affidavit.
38The defendant’s submission is that, for whatever reason, the plaintiff’s evidence is unreliable and as such the Court should not accept her evidence, especially on the critical issue of consequences of compensable injury.
39I accept the submission of the defendant regarding the reliability of the plaintiff.
40The first affidavit is deficient and incomplete in several ways, as already described. Without taking a “sinister” approach to why the affidavit is deficient, there is raised the issue as to her reliability as a witness. This is especially so, in circumstances where there is little or no relevant evidence from treating health practitioners and I am, in effect, being asked to fill in the gaps in the evidence by simply accepting what the plaintiff says on a number of relevant factual matters.
41I conclude that the plaintiff’s evidence is unreliable. Before accepting her evidence it is necessary for there to be objective evidence to corroborate what she says.
42Against that backdrop I now turn to an analysis of the objective evidence of injury, impairment and impairment consequences, commencing with the limited evidence of treating practitioners.
What was the injury suffered by the Plaintiff?
(i) the evidence of treating health practitioners
43There is no dispute that the accident was of some significance, involving several cars and causing the plaintiff’s car to be written off. It is hardly surprising that immediately after the accident she reported pain in various body parts including in her spine.[28] More difficult is getting a handle on what has been the clinical course of those symptoms post the accident, given the limited evidence from treating health practitioners and because I conclude her unreliability is such that her oral evidence does not ‘fill in the gaps’.
[28] PCB 17
44Shortly after the accident, the plaintiff attended a general practitioner, Dr Theresa Chiu. There is no report from Dr Chiu, but some extracts of clinical records were tendered by the plaintiff[29] and also some other extracts were tendered by the defendant.[30] The tendered notes record an initial attendance with Dr Chiu on 21 March 2016. Then at review on 23 June 2016, there is a reference to the plaintiff requesting to see a myotherapist.[31] There is then another attendance for back and neck pain on 22 July 2016, before a few attendances for unrelated matters, including difficulties at work, before the notes cease as at 16 September 2017.
[29] PCB 151-152
[30] Defendant’s Supplementary Court Book (“DSCB”) at pages 3-6
[31] There is no evidence that she did attend a myotherapist
45The plaintiff attended an osteopath, Mr Andrew Lemon, from 4 August 2016.[32] In a report dated 31 October 2019, Mr Lemon records the conservative treatment provided by him. In regard to a diagnosis, he said that the plaintiff “suffered from chronic irritation of the cervicothoracic junction facet joints” and that at the last appointment “Janine demonstrated full capacity for employment”. The last appointment appears, from his notes, to have been on 3 August 2017, when Mr Lemon recorded “was good when was away for break in Timor. ssx came back on when returned to work. Feels that stress are a big part of ssx.”[33]
[32] PCB 52
[33] PCB 156
46Next, the plaintiff attended the general practitioner Dr Zhongyu Yuan. Again, there is no report from that practitioner, but some limited clinical records[34] that suggest an attendance in mid 2019 with a complaint of neck and back pain, but no treatment suggested or implemented.
[34] PCB 174
47After relocating to Queensland in November 2019,[35] the plaintiff began attending Dr Elena Douse as her general practitioner at a clinic in Hope Island, on the Northern Gold Coast. Once again, there is no report from Dr Douse, but various extracts from clinical records were tendered.[36] Those extracts record various referrals for comorbid conditions, namely symptoms of urinary and faecal incontinence which developed post hysterectomy surgery.[37] The notes make no reference at all to the claimed injury to the spine.
[35] T62, L25
[36] Defendant’s Court Book (“DCB”) 29
[37] DCB 46
48In cross-examination, it was put to the plaintiff that at no time has she mentioned her back to Dr Douse. She said she had not.[38]
[38] T68, L 26
49But, in re-examination, she gave contradictory evidence. She said she had, in fact, told Dr Douse about the car accident, the injury to her back and that she was seeing a chiropractor, John Warnock, for her back.[39] She was taken to various clinical entries created by Dr Douse – which do not mention the claimed back injury – and gave evidence she recalled mentioning to Dr Douse on at least some of those attendances the ongoing problems with her back.[40]
[39] T130, L10-18
[40] T133
50I am not persuaded that the plaintiff has mentioned back symptoms to Dr Douse, in circumstances where she is unreliable and there is no report from Dr Douse. But ultimately little may turn on this point. Whatever the truth of the situation, Dr Douse has seen the need to refer the plaintiff for treatment for her other conditions, but at no stage has Dr Douse initiated or suggested any treatment for the spine. At best the evidence of the plaintiff is that Dr Douse has been informed of ongoing symptoms in the spine and is aware of ongoing chiropractic treatment.
51That brings me to the chiropractor Mr Warnock. The plaintiff first attended Mr Warnock on 16 January 2020[41] – that is after she had commenced attending Dr Douse. In a report dated 15 February 2020, Mr Warnock records the plaintiff’s complaint of ongoing neck, shoulder and low back pain. A diagnosis is hard to glean from the report as he mostly uses adjectives and not medical diagnosis. He appears to be treating a “whiplash injury”. He suggested ongoing chiropractic care and that the plaintiff’s condition may stabilise and she “may enjoy a reasonable quality of life”.[42]
[41] PCB 56
[42] PCB 57
52In a further report dated 19 October 2020,[43] Mr Warnock said that he had treated the plaintiff for ten months and that chiropractic care had decreased from two times per week down to once a week. He said she still suffered chronic neck and low back pain but that the severity is slowly reducing.
[43] PCB 58
53That is the extent of any material from treating practitioners.
54The limited material from treating health practitioners is not particularly informative when it comes to the issue of a diagnosis. It reveals that the plaintiff developed symptoms in her spine shortly after the accident, for which she required occasional general practitioner attendances. It is notable in respect to the claimed “seriousness” of the claimed compensable injury that there is no recorded attendance on a general practitioner for spine symptoms since approximately mid 2019. There was an initial referral to the osteopath and, more recently, chiropractic treatment for reported ongoing neck and low back symptoms. Apart from the osteopath, there has been no other specialist referral or investigation for the claimed symptoms in the spine. The plaintiff herself initiated the chiropractic treatment with Mr Warnock. In the last couple of years, there is no suggestion of even an occasional script for painkillers. At best the ongoing treatment is by way of occasional chiropractic care. Whatever the diagnosis, the ongoing treatment is not consistent with “very considerable” impairment consequences from the claimed injury to her spine.
55For completeness, it is stating the obvious to record that the failure to provide reports from relevant treating doctors does not assist in an understanding of the diagnosis or consequences from the claimed injury to the spine. Her unreliable evidence does not overcome that evidentiary deficiency, bearing in mind that she bears the ultimate onus to establish the seriousness of the claimed injury.
(ii) The medico-legal evidence
56The balance of medical material is from medico-legal examiners. To return to a recurring theme, that medical material needs to be assessed through the prism of the reliability of the plaintiff. On any view, some medical examiners have not been provided with an accurate before and after picture.
57The plaintiff was referred for a medico-legal assessment with Associate Professor Bruce Love, orthopaedic surgeon. In a report dated 26 September 2019,[44] Associate Professor Love sets out his history, examination findings and opinions regarding the plaintiff. He failed to obtain a history of the plaintiff’s return to work with IPP or of her co-morbid medical condition. The history taken by him was confined to a note that “[h]er general health is satisfactory, although she does take Thyroxin on a daily basis and has had a hysterectomy”.[45] In respect to an assessment of the plaintiff, Associate Professor Love noted that radiological investigations described changes “most probably constitution[al] in nature”,[46] but that he judged to have “been rendered symptomatic in these regions by virtue of the road traffic accident”.[47] He diagnoses “aggravation of age related degenerative changes of the cervical and lumbar spine”.[48] He took a history of ongoing “significant pain in the lower back, cervical and shoulder girdle region”.[49] He noted that her symptoms were controlled by the regular use of Nurofen. He thought her condition was stable and that her work capacity had been “severely curtailed”.[50]
[44]PCB 69
[45]PCB 71
[46]PCB 71
[47]PCB 71
[48]PCB 72
[49]PCB 72
[50]PCB 74
58The plaintiff was examined by Dr Hazem Akil, neurosurgeon, on 26 October 2020, via Telehealth. In a report of that date,[51] Dr Akil obtained a history that the plaintiff “does not have any past medical history that could be contributory to her current condition”.[52] He obtained a history that she was:
“… in a high skills job. She is a CEO and founder of a charity named Safe Futures foundation that particularly concentrates on family violence.
She took a sick leave in January 2017 and she resigned from her role in March 2017.”[53]
[51]PCB 77
[52]PCB 78
[53]PCB 78
59Dr Akil obtained a history that the plaintiff had undergone “regular review” by her general practitioner while living in Victoria and underwent multiple sessions with an osteopath first, and now with a chiropractor. He diagnosed aggravation of cervical and lumbar spondylosis and concluded that the prognosis was poor.[54] Dr Akil’s report is supportive of the plaintiff’s serious injury application. However, the weight to be given to the report is compromised by the failure to obtain a proper history in respect to the plaintiff’s work, treatment and co-morbid conditions.
[54]PCB 79
60Next, the plaintiff tendered a report from Dr Craig Mills, orthopaedic surgeon. He examined the plaintiff on 27 October 2020, but did not produce his report until 4 January 2021.[55] In respect to the plaintiff’s pre-accident employment with SFF, Dr Mills obtained a history that she was “forced to resign from the role in about June 2017 due to the pain she was suffering as a direct result of the accident”.[56] He obtained a history of current chiropractic treatment and pain in the neck and back. He obtained a history that the plaintiff did not have any alteration in bladder or bowel function as a result of the motor vehicle accident[57] yet, curiously, he does not seem to have obtained a history of the plaintiff’s hysterectomy or incontinence issues associated with that. He did, however, have general practice notes that, at least in part, dealt with that comorbid condition. He obtained a history that the plaintiff was not currently working. He did not get a history of the return to work with IPP. Dr Mills diagnoses a persistent aggravation to cervical spondylosis and a persistent aggravation to lumbar spondylosis and that the injury had a moderate to severe negative impact on personal, domestic and recreational activities.[58]
[55]PCB 107
[56]PCB 110
[57]PCB 111
[58]PCB 113
61The defendant arranged for the plaintiff to be examined by Associate Professor Richard Williams, consultant orthopaedic surgeon. He examined the plaintiff on 10 February 2021. In a report dated 11 February 2021,[59] he obtained a history that the plaintiff worked for approximately twelve months after the accident, before taking two months off work and then resigning. He notes that she then subsequently took a consulting job and left this position in June 2019 and had not worked since then.[60] He does not appear to have obtained a direct history of the plaintiff’s hysterectomy and complications from that, although he was provided with a number of documents which would have alerted him to that condition. He ultimately diagnosed traumatic aggravation of cervical and lumbar spondylosis.[61] In response to questions asked of him, he said:
“7. Whether the transport accident injury or injuries impact on the Plaintiff’s activities of daily living, and social and recreational activities. If so, what is the extent of this incapacity and for what period of time would you expect the Plaintiff to be incapacitated in this regard?
The claimant’s self reported incapacities in this regard are described. I believe these may be to some extent overstated. It is not possible to determine with accuracy to what extent her incapacities exist in these areas however I think it reasonable to accept that she does have some limitation in activity and recreational pursuits as a result of her symptoms. It is unlikely that this will change five years after the motor vehicle accident.
8.Whether any transport accident related injury or injuries impact on the Plaintiff’s ability to engage in work? If so, what is the extent of this incapacity and for what period of time would you expect her to be incapacitated in this regard?
I believe that she will have some limitations in future employment, particularly in terms of prolonged sitting and standing and driving between venues and between her home and workplace. I would not consider this incapacity will alter in the foreseeable future.”[62]
[59]PCB 132
[60]PCB 135
[61]PCB 138
[62]PCB 139
62In summary, most of the medico-legal examiners have been provided with an incomplete history in respect to the plaintiff’s comorbid conditions and in respect to her return to work following the accident. To some extent, the deficiencies in the medico-legal reports mirror the deficiencies in the first affidavit and confirm my conclusion that it is the unreliability of the plaintiff that has caused those deficiencies and not some error of the draft person or the history taker.
63In any event, the objective medical evidence does tend to the conclusion that the plaintiff has had ongoing symptoms in her neck and lower back since the accident. I accept the conclusions in medico-legal reports that the plaintiff has aggravated cervical and lumbar degenerative disease. Notwithstanding my reservations as to the reliability of the plaintiff as a witness, I accept that she has some ongoing fluctuating pain from the injury to her spine.
64It is now necessary to analyse the balance of the evidence to determine if there are impairment consequences from the compensable injury and as to whether those impairment consequences are “very considerable”.
The further analysis of the objective evidence
(a) The Plaintiff’s employment with SFF
65In the second affidavit, the plaintiff sets out her take on the reasons that she left SFF. She said that she had lost her resolve and resilience to continue pushing on and defending herself against bullying and misconduct allegations.[63] The plaintiff expanded on that in her oral evidence. She said that ongoing issues between her and some of the Board members at SFF regarding her accident-related injury was such that those differences had a negative impact on her emotionally.[64] She said that because of the pain she was in, she did not have the resilience to deal with the Board’s investigation of various matters involving her employment.[65] In closing submission, it was said that it was open to the Court to conclude that these difficulties were alluded to in the plaintiff’s resignation email to the Board members, dated 23 February 2017.
[63]PCB 22
[64]T16, L30
[65]T34, L26
66The defendant tendered the plaintiff’s resignation email. It is convenient to set the resignation out in full as follows:
“Dear Board members,
As you are all aware I have been stood down from my role as CEO of the Safe Futures Foundation on the basis of an investigation into financial management. As you are also aware I was guaranteed in writing that my confidentiality and privacy would be protected and that the Board would not discuss the matter with staff. Bernadette has since had my access to emails and the server blocked. Bernadette logged the request on our KMT portal (our IT provider). This portal is open to staff who log their work orders for IT as required. Staff have now seen that my access has been blocked by the Board Chair. As a result I have received calls advising me that it has caused distress for all concerned. The confidentiality and privacy that I was promised has been seriously breached and the impact on my reputation is potentially irreparable. This has occurred whilst I am on personal leave to recover from the physical and emotional ill health that has resulted from ongoing and persistent bullying and harassment from Bernadette, this has now further impacted my wellbeing.
Finally, what was meant to be an impartial and transparent investigation of the finances has apparently been carried out by a member of the board of Doncare who openly said to staff whilst at SFF that he was Doreen's friend.
I have sought independent advice from both an insolvency solicitor and insolvency accountant. In their expert opinion Bernadette's refusal to take our auditors advice to have the true value of SFF's assets recorded on the balance sheet must be viewed as intentionally attempting to incorrectly reflect the organisations financial position. Bernadette has also accused me of fraudulent behaviour in relation to my car allowance. I would yet again like to state that at no time have I ever behaved fraudulently, ‘double dipped’ nor claimed more than I am entitled to. I have provided all relevant paperwork to evidence this and the independent auditor has scrutinised and signed off on the expenditure. I have had a vehicle provided as part of my employee entitlements for over 12 years.
This arrangement is detailed in my contract that was drafted by Tonia, and signed by Bernadette.
In order to try and resolve all these issues as quickly as possible and to avoid ongoing deterioration of my health, I seek that the Board finalise my contract and pay the equivalent of six months of my employment package plus all outstanding entitlements.
I am very distraught that it has come to this as I have worked diligently for the organisation for eighteen years. During this time I have met all strategic objectives and provided a strong voice for our clients and frontline staff.
… .”[66]
[66]DCB 135-136
67In cross-examination, it was put to her that in her resignation email there was no mention whatsoever of any back injury. The plaintiff gave evidence that “Where I – where I’ve talked to physical, that relates to my back injury”.[67] I do not accept the plaintiff’s evidence on that point. A plain reading of the email indicates that her resignation was because of the ongoing conflict and not because of any physical injury suffered in the accident. In closing submission, I suggested to her counsel that the resignation email does not read as if it is related to her physical injury. Mr Winneke, quite candidly, said: “Look, I agree, Your Honour, it doesn’t. It doesn’t read that way.”[68]
[67]T60, L4-5
[68]T204, L12-13
68The objective evidence tends to the conclusion that the plaintiff resigned her employment with SFF because of a longstanding dispute with various Board members.
(b) Her employment with IPP
69As already mentioned, the employment with IPP is not mentioned in the plaintiff’s first affidavit. There is reference to it in the second affidavit, but even then that reference does not appear to be accurate. In the second affidavit, the plaintiff describes that she did not enjoy working in the corporate world with IPP and her remuneration package was less than her previous role.[69] However, the Summary of Taxation Returns[70] provided by her do not support the allegation that the remuneration with IPP was less than her previous role. For the financial year ended 30 June 2018, the plaintiff had gross earnings of $146,666 with IPP. For the financial year ended 30 June 2019, she had gross earnings of $150,985.68. Those years are roughly equivalent or exceed anything that the plaintiff earnt at SFF between 2013 and 2016. The only exception is the year ended 30 June 2017, when the tax summary reveals $169,562 of gross earnings from SFF, but that figure is misleading, as it included the plaintiff’s termination payments when her employment with SFF came to an end.
[69]PCB 22
[70]PCB 149
70The plaintiff’s second affidavit is also vague as to why she left IPP. She describes claimed difficulties with sitting and said that her pain at IPP was “very distracting and my productivity was far less than before I was injured”.[71]
[71]PCB 22
71In cross-examination, it was put to her that she had worked at IPP until effectively she had to take time off for her unrelated medical condition and the hysterectomy that she had in June 2019.[72] She said that she thought she resigned around the time she knew there would be an eight-week recovery from that surgery, but “my back injury was just creating a certain difficulty”.[73] She was asked why she resigned from IPP in July 2019. She said that:
“Because I – I was just unable to do the work that was expected of me. I had been struggling for quite some time. So, the sit stand desk was not working. Walking around the office. I tried doing some work from [home], but it was not what was done then, as it is now. There was travel involved, and it was – it was just too hard.”[74]
[72]T81
[73]T81, L31 ꟷ T82, L32
[74]T82, L5-11
72The plaintiff did not have any medical treatment for her spine in 2018 and 2019. She was cross-examined about that. She was cross-examined about the fact she left IPP to undergo the hysterectomy and complications from that procedure had prevented her from returning to work. The objective evidence tends to support that conclusion, particularly in circumstances where the plaintiff’s affidavit material does not properly deal with how she obtained the job at IPP, what it paid, or why she left there. The objective timeline supports the conclusion that she worked at IPP until she had to cease to undergo the hysterectomy and then she has had the complicated recovery from that procedure. The objective evidence does not support a finding that her back injury was the reason she stopped work at either SFF or IPP, or that it currently prevents her from working.
The Plaintiff’s unrelated medical conditions
73I do not propose to deal with this sensitive topic in detail. Clearly, the plaintiff has had significant complications following her hysterectomy, and that is not a criticism of her. It is a criticism, however, to say that those complications are not properly dealt with in her affidavit material. It is clear the plaintiff has had ongoing problems with urinary and faecal incontinence, for which she has required specialist referral.[75] Clearly, those complications have impacted on her lifestyle and day-to-day activity.
[75]DCB 116 and 117
The Plaintiff’s level of activity
74The plaintiff was cross-examined about various overseas trips, including to America and Timor. Those trips are not set out with in her affidavit material. She was cross-examined about histories contained in medical reports to the extent she had returned to a level of activity such as walking the Tan. The objective evidence of the plaintiff’s level of activity, notwithstanding her back injury, tends to the conclusion she has been able to maintain a reasonably active lifestyle. She has travelled overseas. She has travelled locally. She has been able to maintain relationships. She has been able to obtain alternate full time employment with IPP before undergoing the hysterectomy.
Is the injury “serious”?
75In determining whether the plaintiff’s injury is “serious”, it must be remembered that the injury must produce impairment and consequences which are at least “very considerable”. An impairment shall not be held to be serious unless the pain and suffering and/or economic loss consequences, either in isolation or in combination, when judged by comparison with other cases in the range of possible impairments or losses of a body function, can fairly be described as being more than “significant or marked”, and as being at least “very considerable”.
76Doing the best I can on the available objective material, in circumstances where the plaintiff’s own evidence is unreliable, I am not satisfied that she has consequences which are “very considerable”. The objective evidence tends to the conclusion that she has some ongoing fluctuating pain in her neck and back. She has had ongoing chiropractic treatment and the occasional use of over-the-counter painkillers, but that treatment regime is at what I consider to be at the lower end of a range of treatments. She has not specifically consulted a general practitioner for some years regarding her back, or required prescription painkillers. I accept that she may have some ongoing and fluctuating back/spine pain, but I am not persuaded that pain impacts in any significant way, either in respect of pain and suffering consequences, or economic loss consequences.
77The objective evidence tends to the conclusion that whatever symptoms the plaintiff has in her spine, those symptoms do not prevent her from functioning well for a range of day-to-day and employment activities. As mentioned, since the accident, she has been able to travel widely, including to the United States of America and to Timor, none of which were set out in her affidavits. She was able to obtain and hold down full-time employment with IPP. The circumstances of her leaving that employment overwhelmingly tend to the conclusion that she left due to unrelated health reasons and not in any way connected with her accident-related injuries. She can look after her home and maintain personal relationships. There may be some restriction on domestic activity and personal relationships, but the evidence tends to the conclusion that it is the unrelated conditions, such as bowel dysfunction, which are the cause of those restrictions.[76] She has not required any specialist referrals for her back, save for the initial referral to Dr Lemon, whereas she has required ongoing specialist referrals for her unrelated conditions.
[76]See as an example letter of Dr Vivien Wong, gastroenterologist, dated 2 September 2020, DCB 116
78The short answer to this application is that in circumstances where the plaintiff is an unreliable witness, the objective evidence does not support a finding of a “very considerable” consequence.
79Accordingly, the application shall be dismissed.
80I shall hear from the parties as to the question of costs.
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