Malik v Transport Accident Commission
[2021] VCC 1430
•7 October 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-05597
| SALMA MALIK (also known as AYSE HADIS) | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 July 2021 | |
DATE OF JUDGMENT: | 7 October 2021 | |
CASE MAY BE CITED AS: | Malik v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1430 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – paragraph (a) of the definition of “serious injury” – pain and suffering and loss of earning capacity consequences – long-term serious impairment or loss of body function – impairment or loss relating to cervical spine and right shoulder
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Richards & Anor v Wylie (2000) 1 VR 79; Transport Accident Commission v Garcia [2015] VSCA 225; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Victorian WorkCover Authority v Brassington [2021] VSCA 236; Petkovski v Galletti [1994] 1 VR 436
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Broadfoot with Mr D O’Brien | Henry Carus & Associates |
| For the Defendant | Mr R W Middleton with Mr S Pinkstone | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1Salma Malik seeks leave to commence a proceeding to recover damages for injuries she sustained in a transport accident. She asserts she satisfies paragraph (a) of the definition of “serious injury” in s93(17) of the Transport Accident Act 1986 (“the Act”). She asserts impairment or loss to her neck and right shoulder. She does not rely upon paragraph (c) of the definition.
Circumstances
2Ms Malik is now thirty-one. Her father was born in England and her mother in Turkey. When he married Ms Malik’s mother, her father converted to Islam.
3Ms Malik was born and raised in Broadmeadows. She has two full brothers. Her parents separated when Ms Malik was three. She has had little to do with her father since then. Her mother re-partnered and Ms Malik now has two half-siblings including the sister who is married to her first husband.
4Ms Malik completed Year 10 at a secondary college. After leaving school, she worked in a juice bar. She completed a Diploma of Early Childhood Education and Care. She also has a certificate in child and aged care. Apart from that brief stint in retail, she has worked in child care since leaving school.
5The psychiatrist, Dr Strauss, described Ms Malik’s personal situation as “extremely complex”, which is almost an understatement.
6At the age of thirty-one, Ms Malik is the mother of six children from three relationships. She was first married at the age of eighteen. Her husband was twenty-one. He came from Pakistan. She practised the Islamic faith, as did her husband. She gave birth to four children over a relatively short period.
7In about 2013, after the birth of her fourth child, her husband divorced her and went overseas for six months. Despite Ms Malik not wanting to be divorced, this was permissible on religious grounds. Having been divorced, for other religious reasons it was necessary for Ms Malik to be married. Her intention was to remarry and then divorce so she could be reconciled with her first husband. She did remarry and gave birth to a child, now aged about six. This new husband was already married and Ms Malik was his second wife. He would spend two days a week with Ms Malik and the rest of the week with his first wife and family.
8Her second husband travelled overseas and was killed in a motor vehicle accident. At the time of his death, Ms Malik was pregnant. She later gave birth to another child.
9Then her first husband, who had returned from overseas, moved into the home in which Ms Malik was living. However, they lived apart under the one roof. Her sister was living there, as were his parents.
10After the transport accident, Ms Malik concluded her sister, Fatima, was having an affair with her first husband. This was something she suspected beforehand. This distressed her and she sought psychological help but to no avail.
11For religious reasons, Ms Malik felt compelled to leave this home and the children of the first marriage and went to live with a daughter in rented premises. Following her departure, her sister married Ms Malik’s first husband and they have a child now. Ms Malik now visits her four children weekly in her former home.
12Ms Malik has re-partnered again, to Bipen Keith. Mr Keith is the father of children who Ms Malik cared for when she ran her child care business. She has given birth to another child, Eva. Mr Keith is Nepalese and not of the Islamic faith.
Transport accident
13On 15 March 2018, Ms Malik was driving a motor vehicle. She was returning home after attending a first aid course with her sister. Her description of the accident is brief:[1]
“We were struck by another vehicle that failed to obey a red traffic signal. I experienced a significant jolt in the transport accident and forcefully struck my right hand on the steering wheel.”
[1] Affidavit sworn 7 September 2020 at paragraph 14
14Ms Malik gave a more detailed description to Dr Wilde:[2]
“… She was the driver and her sister was in the front passenger seat. They were both wearing seatbelts. She was stopped at a red light. When the light turned green, she moved into the intersection but a car coming from her right ran the red light and smashed into the front of her car. It was a big ute laden with paint; the driver was a painter by occupation. She was driving a 10-year-old Nissan and it was smashed quite badly. She hit her head on the steering wheel as the car spun and she is sure that she was knocked out briefly. She came to, quite dazed with pain across the neck and right shoulder. Nevertheless, she was able to get out of the car herself, and after addresses were exchanged she was able to drive the damaged car home very slowly. … .”
[2] Report dated 2 December 2020 at p 2
15Apart from her sister, there was a child in the car. After dropping off her sister, she went directly to her doctor’s clinic. She saw Dr Hanaa Yohana, general practitioner, who was not her usual doctor. She returned on 26 March 2018 and was prescribed Lyrica and an anti-inflammatory medicine. On 5 April 2018, there were CT scans.
16At the time of the transport accident, Ms Malik was operating a home day care centre called “Little Pearls Family Day Care”. It operated through an agency. She operated the business out of her home. She cared for four children up to the age of five. She was earning about $70,000 gross per year. Her sister assumed responsibility for the business. Ms Malik has not engaged in any form of paid employment since the transport accident.
17Her general practitioner referred her to Precision Neurosciences which conducted a pain management program. She received injections of local anaesthetic and steroid into the C2, C3 and C4 facet joints. The injections did not work, making the pain worse. She also had an injection into her right wrist, which also worsened the pain.
18Before, and at the time of the accident, Ms Malik experienced mild neck pain and associated headaches. Once or twice a month, she took a tablet of Panadeine Forte in the morning. This was mainly for the headaches. The neck pain from the accident is in a different place to the site of the neck pain after the accident. She lost no time off work because of her neck pain and headaches. She made a reasonable recovery from her headaches. She ascribed her pre-accident headaches to the stress caused by her sister marrying her former husband.
Practitioners Dr Azhar Al Sadii
19Dr Azhar Al Sadii is a general practitioner who has treated Ms Malik since the transport accident.
20On 5 August 2018, Dr Sadii prepared a mental health care plan. Certainly as to her mental state, the doctor is not cryptic. But under the heading “Current problems”, he simply noted osteoarthritis of the knee and asthma, without noting an injury to her neck or right shoulder or arm.
21His report dated 3 February 2021 is possibly the most cryptic I have seen. He may be saying her right shoulder pain is due to radiculopathy and also a tear, but one cannot be certain. He does mention she has seen a pain management team.
Ms Safiye Aytekin
22Ms Safiye Aytekin is a clinical psychologist. Prior to the transport accident and in 2015, Dr Sadii referred Ms Malik to her for assessment and treatment.[3] Ms Malik saw her once. She complained of symptoms of a depressive nature including lowered mood, crying, lack of sleep and lowered self-esteem. Ms Aytekin planned treatment involving mainly “CBT-based strategies”. By the time she reported to Dr Sadii, Ms Malik had only attended the one appointment with Ms Aytekin. In light of what Ms Malik wanted Ms Aytekin to do following this attendance and the absence of any mention of a further attendance in the material, I would infer there was only one attendance.
[3] Report dated 6 February 2015
Dr Nathaniel Popp
23Dr Nathaniel Popp is a consultant and clinical neuropsychologist. On 19 August 2019, he interviewed and tested Ms Malik at the request of her solicitors and the defendant.[4] She underwent an extraordinary number of tests, tasks, questionnaires and rating scales. The purpose of all of these things was to provide information on her current cognitive and neuro-behavioural functioning.
[4] Report dated 19 August 2019
24Dr Popp conducted a detailed examination of the clinical records of Ms Malik’s general practitioner. He tried to establish the level of her cognitive functions, including intelligence, before the transport accident and their levels at the time of assessment.
25From an intelligence perspective, there was a mild reduction from the estimated pre-accident level. Her Full-Scale Intelligence Quotient (FSIQ) was 72. Since only 2.28 per cent of the population have an FSIQ of below 70, this means an extremely large percentage of the population enjoy a greater FSIQ than Ms Malik.[5]
[5] See Figure 1 on p 23 of the report
26Dr Popp examined other areas of cognitive functioning. There was a mild to moderate reduction with the various aspects of memory, a mild reduction with attention, mild reduction at the rate of thought on tasks requiring working memory, tracking and switching and a largely mild reduction in a number of executive functions.
27He diagnosed several recognised psychological disorders – Major Depressive Disorder; Adjustment Disorder, and a Somatic Symptom Disorder with predominant pain.
Professor Richard Bittar
28Professor Richard Bittar is a neurosurgeon. On 20 January 2020, he re-examined Ms Malik at the request of her solicitors.[6]
[6] Report dated 20 January 2020
29To Professor Bittar, she complained of constant neck pain. The nature of the pain varied between sharp, throbbing and aching. This pain radiated to the back of her head and into her right shoulder and arm. She assessed its average level at 9 out of 10. The level reached 10 out of 10 with repetitive or sudden neck movements, holding her neck in a fixed position for a prolonged period, or, sustained flexion, extension or rotation. The state of her neck does not inhibit her ability to walk. It does limit her ability to stand in the one position for about an hour, sit for more than 5 to 10 minutes, use a computer for more than a few minutes, drive for more than 30 minutes or lift more than about 5 kilograms.
30With her right arm, Ms Malik complained of intermittent pain. It arises when she lifts or holds objects. It ceases when she stops the activity. The pain is sharp and burning. To her, the source of the pain in her right arm is the neck. Again, on average, she assessed the level of her pain at 9 out of 10.
31Her headaches occur daily and last for most or all of the day. Her headaches are more severe if the neck pain rises. With the headaches, she is sensitive to light, sound and has blurred vision. She assessed the severity of the headaches at 7 out of 10.
32On examination, Professor Bittar found she had mild restriction of flexion of her cervical spine and severe restriction of extension, with extension being more painful than flexion. There was bilateral cervical paravertebral tenderness without muscle spasm. There was more tenderness on the right-hand side. The neurological examination was normal and he did not detect any abnormal illness behaviour.
33Professor Bittar viewed MRI scans of the cervical spine taken on 28 June 2018. They showed multilevel disc and osteophyte complexes with moderate bilateral foraminal stenosis at C4-5 and mild right-sided foraminal stenosis at C5-6.
34Professor Bittar diagnosed aggravation of cervical spondylosis with persistent neck and right arm pain and cervicogenic headaches.
35Ms Malik told Professor Bittar of the state of her neck and its treatment before the transport accident. Under the heading “Causation”, he said:[7]
“Whilst she does have a past medical history of neck pain and headaches which predate the accident, these were much less frequent, of different character and much less severe than her current neck pain, headaches and right arm pain. In my opinion, her pre-existing condition has minimal contribution to her current condition. In my opinion, her current condition is almost entirely due to the transport accident of March 15, 2018.”
[7] Ibid at p 4
36In his opinion, she is incapacitated for her pre-injury duties. She has no realistic capacity for suitable employment after considering her age, education, training, skills, work experience and injuries.
37Professor Bittar saw the areas of complaint as effecting Ms Malik’s daily activities as:
(a) less socialising due her standing intolerance;
(b) her headaches reduce her desire and ability to socialise;
(c) her inability to drive long distances. This is a function of the condition of her right arm;
(d) limiting her recreational activities including playing with her young children. This limitation is a product of the neck and arm conditions. Which of the two dominants would depend on the activity;
(e) her sleep is disturbed and she is tired during the day;
(f) her ability to undertake shopping, cleaning, cooking and gardening are severely impacted.
38Given the longevity of her symptoms, in his opinion, it is likely Ms Malik would suffer pain and disability into the foreseeable future. Nevertheless, he suggested further investigations and treatment.
39As for impairment of her cervical spine, he assessed her whole person impairment at 5 per cent on the basis there was non-uniform loss of range of motion of the cervical spine with no evidence of radiculopathy or myelopathy and no structural inclusions.
40In a subsequent report and after reading Dr Wilde’s report (see below), Professor Bittar deferred to Dr Wilde’s opinion that there is a rotator cuff injury to the right shoulder.
Dr Peter Wilde
41Dr Peter Wilde is an orthopaedic surgeon. On 24 November 2020, he examined Ms Malik at the defendant’s request.[8]
[8] Report dated 2 December 2020
42Dr Wilde considered Ms Malik was genuine and reliable for the purposes of his clinical examination. He found her neck movements were restricted mainly due to pain: flexion 30 degrees; extension 10 degrees; right and left rotation 10 and 30 degrees respectively, and left and right lateral bending 20 and 10 degrees respectively.
43There was numbness in the palm of the right hand consistent with carpel tunnel syndrome. Otherwise, neurologically, everything was normal.
44With the right shoulder, his findings were consistent with subacromial bursitis or rotator cuff disease. He found restrictions in the movement of that shoulder: abduction 70 degrees; flexion 60 degrees; extension 15 degrees; adduction 10 degrees, and external and internal rotation 30 and 40 degrees respectively.
45Dr Wilde diagnosed an aggravation of cervical spondylosis without radiculopathy and a rotator cuff injury of the right shoulder. While the injury to the cervical spine was an extended injury or aggravation of a pre-existing injury, the injury to the right shoulder was “new”, in the sense there was no pre-existing injury to the shoulder.
46When asked about the existence of inconsistencies between his findings and her complaints, Dr Wilde said:[9]
“… She is highly pain sensitised and states her pain levels are very high and that she cannot do much at all. I suspect her function is not so compromised but I doubt she could bath and lift children, change nappies or do housework or gardening. … .”
[9] Ibid at p 6
47His prognosis was guarded, since it was likely she would experience pain in the neck and right shoulder for the foreseeable future.
48At present, she could not return to her pre-injury duties as a child care worker. She could not lift and bath children or change nappies.
49Ms Malik could cook meals and perform light housework but she could not perform heavy housework or gardening.
50Dr Wilde took a history of pre-existing headaches, occasional neck pain and bilateral carpel tunnel syndrome. He described her neck symptoms as substantially worse after the transport accident. In answer to other questions posed by the defendant’s solicitors, he said her pre-existing condition of neck pain was low grade and it, along with her pre-existing carpel tunnel syndrome, did not affect her activities of daily living or work capacity.
51Dr Wilde invited scanning of Ms Malik’s right shoulder. MRI scans were taken on 4 January 2021. They showed a low-grade partial thickness tear of the anterior supraspinatus tendon, adding to his clinical diagnosis of a rotator cuff injury so that the diagnosis became rotator supraspinatus partial tear. And causally, the accident was a contributing factor to that injury.
52In reading both reports, Dr Wilde does not apparently hold the view that some of the pain and symptoms experienced in the right shoulder and arm come from the cervical spine. Clinically, he believed the problem with the right shoulder lay in the shoulder itself and the subsequent scans proved him correct and enabled him to give greater definition to the diagnosis.
53Dr Wilde was shown 30 minutes of video surveillance. Asked whether the video caused him to change his earlier opinions, he said it did not. The next question focussed on the right arm. After explaining what he saw and what he expected to see, he concluded:[10]
“Therefore, I have not observed anything on the video footage, or read in the documents, any activities that would not be consistent with the opinion expressed in my previous reports dated 2 December 2020 and 7 May 2021.”
[10] Report dated 4 June 2021
Dr David Weissman
54Dr David Weissman is a consultant psychiatrist. On 15 January 2020, he interviewed Ms Malik at her solicitors’ request.[11] This interview occurred the day after she gave birth to her youngest child, Eva. He had interviewed her four months earlier at the request of the parties’ solicitors.
[11] Report dated 15 January 2020
55Owing to the complexity of Ms Malik’s life, Dr Weissman approached the question in a complex fashion. First, before the accident, she suffered from chronic dysthymia with anxious distress. She stills suffers from that condition. This diagnosis is also known as a Chronic Adjustment Disorder with Depressed and Anxious Mood.
56There were mild traumatisation features due to the accident itself, falling short of the diagnosis of Post-Traumatic Stress Disorder.
57Second, looking at the effect of the accident only, she suffered from a mild Chronic Adjustment Disorder with Depressed and Anxious Mood.
58Third, looking at her overall, the accident caused a mild aggravation of the pre-existing condition discussed earlier.
59To make the point clear, Dr Weissman said:[12]
“Overall, purely in terms of the subject transport accident, the claimant is suffering from a mild group, but not a moderate group and not a severe group, of accident-related psychiatric conditions and mental injuries.”
[12] Ibid at p 13
Dr Nigel Strauss
60Dr Nigel Strauss is a consultant and occupational psychiatrist. At the request of the defendant, he interviewed Ms Malik on 25 November 2020.[13]
[13] Report dated 25 November 2020
61Dr Strauss took a detailed history. He was provided with a range of medical reports. His examination noted Ms Malik’s pre-occupation with pain.
62Ms Malik told Dr Strauss she had come to terms with her situation, namely, her sister marrying her former husband, her separation from her four children and their living with her former husband and her sister. Dr Strauss considered she had rationalised the separation and it does cause her a good deal of distress. Accordingly, while the transport accident contributed to her psychological problems, her personal situation was also very significant to her presentation.
63Apart from the pain caused by her organic injuries, Ms Malik expresses her emotional distress through pain. He believes much of Ms Malik’s current presentation is psychologically based, not organically based, and he is unsurprised that treatment has not assisted her to any great extent.
64His prognosis is decidedly bleak, for he considers she will suffer from pain which is both organically and psychologically based indefinitely:[14]
“… She has simply adopted the role of a semi-invalid as a way of coping with her personal circumstances. … .”
[14] Ibid at p 10
65In light of those considerations, Dr Strauss diagnosed Ms Malik as suffering from a psychological pain disorder, a Somatic Symptom Disorder involving significant pain and an Adjustment Disorder with Mixed Anxiety and Depressed Mood. Although there was evidence of traumatisation, it did not justify the diagnosis of a Post-Traumatic Stress Disorder.
66Causally, her psychiatric problems were due to the transport accident and her personal problems, attributing them as to two-thirds personal and one-third due to the accident. He emphatically rejected the notion she was exaggerating her problems.
67As to capacity for work, Dr Strauss doubted Ms Malik would return to work in the foreseeable future because she had adopted the semi-invalid role.
68As to psychological treatment, he recommended she should see a psychologist or psychiatrist for a year or two and continue to take antidepressant medicines indefinitely. He doubted a pain management program would help and would limit the amount of physical treatment.
Video surveillance
69I viewed surveillance footage taken during late April and early May 2021. This appears to be the total of such footage taken of Ms Malik.
70The footage was shown to Dr Wilde and he commented on what he saw.
Legal considerations
Serious injury
71A person who is injured as a result of a transport accident may recover damages in respect of the injury if the injury is a “serious injury”.[15] In this application, “serious injury” is a long-term serious impairment or loss of body function.[16]
[15] Section 93(2) of the Act
[16] Paragraph (a) of the definition of “serious injury” in s93(17) of the Act
72The meaning of “serious” in s97(17) of the Act was explained in Humphries and Anor v Poljak:[17]
“… To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’? … .”
[17] [1992] 2 VR 129 at 140 per Crockett and Southwell JJ
Psychological consequences
73In Richards & Anor v Wylie,[18] where Winneke P said:
“If, as a result of an injury, a person loses a limb, it will, no doubt, often occur that one of the consequences of such a loss or impairment will be the development of a mental response to that impairment or loss. That is one of the consequences which, along with others, the Court will need to evaluate in determining whether the loss or impairment of a body function, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described as ‘serious’ … Such a response, as I see it, would be an expected consequence of an impairment or loss of a body function of the sort to which I have referred … Thus, the ‘serious injury’ defined by sub-paragraph (a) of sub-s.(17) can, I think, have its seriousness measured in part by a mental response to a physical impairment. What it will not recognize is that the mental disorder can itself constitute or be the producer of the impairment of a body function.”
[18](2000) 1 VR 79 at 87-88. See also Buchanan JA at 90. See also Transport Accident Commission v Garcia [2015] VSCA 225 at paragraph [27]
Aggregation
74The issue of aggregation of injuries revolves around the concept of “body function”. Ms Malik’s counsel submitted that the injuries to the neck and right shoulder were affecting the same body function, in that pain radiated from her neck to her shoulder. Following Dr Wilde’s report, there is no medical support for this contention. Implicitly, Professor Bittar supported this view. However, after an examination and subsequently viewing MRI scans, Dr Wilde identified a discrete injury to the right shoulder. Professor Bittar defers to that view.
75Although aspects of the judgment of Chernov JA in Lu v Mediterranean Shoes Pty Ltd[19] have been rejected in the very recent judgment in Victorian WorkCover Authority v Brassington,[20] there remains no justification in aggregating the injuries to the cervical spine and right shoulder.
[19] (2000) 1 VR 511
[20] [2021] VSCA 236
76With the existence of distinct injuries to the neck and the right shoulder, it becomes necessary to attribute consequences to separate body functions.
Discussion
Credit
77The defendant submits Ms Malik exaggerates in her evidence.
78I agree the figures recorded by Professor Bittar of Ms Malik’s perception of pain are high. It is easy to know what people mean by zero, for that is the absence of pain. What people mean by 9 or 10 is harder. To me, I would say 10 was where the pain was so overwhelming that that is all one can think about and one would seek immediate treatment. What I saw of Ms Malik while giving evidence and on the surveillance film, her level of pain could not be 9 or 10 out of 10 in the way I assess levels of pain. All this proves is that her assessment of pain is different from mine. So long as there is a lack of definition of what a 9 or 10 means to a person, this type of assessment may prove unhelpful and is helpful in this case only to the extent that she suffers significant levels of pain.
79Dr Wilde saw no inconsistency between Ms Malik’s complaints and his clinical findings. Implicitly, so did Professor Bittar, when he said there was no abnormal illness behaviour.
80I am uncertain whether giving birth to children after the transport accident is inconsistent with her claims about levels of pain.
81Overall, I consider Ms Malik is a truthful and reasonably reliable witness.
82Although neither party said much of Dr Popp’s report, it does put Ms Malik in a low average intelligence category.
83Out of delicacy, questions regarding her ability to engage in sexual intercourse while injured did not go anywhere.
Injury
84In relation to the cervical spine, Professor Bittar and Dr Wilde diagnose an aggravation of cervical spondylosis. As to the right shoulder, Dr Wilde diagnosed a rotator cuff injury, being a partial tear of the supraspinatus. Professor Bittar deferred to Dr Wilde’s expertise in this area and declined to diagnose. The injury is the one described by Dr Wilde.
85The defendant submitted the state of Ms Malik’s cervical spine can be explained by the degeneration through age. Apart from Ms Malik being young, there is no medical support for the submission. On the contrary, both Professor Bittar and Dr Wilde see her condition as an aggravation of pre-existing degenerative changes. Plainly, I accept their diagnoses.
Consequences
Pain
86Ms Malik experiences pain across her neck which radiates into her right shoulder and arm. This pain is associated with suboccipital headaches. She feels pulses over her scalp and forehead. It is a sharp, throbbing and aching pain affecting both sides of her neck, with the right side more painful than the left. When at home, she wears a soft collar during the day and at night.
87The other aspect is her headaches or migraines. These are daily and last for the better part of the day. She takes topiramate for relief. According to Professor Bittar, the origin of these headaches is the cervical spine. Although she suffered from headaches before the transport accident, since then these headaches occur more often and with greater intensity.
88Ms Malik experiences intermittent pain in her right arm. It tends to occur if she lifts or holds objects with that arm and stops when she ceases lifting or holding. The pain itself is sharp and burning. To her, the pain comes from the neck into her right shoulder and then through her arm into the hand. She experiences the pins and needles and tingling sensation in the entirety of the hand. However, these sensations only occur if the arm itself is painful. Despite Ms Malik’s belief as to the origin of her shoulder pain, the diagnosis of Dr Wilde as to its origin in the shoulder settles the matter for the purposes of this application.
89Dr Strauss considered “much” of Ms Malik’s presentation was psychologically based and “some” was organically based. The degree of the organic and the psychological contributions varied between the psychiatrists. Dr Weissman saw her overall psychological state as mild. Dr Strauss did not use the words mild, moderate or severe, but implicitly he is describing a significant psychological state where much of her perception of pain comes from her psyche.
90Implicitly, Dr Strauss’s view conflicts with the organic findings of Professor Bittar and Dr Wilde. Both were prepared to attribute her complaints of pain and other symptoms to discrete organic injuries. Neither even hinted at the operation of some form of psychological pain disorder. This is an insurmountable barrier to accepting the view of Dr Strauss.
91The interaction of the organic and non-organic is a perennial issue in these applications. Usually, the psychiatrist or psychologist ascertains the agreed organic opinion before exploring the existence of a pain disorder. Often the organic position is not agreed. In any event, if I accept Dr Weissman’s view as to the intensity of the symptoms of the disorder, then it cannot be said the psychological outweighs the organic in light of the opinions of Professor Bittar and Dr Wilde.
92In the mental health care plan, Dr Sadii listed Ms Malik’s organic conditions without mentioning the neck or right shoulder. The omission is unexplained and bizarre. In light of the clinical records of his practice recording complaints from the date of the accident and the way Dr Sadii reported to Ms Malik’s solicitors, I am not prepared to draw any inference from the omission.
Treatment
93A pain management specialist prescribed various medicines for her conditions -- Sertraline (an anti-depressant), a tablet daily; topiramate or Topamax, two tablets daily (headaches); pregabalin or Lyrica, one to two tablets daily (for neck pain); and Panadeine Forte, one or two tablets taken intermittently.
94Although no practitioner discussed the type of medicine or the quantities taken, it strikes me as a solid regime of medicines, apparently recommended or prescribed by a pain management practitioner.
95Apart from visiting her general practitioner and the taking of medicines, Ms Malik has no other formal treatment. Informally, her partner, Mr Keith, massages her neck, right shoulder, arm and hand every night. He even massages her during the day.
Employment
96As I said earlier, Ms Malik has not engaged in paid employment since the transport accident. She has not returned to child care because she cannot maintain the constant activity needed with young children. This activity includes frequent lifting. That is denied through the pain emanating from her neck, right shoulder and arm. She is right arm dominant.
97She earned a significant amount in her business before the accident. Although the evidence of her earnings is sparse, there is no need for more. If the $70,000 she mentions was before expenses, then I doubt they would amount to much, as the day care was conducted from her home. Certainly, what she earned conducting this business would have been far greater than the amounts she earned working in a juice bar.
98Although the report of Dr Popp was admitted into evidence, neither counsel had much to say about it. Dr Popp found a mild reduction in Ms Malik’s overall cognitive functioning due to the transport accident. At least, in relation to intelligence, she was coming off a low level. As for the other areas of such functioning, she is now operating at reasonably low levels.
99When she obtained her diploma, Ms Malik was functioning cognitively at a low-average level. It is to her great credit she obtained the diploma. Child care is a skilled occupation and, in my opinion, well suited to her. Even apart from her physical incapacities, her reduced level of cognitive function might be a barrier to this occupation. It might also be a barrier to other occupations except for the unskilled.
Domestic activities
100Ms Malik no longer performs the majority of household tasks. These are performed by Mr Keith. He does the cooking. She tries to help but struggles, especially towards the end of the day . She can do light housework but not heavy housework, gardening and most activities of childcare. She cannot cut fruit or vegetables because of her right arm.
Children
101Owing to the pain she suffers with her neck, right arm and headaches, Ms Malik cannot care for her two youngest children, who live with her. Mr Keith cares for them.
102She tries to be an active and engaged mother for her two youngest children. There is a penalty:[21]
“… I am conscious that my youngest children will only be babies and toddlers for a limited amount of time and I am determined to be the best mother that I can. I experience an increase of neck and right shoulder pain following periods where I have been active with my children and it often takes me many days to recover.”
[21] Affidavit sworn 29 June 2021 at paragraph 10
103Although she wanted her older children to live with her, Ms Malik realised she could not care for them. Instead, she has fortnightly contact. This contact is limited because Ms Malik “cannot entertain them”.[22] This is a source of considerable anguish for her.
[22] Affidavit sworn 13 October 2020 at paragraph 31
Pre-existing conditions
104The narrowness of the concept of “body function” requires the separation of the consequences of the impairment to the function associated with the cervical spine from that associated with right shoulder. This is not an easy task for a plaintiff, largely reliant on the opinions of others. On the evidence here, the impairment of the cervical spine weighs very significantly, as does the impairment to the right shoulder, in the consequences experienced by Ms Malik.
105Both Professor Bittar and Dr Wilde apparently thought little of Ms Malik’s pre-existing conditions. Professor Bittar spoke in terms of “minimal” while Dr Wilde saw those conditions as not affecting her activities of daily living or capacity for work.
106Ms Malik was examined about her use of Panadeine Forte before the transport accident. It seems she used this medicine once or twice a month, mainly for her headaches but also for her neck pain.
107For the purposes of Petkovski v Galletti,[23] the pre-existing conditions can be very largely disregarded.
[23] [1994] 1 VR 436
108There can be no question of aggregation with the neck and right shoulder because the pain in the shoulder and arm is not referred from the neck but the result of a discrete injury.
Cervical Spine
109The injury to Ms Malik’s cervical spine has two broad consequences. First, the pain inhibits various physical activities. Second, it causes headaches. Initially, confining oneself to the direct effect of the injury, then it limits standing, sitting, use of a computer, driving and lifting. In other areas, it combines with the right shoulder injury to limit other activities. All one can say about those activities is that the injury to the cervical spine makes a significant contribution to the limitations.
110Although I accept the opinions of Dr Weissman as to Ms Malik’s psychological state, the aggravation of her pre-existing Adjustment Disorder due to the transport accident is mild. The extent of the traumatisation features are not segregated from her reaction to the pain and limitation she experiences. The psychological perspective in relation to paragraph (a) adds little. Unusually, Dr Popp’s opinions add the very different perspective of increased cognitive deficits due to the transport accident. In my opinion, they are important in the assessment of whether Ms Malik has suffered a “serious injury”.
111Overall, the effect of the impairment to the body function associated with the cervical spine means Ms Malik has suffered a “serious injury”. This conclusion is reached after factoring in the headaches she experiences, both as to intensity of pain and the frequency and longevity of their duration.
Right arm
112Relying on the MRI scans of 4 January 2021, the defendant submits the shoulder injury is not serious in a non-technical sense. The radiologist’s comment on the scans was:
“Very minor signal at the musculotendinous junction of the anterior supraspinatus tendon favours a low grade interstitial partial thickness tear but no gross pathology is identified. No evidence of subacromial-subdeltoid bursitis.”
113Although Dr Wilde and Professor Bittar read the report, neither commented on those findings. That is understandable, because each was looking at a diagnosis. To a lay person, some of the language suggests limited pathology but it is not for me to draw a conclusion about those findings. If the practitioners do not, for whatever reason, I will not. In any event, Dr Wilde did not resile from his guarded prognosis.
114The defendant submitted Dr Wilde was wrong when he said: “I did not observe her attempt to use her arm above shoulder height”[24] or Ms Malik’s evidence of what she did not do with her arm. Although the accuracy of Dr Wilde’s observation is debatable, I did not understand the defendant to submit it should have any effect on my evaluation of his opinions about the right shoulder. He is definite about the diagnosis.
[24] Report dated 4 June 2021
115The film does show more freedom with the right arm than one is led to believe on the oral and written evidence. As her counsel submitted, there is a degree of favouring her left arm.
116Her difficulty typing or cutting vegetables or fruit would not stem from her pre-existing carpel tunnel syndrome because Dr Wilde in particular concludes it would not affect her activities of daily living. But it would come from her right shoulder and arm.
117Since Ms Malik cannot aggregate the consequences of the impairments to her cervical spine and right shoulder, it is necessary to isolate and attribute the effects of the impairments. Some of the consequences are due solely to the right shoulder and some partly. As I said in the previous paragraph, typing and cutting vegetables or fruit stem from the shoulder. The shoulder contributes to her inability to perform other domestic duties, including the care of her other children, and the resumption of her pre-injury duties. It is not solely responsible. In fact, looking at the evidence overall, it contributes to a lesser extent than the cervical spine notwithstanding Ms Malik is right handed. The surveillance film does present a degree of freedom of movement which is inconsistent with the existence of a “serious injury” relating to the shoulder.
Conclusion
118I am satisfied Ms Malik has suffered a “serious injury” in relation to her cervical spine but not in relation to her right shoulder. I will grant her leave to issue a proceeding seeking damages.
119I will hear the parties on the form of my orders and the question of costs.
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