Martin v Transport Accident Commission
[2012] VCC 1548
•9 October 2012
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-03522
| JULLIE MARTIN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 27 August 2012 | |
DATE OF JUDGMENT: | 9 October 2012 | |
CASE MAY BE CITED AS: | Martin v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1548 | |
REASONS FOR JUDGMENT
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SUBJECT – TRANSPORT ACCIDENT – damages
CATCHWORDS – Serious injury – injury to the neck and thoracic spine – whether impairment is organic or non-organic in nature
LEGISLATION CITED – Transport Accident Act 1986, s93 – serious injury – paragraph (a)
CASES CITED – Humphries & Anor v Poljak [1992] 2 VR 129; Richards v Wylie (2000) 1 VR 79; Barlow v Hollis [2000] VSCA 26
JUDGMENT – application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Jordan SC with Mr M Nightingale | Saines & Partners Pty Ltd |
| For the Defendant | Mr P Jens with Mr I Gourlay | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 12 October 2007 (“the accident”).
2 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The plaintiff brings this application pursuant to paragraph (a) of the definition of “serious injury” to be found s93(17) of the Act. There –
“serious injury means—
(a) serious long-term impairment or loss of a body function.”
4 At the commencement of the hearing, the plaintiff withdrew her application pursuant to paragraph (c) of the definition due to the sensitive nature of her pre-existing psychiatric disorder.
5 The body function relied upon in this application is injury to the neck and thoracic spine. Counsel for the plaintiff submitted that if I was not satisfied that the neck at C5-6 was a serious injury, then the thoracic spine would not amount to a serious injury.
6 The plaintiff seeks leave to issue proceedings at common law.
7 The plaintiff relied upon two affidavits sworn by her on 2 June 2011 and 20 August 2012.
8 The plaintiff and Dr Anthony Capes were cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant Legal Principles
9 The Court must not give leave unless it is satisfied, on the balance of probabilities:
(a)that the injury suffered by the plaintiff was as a result of the transport accident;
(b)that the injury is a serious injury within the meaning of the definition of “serious injury” contained in s93(17);
10 The enquiry under sub-paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term. The requirements of the test are set out in the decision of Humphries & Anor v Poljak[1] where the majority of the Court of Appeal said:
“Sub-section (17) intends a division between injuries with physical consequences and those with mental consequences. The former fall under paragraph (a) and the latter under paragraph (c). It would be anomalous to regard the consequences of mental disturbance or disorder to fall under paragraph (a) when the disturbance or disorder itself fell to be judged by whether they satisfied the criteria of paragraph (c). A ‘functional overlay’ will, we consider, rarely amount to a behavioural disturbance or disorder as that term is used in the legislation.
Now in the light of the various matters to which we have referred in the foregoing propositions that we have stated or conclusions to which we have come, we think that the task of a judge confronted with the requirement to determine an application made pursuant to sub-s.(4)(d) when reliance is placed upon sub-s(17)(a) may be stated in the following terms: he is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.”[2]
[1][1992] 2 VR 129
[2] Humphries & Anor v Poljak (supra) at [140]
11 The serious injury defined by sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function;[3]
[3]Richards v Wylie (2000) 1 VR 79
12 The term “serious” requires the impairment and its consequences to be viewed objectively, and also judged on an external comparative basis against possible impairments not necessarily in the same category.[4]
[4]supra at 170 and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441. In particular, Chernov JA at paragraph 29
The Issues
13 Counsel for the defendant informed the Court that the plaintiff has suffered a Chronic Pain Syndrome which is psychogenic in nature and is a paragraph (c) claim, which the plaintiff is not making. Further, the evidence does not support a serious injury under paragraph (a) of s93(17) of the Act.
The Plaintiff’s Evidence
14 In her affidavits sworn on 21 June 2011 and 20 August 2012, the plaintiff deposes that:
· On 12 October 2007, she was driving her car when a truck hit the back of her car. She drove home and reported the accident to the police.
· The following day, she experienced neck and back pain and went to hospital, where she was kept under observation for a few hours. The pain did not improve over the next few days and she saw Dr Hemming, general practitioner.
· She continues to suffer constant pain in the neck and mid-back, which varies in intensity, but seems to be getting worse. The pain is worse in cold weather. The neck pain increases when she turns her head or looks down or up for a long time. The back pain increases when sitting or standing for a long time. She continues to suffer headaches.
· She has received treatment, including using a neck brace, taking Panadol Osteo and attendances with Dr Hemming.
· Before the accident, she was a houseproud person and enjoyed gardening and bike riding. She liked to play darts.
· The neck and back pain limit her ability to work around the home and she relies on her husband to assist with many of the chores. She gets frustrated and embarrassed about this situation. The neck and back pain also affect her ability to garden and bike ride and caused her to give up darts. The neck condition affects her ability to carry out some personal chores, including brushing her hair and dressing. The neck and back injuries affect her relationship with her husband, including their sexual relationship. The pain interrupts her sleep.
· She has become moodier and intolerant since the accident.
The Plaintiff’s Evidence in Cross-Examination
15 The plaintiff gave the following pertinent evidence.
·Dr Hemming was her general practitioner and she had a good relationship with him, and was able to speak to him easily about her medical problems.
·She had been depressed before the accident but had not suffered longstanding anxiety. She agreed that she was prescribed Aropax before the accident. She was unable to remember whether, before the accident, she had pain on the left side of her neck and to her left shoulder.
·She said she complained to Dr Hemming about the neck and back pain after the accident. She agreed Dr Hemming did not refer her to any specialists but referred her to a psychologist, and the treatment for her neck was Panamax and Panadol Osteo.
·At first she said she did not have a Facebook page. Then she agreed her daughter had set up a Facebook page for her and that she listed gardening as one of her interests. She said she used to take her daughter to the Disabled Riding School and she would watch her ride. That was two to three years ago.
·She said she did not attend Dr Obatoki, her general practitioner in Ouyen, very often. She only goes when she needs her medication.
·She agreed she had seen the general practitioner a number of times with exacerbation of mood problems. She agreed her general practitioner was very supportive of her.
·She said Mr Kierce did not understand that it was her fiancé who massages her back and neck once a week.
·She said she travelled from Ouyen by bus. She sold her car two weeks ago.
·She said Dr Hemming told her she had arthritis in her neck and thoracic spine prior to the accident. She agreed he did not say anything about having arthritis in her spine, only her neck. She agreed that prior to the accident, she was seeing Dr Hemming for slight twinging pains in her neck, compared to the pain she now suffers.
·She agreed that if she had great pain in her neck she would certainly have seen a doctor about it.
16 In re-examination, the plaintiff said:
·She takes fewer tablets than the prescribed dosage because she does not want to get addicted to medication. She said before the accident, her neck moved more freely than now. She now gets excruciating pain, more excruciating than before, which makes it difficult for her to get comfortable in bed.
·Before the accident, she could whiz around the house, clean it and garden. Now she can only do a little bit of gardening and a little bit of housework. She used to be able to play darts, but cannot any more because she cannot look up to the dart board because it is higher than her face and it makes her neck ache.
·She has not been advised to have any other treatment.
·She has had no improvement.
Investigations
17 A CT scan of the cervical spine performed on 13 October 2007 showed no evidence of skeletal injury and left disc herniation at C5-6.
18 A lumbar spine x-ray taken on 16 October 2007 reported:
“Minor spondylitic changes seen throughout with early anterior osteophytosis. Disc spaces generally appear to be well preserved. A few tiny Shmorl’s nodes are present within the mid lumbar region.
Oblique views have demonstrated no evidence of any Pars defect. Both SI joints appear to be normal.”
The Plaintiff’s Medical Evidence
Dr Paul Hemming
19 In July 2008, Dr Hemming, general practitioner, said he had treated the plaintiff since May 2002. He confirmed that on 18 October 2007, the plaintiff was involved in a rear-end collision, having consulted the Ballarat Health Services the following day, where she was reported to have no significant injuries, but some neck strain or injury at C6-7 vertebrae. He recommended Paracetamol for pain relief. She complained of being terrified when in a car and “froze” when any truck approached from the rear. She reported “flashbacks” and poor sleep. In November and December 2007, the plaintiff complained of ongoing anxiety, headaches and stress symptoms. He treated her for ongoing anxiety and stress symptoms, some of which were related to her accident but much was of longstanding nature.
20 It was his opinion that the plaintiff had suffered an exacerbation of pre-existing anxiety and stress as a result of the motorcar accident and had ongoing problems with stiffness of her neck. He said it was difficult to assess how much of her ongoing symptoms are due to the accident in 2007 and how much is related to her pre-existing anxiety, stress and probable Personality Disorder.
Dr A G Capes
21 Dr Capes, industrial physician, examined the plaintiff at the request of the plaintiff’s solicitor and provided reports dated 1 May 2009 and 30 August 2012.
22 It was Dr Capes’ opinion that the plaintiff had deteriorated since he had seen her in 2009. He said she had aggravated cervical and dorsal spine disc degenerative disease in the transport accident. He said that her condition will continue to deteriorate over the years and her prognosis is poor. He thought she had ongoing psychiatric problems.
23 Dr Capes said she had problems with activities of daily living, especially doing her housework, and required help in getting dressed. He said he thought she had suffered a severe and permanent impairment of her cervical and dorsal spines. In 2012, she told Dr Capes she was taking Panadol Osteo twice per day, two days per week.
24 In cross-examination, Dr Capes said he would refer a patient to a specialist if there was a surgical option. If the patient still had symptoms after four to five days he would have referred her for physiotherapy. He said it was self-evident that she had spinal problems. He presumed she suffered a whiplash injury; however, whiplash injuries get better. He said neck injuries sometimes do not get better.
25 Dr Capes said, in May 2009, the plaintiff told him she was taking eight Panamax per day. When he saw her in August 2012, she had reduced her medication and was taking two Panadol Osteo per day, twice per week.
26 He agreed, in May 2009, the plaintiff had a full rotation of her neck. In August 2012, when he walked with her, she turned her whole body to look sideways. Dr Capes took this to mean she had some stiffness in her neck, therefore, he recorded that all her neck movements were reduced. He agreed a psychological reaction can affect her reaction to physical injuries.
27 Dr Capes agreed with Mr Kierce that the plaintiff had developed a Chronic Pain Disorder which is an abnormal psychogenic reaction to a physical injury. He agreed the degree to which she is affected by psychological matters would be relevant. He said the psychological problems would influence him, not the severity of it.
Mr Paul Kierce
28 Mr Kierce, orthopaedic surgeon, medically examined the plaintiff at the request of the plaintiff’s solicitors in July 2010 and February 2012.
29 It was his view the plaintiff had sustained a cervical disc lesion and a soft-tissue injury to her dorsal spine in the transport accident of 12 October 2007. It was his view that the plaintiff had symptoms and signs of having aggravated her cervical spondylosis in the accident. He said there was no radiculopathy. He noted that the plaintiff had not had any physical therapy since she was last seen by him. She consulted her general practitioner in Ouyen once a week, who massaged her back and neck and gave her injections every month or so.
30 In 2012, he said he was unable to explain her severe ongoing symptoms and limitation of movement. He described the plaintiff as depressed. He said on examination, she exhibited significant abnormal pain behaviour and he thought she had developed a Chronic Pain Disorder, which is an abnormal psychogenic reaction to a physical injury. He said she was currently not fit for any work and he doubted whether she would be able to work in the future.
Dr Debbie Obatoki
31 Dr Obatoki, general practitioner in Ouyen, provided reports dated 30 July and 21 August 2012. She had been treating the plaintiff since March 2011.
32 In March 2011, the plaintiff told Dr Obatoki that she had been involved in a transport accident and sustained injuries to her neck and back. She did not seek specific treatment for her injuries. Dr Obatoki recommended that she continue to see a psychologist in relation to her Post-Traumatic Stress Disorder.
The Defendant’s Medical Evidence
Mr John F O’Brien
33 Mr O’Brien, orthopaedic surgeon, examined the plaintiff in August 2010.
34 The plaintiff said she woke the day following the accident with a severe sharp pain the back of her neck that extended down the spine to the mid-thoracic area. She attended at the Ballarat Base Hospital Emergency Department where she was fitted with a cervical collar and x-rays were performed. The cervical collar was removed and she returned home with some medication the same day. When examined by Mr O’Brien, the plaintiff described constant pain in the posterior aspect of her neck, extending to approximately the mid-thoracic area. The severity of the pain was 10 out of 10 on a Visual Analogue Scale and aggravated by anything. He said the x-rays demonstrated no evidence of traumatic injury. The CT scan demonstrated no evidence of skeletal injury, but described a left disc herniation at C5-6 level causing some compression on the left side of the cord and impingement on the left C6 nerve root. He diagnosed a soft-tissue injury to the cervical spine. He said clinically, the plaintiff had no signs of any cervical or disc pathology; the subjective restriction of movement suggested some residual soft-tissue injury to the cervical spine. He said the injury was consistent with the stated cause. He noted treatment had been confined to analgesic medication and said it was possible physical treatment would not resolve her condition. He thought the plaintiff presented with a mild disability. He said she was capable of all the normal activities of daily living, receiving some help from her daughter with whom she lives in respect of heavy domestic tasks, but said the history suggests that symptoms will persist, which perhaps indicates a poor prognosis.
Mr Michael Shannon
35 Mr Michael Shannon, orthopaedic surgeon, examined the plaintiff on 12 June 2012 at the request of the defendant.
36 Mr Shannon said, on examination, the plaintiff demonstrated absolutely no movement at all of the cervical spine and held her neck rigid. She demonstrated virtually no thoracolumbar movement, and when asked to move, she was crying in pain. He diagnosed a soft-tissue injury to the cervical spine and said she had a psychological reaction. He thought there was probably some conscious or unconscious exaggeration of physical signs.
37 Mr Shannon thought it highly unlikely the collision resulted in an injury to the thoracic spine. The prognosis is that the orthopaedic injuries are likely to remain unchanged. He thought the symptoms in the upper thoracic region are referred from the neck, where he thought she had sustained a genuine but relatively mild injury.
38 The plaintiff told Mr Shannon she is unable to do anything at home; her fiancé does the cooking and housework while she spends most of her day in bed. Mr Shannon said there is no evidence that such incapacity relates to a major physical injury.
Dr Michael Epstein
39 In September 2009, Dr Epstein, psychiatrist, medically examined the plaintiff at the request of the plaintiff’s solicitor. The plaintiff provided a history of her medical condition, including a stroke she suffered in July 2005 on the left side of her body. He was told she had had a previous stroke. She had rehabilitation and was left with some weakness in her left leg with a limp and short-term memory problems. She did not disclose to Dr Epstein her past psychiatric problems. She complained of difficulty sleeping. She said her daughter and partner do the heavy housework, cooking, gardening and shopping. She tried to do some housework and limited gardening and goes shopping with her partner.
40 She complained of occasional nightmares and flashbacks. She feels depressed three days out of seven and her depression usually lasts all day. On those occasions, she feels hopeless, helpless, useless, worthless and tearful. Her self-esteem and self-confidence have dropped. She has problems with memory and concentration. Her libido has dropped and she has infrequent sexual activity.
41 It was Dr Epstein’s opinion that as a result of the accident, the plaintiff had developed pain and discomfort involving her neck and mid-back. The accident had been associated with the development of a mild Post-Traumatic Stress Disorder characterised by recurrent intrusive thoughts about the accident. He said the plaintiff denied that she suffered from longstanding anxiety. It was his impression that the plaintiff had some of her current psychological problems present for some years prior to the accident.
Dr Hemming’s Clinical Notes
42 The defendant relied upon the general practitioner’s, Dr Hemming’s, clinical notes for the period January 2007 to 28 October 2011. During that period, the plaintiff consulted Dr Hemming on 18 October 2007 to 15 February 2008, on eight occasions in June, and on two occasions in August 2008. Then again on 17 March 2010 in respect to back pain, and on 28 October 2011 in respect to neck pain. In 2008 and 2011, there was no mention of the transport accident in the general practitioner’s notes. In 2011, in respect to the neck pain, the plaintiff was prescribed Panadol Osteo modified release tablets.
Credit of the Plaintiff
43 Both counsel addressed me on the credit of the plaintiff. Counsel for the plaintiff conceded that the plaintiff was an angry, aggressive, confused and defensive witness who, on occasions, gave stupid and wrong answers. She had covered up her past psychiatric, psychological condition when examined by psychiatrists for this proceeding. The evidence was that the plaintiff had been a victim of a serious crime. Given that evidence, and the concessions made by counsel for the plaintiff, I accept her presentation in Court was due in large part to this unrelated trauma. However, there were a number of inconsistencies and deficiencies in her evidence which I cannot attribute to the trauma she suffered.
44 The plaintiff gave inconsistent evidence to the Court about whether she suffered a previous neck injury. Initially, she denied neck pain. Later, said she did have neck pain but not to the extent she has now. She told Mr Kierce and Mr Shannon that she had never had problems with her neck, back or shoulders prior to the accident, yet she told the Court that she had arthritis in her neck before the accident. Further, the plaintiff told Mr Kierce that she was consulting Dr Obatoki once a week, who massaged her neck and back and gave her injections every month. Dr Obatoki reported that the plaintiff sought treatment from her in respect to her psychiatric condition and other unrelated matters, but not for back or neck injuries. In cross examination, the plaintiff said it was her husband who performed the massage.
45 I accept that the plaintiff is an unreliable witness. Because of the deficiencies in her evidence, I exercise caution in relying upon her evidence when it is not supported by independent evidence.
Analysis of the Evidence
46 All of the medical opinions accepted that the plaintiff suffered injury to the neck and thoracic spine as a result of the transport accident. Dr Hemming described the plaintiff’s injury as a neck strain or injury at C6-7 vertebrae. Dr Capes said she aggravated her cervical dorsal spine disc degeneration. Mr Kierce said she had aggravated her cervical spondylosis and Mr O’Brien and Mr Shannon diagnosed a soft-tissue injury to the cervical spine. The CT scan of the cervical spine taken on 13 October 2007 concluded that there was no evidence of skeletal injury but there was a left disc herniation at C5-6. The general practitioner, in a Transport Accident Commission certificate dated 18 October 2007, confirmed cervical disc degeneration.
47 Accordingly, I accept the plaintiff suffered a compensable injury to her neck as a result of the transport accident.
48 I must consider the plaintiff’s impairment at the time of the application. Accordingly, I place greater weight upon the more up-to-date medical evidence and, in particular, the evidence of Dr Hemming, Dr Capes, Mr Kierce and Mr Shannon.
49 In February 2012, Mr Kierce said the plaintiff exhibited significant abnormal pain behaviour. He noted she had extreme lack of movement in the neck and back that could not be explained on organic grounds. He could not explain her severe ongoing symptoms and limitation of movement. He thought she had developed a Chronic Pain Disorder, which is an abnormal psychogenic reaction to the physical injury. He said she was not fit for any work.
50 Mr Shannon, in June 2012, said the plaintiff demonstrated absolutely no movement at all of the cervical spine and held her neck rigid on examination. When asked to flex her back, she flexed her neck through at least 30 degrees. When she sat on the couch to rotate her shoulders, she demonstrated full rotation of her back. He thought it probable that there was some conscious or unconscious exaggeration of physical signs. He believed she had sustained a genuine, but probably relatively mild, neck injury, and said it was highly unlikely to have resulted in an injury to the thoracic spine.
51 Dr Capes said that in August 2012, the plaintiff had deteriorated since he had previously seen her in May 2009. In particular, there was marked deterioration in her neck movements since 2009. He accepted the plaintiff’s description of the difficulties she had with daily living, especially doing her housework. However, in cross examination, he agreed with Mr Kierce that the plaintiff had developed a Chronic Pain Disorder.
52 Mr Hemming said it was difficult to assess how much of her ongoing symptoms are due to the accident in 2007 and how much is related to her pre-existing anxiety, stress and probable Personality Disorder.
53 I accept that there is a considerable non-organic element to the plaintiff’s ongoing neck pain and restriction. Accordingly, the consequences of the organic neck injury need to be disentangled from the consequences due to the non-organic element.
54 The evidence is that the plaintiff received minimal treatment. The evidence was that she rarely consulted her general practitioner in respect to the neck and back pain. She consulted Dr Hemming on eight occasions between October 2007 and February 2008 in relation to the transport accident. Dr Hemming said he saw her for ongoing anxiety and stress symptoms, some of which was related to the accident, as well as headaches, flashbacks, poor sleep and some neck stiffness. In relation to neck pain, she consulted Dr Hemming in June and August 2008, but Dr Hemming did not attribute these consultations to the transport accident. She did not see Dr Hemming again in relation to neck pain until October 2011, when she complained of headaches and neck pain and was prescribed Panadol Osteo.
55 The evidence as to how often and how much medication the plaintiff took varied. In 2012, Dr Capes reported that the plaintiff takes analgesics twice a day, two days per week. In February 2012, Dr Hemming reported that she was taking Panadol Osteo, up to six a day. In cross-examination, the plaintiff said she currently took Panadol Osteo twice a day, two days a week. Prior to October 2011, she was taking Panamax for her pain. The plaintiff was taking other medication for unrelated conditions. The plaintiff had received no physiotherapy treatment. No doctor suggested that she required surgery or that physical restrictions should be imposed. There was no suggestion by the doctors that the treatment she had was inappropriate.
56 The plaintiff said she suffers pain, particularly in her neck, which is with her all the time. It varies in intensity and she has both good and bad days. She has difficulty with her housework, and her spinal problems mean that she is unable to keep the house in the manner she used to be able to. She had always been houseproud. She said she enjoyed gardening because it enabled her to escape from her emotional problems. She finds gardening more difficult now. In Court, she said she had an interest in darts but is unable to play darts now because it aggravates her neck.
57 The plaintiff said she suffers interference with sleep. She said her neck, as well as her altered mental state since the accident, interrupts her sleep and/or because she has nightmares about the accident. She said she is terrified when in a car and freezes when a truck approaches from the rear. She said she get headaches.
58 The plaintiff said she still gets treatment for her injuries. She takes medication when the pain is very bad as she does not want to become dependent on painkillers. She said the medication reduces the pain for two to three hours. She has been told there is nothing more her doctors can do to assist her.
59 The consequences the plaintiff reports are not supported by independent evidence.
60 First, in relation to her evidence as to the level of pain and restriction of movement she experienced, I accept the view of Mr Shannon that the plaintiff, either consciously or unconsciously, exaggerated her symptoms. This is consistent with my observation of the plaintiff in Court and is supported by the evidence. When asked in cross-examination to demonstrate the degree of movement in her neck, the plaintiff’s ability to rotate her neck was less than what I observed in Court when she was not being directly questioned about the limitation of movement in her neck. Mr Shannon’s opinion was consistent with the opinion of Mr Kierce, who said in 2012 that the plaintiff exhibited significant abnormal pain behaviour and that her symptoms and signs are out of proportion to the injury sustained. In 2012, Dr Capes said her condition had deteriorated since 2009. She told Mr Kierce that her neck pain was getting worse, and Mr Shannon reported that she was crying in pain when asked to move. In cross-examination, she said she would have consulted her general practitioner if she had severe pain in her neck. Yet, the evidence was that, other than once in October 2011, she had not consulted her general practitioner for neck pain in the past three years, despite regular attendances for unrelated matters. Consequently, I accept the plaintiff exaggerated her symptoms and does not suffer the level of pain and restriction of movement that she told the Court about.
61 Second, the physical consequences the plaintiff reported are not supported by the medical evidence. Dr Capes was the only medical witness to accept the consequences were due to her neck injury and, in cross-examination, accepted that there was a contribution from a chronic pain condition. Mr O’Brien said the plaintiff moved reasonably freely and he thought she was capable of all normal activities of daily living with help for heavy domestic tasks. Mr Shannon said there was no evidence that her inability to perform housework or cooking and spending most of her day in bed was due to a major physical injury. Mr Kierce said she was not fit for work but did not say whether this was because of the injury to the neck or a result of the Chronic Pain Disorder. No medical practitioner imposed physical restrictions on the plaintiff.
62 Further, the plaintiff told Mr Shannon and Mr Kierce that her fiancé (now husband) does all the housework and cooking. Given the evidence that her husband has emphysema and asbestosis, combined with the plaintiff’s unreliability, I do not accept that her husband does all the cooking and housework because of the injury to her neck.
63 Third, in relation to the plaintiff’s sleep, no medical evidence was able to disentangle the cause of the plaintiff’s sleep disturbance. The plaintiff conceded that some of the difficulties with her sleep were due to factors other than her neck injury. Dr Hemming reported the plaintiff had poor sleep but was unable to assess how much this was caused by her neck injury and how much was due to her pre-existing psychiatric disturbance. In 2012, Mr Capes reported her neck pain was aggravated by lying on a pillow but did not report that the plaintiff suffered sleep disturbance. In 2010, Mr Kierce reported the plaintiff had no problems sleeping because of medication.
64 I accept the plaintiff’s neck injury has had an effect upon her life. However, I do not accept it is to the extent she describes. All of the medical opinions accepted the plaintiff had a non-organic component to her impairment; however, none of the doctors disentangled the consequences of neck injury from the non-organic symptoms.
65 In view of the time since the transport accident and based on the medical evidence, I am satisfied that the plaintiff has suffered a long-term impairment to the neck.
66 Taking all the evidence into account, I am not persuaded, on the balance of probabilities, and in light of the evidence as a whole, that the consequences to the plaintiff satisfy that test. I accept that the additional injury has had consequences to her but I am not satisfied, that when judged by comparison with other cases in the range of possible impairments, the injury can fairly be described as being “more than significant or marked as being at least “very considerable”.
67 Accordingly, I dismiss the application.
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