Monterossa v Transport Accident Commission
[2012] VCC 618
•30 May 2012 (Revised)
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-05702
| RITA MONTEROSSA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27, 28 and 29 March 2012 | |
DATE OF JUDGMENT: | 30 May 2012 (Revised) | |
CASE MAY BE CITED AS: | Monterossa v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 618 | |
REASONS FOR JUDGMENT
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SUBJECT – TRANSPORT ACCIDENT – Serious injury application.
CATCHWORDS – Impairment of low back – impairment of left shoulder – impairment of left lower leg – psychiatric injury – whether or not consequences are serious or severe.
LEGISLATION CITED – Transport Accident Act 1986, s93.
CASES CITED – Richards v Wylie (2000) 1 VR 79; Humphries v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833.
JUDGMENT – Leave dismissed in relation to the lower back, left shoulder and psychiatric injury. Leave granted for pain and suffering damages in respect of the lower left limb and ankle injury.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W R Middleton SC and Mr N Griffin | Slater & Gordon Ltd |
| For the Defendant | Mr P A Scanlon QC and Ms H Donmez | Solicitor for the Transport Accident Commission |
HIS HONOUR:
1 This is an application brought by Originating Motion dated 7 December 2010. The plaintiff applies for leave pursuant to s.93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages from injuries suffered by her arising out of a transport accident which occurred on 30 September 2006 (“the said date”).
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 definition of “serious injury” relied upon by the plaintiff is under s93(17):
“(a) serious long-term impairment or loss of a body function; or
...
(c)severe long-term mental or severe long-term behavioural disturbance or disorder.”
4 In this application the plaintiff, in effect, has four separate applications for serious injury.
5 Under s93(17) of the Act, the plaintiff seeks serious injury certification by the Court for:
(i) Loss of body function of the spine, particularly the low back;
(ii) Loss of body function of the left shoulder;
(iii) Serious long term severe mental, behavioural disturbance or disorder;
(iv) Loss of body function of the left lower limb, particularly the left ankle.
6 The inquiry under ss93(A)(17) of the Act 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.
7 The serious injury defined by ss(a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise it that the mental disorder can of itself constitute or be the producer of the impairment of the body function.[1]
[1]Richards v Wylie (2000) 1 VR 79
8 In forming a judgment as to whether the consequences and the injury are serious, the question to be asked is: Can the injury, when judged by a comparison with other cases in a range of possible impairments be fairly described as at least “very considerable” and more than “significant” or “marked”?[2]
[2] Humphries & Anor v Poljak [1992] 2 VR 129
9 A “serious injury” under s93(17)(c) requires the level of impairment to be “severe”.[3]
[3]Mobilio v Balliotis [1998] 3 VR 833 at 846
10 The plaintiff swore and relied upon two affidavits dated 8 September 2009 and 22 November 2011. The plaintiff also relied upon an affidavit sworn by her daughter, Rita Romirez, dated 8 December 2011. The plaintiff gave evidence and was cross-examined.
11 In addition to the sworn affidavits and sworn evidence, both parties relied on medical reports and other materials which were tendered during the course of the proceeding. I have read all of the tendered medical material. The psychiatrist, Dr Nathan Serry, was called for cross-examination by the defendant.
12 The tendered evidence in this proceeding was as follows:
Exhibit A: Joint Court Book;
Exhibit B:Medical Reports from Medical One, Moonee Ponds dated 20 March 2008 and 1 November 2006;
Exhibit 1:DVD surveillance film of the plaintiff for the dates of 1, 2 and 3 March 2012; and
Exhibit 2:The clinical records of Dr Acevedo and Doutta Galla Physiotherapy.
13 The issues in this application are as follows:
(a)What are the actual injuries that the plaintiff suffered as a result of the transport accident?
(b)Whether the plaintiff’s injuries are properly described as in “the range” of cases considered as a whole to be a serious injury under the Act?
(c)The credit of the plaintiff.
(d)Whether or not the aggravation of the plaintiff’s pre-existing psychiatric condition meets the “severe” test?
The Plaintiff’s Background
14 The plaintiff was born on 3 August 1956 in El Salvador. She is now aged fifty-five years. In 2003, the plaintiff moved from El Salvador to Australia.[4]
[4]Court Book (“CB”) 9
15 The plaintiff has three adult children. Two of the children live overseas. Her daughter, Rita Romirez, lives here in Melbourne. The plaintiff separated from her second husband in 2007 and is now divorced.[5]
[5]CB 13 paragraph 23
16 The plaintiff undertook tertiary education as a health science undergraduate in El Salvador. Since arriving in Australia in 2003, the plaintiff has not been employed or sought employment. The plaintiff is a pensioner.
The Transport Accident Involving the Plaintiff
17 The plaintiff described the accident in her affidavit sworn 8 September 2009 in the following terms:
“I suffered injury as a result of a transport accident which occurred on 30 September 2006 at approximately 10.30 am. I was riding my bicycle along Epsom Road, Flemington when I was struck on my right side by a vehicle reversing from a driveway. This vehicle was driven by a Mr Shaun Terry Wall, who I noted to be using crutches when he got out of the car. I was wearing a helmet.”[6]
[6]CB 9 paragraph 3
18 The plaintiff was taken from the scene of the accident by ambulance to the Western Hospital.
The Plaintiff’s Impairment or Loss of Body Function
The Low Back
19 At the commencement of this proceeding, the plaintiff was seeking a serious injury certificate for impairment to her loss of body function of the low back. The plaintiff stated that as a result of the transport accident, her low back was injured and that she was suffering pain in that area of her body. The plaintiff had MRI scan examinations on 6 January 2009 and 3 June 2010. The MRI scan results are reproduced at pages 63 and 66 of the Court Book.
20 The plaintiff was referred to Mr Patrick Lo, orthopaedic surgeon, for recommendation and treatment for her low back injury. She saw Mr Lo on 10 August 2011. Mr Lo recommended an epidural to her lower back. The plaintiff never returned to Mr Lo to take part in the epidural treatment. In Mr Lo’s opinion, there was evidence on the MRI scans of extensive degenerative spinal disease. He gave his clinical opinion as follows:
“She does not have any neurological deficits and in my clinical opinion, therefore, her neurological prognosis remains good. However, there is evidence on the MRI scan that the degenerative spine which is likely to progress in time.”[7]
(sic)
[7]CB 65
21 Mr Middleton, Senior Counsel, on behalf of the plaintiff, appropriately conceded during the course of his submissions that the plaintiff would no longer being relying upon the lumbar spine injury as part of her application for serious injury.[8]
[8]T 87, L7-11
22 The plaintiff’s application for serious injury in respect of the lumbar spine or low back is dismissed.
The Injury to the Left Shoulder
23 The plaintiff seeks a serious injury certificate for an injury to her left shoulder as a result of the transport accident.
24 The plaintiff attended upon her general practitioner, Dr Acevedo, complaining of soreness and pain in the left shoulder. Dr Acevedo referred the plaintiff for ultrasound examination of her left shoulder. The ultrasound was conducted on 12 February 2007. The conclusion from the ultrasound was as follows:
“1 A partially healed bursal surface partial thickness tear of the mid supraspinatus rotator cuff. Associated overlying mild subdeltoid bursitis.
2 Rotator cuff impingement causing pain and limitation of movement beyond 80A: abduction.”[9]
[9]CB 35
25 Dr Acevedo treated the plaintiff with a left shoulder hydrodilatation on 23 July 2007. He stated that as a result of that treatment, the plaintiff had a very good result.
“She now has close to full range of motion of the left shoulder and her impingement sign is negative.”[10]
[10]CB 32
26 The general practitioner, Dr Acevedo, referred the plaintiff to Mr Robert Pianta, orthopaedic surgeon, for review and advice in respect of her left shoulder injury. Mr Pianta’s opinion, set out in the report dated 15 October 2007, was as follows:
“It is likely she has suffered direct injury to her left shoulder resulting in a degree of adhesive capsulitis. This has been treated with hydrodilatation and when she was last assessed on the 15th of August 2007, I felt she was making good progress and was unlikely to require surgical intervention.”[11]
[11]CB 59
27 In a later report dated 26 March 2010, Mr Pianta described the plaintiff as “a dramatic lady”.[12] Mr Pianta made the final observation of his examination of the plaintiff:
“Mrs Monterossa was reviewed on 1 October 2009 with the above x-rays. She had a full range of motion of the shoulder and the neck but did complain of pain. There was restriction of internal rotation or external rotation with the arm in 90Õ of abduction. Despite this she was quite unwilling to put her hand up behind her back.[13]
…
I felt much of her pain, if not all of it, was likely to be stress related. No further follow up was planned.”[14]
[12]CB 61
[13]CB 61
[14]CB 62
28 I conclude, based on the opinions of Dr Acevedo and Mr Pianta that the plaintiff’s left shoulder injury is not a “serious” impairment or loss of body function for the plaintiff. In the DVD surveillance films for the days of 2 and 3 March 2012, the plaintiff showed an ability to move her arm in a full range of movement when fixing or adjusting her hair in the course of her normal activities at the shopping centre. The plaintiff’s application for serious injury certification in respect of her left shoulder is dismissed.
Psychiatric Injury to the Plaintiff as a result of the Transport Accident
29 In this proceeding the plaintiff seeks a serious injury certificate pursuant to s93 ss17(c) of the Act for “severe long-term mental or severe long-term behavioural disturbance or disorder”.
30 In her affidavit dated 8 September 2009, the plaintiff stated that as a result of the transport accident she experienced anxiety and depression. The general practitioner referred the plaintiff to a psychiatrist, Dr Christopher Walsh, and she was prescribed Zoloft.[15]
[15]CB 12, paragraph 15
31 The plaintiff, in her affidavit dated 22 November 2011, stated that she was taking sleeping tablets, anti-depressant and anti-anxiety tablets and pain medication as a result of the transport accident. She also stated that she was depressed and anxious.[16]
[16]CB 19, paragraph 13
32 The plaintiff had, prior to the transport accident, attended upon her general practitioner, Dr Acevedo, with a complaint of insomnia. Dr Acevedo had prescribed the plaintiff with Normison and Serepax from 29 June 2005 to 31 August 2006 to treat her condition of insomnia.[17] The plaintiff's treatment for insomnia was continuing right up until the time of the transport accident.
[17]Exhibit 2
33 On 1 November 2006, Dr Acevedo, on behalf of the plaintiff, wrote to the Housing Department of the Department of Human Services to obtain alternative housing arrangements for the plaintiff. The basis for the doctor’s application on behalf of the plaintiff for the housing was that Mrs Monterossa was being treated for anxiety and low mood. In the letter to the Housing Department of the Department of Human Services, Dr Acevedo stated that the anxiety and low mood were a direct consequence of Mrs Monterossa’s husband’s behaviour at home when he was often inebriated and violent.[18] It is clear from this letter by Dr Acevedo that the basis for the low mood and anxiety at November 2006 was the behaviour of the plaintiff's husband. At that stage, the psychological impact of the transport accident was not mentioned by the general practitioner.
[18]Exhibit B
34 Dr Acevedo, on 20 March 2008, referred the plaintiff to Dr Christopher Walsh, psychiatrist. In his letter of referral to Dr Walsh, Dr Acevedo said that the plaintiff required assessment and management for anxiety and low mood, all consequences of the transport accident in September 2006. He also added that there were issues relating to the ex-partner stalking Mrs Monterossa.[19] The evidence is that by March 2008 the plaintiff was continuing to suffer from anxiety and low mood but the causes for that psychiatric condition were the transport accident and the continuing difficulties the plaintiff was having with her ex-husband.
[19]Exhibit B
35 The plaintiff was treated by Dr Christopher Walsh in four one-hour appointments between 7 April and 12 May 2008.[20] Dr Walsh took a history from the plaintiff concerning her pain and the effect it had on her, subsequent to the transport accident. He also noted:
“Problems have been compounded by the break-up of her relationship. Her husband had been drinking heavily and hitting her. After the separation he was stalking her. This has stopped in the last few months since she moved into her current accommodation and he doesn’t know where she is.” [21]
[20]CB 130
[21]CB 131
36 Dr Walsh also took a history that the plaintiff’s first husband was a heavy drinker and a violent man. The plaintiff had divorced her first husband in El Salvador prior to moving to Australia. Dr Walsh continued the prescription of Zoloft at 100 milligrams per day. He stated that he was prepared to review the plaintiff in six months of his report dated 7 July 2008. Dr Walsh has not seen the plaintiff since 12 May 2008.
37 Dr Walsh diagnosed the plaintiff as follows:
“She also suffers from dysthymia and mild generalised anxiety, but does not have post traumatic stress disorder.
These conditions are certainly exacerbated by her chronic pain condition which was brought on by her accident.”[22]
[22]CB 132
38 I find that Dr Walsh’s opinion was that the chronic pain condition brought on by the transport accident had a large impact on the psychological wellbeing of the plaintiff. He was not convinced that there was a post traumatic stress disorder.
39 The plaintiff, in her evidence, confirmed that she had not received any psychiatric or psychological treatment for the past four years.[23] The plaintiff continues to receive medication in the form of Pristiq at a dosage of 100 milligrams per day.[24]
[23]T 27, L8
[24]T 82
40 The plaintiff was sent to be reviewed by Dr Nicholas Ingram, psychiatrist. The assessment took place on 5 May 2011. Dr Ingram diagnosed the plaintiff as suffering from Chronic Adjustment Disorder with Depressed Mood which he describes as a secondary consequence of the transport accident. He also diagnosed that the plaintiff had some residual elements of Post-Traumatic Stress Disorder which are a primary consequence of the transport accident.[25]
[25]CB 96
41 Dr Ingram’s opinion was that the plaintiff’s main problem was her chronic pain and, as a result of her pain, she has become more physically limited. Dr Ingram stated that he was fairly pessimistic about the prognosis for the plaintiff given that at the time of his assessment it was some six years after the transport accident. He stated that:
“Her primary PTSD symptoms are less significant than the depressive symptoms and seem to have improved since she was assessed by Dr Serry three years ago, and may improve even further if she can find an appropriate antidepressant.”[26]
[26]CB 96
42 The plaintiff was examined by Dr Nathan Serry, psychiatrist, for medico-legal reporting by her solicitors. Dr Serry prepared two reports dated 15 September 2008 and 12 December 2011. Both of these reports were in the Court Book. Dr Serry was called for cross-examination by the defendant.
43 In his first report, Dr Serry diagnosed the plaintiff as follows:
“There was no pre-existing psychiatric illness. The psychiatric illness resulting from the accident is a chronic adjustment disorder with anxiety, depression and features of traumatisation consistent with a partial PTSD.”[27]
[27]CB 70
44 In his later report dated 12 December 2011, Dr Serry’s diagnosis was:
“1 Pain disorder associated with psychological factors and a general medical condition.
2 Chronic major depression with anxious features and with features of traumatisation consistent with a partial PTSD. Your client’s prognosis would now be considered guarded. There is a significant nexus between the physical and psychiatric aspects of her presentation and whilst there has been a degree of improvement since the commencement of the antidepressant Pristiq, your client does appear to remain quite symptomatic. I do feel that given your client’s persistent symptomatology, she should be continuing to receive regular psychiatric care.”[28]
[28]CB 78
45 In cross-examination, Dr Serry conceded that he did not know of the following prior conditions relating to the plaintiff’s psychiatric wellbeing:
·The plaintiff was on Serepax for insomnia in 2005 prior to the transport accident[29]
·The plaintiff had marital problems and stressors in 2008[30]
·That he had asked the plaintiff about the presence of other stressors and that she did not provide any information to him[31]
·That the plaintiff had a violent husband and this was a problem for her.[32]
[29]T 66
[30]T 66
[31]T 68
[32]T 69
46 The failure by the plaintiff to give a full and proper history of prior treatment for insomnia and the ongoing difficulties with her ex-husband do not assist Dr Serry in setting out a full and proper diagnosis of the plaintiff's condition. Dr Serry, after being advised of all of the relevant psychiatric difficulties that the plaintiff was suffering, stated in his evidence as follows:
A:“I would state – in my own clinical experience, as a clinical consultant psychiatrist and medico-Iegal psychiatrist of many years, I would state that there are multiple factors which are likely to be contributing to her presentation and that it would appear as though her condition had become somewhat entrenched.
Q:My point to you is this. There are multiple factors. The extent of any involvement of the motor vehicle accident – given you weren’t aware of all the other matters, the extent of the motor vehicle accident for you is an impossibility to assess?---
A:I don’t know if it’s an impossibility. It’s complicated.
Q:And very difficult?---
A:Yes, difficult.”[33]
[33]T 76, L1-14
47 In conclusion, I find that the evidence and opinions of Dr Serry and Dr Ingram are similar in respect of the alleged condition of Post Traumatic Stress Disorder suffered by the plaintiff. It is fair to summarise their view that the plaintiff suffers from some features of Post Traumatic Stress Disorder but is not suffering from the full condition of Post Traumatic Stress Disorder. The common theme of the medical opinion is that the plaintiff’s psychiatric and psychological condition is one of Depression with Anxiety features brought on by the chronic pain that she complains about.
48 I conclude that the level of psychiatric or psychological disorder suffered by the plaintiff is not “severe” as required under the Act. The plaintiff has not been treated by a psychologist or psychiatrist for some four years. The medication that she is currently taking is 100 milligrams of Pristiq. The treatment regime for her psychological complaints does not support a finding for serious injury. The medical opinions in this application also do not support the level of disability to the extent of “severe” as required under the Act.
49 The plaintiff’s application for serious injury certification for psychiatric/ psychological disorder is dismissed.
Injury to the Left Lower Limb/Left Ankle
50 The plaintiff seeks leave to bring proceedings for damages as a result of an injury to her left ankle arising from the transport accident.
51 On the day of the accident, 30 September 2006, the plaintiff was taken from the scene of the accident to the Western Hospital by ambulance. At the Western Hospital, the following observations were made of the plaintiff’s left ankle:
“Her left ankle had swelling on the lateral aspect and pain on palpation. There is a decreased range of movement due to pain.
…
X-ray of the left ankle: Small calcified bodies lie in the swollen lateral malleolus superficial to the distal fibula. They appear well claudicated and their morphology is unconvincing for acute avulsion fractures. Ankle mortice is congruent. No other bone lesion identified.”[34]
[34]CB 27
52 On that day, the plaintiff had a back slab applied to her left ankle and she was discharged from hospital with crutches.
53 On 11 October 2006, the plaintiff returned to the Western Hospital. On that day, she had a left ankle x-ray. The report from the Western Hospital states as follows:
“The bony details are mostly obscured. Despite the given clinical history, the fracture line is not clearly seen. As seen through cast, the bony alignment is anatomical. The doctor seeing her felt she had ligamental injury to both sides of the left ankle and the back slab was reapplied and she was advised to use it for 2 to 4 weeks.”
54 The plaintiff was to return to the fracture clinic at the Western Hospital on 22 November 2006. She did not do so.
55 The plaintiff attended Dr Acevedo on 2 October 2006 in relation to the transport accident. Curiously, his notation is that the right leg was in a back slab.[35] It is not in dispute in this case that the left ankle is the ankle which is injured in the transport accident. The plaintiff continued to be attended by Dr Acevedo for the injuries to her as a result of the transport accident, including the left ankle injury.
[35]Exhibit 2
56 The plaintiff’s left ankle condition did not improve despite the treatment by back slab. The plaintiff had been treated by Richard Watson, physiotherapist, after referral to him by Dr Acevedo. The plaintiff’s physiotherapy treatment continued from 18 October 2006 until November 2006, when Mr Watson was of the view that her ankle was not improving with his treatment. He referred the plaintiff back to Dr Acevedo for further investigation.[36]
[36]CB 38
57 On 4 December 2006, Dr Acevedo referred the plaintiff for a CT scan of her left ankle. The result of the CT scan is reported as follows:
“Cortical contour irregularity of the distal aspect of the left lateral malleolus is identified, associated with adjacent small opacities. The appearance is likely representing an avulsion injury, ? recent.”[37]
[37]CB 41
58 The plaintiff continued to complain to Dr Acevedo of left ankle symptoms. On 27 July 2007, the plaintiff had an MRI scan of her left ankle. The reported result of the MRI is as follows:
“1Chronic or sub acute avulsion fracture of the tip of the left lateral malleolus with underlying bony and soft tissue oedema.
2Possible strain or partial tear of the medial deltoid ligament.
3Peroneal complex and posterior tibialis tenosynovitis.”[38]
[38]CB 33
59 As a result of the MRI results, Dr Acevedo referred the plaintiff to Mr Andrew Beischer, orthopaedic surgeon, on 14 August 2007. Dr Acevedo reports:
“The client underwent surgery to her left ankle on the 26th November 2007 and the operative diagnoses were peroneus longus tear, peroneal retinacular immobility and anterior ankle arthritis.”[39]
[39]CB 31
60 Mr Andrew Beischer, orthopaedic surgeon, prepared three reports, dated 11 October 2007, 30 June 2008 and 14 February 2012, for this application. Mr Beischer first saw the plaintiff on 14 August 2007. Mr Beischer reports on his surgery on 27 November 2007 as follows:
“Rita underwent a left ankle arthroscopy, left fibular osteoplasty, left peroneus longus repair, left peroneal retinaculum reconstruction and left peroneal tendon synovectomy on the 26th November 2007.”[40]
[40]CB 46
61 Mr Beischer reported further:
“The patient was last seen on the 15th April 2008 and at that stage the patient noted that she was still experiencing pain in her ankle but she appeared to have a good range of motion and was told that no further surgery was likely to be of benefit. She was advised to use a lace-up support ankle brace if she found that she developed significant instability symptoms, particularly when walking on uneven surfaces.”[41]
[41]CB 47
62 Mr Beischer continued to review the plaintiff up until 5 November 2009, when she was discharged from his care.
63 Mr Beischer was asked to re-examine and advise the plaintiff on 14 February 2012. At that time, his opinion was as follows:
“The current diagnosis is that the patient appears to have mild post traumatic osteoarthritis and stiffness of her ankle, with possibly a super imposed mild chronic regional pain syndrome.
…
It would appear that despite appropriate surgery, Mrs Monterossa has ongoing issues with pain in her ankle and I believe it is unlikely that she will have a pain free ankle. I imagine that she will have long term issues with ankle pain and some stiffness and have advised her the only potential surgical solution to this could be an ankle arthrodesis.”[42]
[42]CB 53
64 Mr Beischer also reported directly to Dr Acevedo in respect of this visit. In that report, he stated:
“Her major issue is, I believe, that she is developing post traumatic arthritis of the ankle, but all we would be able to do for this most likely at this point would be an ankle arthrodesis and that is certainly something that Rita is not keen to contemplate.”[43]
[43]CB 54A
65 It is clear from Mr Beischer’s reporting both to the plaintiff’s solicitors and to her general practitioner that her left ankle condition is deteriorating in the sense of post-traumatic arthritis to the left ankle. In his opinion, if the pain for the plaintiff is bad enough, then the only further treatment would be an ankle arthrodesis. This is major surgery.
66 The plaintiff was sent to Mr Paul Kierce, orthopaedic surgeon, for medico-legal reporting on 30 November 2011. In his report of that date, Mr Kierce stated that it was almost impossible to assess the plaintiff’s left ankle injury.[44] He noted that the plaintiff limped on her left leg and that she was unable to walk on her heels and toes.[45]
[44]CB 82
[45]CB 87
67 Mr Kierce, in his report, stated:
“I attempted to examine her left ankle but she had generalised tenderness and would not move her left ankle at all for me while lying supine. She was very tender over the 7cm longitudinal incision over the lateral malleolus and tapping there caused paraesthesias in the outer part of the left foot and outer toes.”[46]
[46]CB 88
68 Mr Kierce continued:
“Assessment of this lady has been most difficult because of her apparent hysteria, as when I was examining her physically she would burst into a strange form of laughter.
I am of the opinion that in this accident she very likely suffered:
1Fractures of the left lateral malleolus with tearing of peroneal tendons and possible aggravation of pre-existing osteoarthritis of the left ankle; …”[47]
[47]CB 89
69 The plaintiff was examined on behalf of the defendant by Dr Tony Kostos, rheumatologist. This occurred at his clinic in East Melbourne on 20 June 2011. In respect of the left ankle, he noted as follows:
“There was evidence of previous surgery to her left ankle. She could not display any active movements with her left ankle, and passive movements could not be assessed because she had an exaggerated pain response to light touch all around the ankle.”[48]
[48]CB 99
70 Dr Kostos was of the opinion that there were no other physical abnormalities relating to the plaintiff’s left ankle as a result of the transport accident.[49]
[49]CB 100
71 Dr Kostos’ opinion is inconsistent with the opinions of the other medical examiners of the plaintiff in respect of her left ankle injury. I disregard his opinion in the determination of whether or not the plaintiff has a serious injury in respect of her left ankle.
72 Mr John O’Brien, orthopaedic surgeon, examined the plaintiff on behalf of the defendant. The reports of Mr O’Brien are dated 17 February 2010 and 5 October 2011.
73 Mr O’Brien noted that the plaintiff was very emotional during the course of the history given to him, particularly when describing the severity of pain. She was observed to ambulate with a gross left-sided antalgic limp.[50] After examination, Mr O’Brien noted the following in respect of the plaintiff’s left ankle:
“… there was noted to be restricted movement of the ankle and subtalar joint on the left side, which would correlate with the findings noted by Mr Beischer at the time of his surgery. Clearly the signs noted particularly in the lateral aspect of the ankle would suggest ongoing soft tissue pathology such as peroneal tenosynovitis.”[51]
[50]CB 103
[51]CB 104
74 Mr O’Brien, in October 2011, reported as follows:
“Ms Monterossa was rather emotional when discussing the ‘terrible’ pain. She was observed to move quite slowly and at times demonstrated a left-sided limp.
…
On formal examination of the left lower leg the patient indicated she could not move the ankle, subtalar joint or toes. All muscles of the left leg were apparently weak with some variable sensory changes described in the left knee below the knee of a non-anatomical basis. However, all reflexes were present in the lower limbs.”[52]
[52]CB 109
75 Mr O’Brien’s opinion was that the plaintiff, due to her subjective signs, made it extremely difficult to adequately assess any specific underlying musculoskeletal pathology. In his opinion, the presentation by the plaintiff was that of a Chronic Pain Syndrome which is now predominantly influenced by non-organic factors.[53]
[53]CB 110
76 The plaintiff had also been reviewed on behalf of the plaintiff’s solicitors by Dr Clayton Thomas, a consultant in rehabilitation and pain management. Dr Thomas’ report is dated 3 December 2008. Dr Thomas thought it reasonable to accept that there was some residual problem relating to left foot and ankle, but did not think that these were marked. He thought that the plaintiff was certainly at risk of developing further problems with her left ankle, but thought that that was fairly low.[54]
[54]CB 115
77 I note that Dr Clayton Thomas’s report is dated 2008, some time shortly after the surgery performed by Mr Beischer.
78 I accept the evidence of Mr Beischer, as he is the treating surgeon and has the most considered ongoing therapeutic relationship with the plaintiff, and is best placed to determine the success of his own surgery and provide an accurate assessment of what difficulties the plaintiff now experiences. I accept that he would not be recommending or suggesting a left ankle arthrodesis operation unless, in his opinion, the plaintiff was suffering from considerable pain and disability. Whilst Mr Kierce notes the peculiar behaviour of the plaintiff whilst he was examining her, he agrees, in general terms, with what Mr Beischer had reported upon. Mr Kierce did not have the advantage of the last report from Mr Beischer.
Consequences of the Left Ankle Injury to the Plaintiff
79 In assessing the application for a serious injury certificate relating to the plaintiff’s left ankle, I have to assess the consequences of that loss of body function to the plaintiff.
Employment
80 It is clear from the evidence that the plaintiff has never worked whilst being resident in Australia. The evidence is that she has never applied for employment, either prior to or subsequent to the transport accident. I find that there is no adverse consequence of the transport accident to the plaintiff in respect of her employment situation, given that she is now a pensioner and has not applied for any employment in the past since being resident in Australia.
Pain
81 I accept that the plaintiff is suffering from pain. Her treating surgeon, Mr Beischer, accepts that the level of her pain is such that he contemplates that an ankle arthrodesis might be the only way to deal with the level of her pain. The evidence is that the plaintiff takes Endep, 50 milligrams per day, to assist in her pain management.[55] The plaintiff has been prescribed Voltaren tablets, 50 milligrams, and Mersyndol Forte in 2009.[56]
[55]T 82
[56]Exhibit 2
82 The assessment of the level of pain for the plaintiff is always a difficult issue. In this case, the plaintiff has consistently and regularly complained to her treating medical practitioners about the constancy of pain in her left ankle and elsewhere. She has been prescribed pain relief medication by her general practitioner. She has given evidence and been cross-examined about her pain levels and, whilst it may be said that she exaggerates her level of pain, I accept that the plaintiff is a person who suffers from considerable pain as a result of her left ankle injury.
Lack of Mobility
83 The plaintiff has given evidence and complains of instability in her left ankle and foot.[57] The plaintiff also complains of a restricted range of movement of her left ankle.[58]
[57]CB 12
[58]CB 12
84 The plaintiff says that as a result of this difficulty in her left ankle, her walking tolerance has been reduced and that she wears an ankle support to assist in containing her symptoms. I note that Mr Beischer recommended to the plaintiff that she use her left ankle support. The plaintiff has consistently reported to doctors that her walking tolerances have been reduced and I accept that that is the case here. I find that the reduction in the plaintiff’s ability to walk distances and use her ankle freely is a significant consequence for her.
Limping
85 The plaintiff gave evidence that she limps. In the medical reports that I have referred to in these reasons, a number of the medical practitioners note that the plaintiff was limping. In the course of this proceeding, the plaintiff was shown on DVD surveillance film for the days of 1, 2 and 3 March 2012.
86 I find that on 1 March 2012, whilst the plaintiff was walking towards a railway station at a reasonably quick pace, there was a discernable limp in the manner in which she walked and she was careful when she approached the kerb in order to step up onto it. Interestingly, in her evidence, the plaintiff said that she could not see herself limping in that film.
87 On the following two days of DVD surveillance, the plaintiff exhibited a much slower walking pace and the limp was more pronounced. These surveillance films are taken when, clearly, the plaintiff had no idea she was being observed. The limping gait that she displayed on those films clearly indicates that she has a difficulty in her left ankle. That difficulty is identified and diagnosed by her treating surgeon, Mr Beischer. The limping gait is indicative of a significant left ankle problem for the plaintiff.
Sleep
88 The plaintiff complains that she is suffering sleep interruption. It is clear on the evidence that the plaintiff has had insomnia for a considerable period prior to the transport accident. Her evidence is that as a result of her left shoulder injury and ankle pain, her sleep is now disturbed. I accept that the plaintiff’s sleep patterns have been interrupted by the pain that she suffers as a result of her left ankle injury. It is not, on its own, a significant and direct result of the left ankle injury. I find that the pain to her left ankle is a factor in the interruption to the plaintiff’s sleep patterns.
Conclusion
89 After consideration of all the evidence, I am of the view that this is a finely balanced case, but ultimately, taking into account all the consequences suffered by the plaintiff as a result of her lower left limb injury, in particular, the left ankle, I am satisfied that such consequences, when judged by comparison with other cases in the range of possible impairments, can be fairly described as being “more than significant or marked” and as being at least “very considerable”.
90 I conclude that the application for serious injury certification in respect of the lower back, left shoulder and psychiatric injury are not made out and are dismissed.
91 Accordingly, pursuant to s93 of the Act, I grant leave to the plaintiff to bring common law proceedings for pain and suffering damages in respect of the lower left limb and ankle injury suffered by her in a transport accident on 30 September 2006.
92 I will hear the parties on the issue of costs.
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