Moore v Transport Accident Commission
[2021] VCC 888
•8 July 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-06032
| LAURA JANE MOORE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 and 18 June 2021 | |
DATE OF JUDGMENT: | 8 July 2021 | |
CASE MAY BE CITED AS: | Moore v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 888 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Injury to the neck – identification of the injury – identification of the consequences of the impairment of function of the neck – whether the plaintiff suffered any pecuniary disadvantage – whether the aggregate of the pain and suffering consequences and the pecuniary disadvantage consequences meet the statutory test of seriousness
Legislation Cited: Transport Accident Act 1986 (Vic), s93
Cases Cited:Richards & Anor v Wylie (2000) 1 VR 79; Davidson v Transport Accident Commission [2015] VSCA 12
Judgment: The plaintiff is granted leave to bring a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C J Winneke QC with Ms J Cowen | Henry Carus + Associates |
| For the Defendant | Mr P D Elliott QC with Mr S Pinkstone | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1The plaintiff is a thirty-one-year-old married expectant mother who was involved in a major transport accident on 24 December 2015 on the Midland Highway in Clarendon. Clarendon is a locality within the Shire of Moorabool on the Midland Highway. The transport accident occurred when the driver of the other car failed to give way to the plaintiff as she was driving along the Midland Highway that resulted in the plaintiff colliding head-on into the side of the other car at high speed.
2The plaintiff suffered an injury to her neck which she submitted is “serious” by reason of the consequences of the impairment of the function of her neck. The defendant submitted that an objective assessment of the consequences do not support such a conclusion.
3Mr C J Winneke QC appeared with Ms J Cowen of counsel for the plaintiff. Mr P D Elliott QC appeared with Mr S Pinkstone of counsel for the defendant.
Executive summary
4After considering the whole of the evidence and the competing submissions of the plaintiff and the defendant, I have concluded that the impairment consequences contended for by the plaintiff are “serious”.
5I will therefore grant the plaintiff leave to bring a proceeding to recover damages at common law.
The transport accident
6The plaintiff submitted that the circumstances of the transport accident easily lend themselves to a conclusion that the transport accident was one of high impact, and the type of impact likely to result in a significant injury. The plaintiff relied upon this because there was an issue about the identity of the injury suffered by the plaintiff, whether it was of any real significance, and whether it resulted in any impairment of function of any significance.
7The incident report prepared by investigating police discloses a number of facts which the plaintiff submitted demonstrate that the transport accident was one of high impact.[1]
[1] Plaintiff's Court Book (“PCB”) 88-90
8The car driven by the other driver was a 2005 Holden Rodeo utility. The car driven by the plaintiff was a 2015 Holden Camry. The plaintiff was driving in a southerly direction on the Midland Highway. The car driven by the other driver entered from an intersecting roadway across the path of the plaintiff’s car, with the result that the front of the plaintiff’s car collided into the passenger side of the other car. The speed limit for cars on the Midland Highway was 100 kilometres per hour. I was informed that the plaintiff was travelling at around that speed. The defendant did not suggest otherwise. It would appear that neither vehicle braked before the occurrence of the transport accident.
9I will not say much more about the circumstances of the transport accident at this stage. The relevance of the circumstances will become apparent later in these reasons.
The immediate aftermath
10The plaintiff was able to alight from her car after it came to rest. She was aware of pain in her chest, her back and ribs. She does not say much about the nature and extent of those injuries, but something of their gravity can be deduced from the fact that she was airlifted to The Alfred hospital. The ambulance record discloses that a medical practitioner attended the plaintiff at the scene of the transport accident. An assessment was made, resulting in a decision to airlift the plaintiff to The Alfred hospital.[2]
[2] PCB 73-86
The Plaintiff’s music career
11One of the issues which the defendant contested was whether the plaintiff was as proficient and successful a musician as she contended for. That issue figured very prominently throughout the plaintiff’s evidence, and in particular, cross-examination. I think it is best to deal with this issue before going into a summary of the plaintiff’s medical treatment, and the consequences of the impairment of the function of her neck on her capacity to perform proficiently and successfully as a musician.
12The plaintiff’s musical instruments were the cello and the viola da gamba. She became particularly proficient and successful playing the latter mentioned instrument. I think the features of a cello are commonly understood in terms of its size, the position occupied by the instrumentalist, and how it is played. It is worth noting that the plaintiff played both a regular cello and baroque cello. The salient difference is that a regular cello has a spike protruding from its base which assists in stabilising the instrument, whereas the baroque cello has no spike, and must instead be cradled within the instrumentalist’s calves and thighs to achieve stability. The viola da gamba, I think, is less within common understanding, and certainly not an instrument that I had ever heard of prior to the commencement of this proceeding.
13The viola da gamba, like the baroque cello, does not have a spike at its base which makes contact with the floor, with the instrumentalist seated with the neck of the instrument extending against and over the instrumentalist’s left shoulder. The fretboard is then manipulated with the left hand and the bow string with the right hand. The instrumentalist places the body of the instrument between the instrumentalist’s legs. It is held in that position, presumably by pressure applied by the legs, but otherwise the position of the neck and the manipulation of the fretboard and the operation the bow string are similar to the playing of the cello. The plaintiff described three sizes of viola da gamba – a bass, a tenor, and a treble – in order of largest to smallest.[3] The bass viola da gamba is a slightly smaller instrument than a cello.[4] The tenor, being the next size down, generally sits just above the instrumentalist’s feet, with the neck reaching the instrumentalist’s shoulders. The treble, the smallest of the three, sits on the instrumentalist’s knees and also reaches the instrumentalist’s shoulders. Out of the three variations, it was the bass viola da gamba that the plaintiff played primarily.[5]
[3]Transcript 104
[4] The bass viola da gamba is depicted in photographs at DCB 240, 241, 242, 257, 266 and 269
[5]Transcript 104
14The plaintiff completed her secondary schooling at Gippsland Grammar by 2005. She subsequently attended the Victorian College of the Arts Secondary School from 2005 to 2007. The plaintiff then pursued tertiary education, attending the Victorian College of the Arts from 2008 to 2010. She obtained a Bachelor’s degree in Music Performance conferred in 2010. She commenced a Master of Teaching at The University of Sydney in 2013. She obtained a Master’s degree conferred in October 2014.[6]
[6] PCB 16-17
15The plaintiff described employment and pursuit of a career as a professional musician in her principal affidavit in this application. She described the following:[7]
· She worked at the University of Melbourne as a casual administrator for two years from 2010. At the same time, she pursued part-time employment with Lowther Hall Anglican Grammar School, presumably as a music teacher.
· At the same time as working at the University of Melbourne and Lowther Hall, she engaged in musical performances for which she was paid.
· She worked at the Summer Hill Public School in New South Wales from March 2013 to July 2013.
· In 2013, she performed with the Australian Chamber Orchestra and The Melbourne Bach Orchestra in Sydney and Melbourne.
· She participated in ABC recordings with three ensemble groups and as a special guest with one of the ensemble groups at the Melbourne Recital Centre in 2012 and at various other times up to 2015.
[7] PCB 17-18
16The plaintiff described her ambition to achieve a high level of proficiency and success as a musician as follows:
“10.In addition to being employed by Melb[ourne] Uni[versity] and LHAGS I would play musical performances, some of these I was paid for but the remuneration was not significant what was important was to perform as often as possible for a number of reasons including learning new pieces, creating an extensive performance resume, playing in public, and to form important relationships.
11.My goal was to be a professional classical musician, meaning I would make my living from performances and supplement this income with teaching private lessons. I envisioned studying in Europe and playing in Europe for a period of around 5 years as my instrument the viola da gamba is a classical instrument and Europe has a bigger ‘market’ for classical performers, more teachers and opportunities for professionals. I anticipated making my living in Australia, after playing in Europe, from professional performances and teaching as a private tutor.”[8]
[8] PCB 17
17In November 2014, the plaintiff travelled to Europe to meet other viola da gamba teachers, to join masterclasses, and to learn and study from what she described as the best in the world. She attended lessons and masterclasses with four named individuals in Europe with the aim of finding a university where she could study, and a desirable teacher. It was her intention to commit to more than five years in studying and playing in Europe to improve her skills and to build important connections. Her ambition was somewhat thwarted by the fact that she had to return to Australia because of money problems.
18Furthermore, her ambition to achieve her goal was further pursued by her when she ordered a custom made viola da gamba from a renowned viola maker in Europe. It was manufactured and delivered to the plaintiff in January 2017. It came at a cost of €17,000.[9]
[9] PCB 18. 17,000 Euros converts to 26,935.43 Australian Dollars as at June 2021
19After the plaintiff’s return to Australia in 2014 , she commenced employment with Croydon Public School in New South Wales in around 27 January 2015.
The Plaintiff’s treatment
20The plaintiff was treated at The Alfred hospital on the day of the transport accident. She was investigated by radiology, which revealed that she had suffered a small right anteroinferior pneumothorax.[10] She was discharged from the hospital on the following day and returned to New South Wales, where she had been living.
[10] PCB 92-96
21The plaintiff did not have any treatment for the next three or four weeks until she woke with excruciating pain in her back and neck and was unable to move.[11] She attended Dr Jin Choong, general practitioner, on 4, 5 and 11 January 2016. His attention was directed to the plaintiff’s chest injury. When she saw Dr Choong on 25 January 2016, he noted that she had a delayed onset of neck pain resulting from the transport accident. He told her that she had suffered a whiplash injury.[12]
[11] PCB 19
[12] Defendant's Court Book (“DCB”) 37-38
22The plaintiff was referred to Ms Gregoria Raisis, physiotherapist. Her first physiotherapy treatment was on 18 January 2016. The clinical notes of Ms Raisis disclose that the plaintiff attended for physiotherapy treatment until 16 December 2016.[13] In general terms, the clinical notes demonstrate that the plaintiff appeared to progress tolerably well.
[13] PCB 202-240
23At the time of the occurrence of the transport accident, the plaintiff was employed as a music teacher at the Croydon Public School in New South Wales. She was absent from her employment for about one month, and then returned on light duties for about four to five weeks before being able to return to full-time duties.[14]
[14] PCB 18-19
24The plaintiff developed more persistent neck pain, and then, in about June 2016, she noticed weakness in her arms which resulted in her dropping objects. She was referred to Professor Con Yiannakis, neurologist. She saw him on 28 July 2016. He provided a report dated 28 July 2016.[15] She reported numbness and paraesthesia, predominantly in her hands, but more recently in her feet. She also reported that the symptoms had been present over the preceding six months and fluctuated on a daily basis. In particular, she reported clumsiness, often dropping the cello while she was playing. The plaintiff described dropping the bow mid-performance while playing in mid-2016 which is one of the consequences of the weakness in her arms.[16] I assume that the reference to dropping the cello is a mistake and it in fact is a reference to the bow incident.
[15] PCB 100-101
[16] PCB 21
25Professor Yiannakis referred the plaintiff to have an MRI scan of her neck. He explained the appearances on the MRI scan in a further report dated 12 December 2016.[17] It showed degenerative disc disease at C4-5 and C5-6 with narrowing of the foramen, worse on the right than the left.[18] He considered that the most likely source of her symptoms in her hands was secondary to cervical root pathology; however, it did not explain the symptoms in her feet. As a precaution, he also referred her to have an MRI scan of her brain to exclude any cerebral abnormality. The radiologist reported that the MRI scan was within normal limits, demonstrating no abnormality.[19]
[17] PCB 255
[18] PCB 98
[19] PCB 99
26The plaintiff returned to Victoria in late 2016 to be near family and to have family emotional support. The plaintiff continued to have treatment after returning to Victoria. In summary, she obtained the following treatment:
· The plaintiff commenced physiotherapy with Mr Oscar Baring at the Coburg Physiotherapy Centre in early 2017.
· She moved to Geelong at some point, and in November 2019, she continued physiotherapy with Mr Andrew Franke at the Belmont Physiotherapy Centre. She saw him about once a month for treatment until February 2021.
· She commenced treatment with Dr Millie Glenn, general practitioner, on 24 February 2020. Dr Glenn provided a report dated 24 November 2020 in which she outlined the treatment which the plaintiff had obtained, and treatment which she referred the plaintiff to have.[20]
· Dr Glenn referred the plaintiff to Dr Brett Chandler, specialist pain medicine physician. He provided a report dated 7 December 2020. The plaintiff first saw him on 4 June 2020. He provided her with diagnostic blocks of the C2‑3, C3-4 and C4-5 medial branches bilaterally on 30 July 2020.
· She commenced osteopathic treatment in July 2020 with Ms Lisa Kiddle at Body Align Osteopathy. She saw her about once a month for treatment.
[20] PCB 106-107
Employment post injury
27The plaintiff pursued alternative employment at number of schools after she returned to Victoria. In summary, she obtained the following employment:
· She commenced employment with St Bernard’s Primary School, teaching classroom music, on 27 January 2017. She hoped that working part time would permit her to perform and practice, still keeping in mind her dream of studying in Europe and returning to music as her profession. She resigned from her employment with St Bernard’s School at around the time when she was experiencing panic attacks.
· She commenced part-time employment with St Michael’s Grammar School in July 2017, which took her through to December 2017.
· She then commenced employment with Christ Church Grammar School in about January 2018 as the school’s head of music. She was required to perform duties consisting of teaching music and undertaking administrative work. She struggled, and consequently resigned from that employment in November 2018.
· She commenced part-time employment with the Kardinia International College in January 2020 working two days per week teaching classroom music, which limited her need to play instruments.
· At around the same time, she commenced part-time employment with the Freshwater Creek Steiner School teaching the cello, which she is able to manage.
28The plaintiff continues to pursue the part-time employment with the Kardinia International College and the Freshwater Creek Steiner School.
29In addition to the employment pursued by the plaintiff after she returned to Victoria, she engaged with a colleague, Ms Lizzy Welch, forming an ensemble known as Harken Well. I will return to the time the plaintiff remained with the ensemble later in these reasons.
30The defendant, among other things, emphasised that not only did the plaintiff pursue employment subsequent to the occurrence of the transport accident, but she pursued her interest in undertaking performances. The performances inevitably involved rehearsals, and travelling to various destinations where the performances were undertaken.
31Under cross-examination, the defendant referred the plaintiff to her Facebook and text messages which contain entries relevant to performances. In summary, the defendant referred to the following:
· the plaintiff received a text message from Mr John Fossit asking her to engage in performances in January 2016.[21] Initially, the plaintiff responded saying that she was available for some performances, but ultimately did not do so because of her neck injury.[22]
[21] DCB 267-269
[22] Transcript 31-32
· the plaintiff agreed that she engaged in performances with an ensemble on 30 March 2016 at the Melbourne Recital Centre referred to in the Summer 2016 edition of the Australian Viola da Gamba Society Newsletter. She denied engaging in a further performance on 24 April 2016.[23]
[23] DCB 248-250 and Transcript 33
· the plaintiff agreed that she was the musical director of a workshop described as the 37th Annual Easter Viol Workshop in Melbourne. Her role was more teaching and facilitating playing.[24]
[24] DCB 239-243 and Transcript 35-36
· the plaintiff agreed that she performed with an ensemble known as Josie and The Emeralds on one or two occasions.[25]
· the plaintiff agreed that she performed with the ensemble Harken Well at concerts through 2017, 2018 and towards the end of 2019, but not beyond 2019.[26]
· the plaintiff agreed that she performed with the ensemble Harken Well at concerts on 23, 24 and 25 August 2017 at Carlton, Castlemaine and Buninyong.[27]
· the plaintiff agreed that she performed with The Saltbush Ensemble on 23 and 24 June 2018 in Canberra. She said that it was a teaching workshop.[28]
· the plaintiff denied performing at a music festival in Castlemaine in March 2019. The plaintiff also denied engaging in performances with Harken Well later in 2019. She resigned from Harken Well in August 2019 in circumstances which I will refer to later in these reasons.[29]
· the plaintiff denied performing with Harken Well in September 2019 at Beechworth.[30]
· the plaintiff denied that the reference to her in a newsletter of the Geelong Youth Choir involved playing an instrument. She was a singing teacher of a choir.[31]
· the plaintiff denied performing at Trinity College Chapel on 20 October 2019 due to pain, presumably in her neck.[32]
· the plaintiff agreed that she performed with the Australian Brandenburg Orchestra, and toured with the group known as Ayres and Graces through New South Wales in March 2019. She flew to Sydney and drove between a number of rural localities, for example Orange, Singleton, Blackheath, Goulburn and Berry.[33]
· the plaintiff agreed that the concert tour was repeated in Melbourne in mid 2019. However, she described needing to obtain physiotherapy treatment because her “back and neck were not coping”. She found the tour challenging and described it as being “the nail in the coffin” which I understood to mean she realised she could not cope with the physical demands of touring.[34]
[25] DCB 234 and Transcript 38
[26] DCB 230 and Transcript 42
[27] DCB 228-229 and Transcript 46
[28] DCB 222-224 and Transcript 47-48
[29] DCB 132 and Transcript 48
[30] DCB 135-136 and Transcript 48-49
[31] DCB 137-139 and Transcript 50
[32] DCB 142-145 and Transcript 51
[33] DCB 127, 187 and Transcript 56
[34] Transcript 57
32Under cross-examination, the plaintiff was referred to an email she sent to Ms Lizzy Welsh dated 31 August 2019. The plaintiff and Ms Welsh formed Harken Well. In the email, the plaintiff referred to a number of reasons why she decided to resign from Harken Well. She referred to suffering depression, life changing injuries, and the consequences of a sexual assault case, all of which brought her to the point where she said that she no longer enjoyed performing.[35]
[35] PCB 57
33The plaintiff was the victim of a sexual assault. She reported the occurrence of the sexual assault in February 2019. The evidence is vague about what the plaintiff described as a sexual assault case, but what I managed to glean from the evidence is that the perpetrator was prosecuted, but the charges, whatever they were, were dismissed. She was pressed about the impact upon her of the sexual assault and the sexual assault case. She said that she had treatment for depression through her general practitioner, who provided her with a mental health plan, and she obtained counselling.
34The plaintiff was treated by Dr Imeshika Jayawardena, general practitioner, for depression. She referred the plaintiff to Ms Edith Borg, psychologist, for counselling. In her letter of referral to Ms Borg, Dr Jayawardena referred to the plaintiff having been prescribed antidepressant medication in the past, and having sought and obtained treatment from psychologists in Sydney and Melbourne.[36]
[36] DCB 63-64 and Transcript 54-55
35I will now turn to the medico-legal assessments before synthesising all of this evidence and dealing with the questions which are specifically raised for my consideration in determining whether the impairment consequences contended for by the plaintiff are “serious”.
The medico-legal assessments
36I will deal with the medico-legal assessments in chronological order. The first in time is Mr John O’Brien, orthopaedic surgeon, who examined the plaintiff on 13 November 2018. He subsequently provided a report dated 13 November 2018.[37] He re-examined the plaintiff on 2 June 2020, and he provided a further report dated 2 June 2020.[38] He then provided a further report dated 1 February 2021 in which he reviewed the treatment provided by Dr Chandler, and the accompanying observations of the results of that treatment. Mr O’Brien understood that the plaintiff obtained a good result from the treatment provided by Dr Chandler, although, he expressed some doubt about the success of the second procedure Dr Chandler performed on the plaintiff.
[37]PCB 111-115. The report was a joint report commissioned by both the solicitors for the plaintiff and the Transport Accident Commission
[38] PCB 176-180
37The last dated report of Mr O’Brien appears to me to be a summary of his examination and opinion contained in his earlier reports. He noted that the plaintiff presented to him complaining of chronic neck pain. He observed that the symptoms, signs and investigations did not enable him to define the precise pathology underlying the generation of pain experienced by the plaintiff, but he did provide a diagnosis that the plaintiff was suffering from chronic non-specific cervical pain. He described the impairment of the plaintiff’s neck as mildly affecting the plaintiff physically. He considered that it was likely that the chronic pain she was experiencing would persist. He considered that she was physically capable of continuing with her employment “currently being undertaken”, which I assume means the work she was undertaking as at the date of the report.
38Associate Professor Richard Bittar, neurosurgeon, examined the plaintiff on 17 June 2019 and provided a report bearing the same date.[39] He re-examined the plaintiff on 26 March 2020 and provided a report bearing the same date.[40] At the time when he re-examined the plaintiff, he had been provided with the same additional material as was provided to Mr O’Brien. His opinion varies from Mr O’Brien in a number of respects.
[39] PCB 135-140
[40] PCB 170-174
39Firstly, Associate Professor Bittar considered that he could make a precise diagnosis, which was that the plaintiff had suffered an aggravation of cervical spondylosis/injury. He considered that the plaintiff needed to continue with her current treatment regime, and that she would likely require repeat radiofrequency denervations every six to eighteen months depending on the duration of the benefit she obtained, and that requirement would be ongoing.
40Secondly, Associate Professor Bittar considered that the plaintiff’s prognosis was guarded and that she was likely to continue to suffer from pain and disability into the foreseeable future. He considered that she did have a capacity to work as a music teacher with some restrictions, however, he considered playing the cello would aggravate her neck pain, and therefore, her ability to do that would be limited. He considered that she might be able to return to part-time work as a musician, that if she attempted to play music for longer periods of time or too frequently, that it was likely that her neck pain would deteriorate.
41Mr Thomas Kossmann, orthopaedic surgeon, examined the plaintiff in March 2020 and provided a report dated 31 March 2020.[41] He was not provided, so far as I can determine, with the additional material that was provided to Mr O’Brien and Associate Professor Bittar. His opinion is more in line with that of Associate Professor Bittar, however, he regarded the plaintiff’s injury and its consequences as being more serious than did Associate Professor Bittar.
[41] PCB 141-148
42Mr Kossmann provided a diagnosis of cervical spondylosis in the form of disc osteophyte complex at C4-5 and C5-6 level associated with annular fissure causing mild canal stenosis. Mr O’Brien was asked to consider that diagnosis. He disagreed with Mr Kossmann. Mr Kossmann considered that the plaintiff will require treatment in the future in the form of medication, and that she might benefit from physiotherapy/hydrotherapy. He also considered that she might develop further degenerative changes in her neck which might also require further treatment. He considered that she had a limited work capacity, and that she should not engage in physically demanding work. He considered that would impact upon her career as a musician. He considered that she could work as an active musician a couple of hours per week and might be able to continue working as a teacher with restrictions.
43The plaintiff was examined by two psychiatrists – Associate Professor Nick Paoletti, who examined the plaintiff on 30 November 2018 and provided a report bearing the same date;[42] re-examination on 15 May 2020, and a further report finalised on 16 July 2020,[43] and Dr Gregor Schutz, who examined the plaintiff on 2 June 2020, and provided a report dated 7 June 2020.[44] Both psychiatrists obtained a reasonable history from the plaintiff of the occurrence of the transport accident and its consequences.
[42] PCB 118-130
[43] PCB 151-166
[44] PCB 181-191
44Associate Professor Paoletti considered that the plaintiff had suffered from an unspecified Anxiety Disorder and an unspecified Depressive Disorder for which the transport accident was a significant contributing factor. Dr Schutz considered that the plaintiff had suffered a Chronic Adjustment Disorder with Anxious and Depressed Mood with features of traumatisation. He considered that it originated in around 2013 in the context of a relationship breakup and the sexual assault. He considered that the occurrence of the transport accident had exacerbated her mood symptoms in part secondary to the pain and physical limitations resulting from the injury she suffered as a result of the transport accident.
45I do not propose to summarise the evidence of the psychiatrists any further, because the plaintiff only relied upon the secondary psychiatric consequences in the context of what was said in Richards & Anor v Wylie,[45] that secondary consequences of that kind is one of the consequences, along with others, which the Court will need to evaluate in determining whether the loss or impairment of a body function, when the relevant comparison is made, can be fairly described as “serious”.
[45] (2000) 1 VR 79
46Before turning to a synthesis of all of the evidence, and an ultimate analysis of it in the context of the questions which fall for my consideration, I should add that the medical evidence was reasonably extensive. Neither party invited me to undertake any particularly detailed analysis of it because there was a broad acceptance that the plaintiff suffered an injury to her neck which resulted in impairment consequences, and ultimately it was for me to determine whether the impairment consequences are “serious”.
Synthesis
47The medical evidence discloses that the plaintiff sought treatment for a neck injury within a period following the occurrence of the transport accident which not one medical practitioner has suggested is inconsistent with it being causally connected to the transport accident. Whilst the defendant did not seriously contend that there was an issue of causation raised by the apparent time lag between the occurrence of the transport accident and the first complaint of neck injury, there was a hint of that in the cross-examination.
48The difference of opinion in the diagnosis of the injury is not uncommon in serious injury applications. It is not uncommon that judges are called on to resolve that difference solely on the content of medical reports. That poses an obvious difficulty; however, in this case, the defendant did not seriously contend that the plaintiff did not suffer a neck injury, but it did submit that I should prefer the opinion of Mr O Brien. The distinction in the method of arriving at diagnosis demonstrated by Mr O’Brien’s reasoning when compared with Associate Professor Bittar and Mr Kossmann is made relatively immaterial because of the defendant’s position that it did not contend that the plaintiff did not suffer a neck injury. The conclusion I have reached is that the plaintiff suffered a neck injury of significance, demonstrated by the fact that it has troubled her since the occurrence of the transport accident and has interfered with her capacity to function in a number of ways, which I will turn to shortly.
49The defendant submitted that the plaintiff was unlikely to achieve her dream of being a proficient and successful musician, resulting in it being unlikely that she would enter the world of the professional musician. Essentially, the defendant submitted that the plaintiff was more likely to perform at a lower level, and otherwise to engage in work as a music teacher. I disagree.
50I think the evidence is almost overwhelming in demonstrating that the plaintiff was certainly proficient and successful in her musical pursuits. The plaintiff obtained the requisite tertiary qualifications in the musical field of her choice. She trained in Australia in the proficient playing of a variety of stringed orchestral instruments, but more particularly, the viola da gamba, which appears to have been her principal instrument, and the one which appears to figure predominantly in the Facebook extracts relied upon by the defendant. Additionally, the plaintiff travelled overseas, not only to study under proficient and successful musicians, but also to acquire a very expensive instrument which fitted into her plan to persist with what was required of her to reach the ultimate level of proficiency and success to enter the world of the professional musician.
51It would appear that the only issue faced by the plaintiff in pursuing her intention to study and perform overseas was her lack of funds. Her return to Australia was driven by the need to work so that she could save sufficient funds to enable her to be as financially independent overseas as she could to return to the study and performing overseas which she considered to be what she needed to do to enter that world of the professional musician.
52So far, I see nothing in the evidence which runs counter to any of the conclusions I have reached thus far, and indeed, I think the evidence is all one way.
53The defendant submitted that there is another reason why I should not reach this conclusion, and that is, because there is no corroborative evidence which would make me more comfortable in accepting the plaintiff’s evidence that she was headed in the direction of the world of the professional musician. I reject that submission. The call for corroborative evidence is unnecessary in this case. I am in no doubt that I should accept the plaintiff’s evidence. If I were in any doubt about the plaintiff’s evidence, then the issue of being put in a more comfortable position by corroborative evidence might arise. It does not.
54The plaintiff submitted that the correct question to ask in this setting is not whether the plaintiff could demonstrate on the balance of probabilities that she would have become a proficient and successful musician, rather she was entitled to claim that a significant consequence of her impairment is the loss of the opportunity to become a proficient and successful musician in the world of the professional musician.[46]
[46] Davidson v Transport Accident Commission [2015] VSCA 12 at paragraphs [30]-[31]
55Accepting the plaintiff’s evidence, as I do, it is very clear that the plaintiff was a very well qualified instrumentalist, and was proficient and successful in that respect, and has clearly lost the chance to pursue the gift that she had as a musician in studying overseas and applying herself to the hard work required to exploit the chance to enter the serious world of the professional musician.
56This of itself is a major consequence of the impairment of the function of the plaintiff’s neck. Additionally, she has not been able to exploit her residual capacity to continue as an instrumentalist at a lower level in Australia nor to teach the instruments with which she has proficiency due to the neck injury. Nor to engage in levels of rehearsal, practice and practical demonstration to students, even at a relatively modest level.
57Something was made of the reason why she resigned from Harken Well, but I see little in the email which is of any assistance to the defendant. I think, on the contrary, it resonates loudly of the difficulty the plaintiff was having in maintaining a level of proficiency to engage in performances with Harken Well. The plaintiff may have had a number of reasons for resigning, but the email makes it very plain that one of those reasons was her neck injury.
58In addition to these consequences, I accept the plaintiff’s evidence that there are many other consequences of the impairment of the function of her neck which, when added to the major consequence, create a picture of the plaintiff being reduced to someone who functions far below where she would be had she not suffered the neck injury. In summary:
· Interference with performing household tasks, such as lifting, mopping, vacuuming, obtaining items from high shelves.
· Interference with the ability to engage in gardening, such as mowing the lawn.
· Interference with the ability to sit for more than 30 minutes at a time.
· Inability to play games of social netball.
· Inability to engage in general gym and exercise routines, such as using a trampoline and engaging in group fitness classes.
· Increase in weight due to the inability to exercise efficiently.
· Interference with the ability to sleep.
· Interference with sex drive.
· Interference with interacting with members of her family, such as nephews and nieces, and engaging in family activities with them.
59Under cross-examination, the plaintiff’s reliance on those consequences was tested. It was not my impression that what the plaintiff deposed to altered in any material degree. Some of the cross-examination was directed to the fact that the plaintiff has retained the capacity to engage in social, domestic and other pursuits. I accept that not all is lost to the plaintiff, and that from a vocational perspective, and also from a social, domestic and recreational perspective, that there are aspects of her life which she has retained and which are fulfilling.
60Furthermore, the plaintiff submitted that she has suffered, and will continue to suffer, pecuniary disadvantage because she is not only unable to pursue what is required to enter the world of the professional musician, but her current work as a teacher is limited. I accept the plaintiff’s evidence that she has suffered pecuniary disadvantage. It may be difficult to determine at the stage of a serious injury application, but I think the loss of opportunity to become at least proficient and successful at a local level, as opposed to an international level, is capable in inference being drawn that opportunities to obtain pecuniary advantage are lost to her.
61The defendant pointed to the plaintiff’s assessment of her income lost as a result of her injury as was deposed to in her affidavit supporting her serious injury application.[47] In particular, the defendant was critical of the plaintiff’s extensive hours worked, as alleged in her affidavit. It was my impression that the plaintiff recognised this as an error. The plaintiff qualified her assessment by saying that she was not paid for the hours that she specified in her affidavit. She said she was attempting to average what work she would do in each respect, and more particularly, teaching, undertaking music performances, and private tutoring, and it was my impression by that explanation that the hours she referred to were not to be taken as cumulative, but unfortunately that is what it looks like. The plaintiff should have said that the assessment was of a different character to what it represents to any person who took it at face value. I accept the plaintiff’s evidence that it is wrong, and I do not pay any particular regard to it nor do I consider that it results in a tarnishing of the plaintiff’s credit.
[47] PCB 26 and Transcript 72
62After considering all of the evidence, the conclusion I have reached is that the impairment of the function of the plaintiff’s neck has resulted in pain and suffering consequences and pecuniary disadvantage for the plaintiff which easily meet the statutory test of seriousness. I have reached that conclusion by making a judgement by comparison with other cases in the range of possible impairments or losses of the body function.
63I will grant the plaintiff leave to bring a proceeding at common law.
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