Nicolaidis v Transport Accident Commission
[2013] VCC 1796
•12 December 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-06108
| ANNA NICOLAIDIS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 and 19 November 2013 | |
DATE OF JUDGMENT: | 12 December 2013 | |
CASE MAY BE CITED AS: | Nicolaidis v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1796 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Transport Accident Act - Section 93(4)(d) Transport Accident Act 1986 – Identification of injury – Causation – Consequences
Legislation Cited: Transport Accident Act 1986
Cases Cited:Barlow v Hollis [2000] VSCA 26 - Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 - Humphries v Poljak [1992] 2 VR 129 -Richards v Wylie (2000) 1 VR 79 - Phelan v Transport Accident Commission [2013] VSCA 306
Judgment: Leave refused to bring proceedings for serious injury.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Riordan | Zaparas Lawyers |
| For the Defendant | Mr P Rattray QC with Ms B Myers | Solicitors for the Transport Accident Commission |
HIS HONOUR:
Preliminary
1 On 24 March 2009 the plaintiff, Anna Nicolaidis, then aged 66 and still working part-time in a Safeway delicatessen was travelling as a front-seat passenger in a motor vehicle driven by her husband when it was involved in a collision in Middleborough Road, Mount Waverley. At the time, the plaintiff’s husband was driving home after visiting a friend in hospital. The other vehicle involved in the collision had apparently hit another vehicle and then collided with the front of the vehicle in which the plaintiff was travelling. It is common ground between the parties that the plaintiff sustained injuries and was initially trapped in the vehicle, later being released and taken to the Alfred Hospital by ambulance. I will deal with the nature, extent and consequences of the plaintiff’s injuries later.
2 In this application the plaintiff claims leave to commence common law proceedings pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) in respect of her injuries sustained in the transport accident. In order to succeed, the plaintiff has the onus of proving on balance that her injuries satisfy the statutory definition of “serious injury” set out in s93(17) of the Act.
3 The body function said to be lost or impaired is the plaintiff’s spine. Thus the application is brought pursuant to sub‑s(a) of the definition of “serious injury” contained in s93(17) of the Act.
4 The plaintiff was called to give evidence and be cross-examined. In addition to her viva voce evidence, the plaintiff relied upon three affidavits sworn 26 May 2011, 23 July 2012 and 30 October 2013.
5 The plaintiff relied upon the following medical reports:
· Dr Chris Tzefronis, treating general practitioner, who provided seven reports between 13 March 2010 and 7 October 2013.
6 Radiological reports as follows:
· CT scan chest, abdomen, pelvis, thoracolumbar spine (24 March 2009);
· whole body bone scan (18 November 2010);
· CT lumbar spine (20 October 2011); and
· MRI lumbar spine (11 January 2012).
7 The plaintiff also tendered in evidence medico-legal reports as follows:
· Mr Garry Grossbard, orthopaedic surgeon (16 June 2010);
· Dr Paul Kornan, psychiatrist (four reports between 7 June 2010 and 18 October 2013);
· Mr Charles Flanc, vascular and general surgeon (three reports between 2 April 2012 and 18 August 2013); and
· Professor Stephen Davis, neurologist (18 September 2013).
8 Although not tendered on behalf of the plaintiff, reports were tendered by the defendant’s counsel from Mr Armin Drnda, neurosurgeon, to whom the plaintiff had been referred by Dr Tzefronis initially on 2 November 2011. Reports dated 29 March 2012 and 11 May 2012 were tendered in evidence by the defendant, together with the letters requesting those reports prepared by the plaintiff’s solicitors on 12 January 2012 and 3 May 2012.
9 The defendant also relied upon reports from Dr Stephen Stern, psychiatrist, dated 13 September 2011, and Dr Kevin Fraser, rheumatologist, dated 20 December 2012. The defendant additionally tendered in evidence admission documents from the Alfred Hospital dated 24 March 2009 incorporating a pain diagram prepared on that date.[1]
[1]Exhibit 3
10 As this application relies on organic injury I will only refer to such of the medical evidence as bears relevance to those parts of the evidence and reports which appear to me to be most relevant and which I have relied upon in reaching the conclusions referred to later.[2]
[2]See Barlow v Hollis [2000] VSCA 26 per Chernov J at [14]-[16]; Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 per Ashley JA at [38]
The plaintiff’s evidence
11 In broad terms I regarded the plaintiff as a witness who attempted to be truthful in her answers, although I could not be satisfied as to the overall reliability of her evidence without some degree of corroboration. Specifically, the plaintiff was taken by her counsel to her first affidavit, and sought to change a number of references in that affidavit from upper back or upper body to the lower back.[3] During the course of being led through that evidence the plaintiff demonstrated feeling pain just above the belt-line on the left side of her back. The plaintiff also demonstrated pain from the chest going to the area under her armpit, again on the left side.
[3]Transcript(“T”)27 L14–T32 L9
12 In cross-examination the plaintiff agreed that initially after the transport accident she had pain in the neck, chest and upper back.[4] However, the plaintiff maintained additionally that she had pain in the lower back from the day of the accident.
[4]T35 L4–L14
13 In cross-examination, senior counsel for the defendant explored pre-existing back, leg and hip conditions which had all been referred to in the first affidavit sworn by the plaintiff. Additionally, the plaintiff described treatment she had received for breast cancer in 2004, and agreed that subsequent to the transport accident she had been treated for elevated cholesterol. Nevertheless, in cross-examination the plaintiff did not agree with propositions that were put to her suggesting that she had had pre-existing chronic low-back pain and bilateral leg pain pre‑dating the transport accident. This cross-examination was based on entries in the clinical notes from the plaintiff’s general practitioner.
14 The plaintiff was further cross-examined as to her present symptoms, and, whilst stressing the area of the lower back, she demonstrated an area of pain felt at about the lower level of the shoulder blades in response to a question about lifting.[5]
[5]T46 L25–T47 L7
15 Surveillance videos were shown to the plaintiff, taken on 12 April 2012.[6] The plaintiff agreed she had previously seen this surveillance material prior to giving her evidence. In addition to the surveillance videos, the defendant tendered a page of photographic stills that had been taken from the video. To my mind the video surveillance material showed the plaintiff engaged in shopping activities that could be expected of a woman of her age and general state of health. There was no dramatic inconsistency in the plaintiff’s presentation recorded on video as against her description of injuries both in viva voce evidence and on affidavit.
[6]Exhibit 1
16 I do accept that there was no dramatic weakness, impairment or apparent restriction of movement observable from the surveillance material tendered. The most relevant section of video footage showed the plaintiff lifting various items from a shopping trolley. She appeared to lift largely using her arms without bending to any great extent. I note that her husband was then loading the items into the boot of the car. There was perhaps a marginal difference between the amount of arm elevation the plaintiff showed on video and that demonstrated in the witness box. In my view this was insufficient to have a significant negative effect on the plaintiff’s credit.
17 The plaintiff agreed in cross-examination that she had overseas trips to Egypt and Greece in 2010 for three months and for a similar period to Greece in 2013. She also agreed that she had travelled to Tasmania and gone on drives to various destinations in Victoria. The plaintiff stated that she had had some difficulty with her right hip, knee and leg subsequent to the transport accident. She acknowledged that her husband had had treatment for bladder cancer in 2009 subsequent to the transport accident but that her daughter had been able to look after him following surgery.
18 In re‑examination the plaintiff stated that her prior episode of lower-back pain in February 2007 had resolved after about three or four months. She further agreed that she had ongoing problems sitting. She also gave evidence that the low-back pain interfered with her sleep. Significantly, in re‑examination the plaintiff stated that she had radiation of pain up from her low back when standing for very long or in doing certain activities. She stated that the pain had a burning sensation and got up to as high as her left shoulder.
19 When asked to describe the nature of the force felt in the collision, she described it as “a big one, strong one”. She was freed from the car by the fire brigade and then taken by ambulance to hospital.
The plaintiff’s medical evidence
20 The earliest medical record post-dating the transport accident was a copy of the admission notes from the Alfred Hospital on 24 March 2009.[7] Of significance in relation to the back, the notes revealed “tender upper thoracic” with a note indicating tenderness recorded with leg roll in the thoracolumbar spine. There was no marking on a pain chart of any area of pain recorded in the lower back. A separate pain chart showing the front of the body recorded grazing and bruising in the area of the abdomen and right hip, and tenderness and bruising in the area of the sternum and left collarbone.
[7]Exhibit 3
21 The clinical notes from Dr Tzefronis were tendered in evidence, and a note made on 14 April 2009 records the plaintiff as complaining of residual pain in the right lateral chest and insomnia. On examination, tenderness in the right lateral chest and sternum was recorded. On 6 October 2009 Dr Tzefronis received correspondence from Dr Demetrios, a rehabilitation physician at the Donvale Rehabilitation Hospital. In this correspondence Dr Demetrios noted that the plaintiff had reported persistent sternal pain, lower-back pain and a muscular aching pain in both shoulders.
22 Dr Tzefronis first reported to the plaintiff’s solicitors on 13 March 2010. He confirmed that he had first seen her following the transport accident on 14 April 2009 and had then reviewed her approximately every two to four weeks. He noted that she was diagnosed at the Alfred Hospital with an undisplaced fracture of the sternum and the first left rib, together with a soft-tissue injury of the middle finger of the left hand. At the Donvale Rehabilitation Hospital she was noted to have a severe “seatbelt-type” soft-tissue injury.
23 Dr Tzefronis noted that the plaintiff had continued to complain of persistent pain in her chest, back, low abdomen and left hand, together with various psychological symptoms. In his first report he described the constellation of the plaintiff’s symptoms as being suggestive of a diagnosis of post-traumatic stress disorder. He commented that during his reviews he noted “pain and stiffening in the chest and upper back persisting together with the psychological symptoms”. In response to specific questions that were asked of him, he referred to injuries affecting the sternum, the left rib, the chest and lower abdomen and the left hand. He made no reference to any lower-back injury.
24 Dr Tzefronis wrote two letters to the Transport Accident Commission on 5 January 2011 requesting treatment and diagnostic services for the plaintiff. Both of these related to the chest and thoracic back. There was no reference to the lower back on this occasion. A further letter was written on 8 March 2011 in relation to medications. In this correspondence reference was made to a fractured sternum and rib together with moderately severe post-traumatic stress disorder.
25 On 19 February 2012 Dr Tzefronis again reported to the plaintiff’s solicitors. His diagnosis again referred to soft-tissue injuries to the thoracic spine. He commented that a bone scan which had been organised to exclude metastatic disease indicated some active inflammation in a costovertebral joint in the left lower thoracic spine consistent with the plaintiff’s description of pain. Once again there was no reference to any injury to the lumbar spine.
26 The next report from Dr Tzefronis on 25 November 2012 again made reference to the previously described injuries. Additionally, the doctor noted that the plaintiff at that time “suffers from pain in the lower back region and the right lower limb”. He went on to say “she is generally tired and lethargic and any sustained physical activity aggravates the pain”. His treatment by late 2012 had broadened to include the prescription of analgesic medications including Endone tablets and a Norspan patch. Dr Tzefronis commented, “The latter two medications are narcotic analgesics and were added in the past twelve months due to increasing severity of pain.”
27 The final report obtained from Dr Tzefronis was dated 7 October 2013 and recorded that there had been no change in the condition since his previous report. He noted complaints of chronic pain and stiffness in the left lower thoracic back, low back and right leg. He also referred to chronic anxiety and depression.
28 The plaintiff’s solicitors obtained a specialist orthopaedic opinion from Mr Garry D Grossbard on 16 June 2010. Mr Grossbard examined the plaintiff on 8 June 2010. He took a history of the plaintiff suffering a fractured sternum and a fractured first rib and feeling numbness in her legs and arms. He noted the past history of low-back pain radiating into the hips in 2007 and commented that this was not sufficiently troublesome “to cause her to have time off work”.
29 The plaintiff gave Mr Grossbard a history that she had suffered mid-lumbar pain when she started her hydrotherapy. This may well be consistent with the history recorded at the Donvale Rehabilitation Hospital in 2009. Mr Grossbard referred to the thoracolumbar area, noting that the pain was present most of the time, particularly when the plaintiff stands. It was pain that often woke her. He further noted a description of pain around the right breast and side of the chest, and pain in the area of the injured left finger. On his examination he noted that the plaintiff was very tender to palpation at around the L2 level. He noted her history of back pain which had become significantly more symptomatic. He noted:
“She does indicate the pain is in a totally different place to the pain she had prior to the motor accident. She also indicated the pain became significant after she started her physiotherapy.”
30 In November 2011, some 2½ years following the transport accident, the plaintiff was referred to Mr Armin Drnda, neurosurgeon, for assessment and treatment. The history taken by him notes that the plaintiff stated that she had developed low-back pain at least six months prior to presentation to him. Mr Drnda was of the view that the degenerative changes diagnosed in the lumbar spine were of a very chronic nature and unlikely related to the car accident. He went on to say:
“The patient is mildly incapacitated again but this would be from a combination of possibly consequences of the motorcar accident which could be a degree of back pain while the rest of the problem, leg pain and difficulties walking, is not related to the car accident.”
31 The plaintiff’s solicitor sought clarification of this opinion on 3 May 2012, and quite properly forwarded to Mr Drnda the clinical notes of Dr Tzefronis and also those from Donvale Rehabilitation Hospital. There were several notes of recordings of back pain referred to in that correspondence. On 11 May 2012 Mr Drnda provided a further opinion to the plaintiff’s solicitors, stating:
“After analysing all these documents, I can conclude that the patient’s main problem was back pain in the area of the thoracic spine. Occasionally in all this material was mentioned some low back pain.”
32 He went on to say:
“I can state that the patient through this car accident could have had some injury to the soft tissues of her lower back which would contribute later on to back pain.”
33 The plaintiff sought medico-legal opinions from Mr Charles Flanc, vascular and general surgeon, who reported on 2 April 2012, 9 October 2012 and 18 August 2013. Mr Flanc took a history that the plaintiff had developed pain in the lower back after being transferred to the Donvale Rehabilitation Hospital. He also noted that she developed pain radiating down the outer part of both thighs towards the end of 2011. These symptoms only developed when she turned in bed, but not at other times. He took a history that this was not associated with low-back pain. This may be consistent with the letter written by Dr Demetrios from the Donvale Rehabilitation Hospital on 6 October 2009.
34 Mr Flanc further recorded a history of pain in the lower back developing during her rehabilitation period when she became more active and involved in exercises. Her symptoms have persisted since that time.
35 Mr Flanc described the lower-back condition as being related to a diffuse degenerative condition of the lumbar spine which had been significantly aggravated by the transport accident and was therefore still related to it. He went on to state that the pain in the legs is probably not related to any neurological compression as there was no objective neurological abnormality. He commented:
“I noted that she has been assessed by Mr A Drnda, neurosurgeon, and it would be appropriate for you to obtain a report from him.”
36 In Mr Flanc’s second report he again stated that the plaintiff had told him that the most severe pain is situated in the lumbar region, specifically at about the level of the L2‑3 on the left side of the midline. She had described to Mr Flanc the pain on the left side of the lumbar region spreading up the paraspinal muscles onto the back of the left side of her chest and outwards into the left armpit.
37 In his final report on 18 September 2013 Mr Flanc again took a history that the plaintiff’s pain involved the left lumbar region and frequently radiated to the back of the left side of her chest and even as far as the left shoulder girdle. He noted:
“She stated that she never feels pain in the back of the left side of the chest and left shoulder region without associated and severe pain in the lower back. She emphasised that the pain only radiated upwards when the pain in her lower region is severe.”
38 Mr Flanc commented in relation to the lumbosacral spine:
“It is more likely that her posterior chest and left-thoracic paraspinal pain is referred from her lumbar spine and does not indicate any specific injury to the thoracic spine.”
39 However, Mr Flanc in relation to the right leg on this occasion commented:
“The pain radiating down her right leg is referred from the condition of her lumbar spine.”
40 He expressed the same opinion in relation to the left leg but regarded those symptoms as being less severe. This opinion in relation to the left symptoms seemed to be in stark contrast with the opinion first expressed on 2 April 2012. I was unable to discern from Mr Flanc’s later report any reason for the change of opinion.
41 The final medico-legal opinion which is significant in this case is that of Professor Stephen Davis, neurologist. This was obtained on 18 September 2013, some two months prior to the hearing, and at a time when the opinion of the treating neurosurgeon was well known to the plaintiff’s solicitors. Professor Davis noted that the plaintiff pointed to the upper lumbar region as being the site of pain after the transport accident, and that the pain from the Safeway strain (2007) was lower, pointing to the lumbosacral junction. Professor Davis noted that the plaintiff had chronic lumbar pain but also pain radiating into both legs, the right much worse than the left. She had some numbness and tingling in the toes and sole, chiefly in the right foot.
42 His opinion was that the plaintiff had soft-tissue injuries to the lumbar spine in this accident, and those injuries had aggravated pre-existing degenerative changes. He accepted that she had quite clearly described nerve-root symptoms with sciatica, particularly in the right leg, although there were no objective signs of radiculopathy. He expressed some concern that she remained on narcotic drugs for pain management, and recommended that a multi-disciplinary pain-management approach would probably be more appropriate.
The defendant’s medical evidence
43 The defendant placed considerable weight on the two reports provided by the plaintiff’s treating neurosurgeon Mr Armin Drnda.
44 In addition the defendant relied upon the opinion of Dr Kevin Fraser, who provided a report dated 20 December 2012. Dr Fraser only saw the plaintiff on one occasion, and took a history that at the time of the transport accident the plaintiff noticed left-sided neck/supraclavicular pain and anterior chest pain. The plaintiff had difficulty getting out of the car, and, when she did, and walked, she noticed left-sided low-back pain. Even with this history that was not supported either by evidence or by other medical histories, Dr Fraser concluded that any back and leg symptoms being organically based were due to the progression of age-related degenerative changes in the lumbar spine. He stated specifically:
“I consider that any putative aggravation as a result of the motor vehicle accident has now ceased and her condition so far as her back is concerned is now the same as it would have been regardless of the injury.”
45 Dr Fraser in fact regarded the plaintiff as having developed a chronic pain syndrome.
The legal framework
46 The issues raised in this case are essentially causation and consequences. The leading authority in relation to s93(17) applications is Humphries v Poljak.[8] In so far as this application is one based upon paragraph (a) of the “serious injury” definition in the Act, the first task for the plaintiff is to identify a body function which is said to be lost or relevantly impaired. This is stated to be “the spine.” The causation question has been found to be relevant to s93 applications in De Agostino v Leatch.[9] I was referred by the plaintiff’s counsel in opening to Richards v Wylie.[10] Senior counsel for the defendant referred to a recent decision of Phelan v Transport Accident Commission.[11]
[8][1992] 2 VR 129
[9][2011] VSCA 249 at [59-61]
[10](2000) 1 VR 79
[11][2013] VSCA 306
Analysis
47 It is clear that the plaintiff sustained multiple injuries in the transport accident in March 2009, including an injury to her back, although the evidence would indicate that the initial area of concern was the thoracic spine rather than lower down in the lumbar spine. There is also evidence supportive of complaints made in relation to the lumbar spine commencing during the period of physiotherapy treatment initiated at the Donvale Rehabilitation Hospital. It is unclear the extent to which the transport accident injured the lumbar spine and the evidence suggests that the nature and extent of injury was such that the plaintiff’s general practitioner did not see fit to refer the plaintiff for any specialist opinion or treatment of the spine at that time.
48 The first report from Dr Tzefronis, prepared in March 2010, describes an initial diagnosis as:
“This constellation of symptoms were suggestive of a diagnosis of post-traumatic stress disorder.”[12]
[12]Exhibit A, page 24
49 Indeed, Dr Tzefronis referred the plaintiff to Ms Joanna Pantelidis-Ivancic, psychologist, for assessment and counselling, at or about the time he referred her back to the Donvale Rehabilitation Hospital for outpatient physiotherapy and hydrotherapy. At the time of the preparation of his first report he made no diagnosis of an injury to the lower back.
50 The plaintiff receives some support for the existence of an ongoing lumbar spine injury in the history recorded by Mr Grossbard, orthopaedic surgeon, when he saw the plaintiff on 8 June 2010. Mr Grossbard took a history that the plaintiff had pain in her thoracolumbar area which was present most of the time, particularly when she stands. He found tenderness to palpation at the L2 level on examination, and noted that the back pain became significant when she started her physiotherapy. He also recorded in his opinion that the history of back pain following the transport accident had become significantly more symptomatic and was in a totally different place to the pain she had prior to that time. He does go on to say that:
“This lady is going to be left with back pain which may be intermittent in nature but nevertheless will be a concern and probably does constitute an impairment.”[13]
[13]Exhibit A, page 47
51 The plaintiff undoubtedly suffers from back pain producing symptoms which to my assessment are at least very significant for her at this time. It would seem that a proper analysis of the medical evidence is more suggestive of the development of these symptoms from approximately mid-2011 rather than occurring at some earlier time. Therefore, the central question that must be addressed is whether the back pain at present is relevantly related causally to an injury to the back sustained in the transport accident.
52 In my view, the more persuasive argument is that dealt with by Mr Drnda. In preferring Mr Drnda’s analysis of the medical aetiology of the plaintiff’s present condition, I take into account in particular the following matters:
· Mr Drnda was the neurosurgeon to whom the plaintiff was referred for assessment and treatment by her general practitioner, Dr Tzefronis;
· Mr Drnda, after expressing his initial opinion, was provided with clinical notes from the Donvale Rehabilitation Hospital and Dr Tzefronis, yet maintained his opinion, making specific reference to having analysed the notes that were provided to him.
53 I should comment here that the action of the plaintiff’s solicitors in seeking further clarification upon all available material at that stage was absolutely proper and in the best interests of pursuing the plaintiff’s potential entitlement. Nevertheless, the material provided to Mr Drnda only confirmed his earlier opinion.
54 I have considered the submissions of counsel concerning the applicability of Richards v Wylie whereby I might take into account the mental response to an organic impairment for the purposes of assessment of a paragraph (a) injury. Although such a proposition was opened by Mr Riordan, who appeared for the plaintiff, it was not seriously advanced in final address, and I do not believe it has a basis of application in the present case. I have also considered what was said recently by the Court of Appeal in Phelan v Transport Accident Commission at [25] per Ashley JA. Noting that the initial assessment by Dr Tzefronis was that of a post-traumatic stress disorder, I would conclude that the principle in Richards v Wylie has no application in the present case. I have read the three medico-legal reports from Dr Paul Kornan, psychiatrist, who diagnosed the plaintiff as suffering from a post-traumatic stress disorder, adjustment disorder and specific anxiety phobias. In his first report Dr Kornan regarded the non-secondary component of psychiatric impairment to be significantly greater than any secondary impairment consequential upon the plaintiff’s pain and discomfort.[14] This assessment confirms my view that this is not a case where a Richards v Wylie analysis is appropriate.
[14]Exhibit A, page 57
55 Central to any assessment of the seriousness or otherwise of the consequences of injuries is an identification of the relevant injury arising from the transport accident. As was stated in Humphries v Poljak:
“[The trial judge] 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.”[15]
[15]Humphries v Poljak [1992] 2 VR 129 at 140 per Crockett and Southwell JJ
56 I am affirmatively satisfied that the plaintiff suffers an impairment or loss of body function in the spine but I am not satisfied that such results from injuries sustained in the transport accident relied upon. In order to make a finding in favour of the plaintiff, I must be satisfied that the consequences of an injury arising out of the transport accident are both long-term and serious for her.
57 Certainly in this case, as at the date of trial, the plaintiff suffers consequences of low-back pain which can fairly be described as long-term, in that no medical practitioner suggests any positive change in the foreseeable future. As to the question of the description of those consequences from the plaintiff’s current condition, I have noted that she is taking analgesic medications, including Norspan patches, which are changed on a weekly basis, and Endone tablets, taken half at night and on occasions a further half tablet during the day. The plaintiff supplements this analgesia with six Panadol Osteo tablets on a daily basis. I have also taken into account the increased number of attendances on the general practitioner Dr Tzefronis, which would be consistent with a person suffering consequences of injury which are at least significant or marked. The Plaintiff’s inability to return to her part-time employment is also a factor that would need to be considered.
58 I must also consider the matters put by senior counsel for the defendant, particularly in relation to the plaintiff’s extensive overseas travel in 2010 and 2013 and the apparent normality of her activities as recorded in the surveillance material tendered as Exhibits 1 and 2.
59 In view of my finding on causation, it is unnecessary to consider whether the current symptom complex produces consequences which can be fairly described as at least very considerable.
Conclusion
60 On the whole of the evidence, the plaintiff has not satisfied me that she has suffered a serious injury as defined in s93(17) of the Act. The application for leave must be dismissed. I will hear the parties in relation to formal orders and on the question of costs.
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