Nikoloski v TAC
[2013] VCC 1698
•15 November 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-11-03948
| TINA NIKOLOSKI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 October 2013 | |
DATE OF JUDGMENT: | 15 November 2013 | |
CASE MAY BE CITED AS: | Nikoloski v TAC | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1698 | |
REASONS FOR JUDGMENT
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Subject: Serious injury application-Transport Accident Act-s93(17) ( a )
Catchwords: Application for leave to commence proceedings for serious injury—injury to spine.
Legislation Cited: Transport Accident Act 1986.
Cases Cited: Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292 – Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 – Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 – Richards v Wylie (2000) 1 VR 79.
Judgment: Leave granted to plaintiff to issue proceedings in respect of the injury.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | John Valiotis | Arnold Thomas & Becker |
| For the Defendant | Andrew Newman | Transport Accident Commission |
HER HONOUR:
The Application
The plaintiff seeks leave from the Court pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to issue common law proceeding against the defendant in respect of an injury suffered by her in a transport accident (“the accident”), which occurred on the 20 September 2004.
Section 93(6) of the Act provides that a court must not grant leave under section 93 (4) (d) unless it is satisfied that the injury is a serious injury. The definition of serious injury in section 93 (17) (a) of the Act refers to a “serious long-term impairment or loss of body function”. The plaintiff alleges that she suffered a serious long-term impairment or loss of body function of her spine.
The plaintiff gave evidence and in support of her application relied on two affidavits, dated 24 July 2012 (the first affidavit ) and 9 October 2013 (the second affidavit). As is usual in these cases, both parties relied on medical reports and other documentation contained in their respective court books.
Background history
The plaintiff was born on 25 December 1971, so she is now 42 years old. She lives at home with her partner and two daughters, Savannah, who was born on 19 May 2009, and Karliava, who was born on 29 September 2011.
The plaintiff was educated to Year 12. While at school she worked part-time in a menswear shop. After completing Year 12 she worked as a nursing attendant at St Vincent’s Hospital for a while. After this, she worked for Coles Myer and Daimaru in their finance departments. In 2002 she commenced employment with Guests Furniture Hire in the credit department. The plaintiff also studied cosmetology part-time.
The Accident
The accident took place on 20 September 2004 in Hoddle Street near its intersection with Johnson Street. The plaintiff stopped at the traffic lights on Johnson Street at a red light. The speed limit for that particular road is 60 kilometres per hour. A car came from behind and crashed into the back of her car. The force of this impact forced the plaintiff’s car into the car in front of her, which had also been stationery at the lights. The impact also forced that car into a collision with the car in front of it.
As a result of the accident the plaintiff was taken to the Alfred Hospital. The plaintiff was kept overnight and was given painkilling medication. A number of radiological investigations were carried out including to the chest, thoracic and cervical spine and left thumb, none of which revealed any major pathology.[1]
[1]P C 56-58.
In her first affidavit the plaintiff claims that the car that hit her was doing a speed estimated by the police at the time of impact to be 80 kilometres per hour.[2] However, the Admission Notes (“the notes”) subpoenaed from the Alfred Hospital state that the other car was travelling at 30 kilometres per hour when it hit the rear of her vehicle.[3] To add to the confusion, the history given is noted as “33 year old female driver in a low speed 20k MCA”.[4]
[2]PAff para 6.
[3]DCB 94.
[4]DCB 93.
However, whatever the speed of the other car, it appears that the plaintiff’s car was extensively damaged in the front and back and was written off. In addition, that both front airbags in her vehicle were activated. Most importantly, given the nature of the plaintiff’s claim, it is also reported that she complained of back pain in the middle of her back from the nipple line down.[5]
[5]DCB 94.
In her first affidavit the plaintiff claims that almost immediately following the accident she experienced pain in her head, neck, upper back and pain in her low back.[6] In addition, she also reported pain in her left hand with pins and needles in her left arm. This description is largely consistent with the notes that refer to the plaintiff complaining of a headache, neck pain, back pain, and left hand pain, including problems with grip strength.[7]
[6]PAff 7 para 12.
[7]DCB 93.
On 27 September 2004 the plaintiff attended her general practitioner, Dr Pahtsivanidis, and complained of back pain in the thoracolumbar spine, pain in the neck, headaches, and a sensation of pins and needles in the left hand, particularly in the fifth finger. She was treated with Nurofen Plus, Tramadol and Voltaren gel and was given a certificate off work.[8]
[8]PCB23-25.
On 25 January 2005 the plaintiff presented again to Dr Pahtsivanidis complaining of neck and back pain, difficulty in sitting down for too long and severe headaches everyday. She had difficulty going to the gym and doing her exercises, and as a result, had put on weight. She was treated with Mobic daily, as well as Tenuat, which is a weight reduction tablet.
The x-rays taken of the plaintiff’s lumbar and cervical spine on 22 July 2005 were normal.[9] An MRI taken of the cervical and lumbar spine on 29 July 2005 showed a small focal annular disc disruption at L5/S1 with no neural impingement.[10]
[9]PCB59.
[10]PCB 60-61.
In 2005 the plaintiff also received treatment from Dr Rothman, a chiropractor. However, she stopped going there for treatment in 2006 because the treatment was not helping her.
In July 2005 Dr Pahtisavanidis referred the plaintiff to Dr John Myers, a consultant physician and geriatrician, who at the time operated at the same clinic. Dr Myers took over her treatment and he continues to treat her today.
On 29 July 2005 Dr Myers referred the plaintiff for an MRI of her cervical and lumbar spine. The cervical spine was a normal study but the lumbar spine study revealed a central L5/S1 disc protrusion without nerve involvement.[11]
[11]PCB 60-61.
A further MRI on 30 August 2005 confirmed the diagnosis of a small focal annular disc disruption at the L5/S1 level with no neural impingement.[12] As the plaintiff continued to suffer ongoing pain in her lumbar spine she also underwent a nuclear bone scan on 28 July 2006, which suggested a mild moderate left L4/5 facet joint arthropathy.[13]
[12]PCB62.
[13]PCB 63.
On the 14 August 2006 a further MRI of the lumbar spine revealed
“Desiccation at L4/5 and a central disc protrusion at L5/S1 lying between the S1 nerve roots with no focal effacement. There were early degenerative changes at L4/5 with shallow disc bulge but no focal neural compression, and facet joint arthropathy at L4/5 and L5/S1, no pars defect”. [14]
[14]PCB64.
On the 16 August 2006 the plaintiff attended Dr Myers complaining of dorsal and lower back pain. Rather than improving, it had reportedly become worse. Dr Myers gave her bilateral facet injections which gave immediate but unsustained relief.[15]
[15]PCB 27.
On 12 February 2009 the plaintiff was involved in another car accident where she was rear-ended. However, her evidence was that it was a minor one that did not cause any injury. In a mental health assessment, dated 2 March 2009, Dr Glassman noted “problem diagnosis number 1, anxiety neurosis since MVA 3/52 ago”. The plaintiff’s explanation for this note was that she had been anxious because she was six months pregnant and she was worried that something might have happened to the baby.[16]
[16]T 42.
The plaintiff continued working full-time in her job at Guests as an assistant accountant, but was in considerable pain and taking a lot of painkilling medication. In 2009 she took 12 months maternity leave for the birth of her first daughter on 19 May 2009. On 7 September 2009 she consulted Dr Andrew Gibson 2009, a rheumatologist, who provided her with a cortisone injection in her back.
The plaintiff returned to work part-time in 2010 and worked 21 and a half hours per week until going off on maternity leave again on 18 August 2011. Her second daughter was born on 29 September 2011. While the plaintiff had intended to return to part-time work after the birth of her second child, her employer filled her position and she took a redundancy.
On the 30 March 2010 the plaintiff had a further MRI of her cervical, thoracic and lumbar spine. The conclusions were:
“Cervical Spine
Mild upper cervical desiccation with a small C4/5 and C5/6 annular tears suggested.
Thoracic Spine
Mild T8/9 disc desiccation.
Lumbar Spine
Lower lumbar disc degeneration, greatest at L5/S1 including annular tear as described, and no neuro impingement demonstrated.”[17]
[17]PCB 64A - 64 B.
On 19 September 2012 a further MRI of the lumbar spine revealed:
“Mild to moderate left paracentral disc protrusion at L5/S1, together with degenerative end plate signal changes at this level, no significant canal stenosis and no significant nerve root compression although both S1 roots are being contacted, and less marked degenerative disc changes elsewhere as described.”
In May 2013 Dr Pahtsivanidis referred the plaintiff to Dr Piperoglou, a psychiatrist, whom she saw on four occasions. While he wanted to prescribe her medication the plaintiff was reluctant to take it because of her coeliac condition which had been diagnosed when she was 27. Dr Piperoglou advised her to take omega 3 fish oil for stress relief.
On 11 October 2013 yet a further MRI of the lumbar spine showed
“Lower two level lumbar disc degeneration, at L4/5 minor bilateral facet joint degeneration was also seen, and at L5/S1, minor bilateral neural foraminal stenosis without neural compromise. Small superimposed central disc protrusion.”[18]
[18]PCB 48A.
The findings for the thoracic spine were essentially normal, although there was a minor multi-level superior end plate depression in the upper thoracic spine.
Plaintiff’s medical reports
Dr Pauline Pahtisavanidis, General Practitioner
In her report of 13 August 2006 Dr Pahtisavanidis diagnosed the injuries sustained by the plaintiff during the accident on 20 September 2004 as being:
(i)severe anxiety state;
(ii)a focal annular disc disruption at the L5/S1 level resulting in back pain;
(iii)whiplash type injury to her cervical spine resulting in neck pain; and
(iv)headaches resulting from the occipitonuchal area.
Dr Pahtisavanidis reported that the plaintiff’s treatment consisted of receiving analgesics and anti‑inflammatories, physiotherapy and chiropractic treatment. She had also had facet joint injections in the lumbar spine by the radiologist on 20 June 2006 at the L4/L5 level.[19]
[19]PCB 24.
Dr Andrew Gibson, Rheumatologist
In a letter dated 7 September 2009 letter to Dr Glassman, Dr Gibson reported on his examination results that:
“The range of movement in the back was mildly restricted to sideways lumbar flexion. There was tenderness at the lower lumbar area in a diffuse distribution. The lower limb neurological exam was completely normal .The abdominal muscular was moderate.”[20]
[20]PCB 26.
Dr John Myers, Consultant Physician
There were three reports from Dr Myers, whose diagnosis of the injuries received by the plaintiff in the accident was a L5/S1 annular disc disruption and whiplash to the cervical spine. It was also his opinion that:
· the relationship to the TAC accident was direct and causal;
· the plaintiff was unemployable and deterioration was likely with further loss of physical function, ongoing impairment and increased handicap;
· there had been secondary psychological effects from frustration, lack of enjoyment in life and deterioration in her personal relationships, and her failure to perform as a mother with unrestricted interaction with her children.[21]
[21]PCB 49-50.
In addition he reported that:
· she cannot sit at a day job. Her sitting tolerance is 15 minutes, as is her standing tolerance;
· her concentration is affected;
· the impairment from which she suffers has also impacted on her relationship and her ability to be actively engaged in being a mother to her children as she would have liked and would have been able to perform had she not been involved in a motorcar accident.[22]
[22]PCB 50-51.
Mr Kevin King, Consultant Orthopaedic Surgeon
In his report of 9 March 2012 Mr King described the plaintiff as being a rather intense, deliberate, careful and very clear historian. On p7 of his report, he stated that :
“This slim, well preserved middle-aged adult, aged 40, would appear to have been involved in a major rear end collision, as a driver, on 20.09.04, when stationary in a line of traffic. This would appear to have been a classical high speed rear end collision to her vehicle in which concertina effects occurred with four cars being involved in rapid succession and she would appear to have been hurled backwards and forwards in her car seat during a series of repeated impacts. Such widespread trauma with this type of rear-end collision is likely to have caused damage to cervical, thoracic and lumbar discs and associated ligamentous structures at multiple levels, adequately explaining the immediate onset of neck and back pain and also explaining the persistence of these disabling symptoms ever since.”[23]
While in Mr King’s opinion there was no significant radiculopathy as such in either the upper or lower limbs, the plaintiff had:
· a very painful, stiff neck and back,
· scans (CT and MRI) which had revealed significant abnormality at the lumbar sacral disc level,
· minimal but definite changes in the mid thoracic discs,
· similar mild but definite changes in the mid cervical disc consistent with this history of trauma.
In his opinion the plaintiff was chronically disabled to a moderately severe degree by neck and back pain which was the direct result of injuries sustained to the cervical, thoracic and lumbar spine in the car accident on 20/9/04.[24]
[23]PCB 33.
[24]PCB 33.
Dr Michael Piperoglou, Consultant Psychiatrist
On 20 September 2013 Dr Piperoglou diagnosed the plaintiff as suffering from significant nervous shock at the time of the accident which had precipitated a post traumatic stress disorder with comorbid anxiety. There had been some improvement with time in her condition, but she had been left with residual features of post traumatic stress disorder that she currently had.
The plaintiff also had chronic anxiety symptoms both from the post traumatic stress disorder, and as a result of her chronic lower back pain and inability to be a good enough housewife and mother to her family, and she was likely to be left with chronic residual symptoms as she currently had into the future.[25]
[25]PCB 40-41.
Mr Thomas Kossman, Orthopaedic Surgeon
In his report dated 30 September 2013 Mr Kossman’s diagnosis regarding the plaintiff’s injuries was as follows:
(i)pain and movement restriction in the cervical spine with radiculopathy on the left side on the basis of mild upper cervical disc desiccation with small C4/5 and C5/6 annular tears;
(ii)numbness in the right forearm, which was affecting the dorsum of her hand and her thumb (radial nerve distribution);
(iii)discogenic back pain lumbar spine on the basis of disc degeneration lumbar spine including annular tear at the L5/S1 level; and
(iv)clinical signs of trochanteric bursitis both sides.[26]
[26]PCB 46.
In his opinion the plaintiff’s prognosis was uncertain. She needed further investigation and she may have to undergo further surgery.[27] In his further report of 14 October 2013 Dr Kossman maintained this diagnosis. However, he now considered that the chances of surgery at her spine were very remote.[28]
[27]PCB 46.
[28]PCB 48B.
Dr Mark Glasman
In his report of 22 February 2010 Dr Glasman’s diagnosis of the plaintiff’s injuries was:
· Degenerative changes at L4/L5 disc and facet joints.
· Degenerative changes at L5/S1 facet joints bilaterally.
· The pathology was progressive and was currently moderately severe.
In his opinion the plaintiff’s prognosis was not good as the degenerative arthritis that she had developed was progressive.[29]
[29]PCB 54d.
Defendant’s Medical Reports
Dr David Weissman
In his report of 23 March 2011, Dr David Weissman thought that the plaintiff was a genuine historian who was suffering from “mild, but not insignificant, primary or direct Post-Traumatic Stress Disorder symptoms and features of traumatisation, directly due to the circumstances of the accident itself”.[30]
[30]PCB 9.
In addition she was suffering from “mild to moderate mixed reactive depressive and anxiety symptoms secondary to her accident related pain, injuries and disabilities, limitations and restrictions, changes and losses to her lifestyle and functioning since the accident.”[31]
[31]PCB 9.
With respect to the plaintiff’s work capacity, he considered that there was no psychiatric incapacity for work, and that she had a full psychiatric capacity for suitable duties. Her psychiatric prognosis was reasonably good and favourable.
Mr Rodney Simm, Orthopaedic Surgeon
Mr Simm’s diagnosis was as follows:
· “A soft tissue injury to the cervical spine. Her persistent symptoms may relate to unresolved aggravation of early cervical degenerative pathology. She had referred symptoms to the left shoulder and down into the left hand, but no clinical signs of radiculopathy. There were no changes on the MRI scan which were likely to implicate left-sided cervical nerve root involvement.
· A soft tissue injury to the lumbar spine. The persistent symptoms may relate to unresolved aggravation of moderately advanced L5/S1 lumbar disc degeneration. She had no significant referral of pain into the lower limbs and there were no clinical signs of radiculopathy.
· A soft tissue injury to the left hand with tingling and numbness. The current symptoms in the left hand could be referred symptoms from the cervical injury.”[32]
[32]DCB 19.
Mr Simm described protracted spinal pain after rear end motor vehicle collisions as being “a common clinical condition”[33]. He considered that the plaintiff’s injuries were consistent with the accident and that she also demonstrated features of an associated emotional disturbance which may accompany chronic spinal pain.
[33]DCB 19.
After viewing the MRI scan of the lumbar spine of 19 September 2012, his opinion was that it confirmed that the plaintiff had advanced L4/5 and L5/S1 lumbar disc degeneration with a central disc protrusion at the L5/S1 level. In his opinion the plaintiff’s persistent symptoms probably related to unresolved aggravation of the degenerative lumbar disc pathology.
With respect to the plaintiffs almost constant headaches, Mr Simm noted that they emanated from the cervico-occipital region of the back of the head and he was of the opinion that they were consistent with cervicogenic headaches and related to her cervical injury.[34]
[34]DCB 30.
His prognosis was that the plaintiff had an established pattern of symptoms which would persist indefinitely. She would be permanently confined to relatively light occupational and recreational activities
Case for the defendant
The case for the defendant is that the plaintiff’s injury, when judged in comparison to other cases in the range of possible impairments and losses, does not meet the requisite level of seriousness in the sense of being more than significant or marked and as being at least very considerable.
In making this submission the Counsel for the defendant relied on a number of cases, including Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292, Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 and Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260.
In Sumbul Chernov JA said: paragraph [24]
“If one accepts, as her Honour did, that the appellant is physically able to return to alternative employment, then, unless there was some other evidence that showed that he experienced significant pain or that he otherwise significantly suffered physically from the injury, it would ordinarily be difficult to conclude that the pain and suffering consequences of it are “at least very considerable.”
Counsel for the defendant relied on the fact that the plaintiff had returned to work on two occasions for a total of 7.5 months over the last nine years with a remaining 1.5 years caring for two very active children and “more than a full-time job running a household.”[35]
[35]T60.
On the first occasion the plaintiff had returned to work within two weeks of the accident She had worked full-time on her normal unrestricted duties for five years from October 2004 until she took maternity leave in April 2009.
On the second occasion after the birth of her first daughter the plaintiff had returned to work in April 2010 working part-time for 21.5 hours a week. She had continued working part-time until she took maternity leave for the second time on 18 August 2011.
Counsel for the defendant submitted that the plaintiff’s demonstrated capacity to work was indicative of the fact that she had retained a great degree of capacity, not only to perform work, but also to perform other daily activities. When it was judged in the range of possible impairments, the plaintiff had failed to discharge her onus to demonstrate a serious injury.
As to the plaintiff’s current work capacity it was submitted that on the medical evidence she had the capacity to return to light office work. In addition it was submitted that the reason she was currently not working was because she was busy caring for her two young children.
In this respect the defendant relied, in particular, on Mr Simm’s report of 7 July 2011, where he stated that the plaintiff had returned to work after several weeks and that before resuming her normal duties, for some months she took analgesic medication but did not have any other formal treatment.[36]
[36]DCB 16.
And his report of 24 July 2013 where Mr Simm gave a history that the plaintiff
“ceased work in September 2011 to have her youngest daughter and she has not returned to work since. This was more of a lifestyle choice, as she now has two daughters aged four and almost two, and she said the cost of childcare would largely negate the benefits of the income she has had from three days of work”.[37]
[37]DCB 27.
Also on Mr Kossmann’s report, where he stated that:
“Mrs Nickoloski is not working at the moment as she has chosen to stay home and look after her two children.”[38]
[38]PCB 44.
The defendant relied on Sumbul in submitting that as the plaintiff had a capacity to return to work, it could also be assumed that she had a capacity to return to recreational activities that involved the same physical functions at that work. Consequently, given that for 7.5 years the plaintiff had been capable of performing sedentary office-based work, it was submitted that it could mean that her capacity for oil painting, reading, writing and poetry were greater than she reported.
It was also submitted that the fact that the plaintiff engaged in all of her parenting activities was evidence in itself of her capacity to engage in hobbies and recreational activities. In addition, it was submitted that she was capable of undertaking all of the household activities, could shower and dress independently and had a social life .
With respect to her pain and treatment it was submitted that :
· the plaintiff took Panadol and fish oil capsules rather than stronger analgesic medication;
· she only had a couple of steroid injections from Dr Myers, most recently in 2013;
· Chiropractic treatment had only been for a short time;
· she had not had a physiotherapy or hydrotherapy session since March 2009, which was over three years ago;
· she had largely been treated by her general practitioner and Dr Myers;
· she has not requested a pain management program.
In Stijepic, Ashley JA and Beach AJA found that the worker failed to meet the serious injury threshold, despite acknowledging[39] that he faced for the foreseeable future a continuation of painful symptoms and consequential inhibitions upon his enjoyment of life. In addition they had accepted that all things being equal, impairment consequences that would have to be put up with for 40 years might be judged as more serious than consequences that someone may have to put up with for a much shorter period of time. [40].
[39]Paragraph [43].
[40]Para 43.
With respect to Stijepic, it was submitted for the defendant that the facts in that case were similar in that it had involved a young worker with a lower back injury, where, in common with the plaintiff, there was no definite proof of nerve root injury. Similarly to the plaintiff, he claimed that he was able to undertake certain activities, albeit with restrictions and pain.
The defendant also relied on Dwyer v Calco Timbers (2008) VSCA, where Ashley JA said: [paragraph 27]
“It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained”.[41]
[41]Paragraph [27].
It was submitted for the defendant that the plaintiff had retained a good life as:
· she had returned to work at various times for a period of seven and a half years out of nine since the accident
· she had an active family life with her two daughters and husband,
· she effectively ran the household with little assistance from her husband.
· she had contact with her broader family and her previous workmates
Finding
Nature of the Injury
The weight of the medical evidence (Mr Simm, Mr Myers, Mr King and Mr Kossmann) is that as a result of the accident, the plaintiff suffered soft tissue injury to the cervical, thoracic and lumbar spine. This finding is also supported by the most recent MRI of the cervical, thoracic and lumbar spine to the extent that:
· with the cervical spine there was minor multilevel cervical spondylosis
· with the thoracic spine there was minor multilevel superior endplate depression in the upper thoracic spine superior.
· with the lumbar spine there was lower two level lumbar disc degeneration, at L4-5 minor bilateral facet joint degeneration, at L5-S1 minor bilateral neural forminal stenosis without neural compromise and a small superimposed disc protrusion.[42]
[42]DCB 64E.
Mr Kossmann considered that these MRIs confirmed his opinion but that they did not explain the radiculpopathy of the plaintiff’s left upper extremity and the numbness in her right forearm.
However, as all the medical experts are of the opinion that the injury to the plaintiff’s spine is as a result of the accident the real issue in this case is whether this injury is more than “significant or marked”, and at “least very considerable” when judged in comparison with other cases in the range of possible impairments of loss of body functions.
Consequences of injury
In evaluating the evidence with respect to the pain and suffering consequences of the injury on the plaintiff as Maxwell P suggested in Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1, it is of assistance to distinguish between:
· the plaintiffs experience of pain as such; and
· the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.
The plaintiff’s experience of pain
The plaintiff struck me as being a genuine and honest witness who did not seek to exaggerate her problems. I accept that since the accident she has continued to suffer from pain :
· which is present all the time in her neck at the base of the skull which can extend down her back to about the bra line;
· which is present all the time at the spine and to the right of the spine at about the belt line;
· which was made worse by bending, lifting or twisting and that while she tried to avoid these activities as much as possible she could not avoid them as she had to do housework and look after her children;
· in her right leg below the knee to the outside and front of the leg and down to the ankle which was constant;
· sometimes in her hip and her groin;
· in her low back if she has been standing in one position for 10 or 15 minutes;
· which increased in her low back and right leg if she goes walking, after about 15 to 20 minutes;
· which increased if she had been sitting for between 20 and 30 minutes;
· headaches which are different from her previous sinus headaches as the pain is at the back of her head and at the front of her head.[43]
[43]PCB 8.
The plaintiff’s account of suffering from this pain is consistent with the history she has given to her treating practitioners and to the medical legal experts including:
· Dr Pahtsivanidis – she persistently complains of neck and back pain and severe anxiety state[44]
· Dr Hall – since she had a baby recently the back pain seems to be worst. It flares easily with bending or prolonged sitting.[45]
· Dr King – she complains of constant aching pain and stiffness in the cervical and upper thoracic spine always present, pain in the neck (6-7 on scale 0-10), headaches, low back pain moderate severity and periods of severe flare up on exertion.[46]
· Mr Kossman – she complained of pain in her cervical and lumbar spine.[47]
· Mr Myers – she complained of pain over left lateral lower back, painful sensation from the back of the knee to the front of her ankle, and pain over the right scapula towards the base of the neck.[48]
· Mr Simm- complains of constant pain in the neck and thoracolumbar spine present since the accident, without any period of recovery; headaches present almost constantly, right leg pain, pain in the upper thoracic spine and in the lumbar spine.[49]
[44]PCB 25DR.
[45]PCB 26.
[46]PCB 31.
[47]PCB 44.
[48]PCB 54A.
[49]DCB 27.
Treatment
While the defendant relied on the fact that the plaintiff did not take prescription medication I consider that she has a good reason for not doing so. The reason is that she has a celiac condition which was diagnosed at the age of 27.
I accept that the only medication the plaintiff has been able to tolerate consistently over the past few years has been Nurofen or Nurofen Zavance. In addition, she has taken Panadol Osteo but not at the same time. She also still takes approximately six to eight tablets a day, and as she suffers from constipation, she has to take Senokot every evening.[50]
[50]PCB 18.
The fact that the plaintiff’s celiac condition has prevented her from taking prescription medication probably provides some explanation for the consistent pain she experiences and the level of her pain.
The plaintiff has had various forms of treatment in the past including physiotherapy and hydrotherapy. In January 2013 she had Cortisone injections which caused her extreme pain for two days to the extent that she was restricted to lying on the couch. Given her intolerance to prescription medication, the medical opinion is that she should continue with self management and over the counter medication.[51]
[51]DCB 21.
Sleep
In her first affidavit the plaintiff stated that when she lies down at night to go to sleep the lying down caused an increase in low back pain and right leg pain, and to some extent, neck pain. It was difficult for her to get to sleep and she always felt sleep deprived.[52]
[52]PCB 12.
The plaintiff agreed in cross-examination that her sleep was interrupted by her younger child who wakes up once at 3.00am.[53]In so far as the defence case is that her sleep was interrupted by her child rather than her injury I consider that this would simply add to her difficulties in getting a good nights sleep.
The disabling effect of pain
Work
[53]T 8.
In submitting that the plaintiff’s injury did not amount to being a “serious injury” the defendant has relied to a significant extent on the plaintiff’s return to work. However, it is important to note that in Stijepic, Ashley JA and Beach said with respect to Sumbul that:
“It is plain that Sumbul is not authority for the proposition that a return to alternative work is somehow determinative against a worker on the issue of pain and suffering consequences. The most that can be said, and we take Chernov JA to have been saying, is that if a worker successfully returns to alternative duties, it will tend in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious. But as always, the evidence as a whole must be considered.”[54]
[54]Supra para 47.
In this case the plaintiff returned to the same light work she had been doing before the accident and performed her usual duties. However, I accept that the plaintiff was very committed to her job and continued to work with considerable pain, taking a lot of pain killers.[55] In addition that her employer was supportive and she was permitted to get up and stretch.[56]
[55]PCB 8 & T29.
[56]T 31.
The plaintiff’s complaint of suffering pain at work is supported by Mr Simm, who reported that when he saw her in July 2011 she was working three days a week performing office duties for Guests. She complained of having constant pain in her neck and back since the accident. She also complained of almost daily headaches which she described as severe migraine headaches. [57]
[57]DCB 16.
While the plaintiff agreed in cross-examination that she was not looking for work at present she was concerned that no one would employ her in the future due to her bad back. She was also uncertain as to whether she could do her previous work because of the increased pain and “spasms” around her right shoulder girdle that she experienced after sitting at her computer at home for longer than 10-15 minutes.[58]
[58]PCB 27.
I accept that these are genuine concerns, and that while the plaintiff may be capable of performing the light office work she performed previously, it will depend on the whether there is any further detrioration in her condition. In this respect I note that Mr Glassman was of the opinion that her prognosis was not good as the degenerative arthritis she had developed was progressive. [59]
[59]PCB 54 A.
The plaintiff did a beautician’s course when she was younger and had planned to do this work part time after she had children. However, I accept that as a result of the injury to her spine she is not able to follow this plan as it requires her to stand, bend and twist for long periods.
Domestic chores
The plaintiff agreed in cross-examination that “it would be fair to say, that apart from heavy chores, she runs the household”.[60] She largely did the housework as her husband worked two jobs and was also doing an acting course so he was often too tired to help her.[61]
[60]T 25.
[61]PCB 21& T24.
However, it was apparent from both the plaintiff’s affidavit material and the history that she gave to the medical practitioners that after the accident she experienced difficulties in performing the usual household tasks.
In her first affidavit the plaintiff described herself before the injury as being a very good housekeeper with a clean and tidy house. Now due to her injury she could keep the house as clean and tidy and she felt bad about this.[62]
[62]PCB 12.
The plaintiff told Dr Weissman that she showered and dressed independently, but had difficulties with cleaning and cooking. In particular, the difficulties with cleaning were very depressing for her. She could not clean and vacuum like she used to.[63]
[63]PCB.
With respect to the groceries, the plaintiff would go out and buy the necessities and her partner would do the basic big shop or she would do it on line and get it delivered.[64]
[64]T 17.
Looking after the children
100 The plaintiff was cross-examined at some length about looking after her children. The plaintiff agreed that she looks after her children,[65] and that her day started at 6.00am and finished around 8.00pm. She agreed that she is toilet training her two year old and that her older child went to a three year old activity group and that she drove her there (an eight minute drive).[66]
[65]T 7.
[66]T 14.
101 In her second affidavit she stated that:
102 “Over the past four years I have tried very hard to keep going and appear normal and positive for the kids but it’s very difficult to keep my emotions in check and I am often teary and upset. Bathing the children has been difficult as it puts a strain on my back and my involvement is limited to drying them off or helping to dress them. I would describe my back pain as constant, however the intensity varies depending on what activity I am doing, whether I feel rested as well as colder temperature.”[67]
[67]PCB 19.
103 While the plaintiff agreed that she performed the necessary tasks in looking after her children, I accept that she suffers significant back pain when:
· undertaking simple tasks such as holding her toddler in her lap while they watch TV, storybook time, playtime and drawing where pressure is placed on her lower back;
· lifting and placing her toddler in bed when she falls asleep for a daytime nap or in the evening;
· assisting her four year old with toilet or toilet training her toddler;
· changing nappies and dressing the children;
· bathing the children and lifting them out of the bath.[68]
[68]PCB 20, paragraph 14.
104 These are tasks that every mother has to perform, and I accept that, given her husbands work hours, the plaintiff really has no option but to perform them and to suffer the pain. I do not accept that because she can carry out these activities the plaintiff can carry on with recreational activities such as going to the gym.
Physical fitness
105 Before the accident the plaintiff was very fit and she would generally go to the gymnasium for about two hours, four days a week. She would often do aerobics classes but also other exercises, including running on the treadmill.[69]
[69]PCB 12.
106 In cross-examination it was suggested to the plaintiff that she could not go to the gym anyhow because she was looking after the children. However, the plaintiff’s evidence was that but for the injury she could have always exercised at home. She had always been vigilant in exercising and it was very important to her.[70]
[70]T 28.
107 I accept that exercise and the gym played an important part in the plaintiffs sense of well being. In this respect I note that she told Dr Weissman that she “gets down because she used to be very active” and that she felt “physically incapable as a person”. [71]
[71]DCB 5.
108 While I accept that the plaintiff may not have attended the gym as often after she had children these days many gyms have a crèche. Given the importance the plaintiff attached to being fit prior to her injury, it is reasonable to conclude that but for the injury, she would have continued to attend the gym, albeit perhaps not as often as she had before the birth of her children.
109 Most importantly the plaintiff’s position is different from that of the young man in Stijepic’s case, as after his injury he was able to run, play social cricket and soccer and kick a football with a friend.[72]There is no suggestion in this case from any of the medical experts that the plaintiff has retained the ability to attend the gym and to exercise as she did before the injury.[73]
[72]Para 39.
[73]DCB 21 see in particular Mr Simm para 4.
110 I accept that the plaintiff was previously a very active person who enjoyed exercising on a regular basis and that she is no longer able to take part in any recreational pursuits that involve sustained physical activity.
Marital relations
111 In her second affidavit the plaintiff stated that despite having two children since the accident, her sex life is affected due to back pain. This has placed a strain on her relationship with her partner.[74] Dr Weissman reported that:
[74]PCB 21.
112 “She told me that sexually she feels inadequate. She explained to me that she gets a sore back when she is intimate and it bothers her(she was very tearful and distressed at this stage of the interview).”[75]
[75]DCB 5.
113 I accept that the plaintiff is distressed about the affect of the injury on her sexual life and that she feels sexually inadequate.
Recreational
114 In her first affidavit the plaintiff deposed that before the injury, she enjoyed reading and writing. She wrote poetry and enjoyed painting with oil paints. Since the injury, because of the constant pain and a loss of energy and feeling tired all the time, she cannot enjoy these pursuits any longer. [76]
[76]PCB 14.
115 As a matter of common sense I consider that the plaintiff’s ability to take part in these pursuits would be adversely affected by having two small children. However, I also accept that as painting caused increased pain in her neck and upper back the plaintiff has not painted since 2006 and that this upsets her a lot.[77]
Holidays
[77]PCB 20
116 The plaintiff and her family have been to Fiji twice since the accident, in July 2011 and May 2013. I accept that while the plaintiff enjoyed these holidays she could not lie on the sand as it caused increased back pain, as did carrying items (the children’s plastic blow-up toys, and a beach bag) to the beach. I also accept that the flight there and back increased the pain in her back and that she found herself standing and walking around when allowed.[78]
The car
[78]PCB 19 & T 20
117 The plaintiff remains able to drive the car and admitted that since the accident she has incurred a number of driving infringements including four speeding tickets, all within 10 kilometres of the speed limit. She also has an infringement involving a red light and for using a mobile phone.
118 While the plaintiff has retained an ability to drive a car there is no evidence that she has driven for distances which are inconsistent with her injury. The most that can be said about the plaintiff’s driving is that her poor record reveals a need for her to be more attentive when she is behind the wheel
Social life
119 When she was cross-examined about her social life, the plaintiff said that she socialised with her two sisters and her parents. She visited them once a week and usually saw them together. They lived about 40 minutes away and as it was usually on a Saturday night her partner drove.[79] In addition she socialised with some people she grew up with as a child. She saw them maybe once every two or three weeks.[80]
[79]T 15.
[80]T 16.
120 While I accept that the plaintiff has retained some sort of social life I consider that it is hardly significant in the overall picture that has emerged of her life.
Mental health
121 The plaintiff has also experienced depression as a result of the injuries. She often feels in a low mood. She suffers loss of self-esteem because she has gone from being a very fit and capable person to being a person who is constantly in pain and having to take painkilling medication each day.
122 In so far as the plaintiff’s mental health has been affected by her chronic back pain, I have taken this into account in accordance with Richards v Wylie (2000) 1 VR 79.
123 In summary, taking into account all of the evidence in this case I am satisfied that the plaintiff has sustained a long-term impairment of the function of the spine which will continue. I am also satisfied that having regard to the persistence and frequency of her pain; the requirement for constant medication albeit over the counter medication due to her ceilac condition; the restrictions on her domestic activities, which she performs in a stoic manner; the loss of her ability to enjoy physical activities, in particular the pursuit of fitness at the gym; the physical limitations on any capacity to return to work, and the development of depression that is secondary to her physical injury, that the pain and suffering consequences of the plaintiff’s physical injury, when judged by comparison with other cases in the range of possible impairments of losses, can be fairly described at least as very considerable, and certainly more than significant or marked.
124 Leave is granted to the plaintiff to issue proceedings in respect of the injury to the spine suffered in the accident of 20 September 2004.
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