Petrovski, Cana v Mihailidis, Georgia and TAC
[2009] VCC 1462
•9 October 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES – COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-07-03696
| CANA PETROVSKI | Plaintiff |
| v | |
| GEORGIA MIHAILIDIS | First Defendant |
| and | |
| TRANSPORT ACCIDENT COMMISSION | Second Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14 and 15 September 2009 |
| DATE OF JUDGMENT: | 9 October 2009 |
| CASE MAY BE CITED AS: | Petrovski, Cana v Mihailidis, Georgia & TAC |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1462 |
| (First revision 11 November 2009) |
REASONS FOR JUDGMENT
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Catchwords: Transport Accident Act 1986 – Section 93 – serious injury – impairment of the cervical spine, lumbar spine and right shoulder.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V Morfuni SC and | John Dellios & Associates Pty |
| Mr J Goldberg | ||
| For the Defendants | Mr R J Stanley QC and | Solicitor for Transport Accident |
| Ms H Donmez | Commission | |
| HER HONOUR: |
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to Section 94(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 21 September 2001 (“said date”).
2 Section 94(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied
that the injury is a serious injury.”
3 The definition of serious injury relied upon by the plaintiff is under Section 93(17)(a):
“Serious long term impairment or loss of a body function.”
4 The body function relied upon by the plaintiff in this case is the cervical spine, right shoulder and lumbar spine.
5 The inquiry under sub paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
6 The serious injury defined by sub paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can itself constitute or be the producer of the impairment of a body function: see Richards v Wylie (2000) 1 VR 79.
7 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”?: see Humphries v Poljak [1992] 2 VR, at 140-1.
8 The plaintiff relied on two affidavits and gave viva voce evidence. She was cross examined. The plaintiff also relied upon an affidavit of her husband, Cane Petrovski, sworn 11 September 2009. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
9 The plaintiff is presently aged forty six, having been born in Macedonia on 13 November 1962. The plaintiff and her family migrated to Australia in 1973.
10 After completing Year 10, the plaintiff’s work experience has included many years employed as a machinist and seamstress. She also worked as a manageress with Snow Deli in the mid 1980s.
11 In the years leading up to the said date, the plaintiff was employed as a sewing machine operator with Beachcomber.
12 The plaintiff deposed she had previously suffered a back injury in a transport accident in 1983 when the car in which she was driving was hit by a truck. As a result of that injury she had about twelve to eighteen months off work.
13 In cross examination, the plaintiff agreed that she had a great deal of treatment for her back at that time and she was paid loss of wages.
14 The plaintiff suffered an injury to her back at work in April 1987 whilst working for Snow Deli. After that incident, she had about a year off work. In cross examination, the plaintiff agreed that she had a lot of treatment and underwent investigations in relation to this injury. She had a claim that was settled. She also experienced problems with her right heel which required some time off work in the early 1990s.
15 After each of these events, the plaintiff recovered sufficiently to return to fulltime work, and her pre accident back pain in the years leading thereto was of a minor nature. She coped with it by using simple analgesics and occasional physiotherapy. The pain did not interfere with her capacity to work long term or to care for her family.
16 In cross examination, the plaintiff said that up to the said date she might have been taking Panadeine Forte, Voltaren and Celebrex from time to time for her various problems but she could not remember.
17 The plaintiff was asked about another transport accident in August 1999. She did not recall an accident nor being injured. She agreed that she probably went to a chiropractor once or twice during 2000 but she could not recall why she required this treatment.
18 The plaintiff could not recall having problems with her neck or her knees before the said date. She had no problems doing housework or other tasks at that time.
19 In the 1990s, the plaintiff worked fulltime and also overtime. She never had to have time off from work because of neck pain or back pain.
20 The plaintiff lives with her husband and their twenty seven year old son who contributes financially to the running of the household.
21 Prior to the accident, the plaintiff enjoyed a busy social life, in particular she attended dinner dances and picnics with friends in the local Macedonian community. She enjoyed gardening, and walked for exercise. The plaintiff coped with all household tasks and chores. She cooked and cleaned for the family without problems.
22 On the said date, the plaintiff was travelling as a passenger in a car driven by her husband. Having swerved to avoid pedestrians on the roadway, their vehicle was hit from behind by another vehicle (“the accident”).
23 The plaintiff suffered immediate neck pain and lower back pain as a result of the impact, which was severe. It was a frightening experience, and she was in shock.
24 The plaintiff suffered injuries to her neck, right shoulder, arm, back and right leg, and also psychiatric injuries as a result of the accident.
25 After the accident, the plaintiff was taken by ambulance to the Northern Hospital where x-rays were taken, and she was discharged early the next morning.
26 The plaintiff rested over the following days. She then consulted her general practitioner, Dr Lamba, on 24 September 2001, at which time she was still suffering back, right leg, neck and right shoulder pain.
27 Dr Lamba sent the plaintiff for x-rays and a CT scan. She was prescribed analgesics, and it was suggested she have physiotherapy. Eventually Dr Lamba also referred her to an orthopaedic surgeon.
28 In early October 2001, the plaintiff commenced physiotherapy with Ms Sugareveska at Rehab Physiotherapy Centre. The treatment concentrated mainly on the plaintiff’s neck, right shoulder and back.
29 Despite this treatment, the plaintiff’s condition failed to improve. She underwent an MRI scan of her lower back on 27 November 2001. Physiotherapy continued throughout early 2002, and the plaintiff obtained a gymnasium and swimming membership which she used mainly for hydrotherapy.
30 By April 2002, the plaintiff felt she could return to work, and did so on restricted duties for a limited number of hours per week. She persisted with work, despite pain in her neck and back.
31 By August 2002, the plaintiff had managed to increase her hours to six hours per day, five days a week, and her loss of earnings benefits were terminated. Shortly thereafter the plaintiff’s employer insisted she return to work on a fulltime basis on unrestricted duties, and, as she was physically unable to do so, she was put off work.
32 Over the next few months the plaintiff continued hydrotherapy and self- rehabilitation.
33 The Transport Accident Commission (“TAC”) ceased paying for the plaintiff’s physiotherapy treatment in late 2003. The plaintiff’s condition did not improve. She had a second MRI scan of the lower back in April 2004 and was then referred by Mr Johnson to Dr Clayton Thomas.
34 Dr Thomas assessed the plaintiff and recommended she attend the Dorset Rehabilitation Centre for an outpatient rehabilitation program. He offered her facet joint injections, but none have been performed.
35 In March 2003, the plaintiff made a second attempt to return to work on reduced hours doing modified machine work. However, she continued to suffer increasing pain in her neck, right shoulder and lower back.
36 In cross examination, the plaintiff agreed that she returned to fulltime duties in June 2003. In the 2003-2004 financial year, the plaintiff earned $38,972 from this work. In the 2004-2005 financial year, she grossed $29,750, and in the following financial year, $28,694.
37 The plaintiff said that she worked fulltime in this period with help from her boss and that work knew of her situation. She agreed she did overtime sometimes when it was available.
38 In 2006, the plaintiff’s then employer closed down and she was retrenched. In cross examination, the plaintiff agreed that she stopped work because of a downturn in her employer’s work. She did not know whether she would still be doing that job if it was available and she agreed that she certainly did not give up her job at that time because of her injuries.
39 After she was retrenched, the plaintiff looked for further work. By mid 2007, she attempted working thirty eight hours a week at a local delicatessen.
40 However, because of the physical demands of that work, the plaintiff lasted in that job for only about two months and she had to inform her employer she was unable to cope with that number of hours. In particular, she was suffering too much pain in her lower back, especially when standing behind the counter and lifting trays of stock and the like. Her right shoulder and neck pain were also aggravated when carrying out these tasks.
41 The plaintiff’s condition changed little over the following months. At the beginning of 2008 she began some casual employment as a machinist. Work was only available spasmodically. On occasions when the plaintiff worked for longer periods she suffered an increase in her pain and symptoms, but she kept working, knowing the work was not continuous.
42 The plaintiff continues to suffer constant pain and stiffness in her right shoulder and upper arm, her neck, especially on the right side, and in her lower back. In addition, the pain in her lower back continues to radiate down into her right hip, buttock and leg. From time to time it also radiates into her right groin. Moreover, the pain in her neck continues to travel up into her head, causing headaches which remain severe and sometimes disabling.
43 The pain varies from day to day and is always troubling to some extent. The pain continues to interrupt the plaintiff’s sleep, and as a result she constantly feels fatigued during the day.
44 The pain is aggravated by activities such as prolonged periods of standing or sitting, as well as various movements such as bending, twisting, lifting and pushing and pulling. However, on occasion the pain in her lower back can simply flare up for no apparent reason.
45 As a result of her neck and back injuries, the plaintiff does not socialise as much as she did before the accident. She no longer spends as much time at her parent’s beach house at Dromana.
46 As a result of the accident, the plaintiff continues to suffer psychiatric problems. She remains nervous when travelling as a passenger in a car, and is still overly vigilant when travelling, particularly in heavy traffic. She continues to become anxious when reminded about the accident or when she hears in the media about other transport accidents. In addition, she also has a fear of further accidents causing injury to her and other members of her family.
47 The plaintiff remains depressed about her constant pain and the physical capacity she has lost as a result of the accident. She is easily frustrated and much less tolerant than she used to be, even in relation to the little things in life. Also she is still very anxious about her future prospects, particularly in relation to her financial situation.
48 The plaintiff, despite her ongoing problems, attempts to keep as busy as possible. She has tried doing some of the chores around the house, and tried to keep socialising, at least to some extent. The plaintiff’s husband does the heavier tasks around the house. However, she finds that when cleaning the house or pottering around in the garden, she must take her time and do things at her own pace. If she overdoes it on any one particular occasion she certainly pays for it later with increasing levels of pain.
49 The plaintiff last worked as a machinist in or about August 2008. She then had an extended period out of the workforce. Since that time, despite ongoing pain and associated problems caused by the accident, she has tried to get back to some form of part time work.
50 In or about April 2009, the plaintiff started back at a local delicatessen where she had briefly worked in 2007, and she now works there one day a week.
51 Since April 2009, the plaintiff has tried to work longer hours, but on each occasion she suffered a dramatic increase in pain and has been unable to continue. She believes one day a week is probably the limit of her work capacity. The plaintiff works on Wednesdays and is paid $60 cash.
52 At the end of a working day the plaintiff feels very tired and very sore in her back, neck and shoulder. She has pain when she is not working but it is worse when she is working.
53 The plaintiff continues to see Dr Lamba. She completes home exercises whenever her pain levels allow her to do so. She continues to rely upon Voltaren, Panadeine Forte and Panamax, and she also uses Voltaren Gel.
54 As a result of the accident, the plaintiff remains just a shadow of her former self, unable to work fulltime or to properly care for her family or to contribute to it in a financial sense.
Lay Evidence
55 The plaintiff’s husband, Cane Petrovski, swore an affidavit on 11 September 2009. He and the plaintiff have been married for twenty nine years. Mr Petrovski was the driver of the vehicle in which the plaintiff was travelling in the accident.
56 The plaintiff had suffered injuries in an earlier car accident in 1983, after which she was off work for about twelve to eighteen months. She had also injured her back at work in 1987 and had about a year off work.
57 The plaintiff had some time off work in the early 1990s when she had some problems with her heel. However, after each of those events she recovered and returned to work on a fulltime basis doing normal duties and overtime fairly regularly.
58 Since the accident, the plaintiff has made numerous attempts to return to work, but has struggled because of her injury. She continued at work until being made redundant in 2006.
59 In 2007, the plaintiff returned to work fulltime at the local delicatessen, but was unable to cope with the hours expected of her, and she now only works there one day a week.
60 The plaintiff was much happier when she was working. Because she does not work like before, they find it harder now. They are unable to save or put any money away, and as a result they are living day by day. The money that they had saved for their future has dwindled, and they have great concern for their future.
61 Prior to the accident, the plaintiff looked after the household without problems, and she was independent in all of her daily activities. Since the accident, because of her injuries, she now relies on him and their son to help around the house, particularly with heavy chores such as mopping, vacuuming, and cleaning the bathroom, and he takes on a more active role in the housekeeping because of her difficulties.
62 Prior to the accident, they enjoyed an active social life in the local community. They went fishing with another family. The plaintiff enjoyed gardening. Since the accident they have had to change the set up in the garden, as the plaintiff finds it very difficult to undertake many gardening tasks.
63 Further, since the accident, the plaintiff is much less social, and they do not see their friends as often because the plaintiff is unhappy and in too much pain.
64 The plaintiff is frequently depressed, unhappy, and teary. She is easily frustrated, and much less tolerant. She is irritable about her current situation, and anxious about the future.
65 The plaintiff gets agitated being at home, and therefore tries to go out of the house as much as possible. She has become forgetful, and he often has to remind her of things.
66 The plaintiff has stomach problems which have required treatment, and she uses a lot of medication.
67 Since the accident, their relationship has changed dramatically. Prior thereto, it was extremely good and harmonious. Since then, the plaintiff’s personality has changed, and that makes him uncomfortable, with her fluctuating moods and frustration.
Investigations
68 An x-ray of the cervical spine was carried out on 22 September 2001. There was minor cervical spondylosis present at C4-5 and C5 disc levels. There was no narrowing of the vertebral foramina or of the disc spaces.
69 An x-ray of the lumbar spine showed the vertebrae were intact and in normal alignment. L5 was transitional and articulated with the sacrum on the left at a pseudarthrosis. There was minor anterior spondylitic lipping present at L4-5 anteriorly.
70 A CT scan of the lumbar spine was carried out on 26 September 2001. At L2- 3 there was a minimal circumferential disc bulge. At L3-4 there was a minimal circumferential disc bulge and minor osteoarthritic changes in the right lateral apophyseal joints. At L4-5 the disc contour was normal and the foramina clear. There were minor osteoarthritic changes in the lateral apophyseal joints. At L5-S1 the disc contour was normal and the foramina clear. There were minor osteoarthritic changes in the lateral apophyseal joints. There was a pseudarthrosis between the left L5 transverse process and the sacral ala.
71 An x-ray of the right shoulder dated 26 September 2001 showed the acromioclavicular and glenohumeral joints were normal in alignment, and there was no soft tissue calcification.
72 An MRI scan of the lumbar spine taken on 27 November 2001 showed transitional lumbosacral vertebra. There was mild disc desiccation of the L3-4 and L4-5 discs, with minor non-compressive disc bulges.
73 An x-ray of the cervical spine taken on 28 August 2002 showed slight cervical scoliosis convex to the left. There was mild degenerative disc disease present at C5-6, with anterior osteophytes and minimal loss of disc height. The intervertebral foramina was widely patent.
74 An x-ray of the right shoulder was unremarkable. There was no rotator cuff calcification, bony injury or bone destructive lesion or arthritis.
75 An x-ray of the lumbosacral spine taken on 4 June 2003 showed a transitional vertebra at the lumbosacral spine. That had been regarded at L5. It had an expanded left transverse process that articulated with the rest of the sacrum. Sclerosis was seen, with this indicating degenerative change. There was slight narrowing of the L4-5 disc space, and early osteophyte lipping seen, most marked at L3.
76 An MRI scan of the lumbar spine taken on 22 March 2004 showed the L3-4 and L4-5 discs were degenerate and there was a small posterior annular tear at L4-5.
77 An x-ray of the cervical spine taken on 10 February 2006 showed prominent lipping changes anteriorly at C5-6. There was some minor disc space narrowing seen at C1-2, C3-4 and C4-5 levels. The neural foraminae were free of encroachment, and the cervical apophyseal joints were normal.
The Plaintiff’s Medical Evidence
78 Dr James Rowe examined the plaintiff for Switzerland Insurance on 25 May 1987 after she injured her back at work lifting a tray.
79 On examination, he thought there was no objective physical abnormality of any significance. He thought if she had suffered with any back strain she had recovered from it and was now fit and capable of returning to work. He mentioned it was questionable, in fact, whether the plaintiff had hurt herself at work. He thought her prognosis was excellent and that she was fit to go back to her normal duties.
80 Dr Helen Sutcliffe, occupational physician, examined the plaintiff on 14 September 1987 at the request of Switzerland Insurance.
81 Dr Sutcliffe noted the only abnormality found on examination was subjective tenderness to palpation over the left loin. She thought there was no significant abnormality present and that if back strain had previously been present, it had sufficiently resolved to allow the plaintiff to return to normal duties where bending and lifting were not required. She thought the prognosis appeared to be excellent and there was no evidence of permanent impairment of function.
82 Mr Sinh examined the plaintiff on 27 January 1988.
83 Clinical examination revealed no abnormality. The lumbar spine was non tender and revealed unrestricted painless movements. Radiological examination of the spine revealed no significant pathology apart from partially sacralised lumbar vertebrae without any degenerative changes in the discs. There were no active or residual signs to suggest the plaintiff suffered or was suffering from any injury to the lower part of her back sustained during the alleged incident in April 1987.
84 The plaintiff has been a patient of Dr Lamba in Thomastown since the early 1980s.
85 The plaintiff first attended Dr Lamba after the accident on 24 September 2001 complaining of back, right leg, neck, and right shoulder pain. Dr Lamba noted there was a history of an accident a few years ago, but that the plaintiff had recovered fully. Dr Lamba diagnosed sprain of the neck, back and right shoulder.
86 He certified the plaintiff fit for light duties and prescribed Voltaren, Panadeine Forte and Panamax. He thought she was unable to return to her pre injury duties until March 2003.
87 The plaintiff continues to complain to him of back, neck and shoulder pain. She has pain all the time which sometimes can be severe.
88 In cross examination, Dr Lamba confirmed that he referred the plaintiff to Mr Owen, orthopaedic surgeon, within two months of the accident. Further, in 2007, he had referred her to Mr Owen for problems with her left ankle and left wrist.
89 Dr Lamba confirmed the plaintiff had treatment for a left ankle problem in 2007, including an x-ray in January, an ultrasound in March, an injection and an MRI scan. He had also prescribed Voltaren. Dr Lamba had not noted the cause of the plaintiff’s left ankle pain. He commented that the plaintiff had not complained of left ankle pain since that time “so it must be alright”.
90 Dr Lamba was taken through a number of entries in his notes. On 30 May 1996, the plaintiff complained of pain in the lower back, locally tender. Voltaren, 50 milligrams twice a day, was prescribed and the plaintiff was to undergo microwave treatment for ten minutes. There was no mention of the cause of the back pain.
91 Dr Lamba continued to prescribe Voltaren in 1997 which he explained was prescribed for a condition like arthritis or muscular or back pain and it would follow there must still have been some ongoing pain at that time.
92 On 24 February 1998, pain in the left trapezius and Voltaren was noted. In May 1998, there was reference to a stiff neck but no details of the cause.
93 On 17 August 1999, Dr Lamba recorded:
“Half an hour ago somebody hit on the right side of the car. Passenger. No physical injury, blood pressure normal, heart just normal and Serapax given.”
94 Dr Lamba saw the plaintiff the next day when he noted:
“Anxiety, tension, pain in the back, slightly tender, Panadeine Forte, one
every four hours.”
95 He confirmed he would prescribe Panadeine Forte for severe pain.
96 In October 1999, “Right lower chest and Voltaren, 50 milligrams a day” was noted.
97 On 4 April 2000, there was mention that the plaintiff had pain in the back, had chiropractic treatment and was given Voltaren.
98 In July 2000, “pain right knee, tender locally, given Voltaren – right knee” was noted.
99 On 12 January 2001, there was reference to “pain both knees. Counselled. Celebrex”.
100 The next entry was in September 2001. Dr Lamba explained that if there were no notes of attendances from January 2001, it meant that the plaintiff did not attend in that nine month period.
101 Dr Lamba was shown Mr Owen’s letter of 22 November 2001 where he advised he suspected a lot of non organic pathology. Dr Lamba confirmed that Mr Owen had mentioned some facet joint changes on the right and suggested an injection, but had said the predominant problem was pain management.
102 Dr Lamba agreed that his own diagnosis was sprain of the neck, back and right shoulder. He noted the intensity of the plaintiff’s pain could be different at different times. When he described the plaintiff suffering severe pain, he meant quite a disabling pain off and on.
103 The plaintiff has taken Voltaren, Panamax and Panadeine Forte when needed. He agreed the plaintiff had been taking that sort of medication for many years.
104 He confirmed it would be difficult for the plaintiff to do pre injury work.
105 Dr Lamba confirmed that Mr Johnson reported to him that there was no difference between the findings on MRI in 2001 and 2004. Dr Lamba agreed that it would be a bit unusual to attribute degenerative changes seen on the first MRI scan to an accident eight weeks earlier.
106 He confirmed that he had referred the plaintiff to Mr Wilde to get advice on whether the plaintiff needed ongoing physiotherapy.
107 On re-examination, Dr Lamba said that not everybody recovers from musculo ligamentous strain. He confirmed the plaintiff’s pain is always there but sometimes it is worse than at other times. He considered the plaintiff’s pain was consistent with an L4-5 annular tear. The plaintiff has continued on the same medication as before the accident, except that she sometimes takes Tramal. He did not think that she could cope with work with her level of pain.
108 Dr Lamba’s clinical notes relating to attendances during the periods she returned to work were relied upon by the plaintiff.
109 In summary, from March 2003 to the end of 2006, the plaintiff attended on approximately fifty occasions complaining of back pain and she was prescribed medication. She complained of neck pain on twelve occasions with increasing frequency towards the end of this period. She also complained of right shoulder pain on six occasions.
110 From January 2007 to April 2008, she attended complaining of back pain on ten occasions, and was prescribed medication. She reported neck pain and right shoulder pain on three visits during this period.
111 The plaintiff underwent a six-week occupational therapy assessment on 7 November 2001 funded by the TAC. The program involved relaxation and counselling, back education, activities of daily living assessment and advice, and a work hardening physical conditioning program.
112 The plaintiff first attended Ms Sugareveska, physiotherapist, on 4 October 2001. Ms Sugareveska recommended continuing treatment at the end of December 2002, and also the gym membership.
113 The plaintiff saw Mr Johnson on referral from Dr Lamba in March 2004.
114 The plaintiff complained to him of disabling back and right leg pain since the accident. She told Mr Johnson she was possibly worse than a year ago, but she could still walk for forty minutes and sit for thirty minutes, but she was unable to do heavy housework.
115 On examination, the range of thoracolumbar movement was seventy per cent of normal, and there was full straight leg raising and no neurological abnormality in the lower limb.
116 Mr Johnson reviewed the previous CT scan, x-ray, and MRI scan, which, in his view, demonstrated an L5 sacralisation anomaly in addition to some disc degeneration at L4-5. He considered there was no major prolapse or nerve root compression seen on investigation.
117 Mr Johnson noted he told the plaintiff that it was difficult to be certain of the cause of her pain. In his view, it was possible that her symptoms may be related to the L4-5 abnormality seen on MRI, but that could not be guaranteed. He considered, because of the diagnostic difficulty, there would always be a degree of uncertainty if the plaintiff decided to proceed with surgical intervention.
118 In his view, should the plaintiff be prepared to take that risk, it would be necessary to further investigate her condition with lumbar discography in an attempt to get a better idea of the pain source. He suggested the plaintiff see Dr Thomas, and also that a further MRI scan be carried out, although he noted he would be a little surprised if it showed any major differences compared to the previous investigations.
119 Following receipt of the 2004 MRI scan, Mr Johnson reported to Dr Lamba that there had been no change seen on that investigation, and his opinion was unaltered.
120 Dr Thomas examined the plaintiff for medico-legal purposes on 5 November 2003.
121 At that stage the plaintiff told him that she continued to have pain in the affected areas of the right side of her neck and low back, and she took painkillers from time to time, but nonetheless was able to manage the nature of her work as a machinist. She complained of right-sided low back pain, and pain in the right side of her neck in the trapezius muscle area.
122 Dr Thomas noted, on examination, the plaintiff was co-operative. Spinal range of movement was far more painful in extension than flexion. Neurologically the lower limb reflexes were brisk and symmetrical, and there was no evidence of any wasting. Straight leg raising was unremarkable.
123 Examination of the cervical spine revealed well preserved range of movement. There was a mild limitation of rotation.
124 The plaintiff had a full range of movement of the right shoulder, although increasing pain on increasing abduction, and she was quite tender over the trapezius muscle. Neurologically upper limb reflexes were brisk and symmetrical. There was no evidence of any wasting, and power and sensation were intact.
125 Dr Thomas had available to him the 2001 MRI scan, plain x-rays, and the CT scan of September 2001.
126 In his view, the plaintiff had suffered an injury to her cervical spine causing pain to the right shoulder girdle. Dr Thomas did not believe there was any intrinsic damage to the right shoulder. He considered the clinical diagnosis in relation to the lumbar spine was one of facet joint pain coming from the right L4-5 and/or L5-S1 facet joints.
127 Dr Thomas suspected there may be further minor improvement, but he thought the plaintiff’s condition had substantially stabilised, and conservative management was appropriate. He noted medication usage was on a required basis, which he thought was appropriate.
128 Dr Thomas noted that the plaintiff had returned to work, albeit on occasional painkillers, and commented she needed to be congratulated on doing so well in this regard.
129 Dr Thomas considered that the plaintiff had recovered from the injury to her back seventeen years ago, and the November 2001 MRI scan showed very minor degenerative changes.
130 The plaintiff was re examined by Dr Thomas for medico-legal purposes on 25 February 2008.
131 Dr Thomas noted he had previously been asked to see the plaintiff by Mr Johnson, and did so on 30 April 2004, at which time she was complaining of right sided lower back pain. He noted the 2004 MRI scan revealed similar findings to the 2001 MRI scan, with disc degeneration at L3-4 and L4-5 and an annular tear at L4-5. He wondered whether the plaintiff’s pain was more facetogenic, but noted she was not keen to pursue facet joint injections.
132 When Dr Thomas saw the plaintiff in 2004, she was working eight hours a day, four days a week, and five hours a day, one day a week, and she seemed to be highly motivated with respect to her rehabilitation. He suggested she attend the Dorset Rehabilitation Centre.
133 When Dr Thomas saw the plaintiff on 25 February 2008, she had commenced casual work as a machinist on a sporadic basis where she may work for one to two days every couple of months and then not work for a period of time.
134 On that examination, the plaintiff complained of pain in her right shoulder, headache and lower back pain on the right side. She told him that she had become used to her pain. When it was particularly bad she took Panadeine Forte or Voltaren, but only used the medication when her pain was problematic, otherwise she took Panamax at most. The plaintiff also reported neck stiffness and headaches as being severe once every two weeks. She reported right sided lower back pain and occasionally pain all the way down her right leg. She told Dr Thomas her walking was unimpeded.
135 On examination, cervical movement was mildly restricted, and there was tenderness more to the right. The range of lumbar movement was about sixty per cent normal. There was full range of movement of both shoulders, and neurologically upper and lower limbs were normal.
136 In Dr Thomas’s view, the plaintiff had a soft tissue injury to her cervical spine. In her lumbar spine she was suffering from some symptomatic spondylosis relating to one or other of the levels of the lower spine. He considered it may be more facetogenic than discogenic, noting that it was a very difficult clinical condition to be specific on.
137 Dr Thomas considered that the plaintiff’s level of incapacity was towards the milder end of the spectrum, but it was likely she would continue to complain of pain from her lower back going forward.
138 Mr Peter Wilde, orthopaedic surgeon, examined the plaintiff at Dr Lamba’s request on 19 August 2008.
139 Mr Wilde noted, on examination, the plaintiff had normal spinal posture, diminished movements, and no neurological findings affecting the lower limbs. He noted, unfortunately, the plaintiff’s situation was that she would not benefit from surgical treatment. He considered even a lumbar epidural injection might only assist for a brief period of time.
140 Mr Wilde mentioned he had tried to explain to the plaintiff there was no easy solution; no quick fix; and the way forward was with regular exercise involving walking, swimming and physiotherapy, such as Pilates. He felt the plaintiff should have access to physiotherapy, fifteen visits per year, for palliation of her back pain, and that she should have access to that treatment for at least eight years after her car accident.
141 Whilst noting that prolonged physiotherapy would not cure her back pain, he thought, nevertheless, it provided some patients with palliation and symptomatic care, and just like taking Panadol, the plaintiff should be allowed to access physiotherapy on a limited basis.
142 Mr Kevin King, orthopaedic surgeon, examined the plaintiff in May 2009.
143 He had access to the Northern Hospital report detailing the plaintiff’s complaints after the accident of a jerking, jolting strain to her head and neck with pain and stiffness in the neck, a jerking, jolting strain to the lower back with some low back pain and stiffness, a heavy jolting strain to the right shoulder – development of stiffness and pain in the shoulder joint within the next few hours.
144 The plaintiff told Mr King of her various attempts to return to work, including a period of three years fulltime work during which she continued to work with difficulty. She also told him about the casual work as a machinist for about seven or eight months in early 2008, after which apparently no further work was available to her, and that she had been seeking alternative work ever since without success.
145 On examination, the plaintiff complained of constant aching pain and stiffness in the neck, fluctuating in intensity, usually of moderate severity with periodic flare up. He noted her most serious concern was persistent aching pain in the right shoulder, always present, fluctuating in intensity, usually of moderate severity, but quite severe with use of her right arm, and frequently disturbing her sleep. She reported as a lesser problem of constant nagging ache in the low back region radiating into the right buttock and thigh, of mild to moderate severity.
146 On examination, Mr King could find no evidence of exaggeration. There was mild to moderate limitation of neck movements by some spasm and pain, and approximately two thirds of the normal range of movements were present. There were similar findings in relation to the lumbosacral spine. There was some painful limitation of right shoulder movements, both glenohumeral and combined, consistent with a diagnosis of a chronic rotator cuff lesion of mild to moderate severity. Straight leg raising to the right was seventy degrees, and eighty to the left, and there was no neurological abnormality.
147 Mr King had available to him the November 2001 MRI scan, but not the March 2004 scan.
148 He thought it was reasonable to assume the plaintiff had sustained quite a violent jerking, jolting and twisting to her neck and back, and heavy jolting strain to the right shoulder in the accident. He also considered that she still had a chronic rotator cuff lesion of the right shoulder joint of mild to moderate severity.
149 In his view, the injury to the plaintiff’s neck would have caused damage to the cervical discs and associated ligamentous structures at multiple levels. The plaintiff also had further damage to her already mildly scarred and mildly symptomatic lumbar discs and associated ligamentous structures, causing significant aggravation of pre existing very mild and intermittent low back problems.
150 Mr King attributed two thirds of the plaintiff’s current impairment of the lumbosacral spine to the accident, and a third to her earlier injuries.
151 Mr King considered the plaintiff’s condition had stabilised, and thought she might find some suitable lighter employment in the future, but the overall probability, in light of her age, was that she would find it very difficult to find suitable light work. He considered she was certainly unfit for fulltime unrestricted duties as a sewing machinist or delicatessen assistant. He could find no evidence of any sort of psychological overlay.
152 Mr Brearley, orthopaedic surgeon, examined the plaintiff in July 2009. She gave a history of the 1983 and 1987 accidents.
153 On examination, she told him her main problem was constant discomfort or pain in the right side of her neck and the right shoulder and arm. The discomfort in her neck was present most of the time, and at times it was severe. She had low back pain from time to time, and also pain in the right buttock and hip.
154 On examination, there was slight tenderness over the right side of the neck, and slight limitation of movement in all directions to about eighty per cent of normal. There was limitation of movement in the right shoulder. There was some tenderness over the right lumbar region, and some limitation of movement. Straight leg raising was to seventy degrees on both sides, and all deep reflexes were normal, and sensation was normal.
155 Mr Brearley viewed the November 2001 MRI scan and various x-rays, but not the 2004 scan.
156 In his view, in the accident the plaintiff suffered a soft tissue injury of the neck, comprising disc damage to the C4-5 and C5-6 intervertebral discs, and damage to the supporting interspinous ligaments. He thought those injuries were continuing to cause pain in the neck with some referral to the right shoulder.
157 Mr Brearley noted that the plaintiff did appear to have a specific injury to her right shoulder, which he thought was presumably the result of an injury to the rotator cuff with the development of chronic subacromial bursitis and resultant ongoing pain and stiffness.
158 He considered the plaintiff had mechanical lumbar back pain resultant from injury to the L4-5 intervertebral discs, with resultant bulging of the disc and surrounding neural structures causing ongoing back pain.
159 In Mr Brearley’s view, the various injuries had made it impossible for the plaintiff to do her pre injury work fulltime as a sewing machinist, a job he thought she could do two hours a day, four days a week. However, he thought she would have problems being punctual or reliable because of the variability of her symptoms, and that she would need rest breaks every ten minutes. She would also require odd days off work without notice. He considered the plaintiff needed ongoing analgesic treatment but no interventional or operative treatment, and that the consequences of the injury would be likely to persist for the foreseeable future, and that the plaintiff would continue to have pain on a long term basis which would limit her activities.
160 Mr Shannon has examined the plaintiff on behalf of the defendants on two occasions, initially on 17 March 2007, and more recently on 9 July 2009.
161 On the earlier examination, the plaintiff described ongoing pain in the right side of her lower back, the right side of her neck extending to the right trapezius, right shoulder and arm, and she also had some pain in her right leg.
162 On examination, there was mild restriction of cervical movement and movements were a little hesitant. The plaintiff had full and equal movement of both shoulders, although she had some pain in the right trapezius muscles. There was no evidence of impingement.
163 Mr Shannon noted thoraco lumbar movements were limited by about a third and there was no spasm. Straight leg raising was to eighty degrees and there was no neurological abnormality in the upper or lower limbs. Waddell’s signs were positive.
164 Mr Shannon diagnosed a soft tissue injury to the cervical and lumbar spine and doubted there was a specific injury to the plaintiff’s shoulder, noting that her symptoms were mainly in the region of the trapezius muscle and she had a normal range of shoulder movement. At that stage he thought the plaintiff was capable of working as a machinist or other similar work if the work was available. However, he thought she would have some residual discomfort and stiffness in her back and neck which would limit the performance of heavier work.
165 On re-examination, the plaintiff said that there had been no change in her neck, back or shoulder condition and she could not separate which was the most painful. The plaintiff told him that she took mostly Panadol, but took Panadeine Forte when the pain was severe.
166 On examination, the plaintiff had a virtually normal range of movement of the cervical spine with slight loss of extension. Again, movements were rather hesitant. The plaintiff had full range of movement of both shoulders producing right trapezius pain and there was no neurological abnormality.
167 Thoraco lumbar movements were moderately restricted. Straight leg raising was to forty degrees on the right and thirty on the left, improving to seventy degrees in a sitting position. Waddell’s signs were again positive and there was no neurological abnormality.
168 Mr Shannon noted there was little change in the plaintiff’s condition and he thought she did not have any evidence of pathology in either shoulder joint.
169 Mr Shannon thought the plaintiff was probably capable of increasing her hours, although he was not sure that the motivation was now there to get back to fulltime work. He did not think she required specific treatment for her neck and back, and the prognosis was for ongoing stiffness and discomfort.
170 In his view, the injuries and underlying condition limited the plaintiff’s capacity to perform heavy physical work, that is, work involving prolonged or repetitive bending or heavy lifting.
171 Mr Shannon was sent the video of the plaintiff’s activities in June 2009. He noted that she was able to walk absolutely normally and apparently for significant distances. She moved her neck freely and she was noted even to jog on a couple of occasions. She was also seen to lift pavers in and out of the car.
172 In Mr Shannon’s view, the appearances were substantially different from those when he examined her, particularly in regard to her back. However, Mr Shannon confirmed his views as to the plaintiff’s work capacity.
The Defendants’ Medical Evidence
173 The defendants tendered two reports from Mr John Owen, orthopaedic surgeon, to whom Dr Lamba referred the plaintiff.
174 On 22 November 2001, Mr Owen reported he had seen the plaintiff following the accident, and he had sent her off for an MRI scan of the lumbar spine. He suspected the plaintiff had a lot of non-organic pathology going on and required comprehensive pain management and rehabilitation. He strongly urged Dr Lamba to refer the plaintiff to Mr Lim.
175 Mr Owen further reported on 17 December 2001, having obtained the November MRI scan. He noted that predominantly the plaintiff had progressive change in the facet joints in the lower lumbar spine, especially on the right, and she also had degenerative disc disease.
176 Mr Owen suggested to the plaintiff that she try facet joint injections in the lower lumbar spine on the symptomatic side. He noted her predominant problem was pain management, and once again he thought the plaintiff needed to have comprehensive care in that area, rather than any thoughts of orthopaedic surgery. Again, he suggested the plaintiff see Dr Lim or attend St Vincent’s Hospital for a chronic pain management course.
177 The plaintiff was examined by Dr Lefkovits on 19 November 2001. At that time she continued to complain of pain in her neck, right shoulder, low back, right buttock and right thigh.
178 On examination, there was a good range of movement in the neck and upper limbs, but significant restriction due to pain in the lumbar region.
179 He noted that he was surprised the plaintiff was as incapacitated as her complaint suggested, in the presence of relatively normal x-rays, and in the context of what sounded like a relatively low impact collision.
180 Further, he noted that a history of a year and a half off work fifteen years ago from a back injury was cause for concern. He was unconvinced that the plaintiff had suffered from any serious or permanent injury as a consequence of the accident. He thought the plaintiff should be able to perform fulltime unrestricted, pre injury duties by the new year.
181 Mr Henry Byrne examined the plaintiff on 27 February 2002.
182 On examination, he found both shoulders were completely normal, with full range of movement, without any pain. There was no neurological lesion in either upper limb, and the plaintiff’s reflexes were normal.
183 Flexion of the neck was full, but there was slight limitation in extension, and the plaintiff tended to puff and pant when she moved her neck. Straight leg raising was to eighty degrees on the right and ninety degrees on the left. He noted there seemed to be slight limitation of flexion and extension in the lumbosacral spine. Otherwise, movements were normal.
184 Mr Byrne diagnosed a whiplash type soft tissue strain in a pre existing degenerative cervical spine, and a strain of the lumbosacral spine with some pre existing degenerative change.
185 He considered this did not seem to be a particularly large accident, and he was sure the plaintiff’s symptoms were out of proportion. He thought the organic side of her orthopaedic problem was small, but the functional side was quite large.
186 Dr Greenberg saw the plaintiff on 5 March 2002, at which time the plaintiff complained of a painful right shoulder and right side.
187 On psychiatric examination, the plaintiff was not complaining of any problems with memory and concentration and in Dr Greenberg’s view, there was no evidence of cognitive impairment.
188 On the history given to her by the plaintiff, Dr Greenberg noted the diagnosis was uncertain and the plaintiff was not claiming to have Post-Traumatic Stress Disorder or any condition like that. She did, however, claim to have nervousness in relation to driving near a pedestrian and being a passenger. The plaintiff was not describing symptoms which would allow a psychiatric or a DSM diagnosis of depressive illness.
189 Dr Greenberg noted that, in the plaintiff’s case, she could not distinguish between the possibility that the plaintiff truly believed that there was a problem in her back and was truly fearful of exertion, or whether perhaps she was a person who had a heightened awareness of body sensation or physical pain and some form of abnormal behaviour. She noted that the plaintiff’s tearfulness and apparent lowered mood were convincing. Although the plaintiff cried, she herself was not really complaining of any significant lowered mood. Her behaviour and demeanour suggested that that was a possibility however.
190 From a psychiatric point of view, Dr Greenberg did not believe the plaintiff had a major or significant psychological condition and she thought the best diagnostic label would be an Adjustment Disorder with some depressed mood.
191 Professor Dennerstein, psychiatrist, examined the plaintiff on 10 April 2007.
192 The plaintiff told Professor Dennerstein that she had had frequent dreams of the accident which had diminished with time. She did not describe any spontaneous intrusive thoughts of the accident but said she became upset if she saw an accident on television.
193 She told Professor Dennerstein that her general practitioner had given her an antidepressant which she took for a time and then stopped.
194 The plaintiff said her husband did the heavier housework and she shared most of the cooking with him. He did the gardening. They continued to see their group of friends but less often than before because of her pain level.
195 In terms of her current mental state, the plaintiff did not report persistently lowered mood. There was no social withdrawal and her mood was affected at times by pain.
196 Professor Dennerstein concluded that the plaintiff did not continue to have the cardinal feature of Post-Traumatic Stress Disorder, namely recurrent persistent re-experiencing of the accident. Professor Dennerstein considered there was no diagnosable psychiatric disorder and that the plaintiff’s condition had stabilised and appeared unchanged since she had seen Dr Greenberg. The defendant also tendered a letter from Mr Johnson to Dr Lamba dated 28 March 2004 following the MRI scan of that date.
197 Mr Johnson noted those investigations demonstrated multi level disc degeneration, most marked at L4-5, where there was a posterior annular tear, but no posterior prolapse or nerve root compression.
198 Mr Johnson mentioned he discussed the investigation results with the plaintiff over the phone. He told her the MRI appearance was not dissimilar to what he had seen on previous investigations, and once again he thought it was possible the pain may be related to the L4-5 disc abnormality. He noted the plaintiff did not want to consider surgical intervention, and therefore encouraged her to see Dr Thomas.
Video Evidence
199 The defendant admitted surveillance was undertaken on 13, 15, 23 and 24 November 2001 with video footage of thirty seconds. The second period of surveillance was on 21, 23 and 29 May and 2 June 2002, when there was no video footage. The third period of surveillance was on 19, 21, 27 and 29 May 2009, and the video of 29 May 2009 is of sixteen minutes and thirty seconds’ duration.
200 On 29 May 2009, the plaintiff was shown walking with a friend. There was three minutes of video covering the period 9.21 am, when the plaintiff started walking, until 10.28 am.
201 The plaintiff then drove to a garden supplier. She and her friend arrived there at 10.45 am. They looked at some pavers and then got assistance from an employee. The plaintiff’s car was then backed up and the boot opened to load the pavers. The plaintiff was shown over about a minute picking up about four or more pavers and taking them a short distance to her car. The view of the plaintiff was obscured by passing traffic and also a pile of pavers.
202 The plaintiff returned home at 11.30 am. Her husband unloaded four pavers from the boot of the car and put them in a wheelbarrow and took them away. The plaintiff then removed one paver and carried it a short distance. The plaintiff then bent into the back seat of the car and took out her handbag.
203 During the sixteen minutes of video the plaintiff displayed no obvious restriction or discomfort.
Overview
204 In these proceedings, it is not disputed the plaintiff suffered a compensable injury in the accident. It is generally accepted that the plaintiff suffers from a musculo ligamentous strain to her neck and back and some aggravation of pre existing facet joint degeneration.
205 Further, counsel for the plaintiff submitted that there was no evidence that the annular bulge was not caused by the accident and it was submitted it was accident related.
206 However, given the similarity between the 2001 and 2004 MRI scans, and the views of Mr Johnson and Dr Thomas to this effect, and also the evidence that it was unlikely degenerative change shown on the 2001 MRI scan would be attributed to the accident eight weeks earlier, I do not accept that the annular bulge is accident related.
207 Counsel for the defendants submitted that there was no serious organic basis for the plaintiff’s complaints and that they could be explained on a functional basis, as described by Dr Lefkovits, Mr Byrne and Mr Owen, and psychiatrists, Dr Greenberg and also Professor Dennerstein.
208 However, a serious injury defined by sub paragraph (a) under the Act can have its seriousness measured in part by a mental response to a physical impairment. My focus is on whether the injury has produced an organic impairment, and then to determine whether the consequences thereof are serious and long term. see Richards v Wylie (2000) 1 VR 79.
209 Further, whilst a serious injury application was brought separately in relation to the right shoulder, there is little medical support for a separate shoulder injury, with the only mention of a rotator cuff injury being in very recent times in a medico-legal context when the plaintiff was examined by Mr King and Mr Brearley.
210 Dr Thomas, who was involved in the plaintiff’s treatment in 2004, did not think the plaintiff had injured her shoulder in the accident.
211 As was ultimately conceded by counsel for the plaintiff, despite assertions made by Mr King and Mr Brearley, radiologically a rotator cuff problem has not been disclosed, nor has there been specific shoulder treatment.
212 In these circumstances, it seems reasonable to accept that the plaintiff’s ongoing complaints of right shoulder pain are referred from her neck.
213 In this case, where there is a pre existing back condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from the accident is serious and permanent.
214 In Petkovski v Galletti [1994] 1 VR 436, the Full Court of the Victorian Supreme Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. …”
215 Whilst it was not submitted by counsel for the defendants that this was a credit case, it was submitted that there were other explanations that would make the plaintiff’s complaints inconsistent with there being underlying pathology caused by the accident.
216 Counsel for the defendants submitted that there was really no change in the plaintiff’s condition, let alone one that could be described as “serious” following the accident.
217 However, whilst the plaintiff clearly suffered injury in accidents in 1983 and 1987, after absences from work she was able to continue fulltime work as a machinist until the accident.
218 Further, whilst being involved in a car accident in 1999, the plaintiff did not make a claim in relation thereto nor did she require any time off work. The only treatment she received was the prescription of Serapax for anxiety. She did not attend Dr Lamba in the nine months before the accident.
219 I do not accept the submission by counsel for the defendants that doctors who are supportive of the plaintiff’s claim did not know the full extent of the plaintiff’s pre accident condition.
220 Whilst there was some vulnerability in terms of further injury, I accept that prior to the accident, the plaintiff was functioning normally, albeit with some medication, and she was able to attend to her work duties and family responsibilities without difficulty.
221 I must be satisfied, therefore, that the aggravation to the plaintiff’s back resulting from the accident can be described as “serious”, namely, whether the injury when judged by comparison with other cases in the range of possible impairments or losses, may be fairly described as being more than “significant” or “marked” and at least as being “very considerable”? – Humphries v Poljak (1992) 2 VR 129 at 140-1.
222 The statutory test requires a judgment based on an evaluation of the evidence.
223 The term “serious” requires the impairment and its consequences to be reviewed objectively and also judged on an external comparative basis against other possible impairments not necessarily in the same category: see Humphries v Poljak (1992) 2 VR 129, at 170, accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441: see in particular Chernov JA, at para 29.
224 In addition to being “serious” the impairment must be long term.
225 I accept that since the accident the plaintiff has had ongoing back, neck and right shoulder pain of varying severity. The consensus of medical opinion is that the musculo ligamentous injury persists to the present time.
226 The plaintiff has undergone a range of treatment. She received physiotherapy treatment until the TAC ceased funding, and Mr Wilde has recently supported the need for further treatment of this nature.
227 Whilst the plaintiff was taking medication before the accident, since that time Tramal has also been added to her medication regime. As a result of taking medication for her pain, the plaintiff has experienced gastric problems, for which she required treatment.
228 In this regard, counsel for the plaintiff relied upon Her Honour Dodd-Streeton’s comment in Kelso v Tatiana Meat Co Pty Ltd [2007] VSCA 267 where Her Honour stated, at para 99:
“… The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
229 Following the accident, the plaintiff was away from work for six months initially, and then did light duties for a further six months, until returning to fulltime normal duties in June 2003.
230 Whilst the plaintiff was able to work in this role until she was retrenched in March 2006, it is clear from Dr Lamba’s notes that the plaintiff had ongoing problems in her back, neck and right shoulder requiring medication, and she attended him on a regular basis whilst she was working.
231 Whilst the plaintiff conceded that she ceased work because of the retrenchment and does not say that there was any marked deterioration in her condition at that time, until March 2006 she was working with difficulty.
232 To her credit, the plaintiff returned to machinist work for about seven to eight months in 2007 until she ceased work because of pain. Again, there are continuing medical attendances during that period with complaints of pain in the neck, back and right shoulder, and prescription of medication in relation thereto.
233 Whilst the plaintiff’s left ankle problems in 2007 were related to problems standing at work at the delicatessen, as noted by Mr Owen, Dr Lamba confirmed the plaintiff’s ankle was not an ongoing problem beyond 2007.
234 As a result of the injury to both her back and neck, I accept that the plaintiff is unable to work fulltime in unrestricted manual work and has a limited capacity for light part time work – a view supported by Dr Lamba, Mr King and Mr Brearley. The plaintiff is unable to engage in any employment without the need for ongoing medication.
235 I accept that the plaintiff is well motivated, as evidenced by her return to work. It is to her credit that she has tried to continue working. Further, I accept that the plaintiff was truthful in her answers, making various concessions.
236 The plaintiff’s domestic activities, in the garden and the home, have been affected by the injury to her back and neck. She is no longer able to do heavy housework tasks.
237 The plaintiff’s involvement in social activities has been restricted by her spinal injuries.
238 The plaintiff’s husband’s evidence supporting her level of disability and restriction in activities, both social and domestic, was unchallenged.
239 While the plaintiff participates in walking with a friend most mornings, I do not accept that she was shown jogging on the video and there is nothing shown on the video of her walking that was inconsistent with her evidence as to her level of disability.
240 In my view, the film of the plaintiff at the garden suppliers did not show a great level of physical activity and does not indicate that the plaintiff has a greater work capacity than she admits, or that she was exaggerating her symptoms generally.
241 Taking into account all the evidence, I accept that the plaintiff has a serious injury in relation to her lumbar spine and to her cervical spine.
242 Counsel for the plaintiff submitted that neck and back injury suffered in the accident can be aggregated and can be considered as an impairment of the spine. A claim for compensation was made and treatment had been received for both these injuries.
243 Counsel for the defendants submitted this course could not be taken as there was no suggestion by anyone in this case there was an actual organic connection between the two injuries. Further, the particulars of injuries indicated discrete injuries and that was the way the case was run. There was no evidence of any injury to the spine generally. Also, it was submitted that commonsense dictated, looking at the evidence, the neck is a separate body function to the lower back.
244 In this case, as I have found there is a serious injury in relation to both the cervical and lumbar spine, I am not required to consider whether these impairments can be aggregated and considered as an impairment of the spine as a whole.
245 I note, however, that it appears relatively established that the use of the spine can be regarded as a single body function and that damage to vertebral levels in a single accident can be aggregated.
246 I grant leave to the plaintiff to bring proceedings for damages in relation to the accident.
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