Peuraca-Surla v Transport Accident Commission
[2014] VCC 156
•27 February 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-02521
| ZVJEZDANA PEURACA-SURLA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 November and 10 December 2013 | |
DATE OF JUDGMENT: | 27 February 2014 | |
CASE MAY BE CITED AS: | Peuraca-Surla v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 156 | |
REASONS FOR JUDGMENT
---
Subject: TRANSPORT ACCIDENT
Catchwords: Damages – serious injury – injury to the neck – mental or behavioural disturbance
Legislation Cited: Transport Accident Act 1986, s93(4)(d), s93(6)
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Richards v Wylie (2000) 1 VR 79; Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702; Barlow v Hollis [2000] VSCA 26; Petkovski v Galletti [1994] 1 VR 436
Judgment: Leave to the plaintiff to bring proceedings for damages in relation to injuries sustained in the transport accident on 20 November 2007.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Middleton SC with Mr S Martin | Zaparas Lawyers |
| For the Defendant | Mr P Rattray QC with Mr A Newman | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s93(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 20 November 2007 (“the transport accident”).
2 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The plaintiff brings this application pursuant to paragraphs (a) and (c) of the definition of “serious injury” to be found in s93(17) of the Act. There –
“serious injury means—
(a) serious long-term impairment or loss of a body function;
…
(c)severe long-term mental or severe long-term behavioural disturbance or disorder.”
4 The loss of body function relied upon in this application in respect to paragraph (a) is the neck. Under subparagraph (c), the mental or behavioural disturbance or disorder the plaintiff relies upon is a Chronic Pain Syndrome.
5 The plaintiff seeks leave to issue proceedings at common law.
6 The plaintiff relied upon three affidavits: two sworn by the plaintiff on 9 May 2012 and one sworn 18 November 2013. In addition, the plaintiff relies upon an affidavit of her husband, Dalibor Surla, sworn 12 February 2013.
7 The plaintiff and Mr Peter Phillips were cross-examined. I have not summarised the witnesses’ evidence or affidavits. However, I will refer to the relevant evidence in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant legal principles
8 The Court must not give leave unless it is satisfied, on the balance of probabilities:
(a)that the injury suffered by the plaintiff was as a result of the transport accident;
(b)that the injury is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.
9 The enquiry 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. The requirements of the test are set out in the decision of Humphries & Anor v Poljak[1] where the majority of the Court of Appeal said:
“…there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term… To be ‘serious’ the consequences of the injury must be serious to the particular applicant... In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.”[2]
[1][1992] 2 VR 129
[2] Humphries & Anor v Poljak (supra) at [140]
10 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, of itself, constitute or be the producer of the impairment of a body function;[3]
[3]Richards v Wylie (2000) 1 VR 79
11 In respect to paragraph (c) of s93(17), the word “severe” was used as a stronger word than “serious” in paragraph (a) of s93(17).[4]
[4]Per Brooking AJ in Mobilio v Balliotis [1998] 3 VR 883
12 The Judgment of the Court of Appeal in Mobilio v Balliotis[5] resolved the meaning of “severe”. Brooking JA held that the considerations in Turner v Love & Transport Accident Commission[6] were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely, that the change in language from “serious” to “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.[7]
[5]Supra
[6](1995) 21 MVR 314
[7]Mobilio v Balliotis (supra) at 846
13 Winneke P agreed with Brooking JA’s reasons, and further agreed with him that the word “severe”, where used in subparagraph (c) of ss(17) of the Act, was a word of stronger force than the word “serious” where used in the Act.[8]
[8]supra. See also Phillips JA at 858 and Charles JA at 860-1 to similar effect
14 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[9]
“… many disturbances are considerable, in the sense that they are important or substantial, without being very considerable. … .”
[9][1998] 1 VR 702
15 In determining the application, the Court must make the assessment of “serious injury” at the time the application is heard.[10]
[10] supra
16 The term “serious” requires the impairment and its consequences to be viewed objectively, and also judged on an external comparative basis against possible impairments not necessarily in the same category.[11]
[11](supra) at 170 and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441. In particular, Chernov JA at paragraph [29]
The Issues
17 Counsel for the defendant informed the court that there is an issue in respect to causation. Further, the injury is not “serious” within the meaning of sub-paragraph (a) of the definition of serious injury nor “severe” within the meaning of sub-paragraph (c) of the definition.
Investigations
18 On 2 April 2009, an x-ray of the cervical spine commenced:
“3mm anterolisthesis of C6 on CT. Follow up CT is recommended. Correlation with the patient’s past medical history also advisable.”
19 On 7 April 2009, an MRI scan of the cervical spine concluded:
“Multi-level disc degeneration without focal disc protrusion, cord compression or intrinsic cord abnormality. There is a Grade 1 AP slip at C6/7 likely secondary to chronic facet joint fractures. Congenital anomaly could give this appearance and if clinical doubt persists on this point, CT with multi-planner reconstruction is suggested. There is no active bone destruction or mass lesion. This AP slip results in mild bilateral bony foraminal stenosis.”
20 On 9 April 2009, a CT scan of the cervical spine confirmed:
“The vertebral body heights are preserved. The disc spaces appear intact. There is irregularity demonstrated of the 5-6 facet joints, particularly the left and is associated with a spina bifida occulta. The appearance suggests a congenital anomaly. There is no real evidence of an old fracture. There is disc bulge at 6-7 barely encroaching upon the thecal sac. No other disc abnormality finding.”
21 On 21 January 2013, an MRI scan of the cervical spine concluded:
“(i)Grade 1 AP slip is demonstrated at C6-7. There is no recent bony injury at this site. There is asymmetry of the neural arch with the left lamina being larger than the right with a sclerotic left C5 pedicle and probable degenerative changes in the left C6-7 facet which has a more coronal orientation than usual. I am sure this is a post-traumatic or congenital abnormality but this does not result in mild bony foraminal stenosis on the left at C6-7. CT with multi-planner reconstruction is suggested to further assess architecture.
(ii)No focal disc protrusion, cord compression or intrinsic bony abnormality is seen.”
The Plaintiff’s medical evidence
Mr Peter Phillips
22 In February 2013, Mr Phillips, physiotherapist, said the plaintiff sought advice for left-sided neck pain and headaches in November 2007. The plaintiff attended for physiotherapy in October 2008, complaining of pain in her neck and left shoulder and debilitating headaches, which resulted in her taking time off work. The plaintiff reported reducing her hours of work and study due to her neck pain and headaches. Mr Phillips said he treated the plaintiff on three occasions and recommended ongoing physiotherapy treatment.
Dr Ansari
23 In June 2010, Dr Ansari, general practitioner, confirmed that he had seen the plaintiff on 1 and 6 April 2009. In the second consultation, the plaintiff reported the transport accident of November 2007. The plaintiff complained of swelling on the right side of the chest and intermittent pain in the neck, and pins and needles in the arm. He said the plaintiff suffered a musculoligamentous strain of the cervical spine with some disc disruption at C5-6 and C7.
Dr Zoran Ilic
24 Dr Ilic, general practitioner, provided medical reports dated 30 June 2010, 8 March 2011, 31 October 2012, 31 January and 12 September 2013. He confirmed he has been the plaintiff’s general practitioner since November 2005. Dr Ilic confirmed that the plaintiff sustained a cervical spine injury in a transport accident on 20 November 2007.
25 In August 2008, the plaintiff was treated with medication and physiotherapy. She underwent a CT scan and was referred to a neurosurgeon, Mr Patrick Lo, in May 2009. The plaintiff was seen by orthopaedic surgeon, Mr Milan Pavlovic, who referred her to physiotherapy.
26 In June 2010, Dr Ilic said the plaintiff was unable to work full-time. She was working four days a week. It was anticipated that she would need to reduce her working hours.
27 In March 2011, Dr Ilic diagnosed musculoskeletal neck and chest pain and anxiety-related trauma. The prognosis was unclear. He thought she might have long-term neck discomfort and stiffness requiring further treatment. Dr Ilic said the plaintiff had a reduced range of movement of her neck and back and her anxiety had a significant impact on her life. In the long-term, he expected a full recovery from her injuries.
28 In September 2013, Dr Ilic reported the plaintiff had presented with ongoing somatic problems relating to her neck and back pain and sensation of pins and needles with associated numbness of her left hand. He said the plaintiff was suffering from ongoing anxiety and had been under the care of a psychologist, Ms Goble. It was his view that the plaintiff’s condition and problems were consistent with a motor vehicle accident-related injury. He diagnosed muscular skeletal, neck and chest pain, as well as trauma-related anxiety and depression. He thought it likely that the plaintiff would have long-term neck discomfort and stiffness which will require further treatment. He said the plaintiff could not work full-time. He confirmed the plaintiff was undergoing physiotherapy treatment and required medication for pain management. He thought there would be a full recovery.
Mr Patrick Lo
29 Mr Lo, neurosurgeon, saw the plaintiff upon referral from her general practitioner in May 2009. Mr Lo reviewed the plaintiff in February 2011, November 2012 and July 2013. In the November 2007 accident, Mr Lo said the plaintiff suffered a flexion and extension neck injury. She began experiencing neck pain and occasional tingling down the left arm.
30 In January and February 2008, the plaintiff was involved in two further transport accidents. She continued suffering from neck discomfort until April 2008, when she had a worsening of the neck pain with tingling radiating down the left arm. She underwent an MRI scan which did not reveal any neural compression. Subsequently, she attended her general practitioner in October 2008 for ongoing pain management. Mr Lo diagnosed neck pain following multiple motor vehicle accidents.
31 In February 2013, Mr Lo said the previous C6-7 fracture had healed and there was ongoing minor degeneration without nerve compression. He thought the plaintiff’s prognosis in terms of pain and spinal structure was good. He did not think she had a capacity for pre-injury employment due to neck pain and changes on the MRI scan, which were suggestive of degeneration. He said he could not determine fully the final extent of incapacity either now or in the future.
32 In August 2013, Mr Lo said, in terms of the plaintiff’s neck injury, the MRI scan had revealed ongoing fracture healing at the C6-7 level. It was his view that the fracture had now healed. In his clinical opinion, and on balance, failing the identification of any other historical trauma to the plaintiff’s neck in the interim between the motor vehicle accident in 2007 and her last review in July 2013, the fracture was caused by the 2007 motor vehicle accident. He said the MRI scan had shown some degeneration in her cervical spine. It was his opinion that the transport accident had resulted in an aggravation and exacerbation of a degenerative spinal condition. Further, the MRI scan had revealed ongoing foraminal narrowing and minor neural compression with ongoing C6-7 disc space degeneration. It was his view that the degeneration will continue as it is related to a process of aging.
Mr Milan Pavlovic
33 Mr Pavlovic, orthopaedic surgeon, examined the plaintiff in July 2010 in relation to low cervical pain. Mr Pavlovic obtained a history of two motor vehicle accidents in September 2007 and 2008. It was his view that the plaintiff was suffering with neck pain as a result of a whiplash-type injury sustained in a motor vehicle accident. He thought she would improve or stabilise within six to eight months.
34 In August 2010, Mr Pavlovic thought she was incapacitated to perform her normal activities, specifically sitting for long periods of time, driving for long distances or performing activities which required flexed or extended position of the cervical spine. He thought she would benefit from physiotherapy treatment.
Mr David de la Harpe
35 Mr de la Harpe, orthopaedic surgeon, saw the plaintiff on referral from the Epworth Emergency Department in July 2011 and reviewed the plaintiff in June 2013. He obtained a history of the plaintiff sustaining a whiplash injury in a motor vehicle accident in 2007, the neck pain gradually increased after the injury, which worsened over two years. The result was that the plaintiff sustained non-dermatomal arm pain and numbness into her hands. On examination, the plaintiff’s range of movement in her cervical spine was decreased by 50 per cent in all directions. He said her history was consistent with the stated cause. He diagnosed a degenerative neck pain with a query of bilateral facet joint fractures. He thought it more likely her injuries were due to degenerative change aggravated by the transport accident. His prognosis was “somewhat guarded”. He thought she was incapacitated for employment and said that she had suffered a significant degree of disability.
36 In June 2013, Mr de la Harpe reviewed the plaintiff and said the plaintiff was still unable to work due to diffuse neck and upper trapezius pain. He diagnosed a whiplash injury. He reiterated his prognosis based on the plaintiff’s failure to make adequate improvement with conservative management over some years. He thought she had some incapacity for employment. He thought she probably needed further physiotherapy, but would not require surgery. He said she suffered a mild degree of disability due to neck pain and stiffness but said he thought she would suffer chronic neck pain into the foreseeable future.
Mr Charles Flanc
37 Mr Flanc, vascular and general surgeon, provided four medical reports and examined the plaintiff in October 2010 and January 2013 at the request of the plaintiff’s solicitor. After examining the plaintiff and reviewing medical reports, in January 2013, Mr Flanc said the mechanism of injury sustained in the transport accident in November 2007 was a whiplash injury which was a likely significant musculoligamentous injury and probably aggravated pre-existing degenerative condition of the cervical spine at the C6-7 level. In his opinion, her symptoms were being influenced by non-organic, probably psychological factors, but he considered there was a physical, underlying condition related to the aggravation caused by the transport accident of November 2007. He thought the plaintiff had a theoretical capacity for at least part-time work as a social worker, provided she could move her head around whenever her discomfort became more severe. She reported difficulty in driving because of her neck pain. He was unable to comment on her psychiatric condition. He noted that she had difficulty sitting for longer than eight hours because this increased the severity of her neck pain. The plaintiff reported that she was not ready to face people and not ready to communicate with people. In considering these factors, Mr Flanc said the plaintiff had no realistic capacity for a return to employment into the foreseeable future.
Professor Peter Teddy
38 In March 2011, Professor Teddy, neurosurgeon, examined the plaintiff at the request of the plaintiff’s solicitor. On examination, the plaintiff exhibited a restriction of all neck movement by about 80 per cent. It was his view that the plaintiff suffered a soft-tissue injury as a result of the initial transport accident, which was exacerbated by two further accidents. He said that normally one would expect slow, progressive recovery over a two-year period. He recorded that she worked part-time and said it was unlikely surgery would be required. She could benefit from review by a rheumatologist or by treatment by means of a multi-disciplinary pain clinic.
Mr George Vlachos
39 In February 2012, Mr Vlachos, physiotherapist, confirmed that he treated the plaintiff from 8 July 2011 until October 2011.
Ms Marian Chua
40 Ms Chua, psychologist, provided reports of July 2011 and February 2012. She treated the plaintiff on referral from Dr Ilic from May 2011. She diagnosed an Adjustment Disorder with Anxiety and Depression and Post-Traumatic Stress Disorder. In July 2011, she confirmed that the plaintiff had a reduced capacity for employment. She thought she required further psychological treatment and said her prognosis was uncertain.
41 In February 2012, Ms Chua confirmed her previous diagnosis and said she had not seen the plaintiff since September 2011. She confirmed she treated the plaintiff on five occasions between May and September 2011.
Ms Georgina Goble
42 In October 2012, Ms Goble, psychologist, diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood and said the disorder was within symptoms consistent with Post-Traumatic Stress Disorder. She said the plaintiff’s psychological injury had largely been left untreated. Ms Goble said that the plaintiff’s psychological injury was likely to deteriorate without psychological treatment. She recommended 25 to 30 sessions of treatment on a weekly or fortnightly basis. She confirmed the plaintiff attended three sessions.
Dr Michael Epstein
43 Dr Epstein, psychiatrist, medically examined the plaintiff at the request of the plaintiff’s solicitors in October 2010 and in December 2012. It was his opinion that the plaintiff suffered a Post-Traumatic Stress Disorder following the accident in November 2007. He said the accident in January 2008 exacerbated her neck pain to a limited degree and exacerbated her symptoms of post-traumatic stress disorder. The accident in February 2008 led to a temporary aggravation of her psychological state but no increase in her physical symptoms. He noted that the plaintiff was having psychological treatment. He said that she would benefit from more frequent treatment. He noted that she had not been assessed by a psychiatrist and said she would benefit from medication to help with her level of depression and anxiety. He thought she might also require a multi-disciplinary management program. He said her condition was consistent with the stated cause.
Professor Stephen Davis
44 In January 2013, Professor Davis, neurologist, examined the plaintiff at the request of the plaintiff’s solicitors. It was his opinion that the plaintiff had variable symptoms in addition to nerve root irritation of the left arm but said there were no objective neurological features or signs of disc herniation. He described the two further accidents as relatively minor, which may have exacerbated the pre-existing problems but probably had no major additional impact. It was his opinion that the plaintiff would be able to work in her usual occupation and thought the psychological aspects were playing a major part.
The Defendant’s medical evidence
Mr Paul Kierce
45 In December 2010, Mr Kierce, orthopaedic surgeon, medically examined the plaintiff at the request of the defendant. It was his view that the plaintiff suffered a soft-tissue injury to her cervical spine in the transport accident. He said that if she suffered a significant injury, she would have sought medical help earlier than was the case. He said the plaintiff was suffering a congenital abnormality at C6-7, together with multiple cervical disc degeneration, which indicated she would have been likely to suffer with some attacks of neck pain anyway, irrespective of the transport accident. He accepted that the plaintiff’s symptoms had an organic basis but were not attributable to the transport accident. Rather, her symptoms are related to her congenital anomaly resulting in C6-7 spondylolisthesis, as well as the pre-existing degenerative changes in the cervical discs.
46 In November 2013, Mr Kierce reviewed the surveillance video carried out on the plaintiff on 25 March 2013. He observed the plaintiff with her child, holding the child’s hand, picking her up frequently and carrying her, during which time she appeared to move her neck normally. It was his view that none of the activities she undertook on the video demonstrated an increased range of movement from that which he had noted in an examination in December 2010. However, the activities which she was undertaking did not require her to demonstrate a significant range of movement.
Dr Timothy Entwisle
47 In December 2012, Dr Entwisle, psychiatrist, examined the plaintiff at the request of the defendant. It was his opinion that the plaintiff suffered a Mild Adjustment Disorder with various hypochondriacal concerns and nervousness on the road. He said she had developed a strong illness belief, which appears to be a Pain Syndrome, and anxious concerns about her health. It was his view that the plaintiff needed to be referred to an expert pain management clinic for psycho-education with a focus on functional restoration and a return to work. He accepted that her concerns about her health and experience of pain have impacted upon her ability to work. Mr Entwisle said that the plaintiff does not lead an active social or physical life and has retreated into the belief of a requirement for assistance in most aspects of her daily activities.
Credit of the Plaintiff
48 The plaintiff was well-educated, having obtained degrees in social work.
49 The plaintiff answered all questions put to her in a direct and frank manner and made appropriate concessions, namely, that she reduced her work to three days per week because of funding. If she did not understand a question, she asked that it be repeated. She was insistent that she reported her neck pain to her general practitioner following the transport accident in November 2007. If she could not remember, she said so. The plaintiff was not challenged on the consequences of her injury. Overall, I accepted that she was truthful.
Video surveillance
50 I was shown surveillance film of 2 minutes and 18 seconds taken in March 2013. It showed the plaintiff picking her daughter up on two occasions and carrying her for less than a minute. She rested her daughter on her right hip. This was consistent with the plaintiff’s evidence. I concluded that the surveillance did not assist the defendant’s case.
Analysis of the evidence
51 The majority of the medical evidence was that the plaintiff suffered degenerative changes which had been aggravated by the transport accident.[12]
[12]Mr Lo, Mr de la Harpe, Mr Flanc and Mr Kierce
52 Mr Lo said the last MRI showed degeneration in her cervical spine, particularly in the area of the previously noted fracture. He said that the transport accident has resulted in an aggravation and exacerbation of a degenerative spinal condition; that is, were it not for the transport accident, her cervical spine degeneration may have had an onset later than her current onset of pathology.
53 On the basis of the up-to-date medical reports, I accept that the plaintiff has suffered an organic injury to her neck, being aggravation of pre-existing degenerative changes.
54 Counsel for the defendant submitted that causation was an issue. The first written record of the transport accident in the notes of the plaintiff’s general practitioner was eighteen months after the accident, in 17 May 2009, despite the plaintiff consulting him for unrelated matters. In addition, the evidence of Mr Phillips, physiotherapist, was that the plaintiff told him of her neck pain as a result of the transport accident, and he recommended she consult her general practitioner and obtain physiotherapy for the neck pain.
55 The plaintiff was seeking treatment for her chest pain from August 2008. A number of the medical witnesses accepted that the plaintiff’s complaint of chest pain and arm pain were related to the neck injury.
56 Mr Lo, Mr Flanc, Mr Epstein, Professor Davis, and Mr Kierce were aware of the three transport accidents and attributed the injuries to the first transport accident. Dr Ilic and Mr Pavlovic were aware of two transport accidents and Mr de la Harpe, one accident.
57 All medical witnesses accepted that her injuries were related to the transport accident.
58 I accept the plaintiff’s evidence that in the subsequent transport accident in January 2008, she suffered a temporary increase in pain for a few weeks, after which her level of pain returned to the level it was prior to the January accident. I accept the plaintiff’s evidence that in the February 2008 accident, the impact was minor and did not increase the level of pain she suffered. The medical witnesses who expressed an opinion on the two further accidents described them as relatively minor, which may have exacerbated the pre-existing problem but probably had no major additional impact.[13]
[13]Professor Davis, Professor Teddy.
59 I am satisfied that the plaintiff suffered a compensable injury, being a musculoligamentous injury involving an aggravation of a pre-existing degenerative condition of the cervical spine as a result of the transport accident on 20 November 2007.
60 In respect to an aggravation to a pre-existing condition, Southwell and Teague, JJ, in Petkovski v Galletti,[14] said that the task of the Court is to analyse the extent of the impairment of the body function before and after the relevant injury. The Court said:[15]
“…a comparison must be made of the condition of the application immediately before the accident with his condition thereafter, and an assessment made of the extent of the additional impairment … .”
[14] [1994] 1 VR 436
[15](supra) at 443
61 Where the injury for which compensation is claimed is an aggravation injury, the additional impairment must, itself, involve serious long-term impairment (or loss) of a body function.
62 Accordingly, I must consider what the evidence discloses as to the plaintiff’s prior condition, and determine whether the additional impairment resulting from the November 2007 transport accident was serious.
63 The evidence was that the plaintiff was in good health prior to being involved in the transport accident in November 2007. I accept that at the time of the transport accident, the plaintiff was symptom-free in respect to her neck.
64 In determining the plaintiff’s impairment, I must make the assessment as at the date of hearing. Accordingly, I will be assisted by the more recent medical opinions in this case, the reports of Dr Ilic, Mr Lo, Mr de la Harpe, Mr Flanc and, to a lesser degree, Mr Kierce.
65 The plaintiff’s evidence was that she continues to experience severe neck pain on a daily basis. The pain continues to be worse on the left side of her neck. She also experiences pins and needles, numbness and weakness in her left arm and hand. She suffers headaches regularly. Her neck pain flares up if she moves her neck suddenly, especially to the left. She said in the mornings her neck pain is particularly bad. This is confirmed by what she told her general practitioner in September 2013 and, to a lesser extent, by what she told Mr de la Harpe, Mr Flanc and Professor Davis in January 2013. She continues to experience intense headaches a couple of times per week.
66 The plaintiff was consistent in reporting her pain to the medical witnesses. Dr Ilic said the plaintiff would suffer long-term neck pain and stiffness and require further treatment of physiotherapy and medication. Dr de la Harpe said she will suffer a mild degree of disability due to neck pain and stiffness but will suffer chronic pain into the foreseeable future. Mr Lo said her condition had stabilised. He thought her condition would continue to degenerate with time and age.
67 I accept that as a consequence of the transport accident, the plaintiff suffers neck pain, pins and needles, numbness and weakness in the left arm and hand and headaches.
68 The plaintiff’s evidence as to treatment was that approximately once a month she consults her general practitioner. She recommenced physiotherapy on the recommendation of Mr de la Harpe, having attended physiotherapy between February 2010 until November 2011 and recommenced in February 2012 after the birth of her daughter. She takes medication of Panadol Osteo, two tablets in the morning and two in the evening, when the neck pain is particularly bad. She also takes valium when she has extreme pain or when her neck is stiff. She is reluctant to take the valium because it makes her drowsy. She takes Endep for her pins and needles.
69 All medical witnesses accepted the plaintiff’s treatment was limited to consultations with her general practitioner, physiotherapy and medication. I accept that the level of treatment is a consequence I can take into account.
70 The plaintiff’s evidence was that she and her husband and daughter live with her parents. She reported to Dr Epstein that she recognised that she would have difficulty coping with a baby, especially with her husband working full time. She and her husband sold their home and jointly built their present home in Point Cook with her parents. They moved there in October 2011. She relies heavily upon her husband and parents for assistance with looking after her daughter and with the housework. The plaintiff’s evidence was that she avoids heavy household chores which are performed by her family. In cross-examination, the plaintiff said that the cooking is shared between herself and her mother, although her husband assists her with cooking. The plaintiff said she had difficulties lifting her daughter, who is now a toddler, as it causes the pain to build in her neck and shoulders. She said there are times when she lifts her daughter in spite of the pain but consciously rests her on her right hip and holds her in her right arm. She is unable to put her daughter in the car seat, which means she is restricted in going places without her husband or parents assistance. When she is at home she needs to take rest breaks during the day because of the neck pain.
71 I accept that she is reliant upon family members in relation to her day to day living. I accept that is a significant consequence for a woman aged 35.
72 The plaintiff’s evidence was that her sleep is affected by pain. She wakes, on average, two to three times a night from neck pain. She has difficulty returning to sleep and is fatigued most days from lack of sleep. I accept that this is a consequence that I can take into account.
73 The plaintiff’s evidence was that her neck pain, headaches, which she suffers on a weekly basis and tiredness prevent her from socialising. Her relationship with her husband has been affected. This was supported by the evidence of her husband, who said he misses being close with his wife. He said they go out less and he misses socialising with friends. The plaintiff’s evidence was she was reluctant to have a second child because of the neck pain she suffers.
74 The evidence was that at the time of the transport accident, the plaintiff was working four days per week as a social worker in the Serbian community. She was also studying part-time to complete her Masters Degree in Social Work.
75 The plaintiff continued working after the transport accident. There was a period in 2008 when her hours were reduced to three days per week due to funding cuts; however, she otherwise continued to work four days per week. In July 2010, she reduced her hours to three days per week because of increasing neck discomfort. She ceased work in June 2011 because of her pregnancy. The plaintiff’s evidence was that, as a result of her neck pain, she found it difficult to cope with her pregnancy so she ceased work when she was four months’ pregnant. It had been her intention to work until she was eight months’ pregnant, take twelve months’ maternity leave, then return to work on a part-time basis. Because of the level of neck pain, she has not been able to return to work.
76 The plaintiff’s evidence was that it was her intention to return to work on a part-time basis after having her baby. She would like to return to work but feels she would struggle with the neck pain and her inability to maintain concentration. She agreed that she had not looked for employment.
77 The medical evidence as to the plaintiff’s capacity to work was vague and unsatisfactory. Her general practitioner said she was unable to work full-time due to her ongoing symptoms. Mr de la Harpe said she had some incapacity for employment. Mr Lo said he did not believe she has a capacity for pre-injury employment owing to the neck pain, and changes on the MRI scan suggests degeneration. Mr Lo did not consider whether the plaintiff could perform suitable employment. Mr Flanc said that considering her physical complaint alone, she had a theoretical capacity for at least part-time work as a social worker, provided she could move her head around whenever her discomfort became more severe. Professor Davis, from a neurological perspective, thought she had a capacity for work.
78 Based on the medical evidence,[16] I accept that the plaintiff has suffered some incapacity for work and is a consequence I can take into account.
[16]Dr Ilic
79 The plaintiff’s evidence was that her studies took longer to complete because of her neck injury. This is a matter I can take into account.
80 In addition, the plaintiff described consequences of anxiety and depression. She requires treatment and medication. I accept that those are consequences that I can take into consideration in accordance with Richards v Wylie.[17]
[17]Supra
81 As the plaintiff’s consequences have persisted for approximately seven years and the majority of the medical evidence suggests no improvement in the future, in my view, her impairment is long-term.
82 Given the plaintiff’s young age and the medical opinions, she is likely to suffer these consequences for the majority of her life.
83 Taking all the evidence into account, namely her experience of pain, the loss of independence, the effect upon her work, the domestic and relationship consequences and her age, I am satisfied the consequences to the plaintiff can be described as more than “significant” or “marked” and can be fairly described as “very considerable” when judged by comparison with other cases in the range of possible impairments.
84 Accordingly, I grant leave to the plaintiff to bring proceedings for damages in relation to injuries sustained in the transport accident on 20 November 2007.
- - -
0
2
0