Pisani v Transport Accident Commission
[2020] VCC 234
•12 March 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-01322
| PATRICIA CHRISTINE PISANI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 February 2020 | |
DATE OF JUDGMENT: | 12 March 2020 | |
CASE MAY BE CITED AS: | Pisani v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 234 | |
REASONS FOR JUDGMENT
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SubjectTRANSPORT ACCIDENT
Catchwords: Serious injury application – injury to the spine – causation
Legislation Cited: Transport Accident Act 1986
Cases Cited:Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Petkovski v Galletti [1994] 1 VR 436; Kelso v Tatiara Meat Co Pty Ltd 2007] VSCA 267
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram QC with Mr P Haddad | Slater & Gordon Lawyers |
| For the Defendant | Mr A J McG Moulds QC with Ms V C McLeod | Solicitor for the Transport Accident Commission |
HER HONOUR:
Preliminary
1 Ms Pisani is a sixty-two-year old woman who was injured in a transport accident on 7 February 2017, when she was travelling as a backseat passenger in a taxi, which was forcefully struck from the rear (‘the transport accident’). Ms Pisani claims she injured her thoracic spine in this accident, either in the form of a crush fracture or aggravation of pre-existing degenerative changes.
2 Since approximately 2002 or 2003, Ms Pisani had suffered lower back pain and a depressive condition. However, since September 2014, she had required no medical treatment for either condition. Ms Pisani claims that since the transport accident, she has suffered ongoing pain in her thoracic spine, for which she has taken regular pain medication, and undergone physiotherapy and hydrotherapy. Ms Pisani also claims that she has been restricted in some activities since that time, including tending to her garden, and going on outings with her family.
3 In order for Ms Pisani to be entitled to claim common law damages, she must satisfy me that she suffered an injury to her thoracic spine in this transport accident, and that the impairment arising from it satisfies paragraph (a) of the definition of “serious injury” contained in s93(17) of the Transport Accident Act 1986 (“the Act”).
4 The Transport Accident Commission (“the TAC”) defended this claim on the basis that Ms Pisani did not suffer an injury to her thoracic spine in this accident, and that her complaints of pain were psychologically based. However, in the event that I was satisfied Ms Pisani did suffer an organic physical injury, the TAC submitted that the consequences from her claimed impairment cannot be described as “at least very considerable”. The TAC submitted that little had changed for Ms Pisani when her life before the accident was compared to her life after it.
5 Only Ms Pisani was called to give evidence, and she was cross-examined. Also in evidence were medical reports and other material, including an affidavit from Ms Pisani’s daughter. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in my judgment.
6 For the reasons that follow, I am satisfied that Ms Pisani suffered an injury to her thoracic spine in the transport accident, and that the consequences from her spinal impairment can be described as “at least very considerable”. Ms Pisani should therefore be granted leave to commence common law proceedings.
Ms Pisani’s life before the transport accident
7 To understand the impact which the transport accident has had upon Ms Pisani, it is first necessary to understand how she functioned and enjoyed her life prior to the accident.
8 Ms Pisani was born in England and migrated to Australia on her 10th birthday. She left school at the end of Year 8 and worked for extensive periods of time in a supermarket.
9 Ms Pisani was previously in a de facto relationship, during which time she had three children. These children are now adults, and Ms Pisani has eight grandchildren.
10 Since approximately 2002 or 2003, Ms Pisani said she suffered chronic low back pain at a niggling, yet tolerable level. From time to time between April 2006 and September 2014, Ms Pisani consulted her long-term general practitioner, Dr Andrew Ramsay, regarding her lower back pain.
11 In June 2006, Ms Pisani was referred by Dr Ramsay to physiotherapist, Mr David McPherson, for her back pain with associated right leg pain and paraesthesia.
12 Also in 2006, Ms Pisani sought treatment and advice from Dr Ramsay regarding symptoms of depression. At that time, Ms Pisani was referred to a psychiatrist and was prescribed Lovan medication.
13 In January 2009, Ms Pisani consulted Dr Ramsay and complained of worsening back and leg pain.
14 On 2 February 2009, Ms Pisani was granted a disability pension from Centrelink.
15 On 13 February 2009, a CT scan was taken of Ms Pisani’s lumbar spine. It was reported as demonstrating a minor anomaly at L5, and shallow L3-4 and L4-5 disc herniation, without canal stenosis.
16 On 26 February 2009, Dr Ramsay prepared a general practitioner management plan in respect of Ms Pisani. In this plan, Dr Ramsay stated that Ms Pisani suffered depression, with symptoms of fatigue, mood, concentration and sleep disturbance. It was also noted that Ms Pisani suffered back pain which required conservative treatment. Her prescriptions at the time were Luvox, Nexium and Panadol Osteo. Dr Ramsay recommended that Ms Pisani manage her back pain with “simple analgesics infrequently” and a regular self-management exercise program under the guidance of Mr McPherson.
17 In June 2009, Ms Pisani was referred to orthopaedic surgeon, Mr Stephen Doig, for her chronic low back pain. At that time, Mr Doig noted that Ms Pisani had undergone a variety of treatments including physiotherapy, but that “none have really helped”.
18 On 14 July 2009, an MRI scan was taken of Ms Pisani’s lumbar spine. It was reported as demonstrating disc degeneration from L2-3 to L4-5; sacralisation of the left L5 transverse process; contact with the traversing L3 nerve roots, and a mild bilateral neural foraminal stenosis, without neural compromise at L5.
19 Following this MRI scan, Ms Pisani was reviewed by Mr Doig, who opined that there was nothing to be done for Ms Pisani from a surgical point of view, and he instead recommended she undertake regular exercises.
20 In November 2011, Dr Ramsay prepared a further general practitioner management plan in respect of Ms Pisani. At that time, Dr Ramsay noted that Ms Pisani’s depression was largely resolved. In relation to her back pain, Dr Ramsay again recommended that it be managed with “simple analgesics infrequently” and a regular self-management exercise program.
21 In December 2013, Dr Ramsay prepared a further general practitioner management plan in respect of Ms Pisani – this being the last one prepared prior to the transport accident. In it, Dr Ramsay noted that he prescribed Ms Pisani two to three Panadol Osteo per day, together with Crestor and Endep. Dr Ramsay once again recommended that in respect of her back pain, she manage it with “simple analgesics infrequently” and a regular self-management exercise program.
22 On 22 September 2014, Ms Pisani consulted Dr Ramsay for the last time prior to the transport accident.
23 Ms Pisani said that she did not have “a lot of pain” before the accident and that she was able to manage her pain. Ms Pisani said that prior to the accident, her back pain was on a scale of 3 to 4 out of 10. Ms Pisani said she bought Panadol Osteo from the chemist and took it approximately twice a week for back pain. She said she rarely did exercises for her back. She also said that she slept “all right” before the accident.
24 At the time of the accident, Ms Pisani lived separate to, but under the same roof, as her former de facto partner, who is the father of her children. As Ms Pisani’s former partner was unwell, her daughter, Rebecca, was paid by Centrelink to be his full-time carer. In this role, Rebecca assisted her father in shopping, cooking meals and cleaning for him. Ms Pisani said that Rebecca also sometimes cooked meals for her too, and she also benefited from her daughter’s cleaning of the house.
25 Ms Pisani said that she managed to do her own grocery shopping prior to the transport accident. She said at times her grandchildren accompanied her, but did not require their help.
26 Ms Pisani said she used to use her garden “all the time” and do things for herself, including moving pots and statues.
27 Ms Pisani said she spent much of her time with family and enjoyed going on outings, such as to the zoo and watching one of her granddaughter’s perform dancing.
The transport accident and Ms Pisani’s claimed consequences
28 The transport accident occurred when Ms Pisani was travelling in a taxi with her mother, having returned from the Royal Melbourne Hospital, where her mother was being treated. Ms Pisani said that at the time of the accident, her main concern was her mother’s very poor health and therefore did not immediately seek medical treatment. Ms Pisani said that within days of the accident, she experienced increasing severe pain in her neck and her lower back, accompanied by stabbing pains and pins and needles extending down her middle and lower back.
29 Ms Pisani said her mother passed away on 11 April 2017.
30 On 8 May 2017, Ms Pisani attended Dr Ramsay and complained of back pain and symptoms of depression, for which Dr Ramsay prescribed Lovan. On 22 May 2017, Ms Pisani again attended upon Dr Ramsay, who noted that she complained of low and mid-back pain since the transport accident. It was noted by Dr Ramsay that although Ms Pisani had suffered low back pain intermittently for years prior, she was now “complaining of mid thoracic pain following her accident following which she also experienced restricted thoraco-lumbar movements”.
31 On 29 May 2017, an x‑ray was taken of Ms Pisani’s thoracic and lumbar spine. It demonstrated minor degenerative changes with loss of body height in the anterior aspects of several mid and thoracic vertebrae, in particular at the level of T5, where there was approximately 10 per cent loss of vertebral body height. It also demonstrated mild scoliosis in the lumbar spine.
32 On 13 June 2017, a DEXA scan was performed and it demonstrated osteoporosis of the lumbar spine. Following this diagnosis, Dr Ramsay recommended Ms Pisani commence life-long treatment for her osteoporosis through monthly subcutaneous Prolia injections, combined with vitamin D medication.
33 On 18 January 2018, a further x-ray was taken of Ms Pisani’s thoracic and lumbar spine. It was reported as demonstrating mid-thoracic endplate lipping and very slight degenerative narrowing at T5-6 and T6-7. No fracture was noted.
34 In a report dated 10 March 2018, Dr Ramsay stated his opinion as at June 2017. Based upon Ms Pisani’s history, his physical examination of her and the radiological examinations, Ms Pisani “was suffering from a mild crush fracture of T5 with underlying pre-existing osteoporosis”. Dr Ramsay noted that Ms Pisani’s symptoms of mid-thoracic pain occurred directly after the transport accident which he considered made it “highly likely” that the crush fracture of T5 was directly related to the transport accident, although there was also evidence of underlying asymptomatic thoracolumbar osteoporosis.
35 In July 2017, Dr Ramsay referred Ms Pisani to Mr McPherson for mobilisation treatment of her thoracolumbar spine. At the time of her initial attendance on 31 July 2017, Mr McPherson considered that Ms Pisani appeared to be in “obvious pain” whilst also being quite upset about her mother’s death, the transport accident and the limitations on her activities of daily living. On examination, Mr McPherson obtained a history from Ms Pisani that she had experienced pain in the thoracic spine at the time of the accident and that her pain had been ongoing since then without improvement. He noted that Ms Pisani complained her pain was worsening.
36 On examination, Mr McPherson noted that Ms Pisani experienced “marked pain ++” on palpation of T5, and to a lesser degree from T6 to T10. Mr McPherson also noted pain and stiffness on palpation in the thoracic spine facet joints from T4-5 to T9-10. Further, Mr McPherson noted a marked reduction in the range of motion in Ms Pisani’s thoracic spine and that her extension was limited to one-third. Mr McPherson also noted significant paraspinal muscle spasm.
37 In a report dated 16 April 2018, Mr McPherson stated that he proceeded to treat Ms Pisani with thoracic spine joint mobilisation techniques, manage her paraspinal spasm and provided her with exercises and a TENS machine to use at home.
38 In August 2017, Dr Ramsay considered that Ms Pisani was suffering from moderately severe depression, which he related in part to the transport accident, as well as her family circumstances. At that time, Dr Ramsay referred Ms Pisani for psychological treatment with Mr Brett Pallini, psychologist.
39 Since that time, Dr Ramsay has continued to review Ms Pisani on a monthly basis. In a report dated 26 May 2019, Dr Ramsay stated that Ms Pisani:
“continuously complains of midthoracic pain radiating to her lower back, which interrupts her sleep and restricts her ability to do household chores such as cleaning and gardening as well as shopping. She has difficulty bending and lifting and cannot stand for long periods. She does her housework slowly in stages and is reliant on her daughter Rebecca to assist her.”
40 Dr Ramsay noted that Ms Pisani continued to see her physiotherapist on a regular basis and had been provided with TENS therapy and an exercise program. Dr Ramsay also noted that Ms Pisani was undertaking regular hydrotherapy. In addition to her thoracic lumbar back pain, which “was unremitting and unchanged over the last two years”, Dr Ramsay stated that Ms Pisani also continued to suffer symptoms of anxiety and depression which he treated with Lovan and Endep.
41 In the conclusion of his report, Dr Ramsay stated he was of the opinion Ms Pisani suffered from thoracolumbar back dysfunction due to an unresolved soft tissue injury associated with thoracolumbar degenerative and osteoporotic changes, as well as an Adjustment Disorder with features of Anxiety and Depression due to the transport accident. Dr Ramsay considered Ms Pisani’s prognosis poor as there had been no change in her condition despite maximal treatment over a two-year period.
42 Mr McPherson has provided intermittent physiotherapy treatment to Ms Pisani since July 2017. In a report dated 5 July 2019, Mr McPherson’s opinion was that her condition had remained unchanged and did not see any prospect of further improvement.
43 Ms Pisani said the physiotherapy treatment has provided only a limited relief from the symptoms associated with her back pain.
44 Ms Pisani said she currently takes Osteomol paracetamol medication two to three times a day for pain relief. She said this has assisted her in “taking the edge off my pain but provided no lasting relief in terms of the levels of pain which I have to experience day in, day out”.
45 In addition to her pain medication, Ms Pisani said she continues to take Endep, Lovan, vitamin D, together with injections of Prolia for her osteoporosis. Additionally, she takes medication for her cholesterol and uses a spray to help her with breathing.
46 Ms Pisani said the level of pain in her back is now 7 to 8 out of 10. Ms Pisani indicated the pain she continues to experience in her back is located in the region above her bra strap. She said at times it is a sharp pain.
47 Ms Pisani said she now wakes up once or twice during the night, every couple of nights. She said she experiences pain when she turns in bed. Ms Pisani said when this happens, she gets out of bed, walks around, stretches and takes medication.
48 Ms Pisani said her doctors have encouraged her to remain active, and so pushes herself to do normal activities, such as shopping and cleaning in her home. She says she continues to do activities, but whilst doing them she experiences pain and, “at the end of the day, I’m in a lot of pain”.
49 Ms Pisani said that because of her pain she no longer goes on family outings, such as visiting the zoo. She also said she no longer attends her granddaughter’s dance performances.
50 Ms Pisani said that in the garden she is now limited to tending to pots while sitting down. She said she relies on her grandchildren to help her in the garden.
51 Ms Pisani said her daughter, Rebecca, still helps with cooking and cleaning of the home which she continues to share with her ex-partner. Ms Pisani said she cooks at a similar rate of frequency now as to what she did before the transport accident.
52 Ms Pisani said she continues to try to engage in some housework, but that she finds it difficult, due to her pain.
53 Ms Pisani said her shopping habits now are much the same as they were prior to the accident. She said she is able to shop on her own.
Medico-legal evidence
54 Ms Pisani was examined by orthopaedic surgeon, Mr Russell Miller, on two occasions, in May 2018 and August 2019. Following an examination of the radiology reports and his examination of Ms Pisani, Mr Miller stated that in his opinion, she had suffered a musculoligamentous strain to the thoracolumbar spine and aggravation of degenerative disease in the thoracolumbar spine, particularly at L2-3 and L4-5 levels, together with the probable development of a crush fracture of the T5 vertebral body.
55 In his first report dated 28 May 2018, Mr Miller noted there had been some pre‑existing symptoms in Ms Pisani’s lumbar spine which he considered were aggravated by the transport accident and that there had been a further “superimposed injury”. In addition, Mr Miller considered there had been the development of a Chronic Pain Syndrome which influenced Ms Pisani’s current clinical presentation. Mr Miller repeated this opinion in his subsequent report dated 13 August 2019.
56 In June 2019, Ms Pisani was examined by neurosurgeon, Professor Richard Bittar. In a report dated 28 June 2019, Professor Bittar noted Ms Pisani’s past history and her history of complaints following the transport accident. Professor Bittar stated he had reviewed the radiology reports, and that the x‑ray report of 29 May 2017, demonstrated a “T5 vertebral body fracture with approximately 10 per cent loss of vertebral body height”. Further, Professor Bittar noted that in the x‑ray taken on 18 January 2018, degenerative narrowing at T5-6 and T6‑7 was recorded, but “no fracture was reported”.
57 Professor Bittar was of the opinion that Ms Pisani had most likely suffered a mild T5 vertebral body compression fracture in the transport accident. He stated he was reliant upon the radiology report for this diagnosis, whilst noting he had not seen the x‑rays personally. Professor Bittar considered that Ms Pisani suffered from an aggravation of thoracic spondylosis.
58 In Professor Bittar’s opinion, Ms Pisani would continue to suffer significant pain and disability into the foreseeable future and need pain control to remain stable in the long term.
59 In a subsequent report dated 13 October 2019, Professor Bittar, when asked to comment on the opinion of Mr John Owen dated 29 July 2019, acknowledged he did not have access to the actual films taken of Ms Pisani’s thoracic spine in May 2017. Consequently, he said it is “difficult to be certain whether she did in fact sustain a true vertebral body fracture”.
60 Professor Bittar continued that even if a vertebral body fracture was not sustained, he considered that the pattern of Ms Pisani’s symptoms following the transport accident suggested she sustained a significant aggravation of thoracic spondylosis, as a result of the accident. He specifically disagreed with Dr Owen’s comment that any aggravation would be minor and resolved by now. Professor Bittar stated that it is common for aggravation of spondylosis to cause persistent pain and disability and occurs by a variety of mechanisms including the development of a significant chronic pain condition.
61 The plaintiff was examined by orthopaedic surgeon, Dr John Owen, in July 2019. In a report dated 23 July 2019, Dr Owen noted Ms Pisani’s history of depression and lower back pain. Following his clinical examination of Ms Pisani, he considered that she demonstrated signs of abnormal illness behaviour. Dr Owen stated that consequently this made it “very difficult to quantify how much underlying real organic problem there is. I suspect that that is relatively minor.” Dr Owen diagnosed Ms Pisani as suffering an acceleration/deceleration injury in the transport accident, but that there was no evidence of any structural damage to her spine. He stated “I suspect that any injury that occurred would have been minor and would have resolved by now”. Dr Owen considered that Ms Pisani’s current symptoms and functional status were not explained by the transport accident.
62 Dr Owen was of the opinion that a rear-end collision would not usually cause a crush fracture, which he noted Dr Ramsay considered was the cause of her pain. He stated that any loss of vertebral body height would be more likely associated with osteoporosis and her pain with some degenerative change in her thoracic spine.
63 In Dr Owen’s opinion, there were psychosocial problems associated with Ms Pisani’s depression and her underlying osteoporosis. He ultimately concluded that the transport accident was impacting upon Ms Pisani’s psychological state rather than any physical problem.
64 Ms Pisani was examined by psychiatrist, Dr Nathan Serry, in April 2018 and August 2019. Following both examinations, Dr Serry was of the opinion that Ms Pisani was suffering an Adjustment Disorder with Anxious and Depressed Mood with features of traumatisation.
Ms Pisani’s credibility
65 Ms Pisani answered questions in a simple and straightforward manner. Ms Pisani was cross-examined on matters, some of which occurred more than ten years ago. She often conceded that she could not recall or be certain about things which had occurred so long ago.
66 Ms Pisani made frank concessions as to the level of assistance she received from her daughter, Rebecca, prior to the transport accident, and readily conceded that there had been no increase in the amount of cooking and cleaning provided to her since the accident.
67 The TAC sought to reply upon video surveillance taken of Ms Pisani on various days in August and October 2019. Such footage showed Ms Pisani going about her activities of daily living, including going to the shops, visiting family and, on one occasion, taking in her rubbish bin from the street.
68 The tendered footage ran for less than nine minutes. The TAC admitted it had obtained video surveillance of Ms Pisani for a period of approximately 68.25 hours.[1]
[1]Transcript (T) 5, Lines (L) 16-25
69 I note that the video surveillance was shown to Dr Ramsay, Mr Miller, Professor Bittar and Dr Serry, and none of those doctors considered it inconsistent with their own examinations and observations of Ms Pisani.
70 In contrast, Dr Owen reviewed the video footage and considered Ms Pisani’s ability to undertake social and leisure activities in the video footage was not as restricted as she had claimed.
71 The tendered video footage was a snapshot of Ms Pisani’s life, recorded last year, over the course of a few minutes, on just a few days. Although the video footage does not show Ms Pisani moving with any marked restriction or disability, I do not consider it to be inconsistent with her sworn evidence.
72 I accept Ms Pisani’s evidence that Dr Ramsay and Mr McPherson have encouraged her to remain as active as she can, and that she undertakes some activities, notwithstanding her pain. I also accept her evidence that she suffers an increase in pain at the end of the day.
73 My overall assessment of Ms Pisani is that she is a credible witness, and I accept her accounts as to her experience of pain.
Did Ms Pisani suffer an injury to her thoracic spine in the transport accident, which has produced an organic impairment?
74 Dr Ramsay was of the opinion that Ms Pisani suffered a crush fracture to her thoracic spine, based on his examination of her and review of the medical imaging. Mr Miller, Professor Bittar and Mr McPherson were also of the opinion that Ms Pisani had suffered a crush fracture.
75 The TAC emphasised that a crush fracture was not reported on any of the medical imaging. In contrast to the above opinions, Dr Owen was of the opinion there was no crush fracture, and that any injury suffered in the accident, would have been minor and resolved by now. In reliance on this, the TAC submitted that I should find that no physical injury was suffered by Ms Pisani in the transport accident.
76 Notwithstanding that there is no report by a radiologist as to a crush fracture, Dr Ramsay considered that this probably existed, based upon his findings on physical examination of Ms Pisani, and review of the medical imaging. As a medically qualified doctor who examined Ms Pisani soon after the transport accident, I give some weight to his professional opinion on this.
77 It is more difficult, however, for me to understand the basis of the opinions of Mr Miller and Professor Bittar that Ms Pisani suffered a crush fracture. Both were provided with Dr Ramsay’s report, and thus may have been influenced by his opinion. However, as neither examined the original medical imaging, I gain little assistance from their opinions concerning the existence of a crush fracture. Mr McPherson is not medically qualified, so I have given no weight to his opinion that Ms Pisani suffered a crush fracture.
78 It is not necessary for me to determine whether Ms Pisani suffered a crush fracture, as I am satisfied that in the transport accident she suffered some form of a physical injury in her thoracic spine. Mr Miller referred to Ms Pisani suffering an aggravation to pre-existing degenerative changes in her thoracic spine and Professor Bittar referred to an aggravation of thoracic spondylosis.
79 I accept Ms Pisani’s reports of pain in her thoracic spine from the time of the transport accident, and that such pain has persisted to the present. As I accept her evidence on this, I am not assisted by Dr Owen’s opinion that that injury suffered in the accident would have resolved by now.
80 In accepting that Ms Pisani suffered an injury to her spine in the accident, I also consider it significant that Mr McPherson observed muscle spasm in Ms Pisani’s spine. I accept that this is an objective finding consistent with Ms Pisani suffering an organic injury in the accident.
81 Dr Owen considered Ms Pisani’s disability disproportionate to her injury and his findings on examination. Further, he offered an opinion that her restrictions on daily living were mainly psychosocial.
82 I am satisfied that that Ms Pisani suffered some anxiety and depression before the transport accident, and has been worse since. These conditions were diagnosed by Dr Serry and referred to in the reports of Dr Ramsay. Notwithstanding the existence of such a psychiatric condition, I am satisfied that there is a substantial organic basis to Ms Pisani’s spinal impairment. I am satisfied that the predominant cause of her pain arises from a physical injury.
Are the consequences to Ms Pisani from her thoracic spine impairment ‘very considerable’?
83 In the Court of Appeal decision of Haden Engineering Pty Ltd v McKinnon,[2] Maxwell P stated that, in assessing a plaintiff’s pain and suffering consequences, the court should have regard to what the plaintiff says about the pain, what the plaintiff does about the pain, what the doctors say about the extent and intensity of the plaintiff’s pain, and what objective evidence shows about the disabling effect of the pain. The weight to be attached to the plaintiff’s account of pain depends largely upon an assessment of the plaintiff’s credibility. Maxwell P noted that the court will make its own assessment of the plaintiff’s credibility based upon the evidence provided and may also take into account the views expressed by examining doctors as to the reliability of the plaintiff’s accounts of pain.[3]
[2](2010) 31 VR 1
[3](Supra) at paragraphs [9]-[12]
84 My acceptance of Ms Pisani as a credible witness bears significantly on my acceptance of her reports of persisting pain.
85 I consider it significant that the treating practitioners, Dr Ramsay and Mr McPherson, who know Ms Pisani best, are supportive of her suffering genuine thoracic pain symptoms since the transport accident. Both are of the opinion that her long-term prognosis is poor and any future improvement is unlikely.
86 As Ms Pisani had suffered lower back pain prior to the transport accident, in assessing her claim I must compare her pre-existing condition, with the aggravated state. Pursuant to the well-known principles enunciated in Petkovski v Galletti,[4] I must consider only the consequences arising from the aggravation.
[4][1994] 1 VR 436
87 I am satisfied that Ms Pisani suffers the following consequences from her aggravated spinal impairment:
(i) Need for daily painkilling medication. I am satisfied that for several years prior to the transport accident, Ms Pisani took pain medication on an irregular basis, whereas now she takes it every day for her back pain resulting from the accident.
I am mindful of the comment of the Court of Appeal in Kelso v Tatiara Meat Co Pty Ltd,[5] that “… the endurance of permanent daily pain requiring frequent medication must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence”.[6]
[5][2007] VSCA 267
[6](ibid) at paragraph [199]
I am satisfied that prior to the transport accident, Ms Pisani suffered back pain less frequently, and her pain was at a lower level. I consider the more frequent and intense pain in Ms Pisani’s spine since the transport accident a considerable consequence to her;
(ii) Interference with her sleep;
(iii) Need for regular physiotherapy and hydrotherapy;
(iv) Restriction in her ability to garden;
(v) Restriction in her ability to attend events with her family.
88 I am satisfied that Ms Pisani’s enjoyment of life since the transport accident has been considerably impacted and curtailed by the persisting pain in her back.
89 I note that Ms Pisani was frank in stating that she gets similar help at home now as she did prior to the transport accident. However, notwithstanding this, I accept that Ms Pisani suffers increased pain when she does attempt or engage in tasks within her home.
90 In view of the above findings, when compared to other cases in the range of possible impairments or losses, I am satisfied that Ms Pisani’s claimed consequences can be fairly described as “at least very considerable”. I therefore grant her leave to commence common law proceedings.
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