Potter v TAC
[2010] VCC 1141
•24 August 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT BALLARAT
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-07-01263
| MICHELE ROBIN POTTER | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | First Defendant |
| and | |
| GRAEME WARREN | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE PARRISH |
| WHERE HELD: | Ballarat |
| DATE OF HEARING: | 31 May 2010 and 9 June 2010 |
| DATE OF JUDGMENT: | 24 August 2010 |
| CASE MAY BE CITED AS: | Potter v TAC & Anor |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1141 |
REASONS FOR JUDGMENT
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Catchwords: TRANSPORT ACCIDENT – Transport Accident Act 1986 – Section 93 – serious injury – paragraphs (a) and (c) of the definition of “serious injury”.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J A Jordan SC with | Saines & Partners |
| Mr M A Nightingale | ||
| For the Defendant | Mr P D Elliott QC with | Solicitor to the Transport |
| Mr I S Gourlay | Accident Commission | |
| HIS HONOUR: |
Introduction
1 By way of Originating Motion dated 5 April 2007, Michele Robin Potter (“the plaintiff”), seeks leave pursuant to s.93(4)(d) of the Transport Accident Act 1986, as amended (“the Act”) to bring common law proceedings to recover damages for injury (“the injury”) suffered by her out of a transport accident which occurred on 18 April 2000 (“the transport accident”).
2 The application was heard over two days, and the following evidence was adduced:
(a) The plaintiff and Dr N S Phillips gave viva voce evidence and were cross-examined. (b) The plaintiff tendered the following evidence: (i) five photographs (Exhibit A);
(ii) two ceramic bowls made by the plaintiff (Exhibit B);
(iii) Transport Accident Commission (“TAC”) Claim Form dated 25 May 2000 (Exhibit C);
(iv) pages 9-142(a) of the Plaintiff’s Court Book (Exhibit D).
(c) The defendant tendered the following evidence:
(i) the plaintiff’s payment summary at Craig’s Hotel (Exhibit 1); (ii) video of plaintiff taken on 17 May 2006 (Exhibit 2); (iii) pages 3-36 of the Defendant’s Court Book (Exhibit 3); (iv)
written notes of Dr N S Phillips from 12 October 1998 to March 2006 and printed notes of Dr N S Phillips from 6 May 2006 to 28 June 2007 (Exhibit 4).
Relevant Legal Principles
3 The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.93(17) of the Act: (see s.93(6) of the Act).
4 The plaintiff relies on paragraphs (a) and (c) of the definition of “serious injury” contained in s.93(17) of the Act, which reads:
“In this action –
serious injury means –
(a) serious long-term impairment or loss of a body function; or (b) … (c) severe long-term mental or severe long-term behavioural disturbance or disorder; or (d) …”
5 The part of the body said to be impaired for the purposes of paragraph (a) is the cervical and lumbar spine, collectively referred to as “the spine”. The injury suffered by the plaintiff is said to be a “soft-tissue injury, including aggravation of disc degeneration to the … [spine] …”: (see T1, L30 - T2, L8.) The mental or behavioural disturbance or disorder is said to be a “Post- Traumatic Stress Disorder with Depression and Anxiety”: (see T2, L9-10.)
6 In order to succeed, the plaintiff must prove on the balance of probabilities
that:
(a) “The injury” suffered by her was a result of the transport accident; (b) The requirements of the test set out in the seminal decision of Humphries v Poljak [1992] 2 VR 129, wherein a majority of the then Full Court of Victoria stated, at paragraph 8 (see page 140), that: “Subs(17) intends a division between injuries with physical consequences and those with mental consequences. The former fall under para(a) and the latter under para(c). It would be anomalous to regard the consequences of mental disturbance or disorder to fall under para(a) when the disturbance or disorder itself fell to be judged by whether they satisfied the criteria of para(c). A ‘functional overlay’ will, we consider, rarely amount to a behavioural disturbance or disorder as that term is used in the legislation.
Now, in the light of the various matters to which we have referred in the foregoing propositions that we have stated or conclusions to which we have come, we think that the task of a judge confronted with the requirement to determine an application made pursuant to subs(4)(d) when reliance is placed upon subs(17)(a) may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. 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’?”
(my emphasis)
(see also Mobilio v Balliotis [1998] 3 VR 833).
(c) “Serious injury” as defined in sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment – however, the mental disorder cannot itself constitute or be the producer of the impairment of a body function: (see Richards v Wylie (2000) 1 VR 79.) (d) “Serious injury” as defined in sub-paragraph (c) requires the mental or behavioural disturbance or disorder be “severe” rather than “serious”. In Mobilio, the Full Court found that the word “severe” to be a higher standard to reach than “serious”, but at page 846 Brooking JA stated: “Without suggestion the use of any particular adjective to mark the distinction, I would say that ‘severe’ is used in the definition as a stronger word than ‘serious’.”
The Issues
7 Mr Elliott QC, Senior Counsel for the defendant, informed the Court that, in relation to “the injury” being a “serious injury” within paragraph (a), the plaintiff suffered initially a “minor whiplash injury” and since the transport accident has been able to obtain employment and would not be able to establish that such an injury is “serious” within the meaning of the Humphries v Poljak test. Furthermore, any psychological aspects only seem to appear from 2006 onwards and, even if such a condition is a post-traumatic syndrome, it falls well short of being “severe” within the meaning of paragraph (c) of the definition of “serious injury”: (see T23, L25-T24-20.)
The Plaintiff, “the Injury” and her Treatment
8 The Court refers to the affidavits sworn respectively by the plaintiff on 8 March 2007 (at page 9 of Exhibit D and from now on referred to as “the first affidavit”); 21 February 2008 (at page 17 of Exhibit D and from now on referred to as “the second affidavit”); 16 April 2008 (at page 20 of Exhibit D and from now on referred to as “the third affidavit”); and on 21 May 2010 (at page 23 of Exhibit D and from now on referred to as “the fourth affidavit”). Save for some minor changes, the contents of these affidavits was sworn to be “true and correct” by the plaintiff.
9 In her first affidavit, the plaintiff gives the following evidence:
• She is a forty-eight-year-old (born 30 August 1961) single woman. • On 18 April 2000, she was the driver of a vehicle that was struck head-on by a truck. In particular, the plaintiff describes the circumstances of the collision as follows: “… My whole body was jarred by the force of the impact but particularly my neck and my hands and arms that were on the steering wheel. My knees also impacted with the steering wheel which caused me pain. The force of the collision slammed my low back into the seat and the back of my head also hit the seat causing significant pain. Immediately following the accident I commenced to experience pain in my head and neck. I had bitten my tongue and cracked a tooth. My whole body was stiff and aching following the collision and I was subsequently conveyed by ambulance to hospital. I was in severe shock and kept thinking about the truck hitting us, the noise it made when it hit and then seeing my front seat passenger hit his head on the windscreen and all the blood dripping from his head.”
(my emphasis)
(See paragraph 2).
• Prior to the transport accident on 18 April 2000:
ƒ
She was a self-employed studio potter and in receipt of Centrelink benefits as part of a government scheme to assist her and her partner to open their own business.
ƒ
She is a chef and potter by trade and their business was to be a café gallery where they would make pottery to sell and she would cook food for the café.
ƒ
Before the transport accident, her business partner renovated the premises which involved plastering, painting and a variety of other physical tasks. She would also make pottery and other art pieces to sell at markets.
ƒ
Before getting into her own business, she worked mainly in the hospitality industry where she worked as a chef in cafés, bistros and restaurants.
ƒ
She performed extensive renovations to her home which involved re-stumping the house, painting, plastering and rendering and she cared for approximately sixty goats on a 10-acre property which was very labour-intensive, involving constructing fences to keep the goats in, feeding them and checking them daily, and general maintenance to the property.
ƒ She used to go skiing, hold dinner parties and cook for groups of
friends and attend art exhibitions all over the State.• As a result of the transport accident:
ƒ
She now suffers from significant ongoing pain, loss of function and restriction of movement affecting her spine, together with referral of symptoms to her arms and legs.
ƒ
She is suffering from severe depression and Post-Traumatic Stress Disorder, which frequently makes her feel teary, upset, stressed and anxious.
ƒ
She remains under the care of her local general practitioner, Dr N S Phillips, who prescribes painkilling and muscle-relaxant medication.
ƒ She also attends Dr Lorensini, psychologist, who counselled her in
relation to the accident.ƒ She also continues to receive treatment from Mr P Roberts,
physiotherapist.• She describes the difficulties with her neck in the following terms: “… I experience almost constant neck pain which consists of a deep ache and is also sensitive to touch. If I turn my neck quickly it is painful and tends to grab and crack. I often experience a feeling of tightness in my neck and shoulders that is worse on the left and this pain travels down my arms. My arms feel like they have lost some of their strength so I tend to drop things. I often get pins and needles in my arms and hands if I hold my arms up or experience a numb arm when I wake up after being asleep for a couple of hours. The deep aching pain can become a stabbing pain if I do the wrong thing. Simple things such as sitting and reading or looking at a computer screen can cause an aggravation of my symptoms. I tend to lie down and take some medication or give my neck a massage when it starts to play up. Associated with my neck injury are the constant headaches. I am seldom without a headache which I find very draining and it also impacts on my ability to concentrate and focus on what I am doing.”
(see paragraph 8).
•
She has “significant back pain” which affects her ability to sit, lie, stand, walk and drive.
•
She has to “pace herself” when undertaking housework, gardening or other mildly strenuous tasks so as to not aggravate her “neck and back pain”.
•
She has been unable to complete the renovations of her house and the permit has now lapsed and it appears unlikely that the café gallery will open.
•
She does not make as much pottery as she used to “because I get neck pain when I bend my neck, look up and down or hold it in the one position. Throwing the clay tends to aggravate my neck and shoulder pain and sitting causes my low-back pain to become worse”.
•
She was working as a chef which required sometimes having to take painkillers to get through the shifts, which varied from two to four hours twice a week, but sometimes she would work fifteen hours a day which she “struggled to get through”.
•
“Recently” she had to stop working because her back and neck symptoms became so severe she could not cope any more.
• Because of neck and back pain, she has difficulty getting to sleep. •
She continues to remain “extremely anxious and depressed” and often cries when she thinks or talks about the transport accident. In particular, she states:
“… I suffer from recurrent, intrusive and distressing recollections of the accident including nightmares and flashbacks. I can still see the truck coming toward us, my front seat passenger smashing his head into the windscreen and all of the blood. I have become an anxious driver and this is heightened when there are trucks close by. Prior to the accident I enjoyed driving; it would be nothing for me to drive several hours without a break. I try to keep driving to a minimum and prefer to drive late at night when there is less traffic. I feel more anxious when I am a passenger as [I] don’t feel I have any control over what is happening. I become distressed when I see TAC ads on the television as it reminds me of the accident.”
(see paragraph 15.)
• She has “changed significantly” as a result of her psychological condition and has lost “confidence and I cry a lot”. 10 In her second affidavit, the plaintiff gives the following evidence:
• She continues to experience symptoms in her spine. •
She continues to attend Dr N S Phillips about once a fortnight, depending on the need for medication, as well as the level of symptoms.
• She continues to see Dr Lorensini about once every three weeks. • She ceased physiotherapy in early January 2008. •
She was referred to the orthopaedic surgeon, Mr P Plank, in respect of her left knee injuries and he has recommended surgery which is yet to be undertaken and she has also been referred to the orthopaedic surgeon, Mr de la Harpe, who recommended conservative treatment in relation to her spinal injuries.
•
She continues to take up to four Panadeine Forte a day, one or two tablets of Diazepam on two or three days a week and Temazepam, one tablet daily about two days a week.
•
She and her “business partner”, Geoff Phillips, continue to live in a miner’s cottage which is set on one acre of land and the gallery is situated at 64 Albert Street, Creswick.
•
She has done some work on the café since making her first affidavit and she has done some sculptural work since her first affidavit.
•
In about 2004, she obtained casual work as a chef at Craig’s Royal Hotel in Ballarat where she usually worked between two and twenty hours a week, but sometimes worked longer hours if required and was paid at an hourly rate. She ceased work at Craig’s Hotel on or about 26 November 2006 and the main reasons for stopping were “because my neck and back played up through the frequent bending and constant standing involved”. She was also having problems with her memory and concentration.
•
Before the transport accident, she used to sell pottery at the Daylesford Market, and in April 2001, she displayed pottery at Smeaton (although the pottery was made prior to the transport accident).
•
She performs volunteer work as a shop assistant at the Salvation Army’s opportunity shop in Creswick and has done this for many years.
•
Her general condition in relation to her neck, back and mental state has “stayed pretty much the same” since she made her first affidavit.
11 In her third affidavit, the plaintiff gives the following evidence:
• In relation to her spinal condition affecting her ability to perform pottery, she states: “…it has interfered with my enjoyment of pottery, ceramics and sculpting. I did train in and obtain qualifications in pottery in ceramics and obtained an associate diploma. I have been interested in arts and crafts since my early school days. This craft work and in particular the pottery and ceramics has been a major part of my life. I have pursued this passion for many many years and the artistic aspect of these activities was a major part of my life. I not only enjoyed producing the art and craft work but also exhibiting it. My work has been part of the exhibits in Geelong, Melbourne and Ballarat. Unfortunately for me the pottery ceramics work and the sculpting is physically demanding. It involves lifting and preparing ingredients. The production of the artefacts requires one to maintain a static posture and involves bending, reaching, leaning forward and places strain on the spine. It involves intense concentration to produce the work in the way one wants to. The articles after being formed or created have to be prepared for firing then fired and removed from the kiln. All of these activities place strain on the spine. I have tried to continue to do some pottery and ceramic work since the car accident but I am by reason of my spine unable to reach the artistic standard that I was previously capable of and have been unable to produce the quantity of work that I am capable of. I still try and carry out pottery work but try as I might I have been disappointed as my spinal injury and it’s affect on my concentration does not enable me to reach my pre injury levels. I have shared this interest with my friend Geoff who I share accommodation with. We shared plans of expanding his interest however my hopes of advancing my artistic career have now been shattered by my injuries. We built 2 kilns and hoped to set up a studio to pursue our pottery and ceramic work. This is a great loss to me.” [sic]
(see paragraph 3.)
•
She is unable to enjoy the country life as much as she used to prior to her injury.
• She has continued to perform volunteer work where the duties are light. • Her psychological state “has not improved”: (see paragraph 6). •
She continues to receive treatment from her general practitioner, Dr N S Phillips, who prescribes medication, and Dr Sandra Lorensini every three weeks.
12 In her fourth affidavit, the plaintiff gives the following evidence:
• In relation to her ongoing physical and mental problems, she describes her present difficulties in the following terms: “The physical and mental symptoms I described have more or less been with me now for 10 years although at times one has been more troublesome than another one. For my psychiatric condition I still see Sandra Lorensini, Psychologist on a regular basis. She provides counselling and tries to assist me with life skill matters and to provide me with the strategies to try and cope with my problems. Her input has been helpful to me and although I have not been able to effect a recovery it assists me in facing up to the fact that I will have to live my life with the psychiatric problems I have. I still experience nightmares once a fortnight or so although it does vary. I still experience intrusive thoughts of the accident and I see the truck coming at the car, I am in fear of my life and I relive seeing Geoff’s head break the windscreen, and I thought he was going to die and go through the windscreen. These occur regularly and frequently and come on for no particular reason at all. I still dislike travelling in cars although I have to. I frequently feel scared and frightened when travelling in a car especially when a passenger and to a lesser extent when driving. Driving past the scene of the accident upsets me greatly and unfortunately for me where I live I have to pass it often. There are many occasions when I experience panic attacks for example when I see trucks on the road, when an ambulance passes me are but some examples. I have great difficulty with other reminders of the accident such as the TAC advertisements. I have remained depressed and anxious. I find that I break into tears very easily and I am often crying. I feel very low, lack confidence, have low self-esteem, and I have irrational feelings of guilt.”
(see paragraph 2).
• Her neck and low-back are a “constant source of pain and difficulty for me”. 13 During his opening, Senior Counsel for the plaintiff tendered five photographs depicting the various forms of pottery that the plaintiff made prior to her transport accident (Exhibit A) and further, tendered two ceramic bowls, one of which was quite large, both of which were made prior to the transport accident (Exhibit B).
14 Beyond her affidavit material, the plaintiff also gave some brief viva voce evidence-in-chief:
•
The large bowl tendered in evidence would take a potter from “start to finish, six to eight hours and then firing as well”: (T29, L16-19).
•
The smaller bowl in evidence would take “probably about four hours”: (T29, L27-28).
•
When producing elves or other structures on her pottery, such objects take “slightly longer and probably a maximum of about fifteen to sixteen hours all up”: (T30, L4-7).
•
In speaking of her enjoyment of pottery, the plaintiff gave the following evidence:
“Q: Now, when you’re performing those works as a potter what
position, or posture I should say are you in?---A: You’re in various postures to throw, you’re actually sitting and you’ve got to have your clay – get your clay onto the wheel, and all the pressure comes down through your shoulders and your back and … . Q: Have you been able to perform any pottery since the accident to the extent that you did beforehand?---
A: No. Q: You could go and make something if you had to tomorrow
could you not, on a pottery wheel?---A: Yes, but I’d have a lot of difficulty and wouldn’t be able to
produce anything in the same quality.Q: Why would that be?--- A: Because of the aggravation of my injuries. Q: What injuries in particular?--- A: My neck and lower back. Q: So, do you do any pottery these days?--- A: I haven’t done any for two years – three years. . . . Q: Was the pottery your main passion in life in terms of interest
and … ?---A: Yes.” (see T30, L8-28).
• She attends the psychologist, Dr Sandra Lorensini, once every three weeks. • She attends Dr Shirazi approximately every six weeks. • She attends Dr N S Phillips on a “needs be basis” approximately once every two weeks. • When talking of the number of hours involved in making a particular product that involves all activities, she would be required to sit for about an hour without a break when throwing the clay. 15 A report from Dr Andrew Dean, the Director of Emergency and Medicine at St John of God Hospital, dated 9 October 2005 (see page 27 of Exhibit D) reports that the plaintiff was seen by Dr Gim Tan on 18 April 2000 following a car accident. At that time, her neurological examination was normal, as was her neck examination. She did develop “mild occasional neck pain and some stiffness” and was seen by Dr Tan on 26 April 2000 when she had a full range of movement in the neck with no evidence of bony tenderness. An assessment was made that she had a “minor soft tissue injury”.
16 Dr Neil S Phillips has supplied reports dated 18 July 2005 (see page 28 of Exhibit D), 7 August 2006 (see page 29 of Exhibit D), 8 February 2008 (see page 30 of Exhibit D) and 28 May 2010: (see page 31a of Exhibit D).
17 The handwritten typed notes of Dr Phillips running from 12 October 1998 to March 2006 and notes from 6 May 2006 to 28 June 2007 were also available: (see Exhibit 4).
18 The plaintiff first consulted with Dr Phillips on 2 January 1986 and thereafter was seen a variety of times for routine gynaecological checks, prescriptions and minor viral-type illnesses. She consulted Dr Phillips on 28 April 2000, some ten days after the transport accident, complaining of a sore neck and sore back of the head region. Examination revealed a lump on her occiput and some tenderness with a full range of neck movement. She was given some analgesics.
19 She also attended on 12 May 2000 complaining of headaches, a sore scalp and “distressed” by the events that had occurred. Her head and neck were still tender and she was prescribed Diazepam to relieve the muscle tightness and to help her sleep. On 22 May 2000, she was still stressed and complaining of a stiff neck and the doctor notes, as at 18 July 2005, that:
“… over the next two or three years she continued to complain of neck soreness and was having sleep disturbance in the form of ‘flash-backs’ to the accident. … .”
(see page 28 of Exhibit D).
20 As at February 2008, Dr Phillips notes that the plaintiff has continued to consult with him on a “regular basis” with her most common complaint being that of headaches and neck pain which are “an almost daily occurrence”. At that time she was complaining of ongoing left shoulder and arm pain, as well as low-back and left leg pain, all of which are “a result of the soft-tissue injuries that she sustained during her motor vehicle accident from the Year 2000”.
21 Dr Phillips also noted that over the passage of time that one of the most significant injuries suffered by the plaintiff was that of a “psychological nature” and he diagnosed her to be suffering from a “Post-Traumatic Stress Disorder” and that she needed to be seen by a trained clinical psychologist. Furthermore, in June 2007, Dr Phillips referred the plaintiff to the orthopaedic surgeon, Mr de la Harpe, who arranged for an MRI scan of her lumbar spine which showed a broad-based disc bulge at L5-S1 level with no nerve root compromise. Dr Phillips also referred the plaintiff to the neurologist, Associate Professor Balla.
22 As at May 2010, Dr Philips notes that the plaintiff continues to be under his treatment for ongoing neck and back pain, left knee pain and psychological issues, including depression. Furthermore, she continues to take Panadeine Forte and Diazepam.
23 Dr Phillips was required by the defendant for cross-examination. After adopting the various reports already referred to, he gave the following evidence:
•
He agreed that her initial presentation could be described as a “fairly typical whiplash-type injury”: (see T93, L26-28).
•
After the consultations on 28 April, 12 May and 22 May 2000, the plaintiff next attended on 15 August 2000, when it is noted that she was “stressed” and there were discussions in respect to options of a court case: (see T94, L19-22).
•
After 15 August 2000, the plaintiff next attended on 19 December 2000 for an unrelated matter. Similarly on 13 March 2001, 24 April 2001, 8 April 2002 and 7 October 2002.
•
On 3 December 2002, it is noted that the “neck [is] still very sore”: (see T96, L7-11).
•
The next occasion she complains about her neck is on 22 August 2003 when it is noted “neck still giving problems, unable to afford regular massage. Continue with heat, analgesics et cetera”: (see T97, L1-4).
•
The plaintiff attended on 29 August 2005 complaining of an unrelated matter.
•
The plaintiff attended on 28 November 2005, with the doctor noting “been to orthopaedic surgeon via solicitor” and wanted to have x-rays and an MRI undertaken.
•
Over the period from the transport accident up to November 2005, the doctor had prescribed Diazepam and some analgesia (but not ongoing heavy doses) and had not made any arrangements for referral to specialists or the undergoing of scans, x-rays or sophisticated radiology: (see T97-98 generally).
•
Prior to 8 August 2004, the day on which the plaintiff commenced employment at Craig’s Hotel, the doctor had not recorded any complaint of low-back or thoracic spine pain: (see T101, L17-27).
•
The plaintiff attended on 27 November 2006 (having ceased work on 26 November 2006) and the doctor noted: “Headache past week, working long hours++, often fifteen-hour days.”
•
The presentation of her symptoms in 2006 are “different” with her presentation up to that time: (T105, L4-7).
•
It is “less common” for Post-Traumatic Stress Disorder Symptoms to emerge five years after an event: (T105, L14-17).
•
The doctor has not referred her to a psychiatrist and accepts that the adjectives “mild to moderate” describes the Post-Traumatic Stress Disorder and the symptoms of depression: (T107, L16-20).
•
In relation to work, he considered “from purely a physical standpoint there was a capacity for some work” (T109, L2-3). The plaintiff still exhibits restriction of movement in the neck and complains of symptoms in that area, together with psychological symptoms.
• He has left her medication on an “as required basis”: (T112, L1-3). •
When asked in relation to her capacity to perform suitable employment on a full-time basis, he stated:
“I can concede that she is suitable, is able to perform suitable employment. I’m not sure about the full-time basis but certainly, if you wanted to pit a figure on it, I would say at least 20 hours.”
(see T113, L3-6).
•
Given that back symptoms only occurred in about 2005 or 2006, the doctor gave the following evidence in respect to any relationship between the transport accident and such back symptoms:
Q: “Quote me if I’m wrong, but as I read your report, it only
seems to become a factor in about 2005-2006?---A: Yes, your Honour. Q: Did you get any reportage of low-back symptoms from the
car accident up to that time?---A: None that I can recollect or that I’ve recorded your Honour. Q: Have you a view as to whether any of those back symptoms
are related to the transport accident or whatever?---A: I haven’t formed an opinion your Honour.” (see T113, L16-24).
• Any work that the plaintiff does perform would be with limited lifting, bending and hunching: (see T114, L7). 24 When re-examined, Dr Phillips gave the following pertinent evidence:
• In the fourteen years that Dr Phillips treated the plaintiff prior to her transport accident there was never any mention of “stress or depression”: (see T115, L10-12). • He considers that there has been a “definite change in her demeanour from pre-accident to the last ten years and I think that at most consultations there has been a degree of distress and sadness as a result of what’s happened”: (see T115, L19-23). 25 The plaintiff consulted the physiotherapist, Mr Peter D Roberts, on 24 February 2006 complaining of “neck pain being aggravated by rotating the neck, especially the left, and by sitting and standing”. At that time she also complained of “back symptoms with prolonged standing or sitting (greater than one-and-a-half hours) or by heavy lifting”. At the time of the first consultation, the plaintiff was working at Craig’s Hotel and was “struggling”.
26 Mr Roberts was of the opinion that the plaintiff had suffered “whiplash type soft-tissue injuries to her neck and back in the motor vehicle accident on 18 April 2000 …”. (see reports of Mr Roberts dated 5 May 2006 at page 32 of Exhibit D and 28 August 2006 at page 35 of Exhibit D).
27 Dr S Lorensini, clinical psychologist, has supplied reports dated 2 January 2007 (see page 37 of Exhibit D), 14 February 2009 (see page 42 of Exhibit D) and 1 March 2010 (see page 47 of Exhibit D).
28 Dr Lorensini commenced seeing the plaintiff on 8 November 2006 on a referral from Dr Phillips. In her first report, she concluded (at page 41 of Exhibit D):
“I did not see Ms. Potter until years after the accident. From the information provided during the sessions I came to the opinion that she suffers from symptoms of post traumatic stress disorder that can most likely be attributed to her being involved in the accident on 18/04/2000. She has recurrent and intrusive distressing recollections of the accident, including nightmares and flashbacks. She tries to avoid thinking about it or discussing the event. She has persistent symptoms of increased arousal including difficulty falling asleep, outbursts of anger and hypervigilance.
Treatment to date has consisted of counselling. Future treatment will include eye movement desensitizitation and reprocessing (EMDR) to help diminish the distressing recollections of the event. I consider her difficulties are entrenched and of long standing. It is my opinion that she has only a fair long-term prognosis of recovery of her psychological well- being and it is likely that she will continue to experience post traumatic stress disorder symptoms when exposed to situations that remind her of the traumatic event.”
29 In her last report, Dr Lorensini notes that she continues to consult with the plaintiff on a regular basis, usually every three weeks. She notes that the plaintiff remains “significantly depressed and frequently cries throughout the sessions” but has chosen not to take anti-depressant medication. Dr Lorensini also noted that the plaintiff attended Tai Chi, hydrotherapy at the Queen Elizabeth Centre and has had acupuncture to relieve pain in her neck and lower back, together with physiotherapy.
30 Dr Lorensini notes that the plaintiff still suffers from panic attacks, headaches, and becomes very anxious when she sees trucks regardless of whether she is the passenger or the driver.
31 Although her treatment has included education, cognitive behavioural therapy and supportive counselling, Dr Lorensini considers that her Post-Traumatic Stress symptoms are “entrenched” and “long-term”.
32 In or about September 2007, Dr Phillips referred the plaintiff to the neurologist, Associate Professor John Balla, and on examination, he could find no neurological abnormalities, although he obtained a history of ongoing headache, backache and neck ache since the transport accident in 2000. He recommended she attend a pain clinic where she should have both “physical … [and] psychological support and advice”: (see page 50 of Exhibit D).
33 The plaintiff was also referred by Dr Phillips to the orthopaedic surgeon, Mr D de la Harpe, on 15 October 2007. In his report dated 16 October 2007 (see page 51 of Exhibit D), Mr de la Harpe notes that on examination, the plaintiff had a full range of movement of her lumbar spine and cervical spine with no neurological abnormality in the upper and lower limbs. Furthermore, an MRI scan of her neck and low-back showed “age-related changes and no neurocompression”. In particular, he was of the opinion that after seven years from the accident, the plaintiff had developed “some chronic pain issues and she may always have some trouble in the future”.
34 Dr Phillips also referred the plaintiff to the orthopaedic surgeon, Mr Paul Plank, for an opinion on her ongoing knee complaints which are not the subject of this application.
35 Dr Phillips also referred the plaintiff to the Acquired Brain Injury Clinic on 23 July 2008. Dr Sarah Abrahamson, rehabilitation physician at Ballarat Health Services, has supplied reports dated 23 July 2008 (see page 54 of Exhibit D) and 7 May 2008 (see page 55 of Exhibit D). She formed the opinion that the plaintiff’s symptoms were more consistent with Post-Traumatic Stress Disorder rather than any acquired brain injury. She suggested that an MRI scan of her brain be undertaken and that the plaintiff undergo neuropsychological testing which was undertaken by Ms Beth Potter on 28 July 2008 and 28 August 2008. Ms Potter ultimately expressed the opinion that the “difficulties” evident on assessment are more likely associated with chronic and significant psychological distress rather than an acquired brain injury: (see page 59 of Exhibit D).
36 Dr Abrahamson did refer the plaintiff for rehabilitation services at St John of God Hospital in February 2009 under the care of Dr Bruce Shirazi. Dr Sharazi has supplied reports dated 2 February 2009 (see page 60 of Exhibit D) and 17 February 2010 (see page 62 of Exhibit D). Dr Sharazi initially saw the plaintiff on 2 February 2009 when she complained of various cervical and lumbar symptoms. In his last report, he states:
“As per my continuing reviews of Ms. Michele Potter, I am still of the opinion that the complex cervical and lumbar pain with significant cognitive and affective overlay resulting in worsening pain due to her stress and anxiety issues. These would respond to the strategies and management protocol of a Multidisciplinary Pain Management Program for a chronic pain patient such as Michelle is reasonable and is required. My plan is for her to be reviewed in my clinic and I will manage topical pain management as advised above on an ongoing basis.” [sic]
(see page 63 of Exhibit D).
The Cross-Examination of the Plaintiff
37 Under cross-examination, the plaintiff gave the following pertinent evidence:
•
She had been unemployed for five years prior to the transport accident: (see T32, L7-12).
•
She completed an Associate Diploma of Ceramics and she was training as a studio potter.
•
The property at Creswick is about ten acres and presently there are forty goats on the property.
•
She was working at Craig’s Hotel as a chef on 8 August 2004 to 26 November 2006, over which time the hours varied but on occasions she worked up to 56 hours and 45 minutes a week.
• On occasions she worked up to 15 hours a day at Craig’s Hotel. •
On odd occasions she would earn $1000 a week from her work at Craig’s Hotel.
•
She still has a potter’s wheel which is stationed in a shed, together with the glaze equipment and the clay. There is another shed with a kiln in it.
•
She ceased working at Craig’s Hotel because of her physical problems: (T55, L26-27).
• She is on the Disability Pension now. •
She believes she would find it “terribly difficult” to return to part-time cooking at Craig’s Hotel: (see T64, L8-10).
•
Prior to the accident, she would shear the goats on her property but has been unable to do so since the transport accident.
•
She presently lives at Anne Street, Creswick, which is situated on one- acre and is surrounded by 10 acres which are leased. The premises at 64 Albert Street, Creswick are owned and subject to a mortgage and where it was intended to create the gallery café.
•
The plaintiff was shown some video surveillance taken on Wednesday, 17 May 2006 which the plaintiff accepted showed her – driving a motor vehicle from Creswick to Melbourne – while driving, turning her head and neck on a number of occasions to look back and park the car and briskly walking across the road.
•
This year she has taken up a course in life drawing at the art gallery in Ballarat and each class goes for approximately two hours.
•
The plaintiff underwent a Tai Chi program, commencing in 2009 and ceasing in 2010.
• She helps feed the goats. •
She has been working in a Salvation Army opportunity shop in Creswick for approximately fifteen years, sometimes working up to two days a week.
38 The plaintiff was re-examined and gave the following pertinent evidence:
•
The property on which the café and the gallery were to be set up was bought in 1999.
•
I refer to some of the questions and answers in her re-examination in relation to her potting work:
Q:
“So the whole thing, to make a cup and saucer to your satisfaction, how long would that take you: I’m not talking about the firing of it but the making of it by yourself as the potter?---
A: Probably about half an hour all up. Q: Ms Potter, are you able with your neck and back to spend
anything like that amount of time now as a potter?---A: No. Q: Have you had a go on a few occasions since the accident at
doing some pottery?---A: Yes I have. Q: What have you found when you’ve had a go at the throwing
of the clay and making products?---A:
I’m unable to – I find it difficult to centre the clay and to sit at the wheel so I’ve been concentrating on slabs, rolling – I had the opportunity to use a slab machine where you put a piece of clay in, roll it through, so the work was less and then from what you can make wall hangings and things from that and I guess that’s what I mean by about the sort of slab, yes. The slab sculpture work.
Q:
The products that you have made since the accident, what do you say about the artistic level of those as the creator of them compared with how you were before the accident?---
A: That the quality’s got really, yes. Q: Have you made products since the accident that have
satisfied you as an artist in terms of the quality of it?---A: No. Q: How do you feel about that?--- A: I find it disappointing. I took great pride in my work.”
(see T79, L9 - T80, L2).
•
The work she performed at Craig’s Hotel gave her difficulty in “bending, lifting, getting the trays out, a comfortable position to actually work in”: (see T80, L17-18).
•
The plaintiff ceased work at Craig’s Hotel because of her spine injuries and mental state: (see T81, L2-4).
•
The plaintiff completed a TAC Claim Form dated 25 May 2000: (see Exhibit C) which mentions the middle back and lower back as various parts of her body injured in the transport accident.
•
The plaintiff presently takes Panadeine Forte, two to four a day, and maybe six, which relieves the headache and the pain down the shoulders and the low-back. The plaintiff also takes Diazepam, maybe one or two a week, maybe none a week, which helps in stressful situations.
Medico-Legal Evidence
39 The solicitors for the plaintiff arranged for the plaintiff to be medico-legally examined by the following doctors:
(a)
The orthopaedic surgeon, Mr Stanley Schofield, on 29 September 2005 (see report of same date at page 64 of Exhibit D); 14 August 2008 (see report dated 19 August 2008 at page 70 of Exhibit D) and on 15 April 2010: (see report dated 21 April 2010 at page 75 of Exhibit D).
Mr Schofield also wrote letters to the solicitors for the plaintiff dated 8 March 2006 after viewing some lumbar spine x-rays: (see letter at page 66 of Exhibit D) and on 31 May 2006, after viewing MRI scans of the neck and lumbar spine and performing an AMA assessment: (see page 67 of Exhibit D);
(b) The psychiatrist, Dr W F Glaser, on 8 November 2005 (see report dated 16 November 2005 at page 80 of Exhibit D) and on 26 February 2008 (see report dated 7 March 2008 at page 92 of Exhibit D); (c) The industrial physician, Dr A G Capes, on 15 May 2006 (see report of same date at page 105 of Exhibit D), on 27 November 2007 (see report of same date at page 109 of Exhibit D) and on 2 February 2010 (see report of same date at page 113 of Exhibit D); (d) The general surgeon, Mr P J Phillips. He reports on 21 July 2006: (see page 116 of Exhibit D); (e) The consultant physician in rehabilitation medicine, Dr D Murphy, on 5 January 2007 (see report dated 25 January 2007 at page 118 of Exhibit D), 9 September 2008 (see report dated 6 October 2008 at page 122 of Exhibit D) and on 16 March 2010: (see report of same date at page 126 of Exhibit D); (f) The orthopaedic surgeon, Mr Russell Miller, on 3 June 2008 (see report dated 10 June 2008 at page 129 of Exhibit D). Mr Miller also wrote a letter to the solicitors for the plaintiff dated 29 June 2008 expanding his earlier opinions: (see page 136 of Exhibit D). 40 In his first report, Mr Schofield notes a history of the plaintiff complaining of neck, shoulder and back pain immediately following the transport accident. At that time, he noted that the plaintiff had “diffuse posterior neck tenderness, a good range of movement, although I considered there was some reservation of effort in her flexion and extension movements”: (see page 65 of Exhibit D). In her lumbar spine there was a normal lumbar lordosis with low lumbar tenderness but a full range of movement in all directions. There was no neurological deficit in the upper or lower limbs.
41 On examining films of the lumbar spine (taken 22 December 2005), Mr Schofield was of the view that there was “no abnormality in … the lumbar spine …”. Later, Mr Schofield received an MRI scan of the neck and lumbar spine taken on 28 April 2006 (see page 138 of Exhibit D). According to Mr Schofield, the MRI scan of the cervical spine revealed disc degenerative changes affecting C4-5 to C5-6 without significant disc herniation or nerve compression. The MRI scan of the lumbar spine revealed no abnormality at L1-2, L2-3, L3-4 but at L4-5 there was a shallow disc bulge with no evidence of nerve root compression and there was a similar finding at the lumbosacral level.
42 When seen on 14 August 2008, Mr Schofield found some restriction of neck movements, although he noted that these movements “appeared to have some reservation of effort” (see page 71 of Exhibit D). He is of the opinion that the plaintiff had suffered an aggravation of her cervical and lumbar disc degeneration as a result of the transport accident, although there did not appear to be any significant changes on MRI scan or x-rays that would “explain the severity of her chronic symptoms”: (see page 72 of Exhibit D).
43 When last seen on 15 April 2010, Mr Schofield noted that the plaintiff appeared “depressed and was sometimes teary”. Examination at that time revealed no evidence of any deformity, there was diffuse posterior tenderness and a reduced range of movement globally with a probable reservation of effort: (see page 76 of Exhibit D).
44 Mr Schofield had access to a further MRI scan of the lumbar spine (16 February 2010) which he considered demonstrates similar findings to those reported in April 2006, except at L4-5 where there is evidence of a greater degree of bulging at that disc.
45 When initially seen by Dr Capes, he was of the opinion that the plaintiff had “probably aggravated disc degeneration to her neck and may have accelerated this”. Further, he was of the opinion that the plaintiff had “probably aggravated disc degeneration of her lumbar spine along with degeneration with the facet joints which may also have been accelerated”: (see page 107 of Exhibit D).
46 In his second examination, he maintained such diagnosis and such condition would impact on her capacity for work and enjoyment of life. In his last examination, Dr Capes considered that the plaintiff may have “deteriorated” and neck flexion was decreased, as well as other cervical spine movements.
47 Mr P J Phillips was of the opinion in 2006 that the transport accident caused a “sudden extension flexion injury” in regard to her neck and this caused substantial musculoligamentous injury to the neck which in turn resulted in muscle wasting.
48 When first examined by Dr Murphy, he considered the plaintiff to have suffered “essentially soft-tissue injuries to the cervical and lumbar spine as a chronic soft-tissue pain disorder” on a background of degenerative changes in both the cervical and lumbar spines: (see page 120 of Exhibit D).
49 When seen in September 2008, he considered that her ongoing neck pain and headaches “are due to a chronic soft-tissue disorder involving the cervical spine” and that there was also a non-specific back pain syndrome of the lumbar spine”, both of which had not changed since his first examination: (see page 124 of Exhibit D). In particular, Dr Murphy considered the plaintiff had a reduced capacity for work which should be no more than fifteen hours a week maximum which did not involve sitting or standing, lifting of more than 5 kilograms or lifting, twisting or bending on a repetitive basis. Furthermore, he considered the plaintiff’s capacity for activities of daily living are “limited” and he noted that her attempt to return to some potting “aggravated her pain to some degree”.
50 When last seen on 16 October 2010, Dr Murphy considered the plaintiff still to be suffering from chronic soft-tissue disorder of the cervical spine causing neck pain and headaches, together with non-specific back pain syndrome of the lumbar spine. Furthermore, Dr Murphy was of the opinion that consistent with his earlier report, the plaintiff had a reduced capacity for work and her activities of daily living are limited.
51 When first seen in 2008, Mr Miller was of the opinion that the plaintiff had suffered a musculoligamentous strain to the cervical and lumbar spines with aggravation of pre-existing but presumably asymptomatic degenerative disease: (see page 133 of Exhibit D). He further noted that the plaintiff had had a poor response to conservative measures and was not suitable for cervical intervention.
52 Mr Miller was further of the opinion that the plaintiff could not return to work which involved repetitive bending, repetitive lifting and lifting of weights of more than 5 kilograms and would have difficulty with tasks that involved kneeling and squatting and those restrictions are “permanent and accident- related”: (see page 134 of Exhibit D).
53 When first seen by Dr Glaser on 8 November 2005, he was of the opinion that the plaintiff was suffering from a Post-Traumatic Stress Disorder of mild but appreciable severity. Her symptoms included significant fears associated with car travel (particularly as a passenger), recurrent intrusive recollections regarding the accident, nightmares, sleep disturbance, problems with her appetite and weight, memory and concentration difficulties, a generally raised level of anxiety, intermittent tearfulness, anxiety associated with reminders of the accident (e.g. TAC advertisements) and some avoidance of such reminders (particularly avoidance of talking about the accident itself).
54 When seen on 26 February 2008, Dr Glaser considered that there had been “very little change” in her mental state notwithstanding her treatment by the psychologist. Dr Glaser was of the opinion that the psychiatric condition had “essentially stabilised”.
55 The solicitors for the first defendant arranged for the plaintiff to be medico- legally examined by the following doctors:
(a) Mr Brendan Dooley, an orthopaedic surgeon, on 19 June 2006 (see report dated 20 June 2006 at page 3 of Exhibit 3); (b) Mr Michael Shannon, orthopaedic surgeon, on 30 January 2007 (see report dated 6 February 2007 at page 9 of Exhibit 3) and on 27 January 2009 (see report dated 29 January 2009 at page 16 of Exhibit 3); (c) Dr David Weissman, psychiatrist, on 6 February 2007 (see report of same date at page 20 of Exhibit 3); (d) Dr Nicholas Ingram, psychiatrist, on 18 November 2008 (see report of same date at page 31 of Exhibit 3). 56 The primary purpose of the examination by Mr Dooley was to determine whether the plaintiff needed “physiotherapy treatment”. At the time of examination, Mr Dooley noted that examination of her spine revealed no scoliosis or deformity, and in relation to her cervical spine “she had an excellent range of movements, without any evidence of muscle spasm” (see page 5 of Exhibit 3). Examination of her back revealed a mild limitation of movements with flexion to 60 degrees but all other movements were normal, without any evidence of muscle spasm. There was no abnormal neurology in the upper or lower limbs.
57 Mr Dooley was of the opinion that it was probable the plaintiff did sustain minor soft tissue injuries to her cervicothoracic spine but was unlikely to have suffered injury into her thoracolumbar spine. He considered her main problem was the anxiety and the stress recalling the accident. He considered the physical component to her injuries is “probably minor” and it is likely that she is “largely or fully recovered from the effects of the physical injury itself”.
58 When first seen in 2007, Mr Shannon noted that the plaintiff has “a normal range of movement of the cervical spine, although movements are a little hesitant”: (see page 11 of Exhibit 3).
59 Further, he noted that thoraco lumbar movements are “moderately restricted, particularly lateral flexion and rotation”. In relation to the neck and back, there was no neurological abnormality or significant spasm. Mr Shannon considered the plaintiff had suffered “soft tissue injury to the cervical spine and possibly soft tissue injury to the lumbar spine”.
60 In relation to his further examination in January 2009, the plaintiff had “moderate restriction of all movements of the cervical spine” and thoraco- lumbar movements were limited by a third. However, there was no neurological abnormality and Mr Shannon thought there were non-organic features in her presentation.
61 In his report dated 29 January 2009, Mr Shannon states, in part:
“She is quite a depressed and somewhat emotional woman and I think it
is quite unlikely that she would benefit from any surgical intervention.
. . .
The prognosis for her injuries would appear to be poor noting that symptoms and signs have apparently deteriorated since my last examination.
. . .
I do not think that she is physically incapable of working as either a chef or a potter, but psychological aspects may impede a return to work and I note that she is now on a disability pension.
. . .
My impression however is that the only injury sustained was a soft tissue injury to the neck which had substantially resolved when I saw her two years ago, but appears to have deteriorated in subsequent years and this deterioration cannot be reasonably related to the accident.”
(my emphasis)
(see page 19 of Exhibit 3).
62 After his examination, Dr Weissman was of the opinion that the plaintiff suffered from “an Adjustment Disorder with Depressed and Anxious Mood”. The purpose of Dr Weissman’s examination was to render an AMA assessment.
63 However, he did state the purely on psychiatric grounds, the plaintiff was capable of full-time work and any psychiatric symptoms that she did suffer impacted in a “mild to moderate manner” on her day-to-day domestic, social, leisure and recreational functioning. He did consider that the plaintiff would continue to experience mild to moderate secondary and primary psychiatric symptoms for the foreseeable future.
64 After his examination, Dr Ingram was of the opinion that the plaintiff was suffering from a Chronic Adjustment Disorder with Depressed and Anxious Mood, which is a secondary consequence of the accident. She also has residual symptoms of Post-Traumatic Stress Disorder and a Phobic Disorder and these are primary consequences of the accident. He considered that the prognosis was unclear until such time that the plaintiff had tried an appropriate dosage of anti-depressants.
Analysis of the Evidence
65 After considering all of the evidence, I find that the plaintiff suffered a neck “injury” resulting from the transport accident on 18 April 2000. Such injury has been variously described as a “soft-tissue injury” or an “aggravation of pre- existing degenerative change” and for present purposes, I do not think much turns on any distinction between the two diagnoses. Given the period of time that she had suffered such symptoms, I am also of the opinion that they can be appropriately described as “long-term”.
66 I do note that the plaintiff only intermittently attended on her general practitioner for the first four or five years with complaints of neck difficulty but it is only Mr Shannon who casts any doubt as to a relationship between any present neck symptoms and the transport accident. As stated, on balance, I accept that the plaintiff has some ongoing neck symptoms resulting from the transport accident.
67 I am less confident in making such a finding in relation to the low-back as seemingly there was no complaints made to the general practitioner about any low-back symptoms until many years after the transport accident. I tend to agree with Senior Counsel for the defendant that Exhibit C – the TAC Claim Form dated 25 May 2000, properly construed probably only means that there was some radiation of pain to the low-back rather than a low-back injury. I appreciate that the plaintiff maintains that she has suffered symptoms in her low-back from immediately after the occurrence of the transport accident. Suffice to say, I am not prepared to make a finding of the plaintiff suffering a low-back injury resulting from the transport accident but note, in any event, that as Senior Counsel for the plaintiff noted: “The low-back is not what’s stopping the pottery.” In my view, Senior Counsel for the plaintiff quite appropriately made the concession that “the back doesn’t get us there”: (see T159, L3-4).
68 The matter is made more complicated when one looks at the inconsistent findings over the years in relation to movement of the neck. Early examinations would suggest reasonably good movement of the neck which seems to have deteriorated over the years.
69 I do find that the plaintiff has also suffered a Post-Traumatic Stress Disorder resulting from the transport accident. In this respect, I accept the evidence of the treating psychologist who has consulted with the plaintiff many times since November 2006. I note that Dr Glaser also makes a similar diagnosis. Although Dr Weissman and Dr Ingram diagnose an Adjustment Disorder, many of the symptoms relied on to form such diagnosis seemingly are relevant also to the diagnosis of Post-Traumatic Stress Disorder.
70 A Post-Traumatic Stress Disorder, or for that matter, and Adjustment Disorder is, in my view, a mental or behavioural disturbance or disorder within the meaning of paragraph (c) of s.93(17) of the Act. Furthermore, given the chronicity of such symptoms, I find that the plaintiff has satisfied the requirement that such mental or behavioural disturbance or disorder is “long- term” within the meaning of paragraph (c).
71 I found the plaintiff to be largely a witness of truth who gave her evidence with very flat affect. She made appropriate concessions when the video was put to her and indeed generally throughout her cross-examination. The video, in my view, did show her moving her neck, not necessarily up and down but certainly side to side.
72 I am also conscious that the plaintiff demonstrated her capacity for work as a chef at Craig’s Hotel for a couple of years, during which time on some days she worked a large number of hours. However, I do note that she gave that job away, at least in part, because of ongoing neck symptoms.
73 However, the case is put squarely by the plaintiff that what she has lost as a result of her neck injury is this (as put by Senior Counsel for the plaintiff):
“What she has lost was the thing that was most important to her, and that was her ability to fully and properly explore her artistic bent, which may or may not have led to a commercial level, and that’s not to the point.”
74 Given her description of what is involved in potting, and in particular when “throwing” the clay for larger objects, I accept that such activity would cause difficulty with someone with persisting neck symptoms. On the evidence, I accept that the plaintiff still does some “potting” but does not engage in the larger forms of pottery work which were exhibited to the Court. I do accept that as a result of her neck injury, it is probable that the plaintiff has been unable to “fully and properly explore her artistic bent”. I make such finding in the context of what the plaintiff has demonstrated prior to the transport accident, undergoing the course and moving to the Ballarat area to set up a gallery-café to pursue her artistic career, hopefully on a commercial basis.
75 On balance and considering all of the evidence, I am satisfied that such a consequence to the plaintiff may be fairly described at least as “very considerable” and certainly more than “significant” or “marked”.
76 Accordingly, pursuant to s.93(4)(d) of the Act, I grant leave to the plaintiff to bring common law proceedings to recover damages for the injuries suffered by her arising out of the transport accident on 18 April 2000.
77 In respect to my finding that the plaintiff has suffered a Post-Traumatic Stress Disorder, I am not satisfied that such a condition is “severe” within the meaning of paragraph (c) of the definition of “serious injury”. Although the plaintiff has had ongoing psychological treatment for a number of years, she has taken (by choice) very little medication and her activities of daily living have been only slightly impinged upon. Furthermore, the psychiatrists tend to describe it is a mild to moderate disability with certainly no indication of hospitalisation or gross inhibitions on her day-to-day activities. If the test for “severity” is to be a “stronger word” than “serious”, such a consequence would have to be something more than “very considerable” which on the evidence I do not find.
78 I will hear the parties on the question of costs.
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