Prebble v Transport Accident Commission
[2023] VCC 1875
•19 October 2023
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-22-03471
| DEBORAH JANE PREBBLE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 2, 3 and 4 October 2023 | |
DATE OF JUDGMENT: | 19 October 2023 | |
CASE MAY BE CITED AS: | Prebble v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1875 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Application for finding of serious injury pursuant to s93 of Transport Accident Act 1986 (Vic) – plaintiff already disabled from paid work by earlier injury – consequences alleged to follow from pre-existent transport accident – injury to right shoulder – judged by reference to consequences not “very considerable”.
Legislation Cited: Transport Accident Act 1986 (Vic)
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Richards & Anor v Wylie (2000) 1 VR 79; Bezzina v Phi & Transport Accident Commission [2012] VSCA 161; Palmer Tube Mills (Aust) Pty Ltd & Anor v Semi [1998] 4 VR 439; Jovceva v Transport Accident Commission [2019] VSCA 105
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett KC with Mr G Pierorazio | Stringer Clark Lawyers |
| For the Defendant | Mr R H Stanley with Mr T Storey | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1Ms Prebble was born in 1964 (Plaintiff’s Court Book (“PCB”) 6, paragraph [9]). She was educated to Year 11 at Terang High School. According to her affidavit, in 2007 she suffered a fracture of her right scaphoid (a bone in the wrist). She says that her right wrist is now “about 80 per cent of normal”. She said she underwent two operations, one of which involved the insertion of metal plates and pins (Ibid paragraph [8]). Ms Prebble said of her right wrist “overtime it has strengthened” (Transcript (“T”) 21, Lines (“L”) 23). She dated the improvement of her right wrist from the second surgery, which entailed removing the plate and pins. She said physiotherapy after that second surgery led to the improvement of the wrist (T21, L23). She said the second surgery was in about 2010 (T21, L8-9).
2In 2015, Ms Prebble was diagnosed with breast cancer (Ibid). She underwent surgery, radiation and some medication, and is now in remission. The surgery was on her left side, involving the removal of some lymph nodes (T5). She says, as a result of this surgery, she is now “even more reliant on [her] right arm than usual”. She is right-handed (PCB 6, paragraph [4]).
3The right wrist injury was the subject of a claim under the WorkCover compensation regime. Ms Prebble returned to work in November 2013 in a supermarket in Jeparit, the town where she lived (T24, L10-14). She remained employed there for some eleven months before suffering an injury in October 2014, which led to her ceasing work again (Ibid, L15-19). She fell in the coolroom at the supermarket (T25, L24-26). A brief attempt to return to work later in October 2014 was unsuccessful and she has not worked since (Ibid, L27-31). This accident and injury was also the subject of a WorkCover claim (T26, L3-4).
4Around 11.00am 23 November 2017, Ms Prebble was driving along the Mortlake-Ararat Road after having visited her parents in Terang. She said another car drove through a give-way sign at the intersection of Myuna Lane. This vehicle crossed in front of Ms Prebble and there was a collision. There was no loss of consciousness. A passer-by called an ambulance and Ms Prebble was taken to a paddock used as a makeshift “heliport” and airlifted to The Alfred hospital in Melbourne. She said she was diagnosed, among other things, with a fractured sternum. She was successively a patient at The Alfred hospital, Wimmera Healthcare Group and the Jeparit Hospital, where she remained until 22 September 2017 (PCB 6-7, paragraphs [20-22]).
5Ms Prebble said that while the pain from her fractured sternum eased, she began experiencing pain in her right shoulder. She was referred to orthopaedic surgeon, Mr Paul Plank, who, she said, diagnosed: “That he said capsulitis or frozen shoulder”. She said, on 9 November 2018, that almost twelve months after the accident, Mr Plank performed a right shoulder arthroscopy hydrodilatation and manipulation under anaesthetic (PCB 7, paragraph [16]). In an affidavit sworn 4 September 2020, Ms Prebble said:
“Notwithstanding the surgery, my right shoulder continues to cause me grief. I have ongoing pain in the right shoulder with a restricted range of movement. I have difficulty performing any heavy lifting with my right arm.
Because of my injury, I have difficulty performing day to day tasks. Many tasks increase the pain including mashing potatoes, lifting a casserole in and out of the oven and even lifting a full kettle. I have constant pain in the right shoulder and without pain medication I would not be able to function to the extent that I do.” (PCB 7, paragraphs [17-18])
6The affidavit described difficulty cleaning herself “after going to the toilet” and difficulty managing her hair which she had been accustomed to wear long. She also has difficulty wearing a bra and tends to rely on a “crop top”. She said, “[m]y choice of clothes is restricted as I find it difficult to put on and take off clothes that don’t have buttons or zips” (Ibid, paragraph [22]). She complained that, as at the date of this affidavit, she had gained approximately 5 to 6 kilograms in weight “[a]s a result of [her] relative inactivity since the accident” (PCB 9, paragraph [32]). She said that, while she was able to potter around her garden, she found it difficult to carry out domestic chores “such as vacuuming and hanging out the washing because of the pain in [her] right shoulder” (Ibid, paragraph [33]).
7She complained that her recreational activity had “been significantly impacted upon by [her] right shoulder injury”. She said she can no longer play darts, which upsets her greatly. She was also prevented from fishing because of her right shoulder problem. She can no longer cast or wind in. She complained that while she had previously done “lots and lots of crocheting, knitting and sewing clothes for [her] grandchildren”, she can no longer perform those activities “as it simply hurts too much” (Ibid, paragraph [34]). While she said she used to enjoy socialising and getting together with a “craft group”, these days there are days when “[she doesn’t] even feel like getting out of [her] pyjamas. [She spends] a lot of [her] time at home” (Ibid, paragraph [36]).
8In a later affidavit, sworn 31 May 2023, she said, since swearing the earlier affidavit, she had “not experienced any improvement either in terms of [her] right shoulder or in terms of [her] psychiatric condition although [she does] tend to have good days and bad days.” (PCB 15, paragraph [2]) She said, as at the date of this affidavit, she relied on 5 milligrams of Endone tablets, which she could take up to twice a day when her pain is bad. Also OxyContin Slow Release, 20 milligrams, two a day, one in the morning and one in the night, and Panadeine Forte, which she “generally” took first thing in the morning and through the course of the day, depending on the severity of her pain (Ibid, paragraph [4]). She said, as to her social life, “whilst I can manage a bit of craft, I can only do so in small bursts and have not resumed attending craft group. Fishing is only manageable for me if Raymond casts the line” (Ibid, paragraph [18]). She said she continues to struggle with domestic chores, having switched to an upright vacuum cleaner, which she found more manageable, but “still difficult”. She said one of her daughters and children now live in Nhill, and is therefore available to assist her by way of shopping and cooking, and preparing “either a large pot of soup or a casserole” (Ibid, paragraph [19]). Her daughter also does vacuuming and dusting for cobwebs and provides moral support. Ms Prebble says that her contact and interaction with her grandchildren was restricted because of her inability to pick them up or engage in horseplay (Ibid, paragraph [20]). She said that she could not go on holiday, though she and her husband had travelled for a fortnight to Western Australia to visit her mother-in-law marking her 90th birthday (Ibid, paragraph [21]). She said:
“These days I do not have much of a social life. Before the accident, we regularly went to the pub and played not only darts but also pool. That is something I no longer do.” (PCB 18, paragraph [23])
9She was also now prevented from visiting garage sales and markets, which she used to do on Saturdays and collecting firewood with her husband and son. She said, “[n]ow, pain makes me cranky and leads to an exacerbation of my anxiety which makes these types of activities difficult. We now purchase our firewood and also rely on a heater and split system” (Ibid, paragraph [25]). Summarising her situation before the 2017 accident:
“I was travelling fairly well notwithstanding some health issues. First and foremost, I was recovering from breast cancer. Whilst I did have back pain, I certainly never had pain in my right shoulder and indeed I have never experienced pain such as the pain I experience now in the past.” (Ibid, paragraph [26])
10In this proceeding, Ms Prebble seeks a determination that she has suffered a “serious injury” within the meaning of s93 of the Transport Accident Act 1986. Her application, as filed, sought to place reliance on both paragraph (a), organic injury and paragraph (c), psychological or psychiatric injury. Mr Brett KC, who, with Mr Pierorazio of counsel, represented Ms Prebble, announced at the outset of the hearing that Ms Prebble now relied solely on paragraph (a) of the definition.
Expert opinions
11As will appear, a large part of the defendant Transport Accident Commission’s opposition to Ms Prebble’s application for a serious injury determination is based upon the view that the pain and restrictions of which she now complains and relies on as consequences supporting a finding of serious injury under the statute predated the 2017 transport accident and were the subject of complaint and a compensation claim arising out of the injury to Ms Prebble’s right wrist in 2007 and her fall in the coolroom of the supermarket in 2014. The Defendant’s Court Book therefore contains extensive reports from treating practitioners and medico-legal assessors directed to the injuries in 2007 and 2014 and the claims arising out of them. In this section, I consider only the opinions given by practitioners engaged to assess the injuries suffered by Ms Prebble in the 2017 transport accident and from those who have treated her relative to those matters. I will make reference to and express conclusions as to the significance of the balance of the medical material in the section headed “Conclusions”.
12Mr Paul Plank, orthopaedic surgeon, provided a report by way of letter dated 14 June 2019, addressed to Ms Prebble’s solicitors. He noted that she had been referred to him by her treating general practitioner, Dr Kalyani Sarkar:
“… because of ongoing pain and stiffness involving her right shoulder. She had forward elevation to 90°, external rotation to 0° and very minimal internal rotation. This global restriction to her range of motion was all consistent with a diagnosis of adhesive capsulitis (frozen shoulder).” (PCB 19)
13Mr Plank said that he carried out a right shoulder arthroscopy and hydrodilatation, and manipulation under anaesthetic, on 9 November 2018. “The findings at the time of surgery confirm the diagnosis. She then had intensive physiotherapy following that procedure.” (Ibid) Mr Plank said Ms Prebble was:
“… last reviewed on 17 January 2019, approximately six weeks after the procedure. She was making good improvements with her physiotherapy program and I recommended that she continue with that. Obviously after not using this arm properly for 12 months there was a lot of weakness in her shoulder girdle muscles and I am sure it will take her quite a number of months of physiotherapy to get all of that strength back.” (Ibid)
14He said, as at the date of his letter, he had not “made any further follow up appointments” (PCB 21). According to Mr Plank, Ms Prebble’s diagnosis would:
“… depend on how she now responds to her physiotherapy program. The main ongoing treatment at this point in time would be physiotherapy. She may require potential injections of some cortisone into the shoulder or even potentially repeating the procedure if it stiffens up again.” (Ibid)
15He concluded:
“Considering her procedure was only four to five months ago and she is still making improvements with her physiotherapy program, she is not stabilised. This may take 12 months or so.” (Ibid)
16Dr Patricia Bas, of Tristar Medical Group, Ms Prebble’s present treating practitioners, issued a medical certificate to Ms Prebble’s solicitors dated 28 May 2022, which could be regarded as a very short-form report. The doctor diagnosed:
“Mild dyplaced sternon fracture with the postior periosteal reactionright shoulder biceps tendon subluxed and mildy thickened due to tendinosis doble teras in teh supraspinatusimpingment … ” (sic) (PCB 23)
17The doctor said that Ms Prebble was not fit for pre-injury duties, walks in her free time and does some gardening chores, but “not much social life”. The doctor said “Medications, for managementPtsd not keen on psychotherphy Pain specilist /pysiotherpist under GP mangement plan” (sic) (Ibid). The doctor concluded “[i]ts (sic) a chronic condition with acute exacerbations” (Ibid).
18On 17 April 2020, Ms Prebble was the subject of medico-legal assessment by orthopaedic surgeon, Mr Craig Mills, via a “Telehealth” consultation (PCB 24). As to Ms Prebble’s medical history prior to the transport accident, Mr Mills said that Ms Prebble told him, “she was well apart from a problem with breast cancer for which she underwent surgery on the left hand side and she was previously otherwise healthy. There was no past history of motor vehicle accidents.” (PCB 26) Mr Mills notes the history of “a fall at work in 2007” (PCB 27) leading to a fracture of the right forearm. He noted that, according to history given to medico-legal assessing surgeon, Mr Philip Sharp, Ms Prebble had a long period of:
“… not working after the fall [in 2007], returning to work on 10 October 2014, at reduced hours per day, when seen in February 2015 after the original accident on 8 October 2014. At that time, she had significant back pain. He noted a past history of a hysterectomy in the late 1980s and three operations for division of adhesions and removal of small bowel.” (Ibid)
19Mr Mills gave his opinion on injuries to a large number of body parts implicated in the 2017 transport accident. As to the right shoulder, he recorded medication by way of OxyContin, 20 milligrams, twice per day and Panadeine Forte, six to eight tablets a day, together with Prozac and Diazepam. He recorded, “[s]he has significant pain sleeping and is unable to sleep on the right hand side” (PCB 28). He said:
“The pain is from the root of the neck, across the shoulder anteriorly and up the lateral arm. The pain is there 24 hours per day, but does fluctuate. In the morning, it is at a level of 7-8/10 and with medication it drops to 4/10. She is occasionally in agony. The weather has a significant effect on her symptomatology … Occasionally, she gets pins and needles in her thumb to her middle finger on a regular basis. Movement increases her pain. She is unable to fasten a bra as it hurts. She has not been recommended to have further surgery.” (PCB 28)
20Mr Mills noted that Ms Prebble:
“…sees the physiotherapist once per week and has been referred by physiotherapy in Ballarat, but has difficulties getting there because of the distance required. She has been given exercises, which she does at home 2-3 times per day. She uses a wheat pack for heat treatment most nights. She has not received any further injections after the hydrodilatation/shoulder arthroscopy surgery.” (Ibid)
21As to the activities of daily living, Mr Mills said that Ms Prebble was:
“… able to do some of her personal care dressing, showering and toileting, but it is difficult some days. She is unable to wash her hair and does not really use her right hand. She has had to retrain herself to use her left hand for toileting. Her left hand side is weak.” (PCB 29)
22Mr Mills carried out an AMA Impairment Assessment in range of motion of the right shoulder viz. flexion, extension, adduction, abduction, international rotation and external rotation, making a variety of findings leading to a 21 per cent upper extremity impairment converted to a 13 per cent whole-person impairment (PCB 30). As to the right shoulder, he said, “[s]he has significant right shoulder adhesive capsulitis ongoing after injury and surgery thereto … in relation to her employability, for the foreseeable future she is unlikely to be able to work” (PCB 31). He concluded: “the accident [viz. the 2017 transport accident] is causative to the right shoulder.” (PCB 32)
23Ms Prebble attended a Zoom videoconference with consultant psychiatrist, Dr Michael Epstein, on 24 June 2020. The doctor provided a report on this consultation bearing the same date. This report in the Plaintiff’s Court Book was not tendered by Mr Brett KC and Mr Pierorazio in light of their abandonment of reliance on paragraph (c) of the statutory definition of serious injury. This report was, however, tendered by Mr Stanley and Mr Storey on behalf of the defendant in reliance upon the history which Dr Epstein took. Dr Epstein recorded inter alia:
“She said that before the accident she was playing darts with Raymond and some friends four to five nights a week. She said that she continued to be a good dart player. There were no local dart competitions. She also enjoyed knitting and crocheting every night when watching TV. She enjoyed making clothing for her children and grandchildren using her sewing machine. She did all the housework, cooking, laundry and hanging out clothing. She loved working in her garden. She mowed the lawns at times, did weeding, potting plants and trimming edges. She did the grocery shopping in Horsham usually alone. She drove most days. She had a 2006 Ford Escape four-wheel-drive vehicle with automatic transmission. She drove to Terang to visit her parents every three or four weeks and stayed for four days, coming home on Saturday afternoons.” (PCB 36)
24According to Dr Epstein, Ms Prebble told him that she:
“… may take up to two hours to fall asleep and sometimes wakes after two or three hours and has trouble getting back to sleep. She is usually woken by pain and cannot sleep comfortably on the right side, on her back or on her front. She mainly lies on her left side.
She has nightmares about the accident at least two or three times per week that wake her shaking, crying and yelling and she has difficulty getting back to sleep and has to have a cup of tea. She usually gets up between 5:00 am and 6:30 am [having retired between 10.30pm and 12 midnight].” (PCB 38)
25The doctor also noted:
“She also has constant pain in her right shoulder with reduced movement of her right shoulder especially lifting up her arm and putting her arm behind her back. She had difficulty doing up a bra and stopped wearing a bra. She wears only loose clothing but finds even the weight of her dressing gown makes her shoulder ache. She said the right shoulder pain goes to her right elbow into the right side of her neck. She has always had headaches and this had not changed since the accident. She continued to have pain and weakness in her right wrist and this has not changed since the accident.” (PCB 39)
26Once again, the doctor took a history of extensive opiate-based analgesic, antidepressant and anti-anxiety medication (PCB 40). The doctor diagnosed a:
“.. chronic Post Traumatic Stress Disorder characterised by recurrent intrusive thoughts about the accident, distress with reminders of it, increased concerns with regard to her own safety and security, hypervigilance, emotional withdrawal and a sense of bleakness.” (PCB 43)
27In accordance with a regime established pursuant to s46A of the Transport Accident Act, published in the Victorian Government Gazette, Dr Epstein assessed “a psychiatric impairment arising from this accident of 20%” 10 per cent of which impairment was not secondary to physical injury (PCB 44, as tendered by Mr Stanley and Mr Storey on behalf of the defendant). The doctor carried out a further assessment by Zoom on 8 July 2022, providing a report of the same date (PCB 47). The doctor recorded that he gained an impression:
“… that her level of impairment arising from the accident has diminished since I last saw her. She appears to have developed a more positive attitude towards life and will not allow her chronic pain to dominate her life as it has done in the past [the doctor was of course speaking of psychiatric issue]” (PCB 57)
28Mr Mills carried out a further medico-legal assessment at the request of Ms Prebble’s solicitors on 18 July 2022. He reported on that assessment by a letter to the solicitors of the same date (PCB 59). As to the right shoulder, Mr Mills said, “[s]he continues to have mild generalised wasting with well healed arthroscopic scars” (PCB 64). Again, he carried out an AMA Assessment finding an extensive list of restrictions of range of motion of the right shoulder constituting a 21 per cent impairment of the upper extremity and a 13 per cent whole person impairment (PCB 65). Responding to the question, “What injury/ies did [Ms Prebble] sustain on or about 23/11/2017”, Mr Mills said:
“[Ms Prebble] has received some aggravation to (presumed) cervical and previously diagnosed lumbar spondylosis but without apportioned additional impairment. In relation to the left hip and knee and right shoulder the claimant has soft tissue injuries to those areas ultimately being treated with surgery to the right shoulder in 2018 but has ongoing dysfunction with restricted range of motion, slight scarring and chronic pain…” (PCB 65-66)
He concluded “there is unlikely to be a substantial improvement or resolution of her conditions. Conditions are likely to remain at a similar level for the foreseeable future” (PCB 67).
29Again, at the request of her solicitors, Ms Prebble attended Mr Stephen Doig, orthopaedic surgeon, for medico-legal assessment. He provided his report of that assessment by letter to the solicitors, dated 23 March 2023 (PCB 68). While Mr Doig does not record in his report the various materials with which he was briefed, his report indicates extensive knowledge of the medical and surgical history of Ms Prebble. He said:
“She has a significant past history. She had a breast neoplasm which affected the left breast which she had resected with an axillary clearance resulting in some problems with her left arm. She has had gynaecological problems, abdominal problems and a fractured right scaphoid. She has had no problems with the right shoulder or the left knee prior to this accident. There were extensive notes as far as her back was concerned. There were notes from 2011 indicating an ongoing low back pain and that she had been referred to a Pain Management specialist. There were notes in 2014 indicating that she was on long term medications for chronic pain and this continued throughout 2015, 2016 and 2017. I note that just prior to the accident it was stated that she had severe ongoing pain in the back, the legs and the arms and that was up to several days before the accident was concerned. She said she has had no relief from the back pain and it has continued to cause her ongoing problems. She denied any problems with the right shoulder or the left knee.
At the time of the accident she was not working. She said she last worked in about 2015. That was as a supermarket manager. She said that she was full time and full duties. She said that she stopped primarily because of the back pain, and she has not returned to work.” (PCB 69)
30As to Ms Prebble’s right shoulder, Mr Doig diagnosed “[p]ost-traumatic right shoulder adhesive capsulitis” (PCB 70). He said:
“As a consequence of the physical injury to the right shoulder I consider that she does not have the capacity to perform her pre-injury duties. However, she was not performing her pre-injury duties at the time of the accident. She had stopped work in 2015 [actually 2014] primarily because of her ongoing significant low back pain. As a consequence it is extremely unlikely that she will return to work, but it is not this specific accident which has caused her to have the incapacity to perform her pre-injury duties.” (PCB 70)
31Mr Doig referred to the effect on Ms Prebble’s social, domestic and recreational activity (PCB 70).
32Consultant surgeon, Dr Anthony Menz, conducted a medico-legal assessment of Ms Prebble via video on 21 March 2023. He provided a report to the transport Accident Commission dated 4 April 2023 (Defendant’s Amended Court Book (“DACB”) 79). Dr Menz recorded that “[p]rior to the accident [Ms Prebble] said she had had no problems with her right shoulder” (DACB 83). Dr Menz diagnosed a “soft tissue injury to [Ms Prebble’s] right shoulder” (DACB 86). The doctor said that CT scans of Ms Prebble’s low back was similar both before and after the transport accident and showed “minor age-related degeneration only” (DACB 86). He said:
“The ultrasound of her right shoulder approximately a year after the accident revealed minor age-related degeneration. I certainly could not find an indication for surgical intervention based on the radiology and certainly the shoulder arthroscopy of November 2018 was of no benefit to Ms Prebble.” (DACB 87)
He said Ms Prebble’s symptoms would “remain going into the future” (DACB 87).
33Dr Menz provided two supplementary reports based on submission to further material, but he did not alter the opinions expressed in his principal report (DACB 93). Likewise, having read Mr Doig’s report, he determined not to alter his opinion (DACB 95).
Legal considerations
34The Transport Accident Act 1986 (“the Act”) establishes a regime whereby there is a general compensation scheme for persons injured in transport accidents in Victoria without proof of fault. Correspondingly, however, the Act restricts the entitlement which an injured person might otherwise have to claim damages for negligence. Section 93(1) excludes damages claims except in accordance with the provisions of the section. Sub-section (2) allows a person injured in a transport accident to recover damages in respect of the injury if the injury is “a serious injury”. Sub-section (17) defines serious injury as follows:
“‘serious injury’ means—
(a) serious long-term impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c)severe long-term mental or severe long-term behavioural disturbance or disorder; or
(d) loss of a foetus.”
35Sub-section (3) provides that an injury is to be deemed a serious injury if, in accordance with the permanent impairment provisions of the Act, ss46A, 47(7) or 47(7A), the degree is determined to be 30 per cent or more. Where no such determination of impairment of 30 per cent or less has been made, the damages claim may only be brought if a court gives leave in accordance with ss(4). This requires the application of the definition of “serious injury” quoted above. This is commonly referred to as the “narrative” test.
36In the present proceeding, the plaintiff relies solely on paragraph (a) of the definition. The classic exposition of the operation of the definition of “serious injury” which applies in this case is to be found in the joint judgment of Crockett and Southwell JJ in Humphries & Anor v Poljak [1992] 2 VR 129. Their Honours said:
“ … we think that the task of a judge confronted with the requirement to determine an application made pursuant to sub-s. (4)(d) when reliance is placed upon sub-s (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"? Beyond such guidance it is, we think, not possible to go.” ([1992] 2 VR 129, 140)
37Complications arise where, in the context of an application for leave based on paragraph (a) of the definition, elements of psychological or psychiatric impairment are in play. In Richards & Anor v Wylie (2000) 1 VR 79 the plaintiff had suffered whiplash injuries with pain and stiffness in the neck, shoulders and arms and certain other physical symptoms. The medical evidence indicated that these symptoms could not be organically accounted for and that they seemed to have been produced by psychological factors. The trial judge accepted that the plaintiff had suffered a serious injury for the purposes of paragraph (a) of the definition based upon the physical symptoms despite the evidence that they were non-organically generated. The Court of Appeal, Winneke P, Buchanan and Chernov JJA set aside the grant of leave. Chernov JA said that:
“It is likely that in many cases the injuries caused by a transport accident will have physical as well as mental consequences for the plaintiff, with the result that it may appear that either definition could be appropriately applied in determining whether the relevant injury is a "serious" one. In such circumstances, which test is appropriate will fall to be determined by the consideration of what is the dominant cause of the plaintiff's condition. Is it predominantly the result of the physical injuries arising from the accident, or is the dominant cause of the condition the mental and psychological factors flowing from the accident? But whichever test is to be applied, in determining if its requirements have been satisfied, all the relevant consequences for the plaintiff arising from the accident are to be considered. Thus, if it is decided that, in a given case, the test in para (a) is appropriate because the plaintiff's relevant condition has been brought about predominantly by the relevant physical injuries, in deciding whether the relevant impairment is serious and long term, regard is to be had not only to the physical cause of the impairment, but also to any mental or behavioural disturbances flowing from the physical injury, such as "functional overlay" to which the President refers in his judgment.” ((2000) 1 VR 79, 90)
38His Honour continued, stating that, where the dominant cause was psychological, then the application for leave should be determined under paragraph (c) of the definition. In broad terms, therefore, paragraph (a) is concerned with the consequences of organic injury and paragraph (c) is concerned with injuries which are psychologically or psychiatrically driven. However, in considering the application of the definition in paragraph (a) to physical injury, one considers not only the organic consequences but, in his Honour’s words, “any mental or behavioural disturbances flowing from the physical injury, such as ‘functional overlay’”.
39In this proceeding, a major strand of the defendant Commission’s case is that an affidavit or affidavits of Ms Prebble and the histories which she gave examining and treating practitioners relative to earlier compensable injuries, demonstrate that some or all of the pain and restrictions which she complains of and attributes to the 2017 transport accident afflicted her before that transport accident as a result of injuries which she claims she suffered in 2007 and 2014 and for which compensation claims were made. Without necessarily accepting that Ms Prebble is in fact subject to the pain and restrictions which she attributes to the transport accident, the Commission, through its counsel, contend that, if in fact she is subject to those pain and restrictions, she was already subject to them before the transport accident. They relied upon a decision of the Court of Appeal, Bezzina v Phi & Transport Accident Commission [2012] VSCA 161 (“Bezzina’s case”). In that case, an unsuccessful applicant for a finding of serious injury challenged his adverse determination in the Court of the Appeal. One of the grounds on which the appellant challenged the primary judge’s determination against him, claiming that her Honour viewed and analysed the matter “through the prism of a pre-existing lumbar spine impairment”. In rejecting this ground, the court, consisting of Harper JA and Beach AJA (as he then was) said:
“There is nothing in this submission. In assessing whether each claimed serious injury satisfied the ‘very considerable’ test, her Honour was required to examine the impact of the injury on the applicant as a whole. Far from her Honour’s approach being erroneous, her Honour was bound, when examining the consequences of the claimed serious injury, to look at how they affected the applicant as he was and would likely have been absent the injuries he sustained in the transport accident. This included looking at and considering the effect (and likely effect in the future) of the applicant’s pre-existing injuries. To the extent that the evidence was said to be so sparse as to impede the judge in that task (a matter about which we are far from persuaded in any event), the responsibility lies with the applicant or his legal advisors. We note in this context that when her Honour said, during the course of the hearing, that she ‘had to look at … what his level of functioning in total was just before the transport accident and what worsening on a long term basis has been brought about by the injuries suffered in the motor accident’, senior counsel for the applicant did not raise any objection.” (Ibid, paragraph [23])
Conclusions
40In Palmer Tube Mills (Aust) Pty Ltd & Anor v Semi [1998] 4 VR 439 (“Palmer Tube case”), the Court of Appeal consisting of Brooking, Tadgell and Buchanan JJA, disapproved a regime instituted in this court for the determination of serious injury applications, such as the present, “on the papers”. Brooking JA, in a passage frequently cited and relied upon since, said:
“On ‘serious injury’ applications it is of course for the applicant to establish serious injury on the balance of probabilities; the question is not whether a prima facie case is made out. An issue is being tried. Moreover, in ‘serious injury’ applications the credit of the applicant is of great importance, not only directly but also indirectly. For so often the opinions of medical witnesses or other experts depend upon what they have been told by the applicant and upon the applicant’s behaviour or performance on examination or upon testing. The bona fides of a deponent are best explored in cross-examination. Re Smith and Fawcett Ltd. [1942] Ch. 304 at 308 per Lord Greene M.R.” (Ibid, 448)
41In this case, the central importance of the plaintiff’s credit is obvious enough. Logically she is the best source of information relative to her pain and restrictions said to be the consequences rendering the subject injury “serious” for the purposes of the statutory test. Yet, she is in practice, confronted with both positive and unconscious incentive to stress the serious nature of the pain and restrictions which she suffered after the accident and to minimise the severity of the pain and restrictions which are the result of other incidents which had already been finalised for compensation purposes or for entirely non-compensable circumstances. Ms Prebble’s Senior Counsel, Mr Brett KC, conceded that injury compensation applicants tend to view their condition prior to the compensable injury “in a rosier light than perhaps it actually was” (T86, L12-13).
42This latter phenomenon was on full display in the plaintiff’s written case and in the history which she gave to practitioners assessing her for the purpose of the present application. Mr Stanley and Mr Storey on behalf of the Commission referred to the following matters. First, they noted that, by reason of the injury to her left forearm or wrist, Ms Prebble was off work from 2007 until 2013 in connection with the compensation application relevant to the 2007 injury. Ms Prebble swore an affidavit on 7 April 2011 which stated inter alia:
“At the present time my symptoms are continuing with restriction of movement, disability, loss of strength and impairment in my right wrist and arm. I remain limited in respect of the performance of the activities I have referred to. I remain unable to work. I do not see any realistic possibility of me finding employment which I can perform in the future and I believe I will very likely continue to remain incapacitated indefinitely.
I am right hand dominant. I have constant pain in the wrist and into the middle finger and up into the forearm, elbow and into my shoulder blade. With activity or use of my shoulder, the pain sets in and becomes worse. At times the pain is of such severity that I am reduced to tears, both in respect of shoulder and wrist pain. I have significant limitation of movement of the wrist joint and I have a significant reduction of strength in the wrist and hand. I have become much more reliant on using my left arm and I often develop left wrist pain when trying to do things.” (DACB 9)
43Next, they noted a history given to sports physician, Dr Timothy Wood, examining for the relevant WorkCover authority, describing her wrist, as at March 2012, as being “on fire inside” and stating that she had pain “up into the shoulder blade involving the whole arm” (DACB 24), with her condition becoming worse some five years after the 2007 injury. Dr Wood noted that this injury, according to Ms Prebble, restricted her to gardening with her left hand and preventing her from engaging in darts championship competitions, being restricted in hanging out the clothes and being unable to vacuum, make beds or lift a heavy kettle (DACB 24). The doctor recorded her medication regime in 2012 as follows:
“She is currently on 10mg norspan patches weekly . She has just started oxycontin 10mg twice a day. She is just about to stop endone. She tried neurontin but it made her sick . Her pain specialist has written to her local doctor to consider another antiepileptic medication , possibly lyrica. She is on vitamin C tablets and takes up to eight panadol a day. She is also on zoloft, an antidepressant. She has started rubbing Elmore Oil on recently and this does seem to help. She also uses voltaren gel.” (DACB 25)
44He also noted a complaint, “[s]he can only drive locally a maximum of 5 to 10 kilometres” (DACB 25). As at May 2012, orthopaedic medico-legal consultant, Mr Paul Kierce, recorded a complaint from Ms Prebble of “pain radiating up from her forearm into the right shoulder region around the right shoulder blade”, together with complaints of inability to grate cheese, mash potato, hang up clothes, lift a kettle or do up zips on her jeans (DACB 242).
45Next, they noted complaints made to consultant psychiatrist, Associate Professor Peter Doherty in February 2013. The Associate Professor recorded that Ms Prebble “said the pain is from her fingertips and up to her shoulder blade” (DACB 32). He also noted that she told him “her sleep is awful”, extending to only three or four hours sleep per night and that her pain had “gotten worse over the past 12 months” (DACB 32).
46The Associate Professor noted on the same page of his report that, as at 2013, Ms Prebble “continues to take oxycontin medication, 15mg or 20mg up to three times per day” (DACB 32), uses a Norspan patch, takes up to six Panadol Osteo per day, and also takes other medication including Endone.
47Next, they referred to histories given to Dr David Ho, once again, assessing for the WorkCover claims agent, who reported on an examination conducted on 3 July 2013, that Ms Prebble complained of a “constant ache or pain in her right wrist with sharp pain radiating up her elbow to her shoulder blade” (DACB 62). He noted the same general medication regime as recorded by Associate Professor Doherty (DACB 61).
48Next, they referred to the clinical notes taken from the Tristar Medical Group, which provided Ms Prebble’s treating general practitioners (DACB 166-76), recording the same heavy-duty pain relief medication noted in other histories, complaints of agony and excruciating pain (DACB 167 and 171), complaints of sleep disturbance and worsening pain as of October 2013 (DACB 172) and chronic pain on 24 June 2014 (DACB 176).
49Mr Stanley and Mr Storey contrasted this with the history recorded by Dr Menz at DACB 83, where Dr Menz recorded Ms Prebble as saying: “[p]rior to the [referring to the subject transport accident 23 November 2017] she said she had had no problems with her right shoulder” (DACB 83), and her affidavit in support of this application conceded that she had suffered from back pain, but continuing, “I certainly never had pain in my right shoulder and indeed I have never experienced pain such as the pain I experience now in the past” (PCB 14).
50They also noted that the various complaints of pain and restrictions attributed in the plaintiff’s affidavits in this proceeding to the 2017 transport accident as being pain and restrictions only post-dating that accident, are to be found complained of in the histories to earlier assessing practitioners under the WorkCover regime and attributed to earlier injuries in 2007 and 2014. Mr Brett KC and Mr Pierorazio, in their closing submissions, implicitly accepting the principles stated by Brooking J in the Palmer Tube case, said Ms Prebble’s credit, as revealed during her cross-examination, should be regarded as good. They noted that she readily conceded the matters to which she was taken in cross-examination and, while not professing a distinct memory of the histories given to doctors over recent decades, she conceded that, if the doctor had recorded a particular complaint or history, this was likely what she or he had been told. (T85, L23 ꟷ T86, L2). Turning to Ms Prebble’s written case, he said:
“The other aspect is in respect of her affidavits. What we'd say about those is this. First of all, Your Honour would of course be familiar with how affidavits are prepared. They're done by question and answer from a legal practitioner generally, and then the legal practitioner puts them in a certain form. That doesn't excuse anything that's clearly false, and I don't say that there is anything that's clearly false, but what I do say is that it is human nature for a person to look back to the pre-injury period and see it in a rosier light than perhaps it actually was.
That's human nature. It's not deliberate fibbing. It's the vagaries of how people live and how people recollect their lives. And that's really what it boils down to with the complaints about the affidavit material, that she was seeing things as much rosier than the clinical notes clearly demonstrate. She obviously had substantial problems.” (T86, L3-20)
51Turning to the clinical notes from Ms Prebble’s general practice clinic, they said:
“… Your Honour cares to examine them, you’ll see that I think there is no mention of arm pain after, I think, 2015, and it’s actually very infrequent between 2013 and 2015. There's reference to it, but in a much less marked manner than there had been prior to then, all of which is consistent with someone who had a chronic pain disorder, which, by getting her mind off it, by getting her arm back into use, has substantially improved. But she's never said, even to her credit, she's never said it 100 per cent improved. She said it got to 80 per cent.” (T89, L16-26)
52In my view, this makes altogether too light of the issue of credit. The affidavits, after all, were sworn. Ms Prebble is not a graduate, nor does she have any legal qualifications, nevertheless, the concept of the solemnity of the affirmation upon an affidavit is well understood. There was no suggestion she suffers any cognitive impairment. Understandably, and candidly, she said that she had seen so many doctors over the decades that she did not pretend to recollect in detail, or perhaps at all, each individual consultation or assessment. Granted again that the language used in affidavits is mediated by the solicitor preparing them and having them affirmed so that the words are not directly those of the deponent, it is reasonable to depose that deponents who are fluent in the English language and not subject to cognitive impairment, well understand, or have the means to well understand the contents of affidavits which they swear or affirm. Without necessarily concluding that the affidavit material or indeed histories given to doctors included any blatant lies, they were somewhat uncandid in their nondisclosure of manifold injury and impairment issues from the past. I accept that Ms Prebble’s viva voce evidence should be regarded as candid, nevertheless, the issues which I have described mean that her case as a whole must be treated with a degree of scepticism.
53One single view of the entire corpus of the material placed before the compensation authorities by Ms Prebble and those acting for her in the last two decades is that she seeks to emphasise and perhaps exaggerate the consequences of the incident, then the subject of the compensation claim, and ignore and diminish all other factors and, in the present case, consciously ignored or supressed references to many of the same pain and restrictions which were suffered before the 2017 transport accident. I accept, however, that that would be an unduly harsh and unfair view of these matters.
54Ms Prebble should be taken at her word insofar as she has described pain and restrictions. These pains and restrictions should be regarded as being genuinely suffered by her. The question, however, is one of causation, which is an important fundamental and legitimate concern in applications such as this, as explained by the Court of Appeal in the quoted passage from Bezzina’s case. There are multiple references in the general practice clinical notes to “chronic pain syndrome” or “pain syndrome”. Ms Prebble conceded, having had multiple references to pain specialists and having attended a course in pain management. In his report to the WorkCover insurer dated 23 May 2013, orthopaedic consultant, Mr Paul Kierce, under the heading “Diagnoses”, said:
“Overall following the extraordinary physical reaction to examination I have to say that I now am of the opinion that [Ms Prebble] is suffering from a chronic pain disorder and needs assessment by a psychiatrist.” (DACB 245)
55As appears from the passages quoted above, Ms Prebble’s counsel concede that, at least in the past and perhaps in the present, she suffers from a chronic pain syndrome. Mr Brett KC and Mr Pierorazio said that defendant’s counsel seemed to be implying that a chronic pain disorder
“… is something that exists in a vacuum, that you just have chronic pain, and that’s what she’s always had, and we don’t understand that submission … Chronic pain disorders, at least in our experience as a barrister, would appear to be something that attaches to a particular part of the body, usually consequent upon an injury, and can persist and sometimes can wane over time.” (T89, L30 ꟷ T90, L7)
56They continued by saying that the existence of a chronic pain disorder and the long history of the use of opioids might create a hypersensitivity to pain representing the classic “eggshell skull” attracting the principle that a defendant must take an injured plaintiff as he, she, or it, finds him or her (T91). I am conscious that we have heard no expert evidence on the nature of Chronic Pain Disorder and the Court of Appeal has said that it is wrong to extract statements about particular disorders, even from the appellate decision, as if they are legal principles or precedents which could be acted upon. On the court’s view, each individual case must be decided on its own evidence (Jovceva v Transport Accident Commission [2019] VSCA 105, [108]).
57There was no expert evidence as to the nature of a chronic pain syndrome or disorder. I have already quoted Mr Brett KC and Mr Pierorazio’s contention that a chronic pain disorder “attaches to a particular part of the body” and does not exist in a vacuum, and that would suggest that a chronic pain syndrome relative, say, to the left foot, would be a different disorder from a chronic pain syndrome manifested by pain in the right shoulder. It would seem from the strictures of the Court of Appeal that it would be wrong for me to consider that a chronic pain syndrome was psychologically or psychiatrically driven and therefore properly to be considered under paragraph (c) of the definition of serious injury, rather than paragraph (a), as the present application is framed. It would therefore not be a proper disposition consistent with the Court of Appeal’s views for me to dispose of this matter based upon a view that, consistently, with extensive medical opinion and referrals to pain specialists, Ms Prebble suffers a chronic pain syndrome and the fate of her application should depend upon forming a view as to the nature of a chronic pain syndrome.
58In these circumstances, a more appropriate mode of disposition is to focus upon the consequences which are said to support a finding of serious injury and to judge those consequences by reference to the traditional “but for” tests of causation considering the counterfactual as to what Ms Prebble’s condition would be had she not been involved in this transport accident. This is consistent with the analysis approved by the Court of Appeal in Bezzina’s case.
59I accept the contentions advanced on behalf of the Commission that the various consequences said to flow from the transport accident were already established before its occurrence and had previously been attributed to other compensable injuries. Since 2007, as the quoted material indicates, Ms Prebble had been on “heavy duty” pain relief, including opiates such as OxyContin and Endone. Repeated attempts to wean her off or minimise her consumption of these drugs over the years have approved unavailing. This consideration, in itself, indicates that even in the absence of the transport accident, for whatever reason, Ms Prebble was suffering from continuing and intractable pain. The year prior to the transport accident, at an attendance upon Dr Shepherd Chifura, general practitioner, the doctor recorded that, on 11 February 2016, being seen for review, Ms Prebble complained of “sleepless nights. 3 days just lying on bed” (DACB 206) and being on “OxyContin CR 10mg 1 b.d” prescription was printed (DACB 206-7). On 7 April 2016, Dr Chifura took a history that Ms Prebble “came feeling terrible. severe low back pain. radiating to right leg. unable to sleep at night. -has been using voltaren rub. previously on Targin 40mg BD. -O/e- unwell. in pain.” A prescription for OxyContin was printed (DACB 211-212). Dr Chifura recorded, on 28 April 2016, “[c]hronic pain syndrome. pt reports constant back pain especially last night. had to stay on the couch for long time. -also sitting on the car (sic) for long periods of time” (DACB 212). On 1 September 2017, Dr Sarkar recorded inter alia: “she is not able to work because of back pain she also has had depression does not feel well” (DACB 229). On 12 October 2017, prescriptions were provided for Endone and OxyContin. On 13 November 2017, that is, just before the transport accident, Ms Prebble attended Dr Sarkar, “complaining of severe pain in the back legs and arms diagnosed woth (sic) chronic pain, prolapsed disc” (DACB 231). On 21 November 2017, that is, immediately before the transport accident, Ms Prebble attended Dr Sarkar complaining of “back pain, not able to work can not sit more than 10-15 minutes hard to drive the car constant back pain” (DACB 232).
60As Mr Stanley and Mr Storey, counsel for the defendant, observed as part of the assessment process for the WorkCover claim arising out of the 2014 fall in the coolroom of the supermarket, Ms Prebble underwent medico-legal assessment from two surgeons, Messrs Sharp and Douglas Gardiner. Mr Gardiner carried out his assessment at the request of Ms Prebble’s solicitors, which Mr Gardiner provided by way of a letter to the solicitors dated 22 January 2016. Mr Gardiner reported:
“Ms Pebble has been particularly troubled by sudden severe episodes of pain causing her to be unable to move. These lasted for approximately 30 minutes and were severe enough to cause her to cry. The pain was in the low back and extended down into the left lower extremity, accompanied by significant paraesthesia and numbness in the left leg.” (DACB 75)
61On the same page of the report, he referred to the same range of heavy-duty pain-relief medication which Ms Prebble still takes. He continued:
“Ms Prebble told me that she experiences chronic, variably severe disabling low back and left lower limb pain, accompanied by paraesthesia and numbness extending down to the left foot. She also experiences some radiation upwards from the lumbosacral pine (sic).
…
Ms Prebble told me that sleep is extremely difficult, having tried several mattresses and that she experiences the sudden onset of pain once she gets to sleep, if she rolls over.”
Ms Prebble’s activities of daily living have been severely curtailed. Her 18-year-old daughter now lives with her and performs all of the housework, drives her shopping and pushes the trolley while she is shopping. She is unable to bend over far enough to put on her shoes and therefore needs to wear ‘slip-ons’ or thongs.” (Ibid)
62He recorded that Ms Prebble “drives very rarely and can only do so for approximately 20 minutes, after which she needs to get out of the vehicle and walk around. She also uses a pillow behind her back whilst driving” (Ibid). Mr Gardiner observed that Ms Prebble “undressed with difficulty due to low back pain.” Her spinal movements as to flexion were reduced to 20 degrees (DACB 76).
63Mr Sharp, “a senior consultant surgeon”, carried out a medico-legal assessment at the request of the WorkCover insurer on 23 February 2015, replying with a letter to the insurer of the same date. Mr Sharp diagnosed a “prolapsed L5-S1 intervertebral disc which is probably compressing the right L5 nerve root” (DACB 70). He attributed this to “the incident that occurred at work in October 2014” (DACB 70). Mr Sharp recorded that Ms Prebble has:
“.. constant lower back pain which radiates down her left leg to the inner part of her left foot and the top of her left foot. This radiating pain occurs three to four times per week and may last 15 to 20 minutes at a time” (DACB 68)
64He continued:
“Her lower back pain is worse if she bends or stoops, sits or drives for more than 10 minutes, walks for more than 15 minutes or stands for more than 30 minutes. … .
Her symptoms are decreased when she changes her position or takes her tablets.” (DACB 68)
65The picture which emerges as at 2015-2017, and therefore immediately prior to the transport accident, from Ms Prebble’s treating general practitioners’ clinical notes and the complaints and histories which she has provided to medico-legal assessors, whether instructed by her own solicitors or the WorkCover insurer, is of a woman racked with pain, requiring the strongest possible pain-relief. Her sleep is disturbed by pain, her ability to carry out household chores is radically restricted, with such severe back pain, as described in these sources. It is impossible to believe that she could have played darts at all or, to any extensive degree. Nor, with the restriction which pain from her other injuries imposed, is it credible to believe that prior to this transport accident she would have been able or inclined to travel around, whether driving herself or not, to garage sales, as a piece of recreation. Ms Prebble was already disabled from work by the 2014 fall (see [30] above per Mr Doig).
66These matters are relevant, not to any question of causation relative to Ms Prebble’s right shoulder; they are attributed to an injury to a different body part, namely, the lower back. They are relevant, however, to the question of causation as to the consequences of the 2017 transport accident, which Ms Prebble’s counsel seek to attribute to the 2017 transport accident. If, as these matters indicate, Ms Prebble was already disabled from the various activities in question, her disablement and inability to pursue them in the future cannot be a consequence of the transport accident. In Bezzina’s case, where it will be recalled the Court of Appeal dismissed an appeal from this court’s refusal to make a serious injury finding in favour of Mr Bezzina, at first instance, Judge Cohen [2011] VCC 423, in circumstances where the consequences were alleged to have flowed from the injury to the right arm are found, upon investigation, to have already come to pass by reason of an injury or injuries to other body parts, while accepting that the injury or impairment is “long-term”, it cannot be said that this transport accident is attended by consequences either of pecuniary disadvantage or pain and suffering, and that the injury, by reference to individual consequences or a combination of consequences, could be regarded as “very considerable”.
67The plaintiff’s application is dismissed.
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