Presley v TAC
[2012] VCC 1230
•7 September 2012
| IN THE COUNTY COURT OF VICTORIA AT MILDURA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-12-00846
| KIRSTY PRESLEY | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE BOURKE | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 27 and 28 August 2012 | |
DATE OF JUDGMENT: | 7 September 2012 | |
CASE MAY BE CITED AS: | Presley v TAC | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1230 | |
REASONS FOR JUDGMENT
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SUBJECT – TRANSPORT ACCCIDENT
CATCHWORDS – Transport Accident – serious injury – impairment to the lumbar spine
LEGISLATION CITED – Transport Accident Act 1986, s93
CASES CITED – Richards v Wylie (2000) 1 VR 79; Humphries v Poljak [1992] 2 VR 129; Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33; Mobilio v Balliotis [1998] 3 VR 833; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181.
JUDGMENT – Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Keogh SC with Mr B Anderson | Ryan Legal |
| For the Defendant | Mr W R Middleton SC with Ms A Wood | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 21 April 2008 (“the said date”).
2 Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
3
The definition of “serious injury” relied upon by the plaintiff is under
s93(17)(a) – “a serious long term impairment or loss of a body function”. The body function pursuant to subparagraph (a) relied upon by the plaintiff is the lumbar spine.
4 The enquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
5 The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function: see Richards v Wylie (2000) 1 VR 79.
6 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”?: see Humphries v Poljak [1992] 2 VR 129, at 140-1.
7 The plaintiff relied upon two affidavits and gave viva voce evidence. She also relied on an affidavit sworn ON 5 July 2012 by her husband, Dean. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
8 The plaintiff is presently aged twenty four, having been born in August 1988. She lives with her husband on a farming property fifteen minutes from Manangatang.
9 The plaintiff completed VCE in 2006. During that year, she also worked in the bakery section of Fisher’s Supermarket in Robinvale. She continued working there in 2007 and also obtained a job in March of that year as an orchard hand at Kyndalyn Park Almond Farm (“the farm”) where she was employed by Kyndalyn Park Pty Ltd.
10 The plaintiff was made permanent at the farm in March 2008. Soon after she commenced employment at the farm, the plaintiff stopped working at Fisher’s Supermarket.
11 The plaintiff’s job at the farm as an orchard hand involved tractor driving, helping out with irrigation and general labouring in the orchard.
12 In the year leading up to the said date, the plaintiff was earning approximately $677 gross per week from her work at the farm.
13 The plaintiff deposed that before the said date, she had not suffered from any problems with her lower back and she was physically fit and strong. She had suffered from some left shoulder pain in the year or so before the said date but her left shoulder condition eventually resolved. She was able to manage the strenuous job as an orchard hand.
14 In cross examination, the plaintiff was asked about an attendance with her doctor, Dr Khahil, on 18 February 2007 and being sent by him to Robinvale Hospital following a complaint of low back pain.
15 The plaintiff had no recollection of those attendances when she swore her affidavit, but could recall attending both medical practitioners on that date, when she became aware of the clinical notes to that effect. She remembered being prescribed Naprosyn but could not recall any other medication. She thought she was given an injection in her arm at the Hospital. The plaintiff agreed that her pain then was in the same area as her current pain.
16 The plaintiff said that she had some physiotherapy treatment to her left shoulder, not her back, in October 2007.
17 On the said date, the plaintiff was working at Narcooyia Farm within the farm property. That morning, she repeatedly drove a tractor, a registered vehicle, along a corrugated and bumpy dirt road within the property.
18 The plaintiff was on and off the tractor for about three hours and there were a lot of bumps on the road upon which she was driving. The tractor had a poor seat which did not adequately absorb the bumps in the road and it was uncomfortable and awkward to sit on (“the accident”).
19 When the plaintiff got off the tractor after working for about three hours, her lower back was very sore and she could not walk properly.
20 The plaintiff deposed she had been advised by her solicitors that her WorkCover Claim Form signed on 7 August 2008 and her Transport Accident Commission (“TAC”) Claim Form signed on 19 March 2009 both referred to her hitting a bump in the road.
21 The plaintiff deposed that she could not recall now whether her lower back became sore because the tractor hit a single bump or whether it became progressively sore during the morning when she was operating the tractor and driving over many bumps.
22 However, the plaintiff was sure that before she commenced driving the tractor that morning her lower back was fine, and then, after driving, sitting in an uncomfortable seat and travelling over many bumps in the road, she ended up with a very sore lower back by the time she got off the tractor later that morning.
23 In cross examination, the plaintiff said there was a bar exposed and she could feel it through the padding of the seat.
24 The plaintiff deposed that the day after the accident, another employee at the farm was required to drive the same tractor and he also developed low back pain whilst driving.
25 The plaintiff was cross examined as to the circumstances of the accident and the fact that at times she described suffering injury when hitting a pot hole and at other times she attributed her back pain to driving on the bumpy road.
26 The plaintiff explained her back pain resulted from a combination of hitting a single bump and sitting in the seat for three hours. It was a very bumpy road. When she got out of the tractor her back was sore and she could not walk properly.
27 When asked if anything happened when she was on the tractor, the plaintiff said she could not remember. She was sitting down and filling up with chemicals that morning, twisting and turning. The road was very bumpy.
28 In the Workers’ Compensation form, the plaintiff said she put down “10.00 am on 21 April” as the time of the accident because that was the time she got off the tractor.
29 It was an oversight that she answered “No” to a question on her TAC Claim Form as to any previous back injury. She could not explain why she had answered “Yes” to a question whether she had had four weeks off work for a medical condition prior to the accident.
30 In re examination, the plaintiff confirmed the contents of the Incident Report completed by her on the said date which set out “hit bump on main lane unexpectedly”.
31 When asked about a history to a physiotherapist on 22 August 2008 of nothing in particular happening in the accident and a description of prolonged sitting in the tractor, bending over constantly and lifting heavy object, the plaintiff explained her back was just sore over the three hours on the tractor.
32 The plaintiff went off work the day after the accident. The same day she saw Dr Al-Leelwa at Robinvale District Medical Centre as Dr Lucca, whom she normally saw, must not have been available.
33 Dr Al-Leelwa prescribed Voltaren tablets and anti-inflammatory gel which the plaintiff applied to her lower back.
34 The plaintiff agreed that when she saw Dr Al-Leelwa, she denied trauma, a term she used to describe a massive accident. She did not know whether she told the doctor that her back problem related to driving, and agreed she would have told him it was related to driving the tractor if she thought that was the case. However, she did not know why she did not tell him.
35 The plaintiff deposed that after the accident, she had a week off work due to lower back pain. When she returned to work, she continued to have a lot of problems with her back. Sometimes the pain was stabbing and sometimes it was a dull aching pain. It was aggravated by prolonged sitting or heavy work.
36 In cross examination, the plaintiff denied that after having had a week off work she returned to full time duties. She was on and off work. Sometimes there was a full clearance and at other times she was certified fit for light duties by Dr Lucca.
37 On her return to work, the plaintiff had varied work on scattered duties. Sometimes it was good and sometimes bad. She would see the doctor and he would give her time off and medication.
38 The plaintiff returned to see Dr Al-Leelwa in around the middle of 2008 and was given a prescription for Panadeine.
39 Between around mid 2008 and mid 2009, the plaintiff also took a number of days off work due to flare ups. She was struggling at work just trying to put up with her pain.
40 A few months after the accident, the plaintiff saw Dr Lucca for the first time about her back problem. He arranged a CT scan of her lumbar spine, which was carried out on 31 July 2008, and he also referred her to Mr Jithoo, neurosurgeon, in Mildura.
41 The plaintiff first saw Mr Jithoo, the only specialist to whom she has been referred, in about September 2008. On his advice, the plaintiff underwent a CT guided epidural injection into her lumbar spine in late October 2008 at the Epworth Hospital.
42 In cross examination, the plaintiff explained that the injection just shifted the site of her pain.
43 The plaintiff deposed that in the latter part of 2008, she continued to suffer from a lot of low back pain and was taking a range of prescription painkillers and anti-inflammatory tablets. At various times she was taking Voltaren, Oxycontin, Panadeine Forte and Tramadol. She also had physiotherapy in the second half of 2008 for her low back pain.
44 The plaintiff needed strong painkilling medication to enable her to continue working on the farm but eventually felt she was becoming dependent on those strong medications and she stopped taking them.
45 In cross examination, the plaintiff confirmed that she was concerned about becoming addicted to OxyContin, and she was able to break the cycle. The plaintiff did not enjoy using OxyContin because of the negative side effects, and she just could not control herself, and just was not herself.
46 The plaintiff’s back problem continued in 2009 and on 23 March she underwent a further CT scan of her lower back arranged by Dr Lucca.
47 On 15 June 2009, the plaintiff saw Dr Connor at the Robinvale District Medical Centre. The farm’s WorkCover officer also attended the appointment.
48 When she saw Dr Connor, the plaintiff complained of having a flare up when something went in her back whilst lowering the spray booms. At another consultation in June 2009, she complained of a back twinge and soreness on the left side when she bent over at work.
49 In re examination, the plaintiff said she was told at the attendance with Dr Connor that QBE denied liability. All treatment was stopped, so she was “left alone”.
50 On 19 June 2009, the plaintiff was advised her employment was terminated due to her attitude to work. The week earlier she had taken three or four days off work following the flare up. However, she thought the decision was made as a result of her ongoing low back pain and absences from work from time to time due to flare ups. In cross examination, the plaintiff disagreed that she did not have the right attitude, it was just a reason to sack her.
51 The plaintiff explained she did not have the massage treatment that was suggested to her by her doctor at that time as her employment had been terminated
52 In cross examination, the plaintiff agreed she only attended her general practitioner on one occasion in September 2010 in relation to her back when she was prescribed Mobic. She did not attend at all for her back in 2011. She denied she did not go to the doctor because she did not have pain. She had pain, she just did not see the doctor.
53 The plaintiff agreed that after the cessation of physiotherapy in early 2009 she had had spasmodic and almost non existent treatment. She was not doing exercises because they did not work, but said she was taking a lot of over the counter medication. The plaintiff had one or two physiotherapy attendances this year because her back pain worsened. Her back hurt, so she tried to get some sort of relief.
54 Soon after the plaintiff’s employment at the farm was terminated, she obtained a job with Swan Hill Shire Council (“the Council”) as a home carer. Initially she was working about five hours a week, but gradually built her hours up to approximately fifteen hours per week as of May 2011, when she swore her first affidavit, which she then felt was her limit due to her back pain.
55 The plaintiff deposed in May 2011 that she was continuing to suffer from constant low back pain which was aggravated by prolonged standing, sitting and bending. Her pain was usually confined to her lower back but sometimes she got a feeling of numbness in her feet. She was then taking Panadol for pain relief but tried to take it as infrequently as possible. She had eased off painkillers because she felt she was taking too many of them.
56 The plaintiff’s lower back pain also interfered with her sleep. She was constantly tossing and turning due to the pain in her lower back which often left her feeling tired during the day. In her recent affidavit, the plaintiff confirmed this situation continues. She cannot get comfortable and can only sleep for about four hours straight before being woken by pain. As a result of sleep problems, she often feels tired during the day.
57 The plaintiff also struggles to sit in a car for any length of time and has to take breaks on long car trips with walks outside the car.
58 As a result of the plaintiff’s lower back pain, it is difficult for her to perform housework. She would like to have children and is concerned about how her back pain would affect her during pregnancy and looking after a young child.
59 In cross examination, the plaintiff said she does all the housework, but her husband puts out the rubbish. He helps with the washing. The plaintiff agreed they were the sort of duties that she did in her job.
60 The plaintiff recently deposed that her situation has remained pretty much the same. She has lived with pain for a long time and it has never gone away. She has back pain daily but it varies a lot throughout the day and from day to day. She has good and bad days. When the pain is bad she cannot do much at all and she also finds cold weather makes her pain a lot worse.
61 The plaintiff’s back pain is worse with activity and, in particular, with prolonged sitting or bending over, or lifting anything heavy. She also gets a feeling of pins and needles in her legs.
62 In cross examination, the plaintiff agreed her circumstances had changed. Since the accident, she has married, living on a farm and hoping to have a family. She agreed she socialised a bit and had been on holidays to Fiji and Perth.
63 In re examination, the plaintiff described restrictions on her social life resulting from her back injury. She is no longer able to go shopping or go to the pictures, activities her young friends enjoy locally and in larger regional centres, because of the travel involved.
64 Since 2012 the plaintiff has been seeing Dr Orioye in Manangatang. He prescribes Ibuprofen medication as an anti-inflammatory for her back problems, which the plaintiff takes it on a daily basis. It helps a bit to manage her pain.
65 The plaintiff saw Dr Lucca in July 2012 for a prescription of Panadeine Forte. There are now a couple of tablets left of the box of twenty four. Otherwise, the plaintiff takes the occasional Panadol and over the counter drugs. In the last week she has taken four tablets. She takes one Panadeine Forte whenever she feels sore.
66 The plaintiff has a negative attitude to prescription medication because of fear of addiction. She obtained Panadeine Forte from Dr Lucca because the pain in her lower back was too much.
67 The plaintiff’s back injury has restricted her ability to work and she can no longer perform work as a farm labourer or orchard hand doing the heavier aspects of farming work, such as tractor driving, pruning, lifting chemicals for spraying and drafting sheep. She would not be able to attempt her old job. This situation is devastating for her, both in relation to loss of career and loss of income. She enjoyed working on farms and misses the work. Most of the work in her area around Manangatang involves farm work, so the restrictions are a big loss for her.
68 The plaintiff now works about twenty two hours per week for the Council and is paid $21.66 per hour and 82 cents a kilometre, an amount considerably less than she would be earning if she had a good back and was still doing farm work.
69 In her Council job, the plaintiff attends the houses of elderly and disabled and helps them with housework. She does a lot of the mopping and vacuuming and those activities put a strain on her lower back, which she has to protect at all times. She tries to limit the amount of twisting, turning and bending she engages in. However, at times the work causes her back pain to flare up.
70 The plaintiff believes that she would struggle to work more than these hours. This is the limit of her ability given her back problems. Her back is usually sore after four hours of work and she needs to go home and relax and not do much and lie down if the pain is particularly bad.
71 In examination in chief, the plaintiff described how she presently has twenty clients whom she visits either once a week or once a fortnight. The time she spends at their homes depends on the size of the house, spending two hours on a large house and one hour on a small house.
72 In addition to clients around Manangatang, the plaintiff visits four clients in Robinvale, fifty four kilometres from her home. Another Council worker is giving up her job, so the plaintiff will take on her local clients and no longer do the Robinvale work. She plans to give up the Robinvale work because she does not have the time and she cannot do it because of her lower back pain.
73 In re examination, the plaintiff explained she had decided to drop her Robinvale clients and take up local clients, because that local work involved less travel and was easier on her back even though she would earn less money.
74 The plaintiff currently works twenty two hours per week spread over the week days. Her longest working day is from 9.00 am until about 4.00 pm, including driving. She is paid for driving to clients at the same rate as she is paid for cleaning. She claims car expenses as a tax deduction, and agreed all in all, her car produced an income of about $9,000 when deductions are taken into account.
75 The plaintiff confirmed that she started the Certificate III course in Home and Community Care at Swan Hill TAFE earlier this year, and hoped to finish it by the end of the year. She attends TAFE once a month for three hours.
76 The course is computer driven, and involves reading. The plaintiff does on average about ten hours of study per week at home depending upon the course reading requirements.
77 The Council requires the plaintiff undertake this training, which involves learning how to shower patients and attend to their personal care. The plaintiff did not think she would be able to lift clients and be able to work as a carer because of her low back pain.
78 The plaintiff confirmed this situation in re examination, adding that she would also have problems dressing clients and doing other tasks that involved a lot of bending and kneeling. It was upsetting for her that she cannot really do much. It is financially important for her to work and earn money. There was more work available and she would be working more hours if not for her back pain.
79 In cross examination, the plaintiff explained childcare was not an ambition before the accident, but was so afterwards. She did not know whether she was always going to be doing farm work. Her ambitions for work prior to the accident were just to work in whatever job she could find.
80 The plaintiff’s back injury has also affected her ability to help out on the family farm run by her husband and his family. She avoids farm work because it aggravates back problems. She tried to drive a tractor once during 2009 but it was too much for her back and she had to stop.
81 In examination in chief, the plaintiff confirmed that before the accident, she did some farm work but does not do it now because of her lower back.
82 In cross examination, the plaintiff was asked about her level of activity on the farm after the accident.
83 Since that time, the plaintiff has shifted vehicles at harvest time from one paddock to another. She received no payment for any work on the farm. She probably had worked five hours in total on the farm since the accident.
84 The plaintiff also helped getting sheep into the shed after they were already penned. She has probably done that about six times for an hour and a half since the accident. She does not drive into town to pick up provisions or equipment. She will sometimes drive three minutes or so to pick up her father in law from a paddock on the property.
85 In re examination, the plaintiff said that she was doing about the same work on the farm now as before the accident.
Lay Evidence
86 The plaintiff’s husband, Dean, swore an affidavit on 5 July 2012.
87 Dean has known the plaintiff since 2006 and they married in October 2010.
88 Dean deposed the plaintiff’s back injury has had a big impact upon her and she has not been the same since. He can remember the accident clearly as he was working on the farm next door.
89 Before the accident, the plaintiff used to get out and around and was lively and healthy. Since then, she did not do as much as she used to. She is more withdrawn and spends more time inside the house. At times she struggles to get out of the car, get out of bed or off the couch. Her back is clearly not as flexible as it used to be and she is always complaining about it and he often hears her moaning and groaning about her pain.
90 The plaintiff cannot stand at the sink for very long when she is doing the dishes. She complains of increased pain when she stands and bends over the sink and has to have breaks to get all the washing up done. She pushes through her pain the best she can and tries not to take painkillers but the pain gets too bad and she has to take them.
91 Before her injury, the plaintiff enjoyed working as an orchard hand and she liked being outdoors. However, since then she has not been able to do farm work. She does a little bit here and there but has restrictions and cannot do the heavier jobs such as lifting drums. She complains about her back after she has been walking for an extended period or standing on her feet for too long. She can no longer do any tractor driving on the farm. The plaintiff is disappointed she cannot be more helpful outside and she offers to help on the books instead.
Medical Evidence
92 Dr Lucca from the Robinvale Medical Centre first reported to QBE on 12 September 2008, noting the plaintiff presented after sustaining a lower back injury whilst working as a farmhand.
93 On examination, the plaintiff was suffering from lower back pain that increased significantly with movement. Tasks such as walking appeared to cause great discomfort and pain. Her lower back pain appeared to be caused by severe muscle spasm in the lower lumbar vertebra area.
94 Dr Lucca diagnosed musculoskeletal disorder lumbago contributed to by the plaintiff’s work. He noted that she had been referred to Dr Jithoo and also had physiotherapy. She required Panadeine for pain relief and also the anti‑inflammatory, Voltaren.
95 Dr Lucca noted the plaintiff intended returning to work on 15 September 2008 on limited duties, excluding lifting or push/pull activities.
96 Dr Lucca reported to the Conciliation Service in July 2009. He noted the plaintiff presented after sustaining a low back injury whilst working as a farmhand driving a tractor and hit a bump and subsequently, was unable to walk thereafter without great discomfort and pain.
97 Dr Lucca reported the plaintiff had undergone two CT scans. She required long term analgesia, including opioid analgesics, physiotherapy and was reviewed by Dr Jithoo, who suggested a CT-guided epidural and steroid injection to control her pain.
98 The plaintiff was examined on 15 June 2009 by Dr Connor, Dr Lucca’s partner. He thought the plaintiff had minimal restrictions of movement in the lumbar spine in all directions.
99 Dr Lucca noted the plaintiff had ceased work at the farm at its request and would like to find work in areas such as childcare or healthcare for which she would require retraining.
100 Dr Lucca believed the plaintiff was able to return to work or begin training in her chosen field of childcare or healthcare with the exclusion of heavy lifting or push/pull activities as they could trigger her back spasms. He noted the plaintiff had been advised to seek remedial massage when her back flared up and to continue with regular analgesia.
101 Dr Lucca reported on 16 February 2011 that although the plaintiff sustained minimal injury from driving the tractor, she subsequently now suffers with a Chronic Pain Syndrome in the lower back related to her injury.
102 As a result, Dr Lucca felt the plaintiff was capable of full time work but in a light/moderate lifting capacity and with the exclusion of push/pull activities as this could trigger her back spasms. He felt the plaintiff’s chronic pain was permanent and suggested she may require further re-education or training in seeking suitable employment. He again noted the plaintiff had been advised to seek remedial massage when she had an exacerbation and also to continue with regular analgesia.
103 Dr Lucca reported in October 2011 that he agreed with Mr Jones that, unfortunately, the plaintiff’s situation had been long and ongoing.
104 Dr Lucca thought the plaintiff’s prognosis was not very good, not only for her physical problems but also the mental issues of anxiety and depression associated with the timeframe of her ongoing back pain. He considered she had a fear of trying to go back to the duties she was performing before her back injury, meaning her confidence had been eroded. He thought the plaintiff’s back problem would probably slowly improve in a few years.
105 In Dr Lucca’s view, the plaintiff would be able to perform light duties but no lifting or working on heavy machinery. He thought she would never return to her normal type of job, which included continuous bending, heavy lifting or this type of work for a long period of time.
106 Dr Lucca last examined the plaintiff on 24 July 2012. He then found her condition had remained unchanged. She continued to suffer back pain that was restrictive and progressively painful during her working day.
107 The plaintiff stated she had been trying to manage her pain with Ibuprofen but that had not been successful. Dr Lucca then prescribed Panadeine Forte to assist her with her pain management.
108 Dr Jithoo, neurosurgeon and spinal surgeon, wrote to Dr Lucca in September 2008 thanking him for referring the plaintiff.
109 Dr Jithoo noted the plaintiff was driving a tractor and hit a bump and was unable to walk thereafter and had mainly low back pain which was left sided with no radiation to the limbs. The pain was characterised as severe and stabbing, alternating with an aching sensation. He noted the plaintiff had limited all of her vigorous and moderate activities but had returned to work in the interim.
110 Dr Jithoo noted that review of the CT scan revealed a mild to moderate L5-S1 disc protrusion which did not correlate with the clinical picture of mechanical type back pain.
111 Dr Jithoo advised that he had told the plaintiff to continue with exercises and he would write to WorkCover for approval of a CT guided epidural injection to see if that helped. In his view, the plaintiff was not a surgical candidate but may improve with the combination of exercises and steroid injection.
112 Dr Jithoo reported to the plaintiff’s solicitors in May 2011. He diagnosed a mild to moderate L5-S1 disc protrusion. He noted examination was unremarkable with normal tone, power and reflexes in the lower limbs.
113 Dr Jithoo performed a CT guided epidural steroid injection on 31 October 2008, injecting the L4-5 epidural space.
114 Dr Jithoo advised that he could not express a view on whether the plaintiff was still incapacitated for work because he had not seen her since 2008. He concluded, however, her impairment was organically based and likely to be permanent. He thought the impairment would decrease the plaintiff’s capacity to earn income from her usual occupation and from other suitable employment. He considered the likely prognosis was guarded given the mechanism of injury and the plaintiff’s age at that time.
115 The plaintiff was seen by Vahab Nedaey, physiotherapist, at Robinvale District Health Services for twenty two sessions between 22 August 2008 and 19 February 2009.
116 The plaintiff’s main complaint at her first visit was mechanical low back pain affecting the left side. The physiotherapist noted the CT report also confirmed just L4-5 minimal disc bulge without any protrusion or canal stenosis.
117 Physical examinations revealed difficulty in back extension only. Mobility and walking were fine. The plaintiff rated her pain at eight out of ten, aggravated by prolonged sitting or driving on uneven ground. The twenty-four hour pain behaviour was expected to be worse by the end of the day without disturbing her sleep pattern. The plaintiff was taking Nurofen Plus and there were no previous health issues apart from an old shoulder injury.
118 The plaintiff received treatment, including inferential treatment, ultrasound, mobilisation, back extensors, exercises and manual handling instructions.
119 The return to work program was modified, or light duties, on 8 September 2008 and it was noted the plaintiff did not seem to have any difficulty with that timeframe.
120 It was noted that in spite of the fluctuating nature of the plaintiff’s symptoms and on and off aches, the anatomical impairment confirmed by CT scan would not be expected to be back to normal. The physiotherapist thought driving the tractor as a dominant duty could aggravate the condition. It was considered the plaintiff could be physically capable of occupations that did not involve prolonged sitting or repeated manual handling. As at the last visit, when the plaintiff was carrying out limited hours at work, she reported her pain was five out of ten.
Medico Legal Examinations
121 Mr Thomas Kossmann, orthopaedic surgeon, examined the plaintiff in October 2011.
122 The plaintiff told Mr Kossmann that whilst driving a tractor over a bumpy dirt road for about three hours, her back became very sore.
123 The plaintiff told Mr Kossmann she had pain in the lower back, radiating to her neck and shoulders. She had difficulty sleeping. She could not find a comfortable position. She told Mr Kossmann that before the accident she was fit and healthy. She was then only taking Panadol from time to time.
124 On examination, there was no neurological abnormality. Straight leg raising was bilaterally to eighty degrees. Mr Kossmann diagnosed discogenic pain lumbar spine with disc changes at L4-5 and L5-S1 levels.
125 In Mr Kossmann’s opinion, the plaintiff would very easily suffer from back pain if she engaged in very physical work. He believed that she would suffer from undulating pain in the lower spine in the future and would have good and bad days. He noted her treatment was adequate with exercises, anti-inflammatories and painkillers. He did not expect she would have to undergo surgery at any time soon in the future. However, he could not exclude that she may need surgery at some time in her life; for example, if she suffered from a catastrophic disc prolapse with neurology.
126 Noting that disc bulges were found at L4-5 and L5-S1, Mr Kossmann commented that the plaintiff’s clinical history was compatible with a specific injury, even though she did not have any objective signs of radiculopathy and no loss of structural integrity. He confirmed the diagnosis of discogenic pain in the lumbar spine on the basis of a small disc protrusion at L4-5 and L5-S1 levels.
127 Mr Kossmann noted the plaintiff’s part time work as a carer. He did not expect she would ever return to her pre injury duties working on a farm, which was physically very hard. Also, he thought she would not be able to drive agricultural machines on rough terrain.
128 Mr Kossmann considered the plaintiff’s impairment was organically based, since disc protrusion had been found on the CT scan. He thought the impairment would be permanent and have an effect on the plaintiff’s capacity to earn income from her usual occupation. Furthermore, he thought she would never be able to earn income from any physically strenuous work. He considered her current hours were adequate and doubted she would be able to extend them further.
129 Mr Kossmann re-examined the plaintiff in July 2012. She then reported similar complaints and confirmed her pre accident history. Examination findings were similar, as was the diagnosis.
130 Professor Dennerstein, psychiatrist, examined the plaintiff in December 2011. Professor Dennerstein was given a history of the plaintiff hitting something on the road whilst driving a tractor and when she got off the tractor, she could not walk because of low back pain. The plaintiff continued to have variable low back pain.
131 On mental state examination, Professor Dennerstein found there were no problems with concentration, no evidence of any formal thought disorder, perceptual abnormalities or suicidal ideation. The plaintiff said that sometimes it was stressful when she could not do what she would like to, such as cleaning or getting comfortable at night. The plaintiff said she was sad and tearful about once a month.
132 Professor Dennerstein thought, in association with pain and limitations, the plaintiff had developed a mild Adjustment Disorder with Depression which did not limit her work capacity and would resolve completely if her back condition resolved.
Investigations
133 Dr Lucca organised a CT scan of the plaintiff’s lumbar spine on 31 July 2008.
134 It was reported that at L4-5, there was a minimal annular disc bulge but not disc protrusion or canal stenosis. The exit foraminae were patent.
135 At L5-S1, there was a small posterior central disc protrusion which impinged minimally on the thecal sac. It just touched the S1 nerve roots on both sides as they exited the thecal sac but did not cause any critical mass effect on those structures. There was then no significant central canal stenosis and the L5 nerve roots exited normally above the disc protrusions. No abnormality was seen at the transitional level.
136 Dr Jithoo carried out a CT lumbar injection of the plaintiff’s spine on 31 October 2008, injecting the L4-5 epidural space.
137 Dr Lucca organised a CT scan of the plaintiff’s lumbosacral spine on 23 March 2009. It was reported there was no localised disc prolapse or nerve impingement.
Vocational Evidence
138 A vocational report was prepared by Margaret Leitch of Evidex in August 2012.
139 In Ms Leitch’s opinion, the plaintiff’s current employment placed her at a high risk of injury exacerbation and she was therefore unlikely to sustain that employment in the long term. She concluded that no unrestricted recognised occupation for which the plaintiff was likely to qualify was suitable following her injury and that situation would continue permanently.
140 O’Bree Occupational carried out an initial assessment of the plaintiff in February 2009. It was then noted that on the plaintiff’s return to work medical restrictions were no lifting greater than ten kilograms, no continuous bending and limited tractor driving.
141 At that stage, the plaintiff was taking OxyContin, the anti-inflammatory, Dufluconec, Codeine and Durotram. It was noted that was considered to be quite a potent mix given the diagnosis of lumbar disc protrusion and that liaison would occur further with the general practitioner with regard to any concern he may have regarding that regime.
142 The plaintiff then reported waking at 4.00 am each morning due to pain which she described as a sharp stabbing sensation with an interim ache feeling.
143 It was noted that the plaintiff had been inconsistently attending work duties post injury. She was currently doing light duties. Dr Lucca was then happy for a return to work to be trialled that included some tractor work, but was dubious about the prognosis given the length of time the plaintiff had been complaining of pain.
144 There was a one month progress report on 12 March 2009. Dr Lucca’s restrictions then continued and the plaintiff was performing limited periods of tractor driving, having recently recommenced that task, flushing, block tagging, driving a mule and operating an elevator. It was noted the plaintiff continued to have absences from work. Her duties were described as light and non repetitive in nature and no more demanding than the tasks she would undertake at home, such as light mopping.
145 It was noted the plaintiff continued to verbalise her agreement with the current plan to gradually increase and gently integrate suitable duties to enable her to return to work in her usual role. It was noted, however, the plaintiff continued to complain of pain (in patterns that are often difficult to attribute to work based activity) and was absent from the workplace regularly.
The Plaintiff’s Earnings
Financial Year Ending 30 June 2007 2008 2009 2010 2011 2012 $15,062 $32,909 $35,381 $15,664 $24,141 $45,967
($22,758 salary
$2,796 allowances
$10,413 weekly payments)
The Defendant’s Evidence
Claim Documents
146 The plaintiff signed a Worker’s Injury Claim Form on 7 August 2008 in which she described injury to her lower back, “hit a bump on the main lane on 21 April 2008 at 10 o’clock”. A return to work on full time duties on 5 August 2008 was also noted.
147 On the TAC Claim Form signed by her on 9 March 2009, the plaintiff noted “hit a bump in the road” and when she got out of the tractor she could not walk properly, with pain down her left leg. The accident was said to have occurred on 21 April 2008 at 10.00 am.
148 In answer to a question whether she had required treatment before the accident from a physiotherapist, the plaintiff answered “No”. She answered “Yes” to the question whether she had had a condition causing more than four weeks off work before the accident. On that- form, the plaintiff denied any problems with her lower back condition or pain before the accident.
Medico Legal Examinations
149 Mr Gerald Moran, orthopaedic surgeon, examined the plaintiff on 13 April 2011. The plaintiff told him she hit a bump whilst driving a tractor and experienced low back pain.
150 On physical examination, there was normal lumbar lordosis. Straight leg raising was to ninety degrees bilaterally and lower limb reflexes were normal. There was no wasting.
151 Mr Moran did not view any of the x-rays but noted a report that the CT scan of July 2008 showed minor disc bulging at L4-5 and L5-S1 without any significant nerve root compression. He thought the plaintiff aggravated L4-5 and L5-S1 disc degeneration in the accident.
152 The plaintiff was examined by Mr Dickens, orthopaedic surgeon, in June 2012.
153 The plaintiff told him she was driving a tractor over uneven road for about three hours, as well as twisting whilst driving and lifting some chemicals. After three hours, she stopped to get off the tractor but could not walk because of back pain.
154 The plaintiff told Mr Dickens her current problem was low back pain present at the base of the spine, going across the base of her back to the loin area but was localised in the spine. There was no referred pain to the lower limbs.
155 The plaintiff rated her pain as five out of ten, but worse if she moved or did a lot of lifting or walking. She got pins and needles in her legs if she sat on the floor then had to get up.
156 The plaintiff reported having sustained a muscle tear to her left shoulder in 2007 which was treated with cortisone and improved. Prior to the accident, she had had no back pain.
157 On examination, Mr Dickens noted the plaintiff presented as a very pleasant young woman who was significantly overweight, walking without a limp.
158 The plaintiff’s range of flexion and extension was approximately half normal. Lateral flexion was asymmetrical, more so lateral flexion to the left when compared to the right. Rotation was also symmetrical. The plaintiff was tender at the lumbosacral junction and over both posterior/superior iliac spines and there was no deformity in the spine. Neurology in the lower limbs demonstrated normal reflexes, power and sensation with downgoing plantar response.
159 Mr Dickens was provided with a report of the July 2008 CT scan which showed minimal annular bulge at L4-5 and no disc protrusion and a small postero central disc protrusion at L5-S1 and possibly just impinging on the S1 nerve bilaterally.
160 Mr Dickens noted the March 2009 CT scan again was unremarkable, with no evidence of localised disc protrusion or nerve impingement.
161 Mr Dickens concluded the injuries were a soft tissue injury to the lumbosacral spine with evidence of disc pathology on the investigations. He thought there was no evidence of radiculopathy on clinical assessment.
162 Mr Dickens considered the injuries were consistent with the accident. He noted treatment had been entirely conservative in the form of medications and physiotherapy. He believed that was appropriate but he had some doubts whether physiotherapy had any further place and thought the most significant beneficial therapeutic measure would be for the plaintiff to lose a significant amount of weight.
163 The plaintiff told him that she was able to drive but had to have breaks after two hours. She could walk for thirty minutes, after which she felt significant back pain. She did all the housework but struggled and had assistance from her husband.
164 Mr Dickens certainly did not believe the plaintiff would suffer from engaging in activities of daily living and work. He would not impose any specific restrictions except possibly avoiding activities that caused discomfort, noting that repeated bending and heavy lifting obviously would be contraindicated until the plaintiff made a significant recovery.
165 Mr Dickens thought the plaintiff’s back was going to be a chronic problem unless she did something in terms of self help in losing weight and if that did not occur, he would be very pessimistic about the prospect of any substantial recovery.
166 Mr Dickens noted the plaintiff was coping with her current work situation and he could not see any reason why she could not continue to do that work indefinitely.
167 The plaintiff was examined by Mr Clive Jones, orthopaedic surgeon, at the request of Hall & Wilcox, solicitors on 11 May 2011.
168 Mr Jones noted the plaintiff had been on a tractor for quite a few hours and when she got off at the finish of her shift, she had quite a lot of difficulty walking due to back pain after driving over an area that was rough and bumpy.
169 On examination, the plaintiff described a sharp, stabbing and burning pain in the left buttock which occasionally affected her shoulders and neck. There was no sciatica. She reported she was currently struggling at work and did her tasks slowly but her employer was understanding.
170 On examination, the plaintiff’s weight was excessive at one hundred and ten kilograms.
171 Mr Jones noted physical findings were somewhat contradictory and some signs suggested a functional illness was present.
172 The plaintiff was able to flex to forty five degrees but resisted straight leg raising at thirty degrees bilaterally. She was able to demonstrate a normal slump test. Her ankle reflexes were present. The knee reflexes appeared to be bilaterally reduced.
173 Mr Jones noted a CT scan performed in July 2008 referred to the emergence of a minimal bulge at the L4-5 level and a small posterior central disc protrusion which impinged minimally on the thecal sac at L4-5 and L5-S1 level.
174 Mr Jones concluded findings on examination were somewhat contradictory and there was a suggestion of functional illness behaviour and possible Pain Disorder. Whilst he was unable to review the investigations, he thought there did not appear to be any really major spinal pathology.
175 Mr Jones diagnosed variable levels of low back pain presumably discogenic in origin. He thought impairment would be in the mild to moderate range. He noted disc lesions were slow to resolve and it seemed likely the plaintiff would continue to experience ongoing back pain and employment difficulties. He thought the prognosis was reserved and further treatment needed to be conservative.
176 Mr Jones considered the plaintiff was not incapacitated, noting she was working part time at present. He did not see a situation of a long term permanent impairment for work. He noted the previous offers of suitable employment were out of date but he thought duties with lifting not more than five kilograms and not bending or sitting for more than two consecutive hours probably would not be suitable for the plaintiff as she was struggling with her current housecleaning. He also thought the same considerations applied in terms of tractor driving and extra harvest work.
177 Dr Stern, psychiatrist, saw the plaintiff on 13 April 2011. The plaintiff told him of frustration by her physical restrictions and also that her sleep was disturbed by pain. Having examined the plaintiff, Dr Stern thought she had not sustained a psychiatric injury and there was no current psychiatric disorder.
Lay Evidence
178 Sandra Kitt, who was employed at the farm as a human resource manager, swore an affidavit exhibiting a detailed statement as to the plaintiff’s situation at work both before and after the accident.
179 Ms Kitt confirmed the plaintiff started casual work at the farm on 13 March 2007 and was promoted on 4 March 2008 to permanent orchard hand, Level 2.
180 Ms Kitt confirmed that prior to the accident, the plaintiff was punctual and had not made any complaint regarding any previous illness. She was easy to get along with and there were no performance issues.
181 Ms Kitt noted that the plaintiff reported the accident to Kevin Lunt, second in charge, farm manager, and also to the plaintiff’s farm manager, Brett Mueller, and then reported it to her.
182 The plaintiff was off work until 5 August 2008, when she returned on some restrictions.
183 Mr Mueller telephoned Ms Kitt in about February 2009 and reported the plaintiff was lazy and did not want to return to work. Similar reports were received from other managers who advised that the plaintiff was very tired and reluctant to work. Further, at times the plaintiff was not coherent and did not complete her tasks.
184 As a result of those reports, the farm engaged O’Bree Occupational to facilitate the plaintiff’s return to work duties.
185 The plaintiff complained to Ms Kitt on 25 March 2009 about her current work situation and requested to see Dr Lucca. Ms Kitt noted the plaintiff then had a clearance for full time work with no restrictions.
186 After the accident, the plaintiff’s attendances at work became very irregular, with her missing many shifts.
187 During the course of completing her human resources role, Ms Kitt noted numerous accounts from the Robinvale Chemist for medications and an analysis was done of the plaintiff’s intake, which indicated she was consuming a considerable number of medications. In 147 days, the total medications purchased were 620, not including Voltaren and Panadol.
188 After compiling that information, Ms Kitt and Chris Hogg accompanied the plaintiff to see Dr Lucca, where the plaintiff’s medication was discussed. Dr Lucca had no idea of the amount he had prescribed the plaintiff. He advised he would stop it and send a letter to other doctors in the area.
189 On 10 June 2009, the plaintiff complained of injuring her back whilst getting out of a car at work and completed an incident report.
190 There was an accident incident report on that date in which the plaintiff set out she was getting her work bag out of the ute and she bent over to reach for her bag and her back twinged.
191 On 15 June 2009, Ms Kitt attended the plaintiff’s appointment with Dr Connor. Ms Kitt provided him with a history of the plaintiff’s claim and he said he would not issue any medical certificates with restrictions. He informed Ms Kitt the plaintiff was medically fit to return to work and he believed she should find alternative employment and it was obvious there was nothing physically prohibiting her from filling her role and completing her duties.
192 After that meeting, the plaintiff continued to miss work and take leave without pay. She was transferred to a smaller farm with normal full time duties.
193 As a result of ongoing issues regarding the plaintiff, Ms Kitt discussed the situation with management and it was agreed the plaintiff’s employment be terminated on 19 June 2009.
194 The plaintiff’s employment was terminated by letter dated 19 June 2009 with the reason given being her attitude to work being below the farm’s expectations.
195 There was an incident report dated 21 April 2008 in which an incident was described at 10.00 am on 21 April “working in the orchard. Hit bump on main lane unexpectedly. Lower back pain”.
Overview
196 Whilst counsel for the defendant did not press the question of causation in the present application, reference was made by him to a number of descriptions given by the plaintiff as to the cause of her present back complaint.
197 In this regard, it was submitted that the absence of a frank event or description of a particular set of circumstances told significantly about the nature and extent of the plaintiff’s back condition, particularly in light of her failure depose to an attendance at Robinvale Hospital a year before the accident.
198 However, having taken account all the evidence, I am satisfied that the plaintiff suffered an injury to her back in a transport accident on the said date whilst driving a tractor as a result of hitting a single bump or driving for three hours over rough terrain, or a combination of these occurrences.
199 I accept that the injury to the plaintiff’s back involves her lumbar spine at L4-5 and L5-S1, shown radiologically in July 2008 with pathology in terms of a minimal annular disc bulge at L4-5 and at L5-S1, a small posterior central disc protrusion impinging minimally on the thecal sac.
200 Whilst on the March 2009 MRI there was no evidence of any disc prolapse or nerve impingement, six months earlier Mr Jithoo gave the plaintiff a CT-guided epidural injection at L4-5, suggesting he considered there was an organically based problem at that level.
201 Mr Dickens also concluded there was a discogenic element to the plaintiff’s presentation. Mr Kossmann, who shared a similar view, did not alter his opinion, having been provided with a report of the March 2009 MRI scan.
202 Whilst both Dr Lucca and Professor Dennerstein diagnosed a Chronic Pain Disorder, and Mr Jones thought there was a possible Pain Disorder, the preponderance of the medical evidence is that the plaintiff’s back condition is organically based.
203 In cross examination, it became apparent that the plaintiff had some problems with her back in the year before the accident, although they were not mentioned in her affidavit. The plaintiff agreed she had seen her general practitioner, who referred her to Robinvale Hospital on 18 February 2007.
204 Whilst it is somewhat difficult to understand how she could not recall attending Hospital, there is no evidence that the plaintiff required any treatment beyond that day or experienced any ongoing problems leading up to the accident.
205 In the absence of any pre existing back condition, the issue for determination is whether any impairment relating to the plaintiff’s lumbar injury is serious and long term.
206 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon (2010) VSCA 69 at paragraph 12
“….. the weight to be attached to the plaintiff’s account of the pain and suffering experience will of course depend upon an assessment of the plaintiff’s credibility.”
207 Although she did not depose to the transient problem with her back in February 2007, I found the plaintiff to a truthful witness. There was no evidence challenging the level of her complaints of pain and restriction. Further, the plaintiff’s husband was not cross examined.
208 There was no surveillance film or suggestion of exaggeration or inconsistencies on examination save for Mr Jones, who found discrepancies in SLR on formal examination compared to casual observation. However, despite these observations, Mr Jones did not question the genuineness of the plaintiff’s complaints.
209 At the time of the accident, the plaintiff was a very young woman, aged just nineteen, in her first year out of school.
210 In Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181, Ashley JA and Beach AJA, at paragraph 43, discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.
211 The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, they considered it relevant to look at the likely period for which those consequences would be experienced. It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.
212 I accept that since the accident, the plaintiff has suffered ongoing lower back pain that varies in intensity and increases with activity.
213 As a result of her condition, the plaintiff has problems with prolonged sitting and standing and is unable to bend and lift to her pre accident capacity.
214 Since the accident, the plaintiff’s lower back pain has interfered with her sleep. During the night she gets only about four hours straight sleep and the rest of the time she is tossing and turning, trying to get comfortable, and wakes the next morning still feeling tired.
215 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon (supra) at paragraph 45:
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep. … [The plaintiff] often experiences multiple painful awakenings in the course of a single night. As … counsel submitted, that is properly to be regarded as constituting a very considerable diminution in … [the plaintiff’s] enjoyment of life, to say nothing of the effect which sleep deprivation must have on his ability to enjoy the activities of daily life.”
216 In the first year or so after the accident, the plaintiff required heavy painkilling medication and underwent an epidural from Mr Jithoo in September 2008 with little relief.
217 By early 2009, the plaintiff had developed a problem with painkilling medication, taking excessive dosages, as noted by Ms Kitt in her affidavit. In about mid 2009, the plaintiff addressed this problem and since then she has taken less medication.
218 Of recent times, the plaintiff has taken overt the counter medication such as Nurofen due to her concerns at becoming addicted. However, in July 2012, she was prescribed Panadeine Forte when there was an increase in her pain.
219 The plaintiff underwent an intensive period of physiotherapy until February 2009. However, that treatment gave her only short term relief. She had two further attendances earlier this year. The plaintiff explained that she had not persisted with the exercises suggested to her by the physiotherapist as they gave her little assistance.
220 Whilst there has been only the one attendance on a general practitioner in the last two years when the plaintiff saw Dr Lucca in July 2012 and was prescribed Panadeine Forte, the plaintiff still suffers pain, however, she just does not go to the doctor. Further, it became apparent in cross examination that in mid 2009, QBE stopped paying for the plaintiff’s medical expenses and, as she described, she was “left all alone”.
221 In my view, the most significant consequence of the plaintiff’s back condition is its effect on her work capacity.
222 Whilst the plaintiff obtained VCE, her limited work experience before the accident was in the supermarket and then her work as an orchard hand on the farm.
223 I accept that before the accident, the plaintiff did not have any particular career aspirations in childcare or any other field. She enjoyed outdoor work and was prepared to work in whatever job was available so she could earn a living.
224 The plaintiff was a hardworking, punctual young woman with no work performance issues before the accident, as Ms Kitt confirmed. Thereafter however, the plaintiff’s work performance markedly deteriorated, with complaints made by her supervisors of reluctance to work, laziness and tiredness, at times being incoherent, and irregular attendance.
225 Although her employment was terminated in June 2009, I accept that the plaintiff was having significant back problems and difficulties coping with her back at that time, with two attendances that month for work related back pain, after which she was then sacked.
226 The two vocational reports from O’Bree Occupational set out the problems the plaintiff experienced following her return to work on 5 August 2008 on restricted duties.
227 As of the second O’Bree Occupational report of March 2009, the plaintiff was still doing modified duties. She was having absences from work, the duties were light and non repetitive and no more demanding than housework.
228 No doctor now says the plaintiff has a capacity for unrestricted heavy work.
229 Mr Kossmann and Dr Lucca agreed that the plaintiff had a capacity for light work and that her back condition would rule her out of farm work and other similar duties. Further, Mr Dickens thought that the plaintiff should avoid activities that caused her discomfort. Mr Jones did not consider farm work was suitable for the plaintiff as she was struggling with her housecleaning employment.
230 I accept that the plaintiff has problems working twenty two hours per week in her present job, having to take care whilst performing cleaning duties at the homes of her elderly clients and needing to rest at the end of a working day.
231 I accept there is further work available to the plaintiff which she would do if she had the capacity as she is keen to earn as much as she can.
232 The plaintiff intends to give up her Robinvale work even though it is more lucrative, because of the back problems she experiences driving to visit those clients.
233 I accept the plaintiff’s problems with her work duties will increase when she is required to take on the personal care work for which she is currently being trained.
234 In addition to problems performing her work duties and the associated driving, since the accident, the plaintiff is less active socially and no longer enjoys going to pictures or shopping in regional centres with her friends to the same extent she did pre accident.
235 When considering the seriousness of the plaintiff’s physical impairment, I am also permitted to take into account the expected mental consequences of her injury: see Winneke P in Richards v Wylie (2000) 1 VR 79.
236 I accept that the plaintiff is depressed and frustrated as a result of her pain and her limitations, a situation described by Professor Dennerstein as one of a Mild Adjustment Disorder with depression. Further, the plaintiff’s husband confirmed the plaintiff’s disappointment at not being able to engage in farm work and go out as much as she did prior to the accident.
237 Taking into account all of the evidence, I am satisfied that the plaintiff has a serious injury in relation to her lumbar spine. Further, I am satisfied that her impairment is long term, as it has persisted for in excess of four years without any significant improvement.
238 Accordingly, I grant the plaintiff leave to bring proceedings for damages in relation to the transport accident.
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