Prestwich v Transport Accident Commission
[2013] VCC 405
•25 March 2013
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-03471
| HELEN BEVERLEY PRESTWICH | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 5 February 2013 | |
DATE OF JUDGMENT: | 25 March 2013 | |
CASE MAY BE CITED AS: | Prestwich v Transport Accident Commission | |
| MEDIUM NEUTRAL CITATION: [First Revision 17 April 2013] | [2013] VCC 405 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Impairment of cervical spine – whiplash injury – whether or not consequences are serious
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited: Richards v Wylie (2000) 1 VR 79; Humphries v Poljak [1992] 2 VR 129
Judgment: Plaintiff granted leave to bring proceedings for damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T J Seccull | Slater & Gordon |
| For the Defendant | Mr P B Jens with Mr S A Smith | Solicitors for the Transport Accident Commission |
HIS HONOUR:
1 This is an application brought by Originating Motion dated 19 July 2012. The plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages from injuries suffered by her arising out of a transport accident which occurred on 21 January 2007 (“the said date”).
2 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The definition of “serious injury” relied upon by the plaintiff is set out under s93(17):
“(a) Serious long-term impairment or loss of a body function.”
4 The body function relied upon by the plaintiff in this application is the impairment to the cervical spine.
5 The enquiry under s93(17)(a) of the Act 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.
6 The serious injury defined in ss(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 the body function.[1]
[1]Richards v Wylie (2000) 1 VR 79
7 In forming a judgment as to whether the consequences and the injury are “serious”, the question to be asked is:
“… can the injury [or disfigurement], when judged by comparison with other cases in the range of possible impairments … be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”[2]
[2] Humphries & Anor v Poljak [1992] 2 VR 129
8 The plaintiff has sworn and relied upon two affidavits, dated 22 May 2012 and 10 December 2012. The plaintiff was cross-examined during the course of the application.
9 The plaintiff relied upon an affidavit sworn by her husband, Colin Prestwich, dated 8 January 2013. The plaintiff also relied upon an affidavit of Faye Chalmers, sworn 17 January 2013. Ms Chalmers was a fellow worker of the plaintiff.
10 In addition to the sworn affidavits and sworn evidence, the plaintiff relied upon medical reports and other materials which were tendered during the course of the proceeding. I have read all of the tendered medical material. The defendant did not require any of the plaintiff’s medical witnesses for cross-examination.
11 The tendered evidence in this proceeding was as follows:
· Exhibit A – the Plaintiff’s Court Book (“PCB”)
· Exhibit B – three photographs referred to by the plaintiff in her evidence displaying her craftwork
· Exhibit C – letter from Slater & Gordon dated 21 December 2012 to the Transport Accident Commission.
12 The defendant did not tender any material in this application. The defendant had filed and made available to me during the course of the hearing a Defendant’s Court Book which included reports from a Dr Mary Wyatt, dated 11 October 2009, and Mr Michael Dooley, dated 11 January 2013. The only issue raised in this application by the defendant is that this was what is referred to as a “range” case.
The Plaintiff’s Background
13 The plaintiff was born in 1946. She is now sixty-six years old. She was born in the town of Beaufort and lived there for the first twenty-two years of her life. The plaintiff has lived in and around Ararat since 1980.
14 The plaintiff is a married woman and has two grown-up sons. She lives with her husband in Ararat.[3]
[3]PCB 11
15 She completed her formal education at Year 8. She then commenced work as a sewing machinist and process-worker. Approximately twenty years prior to the time of the hearing she commenced her work as a disability worker/carer. She was employed and worked at what was known as the McGregor Community House in Ararat. The plaintiff, at the time of the transport accident, was working at two of the premises operated by McGregor Community House named Viewpoint Street and Alexandra Avenue.[4] The plaintiff currently works at the Alexandra Avenue residence of the McGregor Community House. The plaintiff described her current work as full-time but of a light work nature.
[4]PCB 11
The Transport Accident involving the Plaintiff
16 In her affidavit dated 22 May 2012, the plaintiff stated that:
“On 21 January 2007 I was a passenger in a car being driven by my son which was involved in a transport accident. I was seated in the back seat on the driver side and was wearing a seatbelt. We were situated on the Western Highway heading towards Ararat and were approximately 1km west from Buangor when we stopped on the highway because there was a tree which was on the road over our lane and across into the lane of the oncoming traffic. Due to the fact that the tree was in our path we came to a complete stop. Shortly after doing so we were hit from behind by another car which was travelling at a significant speed. Our car was badly damaged as a result of the accident.”[5]
[5]PCB 8-9
17 The plaintiff was taken from the scene of the accident by ambulance to the Ararat Hospital. At that time, she was experiencing neck and lower back pain. In this application, the plaintiff makes no claim for injury to her lower back.
The Plaintiff’s Medical Treatment
18 After the plaintiff was transported to the Ararat Hospital from the scene of the transport accident, she was discharged from the hospital after observation and prescription of Panadeine for her pain. The plaintiff was discharged to the care of Dr Pretorius, general practitioner.
19 On 25 January 2007, the plaintiff returned to be examined by Dr Pretorius. At that time, the general practitioner sought x-rays and prescribed Panadeine Forte for pain control for the plaintiff. Dr Pretorius originally recommended physiotherapy treatment for the plaintiff, but this failed to alleviate her symptoms.[6]
[6]PCB 9
20 On 8 June 2007, Dr Pretorius referred the plaintiff to Dr John King. An MRI scan was performed of the plaintiff’s cervical spine on 20 July 2007. The conclusion of the MRI report is as follows:
“Lower cervical facet joint osteoarthritis on the left. Minor multilevel disc desiccation. The cause for the patient’s symptoms has not been identified.”[7]
[7]PCB 34
21 At that time the plaintiff was complaining of whiplash injury and paraesthesia into both hands. The MRI examination had followed a CT scan of the cervical spine. The symptoms at that time were significant headaches and pain in the neck. The conclusion from the CT scan:
“Minor degenerative changes to the cervical region. No evidence of a contusion or other pathology within the brain.”[8]
[8]PCB 33
22 At the time the plaintiff saw Dr John King, neurologist, her medication regime at that stage was Prexige, 200 milligrams daily; Omeprazole, 20 milligrams daily; Norflex, 100 milligrams 1 bd; Effexor XR, 75 milligrams daily, and Endep, 10 milligrams nocte. Mr King found, on examination, that the neck movements of the plaintiff were quite restricted.[9] Mr King’s opinion was that the plaintiff had suffered a post-whiplash syndrome. He noted that it was possible that she would suffer from minor acceleration of osteoarthritic changes in the neck in the future. In Dr King’s opinion, there were no pre-existing conditions related to the whiplash injury.[10]
[9]PCB 77
[10]PCB 78
23 The plaintiff was then referred to the Metro Spinal Clinic on 27 November 2008.[11] Dr Robert Gassin of the Metro Spinal Clinic saw the plaintiff on 15 January 2009. At the time Dr Gassin saw the plaintiff, she was on medications, including Amitriptyline, Venlafaxine XR, Norflex, Celecoxib and Omeprasole.[12] The plaintiff was complaining of left-sided neck pain radiating to left shoulder and arm.
[11]PCB 9
[12]PCB 83
24 On 10 July 2009, the plaintiff underwent a day procedure, which is referred to as a left TON and C3 and C4 medial branch block performed by Dr Paul Verrills. The plaintiff was also treated by radio-frequency neurotomy[13] of the C2-3 and C3-4 facet joint.
[13]PCB 56-57
25 The plaintiff was referred by her general practitioner to the Chronic Pain Clinic at the Ballarat Health Services. The plaintiff attended at the Chronic Pain Clinic, which is conducted and supervised by Dr Malcolm Hogg, on 23 March 2011. The plaintiff continues to be treated at the Ballarat Health Services Pain Management Clinic. This treatment is in combination with the support and assistance offered by Dr Pretorius, the plaintiff’s general practitioner. The plaintiff continues to be treated with medications. The plaintiff’s present medication regime is Celebrex, 200 milligrams; Venlafaxine, 150 milligrams; Endep, 25 milligrams; Omeprazole, 20 milligrams; Norspan patches, 10 micrograms per hour, and Panadol Osteo, 6 to 8 tablets per day.[14]
[14]PCB 16, paragraph 2
Medical Opinions
Dr Pieter Pretorius, general practitioner
26 Dr Pretorius is the plaintiff’s general practitioner. In his report dated 31 December 2012, Dr Pretorius gave a diagnosis of whiplash injury to the plaintiff’s neck. He has referred the plaintiff to Dr King, neurologist, and to the Metro Spinal Clinic for treatment. In that report, he confirms that he has referred the plaintiff to pain specialists at Ballarat Health Services. He included in his report all the reports received from those practitioners.[15]
[15]PCB 76A
27 In his notations to the consultation dated 18 June 2012, Dr Pretorius stated:
“My recommended treatment is to just continue as we are now. She continues to see the pain specialist.
I think she will always struggle with her neck and the pain it causes.
She is able to work but will continue to struggle with the pain.”[16]
[16]PCB 68
28 Dr Pretorius then set out the medications the plaintiff was currently prescribed and is currently taking at the time of the application. Relevantly, those medications include:
“Amitriptyline 25mg Tablet 1 Before bed
Celebrex 200mg Capsule 1 Before bed after meals
Efexor XR 150 mg Capsule 1 In the morning
Norflex 100mg Capsule 1 Twice a day
Omeprazole 20 mg Tablet 1 Daily As directed
Panadol Osteo 665mg Tablet 2 Three times a day.”[17]
[17]PCB 68
Dr John King, neurologist
29 Dr King examined the plaintiff on 10 July 2007. On examination, Dr King noted that the plaintiff’s neck movements were quite restricted but in the limbs, the tone, power, reflexes, coordination and sensation were normal.[18]
[18]PCB 77
30 Dr King diagnosed the plaintiff with post-whiplash syndrome. In Dr King’s opinion, the plaintiff’s prognosis was good; however, he was of the view that the plaintiff could suffer minor acceleration of osteoarthritic changes in the neck in the future. He noted that there were no pre-existing conditions related to the whiplash injury. Dr King has not seen the plaintiff since 2007.
Dr Paul Verrills
31 Dr Paul Verrills performed a third occipital nerve and C3-4 radio-frequency neurotomy, treating the C2-3 and C3-4 joints, on 10 July 2009. Dr Verrills’ opinion was that whilst the plaintiff presented as a technically difficult case, he thought the denervation operation would give the plaintiff good pain relief for approximately twelve to eighteen months.[19]
[19]PCB 56
32 The plaintiff, in her evidence, stated that as a result of the denervation, she thought that she received pain relief for approximately six months.[20] I note that the plaintiff had previously given a history to treating medical practitioners that she had had pain relief from the denervation operation for approximately nine to ten months. I conclude that the denervation operation provided the plaintiff with short-term pain relief for the symptoms to her neck.
[20]Transcript (“T”) 48, L17
Dr Robert Gassin, pain specialist
33 Dr Robert Gassin prepared a report dated 24 March 2012. In his report, he noted that he had seen the plaintiff on one occasion only, being 15 January 2009. This examination preceded the radio-frequency neurotomy performed on the plaintiff by Dr Paul Verrills, his colleague. At the time of his examination, he diagnosed the plaintiff with a chronic whiplash injury following the transport accident in January 2007. He offered the opinion that a radio-frequency neurotomy would be required every twelve to eighteen months in order to maintain control of the pain to the plaintiff’s neck.[21]
[21]PCB 84
Mr David Brownbill, neurosurgeon
34 Mr Brownbill prepared two reports in respect of this application dated 14 June 2011 and 2 August 2012. On 14 June 2011, Mr Brownbill noted that the neck pain was situated posteriorally to the left. He noted that the pain was present most of the time and occurs with physical activities, such as housework involving vacuuming, using a computer or prolonged sitting in a car. Mr Brownbill also noted on that examination, that the plaintiff was suffering from headaches. In his first report, Mr Brownbill noted that there were restrictions to cervical spine movements. In his opinion, the plaintiff had sustained aggravation of pre-existing asymmetric cervical spine degenerative changes in the described rear-end collision, giving rise to neck pain and, by referral, headaches and intermittent hand paraesthesia. In his opinion, the plaintiff would have some neck pain which will continue in a fluctuating manner indefinitely.[22]
[22]PCB 105
35 In his latter report dated 2 August 2012, Mr Brownbill noted that in respect of the headaches, that they were unchanged. The history he took in respect of the symptoms for neck pain was:
“Situated low to the sides and at the back. It is present all the time, fluctuating severity being worse with physical activity. It has continued unchanged.”[23]
[23]PCB 109
36 Mr Brownbill stated his diagnosis as follows:
“I consider on the information provided that she has sustained aggravation of pre existing asymptomatic cervical spine degenerative changes in the described motor vehicle accident giving rise to the neck pain and by referral headaches and intermittent hand paraesthesia …
It is prudent for her to avoid heavy lifting, forced cervical spine or spinal movements, holding her neck in a fixed position, repeated bending or prolonged standing or sitting.”[24]
[24]PCB 110
37 I conclude that Mr Brownbill accepts the plaintiff’s complaints of pain symptoms in her neck and makes his diagnosis and prognosis based on that history.
Mr Peter Wilde, orthopaedic surgeon
38 Mr Peter Wilde prepared a report dated 31 July 2012 in respect of the plaintiff’s application. Mr Wilde noted that the plaintiff’s main symptoms were neck pain and stiffness. The pain was referred into both shoulders but not down the arms. Mr Wilde noted that the pain is more on the left side than the right side. He took a history from the plaintiff that the activities such as vacuuming, sweeping, mopping floors, reaching to hang out clothes on the clothesline, gardening, knitting and crocheting, driving a car or reversing a car make her neck pain and back pain worse.[25]
[25]PCB 115
39 Mr Wilde noted that:
“The neck pain, however, remains an issue and she continues under the care of Dr. Malcolm Hog (sic) for chronic pain management.
The diagnosis is aggravation of the cervical spondylolisthesis without radiculopathy.
…
The prognosis is guarded, as I expect that she will continue to report troublesome neck pain and stiffness.”[26]
[26]PCB 117
Dr A G Capes, occupational health specialist
40 Dr Capes prepared reports dated 23 June 2011 and 13 November 2012. In his first report, Dr Capes diagnosed the plaintiff with:
“ … aggravation and possible acceleration of cervical and lumbar disc degenerative disease with also aggravation and possible acceleration of cervical facet joint disease.”[27]
[27]PCB 122
41 In his latter report, he confirmed that diagnosis. Dr Capes then went on to make the following comment:
“She has made no improvement on history and on today’s examination since last seen in June 2011, in fact, I think she has probably deteriorated a little going on her cervical spine movements.”[28]
[28]PCB 125
42 He noted that her condition should be considered as being stabilised, although he thought her condition would deteriorate.[29]
[29]PCB 126
Dr Nathan Serry, consultant psychiatrist
43 Dr Nathan Serry prepared two reports in respect to this application, dated 25 August 2011 and 22 November 2012. It is to be noted that the plaintiff was not seeking serious injury certification on the basis of a psychiatric injury. The relevance of the evidence from Dr Serry is confined to what was described by both Mr Seccull and Mr Smith as Richards v Wylie[30] considerations. Dr Serry described the plaintiff as a resilient individual who was coping reasonably well with her accident-related issues. Dr Serry noted that the plaintiff was on anti-depressant medication to deal with her reaction to the physical pain suffered from her neck.[31]
[30](2001) 1 VR 79
[31]PCB 132
44 Dr Serry’s later report noted the plaintiff’s sleeping patterns had improved under the medication. However, he noted that without the medication she slept poorly.
45 In his report dated 22 November 2012, Dr Serry diagnosed the plaintiff as follows:
“Diagnostically, your client would be considered to have a partially resolved chronic adjustment disorder with anxious and depressed mood and with features of traumatization.”[32]
[32]PCB 138
46 In summary, the preponderance of the medical evidence which was tendered in this application is that the plaintiff suffered from a whiplash-type injury to her neck as a result of the transport accident. Each of the medical practitioners accepts that the plaintiff’s neck was injured in the transport accident and that she complains of pain to each of them. She is currently being treated by a general practitioner and under the control of the Pain Management Unit at Ballarat Health Services. It is some six years since the transport accident. There is no doubt that the medical practitioners agree that the injury was caused as a result of the transport accident in January 2007. The medical practitioners also accept that the plaintiff is genuine in her complaint of pain. The real question in this case is, what are the consequences to the plaintiff arising from the pain and the sequel to that pain for her?
Consequences of the Cervical Spine Injury to the Plaintiff
47 In assessing the application for serious injury certification relating to the plaintiff’s cervical spine, I have to assess the consequences to that loss of body function to the plaintiff.
48 In assessing the consequences of the neck injury to the plaintiff, I have taken into account the two affidavits sworn by her dated 22 May 2012 and 10 December 2011. I have also noted her evidence and particularly the cross-examination of the plaintiff during the course of this application.
49 I have also taken into account the affidavits of Colin Robert Prestwich, dated 18 January 2013, and Faye Chalmers, dated 17 January 2013. Neither of these witnesses were cross-examined and I accept the evidence contained in their affidavits in an unchallenged form.
Pain
50 The plaintiff, in her affidavit dated 22 May 2012, states:
“The worst pain which I suffer from is the pain in my neck. The neck pain is usually worse on my left side. The neck pain is present most of the time but varies in intensity and is exacerbated by physical activity. My range of movement in the neck region remains reduced.”[33]
[33]PCB 10, paragraph 10
51 The plaintiff also deposes that she suffered from headaches in varying degrees of severity. In her later affidavit dated 10 December 2012, the plaintiff confirms that her neck injury pain is continuing.[34]
[34]PCB 15, paragraph 1
52 The plaintiff was cross-examined and, in particular, directed to the level of pain she suffered after being prescribed Norspan patches. The plaintiff stated as follows:
“A:I haven’t been better at all. I still attend to Dr Pretorius. It has got better but it’s still there and the pain’s still there.
Q:So, when you say ‘it’s got better’, what’s got better? The pain is better?---
A:Since I’ve had the Norspan patches, it has helped me a little bit, yes.”[35]
[35]T 30, L22-27
53 The plaintiff was further cross-examined about her neck pain and the application of Norspan patches. The following evidence was given:
“Q:And that when you’ve discussed the neck pain, what you’ve been telling him is that the Norspan patches have given you good pain relief?---
A:They have given me a lot of pain relief to what I was getting but I still have some really bad days.
Q:That your neck is mostly okay or reasonable?---
A”No, I wouldn’t say it’s okay. I have pain there every day of my life.
Q:When you saw Dr Hogg, he initially prescribed 5 micrograms of Norspan, didn’t he?---
A:Not at first.
Q:When he first prescribed Norspan for you, he prescribed it at 5 micrograms?---
A:He did.
Q:He later increased that to 10 micrograms?---
A:Because five didn’t help me.
Q:The answer to my question is yes, he did?---
A:He did.
Q:He told you that you could increase your dose to 20 micrograms if you wanted to?---
A:He told me I can increase it to 100 if I wish.
Q:But you’ve had no need to increase the dosage beyond the 10 micrograms?---
A:No, because I’ve learned to cope a lot with pain.
Q:I want to suggest to you the reason you haven’t increase the dose is because the 10 micrograms has been effective in controlling the pain?---
A:It’s been effective but it hasn’t stopped it.
Q:If the pain was significant enough, there would be no reason why you wouldn’t increase your does to 20 micrograms, like Dr Hogg suggested?---
A:No, I wouldn’t because it makes you sleepy and it affects your driving.”[36]
[36]T43, L3-30
54 The plaintiff, of course, has been treated with a radiotherapy neurotomy to her cervical spine. She gave evidence that the pain relief lasted for approximately six months. She stated that after that procedure, the pain returned, but it was not as severe.[37]
[37]T48, L18
55 The plaintiff currently is treated for her pain. I accept what she says about the pain and that she did not want to return to further denervation operations on a consistent basis if those operations did not completely stop her pain. Under medical advice she has continued with Norspan patches to manage her pain.
56 I accept that the plaintiff is a straightforward and resilient person who is attempting to manage and maintain her pain levels by the use of medications under the control of a pain management physician. I accept that she continues to live with and manage the pain as best she can. The pain levels and the symptoms that she suffers as a result of it are a very considerable consequence for the plaintiff.
Sleep
57 The plaintiff complains that as a result of her pain, she has considerable difficulty sleeping. In her affidavit dated 22 May 2012, she states:
“Since the transport accident I have experienced significant difficulty in sleeping. I find that despite taking medication my pain causes me significant difficulty in getting to sleep and that I often wake up several times throughout the night and regularly find it very difficult tog et back to sleep.”[38]
[38]PCB 11, paragraph 14
The plaintiff was cross-examined about the sleeping problem that she was having as a result of her injury. The plaintiff was cross-examined about her attendance on Dr Pretorius on 3 April 2007. It was suggested to her that she had told her general practitioner that she was sleeping better. In response to that, the plaintiff said:
“Q:Did you tell him that your sleeping was better?---
A:No, because he gave me a sleeping tablet.
Q:No. Don’t worry about what he gave you, I’m asking you, did you tell him that your sleeping was better?---
A:I think I told him I wasn’t sleeping on that date.
Q:He said you told him, if you go up to the top of the page which records the previous consultation you’ll see an entry there, ‘Also not sleeping well’?---
A:Yes.
Q:And that’s on 19 March, but what I’m asking you is, as at 3 April, were you telling your doctor, that is about two weeks later, that you were sleeping better?---
A:I probably had had that sleeping tablet.”[39]
[39]T32, L13-32
58 The plaintiff was also cross-examined in relation to her sleeping patterns. The evidence was:
“Q:I thought one of your complaints was that you had problems sleeping, that is you can’t get a good night’s sleep?
A:I do have problems sleeping but I haven’t upped my patch to make me permanently sleep through the day.”[40]
[40]T56, L10-13
59 The plaintiff was clearly saying here that the effect of the Norspan patches, if she increased her dosage, would be to make her sleepy during the course of the day and the like. It was clear from her evidence that she was saying that she continued to have sleeping problems as a result of her neck condition, even on her current medication regime.
60 I accept the plaintiff’s evidence that she has disturbed and interrupted sleep as a result of the symptoms from her neck condition. The ability or lack of it to get a good night’s rest is a very significant consequence for the plaintiff in this case.
Medication
61 The plaintiff is taking the following medications for the symptoms relating to her neck complaint:
“Amitriptyline 25mg Tablet 1 Before bed
Celebrex 200mg Capsule 1 Before bed after meals
Efexor XR 150 mg Capsule 1 In the morning
Norflex 100mg Capsule 1 Twice a day
Omeprazole 20 mg Tablet 1 Daily As directed
Panadol Osteo 665mg Tablet 2 Three times a day.”[41]
[41]PCB 76G
62 The plaintiff also is on 10 micrograms per hour of Norspan patches. Norspan is a narcotic preparation to deal with the pain. The plaintiff has been wearing those patches since September 2011. As a result of those patches she has suffered from skin irritation and complaint which requires treatment by way of creams.
63 The plaintiff was cross-examined about the affect of the Norspan patches. The evidence was as follows:
“Q:You say your Norspan patches have some – might have some effect on your concentration if you were to increase the dose?---
A:It has made my life a bit more liveable.
Q:But you said I thought – or as I understood your evidence before when I raised with you the issue of increasing your dose from 10 micrograms to 20 micrograms, you said, ‘Well, I wouldn’t want to do that because it affects the concentration and driving’?---
A:I don’t want to up it because it does affect your driving and it does affect your wanting to sleep.”[42]
[42]T46, L19-28
64 The plaintiff, in her affidavit dated 22 May 2012, lists her medications at that time for pain relief as Celebrex, 200 milligram; Effexor, 150 milligrams; Endep, 25 milligrams, and Panadol Osteo, 665 milligrams.[43] I conclude that this is a significant amount of medication to maintain or attempt to control the symptoms that the plaintiff is suffering as a result of her neck injury. I do not accept the proposition put by Mr Smith that the taking of medication of itself is not a consequence. I find that the combination of all these medications, being necessary preparations for the control of the plaintiff’s pain, combined with the application or Norspan patches, is a significant consequence for her.
[43]PCB 10, paragraph 12.
Employment
65 The plaintiff stated in her evidence that at the time of the transport accident, she was working three days at Viewpoint Street and two days at Alexandra Avenue. She stated that as a result of the transport accident, she was unable to continue her work at Viewpoint Street and had to transfer her work to Alexandra Avenue five days per week. The work at Alexandra Avenue was of a lighter nature than the work at Viewpoint Street. The plaintiff stated that she missed the work at Viewpoint Street as the patients were more dependent and she formed a close relationship with them.
66 It is clear from her evidence, and the medical evidence, that the plaintiff cannot continue with heavy work such as mopping and the like. Her fellow workers, which include Faye Chalmers, are currently doing most of the heavy work at her current place of work at Alexandra Avenue. These changes to the plaintiff’s work have not resulted in her suffering a loss of income as a result of her inability to do the heavier work.
67 I conclude the most significant part of the employment change for the plaintiff is that she has lost the ability to choose the nature of her work and continue in the more heavy patient-dependent work at Viewpoint Street. This is not a most significant consequence but it is a consequence, nevertheless, for the plaintiff.
Activities of Daily Living
68 I accept the plaintiff’s evidence that she suffers some considerable difficulty in performing the duties of housework. I accept her evidence that it aggravates the pain in her neck. The plaintiff has given evidence that she has difficulty in vacuuming and mopping floors, together with putting clothes on or off the line. I accept that the plaintiff relies in part upon her husband to perform some of the housework tasks.[44]
[44]PCB 12, paragraph 20
69 The plaintiff also is limited in the amount of driving that she can do. It is clear from her evidence that she suffers from inability to turn when she is reversing her car to see where she is going. She deposes also to having difficulty in long driving distances. This impacts on her life when one of her children lives in South Australia and the other one lives in Wodonga.[45]
[45]PCB 12, paragraph 22
70 The plaintiff is also limited in the amount of gardening she can now do as a result of her neck injury. The plaintiff deposes to this difficulty in her first affidavit. As a result she has had to reduce the number of garden beds she has and changed her garden around.[46]
[46]PCB 12, paragraph 21
71 I accept that the plaintiff’s evidence that she can no longer partake of knitting and her craftwork due to her neck injury is a significant consequence for her. The plaintiff sets out in her affidavit dated 22 May 2012 the amount of knitting that she did prior to the accident. The reduction in her ability to continue with that activity is significant. She states:
“Before the accident I used [to] regularly knit. I would do so usually 2 to 3 times per week and would often knit for up to 2 hours on any one occasion. However, because of the fact that when I knit I need to hold my neck in the one position, and doing so causes me pain, I find that I am now only able to knit for a maximum of 20 minutes at any one time.”[47]
[47]PCB 13, paragraph 25
72 The plaintiff, in her evidence, stated that she was no longer able to crochet. She stated as follows:
“Q:Are you able to do that sort of crocheting now?---
A:No, I couldn’t make one of these at all no more because the weight and the pull on my neck.
Q:The crocheting and the knitting that you’ve referred to, were those pastimes that you’d do fairly frequently?---
A:All the time after – of a night, for my relaxation.
Q:Were those pastimes that you enjoyed and took pride in?---
A:I did.”[48]
[48]T21, L1-8
73 I find, and accept, that this loss of ability to partake of these craft-related activities, which is relaxation for the plaintiff, rather than watching television, as she stated in her evidence, is a significant consequence for her.
74 The plaintiff also deposed that her ability to walk for a fitness-type regime and to play bowls has been reduced due to her neck injuries. The loss of her ability to engage in these activities are not as significant as the other activities of daily living referred to in this section of my reasons for judgment.
Conclusion
75 After a consideration of all the evidence, I am of the view that it is a finely balanced case, and taking into account all of the consequences suffered by the plaintiff as a result of her neck injury, I am satisfied that such consequences, when judged by comparison with other cases in the range of possible impairments, can be fairly described as being “more than significant or marked and as being at least very considerable”. The plaintiff’s condition has stabilised and will remain this way for the foreseeable future, if not, in fact, deteriorate for her.
76 Accordingly, pursuant to s93 of the Act, I grant leave to the plaintiff to bring common law proceedings for pain and suffering damages in respect of the neck injury suffered by her in the transport accident on 21 January 2007.
77 I will hear the parties on the issue of costs.
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