Raux v Transport Accident Commission
[2024] VCC 1404
•12 September 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-04579
| RUWANIE RAUX | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE ROBERTSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 and 11 April 2024 | |
DATE OF JUDGMENT: | 12 September 2024 | |
CASE MAY BE CITED AS: | Raux v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1404 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Damages - serious injury – injury to the lumbar spine and cervical spine – pain and suffering – credibility – aggravation – aggregation
Legislation Cited: Transport Accident Act 1986 (Vic); Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited: Transport Accident Commission v Zepic [2013] VSCA 232; Dean v Crossway Holdings Pty Ltd [2011] VSCA 198; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; AG Staff Pty Ltd v Filipowicz (2012) 34 VR 309; Humphries and Anor v Poljak [1992] 2 VR 129; Philippiadis v Transport Accident Commission (2016) 74 MVR 289; Transport Accident Commission v Kamel [2011] VSCA 110; Richards v Wylie (2000) 1 VR 79; Petkovski v Galletti [1994] 1 VR 436
Judgment: The plaintiff is granted leave to bring a proceeding.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett KC with Ms P Prosser | Shine Lawyers |
| For the Defendant | Mr A Moulds KC with Ms C Kusiak | Hall and Wilcox |
Table of Contents
Introduction
Background
Medical history
The transport accident
What medical treatment did the plaintiff receive following the transport accident?
Employment history
Employment after the transport accident
Legal principles
Plaintiff’s submissions
Defendant’s submissions
What injuries did the plaintiff have at the date of the transport accident?
Lower back
Neck/cervical spine
Headaches
Treating practitioner’s reports
Dr Jain
Dr Hafezi, pain specialist
Dr Seneviratne
Ms Branka Zoric, physiotherapist
Plaintiff’s medico-legal reports
Mr Russell Miller, orthopaedic surgeon
Mr Awad, neurosurgeon and spinal surgeon
Dr Gavin Weekes, pain specialist
Defendant’s medico-legal reports
Mr Gary Speck, orthopaedic surgeon
What injuries did the plaintiff sustain as a result of the transport accident?
Permanence
What are the consequences of the plaintiff’s injury? Is the injury a “serious injury”?
Pecuniary disadvantage
Pain
Lower back
Right shoulder
Neck/cervical spine
Headaches
Medication and medical treatment
Sleep
Mobility
Activities of daily living
Church activities
Sports and hobbies
Social activities
Driving
Conclusion
HER HONOUR:
Introduction
1The plaintiff was injured in a transport accident on 22 November 2020 on the Princes Highway in Narre Warren when her car, which was driving through an intersection, was struck on the right side by another vehicle against a red light (“the transport accident”). The plaintiff claims to have suffered a “serious injury”, being a serious long-term impairment or loss of function of her spine, including her cervical and lumbar spine, within the meaning of paragraph (a) of the definition of “serious injury” in s93(17) of the Transport Accident Act 1986 (“the Act”). She seeks leave pursuant to s93(4) of the Act to commence common law proceedings for damages.
2Although foreshadowed in the Particulars of Injury, reliance upon a claimed serious long-term impairment of the right shoulder including the right upper extremity within the meaning of s 93(17)(a) of the Act, and a claimed severe long-term mental or severe long-term behavioural disturbance or disorder within the meaning of s93(17)(c) of the Act, were not pursued at trial.
Background
3The plaintiff is 52 years old.
4She separated from her husband in 2018 and they divorced in 2020.
5The plaintiff has two adult children and her daughter lives with her.
Medical history
6On 28 March 2007, the plaintiff was involved in a transport accident. She had some numbness in her left leg which resolved.
7In April 2009, she sustained a serious lower back injury in the course of employment which substantially impacted her life (“the lower back injury”). She underwent treatment under the care of Mr Timms.
8On 4 May 2009, the plaintiff underwent an MRI of her lumbar spine. This found a degenerate central disc bulge at L5-S1 which was noted to not be causing neurological compression.
9On 13 June 2014, the plaintiff’s general practitioner’s notes record that she was experiencing recurrent migraines and that her neck and shoulder regions were sore.
10On 1 August 2018, the plaintiff complained to her general practitioner of neck pain. The clinical notes recorded:
“chronic neck pain
but over the last 2-3 weeks pain worsened
causing headaches
ache and sore esp when turning neck
no recall of injury
no manipulation
no neurological smx in arms or leg
there was some tenderness in the central and lateral cervical spine
but good range of neck movement
adv to have xray to further evaluate
review again post xray
adv only self gentle massage … .”
11The plaintiff underwent an x-ray of her cervical spine on 1 August 2018. This found there was a loss of normal cervical lordosis. The C5-6 disc-space was slightly narrowed. The exit foramina were patent. There was no facet arthrosis or cervical rib formation.
12Following a further consultation on 3 August 2018, the clinical notes recorded:
“xray of cervical spine
There is loss of the normal cervical lordosis
The C5-6 disc space is slightly narrowed. The exit foramina are patent.
There is no facet arthrosis or cervical rib formation.
Likely muscular nature
Adv on
- gentle massage with voltaren gel
- warm pack
- Panadol osteo tds
- Mobic intermittent use only
- might need physio down the tract [sic]
Avoid manipulation of neck … .”
13On 17 July 2019, a review by Dr Jennifer Weng, general practitioner at the Waverley Police Road Medical Centre, revealed that the plaintiff seemed stable and was using simple medications to control her condition.
14On 9 August 2019, a Medical Report for a mobility allowance was completed by Dr Weng. The report identified the plaintiff had sustained an L5-S1 disc prolapse. Taking into account her physical disabilities, illnesses or injuries, it was envisaged by Dr Weng, the plaintiff would experience minor difficulty crossing streets, negotiating kerbs, negotiating steps in or out of public transport, and would have moderate difficulty negotiating a large flight of steps.
15The plaintiff described intermittent flare-ups of pain including on or about 3 March 2020, when she had a flare-up of lower back pain as a result of lifting a heavy pot plant. She was taken by ambulance to Dandenong Hospital. She received in-patient treatment at the Kingston Centre and follow-up physiotherapy treatment with the hospital physiotherapist and with Mr Craig Timms. She was prescribed Endone and Lyrica.
16An AMP Permanent incapacity treating doctor’s report dated 6 March 2020, was prepared by Dr Weng. It referred to the plaintiff having had “more than 10 years of chronic back pain due to L5/S1 disc prolapse”.
17On 10 March 2020, the plaintiff underwent an MRI of the spine. This found stable L5-S1 shallow central disc protrusion with small annular fissure. Spondylotic changes were also noted at C5-6.
18On 24 June 2020, Dr Weng prepared a letter which stated the plaintiff had –
“… lower back pain intermittently, she is stable at present and it is important for her not to have prolonged standing or sitting for more than 30 minutes. Also not to have lifting due to this. …”
19On 15 September 2020, the plaintiff underwent an MRI scan of the brain. This found no abnormality of the craniocervical junction.
20On 28 October 2020, Dr Timms reviewed the plaintiff and prepared a letter to Dr Weng. In the letter, Dr Timms noted that he had reviewed the plaintiff that day. He said:
“… She is quite stable, still getting some back pain and sciatica. I presume from the L5-S1 disc. She is working from home now and doing more sitting which is probably exacerbating her problems. …”
The transport accident
21The transport accident occurred on 22 November 2020.
22The plaintiff’s vehicle had been stopped at a red light at an intersection. The light had just turned green. The plaintiff started to accelerate when the driver’s side of her car was struck from the right, or “T-boned”, by another vehicle travelling at around 10 to 30 kilometres per hour. The plaintiff was wearing a seatbelt, and the airbags did not deploy.
23The car spun around, and the plaintiff hit her head and right shoulder against the side of the vehicle and her chest on the steering wheel. The plaintiff lost consciousness momentarily. After the collision she felt sharp pains in her neck extending upwards and out towards the right shoulder and arm, the right side of her head and her neck. She was able to self-extricate from the car.
24The plaintiff was taken by ambulance to the Dandenong Hospital where she underwent a series of investigations and scans. She was later discharged after six hours with pain medication.
What medical treatment did the plaintiff receive following the transport accident?
25The day after the transport accident, the plaintiff attended the Park Hill Medical Centre with pain in her neck and right shoulder. She also had an increase in lower back pain. She was prescribed Mobic and Tramadol for pain and advised to rest.
26The plaintiff said she continued to experience pain. She consulted Dr Sonali Jain, general practitioner, at the Park Hill Medical Centre, in Berwick where she now lives.
27She also continued to consult Dr Weng, who she had seen for the previous 25 years, from time-to-time in respect of medical matters such as colds and the flu. Additionally, she consulted practitioners in other locations depending on where she could get an appointment. She trialled Lyrica, Tramadol and Norgesic to manage her ongoing pain.
28In January 2021, she commenced physiotherapy at Maxvale Physiotherapy with Branka Zoric. She also participated in hydrotherapy.
29She also commenced acupuncture treatment.
30Following the transport accident, the plaintiff described feeling increasingly depressed and traumatised. She was referred for psychological treatment and commenced treatment with Mr Jason Ewing at Mind Space Psychology on 24 February 2021 whom she saw until 14 September 2021.
31On 4 March 2021, the plaintiff underwent an ultrasound of her right shoulder. Dr Weng told her the ultrasound showed bursitis of the shoulder and some impingement syndrome.
32The plaintiff described continuing to suffer from neck and shoulder pain thereafter and being referred for an MRI scan which she had on 6 July 2021.
33The MRI scan reported “degenerative disc bulges at C5/6 and C6/7. Mild right neural foraminal narrowing at C5/6.”
34The plaintiff continued to also suffer from headaches. She was referred to Dr Janaka Seneviratne, neurologist, who prescribed Maxalt wafers and recommended she continue with physiotherapy treatment.
35In October 2021, the plaintiff ceased physiotherapy treatment.
36A pain management program was recommended.
37Following referral from Dr Seneviratne, on 21 August 2022 the plaintiff underwent an MRI of the brain. The results were as follows:
“1. No intracranial haemorrhage or mass is detected.
2.Left sided paranasal sinus disease, suggesting an ostiomeatal unit pattern of obstruction.”
38On 26 September 2022, the plaintiff consulted Dr Pouya Hafezi at Pain Matrix in Berwick. Dr Hafezi recommended the plaintiff undergo cervical medial branch blocks and right shoulder pulsed radiofrequency neurotomy. The plaintiff decided not to undergo those treatments as she was scared about the risks associated with them.
39The plaintiff continues to see Dr Hafezi on a three-monthly basis at Advanced Healthcare where he now works.
40The plaintiff had follow-up appointments with orthopaedic surgeon, Mr Timms, who treated her for her previous back injury. Mr Timms referred the plaintiff for an MRI scan of her neck and lower back which she had on 5 November 2022. The results were:
“Conclusion:
Unchanged appearances. Disc protrusions at C5-6 and L5-S1, without significant neural compression.”
41In early 2023, the plaintiff commenced having physiotherapy treatment with Mr Lachie Robinson.
42In early 2023, the plaintiff also commenced seeing Ms Mitra Amin, psychologist at Advanced Healthcare. The plaintiff continues to have intermittent appointments with Ms Amin.
43On 24 March 2023, the plaintiff was referred by Dr Hafezi for MRI scans of her neck and right shoulder. The results of the MRI cervical spine were:
“MRI Cervical Spine
Arthritic changes at C5/6 but no cord compression or significant foraminal stenosis and radicular compression is demonstrated. …”
44In the plaintiff’s further affidavit dated 28 November 2023, the plaintiff noted she has regular appointments with neurologist, Dr Seneviratne in relation to headaches.
45The plaintiff continues to have regular treatment with Dr Jain at the Berwick Family Medical Clinic. Dr Jain provides her with prescriptions for medications. She also sees Dr Weng at the Waverley Police Road Medical Centre from time to time.
Employment history
46On arrival in Australia, the plaintiff did some casual retail work until 1995 when she commenced work as a business banking officer with the National Australia Bank. She continued in that role until 2001 when she took time off to have her daughter.
47In 2007, she commenced work as a disability support worker for Scope Victoria Pty Ltd where she remained working until April 2009.
48After the plaintiff sustained the serious lower back injury in the course of her employment in April 2009, she was off work for several years and received a disability support pension.
49She returned to work part-time for three months in 2013, but otherwise continued to be off work and in receipt of a disability support pension until 2019.
50In May 2019 she worked for one day with the Australian Electoral Commission, assisting with an election.
51In September 2019 she started working on a permanent part-time basis working variable hours, with SERCO Citizen Services Pty Ltd (“SERCO”) processing applications for the National Disability Insurance Scheme (“NDIS”).
52Around the time of the transport accident, she completed a Certificate IV in Education Support.
Employment after the transport accident
53Following the transport accident, the plaintiff returned to work with SERCO, but on reduced hours from 4.00pm to 8.00pm. She said she was struggling to sit at a computer and to use a mouse due to her neck and back pain. She was also suffering from frequent severe headaches.
54In April 2021, the plaintiff obtained employment as a teacher’s aide at the Belgrave Heights Christian School where she continues to work.
Legal principles
55The definition of “serious injury” as set out in s93(17)(a) of the Act is, relevantly, as follows:
“‘serious injury’ means—
(a) serious long-term impairment or loss of a body function;
… .”
56It is first necessary to identify the injuries suffered by the plaintiff. Where there are multiple injuries, it is necessary to consider whether there is impairment to one or more body functions. Injuries to different regions of the spine, for instance lumbar spine, cervical spine, or thoracic spine, can be aggregated where they arise out of the same incident.[1]
[1] Transport Accident Commission v Zepic [2013] VSCA 232 (“Zepic”) at paragraphs [11] and [138]-[139].
57If a plaintiff has been injured on different occasions, the Court is required to separate out the components of each injury. The injuries cannot be aggregated, even if they affect the same body part.[2]
[2]Dean v Crossway Holdings Pty Ltd [2011] VSCA 198 at paragraph [72]; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309.
58Once the injuries have been identified, it is necessary to compare the plaintiff’s condition before and after the first injury and then assess the additional impairment after the aggravation injury.[3]
[3] Ibid at paragraphs [35]-[36].
59If impairment or loss is demonstrated, consideration is required as to whether the injury responsible for such loss or impairment is a “serious injury”.
60The question of whether an injury is “serious” for the purpose of s93(17)(a) is to be answered according to the narrative test laid down by the Full Court of the Supreme Court of Victoria in Humphries and Anor v Poljak.[4] The plaintiff must satisfy the Court, on the balance of probabilities, that the organically-based physical pain and suffering consequences, when considered separately from psychological or non-organic consequences, satisfy the statutory criterion of being “more than ‘significant’ or ‘marked’” and “at least very considerable” when judged by comparison with other cases in the range of possible impairments or losses of a body function.[5] This requires a two-stage analysis. First, whether the nature and symptoms of the injury and consequences are subjectively “serious” for the plaintiff. Second, whether the injury and the consequences of the injury are objectively “serious”.[6]
[4][1992] 2 VR 129 (“Poljak”) at 140 (per Crockett and Southwell JJ).
[5] Ibid.
[6]Ibid at 140 (per Crockett and Southwell JJ).
61Whether the plaintiff has suffered a “serious injury” is assessed by considering the consequences of the injury in relation to either pecuniary disadvantage, or pain and suffering, or both.[7]
[7] Philippiadis v Transport Accident Commission (2016) 74 MVR 289 at paragraph [24].
62In cases where a plaintiff has sustained an injury as a result of a transport accident, the consequences of which are physical as well as mental, whether the plaintiff’s injury should be assessed pursuant to s 93(17)(a) or (c) depends on the dominant cause of the plaintiff’s condition. If an impairment is the result of both physical and mental conditions, the injury will be considered a physical injury under the Act if it is predominantly the product of an organic condition.[8] Regardless of which test is applied, in determining whether its requirements are met, all the relevant consequences for the plaintiff arising from the accident are to be considered.[9]
[8] Transport Accident Commission v Kamel [2011] VSCA 110 at paragraph [65].
[9] Richards v Wylie (2000) 1 VR 79 at paragraph [28].
63A mental response to a physical impairment is one of the consequences that needs to be evaluated in determining whether the loss or impairment of a body function, when judged by comparison with other cases in the range of possible impairments, can be fairly described as “serious”.[10]
[10] Ibid at paragraph [17]; Transport Accident Commission v Kamel (supra) at paragraph [66].
64The weight to be attached to the plaintiff’s account of pain will be affected by an assessment of the plaintiff’s credibility.
65The plaintiff bears the burden of proof on the application. The standard of proof is on the balance of probabilities.[11]
[11]Petkovski v Galletti [1994] 1 VR 436 at 437 (per Brooking JA).
66The assessment of whether the injury is “serious” for the purposes of the Act, is assessed at the time the application is heard.
Plaintiff’s submissions
67It was submitted on behalf of the plaintiff that prior to the transport accident, the plaintiff had a pre-existing lower back injury. She also had some instances of neck pain, but they were not significant and could have been the result of unrelated causes such as sleeping awkwardly on inappropriate pillows and mattresses. It was submitted that Mr Speck’s opinion that the plaintiff experienced substantial pain in her neck prior to the transport accident should be rejected.
68Following the transport accident, the plaintiff contended she suffered a cervical spine injury, being aggravation of cervical spondylosis and cervicogenic headaches. As a consequence, the plaintiff experienced considerable pain in her neck which required treatment with painkillers. There was an organic basis for the pain, namely the cervicogenic headaches. Mr Speck’s opinion that the plaintiff had a somatic symptom disorder should be rejected in favour of the opinion of Dr Weekes’ and the plaintiff’s treating doctors.
69Further, it was submitted the consequences of the plaintiff’s lower back condition were not aggravated by the transport accident. Nevertheless, the consequences to the plaintiff of her injury were “more than ‘significant’ or ‘marked’” and “at least very considerable”. The plaintiff was a witness of truth. She experienced considerable pain and dysfunction as a result of the transport accident, for which she was taking strong opiate medication. She intended to work two jobs, but because of the transport accident she had been unable to do so. Considering all of the consequences to the plaintiff, both individually and cumulatively, the plaintiff suffered a “serious injury”.
Defendant’s submissions
70The defendant accepted the plaintiff was suffering from cervical spondylosis; however, it disputed this was the cause of the chronic pain experienced by the plaintiff. Rather, it was submitted, consistent with the opinions of Mr Speck, the plaintiff had a chronic pain syndrome. The symptomatology was psychiatric and not physical. It was for the plaintiff to disentangle what the organic and non-organic consequences of her injury were and the extent to which the chronic pain syndrome had become part of her physical symptoms. The plaintiff alleged she suffered a physical injury, namely cervical spondylosis. However, there was no organic basis for the pain she said she suffered.
71Alternatively, if the plaintiff did have pain, it was submitted it was pre-existing and not severe. This was supported by the fact there was no report from Dr Weng. The defendant contended an inference should be drawn that any evidence Dr Weng may have given would not have assisted the plaintiff.
72It was submitted that to determine whether the plaintiff has suffered a “serious injury”, it would be necessary to consider the consequences to the plaintiff of her neck injury as distinct from her back injury. The plaintiff had significant pre-existing pain and dysfunction from her lower back injury. Her daughter noted the plaintiff had flare-ups of pain. The plaintiff had been receiving a disability pension for many years. She had only been able to do part-time work from 2019. When one had regard to the plaintiff’s pre-existing restrictions, her cervical spine injury has had a limited effect on her consequences.
73Further, the plaintiff’s evidence that she intended to work a second job was unreliable. There was nothing in her first affidavit about her intention to get a second job and the omission was not adequately explained. The suggestion the plaintiff was building a second home and had a mortgage was not supported by the evidence. Further, it was unlikely the plaintiff intended to undertake a second job because she had a pre-existing lower back injury and had been a longtime recipient of a disability pension and because there were no demonstrable problems with her cervical spine. In addition, the plaintiff had been given a job elsewhere for which she had trained. The highest the plaintiff’s case could be put in relation to her intention to work a second job, was that she might have suffered a loss of a chance to undertake a second job. That is not enough. Pecuniary disadvantage needs to be established as a probability. If pecuniary disadvantage is an additive to a pain and suffering claim, it is not an additive of much.
74Finally, although various consequences were claimed, they did not exceed the threshold required to establish a “serious injury”. The plaintiff said she did some grocery shopping and cooking. Even if there had been a decrease in activities according to the plaintiff’s daughter, the consequences to the plaintiff were still not “more than ‘significant’ or ‘marked’” and “at least very considerable”.
What injuries did the plaintiff have at the date of the transport accident?
75There was no dispute between the parties that prior to the transport accident the plaintiff had a pre-existing lower back injury and cervical spine degenerative disease. She also experienced mild and infrequent migraine headaches. Additionally, the plaintiff had experienced previous periods of poor mental health.
76The dispute between the parties in relation to the plaintiff’s injuries centred on whether either the plaintiff’s lower back injury or cervical spine injury were productive of pain prior to the transport accident, and if so, the extent of pain experienced.
Lower back
77In his report dated 14 December 2015, Professor Teddy identified that the plaintiff rated her lower back pain as being around 10 on a scale of severity of 0-10 first thing in the morning. Her lower back pain reduced to around 7 during the day. He considered the plaintiff would continue to suffer from her symptoms for the foreseeable future.
78In her first affidavit, the plaintiff described experiencing intermittent “flare-ups” of lower back pain before the transport accident as a result of the injury she sustained in 2009. When they occurred, the plaintiff said they were “quite bad”, although she also described periods where she had been virtually symptom free. The plaintiff’s evidence was that the flare-ups had resolved by the date of the transport accident. She said the pain in her lower back had stabilised and she had been able to return to work.
79The plaintiff’s daughter said before the transport accident the flare-ups could last from a couple of days to a week. Sometimes they occurred every few months. Other times the plaintiff did not experience a flare-up for over six months.
80Her mother’s employer was accommodating, and they got her mother an ergonomic chair and desk, which resulted in her mother complaining of less flare-ups.
81The defendant submitted, in accordance with Mr Speck’s report, that the plaintiff had experienced considerable, lower back pain since the accident at work in 2009 and was experiencing lower back pain at the time of the transport accident.
82I accept the plaintiff had experienced ongoing lower back pain since her workplace accident in 2009. That was consistent with the fact she had continued to receive a disability pension to the date of trial. The issue was whether the lower back pain was substantial at the date of the transport accident.
83The plaintiff was cross examined with a view to highlighting that her lower back disability was far greater than she claimed.
84The plaintiff agreed that on 6 June 2018 her doctor had certified on an ANZ Credit Card Insurance form for disability benefit, that she had been unable to attend her usual occupation from 24 March 2014 for an indefinite period. She agreed she was unable to weight bear or push wheelchairs.
85She accepted that in a medical report dated 9 August 2019 prepared for her by Dr Weng for the purposes of obtaining a mobility allowance from Centrelink, the doctor had certified that she was “unable to sit long time distance in the bus due to back pain” and that her difficulty or discomfort was permanent. The plaintiff agreed sitting and standing on public transport had not been realistically possible for her for several years.
86On 6 March 2020 an application for a Carer Payment or Carer Allowance was completed. As part of the application, Dr Weng completed a questionnaire in relation to the plaintiff’s functional capacity. Amongst other things, Dr Weng noted that “the disability is likely to be permanent, not likely to improve.” She also noted various activities with which the plaintiff required assistance.
87The plaintiff was asked about these and agreed she needed help grooming her hair, cutting food and some minor help transferring from a bed to a chair. She said when her back injury was at its worst, she may have required assistance with mobility and walking. It was suggested to the plaintiff that the doctor filled the form out based on what the plaintiff had told her. The plaintiff said she must have seen the doctor when she had a flare-up of pain and there were times when her back injury was really bad and she needed help, but she said that was not the case anymore. Her back injury had stabilised, and she had learnt to live with it.
88There was a further medical report prepared by Dr Weng on or about 14 April 2020 in support of a claim by the plaintiff against AMP in respect of permanent incapacity. Dr Weng described the effect or impact of the plaintiff’s lower back condition on her. It was noted: “Back pain. Unable to do housework when acute pain occurs” and “unable to work when pain worse. Not at home or at work.”
89The plaintiff was cross examined about the incident on or about 3 March 2020 when she hurt her lower back lifting a pot plant and was taken to hospital. She accepted she had experienced significant lower back pain in the early part of 2020 that required her to attend hospital, required her to take time off work and gave her significant problems for a period of weeks if not months.
90The plaintiff initially said in cross examination that the only medications she had taken for pain prior to the transport accident were Mobic for her back, Voltaren, Panadol Rapid and maybe some Panadeine Forte when she was having really bad back pain at the beginning in 2009 or 2010. She did not recall being prescribed Endone and Lyrica in March and April 2020 and she said if she was given Endone, it was likely provided to her at the hospital. The plaintiff did not deny that she had given a history of severe back pain to Dr Timms when she saw him on 23 March 2020, nor of being taken to hospital and of taking Endone, Lyrica, Amitriptyline and Mobic.
91It was suggested to the plaintiff she had been prescribed Endone and Lyrica in March 2020 for her back pain. It was further suggested that the plaintiff’s lower back pain continued to be significant, and she was still taking Lyrica for it at the date of the transport accident. The plaintiff said Lyrica had been prescribed for neck pain and she did not recall it being prescribed for pain in her lower back. The plaintiff explained the discrepancy in her recollections as to the medications she was taking prior to the transport accident by saying, “It was a short time and it was one incident that flared up my back pain and it – I didn’t even have to finish the medication, Mobic, it got better.”[12]
[12] T47, L28-31.
92I am satisfied the plaintiff was prescribed Endone in March 2020. From the clinical records the Endone ceased on 28 March 2020 suggesting the lower back pain subsided, at least to the levels it had been prior to the incident where she injured her lower back when lifting a pot plant.
93According to the clinical notes of the Waverley Police Road Medical Centre, the plaintiff was prescribed Lyrica on 23 March 2020. The prescription ceased on 14 December 2020. The clinical notes indicate the plaintiff’s diagnosis was back pain and the prescription of Lyrica was for that back pain. Neck pain was not referred to in relation to the Lyrica prescription at that time.
94Further clinical notes of the Waverley Police Road Medical Centre demonstrate that the plaintiff was later prescribed Lyrica for neck pain. On 5 January 2021, the plaintiff attended Dr Jain complaining of neck pain. Her neck was not swollen, but the clinical note recorded “tender”. The plaintiff was prescribed Lyrica. That prescription ceased on 2 July 2021. She was prescribed Lyrica again on 7 April 2022. Again, the plaintiff was complaining of neck pain and right shoulder pain.
95The medical records suggest Lyrica was already being prescribed when the transport accident occurred, and the prescription did not cease until 14 December 2020. The most probable explanation of the prescription of Lyrica on 23 March 2020, was that it was for lower back pain and not neck pain. This conclusion accords with the clinical records and the plaintiff’s acceptance of the possibility the clinical notes were accurate. It is likely that any recollection the plaintiff had of taking Lyrica for neck pain, was in respect of neck pain experienced after the transport accident. This is supported by the plaintiff’s inability to recall every instance of back or neck pain.
96I accept that prior to the transport accident the plaintiff had ongoing lower back pain. It was experienced as flare-ups of pain which could be severe when experienced, precipitating the need for medications such as Endone. Generally, the pain resolved to such an extent that it could be managed. However, it remained significant enough for the plaintiff to be receiving a disability pension and for the pain to have been impacting several of her day-to-day activities.
97It follows from the above, that at the date of the transport accident, I accept the plaintiff had ongoing lower back pain which was at least moderate pain.
Neck/cervical spine
98There was no dispute between the parties that the plaintiff experienced some episodes of neck or cervical spine pain before the transport accident. The plaintiff accepted, consistent with what she had told Dr Seneviratne in 2021, that before the transport accident she had experienced neck pain and migraine headaches just above each eye. When she experienced those, she had been unable to look at light or to work.
99The plaintiff was cross examined about the nature and severity of the neck pain she experienced before the transport accident. First, she was asked about the complaints of neck pain she made to physiotherapist, Jacinta Gibney at the Stadium Sports Physiotherapy Centre from 2012 to 2017. On 3 September 2012, reference was made in the physiotherapy notes to “Tx stiffness (new pillow)”. On 25 April 2013, the notes recorded the plaintiff “complained of right sided neck pain”. On 8 May 2013, the notes recorded the plaintiff was “complaining of decreased aches and pains, feels right neck/shoulder pain, left lower back pain in the morning especially. Soft mattress, renting.” On 15 May 2015, the notes recorded “Awoke with neck/thoracic pain from ? slept awkwardly.”
100The plaintiff sought to explain her several attendances on the physiotherapist with complaints of neck pain on the basis that she had private health insurance at the time. She suggested the most likely explanation for any pain she experienced was that it occurred because she had slept awkwardly or on a bad mattress or pillow.
101The plaintiff was also asked about a surgery consultation she had with Dr Weng on 1 September 2017 at which Dr Weng recorded:
“constant headache top of head and side of head”.
102The plaintiff explained when cross examined that at the time she consulted Dr Weng on 1 September 2017, she was going through a lot. She could not remember where the headaches were coming from. In re-examination she explained, as Dr Weng’s clinical notes also record, she was “not sleeping well” and “her husband want[ed] to divorce”.
103The plaintiff submitted she had minimal neck pain from time-to-time before the transport accident. She had undergone an x-ray and had been prescribed pain medication for her neck pain which had essentially resolved. Her neck pain settled down after a few weeks and was not significant at the date of the transport accident.
104The defendant submitted the plaintiff had a substantial history of neck pain prior to the transport accident. Neck pain was present at the date of the transport accident and was not isolated or the result of unrelated causes such as sleeping awkwardly on inappropriate pillows and mattresses.
105I find that the plaintiff did experience neck pain prior to the transport accident.
106First, the fact the plaintiff experienced some degree of neck pain before the transport accident was supported by the clinical notes of the Waverley Police Road Medical Centre. Complaints of neck pain had been made by the plaintiff to Dr Weng on 3 February 2014 and 13 June 2014 and to Dr Hong Neang on 1 August 2018.
107Second, the independent radiological evidence support a conclusion that the plaintiff had experienced some neck pain before the transport accident. The plaintiff underwent a cervical spine x-ray which was requested on 1 August 2018.
108Third, although the plaintiff could not recall, when cross examined, the specific incidents of neck and thoracic pain referred to in her physiotherapist’s notes, and suggested if there were references to pain the probable cause was she had slept awkwardly, the physiotherapy notes supported the fact the plaintiff experienced neck pain before the transport accident.
109I also find that any neck pain the plaintiff was experiencing was not continuing when the transport accident occurred. At most, the plaintiff had mild intermittent neck pain prior to the transport accident, but immediately prior to the transport accident, to the extent she had pre-existing cervical degenerative disease, it was asymptomatic.
Headaches
110There was no dispute between the parties that the plaintiff had experienced migraine headaches prior to the transport accident.
Treating practitioner’s reports
Dr Jain
111The plaintiff’s general practitioner, Dr Jain, in her report dated 6 March 2024, noted the transport accident had caused the plaintiff to suffer severe injury to her neck and right shoulder. Relevantly, she diagnosed the plaintiff with severe whiplash and a soft tissue injury of the shoulder.
Dr Hafezi, pain specialist
112Dr Hafezi, pain specialist, in her report dated 5 March 2024, diagnosed the plaintiff with chronic axial mechanical spine pain of the cervical and lumbar region as well as chronic right shoulder pain. She considered that the transport accident was a significant contributing factor to the plaintiff’s current condition.
Dr Seneviratne
113Dr Seneviratne, in her report dated 22 November 2023, opined that although the plaintiff had a history of mild and infrequent migraine headaches, the transport accident was a significant contributing factor to the plaintiff’s current ongoing migraines/headaches as well as neck pain. Dr Seneviratne noted the plaintiff had pre-existing cervical spine degenerative disease which was largely asymptomatic at the time of the road traffic accident and that “it is likely she has developed a chronic pain condition together with her neck pain as well which had not improved much with pain management”.
Ms Branka Zoric, physiotherapist
114In her report dated 21 January 2022, Ms Branka Zoric, physiotherapist, diagnosed the plaintiff with a whiplash injury sustained in the transport accident.
Plaintiff’s medico-legal reports
Mr Russell Miller, orthopaedic surgeon
115Mr Russell Miller, orthopaedic surgeon, prepared three reports dated 19 January 2022, 24 February 2024 and 21 March 2024.
116In his first report, Mr Miller took a past history of a work-related low back injury in 2009 and recorded a history of no neck problems prior to the transport accident. The plaintiff had approximately three months off work and then returned with ongoing symptoms which had deteriorated following the transport accident.
117He took a history of neck and right shoulder pain as well as low back pain following the transport accident in 2020. He noted the plaintiff described:
“neck ache, discomfort and pain that radiates into the shoulders, particularly the right shoulder … The neck pain is associated with intermittent severe headaches.”
118He also identified that the plaintiff had stated that overall, she found her neck and shoulder pain worse than her lower back pain, although there were some pre-existing low back symptoms which worsened following the transport accident. The plaintiff’s symptoms were reported to fluctuate and to cause problems with sleeping, activities of daily living and to cause difficulty at work. Mr Miller reported that the plaintiff states:
“She has developed problems with anxiety and depression and also the probable development of a chronic pain syndrome which will complicate the assessment and management of her condition. This requires additional assessment by a psychiatrist.”
119He noted the plaintiff reported no other orthopaedic symptomatology.
120On physical examination, there was diffuse tenderness of the plaintiff’s cervical spine and no muscle spasm. There was irritability during neck rotation and her range of motion was reduced.
121Physical examination of the plaintiff’s right shoulder revealed diffuse tenderness, irritability and minor soft tissue crepitus during shoulder movement.
122Mr Miller had available to him, amongst other radiology, the radiological reports of an x-ray of the plaintiff’s cervical spine taken on 1 August 2018 and an MRI of the spine taken on 10 March 2020. The radiological files were not available for review.
123Mr Miller diagnosed the plaintiff with a musculoligamentous strain and aggravation of degenerative disease in the cervicothoracic and lumbar spine. There was radiation into the right upper and left lower extremities but no other features of radiculopathy, neurological deficit or structural injury. He opined that:
“Spine
…
It is likely that the injuries have been associated with the development of a chronic pain syndrome, leading to an overall fair prognosis.
Right Shoulder
The symptoms in the right shoulder are attributed to referred pain from the cervical spine, manifestation of a chronic pain syndrome and specific shoulder pathology … The prognosis is fair.
Mental State
She suffered an adverse mental state reaction with problems of anxiety and depression and probable development of a chronic pain syndrome which will complicate the assessment and management of her condition. This requires additional assessment by a psychiatrist.
It is my view however, that the client’s orthopaedic symptoms are satisfactorily explained by defined disease.”
124In his opinion, the relationship between the transport accident and the plaintiff’s neck, back and right shoulder pain and the sequelae was complex and multi-factorial. There was pre-existing disease and low back symptoms, the described injury and subsequent development of a chronic pain syndrome. He considered the plaintiff’s current clinical status to be substantially accident related.
125In his second report dated 24 February 2024, Mr Miller noted the plaintiff’s neck and right shoulder continued to be her major problem. She had neck ache, discomfort and pain. The pain radiated into the shoulders and arms, particularly the right shoulder, and further down the right arm, with feelings of numbness and tingling. The neck pain was associated with headaches. Mr Miller noted the plaintiff’s symptoms fluctuated. There had been no pattern towards improvement, and she felt they were “worse” than when she had last been reviewed by Mr Miller.
126The plaintiff was also reported to have continuing lower back problems associated with low back pain and discomfort. He reported that the plaintiff’s low back symptoms returned to the level they were at prior to the transport accident. He said her symptoms were manageable and she coped with them.
127Mr Miller identified that the plaintiff had probably developed a chronic pain syndrome which would complicate assessment and management of her condition.
128The plaintiff continued to experience diffuse tenderness more marked on the right side upon examination of her cervical spine. She had reduced range of movement of her cervical spine and there was irritability on neck rotation.
129Mr Miller diagnosed that the plaintiff had:
“… suffered a Musculo-ligamentous strain and aggravation of degenerative disease in the cervicothoracic spine. There is radiation into the right upper extremities, but there are no other features to suggest radiculopathy, neurological deficit or structural injury. It is likely that the injuries have been associated with the development of a chronic pain syndrome. I am now of the view the prognosis for the cervical spine is poor.”
130Mr Miller opined the relationship between the transport accident and the plaintiff’s neck and right shoulder pain was complex and multifactorial. The relevant factors included that there was pre-existing disease and no pre-existing neck symptoms, the transport accident and the subsequent development of a chronic pain syndrome.
131Mr Miller considered the plaintiff’s neck and right shoulder were substantially accident related whereas the lower back was not.
132Mr Miller also provided an opinion that the plaintiff might benefit from cervical spine surgery, although she had not undergone specialist review for that.
133In his third report, which was an addendum to his previous reports, Mr Miller commented on the reports of Associate Professor Mendelson dated 22 December 2023 and Mr Gary Speck dated 29 January 2024.
134Mr Miller first noted that Mr Mendelson and Mr Speck had both identified pre-existing symptoms in the plaintiff’s neck and low back area prior to the transport accident. Mr Miller further noted that Mr Mendelson did not diagnose a mental state disorder nor did he provide an explanation for the plaintiff’s ongoing symptoms, particularly those in the neck, back and right shoulder.
135Next, Mr Miller identified that Mr Speck had noted pre-existing symptoms in the plaintiff’s neck and back prior to the transport accident which he attributed to degenerative change without traumatic structural injury. He also referred to Mr Speck’s diagnosis of a soft tissue injury to the neck, chest and right shoulder which had resolved and the development by the plaintiff of a mental state reaction – somatic symptom disorder and avoidance behaviour.
136Based on Mr Mendelson and Mr Speck’s reports, Mr Miller noted that it was clear there were pre-existing symptoms in the plaintiff’s neck. He opined that there were significant difficulties with the history the plaintiff provided to him about pre-existing neck symptoms, cervical spine symptoms and the level of pre-existing symptoms in the lumbar spine. He also queried whether the plaintiff’s pre-existing lumbar spine symptoms were greater than those outlined to him by the plaintiff.
137Mr Miller then discussed the presence and role of mental health issues and noted they were particularly complex in this case. It remained his view that the plaintiff suffered from a chronic pain syndrome, that is, an abnormal mental state reaction leading to some symptom magnification. He concluded that although the plaintiff’s current symptom level was explained in part by an abnormal mental state reaction leading to symptom magnification, her current symptom level was substantially due to organic disease.
138Mr Miller noted his view differed from Mr Speck’s opinion that the effects of the transport accident had resolved. Mr Miller was not of that view. He said it did not accord with the symptoms described by the plaintiff.
Mr Awad, neurosurgeon and spinal surgeon
139Mr Awad, in his report dated 28 January 2024, noted the investigations the plaintiff had undertaken. An MRI scan showed disc protrusions at C5-6 and the L5-S1 without significant neural compression. In a later scan of the plaintiff’s neck and lower back taken on 5 November 2022, the conclusion was unchanged. An MRI scan of the plaintiff’s brain from 21 August 2022 showed no intracranial haemorrhage or masses but there was evidence of left-sided paranasal sinus disease. An MRI scan of the plaintiff’s cervical spine from 24 March 2023 showed arthritic changes at C5-6 with no cord compression or significant foraminal stenosis.
140He undertook an examination of the plaintiff. She had limited range of movement of her cervical spine with most of her limitations and pain to the left lateral rotation. Her flexion and extension were limited. The plaintiff had right shoulder pain and some limitations in flexion and extension of her lower back to approximately 60 degrees and 10 or 20 degrees respectively.
141Mr Awad diagnosed the plaintiff with aggravation of cervical spondylosis and cervicogenic headaches as well as an aggravation of pre-existing lumbar spondylosis. He did not comment on the plaintiff’s psychological injuries as he said they were outside his expertise. He considered the plaintiff’s cervical spine injury to be a new injury as a result of the transport accident and that the plaintiff would experience ongoing pain and disability into the foreseeable future.
142In his supplementary report dated 4 April 2024, Mr Awad noted the plaintiff was working part-time prior to the accident. Upon review of the reports of Associate Professor Mendelson and Mr Speck, he confirmed his opinion remained the same: that the plaintiff had likely suffered aggravation of cervical spondylosis with cervicogenic headaches and aggravation of pre-existing lumbar spondylosis. Mr Awad acknowledged the plaintiff may have some mental health issues, but he opined that there was an organic basis for the plaintiff’s injury.
Dr Gavin Weekes, pain specialist
143Dr Gavin Weekes, pain specialist, prepared a report dated 28 March 2024.
144After taking a history from the plaintiff, he noted that on examination there were no obvious deficiencies in her cranial nerves. Flexion of her cervical spine increased pain more than extension and the range of motion of flexion was reduced more so than in extension. Rotation of the plaintiff’s cervical spine, in particular to the left side, exacerbated her pain. She had significant tenderness from the occipital ridge on the right side all the way down to the lower cervical facet joints. There was no obvious neurological deficit of her upper limbs. Range of motion of the plaintiff’s right shoulder in flexion and abduction was limited to approximately 90 degrees.
145Dr Weekes diagnosed the plaintiff with aggravation of cervical spondylosis and cervicogenic headaches as a result of the transport accident.
146He opined that the plaintiff’s prognosis was poor, and it was likely her pain would continue.
Defendant’s medico-legal reports
Mr Gary Speck, orthopaedic surgeon
147Mr Speck, orthopaedic surgeon, prepared a report dated 29 January 2024 following an examination of the plaintiff undertaken on 24 January 2024.
148The history taken included that at the time of the transport accident, the plaintiff was working casually in an administrative role. Since the transport accident, she had been working as a teacher’s aide at Belgrave Heights Christian School for about 20 hours per week.
149The plaintiff was noted to have a long history of lower back complaints, having first experienced lower back pain as a result of a different transport accident on 28 March 2007. She also sustained a lower back injury in the course of her employment as a disability support worker in about 2009. Mr Speck noted that the plaintiff’s lower back injury continued to such an extent that she was in receipt of the disability support pension from in or about October 2019.
150The plaintiff had initial treatment from Dr Jain. She was referred to various practitioners including Dr Seneviratne, neurologist, in relation to her headaches. A previous history of migraines was noted.
151She was sent for physiotherapy, had treatment with an acupuncturist and attended hydrotherapy. More recently, she attended the Advance Multidisciplinary Pain Program. She had injections into her neck which she felt made little difference. The sharp pain persisted. She was approved to undergo pulsed radiofrequency treatment, but she did not wish to pursue that. She attended a psychologist and continues to have treatment.
152Mr Speck considered the radiology including the MRI Cervical Spine taken on 6 July 2021. That indicated that the plaintiff had sustained a whiplash injury six months prior. She was suffering from right-sided neck pain. The scan was reported as showing degenerative disc bulges at C5-6 and C6-7 with mild right neural foraminal narrowing at C5-6. Mr Speck agreed with the report and noted that the changes were consistent with constitutional and age-related changes. He said they were not indicative of a specific source of the plaintiff’s symptoms.
153Mr Speck considered the plaintiff’s current symptoms were not associated with any neurologic findings and with modest restriction of function. Her symptoms in her right shoulder were predominantly referred symptoms from the neck with limited movement related to pain rather than structural changes within the shoulder joint.
154Mr Speck diagnosed the plaintiff with soft tissue injuries to her neck, chest and right shoulder region as a result of the transport accident. He said there was no evidence of the plaintiff having discoligamentous or vertebral structural injury. The symptoms in her neck and shoulder region were consistent with a somatic symptom disorder and resolved soft tissue injury with avoidance behaviour limiting the use of the right shoulder. Mr Speck suggested that mental health diagnoses should be sought from an appropriate mental health expert.
What injuries did the plaintiff sustain as a result of the transport accident?
155The central issue in dispute between the parties was whether the plaintiff also suffered from a chronic pain syndrome - abnormal mental state somatic symptom disorder. I am not satisfied that she does.
156First, there is no psychiatric evidence to support that conclusion. In his third report, Mr Miller commented on the reports of Associate Professor Mendelson dated 22 December 2023 and Mr Gary Speck dated 29 January 2024. Both identified pre-existing symptoms in the plaintiff’s neck and low back area prior to the transport accident. Mr Speck said the symptoms experienced by the plaintiff were consistent with a mental state disorder. However, it was unclear on what basis Mr Speck formed that view. He had no specialised knowledge as a psychiatrist and at various points in his report he qualified his opinion in any event, by commenting that “consideration of a somatic symptom disorder should also be undertaken by a mental health expert.”
157Mr Miller also concluded the plaintiff suffered from a chronic pain syndrome. Like Mr Speck, he lacked the specialised knowledge to form that opinion. In the absence of independent psychiatric evidence, that aspect of Mr Miller’s opinion was devoid of foundation. Further, although there were “significant difficulties” with the history of pre-existing neck pain and symptomatology provided to him by the plaintiff, and although the current symptom level was explained in part by an abnormal mental state reaction leading to symptom magnification, Mr Miller was of the view the plaintiff’s current symptom level was nevertheless substantially due to organic disease.
158Having discounted the opinions of Mr Speck and Mr Miller, I prefer the opinion of Mr Awad that the plaintiff had likely suffered aggravation of cervical spondylosis with cervicogenic headaches and aggravation of pre-existing lumbar spondylosis. Mr Awad acknowledged the plaintiff may have some mental health issues, but he made clear that providing an opinion about those issues fell outside his area of expertise. Further, notwithstanding the mental health issues, he opined that there was nevertheless an organic basis for the plaintiff’s injury.
159Second, a conclusion that the plaintiff is suffering from a somatic symptom disorder is not supported by the preponderance of evidence from the plaintiff’s treating practitioners. None of Dr Jain, Dr Hafezi or Ms Zoric, diagnosed the plaintiff with a somatic symptom disorder.
160Dr Seneviratne, in her report dated 22 November 2023, opined that the plaintiff had pre-existing cervical spine degenerative disease which was largely asymptomatic at the time of the road traffic accident and that “it is likely she has developed a chronic pain condition together with her neck pain”. Dr Seneviratne’s opinion was an outlier amongst the plaintiff’s treating practitioners and because she is a neurologist and not a psychiatrist or pain specialist, there was no foundation for the opinion the plaintiff had developed a chronic pain condition. For those reasons, I reject her opinion.
161The plaintiff did not tender a report from her treating general practitioner, Dr Weng. The defendant submitted an adverse inference should be drawn against the plaintiff. The plaintiff submitted that because Dr Weng did not treat the plaintiff in respect of the transport accident, no adverse inference should be drawn. Further, any inference would be limited because it would be impermissible to speculate what Dr Weng might have said if called or asked to provide a report. The most that could be said was the evidence of Dr Weng would not have assisted the plaintiff’s case. I accept this submission. Based on the plaintiff’s evidence and the clinical notes, Dr Weng did not treat the plaintiff after the transport accident, other than intermittently. In addition, Dr Weng’s evidence would not have assisted in resolving the issue of whether the plaintiff had a somatic symptom disorder for the same reasons that Dr Seneviratne’s opinion did not assist.
162Third, the nature and mechanism of the plaintiff’s injury and the circumstances of her accident provide an organic basis for the pain she says she experiences. As identified, during the transport accident the plaintiff’s car was struck on the right side near the driver’s door. The car spun around, and the plaintiff hit her head and right shoulder against the side of the vehicle and her chest on the steering wheel. The plaintiff lost consciousness momentarily and after the collision she felt sharp pains in her neck extending upwards and out towards her right shoulder and arm, the right side of her head and her neck. Each of those matters demonstrates that the accident had a physical impact on the plaintiff; particularly on her head and neck, which was consistent with the subsequent development of cervicogenic headaches.
163At the date of hearing, I am satisfied the plaintiff suffers from:
(a) aggravation of a pre-existing lower back condition/lumbar spondylosis;
(b) cervicogenic headaches;
(c) musculo-ligamentous strain and aggravation of cervical spondylosis degenerative disease in the cervicothoracic and lumbar spine radiating to the right upper and left lower extremities;
(d) chronic axial mechanical spine pain of the cervical and lumbar spine regions;
(e) chronic right shoulder pain;
(f) neck ache, discomfort and pain radiating into the shoulders and arms, particularly the right shoulder, and further down the right arm with feelings of numbness and tingling,
(g) neck pain associated with cervicogenic headaches.
Permanence
164I am satisfied that the plaintiff’s injuries are long term. As Mr Awad noted she is:
“… likely to suffer the ongoing consequences of the injury now in the form of some degree of pain and disability into the foreseeable future.”
What are the consequences of the plaintiff’s injury? Is the injury a “serious injury”?
Pecuniary disadvantage
165The plaintiff submitted that one of the significant consequences of her cervical spine injury was her inability to work two jobs and she suffered pecuniary disadvantage as a result of that consequence.
166The defendant, conversely, submitted there was no prospect the plaintiff would ever have been capable of working two jobs. Any argument it was probable the plaintiff suffered pecuniary disadvantage because of an inability to perform two jobs was not sustainable.
167First, it was submitted the plaintiff’s evidence as to her intention to work two jobs was unreliable. There was nothing included in her first affidavit to suggest the plaintiff intended to work two jobs. This was notwithstanding the plaintiff was aware, from having been party to an earlier, unrelated serious injury application in 2013, of the need to include such information in her affidavit. All that was said about her work after the accident, was she continued to struggle with her work duties due to neck and right shoulder pain and in April 2021 decided to change jobs and become a teacher’s aide.
168Second, it was submitted the plaintiff had been a longtime recipient of a disability pension. It was improbable she intended to work two jobs because any additional income she would have earned over a certain number of hours would affect her receipt of the disability pension.
169Third, although the plaintiff contended she was struggling at work and that was what had prompted her to change jobs in April 2021, when she submitted a letter of resignation to SERCO, it did not say she was resigning because of the injury she sustained as a result of the transport accident. The reason the plaintiff left the job with SERCO, was because she had been offered a job elsewhere that she had studied for and wanted.
170The plaintiff was cross examined about her intention to work two jobs and her claim to have suffered pecuniary disadvantage because of her inability to do so. It was suggested to her that if it was her intention to work two jobs, she had said nothing about that in her first affidavit. She accepted that. She also agreed she knew, from her involvement in an earlier serious injury application with respect to her lower back, that a part of the case would involve her loss of income as a result of her inability to work. Her explanation for not including reference to her intention to work two jobs was that it must have skipped her mind. She said:
“I’m sorry, I must have not mentioned it to the lady who did the affidavit.”
171The plaintiff disagreed that it was pure speculation she was going to get a second job. She said:
“I was actually planning to do [work two jobs] because of the house that I was going to build and it is so hard so that would’ve helped.”
172However, she also accepted she did not have a mortgage and was renting at the date of the transport accident.
173Next, it was put to the plaintiff that if she intended to work two jobs, her second affidavit did not support that position.
174In her second affidavit, the plaintiff said before the transport accident her plan once she finished study was –
“… to work in education support during the day, and continue working for the NDIS in the evenings. I planned to do this so that I would effectively be working more than full-time hours, which was important to me given that I had previously been out of the workforce for a long time, been through a divorce, and needed to earn extra income to pay my mortgage.”
175After the transport accident, she explained she struggled with her work at SERCO. Working on a computer with her head and shoulders in a fixed position, caused her pain to significantly increase. She said she reduced her hours and had frequent days off work, and eventually decided she could no longer do that job. She gave further evidence that her work now as a teacher’s aide, enabled her to change posture, although she still experienced difficulty with tasks such as cutting and laminating due to right shoulder and neck pain. She also said she found reading to younger children painful.
176The plaintiff was cross examined about her evidence and the suggestion she was struggling with her role. She was asked about the letter of resignation she wrote on 6 April 2021 to SERCO which said nothing about struggling with her role, but rather suggested she was “reluctantly resigning” and was very grateful to SERCO and the leadership team.
177The letter also outlined she had been offered a position at a school, working in learning support with students with additional needs. It continued, “if it’s possible I am happy to continue as a casual relief staff and work during school holidays and I can assure you that I will let the team leaders know my availability in advance.” It was suggested to the plaintiff that the real reason she resigned from SERCO was because she obtained a job with Belgrave Heights Christian School working in learning support and it was a “dream job” for her. It was a job she had studied for and preferred. She did not resign because she was struggling with her role.
178The plaintiff responded that was partly wrong. She said:
“I couldn’t do that job. I couldn’t go like on for five, six hours. I – if I didn’t get teacher’s aide job and if I didn’t meet with an accident, I would’ve kept my certificate at the end of 2020 and still worked for SERCO because I liked working for NDIS and all these things happened, I did have ---"
179She also partly agreed she resigned because she wanted a job working in education support and the job at Belgrave Heights Christian School was the kind of job she had been hoping to get. The plaintiff said that accepting the job with Belgrave Heights Christian School:
“… was the only option for me at the time because I studied it and the reason I wrote an email like this, my supervisors and everybody already knew about the accident and they knew about me reducing hours and everything and with the shoulder injury and the neck injury, so I didn’t want to put all that again in a letter, so I just wrote that because I already accepted the offer from Belgrave Heights.”
180She explained that if she had not had the transport accident injury, she could have worked some additional hours with SERCO. She thought she would have been able to work at least two nights per week and possibly as a casual during school holidays. She believed this because when she obtained the role with Belgrave Heights Christian School, she had already sought extra casual work from SERCO because she did not think she could afford to pay a mortgage at the time with one job.
181It was put to the plaintiff she did not end up working during school holidays or taking on extra work with SERCO. The plaintiff explained that was “because the pain was too much I couldn’t data process, I couldn’t keep my right hand up and keep going for five, six hours, that’s the reason for leaving SERCO initially.”
182I have considered the plaintiff’s evidence and I do not accept that at the date of the transport accident, the plaintiff intended to work two jobs.
183First, she was studying for her Certificate IV in Education Support and her intention was to work in that field. That is consistent with her evidence when cross examined, that before the transport accident, education support was a career path the plaintiff hoped to, and did, ultimately pursue.
184Second, it is improbable she was planning on working two jobs at the date of the transport accident. She did not say in her first affidavit she needed to work two jobs. At that date, as identified by Mr Awad in his report dated 28 January 2024, the plaintiff “had been approved for a loan”. She did not have a pre-existing mortgage. Further, although she said in her first affidavit, she was on the way to sign a contract to build a new home when the transport accident occurred, at that date she had not signed the contract. It therefore cannot be said she was at any pecuniary disadvantage because of the transport accident. She chose to sign a building contract after the transport accident. It was not until that contract was signed that the liability with respect to her new home or mortgage arose.
185Third, even if I am wrong and the plaintiff did intend to work two jobs, I do not consider, given her pre-existing lower back injury, the plaintiff would have been capable of working a second job at the date of the transport accident. Although the plaintiff suggested that absent the transport accident, she would have worked four or five hours a day as a teacher’s aide and then two nights a week on the emails for SERCO and that would have been possible because she had a “sit stand desk” and a “perfect chair” for her back, I disagree. At the date of the transport accident, the plaintiff had at least moderate lumbar spine pain and dysfunction which would have precluded her performing two jobs.
186The plaintiff suffered the injury to her lower back in 2009. A year or two after the plaintiff suffered the injury to her lower back, she commenced to receive a disability pension. The plaintiff said she reported the income she got to Centrelink, and she received a part pension depending on the hours she worked. She accepted she had not made any enquiries about what the effect of two jobs would have been on her pension when the accident occurred. She explained this by saying she had only just finished her Certificate IV. She said:
“At that time I didn’t even have a second job. All I had was the SERCO job. So I didn’t – I didn’t ask Centrelink about all that.”
187She assumed her pension would have been reduced significantly if she had got a second job, but she did not consider it would have been taken away completely. In any event, she nevertheless accepted she continued to receive a disability pension in respect of her lumbar spine injury.
188On 6 April 2009, the plaintiff applied for Disability Benefit through her ANZ Credit Card Insurance. Her application form stated the nature of her injury as an L5-S1 disc prolapse. The plaintiff had ticked the box stating that she was unable to resume employment or to attend her usual occupation as a disability support worker from 24 March 2014 for an indefinite period. She agreed in cross examination that based on that form she was unable to weight bear or push wheelchairs or anything like that.
189In 2019, the plaintiff applied for a Centrelink mobility allowance. A medical report dated 9 August 2019 was obtained for that purpose from Dr Weng. The report identified the plaintiff had an L5-S1 disc prolapse. She had minor difficulty negotiating steps in or out of public transport and negotiating a large flight of steps, and had moderate difficulty standing and sitting on public transport. The report also noted the plaintiff was permanently “unable to sit long time/distance in the bus due to back pain”. When cross examined, the plaintiff accepted that for the last several years sitting or standing on public transport had not been realistically possible for her.
190Following the incident on 3 March 2020, the plaintiff also applied, on 6 March 2020, for a Carer Payment and/or Carer Allowance in respect of her lumbar spine injury. The application form described that injury as permanent and not likely to improve.
191At the date of the transport accident, as I have found, the plaintiff was being prescribed Lyrica. The most probable explanation for that prescription, notwithstanding the plaintiff’s belief she had been prescribed Lyrica for neck pain, was that it was prescribed for lower back pain. Further, as Mr Awad noted in his report, the plaintiff had also been taking Meloxicam 15 milligrams for lower back pain before the transport accident.
192Fourth, regardless of any pre-existing lower back injury, the pain and dysfunction which resulted from the plaintiff’s right shoulder injury was sufficient, of itself, to preclude the plaintiff working two jobs even absent the plaintiff’s cervical spine injury.
193In his first report dated 19 January 2022, Mr Miller opined the plaintiff’s right shoulder injury would lead to difficulty with work involving large amounts of repetitive right arm actions, use of the right arm in the above-shoulder position and lifting of weights of more than 2 kilograms.
194In his second report dated 24 February 2024, Mr Miller identified that the plaintiff’s neck and right shoulder had caused her difficulties with prolonged periods of keyboard work. She had been required to discontinue her work as an email processing officer as a result.
195Dr Weekes identified, in his report dated 28 March 2024, that the plaintiff continued in the workforce as a learning assistant four days a week for four to five hours a day and previously had plans to increase her work hours. He considered the transport accident had affected the plaintiff’s employment opportunities, but noted in his report this was because of repetitive use of her right upper limb. Dr Weekes said the plaintiff:
“… is unable to return to her role as an email process officer as this involved repetitive data entry which involved repetitive use of her right upper limb. She has transferred her employment role to a less laborious task of learning assistant.”
196The plaintiff also identified she did not end up working during school holidays or taking on extra work with SERCO at least partly due to pain and dysfunction emanating from her right arm:
“… because the pain was too much I couldn’t data process, I couldn’t keep my right hand up and keep going for five, six hours, that’s the reason for leaving SERCO initially.”
197I have concluded that absent the transport injury, on the balance of probabilities, the plaintiff would not have been capable of working two jobs. As a result, in assessing the consequences of the plaintiff’s injury I do not take account of any inability by the plaintiff to work two jobs.
198The plaintiff submitted prior to the transport accident she was working on average 30.52 hours per fortnight and after the transport accident she was working an average of 24.96 hours per fortnight.
199The defendant submitted the plaintiff was working 27.6 hours per fortnight prior to the transport accident and 24.96 hours per fortnight after the transport accident. The hours the plaintiff worked before the transport accident were “pretty similar” to the hours she worked after the transport accident. Even if there was a pecuniary loss, it was minimal at best and could well be regarded as being below any threshold that applies to establish pecuniary disadvantage.
200I have considered the hours the plaintiff is now working. The plaintiff accepted in cross examination that the hours she was working before and after the transport accident were “pretty similar”. On any view of the evidence, however, the plaintiff is now working less hours than she was before the transport accident. I find that the reduction in hours was productive of some pecuniary disadvantage to the plaintiff.
201Although the defendant contended that any pecuniary disadvantage “could well be regarded as being below the threshold that applies”, that is not the test. Whether the plaintiff has suffered a “serious injury” is assessed by considering the consequences of the injury in relation to either pecuniary disadvantage, or pain and suffering, or both.[13] Even if a plaintiff does not satisfy the “very considerable” test when pecuniary disadvantage is considered alone, the consequences of her injury may still meet the threshold required when pain and suffering and pecuniary disadvantage are considered in combination.
Pain
[13] Philippiadis v Transport Accident Commission (supra) at paragraph [24].
Lower back
202After the transport accident the plaintiff described an initial increase in her lower back pain, but she said that had largely settled back to the level it was before the transport accident.
203I have found that at the date of the transport accident, the plaintiff had moderate lower back pain. She had been prescribed Lyrica since March 2020. That prescription ceased on 14 December 2020. I am satisfied that after that time, the plaintiff continued to experience intermittent flare-ups of pain. They ranged in severity.
Right shoulder
204The plaintiff also described experiencing constant severe pain in her right shoulder. Her right shoulder felt heavy and stiff, and her pain increased with movement of her arm above shoulder height and with lifting, pulling, pushing or repetitive activities.
205The plaintiff said her most significant problems were her neck and right shoulder pain.
206The plaintiff’s daughter confirmed that since the transport accident, her mother has complained of pain in her neck, right shoulder and back. She had observed her mother pressing down on her neck and right shoulder area to massage them to try to relieve the pain. She also identified that the plaintiff groans while she does that and had observed her doing that at least once a day. She moves her arms in circles to relieve the pain in her shoulders; she sometimes has her hand on her back when she walks, and she also gets bad migraines.
207Dr Weekes also reported the plaintiff described constant, aching, right shoulder pain with a pain score of 8/10 with increased pain on repetitive movement of her right shoulder.
208The plaintiff gave evidence she had a cortisone injection into her shoulder. She did not have any injections into her neck.
209I further find the plaintiff had bursitis in her shoulder, productive of considerable pain.
Neck/cervical spine
210In her first affidavit the plaintiff also described the pain she has experienced in her neck since the transport accident. She described constant severe pain in her neck radiating up into her head which was more severe than before the transport accident. This caused frequent severe headaches. Her neck felt stiff and tight. She had increased pain upon moving her head from side-to-side, when holding her head in a fixed position for an extended period, and with prolonged use of her arms.
211Mr Speck, in his report dated 29 January 2024, described the pain the plaintiff experienced as pain in the neck in the midline to the base of the right neck. It was predominantly in the trapezius muscle. It was constantly present and was of a burning as well as a stabbing nature. It extended from the midline in the mid-cervical region through the trapezius and out to the acromion with occasional extension into the proximal deltoid muscle. There was no extension into the upper extremity and no pins and needles, numbness or other pain in the upper extremity.
212Mr Speck also noted the plaintiff described the pain in the neck and shoulder region as 6/10 on a spectrum of severity of pain with 10/10 being the worst pain experienced. She said her pain could vary from 4/10 to 9/10. Medication and stretching could help alleviate the pain.
213The symptoms she experienced in her neck increased when she did head checks to change lanes, when reading and driving in traffic. Lifting sometimes increased her symptoms around the right shoulder blade.
214Mr Awad, in his report dated 28 January 2024, identified that the plaintiff complained of constant neck pain which she described as being of an intensity of between 5-8/10. She had cervicogenic headaches which came and went in intensity depending on the tasks she was performing and the position her head was in.
215Dr Weekes, in his report dated 28 March 2024, reported the plaintiff had described a constant neck pain with a pain score of 7/10. The pain was a throbbing pain which could be exacerbated by repetitive activity or movement involving the plaintiff’s cervical spine.
216Following the transport accident, I am satisfied that at the date of the hearing, the plaintiff experienced ongoing constant neck pain radiating up into her head of between 5-8/10 on the pain scale. The pain was a throbbing pain which could be exacerbated by repetitive activity or movement involving the plaintiff’s cervical spine.
217The plaintiff was cross examined about whether she had received any pain management treatment for her neck. She said she was referred to Dr Pouya Hafezi, specialist pain medicine and rehabilitation physician, who recommended radio frequency therapy and explained the benefits and disadvantages to her. The plaintiff said:
“… because Dr Huya [sic] explained what the good and bad it can do to me and I was a little bit hesitant to do it and go ahead with it.”
218The plaintiff explained the pain management treatment was discontinued on the recommendation of Lachie Robinson, physiotherapist at Advanced Healthcare, a pain management clinic, because the work the plaintiff did with children was aggravating her neck pain. The plaintiff said the pain management clinic recommended she do exercises which she did.
219I am satisfied that although pain management treatment was not pursued by the plaintiff, this was because her physiotherapist and the team at Advanced Healthcare did not think it would assist her and because while there may have been benefits, there were also risks about which she was understandably hesitant.
Headaches
220In her second affidavit, the plaintiff said that Dr Seneviratne had told her the headaches are likely related to her neck and shoulder pain.
221Dr Seneviratne, in her report dated 22 November 2023, opined that the plaintiff experienced discomforting migraine headaches and neck pain a few times a week. She said it could interfere with the plaintiff’s work and day-to-day activities. She considered the headache condition was moderately controlled by migraine prophylaxis and other treatment measures and that the pain the plaintiff experienced from her headache condition and neck was of moderate severity.
222Additionally, the plaintiff described to Dr Weekes on 28 March 2024, a constant headache with dull pain with a pain score of 6/10 primarily affecting the occipital part of her head at the vertex of her head. The plaintiff denied migrainous features to her headache.
223It was submitted by the defendant that the plaintiff’s headache condition was pre-existing.
224The plaintiff was asked in cross examination about the headaches she now experiences. She said they were different to the headaches and migraines she experienced before the transport accident. They came from the top of her head and were not migraine headaches. She described them as constant although she said she could still work and teach children.
225It was suggested to her that she had complained of headaches at the top of her head before the transport accident. She was referred to a telephone consultation she had undertaken with Dr Weng on 9 September 2020. The plaintiff accepted the note created by Dr Weng said “complained of headache for two to three months, had an eye check already. Daily headache, eye pressure feeling, sleeping well, top of head.” However, she said “I’m not sure what I said to her at the time to Dr Jennifer. As I said, I was going through a lot during those times, yeah.”
226I accept that before the transport accident, the plaintiff experienced lower back pain. It was fairly constant, but generally it was pain at a lower level on the pain spectrum. On occasion, the plaintiff’s lower back pain would flare up and become more severe. At those times, it could be 7-10/10 on the pain scale. I find that she was experiencing lower back pain at the date of the transport accident for which she was being prescribed Lyrica.
227After the transport accident, there was an initial increase in the plaintiff’s lower back pain; however, it ultimately settled at similar levels to that which had existed prior to the transport accident.
228I accept that prior to the transport accident the plaintiff did experience some neck pain. It was not particularly significant.
229The clinical notes of Dr Weng made some references to the plaintiff experiencing headaches prior to the transport accident. There were several reasons why the plaintiff was experiencing headaches. For instance, on 11 November 2013, reference was made to “3/52 of headache” and “had migraine headache in the past but was diff position with this headache.” On 20 October 2017, the plaintiff complained of a migraine type headache. On 6 February 2018, the plaintiff complained of a headache to Dr Thao Thi Nguyen. She had experienced a similar headache in the past. It was unclear, but the clinical notes seemed to suggest it may have been a migraine headache.
230On 16 March 2017, there was reference to a headache in the context of pressure around the plaintiff’s eyes.
231On 16 December 2019, the plaintiff consulted Dr Weng complaining, amongst other things, of a fever, cough, nausea and a headache.
232On 18 May 2020, the plaintiff had a headache. At the time, she was finding it difficult to cope with the passing of her mother. Dr Weng also referred the plaintiff to an ophthalmologist.
233On 2 October 2020, the plaintiff saw Dr Jain and complained of a headache and of feeling anxious. She was requesting a mental health day.
234On 10 October 2020, the plaintiff discussed the cause of her headaches with Dr Weng. It was noted she was under some stress at work and had some emotional issues. The plaintiff thought those were the cause of the headache she was experiencing.
235There were two complaints made by the plaintiff before the transport accident of headaches on the top of her head. The first was on 1 September 2017 to Dr Weng. The plaintiff complained of “… 1/52 of headache constant headache top of head and side of head”. She explained her husband wanted a divorce. This explanation was consistent with a later complaint of headache on 3 June 2019. Dr Weng noted that “headache at time could be stress due to incoming diveroce [sic] counselling ++ saw psychologist in the past.”
236On 9 September 2020, the plaintiff also complained of “headache for 2-3/12 had eye check already daily headache eye pressure feeling sleeping well top of head”. An MRI scan – brain was requested to further investigate the headache and to rule out an intracranial lesion. The MRI scan – brain was undertaken on 15 September 2020 and no abnormality was detected.
237After the transport accident, the plaintiff complained of migraine headaches much more frequently. For instance, Dr Weng recorded on 7 April 2021, she complained of a weekly migraine headache over the preceding few months. She also complained of throbbing pain from a bilateral headache on the top of her scalp area. That was the first reference to a throbbing type of pain.
238Over the following five months, although the number of headaches experienced by the plaintiff initially decreased, overall, the plaintiff’s headaches continued to increase. The clinical notes on 11 May 2021 suggested this could have been, at least partly, due to the cessation of the drug Betaloc. The notes also identified that it may be necessary to consider “other prophalatic [sic] medication for her migraine later”.
239On 31 August 2021, when the plaintiff first saw Dr Seneviratne, she had already commenced on Inderal and Imigran.
240On 3 September 2021, the plaintiff ceased taking Imigran and at around the same time she ceased taking Inderal. The clinical notes then make no reference to further headaches until 23 May 2022 when the plaintiff complained of a headache in the context of a heavy chest, wheeze and some dehydration.
241The next reference in the clinical notes to a headache at the top of the plaintiff’s head was on 15 June 2022. The note by Dr Weng indicated the plaintiff felt a burning sensation and was being prescribed Maxalt, which was helping. She was referred to a neurologist again and underwent a CT scan due to the increase in headaches.
242On 18 June 2022, the plaintiff was still waking with a headache.
243The clinical notes on 18 June 2022 recorded that a further CT scan showed no intracranial lesion.
244On 8 July 2022, the plaintiff was continuing to have headaches.
245There were no further references in the clinical notes to headaches then until 12 December 2022, when the plaintiff had a headache in the context of a fever.
246On 6 January 2023, the plaintiff experienced some headaches. On 25 January 2023, the plaintiff was recorded by Dr Weng as “sill having migraine headache”.
247I am satisfied that after the transport accident, the plaintiff experienced both migraines and other headaches. There were only two references in the clinical notes to headaches at the top of the plaintiff’s head prior to the transport accident, and they were about two years apart. The first was in the context of stress as a result of the plaintiff’s divorce. The second was when the plaintiff was experiencing pressure around her eyes.
248The headaches the plaintiff experienced after the transport accident were much more frequent and included both migraines and headaches at the top of her head.
249The headaches at the top of the plaintiff’s head were experienced by her as a constant throbbing pain. That type of pain was first experienced after the transport accident. At times, that pain was accompanied by a burning sensation. In my view, the headaches experienced by the plaintiff after the transport accident were of a different type to those experienced before the transport accident.
250The conclusion I have reached is consistent with the opinions of Mr Awad and Dr Weekes whose opinions I prefer to those of Dr Seneviratne and Mr Speck. The plaintiff had cervicogenic headaches which varied in intensity depending on the position of her head and were experienced as a throbbing pain sometimes accompanied by a burning sensation. She also had a constant headache with dull pain with a pain score of 6/10 primarily affecting the occipital part of her head at the vertex of her head.
251The plaintiff has the onus of disentangling what pain arises from what injury. It is not permissible to aggregate the consequences of multiple injuries. Although it was apparent the plaintiff experienced pain from both her cervical spine and her right shoulder, I am satisfied the pain from her cervical spine was, regardless of the right shoulder injury, at least moderate pain. Additionally, it has resulted in constant, throbbing and burning cervicogenic headaches. They are different to the migraine headaches the plaintiff experienced before the transport accident. They have impacted her work and her day-to-day activities.
Medication and medical treatment
252The plaintiff received medical treatment from Dr Jennifer Weng at the Waverley Police Road Medical Centre for over 25 years, up until about mid-2021. Dr Weng managed the plaintiff’s lower back condition, and the plaintiff continues to see her from time-to-time.
253The plaintiff also consults Dr Jain at the Parkhill Medical Centre, Berwick.
254The plaintiff initially said in cross examination that the only medications she had taken for pain prior to the transport accident were Mobic for her back, Voltaren, Panadol Rapid and maybe some Panadeine Forte which she had taken when she was having really bad back pain at the beginning in 2009 or 2010. It was later put to the plaintiff that before the transport accident, she had taken Endone and Lyrica in March and April 2020, for her lower back condition. Those prescriptions ceased respectively on 28 March 2020 and 14 December 2020.
255The plaintiff was also asked about the medications she was prescribed after the transport accident and her evidence about taking Tramadol.
256In her first affidavit, the plaintiff said she managed her pain with Tramadol. She said she tried to avoid taking it too often, but usually took it one to two times per week when her neck and right shoulder pain were particularly severe. To manage her headaches, she supplemented the Tramadol with Panadol which she took in the evenings and Maxalt wafers which she took a few times a week.
257In cross examination, the plaintiff agreed she was first prescribed Tramadol on 23 November 2020, the day after the transport accident. The prescription was written by Dr Aung Soe Moe, a casual doctor at the Park Hill Medical Centre.
258In her second affidavit, she said she continued to be prescribed Tramadol which she was taking approximately four times per week. She was also taking Lyrica 75mg, taken on Monday and Thursday nights; Topiramate daily for headaches; and Maxalt wafers about once per week. In addition, she said she was taking Panadol Rapid tablets 3-4 times per week to manage her pain.
259Mr Miller, in his second report, said the plaintiff continued to use a range of medications including Tapentadol, Topamax, Maxalt wafers for her headaches and Lyrica. She had had physiotherapy, acupuncture and hydrotherapy in the past, but those are not ongoing.
260Mr Awad, in his report dated 28 January 2024, identified that the plaintiff’s current treatment included regular appointments with a pain specialist, possible Botox injections for headaches, psychology every three months, neurology appointments every six months, physiotherapy and pain medications, including Tramadol 100mg regularly, Tapentadol 50 mg regularly, Topamax 25 mg regularly, Maxwell wafer as required, Lyrica 75 mg daily for neck pain and Meloxicam 15mg for lower back pain (which she was on prior to the transport accident).
261Mr Speck, in his report dated 29 January 2024, noted the plaintiff’s current prescription medications at the date of his report, to be Tapentadol 50mg instant release, which she took most days in the morning when she was working. She used Mobic for back pain and when her back flared up, but not for neck symptoms. She used Topamax 25 mg once or twice a day for two or three days per week, and she carried Maxalt wafers for emergencies. Her general practitioner had prescribed Lyrica 75 mg to take as needed for neck pain.
262Mr Weekes, in his report dated 28 March 2024 identified that the plaintiff’s current treatment regime includes Tramadol 100 mg which she can take up to twice a day, Tapentadol 50mg twice a day, Topamax, Maxalt prn and Lyrica 75 mg twice a day. She also continues to see a neurologist, a pain specialist and a psychologist.
263I find at the date of the hearing, the plaintiff was taking various prescription medications for her neck pain and headaches including Tramadol 100 milligrams, taken regularly up to twice a day; Tapentadol 50 milligrams instant release, taken most days twice a day; Topamax 25 milligrams, taken regularly (two to three times per week) once or twice a day; Maxalt wafers as required for headaches, and Lyrica 75 milligrams at least daily for neck pain.
264The plaintiff was also taking Meloxicam 15 milligrams and Mobic for lower back pain. The plaintiff had previously taken Endone for lower back pain, but that had ceased by the date of the transport accident.
265The plaintiff also takes Voltaren, Panadol Rapid and Panadol as needed for pain generally.
266In addition to the prescription medications the plaintiff was taking, and attendances upon her general practitioners, she was also undergoing treatment with a neurologist, a pain specialist and a psychologist. She has previously been treated with physiotherapy, acupuncture and hydrotherapy, but those were not ongoing.
Sleep
267After the transport accident, the plaintiff described in her first affidavit, experiencing difficulties sleeping due to the pain in her neck and right shoulder. The plaintiff said she used to sleep on her right side, but she cannot do that now without an increase in right shoulder pain. She said her sleep is broken by pain and she feels tired and has difficulty concentrating during the day, which she said contributes to the onset of severe headaches and affects her ability to work.
268The plaintiff’s daughter confirmed in her affidavit that her mother has experienced trouble sleeping since the transport accident and has complained to her about not getting enough sleep. She has observed her mother to be tired and frustrated in the mornings and sometimes hears her waking at night.
269In his second report, Mr Miller noted the plaintiff reported that her neck and right shoulder symptoms caused sleep disturbance, but he did not distinguish to what extent each was impacting the plaintiff’s sleep.
270The plaintiff described to Dr Weekes how her neck pain severely interfered with her ability to sleep. She said her neck pain could wake her from her sleep over five times a night.
271I am satisfied, that even without the plaintiff’s right shoulder pain, her sleep is impacted at least to a moderate extent as a result of her neck pain. Because her sleep is broken she is tired which in turn contributes to the headaches she experiences.
Mobility
272In his report, Mr Awad noted an MRI scan of the plaintiff’s spine from 24 March 2023 showed the plaintiff had arthritic changes at C5-6 with no cord compression or significant foraminal stenosis. The plaintiff had limited range of movement of her cervical spine with most of her limitations and pain to the left lateral rotation. Her flexion and extension were limited.
273Mr Weekes observed upon examination there were no obvious deficiencies in the plaintiff’s cranial nerves. Flexion of her cervical spine increased pain more than extension and the range of motion of flexion was reduced more so than in extension. Rotation of the plaintiff’s cervical spine, in particular to the left side, exacerbated her pain. She had significant tenderness from the occipital ridge on the right side all the way down to the lower cervical facet joints. Range of motion of the plaintiff’s right shoulder in flexion and abduction was limited to approximately 90 degrees.
274In his report dated 29 January 2024, Mr Speck noted that lifting sometimes increased the plaintiff’s symptoms around the right shoulder blade. The plaintiff reported having difficulty lifting and bending to pick things up from the floor because of her back and placing things above shoulder height was difficult because of her trapezius muscle and supraclavicular region. Walking was not a problem unless she swung her arms. There were no restrictions with sitting in relation to her neck and shoulder symptoms. Similarly standing was not a problem specific to her neck.
275In his first report dated 19 January 2022, Mr Miller noted the plaintiff has difficulty walking long distances. She does not use a walking aid and therefore would have reduced mobility as a result of the described orthopaedic injuries.
276The plaintiff was cross examined about her mobility. She accepted she could sit for over an hour and that standing was not a problem with respect to her neck.
277I accept the plaintiff’s ability to move her cervical spine has reduced, more so on flexion than on extension and particularly to the left side. While the plaintiff experienced reduced motion, I do not find the injury to her cervical spine has affected her ability to walk, sit or stand to any significant degree.
Activities of daily living
278Prior to the transport accident, the plaintiff had some pre-existing limitations on her activities of daily living.
279In Professor Teddy’s report dated 14 December 2015, he identified that at that time, the plaintiff found it hard to push trolleys in the supermarket and to sweep the floor at home.
280An AMP Permanent incapacity treating doctor’s report dated 6 March 2020, prepared by Dr Weng, referred to the plaintiff having had “more than 10 years of chronic back pain due to L5/S1 disc prolapse”. When she experienced back pain, the form described how the plaintiff was unable to do housework or work at home or out of the home.
281In the application for a Carer Payment and/or Carer Allowance on 6 March 2020 in respect of her lumbar spine injury, the application form described the lumbar spine injury as permanent and not likely to improve. The application form described the plaintiff as needing assistance with grooming and personal care, face, hair and teeth; feeding including cutting and spreading butter; needing minor assistance with transferring from a bed to a chair and back, needing assistance with walking, dressing and stairs.
282In her first affidavit the plaintiff said that before the transport accident, her daughter had been appointed her carer. Her daughter carried out most of the household chores if the plaintiff had an episode of severe lower back pain. During periods when the plaintiff’s lower back pain was settled, her daughter did heavier household tasks. The plaintiff was able to undertake lighter tasks such as cooking, washing dishes and hanging out laundry. Her daughter confirmed this in her affidavit and said that to prevent a flare-up of lower back pain, her mother avoided picking up heavier items.
283Dr Weng confirmed in a letter dated 9 September 2020 the plaintiff’s daughter was “helping her mother with household duties eg; cleaning, shopping, looking after her personal care with dressing when her mother is having difficulties with them. Addititonally [sic] Miss Raux is helping with her mother's medical needs with doctor and hospital appointments etc.”
284Following the transport accident, the plaintiff said she relied on her daughter more than she had before. The plaintiff said she struggled with tasks such as cooking due to right shoulder pain. She had difficulty with tasks that required the use of both her arms such as lifting heavy pots and pans. She had difficult kneading flour and cutting foods such as watermelon or pumpkin. She also had difficulty hanging out washing due to the pain in her neck and right shoulder.
285The plaintiff also described how since the transport accident, she has had difficulty with personal care tasks such as washing and brushing her hair, as well as reaching behind her back to put on a bra, due to right shoulder pain.
286The plaintiff’s daughter confirmed that she has taken on responsibility for domestic chores and completes the grocery shopping, laundry, cleaning and gardening. Her mother rarely accompanies her to go shopping. She said her mother struggles with those tasks due to pain. She identified that her mother cooks once a week, but otherwise she prepares and cooks most of the meals.
287In his first report dated 19 January 2022, Mr Miller noted that the plaintiff lived at home with her 20-year-old daughter. He identified she had difficulty with domestic and gardening activities, with the domestic activities largely undertaken by her daughter and the gardening activities by her son. He considered she had a reduced capacity for heavy domestic and gardening activities.
288Mr Awad, in his report dated 28 January 2024 identified that since the transport accident:
“Her daughter, at one point, had to apply to be her carer. Her daughter does the housework and also does most of the driving. She struggles with some personal hygiene and dressing, including doing buttons on dresses by way of being unable to elevate her arms for too long. All the above has meant that she has had a mental health decline as well.”
289Mr Speck noted in his report dated 29 January 2024, that neck pain was reported by the plaintiff as restricting her in activities such as washing or combing her hair. For that reason, she had cut her hair short. He also noted that she was able to undertake her own financial affairs, do shopping with her daughter and do meal preparation, although she got assistance from her daughter with cutting heavier items such as pumpkin or watermelon. She is able to do the vacuuming with difficulty, even with a stick vacuum. She does not do any sweeping and can manage communications with a computer and smart phone.
290Dr Weekes, in his report dated 28 March 2024, noted that since the transport accident, the plaintiff can be restricted with regard to her ability to perform household chores including cutting food and closing buttons on clothing. He considered the dominant cause of the plaintiff’s restrictions to be her cervical spine.
291When cross examined, the plaintiff said before the transport accident she was able to cut vegetables and put the washing out with assistance from her daughter. She could dust and pick things up from the floor. After the transport accident, she found lifting and bending to pick things up difficult. She said squatting down and picking something up gave her “such excruciating neck pain here and it travels up … if I go to reach high and get something I can’t bring my hand down”. She said she was in a lot of pain.
292It was suggested to her that if she was experiencing the level of pain she claimed, there would have been no way she could have worked up to 20 hours as a teacher’s aide. She responded by saying she did “small groups” and “reading and literacy and numeracy I don’t always go and pick things up because they’re Grade 2s”.
293I accept the plaintiff experiences pain when squatting to pick things up.
294The plaintiff’s inability to push trolleys in the supermarket and to sweep the floor at home were restrictions arising from her lower back injury. Similarly, any restrictions the plaintiff had with respect to grooming and personal care, face, hair and teeth; feeding including cutting and spreading butter; needing minor assistance with transferring from a bed to a chair and back; needing assistance with walking, dressing and stairs, were limitations she experienced before the transport accident because of her lower back injury.
295The difficulties the plaintiff experienced with respect to cooking, lifting heavy pots and pans, kneading flour and cutting foods such as watermelon or pumpkin, and hanging out washing I find were the result of her right shoulder injury.
296I find that as a result of the plaintiff’s cervical spine injury, she now experiences difficulty with gardening and heavy aspects of cleaning. She can vacuum but cannot sweep.
Church activities
297In her first affidavit the plaintiff described being an active member of her church prior to the accident. After the accident she identified that she felt scared to drive to church and as a result had become less involved.
298Mr Miller identified in his first report that the plaintiff previously enjoyed attending her church group and had not been able to resume that activity.
299Mr Awad noted in his report dated 28 January 2024 that the plaintiff used to be involved in the church and used to pick people up to help them get to the church, but she was unable to do that after the injury.
300Mr Speck, in his report dated 29 January 2024, also identified that the plaintiff was continuing to participate in a church group at the time of the transport accident and she also belonged to a group that visited seniors. Mr Speck said she continued to attend church and to engage socially with people from there.
301Dr Weekes identified in his report dated 28 March 2024 that prior to the transport accident, the plaintiff participated in hobbies such as driving people to church which he said she is now unable to do secondary to her cervical injury.
302I accept the plaintiff’s ability to participate in church activities has decreased as a result of her cervical spine injury.
Sports and hobbies
303The plaintiff’s daughter said in her affidavit that before the transport accident the plaintiff was able to enjoy hour long walks almost every afternoon. Her mother is no longer able to walk for long periods due to her back pain. She no longer goes on her daily walks.
304She also detailed how the plaintiff volunteered with Helping Hands during Christmas time, when she would pack bags of essential items and give them to members of the community in need. Since the transport accident she said her mother has not volunteered.
305Dr Seneviratne did not consider any impact on the plaintiff’s sporting or recreational activities to be significant.
306Mr Miller, in his first report, identified the plaintiff had previously enjoyed Pilates and long walks. He said she had not been able to resume those activities. He said her orthopaedic injuries would impose some restrictions on her pre-injury physical, leisure and recreational activities, but he otherwise did not indicate the nature of those restrictions.
307Mr Speck noted that the plaintiff enjoyed reading. She currently listens to podcasts and audio books instead of trying to read.
308I do not accept that the changes to the plaintiff’s sports and leisure activities are a consequence of her cervical spine injury. She was experiencing mobility issues and an inability to participate in sporting activities before the transport accident.
Social activities
309Before the transport accident, the plaintiff’s daughter said that her mother had been able to socialise and complete most activities. The plaintiff in her first affidavit said she has lost confidence and feels less inclined to socialise.
310As identified, although Dr Seneviratne acknowledged some impact from the plaintiff’s headaches upon her capacity to engage in social, domestic, sporting or recreational activities, she did not consider the impact to be significant.
311Dr Weekes noted in his report that since the transport accident, the plaintiff’s ability to socialise has been severely curtailed. In his view the dominant cause of this was the plaintiff’s cervical spine.
312I accept that as a result of the plaintiff’s cervical spine injury, there has been an impact on the plaintiff’s social activities.
Driving
313In professor Teddy’s report dated 14 December 2015, he identified that the plaintiff was unable to drive long distances. This was prior to the transport accident.
314Following the transport accident, the plaintiff said she had become distressed and scared to travel in a car.
315The plaintiff’s daughter confirmed that her mother is anxious when driving in the car as a passenger, but that it is worse when she is driving. She is now cautious and jerky. She said she and her mother used to go on road trips together. They rarely do that since the transport accident. They want to go to Sydney to see family, but the plaintiff’s daughter said her mother thinks she will not be able to cope with that due to the pain and anxiety of travelling in the car.
316In his first report, Mr Miller noted the plaintiff had stated that she was able to drive a motor car but had difficulty driving long distances.
317In his report dated 28 January 2024, Mr Awad noted that that the plaintiff described struggling to drive with her mental health issues and post-traumatic stress disorder from the event. He identified that her driving was:
“… limited by the fact that she was unable to rotate her head and look into her blind spot safely.”
318Mr Speck said in his report dated 29 January 2024, that the symptoms the plaintiff experienced in her neck increased when she did head checks to change lanes, to read and to drive in traffic. However, he noted she was able to drive and had driven for nearly an hour from her home to the interview in a Toyota Rav4 which was higher and less troublesome for her back.
319Dr Weekes reported on 28 March 2024 that the plaintiff had described her driving capability as having been affected by her cervical injury. She had a comfortable driving tolerance of approximately 30 to 45 minutes, but in particular turning her head to examine her blind spot could exacerbate her pain. Dr Weekes noted that the plaintiff described how her daughter does most of the driving for family activities.
320The plaintiff’s inability to drive long distances, I find, is largely due to the psychological reaction she has had to the collision. I nevertheless accept that there has been some impact on the plaintiff’s driving ability as a result of the transport accident. She has some difficulty turning her head.
Conclusion
321I have considered the pain and pecuniary disadvantage claimed to have been suffered by the plaintiff both individually and cumulatively. I have concluded the pain the plaintiff experiences to her neck/cervical spine, and in particular the headaches she has following the transport accident, is substantial. When I take that into account, together with the other consequences of the plaintiff’s injury as described by her together with any pecuniary disadvantage, even if such pecuniary disadvantage is minimal, I find that the plaintiff satisfies the “very considerable” test. That is, the consequences of the plaintiff’s injury that relate to pain and suffering and pecuniary disadvantage, taken together, are such that when the injury is judged by comparison with other cases in the range of possible impairments or losses, it can fairly be described as at least “very considerable”. Consequently, the plaintiff is entitled to succeed.
322I will hear argument with respect to costs.
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