Rayner v Transport Accident Commission
[2024] VCC 1027
•17 July 2024
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-21-00638
| MALINA RAYNER | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE CLARK | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 20 and 21 May 2024 | |
DATE OF JUDGMENT: | 17 July 2024 | |
CASE MAY BE CITED AS: | Rayner v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1027 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – spinal injury – pain and suffering – credit – range
Legislation Cited: Transport Accident Act 1986 (as amended), s93(17)
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Richards & Anor v Wylie (2001) 1 VR 79; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) VR 100; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592
Judgment: Leave granted to the plaintiff to bring common law proceedings for damages pursuant to ss(a) consequential to the collision which occurred on 2 May 2017.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with Ms J Frederico | Slater and Gordon Ltd |
| For the Defendant | Mr A Saunders with Ms C Kusiak | Wisewould Mahony |
HIS HONOUR:
1The plaintiff, Ms Malina Rayner, is forty-three years of age. Ms Rayner is separated from her husband. She has the care of her two children, who are aged thirteen years and ten years.
2On 2 May 2017, Ms Rayner was involved in a transport accident (“the collision”). On that day, a truck proceeded through a red light and struck the car she was driving. The force of the collision was such that Ms Rayner’s car spun out of control and struck a pole.
3Ms Rayner said, as a result of the injuries suffered in the collision, she was in significant pain. Ms Rayner was conveyed by ambulance to the Latrobe Regional Hospital. After Ms Rayner was assessed, she was discharged to the care of her general practitioner.
4At the time of the collision, Ms Rayner said she:
(a) was still living with her husband;
(b) ran the household, undertaking the cleaning, cooking, shopping, et cetera. She said she was “fanatical” about housework;[1]
(c) was a caregiver for her two children, who were then aged five years and three years;
(d) participated in a full range of family activities;
(e) enjoyed a high level of fitness, for example, often running up to fifteen kilometres, attending the gym, and doing weights and undertaking boot camp;
(f) had an active social life;
(g) was working 15.75 hours per week with Services Australia;
(h) was aiming to return to full-time work and pursue her career;
(i) had, while working part time and looking after her young children, completed a Diploma of Human Resources.
[1]Transcript (“T”) 31, Line/s (“L”) 26
5Ms Rayner said, while the various bumps and bruises settled, the collision resulted in an ongoing spinal injury. Ms Rayner said, while she had problems at all levels of her spine, it is her lower and mid-back, particularly on the left side, which continues to give her problems.
6Ms Rayner said, by reason of her spinal injury, she suffers pain and pain-related impairment. She said many aspects of her life have been adversely impacted. Ms Rayner said that her spinal injury is a serious injury and the Court should grant her leave to pursue common law damages.
7The defendant, the Transport Accident Commission (“TAC”) denies Ms Rayner has suffered a serious injury.
What is the nature of the application?
8This is an application brought pursuant to s93(17) of the Transport Accident Act 1986 (as amended) (“the Act”). Ms Rayner relies upon paragraph (a) of the definition of “serious injury” contained in the Act. That is, her spinal injury is a “serious long-term impairment or loss of a body function”.
9The question of whether an injury is “serious” for the purposes of s93(17), is to be answered in accordance with the narrative test laid down by the Full Court of the Supreme Court of Victoria in Humphries and Anor v Poljak.[2]
“… To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’? … .”[3]
(Emphasis added.)
[2][1992] 2 VR 129 (“Poljak”)
[3](Ibid) at 140 (per Crockett and Southwell JJ)
10Crockett and Southwell JJ identified, in Poljak, that many disturbances are considerable, in the sense that they are “important” or “substantial” without being “very considerable”.
What are the issues in this application for the Court’s determination?
11At the commencement of the application:
(a) Ms Rayner was seeking leave pursuant to both ss(a) and ss(c) of s97 of the Act;
(b) the TAC said video would be shown and issues of credit were still open.
12At the time of final submissions:
(a) Ms Rayner conceded her application was proceeding as a ss(a) application only;
(b) the TAC conceded this was not a credit case and the video went to function only.
Both these concessions were appropriately made.
13That said, the issues for the Court to determine are:
(a) Ms Rayner’s reliability and what I make of her evidence;
(b) what I make of the video;
(c) which of the medical opinions should be accepted and what assistance do they provide;
(d) does Ms Rayner satisfy the “serious injury” test?
What conclusions do I draw in respect of Ms Rayner’s presentation in the witness box and her general reliability?
14As I have already noted, the TAC, in final submissions, conceded this is not a credit case. I agree.
15Ms Rayner gave her evidence in a frank and forthright manner. She was, put simply, a very impressive witness.
16I accept Ms Rayner as being:
(a) honest;
(b) reliable;
(c) genuine.
17I formed the conclusion that Ms Rayner is a person who has, despite her spinal injury, endeavoured to get on with her life and do the best she can. She is not a person to overstate or exaggerate. I accept her to be a stoic person.
18It is through this lens that I assess this application.
What conclusions do I draw from the video evidence?
19Two sets of video surveillance taken on 23 March 2024 were shown in the course of Ms Rayner’s cross-examination. The video showed Ms Rayner at her daughter’s netball match:
(a) sitting on a bench between 12.53pm and 1.09pm (“the first segment”);
(b) standing between 1.10pm and 1.29pm (“the second segment”).
20Before moving to my analysis of this evidence, I note the admission by the TAC that they had Ms Rayner under surveillance on:
(a) 9 March 2024, between 7.00am and 1.00pm;
(b) 12 March 2024, between 7.15am and 2.15pm;
(c) 23 March 2024, between 8.30am and 3.30pm.
21Moving now to the first segment.
22This video showed Ms Rayner sitting on a bench watching a game of netball. There was another woman sitting next to her. Ms Rayner was wearing a green vest over a big puffer coat. Ms Rayner explained that she was acting as a martial for her daughter’s team.
23In cross-examination, Mr Saunders put to Ms Rayner that she:
(a) sat without apparent difficulty;
(b) had no need to get up and walk about;
(c) appeared unaffected by her injury;
(d) painted a picture of normality.
24Ms Rayner, in response:
(a) agreed she had the appearance of normality;
(b) said she in fact had her hands under her leg and was gently raising her leg to stretch her back;
(c) said she could tell she was sitting stiffly.
25Having carefully reviewed the first segment, I noted Ms Rayner:
(a) at times, had her hands clasped under her legs;
(b) rocked back and forth on a couple of occasions;
(c) otherwise sat and chatted to the lady next to her while watching the netball.
26Moving now to the second segment.
27This video showed Ms Rayner standing and watching the netball match. Ms Rayner was also chatting to the lady who was standing to her right.
28It was agreed between the parties that Ms Rayner was standing at this spot for a total of thirty-five minutes.
29Mr Saunders put to Ms Rayner:
(a) she stood without apparent difficulty;
(b) she engaged in animated discussions with the other parents;
(c) she did not walk off at any stage;
(d) again, she painted a picture of complete normality.
30Ms Rayner, in response:
(a) again agreed she had an appearance of normality;
(b) said she twisted and turned a lot;
(c) said there were signs of discomfort;
(d) said she was discreetly stretching her back;
(e) agreed she did not walk away.
31Having reviewed this segment of the video, I note:
(a) While Ms Rayner and the other lady were following the netball match and chatting, there was some movement of Ms Rayner’s body. She did not remain totally static.
(b) Ms Rayner, at different stages:
(i)rocked from foot to foot;
(ii)bent to the left;
(iii)put her right leg out in front;
(iv)bent forward;
(v)twisted around;
(vi)lifted her left leg off the ground.
32I accept both the segments of video are open to different interpretations.
33On one view, particularly on a casual view, the video did paint a picture of normality. However, on a more forensic analysis, there are movements which may be consistent with a person discreetly reacting to levels of discomfort, but without wishing to bring attention to themselves.
34The interpretation of the video evidence in this particular case is very much dependent upon:
(a) my assessment of Ms Rayner’s credit and reliability;
(b) the balance of the evidence.
35Having said that, I have formed the following conclusions:
(a) Firstly, I agree with the TAC’s assertion that the video surveillance does go to function. This snapshot, on this day, showed Ms Rayner to have tolerances to stand for thirty-five minutes and to sit for at least fifteen minutes.
(b) The video shows Ms Rayner engaged in very sedentary activities and undertaking something which a mother who is encouraging of her daughter’s involvement in sport would properly undertake.
(c) Given my assessment of Ms Rayner, I accept such activity is something which she would do for her family, even if it meant she had to endure a level of increased pain and discomfort.
(d) Ms Rayner’s assertions that, at the time of the video she had a level of discomfort which was caused by her collision-related spinal injury, is not at odds with my conclusions in respect to the medical evidence.
36Thus, having observed Ms Rayner give evidence, reached my conclusions in respect to her credit and reliability and considered the balance of the evidence, I accept the video, particularly the second segment, tends to a conclusion that Ms Rayner was in fact discreetly stretching her lower back and undertaking subtle movement in an endeavour to gain relief from her back discomfort.
Which of the medical opinions should be accepted and what assistance do they provide?
37I shall, in assessing the medical evidence:
(a) firstly review the treating practitioner medical evidence;
(b) then review the medico-legal evidence.
The treating medical practitioners
38My analysis of the treating medical practitioner evidence will be primarily focused on the following reports:
(a) Dr John Brougham, general practitioner, Breed Street Clinic, 5 June 2018 and 24 September 2020;
(b) Ms Claire Issell, physiotherapist, Latrobe Valley Physiotherapy and Sports Medicine Clinic, 13 June 2018;
(c) Ms Nicole Farrell, physiotherapist, Gippsland Physiotherapy Group, 6 September 2018 and 15 April 2019;
(d) Dr Gavin Weekes, pain specialist, Precision Brain, Spine & Pain, 22 December 2022, 21 March 2023 and 1 September 2023;
(e) Mr Justin Moar, physiotherapist and clinical team leader pain management team, Precision Ascend, 3 July 2023.
39I also had other reports and miscellaneous materials which I have considered. This evidence included:
(a) an email from the Mercy Family Medical Clinic, 22 August 2023;[4]
(b) a bundle of radiology reports;[5]
(c) various items of correspondence to the TAC;[6]
(d) the Ambulance Report;[7]
(e) the report of Dr Yaman Al-Azzawi, Latrobe Regional Hospital, dated 24 May 2018.[8]
[4]Exhibit “H”
[5]Exhibit “E”, Plaintiff’s Amended Court Book (“PACB”) 108-121 and PACB 129
[6]Exhibit “G”, PACB 123-127
[7]PACB 42-43
[8]PACB 40-41
Dr Brougham
40Moving firstly to Dr Brougham, who was Ms Rayner’s general practitioner for the period immediately after the collision.
41In his first report, Dr Brougham detailed Ms Rayner’s initial presentation at the Breed Street Clinic after the collision. This was on 5 May 2017.
42Dr Brougham said Ms Rayner was “sore and bruised”.[9] Dr Brougham also noted that Ms Rayner was distressed by the collision and was suffering flashbacks.
[9]PACB 47
43On 15 May 2017, Ms Rayner consulted Dr Bihag Bhatt, Dr Brougham’s colleague, complaining of ongoing pain in her sternum and the left side of her back.
44At this consultation, Dr Brougham said Dr Bhatt, on examination, found:
“… left-sided paraspinal tenderness and stiffness and limited movement at the lumbar spine because of muscle stiffness. … .”[10]
[10]Ibid
45Dr Bhatt prescribed anti-inflammatories/Celebrex.
46On 19 May 2017, Ms Rayner was reviewed by Dr Brougham. Ms Rayner:
(a) complained of still being sore;
(b) was hesitant to take anti-inflammatory medication;
(c) was still emotionally distressed.[11]
[11]Ibid
47Dr Brougham noted Ms Rayner was going to attempt to return to work at reduced hours the next week.
48On review on 8 June 2017, Ms Rayner’s lower back was still sore. She had managed four hours per day at work.[12]
[12]Ibid
49On review by Dr Roger Fitzgerald on 14 July 2017, he noted there had been a lot of bruising and a lot of pain in Ms Rayner’s back, which was resolving.[13]
[13]Ibid
50By 3 August 2017, Dr Brougham noted Ms Rayner had returned to work three days per week for four hours per day, but had wanted to increase her hours to two days per week for six hours per day and one day for four hours per day.[14]
[14]Ibid
51At this time, Dr Brougham also obtained a history that Ms Rayner:
(a) said her work was flexible, and:
(i)she was able to have breaks;
(ii)she could walk around when she got stiff;
(iii)sitting for prolonged periods stopped her going full time;
(b) was attending physiotherapy;
(c) was attending clinical Pilates, which was helping;
(d) was taking anti-inflammatory medication intermittently.[15]
[15]Ibid
52On review on 8 September 2017, Dr Brougham recorded Ms Rayner was back to normal hours at work, but was still having five-minute rest breaks every hour. Ms Rayner was still attending:
(a) physiotherapy;
(b) Pilates.[16]
[16]PACB 48
53At the time of the providing his first report, Dr Brougham:
(a) said he had not seen Ms Rayner for collision-related injuries since 8 September 2017;
(b) assumed Ms Rayner’s injuries had resolved;
(c) gave a prognosis based on this assumption.
54Moving now to Dr Brougham’s second report.
55Ms Rayner had had eight visits to the clinic since the provision of the first report. Dr Brougham said:
(a) Ms Rayner consulted Dr Fitzgerald on 27 March 2019 requesting a referral for a MRI scan on her back.
(b) Dr Fitzgerald, on the referral for the MRI scan, stated Ms Rayner was having ongoing lower back pain subsequent to the collision.
(c) The request for the MRI scan had seemingly been at the instigation of Ms Rayner’s physiotherapist.
(d) The MRI scan showed minimal multilevel degenerative disc and facet changes throughout the lumbar spine. There was no evidence of nerve-root impingement and no acute synovitis or inflammatory change.
(e) It was possible that the degenerative changes were age-related and it was also possible that the collision aggravated the existing disc degeneration and facet changes, which might be the cause of her ongoing discomfort.
(f) On 20 May 2019, Dr Fitzgerald noted Ms Rayner was better when she attended Pilates.
(g) That on subsequent visits at the clinic, no mention was made to ongoing back pain and he:
(i)was unaware if Ms Rayner had been attending for ongoing physiotherapy;
(ii)was aware that Ms Rayner continued to exercise, presumably as a means of helping her back pain.[17]
[17]PACB 49
Ms Issell
56Ms Issell first consulted with Ms Rayner on 23 May 2017 in respect to injuries sustained in the collision. Ms Issell, at the time of providing her report, said she had not seen Ms Rayner since 25 November 2017.
57Ms Issell said Ms Rayner’s main symptoms related to her thoracic and lumbar spine. These symptoms were:
(a) soreness by the end of the day;
(b) stiffness in the morning;
(c) soreness with prolonged standing and sitting;
(d) pain with driving;
(e) pain with bending forward.[18]
[18]PACB 52
58For the period between 23 May 2017 and 25 November 2017, Ms Issell said her treatment included:
(a) supervised exercise – clinical Pilates;
(b) a home-exercise program;
(c) soft-tissue massage, mobilisations and dry needling;
(d) advice and education.
59Ms Issell said, at the time of her final consultation on 25 November 2017, Ms Rayner was:
(a) doing the home-exercise program;
(b) undertaking personal training.
60Under the heading of “Likely Prognosis”, Ms Issell said:
(a) Ms Rayner experienced pain in her thoracic and lumbar region throughout the time she consulted Ms Rayner;
(b) despite strengthening her thoracic and lumbar spine and being diligent with her exercises, Ms Rayner continued to experience pain;
(c) it was possible that Ms Rayner would continue to experience pain going forward;
(d) it was possible Ms Rayner’s pain may flare with changes to everyday life, such as a more physical job or any significant changes to physical activity levels;
(e) while Ms Rayner’s pain and symptoms had subsided from the time of her initial injury, she remained in a state of pain and reduced function.[19]
[19]PACB 52-53
Ms Nicole Farrell
61Ms Farrell initially saw Ms Rayner on 8 February 2018 to assess and treat her spinal pain.
62Ms Farrell said that Ms Rayner told her she had not made any significant improvement with her pain from the treatment she received at Ms Issell’s clinic.
63At the time of the initial consultation, on clinical examination Ms Farrell found:
(a) poor mobility through the thoracic and lumbar spine;
(b) a significant amount of spasm through her paraspinal, quadratus lumborum and gluteal muscles.[20]
[20]PACB 54
64Between February 2018 and September 2018, Ms Farrell noted:
(a) with treatment, there had been periods of time where there was some improvement, but there were relapses and times when Ms Rayner struggled to find any comfort;
(b) in her assessment, the pain pattern was consistent with internal disc derangement of the lumbar spine, most likely L2-3, along with adherent nerve-root issues in her lower lumbar spine at L3-5;
(c) Ms Rayner’s issues were exacerbated by left thoracic and lumbar muscle spasm when her pain is flared-up.[21]
[21]PACB 55
65Ms Farrell also said:
(a) given the time since Ms Rayner’s injury and the persistent nature of her pain, it is likely Ms Rayner will suffer ongoing discomfort in her lumbar and thoracic spine;
(b) the impact on Ms Rayner’s sleep was a main concern to her;
(c) given the length of time since the injury and the persistent nature of Ms Rayner’s pain, MRI investigation was justified.[22]
[22]Ibid
66Ms Farrell provided an update report on 15 April 2019. At this time, Ms Farrell said, as far as Ms Rayner’s progress went:
(a) since the collision, Ms Rayner had experienced ongoing pain and discomfort around:
(i)the left lumbar spine and hip area;
(ii)the left thoracic spine;
(iii)at times, the left cervical spine;
(b) Ms Rayner continued to suffer flare-ups of pain which could last days to weeks;
(c) Ms Rayner is able to tolerate clinical Pilates.
67Ms Farrell said, from an objective perspective:
(a) dependent on whether Ms Rayner is in a pain peak or trough, her thoracic and lumbar movements are either adequate or reduced;
(b) palpable spasms through Ms Rayner’s left paraspinals, left quadratus lumborum and left gluteal muscles are consistently present and cause Ms Rayner significant discomfort.[23]
[23]PACB 56
68As to ongoing functional treatment, Ms Farrell said she was:
(a) focusing in clinical Pilates sessions on restoring movement in a non-aggravating manner;
(b) working on getting Ms Rayner back doing some boxing classes;
(c) providing ongoing manual therapy.
69As to prognosis, Ms Farrell thought Ms Rayner will continue to experience ongoing discomfort through the thoracic and lumbar spine.[24]
[24]PACB 57
Dr Weekes
70Dr Weekes first saw Ms Rayner on 22 December 2022 on referral from Ms Rayner’s general practitioner, Dr Sujanie Pathirana.
71Dr Weekes said that Ms Rayner had evidence of widespread neuraxial pain following the collision.[25] This pain involved her neck, thoracic and lumbar spine. Dr Weekes said that Ms Rayner described ongoing chronic thoracic and lumbar pain which can radiate down both lower limbs to about the mid-thigh region.[26]
[25]PACB 59
[26]Ibid
72Dr Weekes noted:
(a) Ms Rayner was very active prior to the collision, for example running 10 kilometres regularly.
(b) Since the collision, Ms Rayner’s activity levels had been drastically reduced.
(c) Ms Rayner’s walking and running tolerances had been significantly reduced.
(d) Ms Rayner describes severe functional limitations, including difficulties putting on and taking off her shoes and socks.
(e) Ms Rayner continued to work on a part-time basis as a project manager. She was working mainly at home.[27]
[27]Ibid
73Dr Weekes said Ms Rayner had undergone an MRI scan of her thoracic and lumbar spine in 2022, which had revealed evidence of spondylosis, including degenerative disc disease and facet arthropathy, particularly at the L5-S1 level.
74On examination, Dr Weekes noted there was:
“…no obvious neurological deficits of her lower limbs. Heel toe stance was normal. Extension of her thoracic and lumbar spine exacerbated pain more than flexion. She had a fairly well-circumscribed area of tenderness corresponding to the left upper to mid thoracic facet joints on examination … . She did have tenderness both sides, but certainly worse on the left side.”[28]
[28]PACB 62
75Dr Weekes saw Ms Rayner for a second time on 21 March 2023.
76At that time, Dr Weekes had the results of the CT/SPECT bone scan which had been undertaken. Dr Weekes said there was evidence of arthropathy effecting the uncovertebral joints at C4-5 and C5-6.[29]
[29]PACB 60
77Dr Weekes referred Ms Rayner to a pain management program. Dr Weekes said Ms Rayner had been assessed by the multidisciplinary pain-management team, who felt she was better suited to an individual physiotherapy and psychology-treatment program.
78Dr Weekes, in response to specific questioning posed by Ms Rayner’s solicitors, said:
(a) Ms Rayner’s prognosis is poor. He considered it highly likely that Ms Rayner will continue to have some degree of pain and disability for the foreseeable future.
(b) He considered Ms Rayner’s condition had stabilised.
(c) Ms Rayner’s need for pain control is stable.[30]
[30]PACB 62
Mr Justin Moar
79I had a letter, dated 3 July 2023, which Mr Moar, in his capacity as the clinical team leader of pain management at Precision Ascend, had sent to Ms Rayner, Dr Pathirana, the TAC and Dr Weekes following the multidisciplinary team assessment.
80Mr Moar said Ms Rayner should consider assessing the following services locally to help with the management of her chronic pain problem:
(a) psychology, ideally with a practitioner experienced in the management of persistent pain;
(b) exercise psychology, ideally with a practitioner experienced in developing a graded exercise program (potentially with a view to establishing a local gym program).
81Mr Moar also suggested that Ms Rayner do her own reading and research into pain and provided her with a list of references.
The medico-legal evidence
82Moving now to the medico-legal evidence. I shall:
(a) firstly deal with those experts who have assessed Ms Rayner’s spinal injuries;
(b) then review the experts who assessed Ms Rayner’s psychological distress.
I shall undertake such analysis in chronological order.
The medico-legal experts who assessed Ms Rayner’s spinal injury
83I have reports from:
(a) Mr Stephen Doig, orthopaedic surgeon, 15 October 2019 and 7 November 2019;
(b) Professor Richard Bittar, consultant neurosurgeon, 24 August 2021, 13 September 2021 and 3 October 2023;
(c) Mr Gary Speck, orthopaedic surgeon, 3 September 2021 and 29 January 2024;
(d) Dr Eman Awad, occupational health specialist, 3 October 2023.
Mr Doig
84On 15 October 2022, Mr Doig undertook a joint assessment for the TAC and Ms Rayner’s solicitors. The history which Mr Doig obtained was generally consistent with the histories which I have already referred to. That is:
(a) there was significant trauma at the time of the collision;
(b) initially after the collision, Ms Rayner suffered widespread pain;
(c) after being discharged to the care of her general practitioner, she consulted both general practitioners at the Breed Street Clinic and had physiotherapy consultations;
(d) there had been some overall improvement from the acute phase, but Ms Rayner said she continued to suffer from ongoing episodes of significant pain in her lower back radiating to the lower limbs and up towards her upper thoracic spine;
(e) Ms Rayner complained of ongoing pain and discomfort as a result of her spinal injury;
(f) there was impaired sleep;
(g) Ms Rayner was using Panadol Osteo for pain relief.
85On examination, Mr Doig found tenderness over the posterior aspects of the greater trochanter on each side. He said pressure there resulted in tenderness radiating towards the lower part of the back.
86Mr Doig noted the MRI scan which had been undertaken was said to report nothing of significance.
87Mr Doig made the diagnosis of “[p]robable chronic low back strain”.[31]
[31]PACB 65
88Mr Doig said, in his opinion:
(a) Ms Rayner’s injury is consistent with the collision, in that it came on immediately after the collision and has continued to cause her problems;
(b) it was not obvious as to exactly what the problem was;
(c) it would be appropriate to undertake further investigations, given Ms Rayner was suffering three or four episodes a year where she is incapacitated for two to three weeks;
(d) he did not consider that Ms Rayner’s condition was stable;
(e) he thought the prognosis was guarded.[32]
[32]PACB 65-66
89In a supplementary report dated 7 November 2019, having been provided the results of the MRI scan of 1 May 2019, Mr Doig said:
“… They state that there is a right lumbar scoliosis which may be due to muscular spasm and minimal degenerative change. As a consequence there is nothing on that MRI scan which changes my clinical opinion.”[33]
[33]PACB 67
Professor Bittar
90Professor Bittar first assessed Ms Rayner for her solicitors on 24 August 2021.
91At this time, Ms Rayner was working twenty-eight hours per week.
92Professor Bittar noted there was no relevant pre-existing medical history.
93Professor Bittar said that Ms Rayner reported to him:
(a) Ongoing lower back pain. Ms Rayner said she had constant aching lower back pain which is left sided. It had an average severity of 7/10 and a maximum severity of 9/10. It is exacerbated by bending, twisting and lifting more than light objects. It worsens if she sits for more than thirty-five minutes or stands or walks for more than thirty minutes. It improves with frequent postural changes, gentle exercise and heat packs and medications.[34]
(b) Mid-back pain. Ms Rayner told Professor Bittar she had constant pain in the mid and lower-thoracic region. This mid-back pain was generally sharp or stabbing in character and radiates across both sides. It has an average severity of 6/10 and maximum severity of 8/10. The thoracic spine pain was exacerbated by bending, twisting, lifting more than light objects, pushing or pulling, coughing, sneezing or straining, and sitting, standing or walking more than thirty minutes.[35]
(c) Neck pain. Ms Rayner told Professor Bittar she experienced intermittent neck pain which varies in frequency from daily to every two months.
(d) Headaches. Ms Rayner told Professor Bittar at times she experienced headaches two to four times per week. The headaches generally occurred when the neck pain flared-up. Ms Rayner said she may go a number of weeks when she did not experience significant headaches.
[34]PACB 82
[35]Ibid
94On examination, Professor Bittar found:
(a) Ms Rayner had moderate restriction of her cervical spine flexion and moderate restriction of thoracic spine rotation to the left. She had moderate restriction of lumbar spine extension.
(b) Ms Rayner had bilateral tenderness over the upper cervical spine, mid-thoracic paravertebral musculature and lumbosacral paravertebral musculature.
(c) neurological examination of Ms Rayner’s upper and lower limbs did not reveal any evidence of radiculopathy or myelopathy.
(d) there was no abnormal illness behaviour.[36]
[36]PACB 84
95Professor Bittar said:
(a) Ms Rayner had sustained injuries to her cervical, thoracic and lumbar spine.
(b) without imaging, it was difficult to offer a more specific diagnosis;
(c) the collision had been a significant contributing factor;
(d) Ms Rayner should undergo:
(i)an assessment by either a rehabilitation specialist or a pain specialist;
(ii)further investigations.
(e) Ms Rayner had sustained injuries to three regions of her spine which had resulted in chronic pain.
(f) Ms Rayner was most likely to have continued significant pain and disability into the foreseeable future.
(g) Ms Rayner was not capable of unrestricted pre-collision work on a regular or reliable basis;
(h) the condition was stable.[37]
[37]PACB 84-86
Mr Speck
96Mr Speck first assessed Ms Rayner for the TAC on 4 August 2021.
97Mr Speck provided a very lengthy medical report.
98At the time of this assessment, Mr Speck obtained a history from Ms Rayner in respect to her symptoms, which included:
(a) She had resolution of the initial bruising, but suffered residual symptoms in the neck and shoulder girdle, mid-back around the bra-strap level in a band, and across the lower back to the left gluteal region.
(b) Her neck symptoms are a constant dull ache which Ms Rayner said always niggles, and even though it might be relatively comfortable, it varies in severity between 2-8/10. On the day of the examination the neck symptoms were 2/10.
(c) The mid-thoracic pain is a band across her back approximately 10 centimetres wide and she can occasionally get electrical feelings of short duration that shoot out to the side. Symptoms were usually related to a particular movement or posture. The severity of the mid-back pain varied between 1-8/10. On the day of the examination it was said to be 5/10.
(d) Her lower back pain was a band across the back, but predominantly to the left with pain being dull and aching, but would stab into the left buttock area. The lower back pain is constant and can vary from 1-9/10. On the day of the assessment it was 4/10.
99Ms Rayner provided examples to Mr Speck of activities which increased her pain and pain-related symptoms. For example:
(a) driving distances;
(b) lifting and bending, for example, putting on shoes and socks;
(c) decreased walking tolerances.
100At the time of his examination, Mr Speck said of Ms Rayner:
(a) she was cooperative;[38]
(b) her complaints of pain focused on:
(i)Around the neck, predominantly in the trapezius muscle extending out to the acromion, more so on the left than on the right and into the midline paravertebral muscles. She was tender around the left C5-6 and C6-7. There was no paravertebral muscle spasm, but Ms Rayner was rather tender in that area.[39]
(ii)In the thoracic spine the pain was in a band about 10 centimetres wide at the inferior border of the scapula. There was paravertebral tightness in the thoracic region and from T5-12 on the right.[40]
(iii)The lower back pain was in a band, left more than right-sided in terms of severity across the left buttock and to a much lesser degree towards the right buttock. In the lower back, there was tenderness more to the left than the right at the L4-5 and L5-S1 levels on palpation. There was no evidence of sciatic irritability.[41]
[38]Amended Defendant’s Court Book (“DACB”) 34
[39]DACB 13
[40]DACB 14
[41]Ibid
101Mr Speck reviewed, in detail, the medical material which he had been provided by the TAC.
102As to diagnosis, Mr Speck said:
“… Her current presentation is of ongoing soft tissue symptoms in the left low back relating to the transport accident, which may reflect irritation of the facet joints at the L4 5 and L5 S1 levels. There is insufficient information to make a firm diagnosis.”[42]
[42]DACB 19
103Mr Speck went on to say, in answer to specific questions put by the TAC:
(a) Ms Rayner’s predominant restrictions described by her related to her lower back pain, which is historically related to the time of the collision from the information provided.[43]
(b) Ms Rayner’s current presentation is one of modification of activities, as set out in detail in his report, and the use of various strategies to improve her symptoms in the lower back.[44]
(c) That he expected Ms Rayner’s situation to remain at current levels. He said further assessment in respect to Ms Rayner’s lower back may allow her symptoms to be improved by treatment to the facet joint area with injections.[45]
[43]Question 3b), DACB 20
[44]Question 4, DACB 21
[45]Question 6, DACB 21
104At the time of this assessment, Mr Speck did not have the 1 May 2019 MRI scan.
Professor Bittar
105Professor Bittar provided a supplementary report to Ms Rayner’s solicitors, dated 13 September 2021. Professor Bittar had been provided with the lumbar spine MRI scan performed on 1 May 2019.
106Having reviewed this MRI scan, it was Professor Bittar’s opinion that:
“The MRI lumbar spine demonstrates multilevel disc bulging and facet joint arthropathy. No neural compression was seen. His scoliosis concave to the right was seen.
The MRI findings allow me to make a diagnosis of aggravation of lumbar spondylosis in relation to her lumbar spine condition.
Otherwise the opinions experienced in my previous report are unchanged.
In my opinion, the lumbar spine condition does not require surgical intervention but may benefit from assessment and treatment by a pain specialist.”[46]
(sic)
[46]PACB 87-88
107Professor Bittar re-examined Ms Rayner for her solicitors on 3 October 2023.
108In respect to Ms Rayner’s ongoing complaints of spinal symptoms, Professor Bittar recorded:
“1.Lower back pain. She reports constant aching lower back pain which is bilateral. It has an average severity of 5-6/10 and a maximum severity of 8-9/10. It is exacerbated by bending, twisting, lifting more than light objects. It worsens if she sits for more than 60 minutes, or stands or walks for more than 15-30 minutes. It improves with frequent postural changes, gentle exercise and heat packs and medications.
2. Midback pain. She now reports intermittent pain in the mid and lower thoracic region. This pain is episodic, typically occurring every couple of months on average and generally lasting two or three weeks each time. Her midback pain has an average severity of 3-4/10 and a maximum severity of 6/10.
3. Neck pain. She experiences intermittent neck pain which occurs around twice a year, lasting around two days on each occasion. Her neck pain has an average severity of 3/10 and a maximum severity of 6/10.
4. Right hip pain. She reports pain which appears localised to her right hip and unrelated to her lower back. An assessment of this is beyond my area of expertise and should be undertaken by an orthopaedic surgeon.”[47]
[47]PACB 89-90
109Professor Bittar again noted Ms Rayner’s medical history prior to the collision as non-contributory.[48]
[48]PACB 97
110At the time of this re-assessment, Professor Bittar recorded that Ms Rayner’s ongoing treatment compromised of:
(a) Analgesic medication as required. This included non-steroidal anti-inflammatory medications, Nuromol and Panadol Osteo.
(b) Massage whenever she could afford it (noting that the TAC had denied ongoing entitlement to such manual therapy).
(c) Consultation with Dr Weekes, who had discussed with her the option of medial branch blocks.
(d) The multidisciplinary assessment at Precision Ascend, which had suggested individual programs with a psychologist and exercise physiologist.[49]
[49]PACB 90-91
111On examination, Professor Bittar noted:
(a) Ms Rayner remained a pleasant and cooperative lady.
(b) There was normal gait.
(c) Ms Rayner had mild restriction of her cervical spine flexion and mild restriction of thoracic spine rotation to the left. Ms Rayner had moderate restriction of lumbar spine flexion, with mild restriction of lumbar spine extension.
(d) Ms Rayner had bilateral paravertebral tenderness over the mid and upper cervical spine, with bilateral tenderness over the mid- and upper-lumbar region. There was no muscle spasm in the spine.[50]
[50]PACB 91
112Again, Professor Bittar noted there was no abnormal illness behaviour.[51]
[51]PACB 92
113Professor Bittar reviewed the MRI scan undertaken 1 May 2019. He again noted this demonstrated multilevel disc bulging and facet joint arthropathy without neural compression. Professor Bittar said that scoliosis was seen, with this being concave to the right.[52]
[52]Ibid
114Professor Bittar also noted:
(a) The MRI scan of the thoracic and lumbar spine performed 13 December 2022. He said this demonstrated similar changes in the lumbar spine to those seen previously. In the thoracic spine, he said there was multilevel degenerative disc disease, particularly at T11-12.
(b) The nuclear medicine bone scan performed 17 February 2023. He said this demonstrated a minor increase in radiotracer uptake in the uncovertebral joints of C4-5 and C5-6. There was slightly increased radiotracer uptake in the facet joints at C5-6.[53]
[53]Ibid
115Professor Bittar said, in his opinion, Ms Rayner’s diagnosis was:
(a) aggravation of cervical spondylosis;
(b) aggravation of thoracic spondylosis;
(c) aggravation of lumbar spondylosis.[54]
[54]Ibid
116Professor Bittar said, in his opinion, the collision had been a significant contributing factor.[55]
[55]PACB 92
117Professor Bittar also said:
(a) the prognosis was guarded;
(b) Ms Rayner is likely to experience significant pain and disability into the foreseeable future;
(c) Ms Rayner’s work capacity is unlikely to improve in the future.[56]
[56]PACB 98-99
Dr Awad
118Ms Rayner was assessed by Dr Awad on 3 October 2023 for her solicitors.
119Dr Awad said Ms Rayner’s current symptoms included:
(a) Lower back and thoracic pain. Ms Rayner complained of intermittent back pain which is present every day. Ms Rayner told Dr Awad that she can be pain free at times, but that the pain is aggravated by movements. Ms Rayner described flare-ups in pain, which usually occurred after prolonged fixed positions or triggers. The pain is either in the lower back or thoracic spine. Ms Rayner described the severity of her pain as 7/10 with associated stiffness.
(b) Her neck pain has “now settled”.[57]
(c) She had hip pain over the hip flexors down into her hamstrings. Ms Rayner told Dr Awad this was independent pain of her back and she had intermittent episodes.
(d) She has intermittent labile mood. Ms Rayner described being frustrated by her incapacity secondary to her inability to exercise as she has previously. Ms Rayner also described occasional flashbacks and nightmares, but said these were subsiding. Ms Rayner said that her sleep can be disturbed secondary to her pain.
[57]PACB 96
120Dr Awad said her diagnosis of Ms Rayner’s condition was:
(a) an aggravation of her cervical, thoracic and lumbar spondylosis;
(b) hip pain, secondary to muscle spasm.[58]
[58]PACB 98
121Dr Awad said the prognosis in respect to each level of Ms Rayner’s spinal injury was guarded.
122Dr Awad, in her speciality as an occupational physician, said of Ms Rayner’s work capacity:
(a) while Ms Rayner is currently in employment, it was her opinion that Ms Rayner is only able to do so reliably due to the adjustments that Ms Rayner has in place;
(b) should such adjustments of working from home be removed, in her opinion, Ms Rayner would not be able to sustain a return to work in a reliable and consistent manner;
(c) Ms Rayner should be permanently medically restricted from undertaking any physical roles in the foreseeable future that involve pushing, pulling or lifting above 10 kilograms, or any prolonged fixed positions or roles that would expose her whole body to vibration.[59]
[59]PACB 99
123Dr Awad said Ms Rayner is unlikely to require surgery, but will require ongoing analgesia to manage her symptoms. Dr Awad said that Ms Rayner’s condition is stable and she is likely to continue to experience pain for the foreseeable future.[60]
[60]Ibid
Mr Speck
124Mr Speck re-examined Ms Rayner for the TAC on 17 January 2024.
125Mr Speck said Ms Rayner reported her current symptoms as including:
(a) Continued pain in essentially the same area in the lower back, with pain that extends around the pelvis and the lower buttock bilaterally. Such pain is constantly present.
(b) The severity of the lower back pain being 5/10 on the day of the examination. The lower back pain can vary from 4-9/10.
(c) In addition to the lower back pain, Ms Rayner has an area of muscle tightness and stiffness that is present intermittently and in part relates to the severity of the lower back pain. This tightness and stiffness is in a “panel” across Ms Rayner’s mid-back about 15 centimetres wide, from about T6 to the T10 spinus process level. Mr Speck said this is essentially interscapular and associated with muscle tightness.[61]
[61]DACB 30
126Mr Speck said the areas of Ms Rayner’s complaints of pain were confirmed during the subsequent examination.[62]
[62]DACB 31
127Mr Speck did not list any cervical spine symptoms in the history which he was provided by Ms Rayner.
128In respect to the ongoing treatment, Mr Speck said Ms Rayner told him she:
(a) takes Meloxicam;
(b) uses Panadol Osteo or Nuromol;
(c) uses a Theragun and foam roller;
(d) uses a heat pack;
(e) attends Pilates and has an exercise regime.[63]
[63]DACB 34
129Ms Rayner told Mr Speck that Dr Weekes had offered her an injection procedure, but she had declined this.
130On physical examination, Mr Speck found:
(a) movements of the thoracolumbar spine were good in lateral flexion and rotation with description of right iliac pain at the extreme lateral flexion at 45 degrees, and rotation at 50 degrees was comfortable and easily done and had been used for relief earlier;
(b) 40 degrees of extension of the thoracolumbar spine produced back pain and Ms Rayner felt that was the most uncomfortable direction of movement;
(c) forward flexion was 65 degrees, with a sense of tightness, but also noting that, on occasion, it would be relieving as far as pain went;
(d) there was tenderness in the paravertebral muscles from T8-12 in the thoracic region and in the midline at L4-5 and L5-6 levels, which was more extensive to the left than right at the L4-5 levels and L5-S1 on the right, with no significant tenderness over the buttocks or iliac crest on either side.[64]
[64]DACB 35
131I note that Mr Speck said Ms Rayner was cooperative on examination.
132On this occasion, Mr Speck had access to the MRI scans.
133Mr Speck also had access to, and reviewed, the general practitioner records.
134As to diagnosis, Mr Speck said:
(a) Ms Rayner had suffered soft-tissue injuries to the neck and lower back, with abrasions, at the time of the collision;
(b) Ms Rayner’s current symptoms are in the lower back, with muscular extension to the mid-back without identification of any discoligamentous or vertebral structure injury in either the lumbar or thoracic spine on imaging performed;
(c) Ms Rayner’s current presentation is of ongoing soft-tissue symptoms in the lower back, which, on her history in the medical records, only arose after the collision and which may reflect irritation of the facet joints at the L4-5 and L5-S1 levels;
(d) there was no evidence of ongoing injury arising from the collision affecting Ms Rayner’s neck;
(e) there was also the presence of mental health issues, with a somatic symptom disorder as a part of Ms Rayner’s current presentation;
(f) Mr Speck sought to attribute Ms Rayner’s possible mental health issues as arising from her domestic situation and the collision.[65]
[65]DACB 51
135Mr Speck said, given the presence of a somatic disorder and mental health issues, Ms Rayner should be assessed by an appropriate expert.[66]
[66]DACB 49
136Mr Speck was asked by the TAC to comment on the existence of pre-existing or unrelated conditions or injuries involving Ms Rayner’s spine. Mr Speck said:
(a) the imaging shows pre-existing degenerative change which may have been aggravated by the collision, but insufficient investigation has been undertaken to identify a site for Ms Rayner’s lower back pain;[67]
(b) the presence of the somatic disorder and associated avoidance behaviour plays a part which cannot be separated from possible underlying aggravation of facet joint degeneration in altering Ms Rayner’s described work, domestic and leisure activities.[68]
[67]Question 4a), DACB 51
[68]Question 4b), DACB 51
137Mr Speck, when asked if his examination findings of Ms Rayner were consistent with her complaints, said:
“… The demonstrated good mobility of the spine and lack of neurologic findings are consistent with a resolved soft tissue injury to the neck and ongoing somatic symptom disorder combined with modest possible aggravation of degenerative change in the low back.”[69]
[69]Question 5, DACB 52
138Mr Speck, when specifically asked by the TAC whether there were any inconsistencies between the radiology, Ms Rayner’s presentation/complaints and his findings on examination, said he could not identify any specific inconsistencies.[70]
[70]Question 6, DACB 52
139When asked whether Ms Rayner’s spinal injuries interfere with her domestic and leisure activities, Mr Speck said:
“… The restrictions are due to a combination of possible aggravation of degenerative change in the lumbar facet joints in association with a somatic symptom disorder and avoidance behaviour.”[71]
[71]Question 8, DACB 52
My assessment of the psychological evidence
140I now move to my assessment of Ms Rayner’s psychological consequences flowing from the collision. While the ss(c) application was not ultimately pursued, it is relevant for me to undertake this assessment in light of:
(a) Mr Speck’s assertion of mental health issues and a somatic disorder and his recommendation that the TAC obtain an assessment from a psychiatrist;
(b) the Richards & Anor v Wylie[72] component of Ms Rayner’s application.
[72](2001) 1 VR 79 (“Richards”)
141I had reports from:
(a) Dr Lester Walton, consultant psychiatrist, 6 November 2019 and 2 February 2021;
(b) Dr Nathan Serry, consultant psychiatrist, 4 October 2023.
Dr Walton
142Dr Walton undertook a joint assessment for the TAC and Ms Rayner’s solicitors on 24 October 2019.
143The history obtained by Dr Walton included:
(a) there were no pre-existing psychological conditions;
(b) since the collision, Ms Rayner has suffered low mood, especially when her pain was maximal;
(c) pain disrupted Ms Rayner’s sleep;
(d) complaints of being forgetful and having difficulty absorbing information;
(e) passing the collision site triggered vivid memories of the collision;
(f) sexual activity was compromised by reduced libido and ongoing pain, leading to some conflict with her spouse.
144At the time of his psychiatric examination, Dr Walton noted Ms Rayner:
(a) was pleasant and cooperative but was easily flustered and prone to tearfulness;
(b) described her own mood as “I feel overwhelmed”;[73]
(c) performed arithmetical calculations slowly but accurately; otherwise, there was no readily observable evidence of cognitive deficit;
(d) was probably suffering from minor compromise of concentration due to mood disturbance;
(e) had normal underlying intelligence;
(f) displayed no evidence of psychosis;
(g) impressed as being anxious and uncertain as to whether or not she should seek professional mental health treatment;
(h) was positive about continuing in employment; she stated she loved her job.
(i) expressed uncertainty about her more general future.
[73]PACB 72
145Dr Walton made a diagnosis of adjustment disorder with mixed anxiety and depression.[74]
[74]Ibid
146While Dr Walton said Ms Rayner suffered readily identifiable post-traumatic symptoms, he doubted that these symptoms were wide ranging and severe enough to warrant a diagnosis of post-traumatic stress disorder (“PTSD”).[75]
[75]Ibid
147Dr Walton felt that Ms Rayner’s condition had substantially stabilised. As to prognosis he said:
“Overall the prognosis is mixed. Fortunately this woman is not suffering from a severely disabling psychiatric syndrome but the indications are that it may persist in the longer-term.”[76]
[76]PACB 74
148Dr Walton assessed Ms Rayner’s impairment pursuant to the “impairment guides”[77] at 18 per cent. He broke the 18 per cent down as being:
(a) 10 per cent primary to the collision;
(b) 8 per cent secondary to Ms Rayner’s physical condition.
[77]The Guides to the Evaluation of Permanent Impairment, in accordance with the GEPIC, which are used in the assessment of statutory benefits pursuant to the Act.
149Dr Walton re-examined Ms Rayner on behalf of her solicitors on 27 January 2021.
150By this time, Ms Rayner’s marriage had broken down. Since October 2020, Ms Rayner had sought counselling.
151Dr Walton said Ms Rayner told him she continued to suffer back and neck pain as before.
152At the time of this assessment, Ms Rayner was working four days per week.
153In the course of Dr Walton’s mental state evaluation, he noted:
(a) Ms Rayner indicated she was feeling sad every time she had to talk about the collision. Dr Walton said that accorded with his observations.
(b) As before, there were minor difficulties in sustaining concentration, but otherwise Ms Rayner’s intellectual capacity remained intact.
(c) No psychotic disturbance.
(d) Ms Rayner remained reasonably hopeful that she might find some sort of peace eventually.
154Dr Walton, in conclusion, said:
(a) He maintained a diagnosis of an adjustment disorder with mixed anxiety and depression.
(b) This condition is properly described as being a collision-induced psychiatric injury.
(c) As a result of the marriage breakdown, Ms Rayner was receiving psychological counselling, which was entirely appropriate.
(d) Ms Rayner’s response to the failure of her marital relationship did not seem to be of major proportions.
(e) He did not see the failure of the matrimonial relationship to be completely independent of the collision, as the emotional disturbance directly attributable to the collision very likely had made a contribution to the matrimonial failure.
(f) Ms Rayner had a modest incapacity for work specifically identifiable on psychiatric grounds.
(g) He continued to rate the collective impairment at 18 per cent and the proportion of breakdown had not changed markedly. Dr Walton specifically said that the matrimonial breakdown, on one hand was likely causing a temporary exacerbation only, and on the other hand was largely a consequence of the collision, rather than independent of it.
(h) The breakdown of the 18 per cent impairment was now:
(i)10 per cent directly attributable to the collision.
(ii)7 per cent is secondary impairment.
(iii)1 per cent is non-accident impairment.
(i) The level of impairment very likely remains permanent.[78]
Dr Serry
[78]PACB 80
155Dr Serry assessed Ms Rayner for her solicitors on 4 October 2023.
156Dr Serry obtained a history from Ms Rayner generally in similar terms to the other medico-legal assessors.
157At the time of Dr Serry’s mental state examination, he said:
(a) Ms Rayner was very pleasant and cooperative;
(b) Ms Rayner was a clear, thoughtful and articulate, but quite tearful, historian;
(c) Ms Rayner demonstrated a normal effective range, but with prominent underlying depressive themes;
(d) Ms Rayner was anxious at presentation, this being consistent with self-report and with the focus of her anxiety being on her health in the future and about being on the road;
(e) Ms Rayner described having been quite traumatised by the circumstances of the collision;
(f) there was no abnormality of thoughts, stream, or form, but thought content revealed an ongoing preoccupation with the collision;
(g) in respect to cognitive assessment, the subjective complaints made by Ms Rayner regarding forgetfulness and difficulty sustaining concentration were consistent with her emotional state and not suggestive of an underlying organic process;
(h) insight appeared to be at least partially maintained;
(i) judgment was coloured by anxious health-based concerns.
158It was Dr Serry’s summary that:
(a) Ms Rayner suffered injuries in a quite violent truck-versus-car collision.
(b) Ms Rayner has remained physically symptomatic, with ongoing pain and significant functional limitations. Ms Rayner had not returned to her full premorbid level of functioning.
(c) Ms Rayner has struggled with fluctuating low mood, ongoing anxiety, anger and frustration, and she is still partially traumatised by the circumstances of the collision.
(d) Ms Rayner had a very sound premorbid mental health status.
(e) The collision has had a marked impact on Ms Rayner's physical and mental health.
(f) From a diagnostic point of view, Ms Rayner presents with:
(i)PTSD;
(ii)chronic adjustment disorder with anxious and depressed mood;
(g) Ms Rayner’s PTSD has arisen as a direct result of the collision and her chronic adjustment disorder has arisen largely as a consequence of the collision-related physical injuries.
(h) Ms Rayner’s prognosis is guarded.
(i) There is a nexus between Ms Rayner’s persistent physical issues and her mental health.
(j) Ms Rayner’s condition has substantially stabilised.
What conclusions do I reach from the medical evidence?
159In colloquial terms, Ms Rayner was clearly “knocked about” in the collision. Indeed, I accept the collision:
(a) Involved high-force impact. That is, Ms Rayner’s car was “T-boned” and then struck a pole.
(b) Was a frightening experience.
160While Dr Al-Azzari made no specific reference on the day of the collision to any spinal injury suffered by Ms Rayner, within a short period of time she was complaining of spinal problems to:
(a) the doctors at the Breed Street Clinic;
(b) Ms Issell.
161Indeed, on 15 May 2017, Dr Bhatt recorded Ms Rayner’s complaint of left-sided back pain. Specifically, left-sided paraspinal tenderness. This is a complaint which has been regularly noted by many medical practitioners over the subsequent seven years and of which Ms Rayner still complains.
162Ms Rayner’s complaints of spinal problems initially included each of the three segments of the spine, that is: cervical, thoracic and lumbar spine issues.
163Focusing, firstly, on the cervical spine.
164For the first few years subsequent to the collision, Ms Rayner complained of, not only pain and impaired movement in her cervical spine, but also headaches. However, in recent years Ms Rayner has conceded that her cervical spine problems had improved. Indeed, I note:
(a) she told Professor Bittar they were now only intermittent, occurring about twice a year;
(b) she told Dr Awad that her cervical problems had settled;
(c) Mr Speck recorded no symptoms flowing from the cervical spine in his most recent report.
165This accords with Ms Rayner’s affidavit and oral evidence that her ongoing pain and pain-related impairment is primarily in the lumbar and thoracic spine segments.
166I accept that, over the years, Ms Rayner’s cervical spine pain has settled. It is no longer an issue of significance. The real issue, therefore, is my assessment of Ms Rayner’s ongoing complaints of thoracic and lumbar spine problems.
167That Ms Rayner openly conceded the improvement in her cervical spine symptoms is, I consider, important when assessing her veracity and the reliability of the balance of her evidence.
168I move now to Mr Speck’s evidence. Mr Speck, in his recent report, suggested mental health issues played a part in Ms Rayner’s presentation and her complaints had a somatic component. It is in this context Mr Speck suggested to the TAC they have Ms Rayner assessed by a psychiatrist.
169Having considered this aspect of Mr Speck’s evidence, it appears to me that he is in my words, “having a bob each way”. In his first report, Mr Speck did not raise the possibility of a somatic disorder and he was prepared to accept Ms Rayner’s presentation was that of soft-tissue symptoms which may reflect irritation of the facet joints at L4-5 and L5-S1. Indeed, Mr Speck said Ms Rayner’s lower back symptoms may be improved by the treatment of the facet joints with injections.
170In his second report, while conceding Ms Rayner’s presentation to be that of ongoing soft-tissue symptoms, which he again said may reflect irritation of the facet joints at L4-5 and L5-S1, Mr Speck introduced the presence of “mental health issues” and “somatic disorder”.[79] In this context, Mr Speck suggested an assessment by a psychiatrist.
[79]DACB 49
171As to the mental health issues introduced by Mr Speck, I note:
(a) Dr Walton’s and Dr Serry’s opinions are generally consistent. That is, Ms Rayner is suffering:
(i)A chronic adjustment disorder with anxious and depressed mood secondary to her physical injuries.
(ii)A primary psychiatric illness due to the trauma of the collision. Dr Serry made a diagnosis of PTSD. Dr Walton, while being of the opinion Ms Rayner suffered readily-identifiable post-traumatic symptoms, said the condition did not reach the PTSD diagnosis.
(b) Both Dr Walton and Dr Serry discounted Ms Rayner as suffering from any psychotic disturbance. In their mental state examinations and conclusions, they made no such finding.
(c) Neither Dr Walton, nor Dr Serry, were critical of Ms Rayner’s presentation.
(d) Neither Dr Walton, nor Dr Serry, suggested the existence of a diagnosable somatic disorder or any functional overlay.
172I also note, relevant to this issue:
(a) Professor Bittar’s observations that Ms Rayner displayed no illness behaviour;
(b) the findings by the physiotherapists of, and reference by Dr Awad, to muscle spasm;
(c) the consistency of:
(i)Ms Rayner’s complaint of left-sided lower back and thoracic pain;
(ii)the clinical findings of left-sided paraspinal tightness.
173As is the norm in such applications, Mr Speck was not called to give oral evidence. I did not have the opportunity to hear his explanation of precisely what he meant by his reference to mental health issues and somatic disorder. That said, I do not accept any implication arising from Mr Speck’s evidence that Ms Rayner’s complaints of spinal pain and pain-related symptoms are not organically based (if that was indeed the implication). Specifically, I do not accept Ms Rayner’s complaints of spinal pain and dysfunction are somehow related to either her matrimonial breakdown or mental health issues. Indeed, I consider such an implication to be contrary to:
(a) the evidence of the expert psychiatrists;
(b) the balance of the medical evidence in respect of Ms Rayner’s spinal injury;
(c) my findings in respect to Ms Rayner’s:
(i)credit;
(ii)reliability;
(iii)overall presentation;
(d) a balanced assessment of the sequence of events.
174Put simply, I do not accept that Ms Rayner’s presentation in respect to her spinal injury is clouded by non-organic factors.
175From the medical evidence I accept:
(a) Ms Rayner suffered an aggravation of lumbar and thoracic spondylosis as a result of the collision.
(b) In particular, I consider it likely that there has been irritation to the facet joints at the L4-5 and L5-S1 levels.
(c) The findings of muscle spasm, muscle tightness and spinal stiffness are consistent with such a diagnosis.
(d) There is an organic basis for Ms Rayner’s complaints of pain and pain-related impairment.
(e) Ms Rayner’s spinal condition has stabilised and will persist into the foreseeable future. That is, for the purposes of the application, the injury to Ms Rayner’s spine is permanent.
176Further, I accept Ms Rayner’s complaints of symptoms and consequences made in both her affidavit and oral evidence to be generally consistent with my conclusions flowing from the medical evidence. That is, Ms Rayner’s spinal injury consequential to the collision:
(a) is a source of chronic pain and pain-related impairment;
(b) while the pain varies in intensity, the pain and pain-related impairment impacts on Ms Rayner’s life in many ways.
177Moving now to the psychological distress which Ms Rayner suffers consequential to the collision.
178Firstly, I accept that Ms Rayner suffers a level of ongoing psychological distress which, properly categorised, is of a primary nature.
179This is not a ss(c) application. I will fall into error should I take heed of this aspect of Ms Rayner’s psychological distress when undertaking my determination of the ss(a) application. I do not.
180Secondly, I accept that Ms Rayner also suffers from a level of psychological distress which is secondary to her spinal injury. For example, and without identifying every aspect of her pain and pain-related impairment which contributes to her depressed mood and anxiety:
(a) her inability to go running as she had;
(b) not being able to maintain her home as she would like;
(c) the adverse impact her spinal injury has had on her career.
181I accept this aspect of the evidence is relevant for my assessment according to the principles set out in Richards.
Some general observations on the “serious injury” test
182Before moving to complete my determination of Ms Rayner’s application, I make some general comments in respect to the “serious injury” test.
183It is Ms Rayner who has the onus of proof.
184To establish “serious injury”, the threshold is high.
185The process to be followed in the assessment of the pain and suffering consequences was considered by the Court of Appeal in the much-quoted case of Haden Engineering Pty Ltd v McKinnon.[80] The observations made by Maxwell P provide me with assistance in respect to the tasks which I am to undertake in the completion of this aspect of my determination.[81] Further, given this application is made pursuant to the Act, I must take heed of the impact which Ms Rayner’s collision-related spinal injury has on her earnings and earning capacity.
[80](2010) 31 VR 1 (“Haden”)
[81](Ibid). See in particular Maxwell at paragraphs [9]-[17].
186Referring further to Haden, given my finding that Ms Rayner is a stoic person, I note the Court relevantly said:
“… the cases recognise that some plaintiffs may be more ‘stoical’ than others. This means that such a plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injury suffered by the ‘stoical’ plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain. In such a case, the ‘objective’ evidence of the disabling effect may be of less significance than usual.”
187It is appropriate to note that it is the cumulative nature of the pain and suffering consequences which must be considered. That is, I must consider “globally” all of Ms Rayner’s:
(a) actual experiences of pain; together with
(b) the disabling and debilitating effects of the pain-related impairment.[82]
[82]Sutton v Laminex Group Pty Ltd (2011) 31 VR 100 at 114 (per Hargrave AJA)
188It is also appropriate for me to recognise that, as part of my analysis, I must give consideration to not only what it is that Ms Rayner’s says she has lost, but also what it is that she has retained.[83]
[83]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
189Finally, as the Court of Appeal said in Ellis Management Services Pty Ltd v Taylor[84] in relation to range cases:
“The judgment in issue is an evaluative one involving a synthesis of matters of fact and degree. Such a judgment necessarily involves a consideration of detailed facts and a weighing of cumulative factors. Different minds might reasonably reach different conclusions as to where the overall seriousness of the consequences fell within a range. … .”[85]
[84][2013] VSCA 326
[85](Ibid) at paragraph [59]
Is Ms Rayner’s spinal injury a serious injury?
190Moving now to complete my determination.
191Ms Rayner said that, prior to the collision, she had not suffered any spinal injury or problems. Indeed, she said she was very fit and active. This was not challenged by the TAC. I accept Ms Rayner’s description of her life pre-collision and her level of activity. She was a high-functioning individual.
192Referring firstly to pain.
193The TAC said, when assessing Ms Rayner’s pain consequences, it is important that I take into account not only what Ms Rayner says about her pain, but also what she does about it. This is a well-established proposition.[86]
[86]Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Haden
194In this context, the TAC said:
(a) Ms Rayner’s pain is only intermittent;
(b) she does not consult her general practitioner or other health service providers regularly;
(c) the referral to Dr Weekes did not lead to any pain management program;
(d) Ms Rayner’s pain is controlled by modest pain relief;
(e) no surgery is suggested.
The TAC said it follows that Ms Rayner’s pain consequences are at the mild end of the spectrum and do not satisfy the test.
195True, it is, Ms Rayner:
(a) concedes there are times when she has no pain;
(b) is not regularly attending at her general practitioners for her collision-related spinal injury;
(c) did not progress to the pain management program;
(d) is not regularly having physiotherapy, massage or other manual therapy;
(e) is using medication on a regular, but not daily, basis.
196Addressing the first of these observations: Ms Rayner’s pain.
197I accept there are times when Ms Rayner is without pain. She said so. However, I also accept that pain is never far away.
198I accept there is not a day that goes by when Ms Rayner does not suffer some level of pain and pain-related restriction resulting from her collision-related spinal injury. This pain varies between a mild base rate level of pain and quite severe pain to the level of 9/10.
199For completeness, I make reference to the video shown in the course of the application. I will not repeat my observations and conclusions set out earlier in this judgment. I do not accept the video to be inconsistent with Ms Rayner’s complaints of ongoing pain.
200Moving now to the nature and extent of Ms Rayner’s medical treatment.
201It is apparent Ms Rayner has embraced the advice provided to her to “self-manage”. In this regard, I make particular reference to the evidence of the physiotherapists, Ms Issell, Ms Farrell and Mr Moar. In the case of Ms Issell and Ms Farrell, they have, as a part of their treatment of Ms Rayner, sought to have her adopt ongoing Pilates, gym, personal training and exercise/stretching regimes. Mr Moar recommended ongoing exercise physiology and self-education as a part of Ms Rayner’s ongoing injury-management regime.
202I pause here to note that, regularly in such applications, injured persons are criticised for being overly dependent on medication and/or various forms of medical treatment. Often there is medical evidence, usually, but not exclusively, from defendants’ experts, that there is an over reliance on various modalities of treatment and the injured person should be self-managing.
203Turning back to Ms Rayner’s circumstances, I accept she:
(a) Is genuinely concerned not to become reliant upon, or overuse, painkilling medication. Ms Rayner uses painkilling medication when she deems it absolutely necessary.
(b) In the alternative to medication, Ms Rayner seeks to manage her pain by various self-management techniques. She implements numerous treatment strategies, which include:
(i)the use of gels and creams;
(ii)heat packs;
(iii)ice packs;
(iv)foam rolling;
(v)pillows;
(vi)a Theragun;
(vii)stretching and mobility exercises;
(viii)low-intensity exercise at the gym and Pilates.
(c) Plans every day around managing her spinal injury with a view to minimising the pain consequences. This involves, for example:
(i)working .8 hours, not full time;
(ii)regularly working from home;
(iii)at work, using a standup desk, a special chair and specifically-designed ergonomic work practices;[87]
(iv)organising her mother, ex-husband and/or in-laws to provide assistance.
[87]IPAR Rehabilitation Ergonomic Evaluation Report, dated 6 October 2023, PACB 114-121
204It is important that the Court does not lose sight of the fact that there are more ways to manage pain than medication or attendances upon medical practitioners. To Ms Rayner, medication is a last resort. It is, however, a last resort which she does, on a regular basis, by necessity turn to.
205In the circumstances of this case, I do not accept Ms Rayner’s actions in the management of her pain to be unreasonable, nor to tend against her complaints of suffering pain. It is not as if Ms Rayner is doing nothing. Quite the opposite. Ms Rayner explained that she structures her life around the management of her spinal injury and the control of her pain.
206I accept, on a daily basis, Ms Rayner is constantly implementing strategies and pain-management techniques with a view to avoiding the use of medication, to control her pain and minimise her pain-related impairment. I accept the grind of such strategies and techniques, cumulatively, to be a significant consequence in their own right.
207To summarise, I accept Ms Rayner:
(a) has suffered pain related to her spinal injury over the last seven years since the collision;
(b) to this day continues to suffer pain related to her spinal injury;
(c) the pain:
(i)is variable;
(ii)is not present all of the time;
(iii)is present every day;
(iv)is aggravated by activity;
(v)is aggravated when Ms Rayner is in a static position for an extended period of time;
(vi)may flare up for no apparent reason;
(vii)has an organic basis;
(viii)for the purposes of this application, is permanent.
208Given Ms Rayner’s relatively young age and what I accept is a gloomy prognosis, I accept Ms Rayner’s pain to be a very significant consequence.
209Moving now to mobility.
210Given my conclusions flowing from my assessment of the medical evidence and my acceptance that there is an organic basis for Ms Rayner’s complaints of pain and pain-related impairment, it follows that I accept Ms Rayner suffers:
(a) Reduced tolerances for sitting, standing, running, exercising and walking. I note that the video evidence was not at odds with Ms Rayner’s affidavit evidence and histories which she provided to doctors.
(b) Has a compromised capacity to bend and twist, particularly at times when she is suffering a flare-up of symptoms. Activities such as putting on shoes and socks can be problematic.
(c) A general restriction in spinal movement/spinal stiffness consequential to her collision-related injury.
211I accept, in general terms, that Ms Rayner’s overall mobility has been impacted.
212Moving now to the impact which Ms Rayner’s spinal injury has upon her work.
213Ms Rayner said that, but for her spinal injury, she would:
(a) be working full time;
(b) actively pursuing promotion within Services Australia;
(c) by now be working at the EL 1 level.
Ms Rayner identified a career path which was clearly well thought through and for which she had undertaken study.
214The TAC disputed this evidence. They said Ms Rayner:
(a) is now working longer hours than she was at the time of the collision;
(b) has had promotion since the date of the collision;
(c) given she is now a sole parent, would not be in a position to work full time;
(d) articulated ambitions which were merely “aspirational”;[88]
(e) in fact, is working in a position and earning at the rate she would have been, regardless of the collision and her spinal injury.
[88]T55, L10
215I do not accept the TAC’s assertions.
216I accept:
(a) Ms Rayner to be a very hardworking and ambitious person;
(b) Ms Rayner would have been working full time had it not been for her spinal injury. To this end, I note she has support from:
(i)her mother;
(ii)her ex-husband;
(iii)her parents-in-law;
I also accept Ms Rayner:
(i)is a well-organised and driven person
(ii)would have made full-time work viable.
(c) Ms Rayner would have received further promotion. Indeed, Ms Rayner’s promotions, in her time at Services Australia, are testament of her being a person “on the way up” within the organisation.
217I gain comfort in accepting Ms Rayner’s evidence in respect to her work ambitions, given she had completed her Diploma of Human Resources in a period when:
(a) she had two very young children;
(b) she was running a household;
(c) she was working part time.
218In colloquial terms, I accept Ms Rayner “has the runs on the board”, and given what she has already achieved tends to the conclusion that, but for her spinal injury, she would have continued to excel within Services Australia.
219In respect to the impact which Ms Rayner’s spinal injury has had on her work capacity, I was assisted by the evidence of Dr Awad.
220Care must also be taken not to prejudice Ms Rayner by reason of her choice to exercise her fertility.
221I accept Ms Rayner:
(a) to be a person who, without injury, had a very significant vocational capacity;
(b) now has a reduced work capacity by reason of her collision-related spinal injury alone;
(c) has made a considered and reasonable assessment of the impact of her spinal injury and her residual work capacity;
(d) has pushed herself to return to work and is currently working to her full capacity.
(e) is working at a reduced level as a consequence of her collision-related spinal injury.
222In the course of the application, I was provided with evidence in respect to Ms Rayner’s actual earnings and potential earnings. I accept:
(a) Ms Rayner is currently earning $81,563.56 working a .8 position;
(b) If Ms Rayner was able to work full time, she would be earning $98,982.[89]
(c) Had Ms Rayner, by the time of the application, reached the position of an EL 1, she would be earning between $114,128 and $126,462.[90]
[89]PACB 128
[90]PACB 126
223I accept Ms Rayner is currently losing somewhere between approximately $17,000 and $45,000 per annum by reason of her spinal injury and her inability to work full time and/or pursue further promotion. I accept this loss will continue into the foreseeable future. I accept this to be a “very significant” consequence.
224Moving now to sleep.
225Ms Rayner said her sleep was impacted by the pain flowing from her spinal injury. She said:
(a) it was difficult to get to sleep;
(b) she wakes in the night due to pain;
(c) as a result of her poor sleep she feels fatigued;
(d) she uses medication and natural sleep aides to try and assist her sleep.
226I accept Ms Rayner’s sleep is impacted by her spinal injuries. This is a consequence of significance.
227Turning now to cognitive function.
228Ms Rayner said that she had some issues with concentration and absorbing new information. This was commented upon by Dr Walton and Dr Serry.
229While such problems may be related to the consequences of pain, they may also be related to the consequences of the primary psychiatric injury. In these circumstances, for the purposes of this application, I do not attribute any weight to such consequences.
230Moving now to the general activities of daily living.
231It is appropriate I note that, at this stage of the judgment I had the benefit of, not only Ms Rayner’s evidence and the medical evidence to which I have already referred, but I also had evidence from Ms Rayner’s:
(a) ex-husband, Mr Glenn Rayner;[91]
(b) friend, Ms Julie Mack;[92] and
(c) mother, Ms Allanah Di Dio.[93]
[91]Exhibit “B”, affidavit dated 10 September 2021 at PACB 34-36
[92]Exhibit “B”, affidavit dated 9 September 2021 at PACB 30-33
[93]Exhibit “B”, affidavits dated 9 September 2021 and 5 February 2024 at PACB 23-29
232The affidavits of Mr Rayner and Ms Mack were sworn back in September 2021. As I raised in the course of the hearing, I am concerned that such evidence is just short of three years old. Given the time which has elapsed since these affidavits were sworn, I give them limited weight in respect to current consequences. The evidence does, however, provide some historical context.
233The affidavits of Ms Di Dio were sworn 9 September 2021 and 5 February 2024. I find Ms Di Dio’s evidence helpful in that it:
(a) corroborated Ms Rayner’s evidence;
(b) provided me with greater insight and understanding in respect to the day-to-day consequences of Ms Rayner’s spinal injury.
234Turning now to Ms Rayner’s capacity for self-care and self-management.
235As a starting point, I accept the TAC’s assertions that Ms Rayner is able to independently self-care and self-manage. Having said that, I also accept that there are some aspects of her self-care and self-management which may lead to some increased pain and restriction. For example, putting on shoes and socks. I give limited weight to this aspect of Ms Rayner’s application.
236Moving now to Ms Rayner’s capacity to perform her household and family duties.
237I accept:
(a) Prior to the collision, Ms Rayner was:
(i)“fanatical” about the state of her home;
(ii)able to attend to the full range of household domestic duties unassisted.
(b) Since the collision, Ms Rayner’s capacity to undertake household and domestic activities has been compromised. That is not to say she does not still undertake a wide range of activities around the house, but, rather:
(i)such activities lead to increased pain;
(ii)she needs to take breaks;
(iii)she is reliant upon her mother and others for assistance, particularly with heavier tasks;
(iv)she has had to become more accepting of doing a lesser job;
(v)she has had to hire contractors to help in the garden.
238I accept there have been compromises which Ms Rayner has had to accept in the running her household. Such compromises do not come easily to her. I give some weight to the impact Ms Rayner’s spinal injury has had on her household function.
239Moving now to family activities.
240I accept Ms Rayner has endeavoured to undertake, and indeed has undertaken, a range of family activities since the collision. This is demonstrated by:
(a) her evidence;
(b) the social media entries;
(c) her mother’s evidence;
(d) the video.
241Again, it is a situation where such activities:
(a) at times will lead to increased pain and discomfort;
(b) require Ms Rayner to exercise care and either limit the nature and scope of her activities or suffer pain consequence as a result.
242I attribute some weight to the impact on Ms Rayner’s capacity to participate in the full range of family activities.
243Moving now to Ms Rayner’s recreational and sporting interests.
244I consider this aspect of the application to be important.
245Ms Rayner said, before the collision she was very active and very fit. For example, she regularly:
(a) ran 10 kilometres or more;
(b) attended gym and lifted weights;
(c) undertook boot-camp training.
246I accept Ms Rayner’s description of her pre-collision fitness and training regime. I accept that, to Ms Rayner, fitness was a way of life.
247Ms Rayner said her loss of capacity to undertake unrestricted recreational and sporting activities was a very significant loss. She said:
(a) She is now only capable of running a very short distance, and, indeed, she has not tried to run for some time. Endeavouring to run leads to increased pain.
(b) Her attendances at the gym are now significantly in the context of rehabilitation and management of her spinal injury, rather than for the achievement of fitness and the sense of well-being which flowed.
(c) What she now does by way of recreational and sporting activities is always dictated by her spinal injury.
248The TAC said Ms Rayner:
(a) still lives an active life;
(b) still participates in a range of recreational and sporting activities;
(c) is not denied such activities.
249The TAC pointed to her evidence that she still exercises at least three times per week, being:
(a) Pilates;
(b) walking;
(c) attending a personal trainer.
250Indeed, in the course of the hearing there was evidence, and much debate, about Ms Rayner’s participation in fun runs, both before and after the collision.
251Prior to the collision, Ms Rayner had the capacity to run 10 kilometres in one hour and four minutes, and 5 kilometres in twenty-six minutes, thirty seconds.[94]
[94]Exhibit 3
252Ms Rayner was running in the range of 5-to-6-minute kilometres. These are solid performances.
253Ms Rayner agreed that she participated in a fun run event in March 2023. She completed this 6-kilometre event in fifty minutes and forty-eight seconds. Ms Rayner said she walked a significant part of this event. That is clear from the time. Ms Rayner said, as a result of participating in this event, she suffered “massive” and “[d]ebilitating pain”.[95]
[95]T39, L6-8
254I accept that Ms Rayner is no longer able, by reason of her collision-related spinal injury, to run as she had. To a person who was a serious amateur athlete, this is a significant consequence.
255Further, in respect to her general levels of activity, in her oral evidence, Ms Rayner said in response to TAC puttage that she remained fairly active, “compared to what [she] was, no”.[96]
[96]T26, L23
256Ms Rayner, both in her affidavit and oral evidence, explained that her personal training, gym, boxing and other activities, were restricted. The picture painted was that such activities were directed at maintaining mobility and function, rather than for the pure enjoyment of exercise.
257I accept:
(a) Ms Rayner’s recreational and sporting capacity has been significantly compromised by her spinal injury;
(b) her current activities are designed around her spinal condition and are as much remedial in nature as they are for maintaining physical fitness;
(c) indeed, despite her efforts, her physical capacity has declined;
(d) Ms Rayner is not participating in sporting and recreational activities at anywhere near the level she had prior to the collision.
258To a person such as Ms Rayner, for whom I accept physical fitness and capacity is extremely important, this is a very significant consequence.
259Moving now to social activities.
260The TAC said that Ms Rayner had retained capacity to participate in many aspects of her social life. They said this was evidenced by the video evidence, extracts from social media and Ms Rayner’s own evidence. I agree. It is clear Ms Rayner does try to maintain a level of normality in her social life, particularly when it comes to her children. Further, on her own admission, Ms Rayner still on occasion goes out for dinner and participates in activities, such as family meals at the Noojee Hotel.
261I do not accept the impact on Ms Rayner’s social life to be a significant consequence in the context of this application.
262Moving now to the impact of her spinal injury on Ms Rayner’s sexual life.
263Ms Rayner said her intimate relationship with her ex-husband had been impacted. This led to tension within the relationship. Ms Rayner said this, in part, contributed to the breakdown of her relationship. However, to put this into context, Ms Rayner also said there were a range of other factors which contributed to the matrimonial breakdown.
264I accept there has been an impact on Ms Rayner’s intimate relationships. This is a consequence which I take into account.
265I must also take into account that Ms Rayner is a relatively-young person. She will have many decades of life in front of her to live with the consequences which I have identified.
266Having said that, as I have noted earlier in this judgment, I must also take into account that which Ms Rayner has retained. The TAC said that there is in fact no aspect of Ms Rayner’s life which is denied to her. She has retained capacity to undertake all aspects of her life. This includes:
(a) working .8 hours and achieving promotion since the collision;
(b) continuing to run her household in circumstances where she is a sole parent;
(c) living independently;
(d) participating in a range of recreational and sporting activities and, indeed, continuing to be still fairly active;
(e) maintaining her social life;
(f) retaining significant tolerances to sit and stand and for activities generally.
267It is necessary for me to synthesise her retained capacities with those consequences which I accept flow from the spinal injury.
268That leads me to my assessment of the impact of the collision-related spinal injury on Ms Rayner’s general enjoyment of life.
269Having been in the unique position of observing Ms Rayner in the witness box, and having considered all the evidence, I have formed the view that the cumulative effects of Ms Rayner’s spinal injury do adversely impact her general enjoyment of life.
270I accept many things which were very important to Ms Rayner are either denied to her (for example, her capacity to go running as she had) or significantly diminished. I have been assisted by the observations of her mother, Ms Di Dio, which accord to my general observations.
271In summary I accept:
(a) prior to the collision, Ms Rayner was a very fit, very active, ambitious and capable individual;
(b) while Ms Rayner has endeavoured to do the best she can to manage her spinal injury and live her best life, put bluntly, I accept that she is no longer the person she was.
272I accept that the consequences to Ms Rayner are “at least very considerable”. Leave will be granted for Ms Rayner to pursue a common law claim.
Consequential orders
273I will hear the parties in respect to the consequential orders to be made.
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