Rogers v TAC
[2020] VCC 997
•9 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-05191
| GABRIELLE ROGERS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 and 9 June 2020 | |
DATE OF JUDGMENT: | 9 July 2020 | |
CASE MAY BE CITED AS: | Rogers v TAC | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 997 | |
REASONS FOR JUDGMENT
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Subject:
Catchwords:
Legislation Cited: Transport Accident Act 1986
Cases Cited:Humphries v Poljak [1992] 2 VR 129; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Richards v Wylie (2000) 1 VR 79
Judgment:
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab with Mr B Johnson | Slater and Gordon |
| For the Defendant | Ms D Manova | Solicitor for the TAC |
HIS HONOUR:
Introduction
1 In April 2017, Gabrielle Rogers was injured in a transport accident when the car she was driving was struck in the rear by another car. She seeks leave to commence a proceeding to recover damages under s93 of the Transport Accident Act 1986 (the Act). She relies on paragraph (a) of the definition of “serious injury” in s93(17) of the Act. The body function allegedly impaired is that related to the cervical spine, which, in turn, affects her right upper limb.
Circumstances
2 Ms Rogers, now 31, was born and raised in Queensland. She has five siblings. She completed Year 12. She then worked as a nanny for a year in the United Kingdom.
3 In 2007, she was diagnosed as suffering from endometriosis. Between 2007 and 2013, she underwent annual laparoscopies to manage the condition. Her last laparoscopy was in 2018.
4 After returning to Australia, she married and gained employment in customer service with the Commonwealth Bank and also worked in her husband’s restaurant. After five years, her marriage broke down.
5 In 2014, she saw a psychologist for about four months due to an abusive relationship. She was prescribed Lexapro and Stilnox for insomnia.
6 In August 2014, she left Queensland and came to Melbourne with her boyfriend. This relationship lasted about 18 months. After it ended, she stayed in Melbourne.
7 In Melbourne, she worked for Hudson Recruitment as a recruitment consultant for about 18 months. Afterwards, she worked for the Department of Health and Human Services as an executive assistant.
8 In June 2016, she worked very briefly at AFL Sports Ready.
9 In July 2016, she started working as an emergency services despatcher for the Emergency Services Telecommunications Authority (‘ESTA’) and remained in this role until recently. She worked four shifts on and four shifts off. Each shift was 12 hours long.
Accident
10 On 30 April 2017, she was involved in an accident, which she describes:[1]
“….at approximately 6.00 am when I was driving home from night shift. I was travelling along Toorak Road, Kooyong, when a car attempted to merge onto Toorak Road from the Monash Freeway and braked heavily in front of me. I applied my brakes to avoid a collision but the car travelling behind me did not stop and collided into my rear at speed. I recall feeling immediate numbness in my right arm, pain in my chest underneath the seat belt area and pain in my knees from hitting the steering wheel.”
[1]Affidavit sworn on 26 February 2019 at [8].
11 She was taken by ambulance to the Alfred Hospital.
12 After the accident, Ms Rogers was off work for about six weeks and then returned on a graduated work programme. After about another six weeks, she had resumed her pre-injury hours.
13 In mid-2017, Ms Rogers started hosting Tupperware parties, hosting about five such parties. About the same time, a friend registered her as a Wellness Advocate so that she could sell Doterra oils.
14 During 2017 and 2018, she engaged sporadically in alternative forms of therapy: one session of myotherapy at the Midtown Medical Clinic; three sessions of acupuncture; and a number of remedial massages, occasionally at a shopping centre massage clinic in 2017 and more consistently in 2018.
15 Since the accident, her endometriosis has resurfaced. It is more painful than before the accident. In October 2018, there was another laparoscopy and a diagnosis of adenomyosis.
16 In August 2017, Ms Rogers moved to Gembrook to get away from the traffic. In February 2018, she moved to Blackburn South to be closer to her work.
17 Throughout 2018, Ms Rogers experienced severe gut issues. She had high doses of Nexium, an endoscopy and an iron infusion. These issues affected her sleep and appetite. She lost weight. It affected her work, causing her to leave early from work and not attend some of her shifts. Although the state of her gut has improved, it still flares up when she is stressed.
18 In May 2018, she started seeing a psychiatrist at work through Initial Care but stopped when she realised the results were being fed back to her employer.
19 Again, in May 2018, Ms Rogers took a phone call about a girl struck by a truck. The call so upset her, she could not continue with it and handed her headset to a colleague. She believes she was performance managed by her employer because of this incident because, following the incident, there were informal conversations about whether she could do the job. After this call, Ms Rogers noted a marked decline in her ability to take calls. She became quite short with callers when her pain was “really bad”.
20 In February 2019, she was accepted into the Bachelor of Nursing course at Swinburne University. The course commenced in March and involved six hours per week of contact and four hours online. Although she did not discuss with ESTA about taking those hours off work, nevertheless, in March, she resigned employment with ESTA, maintaining she was struggling with the length of 12 hour shifts. She had asked ESTA to modify her hours to accommodate her pain management.
21 On 18 March 2019, she started as an administrator in the allocations team with Caring for You, a nursing agency in Carrum Downs. Her hours were between 6 and 18 per week with shifts of four to eight hours.
22 In April 2019, she spent three nights in Box Hill Hospital with suspected viral meningitis.
23 In July 2019, she suffered a herniated disc whilst at a gym and was admitted into the Alfred Hospital for three days.
24 In September 2019, she moved into a recruitment role with Caring for You in Malvern. This involved 16 hours per week.
25 In October 2019, she stopped taking Gabapentin and Orphenadrine (Norflex) because they made her too groggy.
26 In about October 2019, she fell in a carpark, spraining her left ankle. She wore a boot for a few weeks. With the aid of physiotherapy, she has fully recovered from this injury.
27 In November 2019, she started one-on-one clinical Pilates at Upwell Health, Camberwell. Initially, it was weekly, then fortnightly but has now ceased.
28 Her general practitioner referred her for psychological counselling at LIFE Support. She started but did not continue because it was unfunded.
29 Her hours of work increased at Caring for You to 24 hours per week. However, in December 2019, she was made redundant.
30 On 2 March 2020, she started a new role as a ward clerk at the Alfred Hospital, working 32 hours per week. Her duties included administrative tasks for theatre such as producing theatre labels and wrist bands.
31 In March and April 2020, she engaged in a four week placement for study at Thomas Embling Forensic Psychiatric Hospital, Fairfield.
32 On 5 May 2020, she started psychological treatment at Pain Specialists Australia.
Current position
33 Ms Rogers described her present condition:[2]
“I have a constant aching pain in my neck, scapula and shoulder and often have pain, heaviness, numbness, pins and needles or weakness in my right arm. Cold weather and elevated arm movements seem to exacerbate numbness in the fingers of my right hand. Actions such as typing, writing, using my mobile phone, cooking or lifting or carrying anything with my right arm, such as brushing or drying my hair or brushing my teeth, aggravates my arm and shoulder. I also find that I am quite clumsy with my right arm and hand and sometimes drop things. My neck is very stiff and looking up and down or turning my head from side to side is difficult and painful. This makes driving difficult for example.
I also continue to suffer from regular migraine-type headaches, particularly at the end of the day, which also causes me to feel nauseous. I continue to experience very disturbed sleep due to pain and feel very fatigued much of the time. I often am required to take a nap during the day due to headaches and fatigue”.
[2]Affidavit affirmed on 13 January 2020 at [2] and [3].
34 The pain in her neck, scapula and right shoulder has worsened since the accident. It affects her ability to lift, push or pull because they cause more pain. Using her right arm repetitively or for prolonged periods causes numbness and a tingling sensation. Raising her arm above shoulder height causes almost instant numbness. Reading for lengthy periods strains her neck. She feels stiff and in pain. Typing causes numbness in her hands and arm not long after starting. She takes regular breaks. Keeping her neck in a fixed position increases her pain, which affects her concentration. What she reads does not sink in and she must re-read material.
Treatment
35 Apart from the efforts of Dr Wong, at present, her treatment is provided by the pain management clinic. She receives physiotherapy at least fortnightly. Since about June 2019, she has received occupational therapy. She even uses “essential oils” for their calming effect and for pain relief, where they work like “deep heat”.
36 Ms Rogers now takes Panadol Osteo, two or three times a day and Amitriptyline daily. She still takes Nurofen but not daily. She takes medicine every night to help with the pain and sleep.
Mr Buller
37 In February 2020, she separated from her partner, Curtis Buller. She left where they were living and now rents a one bedroom apartment in Prahran. She must now cook for herself and do the heavier housework, things which Mr Buller did. She finds cooking painful and rarely does it. Since the apartment is small, she spreads its cleaning over a day.
Sleeping
38 Before the accident, Ms Rogers slept seven to nine hours. Since, she sleeps four to six hours on average and rarely has an uninterrupted night. Before the accident, she had small periods of disrupted sleep and, once or twice a year, she had a week of bad sleep. During those weeks, she sought treatment. She has had sleep problems her entire life but in small doses. She puts her present state down to pain, not the effects of insomnia and shift work. Now every night is a struggle because she is in a lot of pain and takes medicine every night to alleviate the pain.
Paramedic
39 She wanted to become a paramedic: “I love helping people and I wanted to get out from behind the phones”. It became her wish while working at ESTA. By working at ESTA, she knew a lot about the work of paramedics. She also spoke to many paramedics. She looked at the courses offered by Central Queensland University, ACU and University of Melbourne.
40 After the accident, she lacked confidence in being able to drive an ambulance or attend motor vehicle accidents. She did not think she would pass the “ambulance medical”. She realised the job of a paramedic was very physical after speaking to her friends. She could not push patients on trolleys because of the weakness in her arm due to pain.
Gymnasium
41 She went to the gym frequently before the accident, four or five times a week. Afterwards, she attempted a few times over a few weeks or a couple of months. She was worried about worsening her injury and she was not confident about doing anything there. The gym made her feel strong and good about herself.
Nursing
42 Ms Rogers passed her first year of nursing with very good marks. She resumed her studies on 1 June 2020. She is doing two subjects online. She is doing exactly what full-time students are doing. It will be six subjects in the year. If all goes well, she will finish her degree at the end of 2021. She would then look at non-physical nursing roles, for example cosmetic surgery and IVF.
43 She does not think she could work full-time as a nurse because of her pain. Absent the injury, she would have preferred other nursing (emergency department, theatre, surgery or anaesthetics) rather than IVF and cosmetic surgery.
Employment
44 Ironically, on 3 March 2020, she started employment as a ward clerk at the Alfred Hospital. She works 32 hours per week, which is the most she can do coupled with her studies. She finds the pain tiring and affecting her concentration because she is restless. She uses heat packs. She expects to pare back her hours of work in order to complete her degree.
Other witnesses
Boevink
45 Eleisha Boevink is a long-standing friend of Ms Rogers. They met about 10 years ago while working in a clothing shop in Brisbane. Although the women now live in different states, they contact each other very frequently.
46 Ms Boevink knows of the turmoil in Ms Rogers’ life associated with the breakdown of relationships, parental separation and moving interstate:[3]
“However, the transport accident and its impact on her still comes up all the time. It still impacts her and that is unusual for Gabrielle. From my observation, the accident has impacted her more than any other life event since I have known her.”
[3]Affidavit affirmed on 2 June 2020 at [4].
47 The last time Ms Boevink saw Ms Rogers was towards the end of 2018 when she stayed with her. Even then, the change in her friend was noticeable:[4]
“Before the accident, she was always very outgoing, cheeky and funny – she had a big personality. When I spent time with her in Melbourne, I felt that that side of her had shrunk a lot. She was much more cautious in doing things and her energy levels are much lower.”
[4]Op cit at [6].
Perry
48 Like Ms Boevink, Temma Perry classes herself as a close friend of Ms Rogers. Also like Ms Boevink, she has infrequent opportunities to see her friend face-to-face. In her case, it is due to her postings around Australia as a soldier. They last met in January 2020. Otherwise they contact each other very frequently.
49 Ms Perry is also able to compare the friend she knew before and after the transport accident. She paints a similar picture to that of Ms Boevink:[5]
“Gabrielle has changed a lot since the accident. She has gone from a bubbly, energetic, fun and outgoing person to someone who is cautious and hesitant in life. It is a very big change from the Gabrielle I got to know before the accident and I can see that her injuries have impacted her life and her career trajectory significantly.”
[5]Affidavit affirmed on 1 June 2020 at [8].
Buller
50 Until February 2020, Curtis Buller had been in a relationship with Ms Rogers for about 22 months. He met her after the accident. After they started living together, Mr Buller noticed the significant limitations in Ms Rogers’ day to day life. He attributes the breakdown of their relationship to two factors. First, his inability to cope with her mood swings. Second, her inability due to pain to join him in the activities which he liked: running, hiking, swimming, attending live music and meeting friends. As part of this second aspect, their intimacy deteriorated to almost none due to the pain she experienced.
Medical evidence
Alfred Hospital
51 Ms Rogers was admitted to the Alfred Hospital on the day of the accident. She complained of neck pain and some paraesthesia in her right arm. She was tender over the area of C3 to C5 and over T3. She had altered sensation in the distribution of C5, 6, 7 and 8. CT scans showed widening at C5-6 and C6-7. MRI scans showed mild posterior bulges at C3-4 and C5-6 without neural compression. X-rays did not show a fractures of the sternum or ribs. She was discharged the next day with analgesics.
Schilbach
52 Emily Schilbach is a general practitioner. Ms Rogers attended her and other members of her clinic in May and June 2017. The clinical findings suggested residual symptoms of radiculopathy when the right arm was stretched and internally rotated. There was discomfort and coldness of the whole right arm with tingling radiating into the fingers. Nevertheless, by June, Dr Schilbach and, perhaps, others in the practice, had diagnosed some right shoulder impingement with mild bursitis. Ms Rogers was told her soft-tissue injuries would resolve fully over time. Physiotherapy was recommended simply to give her confidence in moving her arm and shoulder.
53 During 2018, Ms Rogers continued to attend this clinic for other complaints.[6]
[6]There are attendances on 29 May 2018, 31 May 2018, 12 June 2018, 19 June 2018, 21 June 2018, 26 June 2018, 24 July 2018, and August 2018.
Cunningham
54 John Cunningham is an orthopaedic surgeon specialising in the spine. He examined Ms Rogers once in May 2017 at the request of Dr Schillbach. Suspecting an injury to her right shoulder, he arranged MRI scans, which revealed little: mild sub-deltoid bursitis and minor tendinosis of the supraspinatus with the thoracic spine being normal. On the basis of his examination and the results of the scans, he could not form a definite diagnosis and did not suggest any form of treatment. Perhaps due to the inconclusive nature of her attendance upon Mr Cunningham, Ms Rogers left in an unusual state of mind:[7]
“I left that appointment feeling like if I was to do anything at that stage I risked injuring myself or making the injury worse.”
[7]Transcript (“T”) 47.
Khougaz
55 Katie Khougaz is a myotherapist. Judging from the clinical notes attached to her report, she has treated Ms Rogers five times between 20 February and 23 March 2019. This treatment ceased because Ms Rogers could not afford to pay for it.
56 Ms Khougaz treated her by dry needling and deep soft tissue massage. Based on her testing (including the Spurling’s Test) and imaging, she believes radiculopathy is the main cause of Ms Rogers’ pain.
Dredge
57 Gundula Dredge is also a general practitioner. In June 2019, she referred Ms Rogers to pain management specialists. The clinical records of her practice in Burwood reveal attendances between 11 September 2016 and 31 October 2019.
Wong
58 Clara Wong is a pain specialist physician and anaesthetist. Dr Dredge referred Ms Rogers to her for pain management. Dr Wong saw her six times between 26 June and 31 October 2019. During those visits, she administered a right-sided greater occipital nerve injection, a right-sided sphenopalatine ganglion block (for her Post-Traumatic Stress Disorder) and cervical median nerve branch blocks.[8]
[8]Report dated 30 January 2020.
59 The first of these injections was to the greater occipital nerve. Performed on 15 August 2019, it gave a few days of pain relief before the return of pain and headache.
60 The second was the ganglion block. It was performed on 17 September 2019. Interestingly, this was to treat a mental disorder, Post-Traumatic Stress Disorder, and it was effective:[9]
“How did you go with it? – My feelings around driving changed after that, I went from being quite fearful of driving myself to feeling like I wanted to be in control when I was in a car.”
[9]T29.
61 On 31 October 2019, there were medial branch blocks. They gave relief for a few days before the pain returned.
62 On 24 April 2020, Dr Wong performed a cervical radiofrequency neurotomy. When she made her second affidavit on 1 June 2020, Ms Rogers’ neck, right shoulder and arm were very painful. Dr Wong told her to wait a maximum of eight weeks to see if her symptoms improved. Four days later, she gave oral evidence. To her, the treatment gave no benefit, describing the symptoms following the procedure:[10]
“I had a burning in the top of my neck and the base of my skull, I get eye twitches on my right eye and I have been getting severe – like more severe burning in my scapular now and tremors in my arm.”
[10]T76.
63 Although due for a review on 23 June, Ms Rogers was adamant she would not repeat this treatment even if suggested by Dr Wong – “Because it hasn’t helped and I don’t feel it is going to help again”.[11]
[11]T77.
64 Dr Wong works as part of a pain management practice, Pain Specialists Australia. Ms Rogers receives other forms of treatment from the practice – physiotherapy and occupational therapy. She has been prescribed Gabapentin and Orphenadrine (Norflex).[12]
[12]Plaintiff’s Court Book (“PCB”) 30.
Cook
65 The parties asked Mark Cook, a neurologist and epileptologist, to examine Ms Rogers, which he did on 14 April 2018. The apparent purpose of the examination was an impairment assessment.
66 The only abnormality of the neck found by Professor Cook was very mild restriction of movement on rotation and flexion to the right. With the right arm, there was weakness of the elbow extension and subtle alteration in the quality of light touch and pinprick predominantly in the C6 distribution.
67 Professor Cook considered the neurological symptoms of the right arm had an unusual disturbance of sensation. They are likely related to radiculopathy following a significant injury to the cervical spine.
68 Professor Cook organised nerve conduction studies and EMGs to help clarify the diagnosis. The findings were consistent with radiculopathy at C7-C8.
69 On 4 January 2020, Professor Cook re-examined Ms Rogers; this time at the request of her solicitors only. He maintained his diagnosis of a C7-8 radicular injury. Surgery was not indicated. He thought radiofrequency might give enduring relief.
Aliashkevich
70 Ales Aliashkevich is a neurosurgeon. On 25 January 2020, he examined Ms Rogers at the request of her solicitors. He undertook a thorough examination of the other medical evidence, except the reports of Professor Cook.
71 His diagnosis is broad, being partly conventional diagnosis and partly descriptive. As to the former, he diagnosed a chronic pain syndrome and whiplash associated disorder. He suspected the existence of a right brachial plexus/cervical nerve root traction injury and myofascial pain syndrome.
72 His prognosis is very guarded because of what he identified as four “prognostic red flags” including litigation. He was uncertain she would achieve full functional recovery in the foreseeable future.
73 In a subsequent report, Dr Aliashkevich commented on the results of MRI scans and x-rays taken on 5 May 2020, where the radiologist concluded:
“The spinal cord demonstrates normal calibre and signal and the morphology of the exiting nerve roots and nerves of the brachial plexus are unremarkable. An 8cm segment of muscle fibres disorganisation/disruption, oedema and bleeding involving the right cervical paraspinal muscles extending from C3 to C6. Minor changes are suggested on the contralateral left side. No bone oedema/fracture, significant ligament injury or epidural collection detected. Mild generalised disc bulges and uncovertebral osteophytosis at C3/4 to C6/7 with mild associated exit foraminal narrowing on the right at C4/5 and on the left at C5/6.”
74 It seems Dr Aliashkevich saw both the report of the radiologist and the images themselves and commented:[13]
“I can confirm that your client sustained significant injury to her neck including muscle fibre/disorganisation/disruption, oedema and bleeding in the right cervical paraspinal muscles extending from C3 to C7.”
[13]Report dated 8 May 2020 at p 3.
Serry
75 Nathan Serry is a consulting psychiatrist. He examined Ms Rogers twice, first on 18 September 2018 and, most recently, on 24 March 2020. The latter was performed using Facetime due to the COVID-19 restrictions.
76 Comparing Dr Serry’s reports, her complaints have remained the same over the 18 months between appointments and, overall, the nature of her complaints has worsened. Her complaints and his observations on examination led Dr Serry to find Ms Rogers had experienced more significant but fluctuating levels of low mood, had been particularly anxious and apprehensive, frustrated and irritable and was quite traumatised by the accident circumstances. Noting some pre-existing anxiety and psychological distress from a previous abusive relationship, he now diagnosed a moderately severe chronic adjustment disorder with anxious and depressed mood and with features of traumatisation consistent with Post-Traumatic Stress Disorder. I assume his use of the words “features” and “consistent” means he was not actually diagnosing the disorder.
77 At the original examination, Dr Serry noted an escalation in the severity of her post-trauma symptoms following a distressing call at work.
78 Dr Serry described her mood as tending to be rather up and down, having both good and bad days. She ruminates over whether the rest of her life will be as it is now. She often feels overwhelmed, noting this disturbing complaint:[14]
“The claimant also acknowledged a period of suicidal ideation in the latter part of 2019. She said that she was on university break and was looking for a job. She said that she could not see the point of anything. She stated that she felt overwhelmed but did not make any attempts.”
[14]Report dated 24 March 2020 at p 4.
79 She struggles to motivate herself. Her interests are restricted and she struggles to enjoy herself: “She said that she feels very much alone with her symptoms”.[15] Her libido is significantly reduced. Her energy level is low and she fatigues quickly. She struggles to concentrate and remember. Her confidence and self-esteem have lessened. She is jumpy and easily startled. When driving, she is irritable, short-tempered, on edge and has “trigger-sensitive flashbacks”. She remembers the accident frequently and even dreams of accidents.
[15]Op cit at p 3.
80 Dr Serry described the prognosis as mixed because of connection between the physical and psychological aspects of her presentation with each tending to reinforce the other. He saw continued pain management and pharmacotherapeutic intervention as appropriate.
Siu
81 Kevin Siu is a neurosurgeon. He examined Ms Rogers on 23 March 2020. He diagnosed a soft tissue injury. He was unconvinced about C6 radiculopathy. He was doubtful about the usefulness of radiofrequency denervation. He was uncertain about the prognosis because of her background of past psychological trauma.
82 In a further report, Mr Siu speculated about the existence of a new injury based on his understanding of the 5 May 2020 MRI scans. He sought more information. I did not allow an adjournment for that to be done.
Legal principles
83 Paragraph (a) of s93(17) defines “serious injury” as a long-term serious impairment or loss of body function.
84 The meaning of “serious” in s97(17) of the Act was explained in Humphries v Poljak:[16]
“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 a 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’.”
[16][1992] 2 VR 129 at 140 per Crockett and Southwell JJ.
85 I was referred to the observation of Dodds-Stretton JA in Kelso v Tatiara Meat Co Pty Ltd:[17]
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of ‘very considerable’ consequences.”
[17](2007) 17 VR 592 at 629.
86 Ms Rogers relies on her psychological reaction to the organic injuries she has suffered. I was referred to Richards v Wylie[18] where Winneke P said:
“If, as a result of an injury, a person loses a limb, it will, no doubt, often occur that one of the consequences of such a loss or impairment will be the development of a mental response to that impairment or loss. That is one of the consequences which, along with others, the court will need to evaluate in determining whether the loss or impairment of body function, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described as ‘serious’. … Thus, the ‘serious injury’ defined in para (a) of subs (17) can, I think, have its seriousness measured in part by a mental response to the physical impairment. What it will not recognise is that the mental disorder can itself constitute or be the producer of the impairment of a body function.”
[18](2000) 1 VR 79 at 87-88. See also Buchanan JA at 90.
Discussion
87 Ms Rogers suffered an injury to her neck in the transport accident. Despite other diagnoses, the parties accepted the view of Professor Cook that it is a C7-C8 radicular injury. This diagnosis was, to Professor Cook, the most satisfactory explanation of the various pieces of information available. I accept the diagnosis.
Credit
88 The defendant attacked the credit of Ms Rogers, submitting she was an unreliable witness. Its counsel highlighted her evidence about sleep in her first affidavit and during cross-examination, the cause of her gastric symptoms and the reason for her performance management at ESTA.
89 I had the benefit of observing Ms Rogers, admittedly through an audio-visual link. She struck me as a creditable witness, both in terms of truthfulness and reliability. As with many witnesses, her cross-examination appeared to be an ordeal. Most of her answers were short. Many were “yes”, “no”, or “correct”. She avoided the temptation to elaborate, especially as some do to re-iterate an aspect of their claim. Ms Rogers gave the impression of trying to help. The cross-examination exposed a few anomalous answers. It was a searching cross-examination. But one must remember, when assessing her evidence, that she suffers from a recognised psychiatric disorder with a constant theme of anxiety. She presented to Dr Serry as anxious. To an extent, that is how she appeared to me.
Serious injury
90 Ms Rogers now experiences a constant “aching pain” in her neck, scapular and right shoulder. She often feels distressing symptoms in her right arm. Since she is right-handed, it affects her ability to do normal things. She suffers headaches. She sleeps poorly now. Although she has a history of poor sleep, the quality of her sleep is particularly impaired now. These consequences have existed since the accident, three years ago. She has had four injections with only one having any effect.
91 Contrary to the defendant’s submission, there is no inconsistency between her complaints and what she is capable of doing now. She is not functioning at a “very high level” subjectively even though she is performing well at her nursing studies.
92 Given the view of Dr Schilbach in June 2017 and the impression left by Mr Cunningham with Ms Rogers, it is unsurprising she sought little treatment for her neck, shoulder and arm over a period of about 15 months (that is, between 30 June 2017 and 22 February 2019). Dr Schilbach foresaw a full recovery with physiotherapy merely restoring confidence in movements of the right shoulder and arm. Whether it was his intention, Mr Cunningham left her wary of further harm. Nevertheless, she did receive some treatment from unconventional sources, including a myotherapist.
93 Her experience of pain, difficulties with sleep and memory of the accident rendered her unsuited to her job with ESTA. She has now found work more suited to her physical capacity as a ward clerk.
94 After leaving ESTA, her first choice of occupation was as a paramedic. One would not call it her “dream job”. She realises the consequences of her impairment has taken it beyond her. This is her assessment. I accept it is realistic for the reasons she gave. She knows what the job of a paramedic involves. There is no need for her to enrol in the course or have some kind of formal occupational assessment performed or even an assessment by an occupational therapist. Whether psychological counselling will overcome her residual anxiety when driving remains to be seen.
95 She has replaced the job of paramedic with nursing. Despite her handicaps, she is coping well with the course. It is a sure sign of her determination. However, she appreciates that her preferred forms of nursing will be denied, again because of the effects of her impairment. Again, I accept the accuracy of her prediction.
96 The collapse of her relationship with Mr Buller was caused, in part, by her inability to engage in the sort of vigorous activity that she engaged or could have engaged in before the accident. For example, she regularly attended the gym. Now, she does not.
97 Ms Rogers has had a significant psychological reaction to the physical injuries she has suffered. This reaction does not contribute to or produce the impairment of her body function. I will not repeat the symptoms.
98 Her psychological condition has largely deteriorated over the 18 months between the examinations of Dr Serry. So much so that he now (24 March 2020) categorised her adjustment disorder as moderately severe. However, in the area of driving a car there has been improvement. Surprisingly, it has come about through a stellate ganglion block administered by Dr Wong. It allowed Ms Rogers to feel in control when driving. Although she still has moments of anxiety when driving, attempts are being made to overcome these with the aid of an occupational therapist and psychologist.
99 The severity of the disorder is emphasised by Ms Rogers’ occasional contemplation of suicide. I say “occasional” because she raised it with Dr Serry but denied it with Dr Wong. It is a theme she mentioned briefly in her recent affidavit:[19]
“I feel that my emotional state has deteriorated over the past year. I am realising now that my pain is not improving and in fact seems to be becoming harder to deal with, and this is really hard to cope with emotionally. Sometimes I question the point of carrying on and sometimes feel it would be easier if I was not around.”
[19]At [21].
100 Contemplation of suicide is a serious consequence. In her case, it points to a feeling of hopelessness. It is sad to see anyone express such feelings. For Ms Rogers at 31 to do so is particularly sad.
101 His prognosis was uncertain because of the reactive nature of her condition. The persisting pain and impairment underlies her psychological reaction. Since the physical prognosis is poor, given the failures of various treatments, so also is the psychological.
102 The defendant submitted Ms Rogers’ impairment was not long-term, relying on several considerations: at the time of the hearing, Ms Rogers had not been reviewed by Dr Wong following the denervation procedure; she was seeing a psychologist and physiotherapist; the circumstances in which she returned to work; the fact of about 15 months with little treatment; the engagement in certain activities; and her continued employment coupled with her successful studies.
103 In my opinion, the impairment is long-term. It has affected her for about three years. Professor Cook ruled out surgical therapies. She has not gained benefit from the nerve blocks except in relation to her psychological problems. The radiofrequency treatment has failed and she has ruled out a further attempt. There are no other suggested treatments except the continuation of physiotherapy, counselling and medications. Most of her symptoms are worsening. After three years, without anything definite in the hope of successful treatment, then one must conclude her impairment is long-term.
104 Psychological counselling may help with her anxiety, especially when driving. Physiotherapy provides short-term benefit which is why Ms Rogers seeks such treatment regularly.
105 I have given no weight to the prognosis of Ms Khougaz because I know little about myotherapy and nothing about Ms Khougaz’ academic and professional background. As an aside, the failure to include a report from the other myotherapist she attended once is of no moment.
106 The defendant submitted I could not find her condition has stabilised. The radiofrequency treatment occurred on 24 April. Dr Wong advised Ms Rogers that they must wait up to a maximum of eight weeks to see if the treatment has been effective. Ms Rogers gave evidence on 5 June. This was about six weeks after the procedure. Her description of her symptoms leaves little doubt about the failure of the procedure. Whether it has worsened her situation by adding new symptoms I cannot say. Given the way Ms Rogers spoke about further radiofrequency treatment, waiting until 23 June would have served no useful purpose.
Conclusion
107 Applying the test in Humphries v Poljak, the consequences to Ms Rogers of this accident are fairly described as more than significant or marked and at least very considerable. She has suffered a serious long-term impairment of a body function, being a serious injury. I will grant her leave to commence a proceeding for the recovery of damages.
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