Rorie v TAC
[2010] VCC 352
•6 May 2010 – Revised 11 May 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MORWELL
CIVIL DIVISION
DAMAGES COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-01404
| DONNA RORIE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | His Honour Judge Ginnane |
| WHERE HELD: | Morwell |
| DATE OF HEARING: | 3 and 4 May 2010 |
| DATE OF JUDGMENT: | 6 May 2010 – Revised 11 May 2010 |
| CASE MAY BE CITED AS: | Rorie v TAC |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0352 |
REASONS FOR JUDGMENT
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Catchwords: TRANSPORT ACCIDENT- application for leave to commence proceedings- serious injury- pain and suffering- impairment of left patella and fibula- consequences for plaintiff- relevance of employment in which the plaintiff has engaged post-injury: Transport Accident Act 1986 s.93 (4), (17).
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| APPEARANCES: | Counsel | Solicitors | |
| For the Plaintiff | Mr P.F. O'Dwyer SC | Slater & Gordon | |
| Mr J.F. Goldberg | |||
| For the Defendant | Mr P.D. Elliott QC | Solicitor to the Transport | |
| Mr J.L. Batten |
| ||
| Geelong | |||
| HIS HONOUR: |
1 The plaintiff, Donna Marie Rorie, seeks leave pursuant to s.93 (4)(d) of the Transport Accident Act 1986 (the Act) to issue proceedings for the recovery of damages for injuries sustained in a transport accident on 9 October 2005.
2 Leave is sought in respect of an impairment of the left lower leg. The evidence in particular concentrated on pain suffered in the left-hand side of the plaintiff's patella and underneath the patella in the fibula. There was also evidence about pain in the shin and lower part of the leg. It was accepted that I could look in the aggregate at the patella and the fibula.
3 The plaintiff was injured in a motor vehicle accident on 9 October 2005 when she was aged 39. She lost consciousness. She was air-lifted to the Alfred Hospital, where she was an inpatient for five days. She was diagnosed with injuries to her left tibia and fibula with internal fixation. A plate was inserted in her left leg.
4 At the time of the accident she was walking home at approximately 12.30 a.m. and was standing on a traffic island in Leongatha, when she was run over by a car, which apparently performed a U-turn. She later found out that the car was driven by the mother of her then partner.
5 After discharge from hospital, the plaintiff attended for treatment at the Leongatha Medical Group. In March 2006 she commenced chiropractic treatment for her left leg and neck. In August 2006 she was referred to Mr George Owen, an orthopaedic surgeon. He removed the metal from her left leg on 18 October 2006, but in the process two screws in her leg broke and remain in it.
6 At the time of the accident the plaintiff was between jobs, having previously worked for a merchandising operator. A few months after the accident the plaintiff took up a job at a Two Dollar Plus shop and, then, in a shoe shop for about 28 hours a week. She worked in that latter employment for about eight months until the shoe shop closed.
7 In December 2007 the plaintiff commenced part-time employment with Coles Express at Lang Lang as a console operator. She said that that position was a substantial job, particularly where food was for sale and the operation of ovens for the heating of food was required.
8 In December 2008 the plaintiff moved to the Gold Coast in Queensland, having arranged employment with Coles Express initially on a part-time basis. In mid 2009 she became permanent Assistant Manager in the Coles Express shop at Miami, Queensland. She works from 7 a.m. until 3 p.m. Tuesday until Saturday.
9 The plaintiff is required to carry out a range of duties including management tasks, such as taking responsibility for deliveries, physical work, such as cleaning the forecourt and arranging the shelves and assisting the other console operators. For about two hours a week she does office work. She described her activities in her most recent affidavit of 27 April 2010, in particular in paragraphs 7 to 9 to which I refer. In paragraph 8 the plaintiff states that she is required to be on her feet all day, even when operating the console.
10 Outside of work, the plaintiff has an interest in hypnotherapy and a long- standing interest in clairvoyancy and in neuro-linguistic programming. She described this as an activity to do with changing the way you think, from the negative into the positive, as she put it. She has undertaken courses in those fields.
11 The plaintiff maintains a website offering her services in these areas to members of the public, particularly in the area of clairvoyancy but, apart from a few requests by email and an occasional personal consultation, these activities are very much in the development stage.
12 The plaintiff stated that she suffers from left leg pain with the knee causing her the most pain. She said there was always an ache, at least as a low grade pain, that the severity of the pain comes and goes and that it is exacerbated by long periods of work and standing all day. Only rest makes it better. She suffers pain in the left side patella, fibula and also her ankle.
13 The plaintiff stated in her affidavit of 27 April 2010 that she continues to have ongoing problems with her left knee and leg and suffers some anxiety and depression as a result. She has an ongoing ache in her left knee, going into the lower part of the left leg into the shin. The pain gets worse as the week goes on. She said that nearly all her tasks at work place strain on her left knee and leg.
14 The plaintiff earns $620 net a week of which $380 is taken by rent which leaves her with $240 a week. Her 17 year old daughter, a TAFE student, receives the Youth Allowance. The plaintiff manages to do the housework and cooking with the aid of her daughter. Her 20 year old son lives separately, but she has regular contact with him.
15 In her oral evidence, including when she was cross-examined on her four affidavits, the plaintiff said that the pain on the outside of the bone of her knee becomes painful towards the end of a working week. She keeps working because financially she has to.
16 When asked to describe what was the physical problem she experienced, the plaintiff answered:
"Exhaustion, my leg is paining me chronically, all the time,"
And in response to the question "At night when you come home, what do you do?" she answered:
"Rest. After I've sorted my daughter I basically get down - just sit down for a
cup of coffee and my leg goes straight up on the pouffe”. [1][1] T16.
17 The plaintiff stated that her leisure at the weekend is resting, going to the beach, or engaging in the computer based activities concerned with clairvoyancy and hypnotherapy and the like. She said that her social life has diminished, although she occasionally goes out with friends from Victoria and goes to markets on Sunday. The lessening of her socialising, in part, may have something to do with the computer based activities she has taken up.
18 Before her accident the plaintiff used to power walk for up to 12 kilometres about 5 days per week. After the accident her walking substantially reduced and since going to Queensland she no longer walks for exercise. When asked why that was, she said,
"Mostly because I work as much as I do but also because I used to walk for fitness and that was power walking. I cannot power walk now so it's pointless even doing it."[2]
[2] T25.
19 In her affidavits the plaintiff gave evidence about the restriction on activities, about activities she found difficult such as squatting, kneeling and placing the left leg and knee in a bent position for a long period. She also stated that she had become more irritable and less tolerant.
20 There was evidence about the plaintiff's use of medication. She stated in her most recent affidavit that she used medication to relieve her symptoms, including Panadol Osteo almost daily. When the symptoms became severe she uses Panadeine Forte.
21 The plaintiff also uses alternative medication, including vitamins and herbs. She said that she did not like taking medications such as Panadeine Forte, which made her feel "yuck".
22 Towards the end of the plaintiff’s working week, pain in her left knee and leg wakes her and disturbs her sleep. She said she struggles to get comfortable and enjoy a good night's rest. On those occasions she uses Panadeine Forte to take away the pain and enable her to sleep.
23 There are a number of reports in evidence from psychologists and psychiatrists. The one to which most attention was given was that of Ms Gale Campbell of 27 April 2010 with whom the plaintiff has had, at that date, ten consultations. I will quote from one part of Ms Campbell's most recent report:
"However the type of work and workload she has been able to secure has been detrimental to her health in recent months. Donna is aware of this, however she reports ‘feeling trapped because of day to day financial commitments’ and lack of suitable work opportunities- 'I need the money from this job to live.' She is currently working 40 hours, five days a week in retail where she is on her feet all day. She said, 'I have no choice. I have to pay the bills. It's killing me, physically. My leg is constantly sore and throbbing and I am so stressed.'"
24 Ms Campbell added, “ If Donna reduced her hours, workload and type of work then I think it’s probable that she will have a significant decrease in her symptoms”.
25 There were other affidavits filed on behalf of the plaintiff including by Mr Grimes and Ms Trump, the plaintiff's mother but no particular reliance was placed on them.
26 Mr Scott Whiting, a Queensland physiotherapist, who has seen the plaintiff six times, wrote that there had been an 86 per cent improvement in the plaintiff's condition over the period that she had consulted him.
27 Whilst the plaintiff said that Mr Whiting had told her that such a comment would assist in getting the defendant to pay his bills, I do not accept that the test results in Mr Whiting's report are inaccurate. He reached his conclusion of an 86 per cent improvement as a result of applying three particular tests.
28 The plaintiff said that her treatment by both Mr Whiting and by the chiropractor provided temporary, but not long-term, relief.
29 The plaintiff has also received extensive chiropractic treatment both in Victoria and Queensland, in the case of Queensland from a Dr Alex Powell who assessed her in October and December last year. Dr Powell recorded that the plaintiff reported a 30 per cent decline due to the increase in work and the requirement to stand, which aggravated the condition of her left knee, resulting in increased swelling. He noted that there were positive changes in some aspects of her condition.
30 The chiropractic treatment suggested on December 24 2009 was, "introduce use of orthotics to decrease stress on knee, ongoing treatment of full spine and knee, along with stretching and lifestyle advice".
31 So far as the evidence of treating doctors was concerned, there was evidence from general practitioners in Leongatha, including Dr Chisholm who on 19 February 2007, who reported:
"Her leg situation and knee pain are still resolving following her surgery last October. She is due for review with Mr Owen in March. I expect she will have ongoing issues of pain with exertion and possible future osteoarthritis of the knee related to this injury."
32 There was a further report from Dr Chisholm of 29 March 2007 following a consultation on or about that date, which stated that the plaintiff still had some pain, swelling and tenderness of the left lower leg, left knee swelling, recurrent headaches and post traumatic stress disorder with depression.
33 The plaintiff saw Mr Owen, an orthopaedic surgeon, on two occasions, the first on 26 August 2006 when he reported that:
"On her presentation she had a complaint of considerable pain around the tibial plate which had been used in conjunction with an intramedullary nail. I found the scar particularly tender to tapping and I felt that she had a neuroma in the wound, about two cm down from the top of this tibial plate wound."
34 Mr Owen also noted, however, that there was an excellent fracture union, which had led to the removal of the plate in October 2006, but that the screw had fractured and a remnant was left in situ.
35 Mr Owen saw the plaintiff again in February 2007 when he noted that she complained of further pain which he found difficult to pinpoint. He said that possibly it was dystrophic pain:
"All her wounds seem to be excessively sensitive to touch. There was diffused tenderness around the knee. Even during the formal examination process it was difficult to relieve her of discomfort. I felt that the knee was collaterally stable. Her anterior cruciate was intact."
36 Since moving to Queensland, the plaintiff has received some treatment from general practitioners, although she expressed dissatisfaction with her ability to develop an ongoing relationship with doctors in the area where she lives. Dr Margaret Buring prepared a report saying that she had seen the plaintiff on a few occasions and stated :
"My assessment at the time, was that she had a significant injury in 2005, and although she was working at the time I saw her, she was under significant strain and dealing with psychological issues relating to her injury. I referred her for psychological counselling to Ms Gale Campbell".
37 The plaintiff saw Dr Sprague, who is a Queensland orthopaedic surgeon, on two occasions. In his report of 31 March 2009 following the first consultation, under the heading “Opinion and Progress”, Dr Sprague stated that the plaintiff:
“has sustained a left tibial fracture as a result of her accident in 2006. The tibial fracture has been treated with internal fixation and has proceeded to union. Whilst there doesn't appear to be any significant sagittal or coronal plane deformity there is a degree of shortening of the leg measuring just over one centimetre in leg length discrepancy. There is also a 10 degree internal rotation deformity. I would recommend a small heel lift to correct this.
She appears to suffer from chronic pain which I suspect is multi factorial. Firstly, she has hypersensitivity of all her scars and note that there has been a previous attempt to treat her pain with removal of her metalwork. It is possible that her pain will subside in time but there is no specific treatment that is indicated. That aside, she does display signs of a symptomatic neuroma associated with her prepatellar scar and I would recommend a diagnostic cortisone injection to eliminate this as the cause of some of her knee pain.
There doesn’t appear to be any intra articular abnormality in the knee such as a meniscal tear which is causing her knee pain. She does show signs of chondromalacia patellae which may have been precipitated by her accident and subsequent surgery."
38 In his second report Dr Sprague in May 2009 stated,
“She continues to complain of chronic pain associated with her left knee, following previous injury. The pain she describes is diffuse, that there is discomfort over the anterior scar of her tibia. There is a further area of pain over the pre- patella scar and signs of a symptomatic neuroma of the superficial saphenous nerve. There is also pain around the lateral aspect of the knee joint with marked tenderness around the lateral femoral condyle. In addition to this her knee feels weak, although has not given way. There are signs of laxity in the anterior cruciate ligament and evidence of previous rupture on her MRI scan. That aside, ACL rupture in itself should not be a painful condition and should only be a cause of symptoms of instability."
39 Then the plaintiff was referred to a pain management specialist, Dr Leigh Dotchin, who prepared a report of 25 October 2009 stating:
"Unfortunately following the initial injury Donna has had ongoing pain consisting of a throbbing ache located in the lower leg, from the knee to the ankle. She rates the severity as 4-10/10 and states that it has been essentially constant since the accident. Aggravating factors include over use and standing for long periods in high heeled shoes. Relief is obtained to some degree through elevation of the leg, heat packs and analgesics - - -"
40 Dr Dotchin set out his examination findings and a suggested plan for the plaintiff.
41 Digressing from the medical reports for a moment, the defendant did approve all or most of the treatments recommended by Dr Dotchin by letters of 25 November and 9 December 2009, but due to some problem in communication, the responsibility for which I do not need to attribute, the plaintiff said that she was not informed of that approval until the letters were produced on the first day of this hearing.
42 Medico-legal evidence was presented to the court on behalf of the parties. In the case of the plaintiff from Mr Stanley O'Loughlin, orthopaedic surgeon, whom the plaintiff consulted initially on 5 June 2007.
43 In his first report under the heading, "Current clinical status," Mr O'Loughlin stated that the plaintiff's main problem:
“is pain in her left leg. This is situated largely over the fracture site on the upper left tibia and there is also associated discomfort in the left knee with clicking. The pain in her left leg at the fracture site is present at rest and is not aggravated by activity and often wakes her at night. Her left ankle is in reasonable condition now although it is slightly stiff compared to the right."
44 Mr O’Loughlin also made reference to other disabilities from which the plaintiff suffers. He noted that the plaintiff walked without any obvious limp.
45 Mr O’Loughlin’s diagnosis and opinion were:
"Despite the fact that Ms Rorie's left tibia and fibula have healed in a satisfactory position without any obvious shortening and without any obvious deformity, there is some associated restriction of movement over her ankle and knee and she also has persistent pain at the site of the fracture and dysesthesia over the outer part of her left calf. This is her main area of concern."
46 After mentioning the possibility of a disc injury, Mr O’Loughlin continued:
"It is likely that the pain in her tibia will settle over a period of time but she may be left with slight permanent restricted movement in her ankle and knee and permanent dysesthesia over the outer part of the left calf … This has all interfered considerably with her lifestyle. Fortunately she is able to work. I think it is important that she continues with exercises, particularly walking, and hopefully there will be some improvement in her condition."
47 Mr O'Loughlin provided a further assessment of the plaintiff following a consultation on 26 August 2008. On that occasion under the heading, "Diagnosis and Opinion," Mr O'Loughlin stated, that the plaintiff:
“still has ongoing pain in her left knee and left tibia. I believe the tibial pain is bone pain and is due to the excessive bone that forms after a fracture. Sometimes this leads to pain until remodeling is complete, which can sometimes take three or four years. There is certainly no evidence of any non- union or any evidence of infection. She also has left anterior knee pain which in my opinion is of patellar origin and is probably due to local trauma due to the insertion and removal of the intramedullary nail. It is hoped that this will settle with quadriceps exercises”.
48 In answer to a specific question, Mr O’Loughlin stated:
“Because the fracture did not involve the knee joint directly it is unlikely that she will develop osteoarthritis in her knee. She has had an MRI scan of the knee and there is no evidence of any meniscus injury or any other pathology in her knee so in my opinion this should recover in the course of time."
49 Mr O'Loughlin provided a third report in January 2010 in which he stated that there were some mild degenerate changes affecting the tibiofemoral compartments of the knee:
"As Ms Rorie did not suffer any specific damage to the joint surface but rather a fracture of the tibial shaft, I consider this chrondral thinning or mild degenerate change is most probably constitutional in nature and not related to the accident.
In answer to your question with respect to the left knee discomfort and future prognosis for the left knee, I consider the prognosis is relatively good in that I do not think that she is likely to develop degenerate changes that require knee arthroplasty, however, if she is persistently tender over the patella, it may be worth considering an arthroscopy to see if some fat pad removal would give her relief of the symptoms. Generally, the Hoffa's syndrome of scarring and swelling of the fat pad is fairly unpredictable and in many cases does not respond to surgical excision of the fat pad. I would therefore tend to advise conservative treatment with quadricep exercises only. There is no physical reason why there should not be some improvement with this and I therefore consider the future prognosis of the left knee to be relatively good."
50 The defendant's medico-legal evidence was from Mr Michael Dooley, orthopaedic surgeon, who provided two reports, the second of which was the most recent medico-legal assessment of the plaintiff, dated 12 April 2010. In that report, Mr Dooley stated that the plaintiff was generally well and walked without a limp. There was no effusion of the knee. There was patellofemoral tenderness. The plaintiff’s knee moved from full extension through to 130 degrees of flexion and was stable. There was some wasting of the thigh musculature. Mr Dooley referred to the results of the radiology, noting that there was some myxoid degeneration of the anterior cruciate ligament and there was a small parameniscal cyst relating to the horn of the medial meniscus. There was no evidence of meniscal tear. There was mild chondral thinning in both the lateral and medial tibiofemoral compartments.
51 Mr Dooley stated that following the sort of injuries suffered by the plaintiff one would expect the patient to note ongoing intermittent aching pain in the region of the fracture and distally in the shin area. These would be noted on prolonged standing and activity. He recommended ongoing treatment and a low impact exercise and fitness program. He stated that the plaintiff would continue to note intermittent left knee and that he would not expect her pain to deteriorate in time.
52 That is the evidence that was presented to the court.
53 The court is then required to apply the definition of serious injury in s.93(17) of the Transport Accident Act namely serious long -term impairment or loss of a body function. In a well known passage in Humphries v. Poljak [3] Crockett and Southwell JJ stated that:
"The [judge] is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which is the result of the infliction of the injury complained of is both serious and long- term. We think ‘long- term” is not an expression likely to give rise to difficulty. 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 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 as at least “very considerable” and certainly more than “significant” or “marked”."
[3] [1992] 2 V.R.129 at 140.
54 I was referred by the parties to Richards v. Wylie[4] where Winneke P stated that:
"Thus the “serious injury” defined by paragraph (a) of sub-s.(17) can, I think, have its seriousness measured in part by mental response to a 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."
[4] [2001] 1 V.R. 79 at 87-88.
55 I was also referred to the recent Court of Appeal decision in Haden Engineering Pty Ltd v. McKinnon[5] where there was a consideration of the worker's experience of pain and the disabling effect of pain in an application under s.134AB of the Accident Compensation Act 1985. The observations in that case are relevant to the issue that I must decide, although under different legislation.
[5] [2010] VSCA 69.56 As I have stated, the body functions relied on in this case are the left lower extremity, particularly the patella and the fibula. There were some other injuries particularised in the particulars filed, but they were not relied on.
57 The case put by the plaintiff was that she has suffered from long term constant pain and not intermittent pain. Although she did not go regularly to doctors, she has pursued treatment through chiropractors and physiotherapists. It was put that it was not necessary for the plaintiff to point to a particular diagnosis of her condition.
58 The plaintiff submitted that the seriousness of the injury was demonstrated by the following consequences. First, the struggle that the plaintiff had to carry out her work and the effect it had had on her life, making her feel tired at the end of the day and on her days off. It was put that she had no real life outside work. Secondly, that her sleep was affected. Thirdly, the effects of stress that the plaintiff suffered. Fourthly, the effect on her lifestyle such as ceasing to walk for exercise.
59 The defendant's case was that the impairment was not in the necessary range required to satisfy the definition of serious injury in the Act. It did not satisfy the very considerable test as measured against the range of cases referred to in Humphries v. Poljak. Senior counsel for the defendant pointed to the work performed and increasing responsibilities of the position that the plaintiff had taken up in the middle of 2009. He emphasised the importance of looking at the positive side of a plaintiff's life after an injury had occurred and at what the plaintiff was capable of achieving.
60 Secondly, senior counsel for the defendant submitted that the plaintiff was leading a normal life, as evidenced by her work. Thirdly, that there was no suggestion of another operation required and no sign of osteoarthritis. Fourthly, that the plaintiff could not add psychological injury to physical, although the emotional response, in the sense referred to in Richards v. Wylie, could be taken into account.
61 Fifthly, senior counsel for the defendant submitted that the medical opinions, including that of Dr Sprague suggested that the medical treatment had worked and that the knee joint appeared normal with no signs of any intra-articular abnormality. There was no suggestion of osteoarthritis. He also referred to the conclusions of Mr Dooley about there being no meniscal tear. Sixthly, there were some credit issues. The plaintiff had not volunteered her involvement in the website promoting her clairvoyance and hypnotherapy activities. Seventh, the plaintiff could drive a car and carry out her housework and there was no limping.
62 The findings I make in this matter are as follows.
63 The plaintiff suffered a major trauma to her left leg as a result of the motor vehicle on 9 October 2005. I accept the plaintiff's evidence as to the pain she suffers and the consequences to her of it. As was said in McKinnon's Case by Buchanan J A :
"Pain is not objectively measurable. Experience of and reaction to pain varies
from one person to another."[6][6] (supra) at [48].
64 Next, I do not consider that the failure of the plaintiff to disclose the activities that she is engaged in or hopes to engage in, such as hypnotherapy and clairvoyance as advertised on her website, significantly affect her credit, bearing in mind the current small scale of those activities.
65 I take into account that the plaintiff's left leg has in many respects recovered from the accident as both Dr Sprague and Mr Dooley state. Dr Sprague states that the overall alignment of the tibia appears satisfactory and there is no abnormality in the knee. Mr Dooley stated that the plaintiff’s orthopaedic injuries had stabilised.
66 However, the plaintiff’s left leg has been shortened by about 1.25 centimetres.
67 I find that the plaintiff suffers, and is likely in the long term to continue to suffer, from chronic pain, which increases in severity when she engages in activities which require her to stand for lengthy periods of time. I accept her description of that pain in her affidavit of 27 April 2010, in particular in paragraph 4 thereof.
68 There is no treatment suggested which will have a lasting effect on the plaintiff’s pain.
69 It is not possible on the evidence to be specific about the cause of the pain, save that it is attributable to the injuries that she suffered as a result of the motor vehicle accident. Various medical opinions have been given: it may be caused by a symptomatic neuroma as Dr Sprague suggested, or bone pain due to the excessive bone that forms after a fracture that leads to pain until remodelling is complete, which was Mr O’Loughlin’s view. Dr Dotchin suggested that the plaintiff’s “left knee and leg pain are secondary to significant traumatic injury which included tibia and fibula fracture. It is likely that the ongoing discomfort represents one of the spectrum of sensitisation/ hyperalgesic disorders that can occur following trauma. This does not appear to have progressed onto the development of a CRPS phenomenon quite yet. There may be multiple pain generators contributing to maintain this state. These could include superficial and deep neuroma”.
70 Mr Dooley, on the other hand, stated that following the sort of injury that the plaintiff had suffered, one would expect her to note ongoing intermittent aching pain in the region of the fracture and distally in the shin area.
71 I find that the plaintiff's pain is frequently in excess of that diagnosis and that it is not accurate, in the case of the plaintiff on the evidence before me to describe it as intermittent pain. She suffers regular pain which becomes considerable as the week progresses and has a disabling affect on the plaintiff.
72 In Haden Engineering Pty Ltd v. McKinnon, Maxwell P. stated:
"In its accepted interpretation, the ‘’pain and suffering consequence’ of an injury encompasses both the plaintiff's experience of pain such as the disabling effect of the pain on the plaintiff's physical capabilities (including her capacity for work) and enjoyment of life."[7]
[7] (supra) at [9].
73 I consider that those observations have some application to the issue that I have to decide under the Transport Accident Act.
74 I find that the plaintiff suffers pain, which is frequently of very considerable level and duration. I also find that the plaintiff has suffered very considerable consequences as a result of her injury, including:
(a) Restrictions on her ability to work in positions which require her to stand for lengthy periods of time. Those restrictions are the extent to which the duties and constant standing impact on the plaintiff, both during and outside working hours, and the manner in which her pain increases during the working week. The fact that the economic realities of the plaintiff's life have necessitated that she undertake such employment does not, in my opinion, detract from the conclusion I have reached. The plaintiff's employment has been mainly in retail positions, which often involves lengthy periods of standing.
(b) The effects on the plaintiff's enjoyment of life. She is often tired out and stressed at the end of a day and suffers significant pain as the week progresses. Her days off are, at least in part, spent recuperating. Her engagement in the activities of neuro- linguistic programming, hypnotherapy and clairvoyance do not detract from this conclusion. It may be that these activities reflect in part the plaintiff's attempt to adopt a positive aspect in respect of the challenges she has faced by the events that she has experienced.
(c) The plaintiff can no longer exercise as she formerly did.
(d) Her sleep is often interrupted.
(e) She continues to undergo chiropractic treatment and has undergone
physiotherapy.(f) She takes medication both of the Panadeine variety and alternative
medication.(g) She has suffered the development of what was described in Richards v.
Wylie as a mental response to her impairment.75 I take into account the plaintiff's experience of pain and the disabling effect of the pain on her physical capabilities, including her capacity for work and enjoyment of life. I find that the plaintiff has established, on the balance of probabilities, that the consequences of the pain that she suffers mean that her impairment, when judged by comparison with other cases in the range of possible impairments or injuries, can be fairly described at least as very considerable and certainly more than significant or marked.
76 I therefore find that the plaintiff has established that she has suffered a serious injury within the meaning of that term in s.93(17) of the Transport Accident Act 1986.
77 I therefore grant leave to the plaintiff to bring proceedings for the recovery of damages in respect of the injuries suffered by her in the accident occurring on 9 October 2005.
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