Ross v TAC
[2011] VCC 1515
•16 December 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-02126
| NINA ROSS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2 and 5 December 2011 |
| DATE OF JUDGMENT: | 16 December 2011 |
| CASE MAY BE CITED AS: | Ross v TAC |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1515 |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Transport Accident – impairment to cervical spine – whiplash type
injury/fibromyalgia – whether or not the consequences are “serious”
LEGISLATION CITED – Transport Accident Act 1986, Section 93
CASES CITED – Richards v Wylie (2000) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129
JUDGMENT – Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett | Arnold Thomas & Becker |
| For the Defendant | Mr C J Blanden SC with | Solicitors for the Transport |
| Mr P J Gates | Accident Commission | |
| HIS HONOUR: |
1 This is an application brought by Originating Motion dated 18 May 2010. The plaintiff applies for leave pursuant to s.93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages from injuries suffered by her arising out of a transport accident which occurred on 27 January 2005 (“the said date”).
2 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied
that the injury is a serious injury.”
3 The definition of “serious injury” relied upon by the plaintiff is under s.93(17):
“(a) serious long-term impairment or loss of a body function”
4 The body function relied upon by the plaintiff in this application is the impairment to the cervical spine, with a diagnosis of fibromyalgia.
5 The inquiry under sub-section (a) of s.93(17) of the Act focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function and then, by reference to the consequences of that impairment, to determine whether it is serious and long-term.
6 The serious injury defined by sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of the body function,[1]
[1] Richards v Wylie (2000) 1 VR 79
7 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is: Can the injury, when judged by a comparison with other cases in a range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”?[2]
[2] Humphries & Anor v Poljak [1992] 2 VR 129 paragraph [140] to [141]
8 The plaintiff swore and relied upon two affidavits, dated 6 January 2011 and 14 November 2011. The plaintiff also relied upon an affidavit sworn by her mother, Nicole Ross, dated 6 January 2011. The plaintiff’s husband, Asmund Heimark, swore an affidavit, dated 2 December 2011. The plaintiff gave evidence and was cross-examined.
9 In addition to the sworn affidavits and sworn evidence, both parties relied on medical reports and other materials which were tendered during the course of the proceeding. I have read all of the tendered material. The defendant did not require any of the medical practitioners for cross-examination and hence the only evidence given in the proceeding was by the plaintiff.
10 The issues in this application were outlined by Mr Blanden SC, for the defendant, at the commencement of the hearing. The issues were stated as follows:
(a) What is the actual injury that the plaintiff suffered as a result of the transport accident? (b) How and why the injury causes the purported symptoms to the plaintiff? (c) Whether the plaintiff is properly described as in “the range” of cases considered as a whole to be a serious injury under the Act? 11 Mr Blanden stated that the injury or cause of symptoms to the plaintiff is not based on a physical injury.[3]
[3] T 15 and T 16
The Plaintiff’s Background
12 The plaintiff was born on 12 August 1982. She is now twenty-nine years old.[4] In 2007, the plaintiff married Asmund Heimark.[5] The plaintiff does not have any children.
[4] PCB 5
[5] PCB 10, paragraph 23
13 The plaintiff has a long-term interest in photography. She completed her Year 12 at Methodist Ladies College in Kew, Victoria. The reason for the plaintiff going to Methodist Ladies College was that it had an extensive photography department.[6]
[6] PCB 18, paragraph 9
14 Between 2001 and 2003, the plaintiff obtained a Diploma of Photography from the Photography Studies College.[7] In 2004, the plaintiff attended RMIT and converted her diploma into a Bachelor of Arts in Media Arts.[8] In 2006 (after the accident), the plaintiff completed an Honours year in Fine Arts Photography (at RMIT).[9] The plaintiff is currently completing a Master of Fine Arts at Monash University. She commenced the Masters of Fine Arts on a full-time basis in 2010. For the year of 2011, she has been continuing with that study on a part-time basis.[10] The plaintiff teaches on a part-time basis at the Photography Studies College.
[7] T 21, L4
[8] PCB 5, paragraph 3
[9] PCB 9, paragraph 20
[10] PCB 11, paragraph 27
15 The plaintiff currently resides in her mother’s home with her mother and husband in Brighton. Between 2007 and 2009, the plaintiff moved to and lived in Norway with her husband.
16 In 2004, the plaintiff worked on a part-time basis as a photographer’s assistant for Vang-Rudolph Productions. The plaintiff had also worked as a photographer’s assistant for Coventry Street Studio in South Melbourne.[11]
[11] PCB 6
17 In June of 2005, the plaintiff commenced work at Huge Studios as a full-time photographer’s assistant.[12] She only remained in that employment for approximately one month. Her evidence was that she was unable to keep up with the physical work aspects of the photographer’s assistant employment due to her injuries.
[12] PCB 8, paragraph 14 and T 27
The Transport Accident Involving the Plaintiff
18 The plaintiff describes the accident in her affidavit sworn 6 January 2011 as follows:
“On 27 January 2005, I was driving a car along Fitzroy Street, St Kilda. I intended to turn in to Acland Street, St Kilda, where I was going to meet a friend for a coffee. I stopped at the intersection and after a period of time my vehicle was struck in the rear by a utility driven by Daniel Beard. I did not at the time feel the actual injury.”[13]
[13] PCB 7, paragraph 9
19 Mr Beard, the other driver of the car involved in the transport accident, swore an affidavit dated 25 October 2011. Mr Beard described the impact as a “very
minor impact between the passenger side of my vehicle and the right side of
the rear of the other vehicle”. Mr Beard estimated the speed of his vehicle at the time of impact was less than 25 kilometres per hour. He stated that after the accident neither he nor Ms Ross complained of any pain, the impact was very minor in nature and his expectation was that no injury had been caused.[14]
[14] DCB 4
20 I accept, on the statements made by the plaintiff and the affidavit sworn by Mr Beard, that the impact in this transport accident between Ms Ross’s vehicle and the other vehicle was not a high velocity impact. The level of impact between the two vehicles is not determinative of the extent and nature of injury to the plaintiff as a result of the transport accident.
The Plaintiff’s Medical Treatment
21 The plaintiff, immediately after the accident, exchanged names and details with the other driver, Mr Beard. She then proceeded to Acland Street, St Kilda to meet her friend for coffee, as originally organised. She stated, in her evidence, that she spent a few hours with the friend to calm down and then drove home.[15]
[15] T 9, L19- 21
22 On 28 January 2005, the plaintiff attended her general practitioner, Dr Jansz. She told Dr Jansz that at 8.00 pm the evening before, she experienced the onset of a headache and then neck and back pain. Dr Jansz found on examination that the plaintiff had neck and upper neck muscle stiffness posteriorly. He found that she was also tender in moving her shoulders. However, Dr Jansz also noted that the neck and shoulder movements exhibited a normal range of movement. His diagnosis of the plaintiff at that time was a whiplash injury (soft-tissue injury to the neck). The treatment plan suggested was for heat and massage treatment to the affected areas. He also recommended that the plaintiff take Nurofen as an anti-inflammatory medication.[16]
[16] PCB 24
23 The plaintiff did not return to her general practitioner until 1 August 2005. The plaintiff stated that in July 2005, she had consulted a chiropractor, Dr Richardson. There was no report in the tendered documentation from Dr Richardson as to the course and nature of his treatment for the plaintiff.
24 When the plaintiff attended at the clinic of Dr Jansz, she was seen by Dr Owen Lu. Dr Lu found that the plaintiff had no bony tenderness in the cervical spine. However, he did find that she was tender in the paravertebral muscles, particularly on the left side. Dr Lu’s diagnosis in August 2005 was of a muscular/ligamentous strain to the neck area. He recommended continuation of the chiropractic treatment and also neck and back exercises.
25 The plaintiff next attended on Dr Jansz on 21 October 2005. The plaintiff’s complaint at that time was that she was having ongoing neck pain and thought her neck was “out of alignment”. She also reported having a bad concussion at the time of the accident. The doctor notes that this is the first time concussion was mentioned to him. The plaintiff gave a history of being unable to work due to the pains in her neck and hip. Dr Jansz at that time diagnosed the plaintiff with fibromyalgia.[17]
[17] PCB 25
26 Dr Jansz next consulted with the plaintiff on 31 October 2005. On this occasion, the plaintiff was accompanied by her mother. The plaintiff complained of the following symptoms at that time:
ƒ aches and pains and vomiting; ƒ her hips were throbbing; ƒ she was experiencing coloured dots in her eyes; ƒ she had taken a day off work due to symptoms; ƒ pounding headaches and stiffness in her neck muscles; ƒ crying during the consultation; ƒ experiencing confusion from the time of the accident until August 2005; ƒ unable to sit in a movie due to the discomfort from sitting. 27 The doctor’s diagnosis was still fibromyalgia.[18] Dr Jansz then referred the plaintiff to Dr Daniel Lewis, a rheumatologist.
[18] PCB 25
28 On the referral of Dr P Richardson, chiropractor, the plaintiff had a full spine x-ray performed on 19 July 2005. The report of the x-ray states that the cervical, thoracic and vertebral alignment and morphology were within normal limits; in short, a normal finding.[19]
[19] DCB 29
29 Dr Daniel Lewis, rheumatologist, treated the plaintiff between March of 2006 until August of 2009. The plaintiff gave a different history to Dr Lewis of the immediate effects of the accident on her than she had previously given to her general practitioner, Dr Jansz. She told Dr Lewis:
“Immediately after the impact she did not feel that there was any injury but over the next few hours, she began to experience head pain, neck pain and nausea. She was feeling quite shocked with pain radiating into her shoulders. She also had soreness of the hips and back. She did not work for the next four weeks and during that time the headache and vomiting persisted and she had back and hip pain.”[20]
[20] PCB 33
30 The plaintiff told Dr Lewis that she was taking Mersyndol Forte and Panadeine Forte on a daily basis. Dr Lewis diagnosed the plaintiff’s symptoms as being consistent with the diagnosis of trauma-induced fibromyalgia syndrome. He noted that there were no other symptoms or signs suggestive of a mechanical or inflammatory cause for her dysfunction.[21]
[21] PCB 34
31 Dr Lewis recommended that the plaintiff attend a pain rehabilitation program at Cedar Court Rehabilitation Hospital. The plaintiff attended at the Cedar Court Rehabilitation Centre between May and August of 2006. She stated that she attended at the Centre twice a week.[22] On 22 September 2006, when she was examined by Dr Lewis, the plaintiff reported that she was doing very well and had improved.[23]
[22] PCB 9
[23] PCB 34
32 On completion of the Cedar Court rehabilitation program, the plaintiff completed the discharge evaluation form. She stated that her pain perception had decreased from VAS 10 out of 10 to VAS 1 out 10, after the program.[24] The plaintiff, in the same document, also noted that she had ceased the intake of analgesia for pain relief. Whilst she had commenced the program using Panadeine Forte or Mersyndol Forte on a daily basis, at the time of her discharge she was only using an occasional Nurofen for pain relief.[25] It was clear from these entries that the plaintiff had in fact improved as a result of the treatment at Cedar Court. She reported as much to her treater, Dr Lewis.
[24] DCB 41
[25] DCB 42
33 The plaintiff then had an accident at home where she fell down some stairs, landing on her coccyx. This occurred in October 2006. The evidence before the Court does not set out the treatment that was received as a result of this injury or whether this injury aggravated the injury to the plaintiff’s neck.
34 In 2007, the plaintiff was married and then moved to Norway with her husband.
35 The plaintiff gave evidence that she saw several medical practitioners, including a general practitioner and orthopaedic physician, Dr Roy Bogetveit, in Norway. She stated she was treated by and supplied with a jaw splint which really helped her. She also was referred to an eye doctor who gave her new spectacles and that also reduced her pain.[26] There were no medical reports or documentation from any of the medical practitioners the plaintiff consulted in Norway in the years 2007 to 2009. The evidence does not disclose a connection between the use of a jaw splint and the prescription of glasses to the injuries alleged to have arisen as a result of the accident. There is an absence of any independent evidence of any treatment the plaintiff received during the period of her absence from Australia from 2007 to 2009.
[26] PCB 10, paragraph 24
36 The plaintiff came back to Australia in July 2009. She visited her general practitioner, Dr Jansz, on 10 August 2009. The symptoms the plaintiff complained of at this examination were constantly suffering from shoulder and neck pains. Dr Jansz referred the plaintiff back to Dr Danny Lewis. He also noted that the plaintiff was suffering from the symptoms of depression and anxiety secondary to the injury she suffered in the accident, and he referred her to the psychologist, Vivian Pereira.
37 Dr Jansz’s report is dated 12 February 2010. The report is twenty months’ old at the time of the hearing. The plaintiff gave evidence that she has not been back to see Dr Jansz since March of 2011.[27]
[27] T 18, L1-4
38 The plaintiff gave evidence that she had then attended on Dr Rotstein at the Medi7 Clinic in St Kilda Road, Melbourne on approximately seven occasions since March 2011. She stated that her last visit to Dr Rotstein was in November 2011.[28] Dr Rotstein, on the plaintiff’s evidence, is the current treating general practitioner. There was no report from Dr Rotstein tendered on behalf of the plaintiff to assist the Court in making a proper current assessment of her ongoing treatment regime.
[28] T 18, L8-18
39 The plaintiff was sent for a CT scan of the cervical spine by her general practitioner, Dr Jansz. This CT scan of the cervical spine was performed on 30 November 2009. The conclusion of the CT scan was:
“Unremarkable CT scan of the cervical spine.”[29]
[29] DCB 30
40 In a report of Dr Alex Stockman, rheumatologist, dated 28 September 2010, he took a history from the plaintiff that she had had an MRI scan to the affected areas of her body and that these were normal.[30]
[30] PCB 43
41 I find that the radiology examinations of the plaintiff, including the x-ray, CT scan and the MRI scan referred to by the medical practitioners, indicate that there is no injury or abnormality demonstrated in the plaintiff’s cervical spine.
42 The plaintiff has undergone a number of rehabilitation and pain management related courses or treatments. In 2006, she attended at Cedar Court Rehabilitation Hospital.[31] The plaintiff gave a history to Mr Kevin King that she had attended at the Epworth Rehabilitation Centre.[32] The plaintiff gave evidence that she had attended a rehabilitation program at the Epworth Hospital in Wilson Street, Brighton.[33] It is unclear from the evidence when this Epworth Rehabilitation treatment took place.
[31] DCB 41- 46
[32] PCB 28
[33] PCB 12, paragraph 30
43 The plaintiff gave evidence that in January of 2011, she was attending at a pain clinic in Station Street, Oakleigh and being seen by a Dr Freund and Mr Keith Wing Shing, on an average of two to three times a week.[34]
[34] PCB 12, paragraph 32
44 The plaintiff gave a history to Dr Timothy Entwisle, psychiatrist, that in March and April of 2011, she was attending at the Hopetoun Epworth for further pain management and rehabilitation.[35]
[35] DCB 17
45 The plaintiff has given evidence of attending at the Epworth Rehabilitation Centre in Brighton, the pain clinic in Oakleigh, and the Hopetoun Epworth Pain Centre since her return from Norway. There were no reports or documentation from any of those pain management treatment centres to outline the nature of the treatment and the current symptomology that the plaintiff is suffering tendered in evidence.
46 In circumstances where these pain rehabilitation centres are the main treatment regime for the plaintiff, I find it extraordinary that there are no medical reports or documentation from them to support what the plaintiff states in her evidence. The reporting and, more particularly, the opinions of those medical practitioners, would have been of great assistance to the Court in assessing the plaintiff’s current position.
47 The plaintiff gave evidence that she is taking medications of Endep and Panadeine Forte.[36] The plaintiff stated that she was originally prescribed Panadeine Forte by Dr Jansz and now gets prescriptions from Dr Rotstein. I repeat my previous comment that there is no medical report from Dr Rotstein. The defendant tendered records from the Durant Medical Clinic where Dr Jansz is practising. The medication list sets out that Panadeine Forte was prescribed to the plaintiff on 1 February 2006, 10 August 2009 and 16 November 2009. On the records that go up to 6 January 2011, there is no other entry for the prescription of Panadeine Forte.[37] On the basis of that documentation, it is hard to see how the plaintiff could be continually taking Panadeine Forte in the years 2010 up until the time she commences seeing Dr Rotstein. The plaintiff has not been prescribed that medication by Dr Jansz.
[36] T 73
[37] DCB 38-40
The Expert Medical Opinion
(a) Dr Jansz 48 Dr Jansz was the plaintiff’s general practitioner from the time of the transport accident until March of 2011. Dr Jansz initially diagnosed a whiplash injury to the neck of the plaintiff. He subsequently changed that diagnosis to fibromyalgia in October of 2005. He originally referred the plaintiff to Dr Danny Lewis, rheumatologist. Dr Jansz reports that the plaintiff lost rapport with Dr Lewis and he then referred her to Dr Robin Hunter, described as a rehabilitation specialist. Dr Jansz has also referred the plaintiff to Dr Vivian Pereira, psychologist, to treat what he describes as “symptoms of depression and anxiety secondary to the injury she has suffered in the accident”.
49 In February of 2010, Dr Jansz was of the opinion that the plaintiff’s prognosis is very poor. He has diagnosed fibromyalgia and noted that she has incapacitating pain symptoms during periods of exacerbation of her fibromyalgia.[38]
(b) Mr Kevin King
[38] PCB 26
50 Mr Kevin King, orthopaedic surgeon, medico-legally examined the plaintiff and provided a report dated 21 January 2011.
51 It is to be noted that Mr King was given a different history about the nature of the actual collision in which the plaintiff was injured. The plaintiff referred to a jolting and jerking affect on her head, neck, shoulders and cervical, thoracic and lumbar spine.[39] She stated that she immediately had neck pain and headaches. This is a different history to the one she gave her general practitioner the day after the accident.
[39] PCB 28
52 On examination in respect of the plaintiff’s cervical spine, Mr King noted:
“Mild but definite limitation of all neck movements by some spasm and pain – approximately two thirds of the normal range of all movements were present”.[40]
[40] PCB 30
53 He noted that the x-rays of the plaintiff had showed no abnormality, but that he had not seen them.
54 In the opinion section of his report, Mr King relies heavily on the history of the plaintiff of the generalised jerking and jolting strain on the whole of her spine to form his conclusions. He notes:
“Initially her symptoms were quite severe for the first few months. There has obviously been quite significant improvement over the last six years, but her condition has now stabilised and there was a flare up of neck and back symptoms last year associated with some depression and anxiety.”[41]
[41] PCB 31
55 This finding is the reverse of the history the plaintiff gave to other medical practitioners. In other histories, she has stated that initially her symptoms were mild and they built up and became far more severe by about October of 2005. In summary, Mr King’s opinion is that:
“In this respect she has been left with a long-term mild to moderate
impairment of overall function.”[42]
[42] PCB 31
56 Mr King did not have a full history of the nature of the work, study and travel activities of the plaintiff when he was examining her and forming the opinions referred to above. Due to these limitations, I find that I am not greatly assisted by his opinions in respect of the plaintiff’s ongoing incapacities and symptoms. (c) Dr Daniel Lewis
57 Dr Daniel Lewis, rheumatologist, prepared a report dated 12 February 2010 in respect of the plaintiff’s claim in this proceeding. Dr Lewis was the rheumatologist and treating doctor for the period from 2006 to August of 2009. Dr Lewis’s original involvement in the plaintiff’s treatment was to supervise the Cedar Court Rehabilitation attendance by the plaintiff. I have previously dealt with the assessment of the pain management treatment that the plaintiff had undergone at Cedar Court. Dr Lewis noted on his first examination as follows:
“I observed Nina to sit comfortably and she moved well. All musculoskeletal contours around the neck and shoulders were normal. There was no evidence of any injury.
She demonstrated unrestricted movement of the cervical spine on all planes but reported pain at the end of range. She had unrestricted movement of her thoracic and lumbar spines.
…
On palpation there was no widespread tender points as seen in fibromyalgia.”[43]
[43] PCB 34
58 Dr Lewis diagnosed the plaintiff’s symptoms as being consistent with the diagnosis of trauma-induced fibromyalgia syndrome. He noted that there were no other symptoms or signs suggestive of a mechanical or inflammatory cause for her dysfunction.[44]
[44] PCB 34
59 In his examination performed in August 2009, Dr Lewis noted as follows:
“On examination at that time, I observed Ms Ross to sit comfortably. She had a normal posture. She had a full range of movement of the cervical spine in all planes and a full range of movement of the thoracic spine. There was mild myofascial tenderness in the thoracic spine.”
60 Dr Lewis took a history that the plaintiff had at that time required therapy and Panadeine Forte continuously. He was of the view that emotionally she was very low and needed support and he referred her to psychiatrist, Dr Natalie Krapivensky.[45]
[45] DCB 35
61 Mr Lewis’s opinion is:
“Ms Ross has developed a Chronic Pain Syndrome with many features of fibromyalgia following on from an acute soft tissue injury which occurred in the motor vehicle accident described above.
…
There has been no identified pathological process that is likely to lead to any deterioration over time.”[46]
[46] DCB 36
(d) Dr Alex Stockman
62 Dr Alex Stockman, rheumatologist, was engaged to examine and report on a medico-legal basis for this proceeding. His report is dated 28 September 2010. Dr Stockman took a history from the plaintiff that she was taking Panadeine Forte, Oruvail and Endep. The plaintiff also stated she sometimes took Panadol and Nurofen to assist when the pain was more severe.[47]
[47] PCB 42, 43
63 Dr Stockman examined the plaintiff and made the following findings:
“Her posture was normal. She had full range of movement of the shoulders, cervical, thoracic and lumbar spine. Movement of the neck caused her slight discomfort. There was tenderness over the paraspinous muscles on the left side of the neck, left trapezius muscle and scapular and pectoralis muscle anteriorly.”
64 Dr Stockman took a history from the plaintiff that the x-rays and MRI scan reports were normal for her.
65 Dr Stockman diagnosed the plaintiff’s pain as “likely to be Regional Pain Syndrome”. Dr Stockman was of the opinion that the plaintiff would need to continue with analgesia, exercises and with the Pilates program on a regular basis. He was of the view that her condition had stabilised. Dr Stockman thought the plaintiff was capable of part-time work of four to five hours, gradually increasing to full-time work. He said that she was unable to do heavy lifting type work.[48]
(e) Dr Robert Lefkovits
[48] PCB 44
66 Dr Lefkovits, general physician, examined the plaintiff on behalf of the defendant and prepared a report dated 8 March 2006. Dr Lefkovits, on examination of the cervical spine, found:
“This revealed mild spasm in the right trapezius and tenderness on moderate pressure. She had a full range of pain free movement of the cervical spine. …The general examination was unremarkable.”[49]
[49] DCB 7
67 He noted that the x-ray performed on 29 July 2005 confirmed a slight scoliosis in the upper regions, but otherwise the x-rays were normal. Dr Lefkovits thought that, as at March 2006, the plaintiff would make a full recovery in the course of time, which he estimated to be in the next few months. At that time, he thought she continued to suffer from the consequences of soft-tissue injuries to the cervical spine and post-traumatic headache. Dr Lefkovits thought there was a psychological component to the ongoing disability and suggested that relaxation therapy from a clinical psychologist would be of some assistance.
68 Dr Lefkovits’s opinion is very old and of little assistance to the Court in determining whether or not the plaintiff is currently suffering from a “serious injury”.
(f) Dr Timothy Entwisle 69 The plaintiff was referred to Dr Timothy Entwisle, psychiatrist, for examination and report by the defendant’s solicitors. The report dated 11 January 2010 was tendered on behalf of the defendant. Dr Entwisle noted that the plaintiff was taking a regime of medication of Panadeine Forte, Oruvail and Endep in January 2010. Dr Entwisle formed the opinion that:
“Miss Ross does not describe psychiatric symptoms which interfere in any way with her ability to work. She experiences pain, which is obviously heavily psychologically modulated and says that this prevents her from engaging in photography.”
70 Dr Entwisle was of the view that the plaintiff did not require any further rehabilitation assistance as it would further entrench her illness conviction.[50] It is to be noted that the plaintiff does not bring a claim under part (c) of the definition for “serious injury” in the Act.
[50] DCB 13
71 Dr Entwisle, in his final examination report dated 1 August 2011, states that:
“Miss Ross does not present with a psychiatric condition in the context of her accident and experience of chronic pain since then. She is actively engaged in a variety of rehabilitative efforts and exercises, has now found work and is studying her Masters and is well supported by her husband and parents.”[51]
[51] DCB 18
72 Dr Entwisle went on to say that the plaintiff suffers from no psychiatric condition and her prognosis is excellent.
(g) Mr Michael Dooley
73 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff on behalf of the defendant’s solicitors on 7 September 2011. He reported on his findings in a report dated 10 October 2011. Mr Dooley notes that the plaintiff was complaining of ongoing neck and shoulder girdle pain. On examination, he found that the plaintiff was experiencing tenderness along the dorsum of the cervical spine.[52] Mr Dooley diagnosed a soft-tissue injury to the cervical spine.
[52] DCB 22
74 In his report, Mr Dooley notes as follows:
“My view is that one cannot explain the constancy and intensity of Ms Ross’s ongoing symptoms on the basis of the organic soft tissue alone. I believe that much of her ongoing symptomolgy relates to her psychological reaction to injury and/or pain and her pre-injury, what one might term, psychological traits.”[53]
[53] DCB 23
75 Mr Dooley does not dismiss the plaintiff’s symptoms as not being real. He states later in his report that he believes that the condition essentially is psychologically-based and not an organic physical illness.[54]
[54] DCB 24
76 Mr Dooley outlines his answer to a specific question as follows:
“As outlined above, from the orthopaedic organic soft tissue injury, I would expect Ms Ross to note some intermittent neck, shoulder girdle and interscapular pain. I would not expect this to be major and I would not expect her condition to deteriorate in time.”[55]
[55] DCB 24
77 Mr Dooley stated that he did not think the plaintiff was exaggerating her symptoms and was a sensible and genuine historian.
78 In summary, I find that Mr Dooley’s opinion is simply that the plaintiff will have some pains and stiffness in her neck and neck related areas of the body but they will be intermittent and not serious in nature.
Consequences of the Neck Injury for the Plaintiff
79 I now have to assess whether the pain and suffering consequences for the plaintiff, when considered as a whole and collectively, are “more than significant” or “marked” and at least “very considerable”. In making a decision about this aspect, a proper analysis of the effect of pain on the plaintiff has to be made.
(a) Pain
80 The plaintiff has given evidence that she tries to prevent pain by “pacing” herself when “I’m studying” and exercising. She stated she also does meditation which she described as muscle relaxant meditation. She stated that she took prescribed medicines.[56]
[56] T 17, L15-19
81 I have to assess what is the plaintiff’s experience of pain. I have to decide:
ƒ the intensity of pain (mild, moderate or severe); ƒ frequency of pain;
ƒ the duration of pain.
82 The principal evidence in relation to the pain indices is evidence from the plaintiff. The general opinion of all of the medical practitioners is that the plaintiff does not deliberately exaggerate or overstate her level of pain. The medical practitioners accept what the plaintiff says about her pain.
83 In assessing the consequences of the pain the plaintiff says she suffers, the Court has to look the whole of the evidence in the case.
84 In terms of the plaintiff’s daily activities, she has been able to maintain part- time study for a Masters degree at Monash University. At the same time, she has been able to teach on a part-time basis at the Photography Studies College. In effect, the working hours of teaching and studying combined amount to effectively full-time employment. The plaintiff did not give any evidence suggesting that she was unable to do the part-time work at the Photography College. It is clear from the plaintiff’s academic results and her answers in evidence that she had performed at an extremely high level academically and at the same time thoroughly enjoyed her studies. I am satisfied that the plaintiff has been able to “pace” her activities to the extent that she can live a full and active life, including part-time work and study.
85 The plaintiff gave evidence that at various times she had resorted to the use of medication to control her pain. In particular, she said she used Panadeine Forte on a daily basis. The reports and records of Dr Jansz as to the prescription of Panadeine Forte does not support the proposition that the Plaintiff uses Panadeine Forte on a daily basis. There was no report from Dr Rotstein, who is the current treating general practitioner, to indicate what medications he now prescribes for the plaintiff. I am not satisfied that the plaintiff regularly uses Panadeine Forte and I take that as an indication that the pain level for her is not of the severe nature that she has outlined in her evidence.
86 The plaintiff also gave evidence that she took Endep 10 medication, which she indicated was for pain relief. In the hearing of this application, there was conjecture about whether Endep was prescribed for the psychological/psychiatric symptoms suffered by the plaintiff or as a muscle relaxant. I am not satisfied, on the balance of probabilities, that Endep is prescribed for pain relief as stated by the plaintiff. There is no medical evidence to satisfy a finding as to the reason the plaintiff has been prescribed Endep. In evidence, the plaintiff stated as follows:
“Q:
You were asked about Endep and you were asked whether you know it’s an antidepressant. Do you know whether it is also prescribed for the relief of nerve pain?
A:
Yes, Dr Jansz, when he prescribed it to me, explained it has, that it would help depression and also, I think he described as like a muscle relaxant, to me.”[57]
[57] T 74, L30-31 and T 75, L1-4
87 The plaintiff gave evidence that she was treated with acupuncture. There were no reports from the person administering the acupuncture tendered in evidence in this case. I am unable to determine what, if any, impact the acupuncture treatment had on the plaintiff.
88 The plaintiff also gave evidence that she practised meditation in order to deal with her pain. I accept that the plaintiff may use meditation and the methods of “pacing” herself in order to generally manage her activities. I do not find that the use of meditation and/or the necessity to pace oneself establish a level of pain necessary to establish a “serious injury” finding.
(b) Medication
89 I have in part dealt with the issue of medication under the previous heading of pain. The plaintiff has given evidence that she currently takes Panadeine Forte, Endep 10 and Oruvail, which is an anti-inflammatory drug.[58]
[58] PCB 12, paragraph 32
90 In her evidence, the plaintiff stated that she was averaging two to three Panadeine Forte per week.[59]
[59] T 39, L31 and T 40, L1
91 The plaintiff was unable to say what the dose of each Panadeine Forte tablet was. There was no evidence led or tendered in this case which substantiated who prescribed the Panadeine Forte and in what dosages. In her history to Mr Entwisle, the plaintiff said that she took “Panadeine Forte prn”.[60] In her history to Mr Dooley, the plaintiff stated she tried to minimise the use of Panadeine Forte for pain.[61] I find that the use of medication is intermittent in respect of pain relieving medication. I am not satisfied on the whole of the evidence that the plaintiff resorts to taking Panadeine Forte medication on a daily basis.
[60] DCB 10
[61] DCB 22
92 In respect of the ongoing use of Endep 10, the plaintiff may be using this in respect of depression or as a muscle relaxant. The plaintiff, in her evidence, stated that she no longer takes Oruvail.[62]
[62] T 87, L5-9
[63] T 56, L5-8
[64] DCB 62 and 63
[65] T 50, L29-30
Travel 93
The plaintiff has been able to travel extensively since the time of the accident, despite the injury. In 2007, the plaintiff travelled to Norway and lived there with her husband for a period of nearly three years. Whilst there, she travelled around Europe, both by plane and train. Of course, she had to endure the long travelling times and distances between Norway and Australia. The Plaintiff’s travel involved a trip via Japan to meet her mother on her way home from Norway.
94
As part of her studies in photography, she returned to Norway in 2010. Again, the plaintiff has been able to travel the full distance from Australia to Norway and back without any apparent difficulty. The evidence was that the plaintiff, whilst in Norway, was undertaking study in photography as part of her Masters studies at Monash University. She was also actively photographing whilst in Norway.
95
In June of 2011, the plaintiff travelled to Italy, also as part of her Masters studies. The study tour to Italy was funded by a travel grant from Monash University.[63] The itinerary for the trip to Italy was set out in a two-page document.[64] The itinerary included travel from 12 June until 12 July 2011. An examination of the itinerary discloses extensive travel within Italy. The plaintiff would have been constantly on the move and gave evidence that that in fact was the case. Her travel was by way of train and coach.
96
I conclude that the consistent amount of travel undertaken by the plaintiff indicates that she can partake of a full and active travel and study life without interruption. I conclude that the symptoms she complains of are not of the level that would inhibit her ability to enjoy and partake of travel and study activities.
Work 97
The plaintiff has given evidence that the injuries and consequences of the injuries prohibit her from undertaking a career as a commercial photographer. The evidence is clear that, whilst she was a student, she was given an opportunity to work as an assistant to some high profile commercial photographers. This does not mean that the plaintiff worked as a commercial photographer. It also does not mean that the plaintiff would have been a highly successful commercial photographer in the same manner as the people for whom she worked. No doubt, this was a reasonable aspiration for her to have at that time.
98
I accept that in the years 2010 and 2011, during the course of her Masters, the plaintiff has been involved in a significant amount of photography taken by her.[65] The plaintiff is a young woman. She has plenty of time to develop a career as a photographer and would be able to do so with the assistance of other commercial photographer assistants to move the lights and/or props. I do not accept that she is precluded from engaging in or pursuing a career as a commercial photographer on the state of her current symptoms and pain. In conclusion, I do not accept that she has suffered a significant consequence as a result of the “disappointment” of a lost career path. The evidence does not support that proposition.
99
In respect of day-to-day work, the plaintiff has displayed a capacity to perform as a teacher at the Photography College. She is working there part-time and continues to do so. The reason she works part-time is that at the same time she is undertaking part-time studies in a Masters of Arts at Monash University. The combination of part-time study and part-time work is activity similar to full- time work.
100
In conclusion, I find that the plaintiff has a capacity to work in what would be described as light work. The doctors obviously have set limits on her lifting and movement regime. I do not find that that precludes her from working as a photographer, either in the capacity of a commercial photographer or a professional photographer.
Mobility
101 In the course of the hearing of this matter, the defendant showed video surveillance of the plaintiff. The video surveillance was of very short duration and not particularly good quality. Most notably, the surveillance in Exhibit 2, which was the plaintiff riding along the street and down to the shopping centre, shows a fairly unrestricted manner of physical activity. She was able to ride and control the pushbike easily. Her evidence was that she thought the ride was approximately five minutes each way from her home to the shopping centre. It was an activity that she would perform almost on a daily basis.
102 In the surveillance contained in Exhibit 1, the plaintiff walked and moved in what would appear to be a normal manner. This type of surveillance for the injury that she is complaining of is of limited value, in the sense that walking does not necessarily test her cervical movement. However, the plaintiff appeared to be able to turn her head and use a telephone in an easy manner as she walked along the street. It is to be noted that this surveillance was of the plaintiff on her way to work at the Photography College.
103 In conclusion, having observed the plaintiff in the witness box and also on the surveillance videos, I do not find that the plaintiff suffers from a lack of ability to be mobile and use her arms and/or body in the normal manner. The examination of the doctors referred to earlier in these reasons where the plaintiff exhibited a full range of movement are proof of that finding.
104 The plaintiff has been able to perform her photography work at the present time, albeit in different circumstances from a commercial photographer. In her evidence the following was stated:
“Q: In terms of what you’re now doing that is, it seems taking photographs for the purpose of academic qualifications and/or exhibitions, is that a fair summary of what you’re doing?---
A: Correct.
Q: How would you compare that in terms of satisfaction to with commercial photograph (sic)?---
A:
Well, I’ve really gone onto study to maintain by (sic) skills and it’s really – it’s two different worlds to be quite honest with you, what an art photographer does and what a commercial photographer does (sic) You know, like with my studies, say – I think I’ve gone part- time so I’ve got three and (sic) half years to do it and I can do that at my own pace, in my own way, with support from my husband, who helps me set up the shots and things like that. I don’t use flash or anything, I use natural light. Whereas it’s not day in day out, high turnover, high paced commercial work. Sorry, did that answer your question?”[66]
[66] T 79, L21 – T 80, L6
105 It is clear from this answer that the plaintiff is in a position to perform photography work and does so at the present time in a different setting to that of a commercial photographer. In short, she is able to do photography for the purposes of academic and exhibition type work. Whilst the plaintiff thinks she cannot do commercial work, it is clear that she can do photography work with the assistance of other people. This is no different from what any commercial photographer does.
[67] PCB 12, paragraph 33
Sleep 106
In the plaintiff’s first affidavit, she outlined that she had trouble sleeping at times due to pain.[67] In her later affidavit, dated 14 November 2011, the plaintiff does not depose to having any ongoing difficulty with her sleep. She does, however, speak of being in pain and on occasions suffering severe headaches. The affidavit of her husband, dated 2 December 2011, does not set out any difficulty the plaintiff was having with sleep. I conclude that, based on the evidence, the interruption to her sleep, which may have been an original symptom of the injuries for the plaintiff, is no longer a significant difficulty for her.
Activities of Daily Living
107 The preponderance of the evidence between the plaintiff, her mother, Nicole Ross, and the plaintiff’s husband, Asmund Heimark, is that the plaintiff does very little around the house. It is difficult to tell, on the basis of the evidence in this case, exactly what limits there are to the plaintiff’s ability to perform housework and other activities around the home. Quite clearly, the plaintiff has been very successful with her study, obtaining high distinctions. She has also been successful in her work as a teacher at the Photography College. I am not satisfied that the symptoms and injuries to the plaintiff limit her to any significant extent to performing housework and/or other related activities around the home.
Conclusion
108 In conclusion, I find that the pain and suffering consequences for the plaintiff, when considered as a whole and collectively, do not satisfy the test of being very considerable and more than significant or marked. The plaintiff’s ability to partake in full-time and part-time study, and at the same time be able to perform paid work in the capacity as a teacher of photography, indicates that the plaintiff has overcome the major part of any symptoms as a result of the transport accident. I find that, based on the evidence, the plaintiff has suffered pain of a mild to moderate level on an intermittent basis and consequently does not satisfy the “very considerable test” required under the Act.
109 Accordingly, I dismiss the application by the plaintiff.
110 I shall hear the parties on costs.
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