Rowland v Transport Accident Commission
[2021] VCC 935
•11 June 2021 (Melbourne)
| IN THE COUNTY COURT OF VICTORIA AT SHEPPARTON COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-00889
| SHARRON MAREE ROWLAND | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Shepparton | |
DATE OF HEARING: | 4 and 5 June 2019 (Shepparton) | |
DATE OF JUDGMENT: | 11 June 2021 (Melbourne) | |
CASE MAY BE CITED AS: | Rowland v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 935 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – paragraphs (a) and (c) of the definition of “serious injury” – whether paragraph (a) or (c) case – whether plaintiff has discharged her onus – possible credit issues
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Richards & Anor v Wylie (2001) 1 VR 79; Mobilio v Balliotis [1998] 3 VR 833; Hunter v Transport Accident Commission [2005] VSCA 1; Petkovski v Galletti [1994] 1 VR 436; Transport Accident Commission v Kamel [2011] VSCA 110; Transport Accident Commission v Katanas [2017] HCA 32
Judgment: Judgment for the plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff (at Shepparton) | Mr M J Walsh with Ms N Crowe | Dawes & Vary Riordan Pty Ltd |
| (at Melbourne) | Mr M J Walsh with | |
| For the Defendant (at Shepparton) | Mr P A Scanlon QC with Mr S D Martin | Solicitor for the Transport Accident Commission |
| (at Melbourne) | Mr R Middleton QC with Mr P Bourke |
HIS HONOUR:
1By way of Originating Motion, Sharron Maree Rowland (“the plaintiff”) seeks leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (as amended) (“the Act”) to bring common law proceedings to recover damages for injury (“the injury”) suffered by her arising out of a transport accident which occurred on or about 10 May 2013 on Wyndham Street, Shepparton (“the subject transport accident”).
2Unfortunately, due to a series of events, the application has followed a torturous path over the last couple of years. The matter initially commenced on 4 June 2019 at Shepparton, but ultimately had to be adjourned on 5 June 2019 at the behest of those acting for the plaintiff to obtain material from the then treating psychiatrist.
3That prompted further material being obtained, as I understand it, by both parties, and the matter ultimately came on for hearing again on 12 November 2019 at Melbourne, at which time it became known that the plaintiff had been referred to a rheumatologist by her general practitioner a couple of weeks prior to the hearing, causing the matter to be adjourned yet again until such material was available.
4The matter resumed again in Melbourne on 30 June 2020, going over to 1 July 2020, after which there were Orders against each of the parties to deliver written submissions within a certain timeframe.
5Throughout the course of these disjointed events, the plaintiff was the only witness to give evidence and be cross-examined. The parties prepared a Joint Court Book which was ultimately tendered and marked as Exhibit 1. Over the course of this proceeding, the plaintiff, through her representatives, has at different times relied on paragraph (a) and paragraph (c) of the definition of “serious injury” contained in s93(7) of the Act and on occasion each alone.
6I consider that it is appropriate to detail how the case was put, with details of the pertinent medical evidence and cross-examination.
Relevant legal principles
7It must always be borne in mind that the Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.[1]
[1]See s93(6) of the Act
8By way of her Originating Motion, the plaintiff sought to rely on paragraphs (a) and (c) of the definition of “serious injury” contained in s93(17) of the Act, which read:
“serious injury means—
(a) serious long-term impairment of loss of a body function; or
(b) …
(c) severe long-term, mental or severe long-term behavioural disturbance or disorder; or
(d) loss of a foetus.”
9I refer to a document headed “PARTICULARS OF INJURIES” dated 31 May 2018.[2] In that document, the plaintiff alleges she suffered serious injuries as defined in s93(17)(a) of the Act, being:
“Injury to the spine resulting in the development of fibromyalgia with ongoing symptoms including widespread pain especially in the spine, hips, arms and legs.”[3]
[2]Joint Court Book (“JCB”) at page 2
[3]JCB 2
10I also refer to a later document headed “AMENDED PARTICULARS OF INJURIES” dated 30 October 2018.[4] In that document, the plaintiff seeks to rely on paragraphs (a) and (c) of the definition of “serious injury”, by relying on the fibromyalgia allegation under paragraph (a), but also adding:
“severe long-term mental or severe long-term behavioural disturbance or disorder … .”
[4]Amended Joint Court Book (“AJCB”) at page 3
11When this matter first commenced on 4 June 2019, Leading Counsel for the plaintiff, when opening the matter, made plain that he only relied on paragraph (c) of the definition of “serious injury”. In particular, it was put by Leading Counsel for the plaintiff that the injury, “as revealed in the material”, is an:
“… aggravation of a post traumatic stress disorder, a depression, anxiety and psychiatrically produced fibromyalgia and/or chronic pain syndrome.”[5]
[5]Transcript (“T”) 1, Lines (“L”) 23-26
12Whatever the “injury” may be, the plaintiff, in order to succeed, must prove, on the balance of probabilities:
(a) that “the injury” suffered by her was a result of the transport accident;
(b) the requirements of the test set out in the seminal decision of Humphries and Anor v Poljak,[6] wherein a majority of the then Full Court of Victoria stated:
“Subsection (17) intends a division between injuries with physical consequences and those with mental consequences. The former fall under para (a) and the latter under para (c). It would be anomalous to regard the consequences of mental disturbance or disorder to fall under para (a) when the disturbance or disorder itself fell to be judged by whether they satisfied the criteria of para (c). A ‘functional overlay’ will, we consider, rarely amount to a behavioural disturbance or disorder as that term is used in the legislation.
Now, in the light of the various matters to which we have referred in the foregoing propositions that we have stated or conclusions to which we have come, we think that the task of a judge confronted with the requirement to determine an application made pursuant to subs (4)(d) when reliance is placed upon subs (17)(a) may be stated in the following terms: He 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 as a 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 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’? … .”[7]
“Serious injury”, as defined in subparagraph (a), can have its seriousness measured, in part, by a mental response to a physical impairment – however, a mental or behavioural disturbance or disorder, cannot itself constitute or be the producer of the impairment of a body function.[8]
“Serious injury”, as defined in subparagraph (c), requires the mental or behavioural disturbance or disorder to be “severe”, rather than “serious”. In Mobilio v Balliotis,[9] the Full Court found the word “severe” to be a higher standard to reach than “serious”. Brooking J stated:
“Without suggesting the use of any particular adjective to mark the distinction, I would say that ‘severe’ is used in the definition as a stronger word than ‘serious’ … .”.[10]
[6][1992] 2 VR 129
[7]See Humphries and Anor v Poljak (supra) at paragraph [40]
[8]See Richards & Anor v Wylie (2001) 1 VR 79
[9][1998] 3 VR 833
[10]See Mobilio v Balliotis (supra) at page 846
13The Court must give reasons that disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application.[11]
[11]See Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [23-[36]
The issues
14In his opening, Leading Counsel for the plaintiff described how the plaintiff suffered a previous transport accident “injury” on 13 November 2007 (“the first transport accident”) when she witnessed a fatal truck accident, causing her to suffer the development of a Post-Traumatic Stress Disorder, and Anxiety and Depression, at that time. She ceased work as a result of that event, and commenced treatment for an array of psychological problems and other issues.
15At the time of the subject transport accident on 10 May 2013, the plaintiff had not returned to work and was receiving some ongoing treatment. Leading Counsel for the plaintiff accepted it was for him to satisfy the Court as a matter of probability that any aggravation of whatever the pre-existing condition was, must be “severe” in itself.[12]
[12]T3, L8-12
16When Senior Counsel for the Transport Accident Commission (“TAC”) was queried as to what were the issues, I was informed that the matter was very much a “Petkovski” case[13] ꟷ no doubt a reference to Petkovski v Galletti,[14] one of the leading cases in respect of where pre-existing conditions are aggravated by a subsequent injury. In such circumstances, it is for the applicant to establish as a matter of probability that the extent of the aggravation gives rise to the “seriousness” of the injury if the claim is brought under paragraph (a) of the definition of “serious injury”, or the “severity” of the injury brought under paragraph (c) of the definition of “serious injury”.
[13]T10, L22-23
[14][1994] 1 VR 436
17In this respect, Senior Counsel for the defendant also highlighted that the plaintiff had been treated by a psychiatrist, Dr Chakrabarti, since the first transport accident on 13 November 2007 and indeed, had treated her after the subject transport accident on 10 May 2013, and accordingly would be in a position to speak of the psychological condition of the plaintiff “before” and “after” the second transport accident.
18Senior Counsel for the defendant also noted that bearing in mind the case at that stage was to proceed only under paragraph (c) of the definition of “serious injury”, there could be no consideration of what was referred to as “fibromyalgia”, because doctors relied on by the plaintiff – the physician, Mr Peter Blombery, and the rehabilitation specialist, Dr Clayton Thomas ꟷ were of the view that any such condition – that is fibromyalgia – is organically based. If so, such a condition would fall under paragraph (a) of the definition of “serious injury”.
19No such report was available from the treating psychiatrist, and although, as conceded by counsel for the defendant, it is a matter for the plaintiff as to how the case was run, such a doctor would seem to be an obvious witness. Part and parcel of this issue, Senior Counsel for the defendant also raised that none of the doctors then available gives any assistance in determining the extent of any aggravation by the subject transport accident.
The evidence of the Plaintiff
20The plaintiff relies on the following affidavits sworn by her:
(a) affidavit sworn on 4 November 2009;[15]
(b) affidavit sworn on 18 May 2017;[16]
(c) affidavit sworn on 31 May 2018;[17]
(d) affidavit sworn on 21 May 2019;[18] and
(e) affidavit sworn on 14 June 2020.[19]
[15]AJCB 188-200
[16]JCB 6-18
[17]JCB 4-5
[18]AJCB 207-240
[19]AJCB 373-375
21Clearly enough, as at 4 June 2019, the plaintiff had available her affidavits sworn on 4 November 2009, 18 May 2017, 31 May 2018 and 21 May 2019. The plaintiff gave evidence that the affidavit prepared by her on 4 November 2009 was in respect of the previous claim arising out of the first transport accident on 13 November 2007. She also gave evidence that she had read her affidavits sworn on 18 May 2017, 31 May 2018 and 21 May 2019, and the contents were “true and correct”.[20]
[20]T29, L3-6
22I propose to set out the salient aspects of those affidavits and the cross-examination of the plaintiff on 5 June 2019, up to when the matter was adjourned late in the day on 5 June 2019.
23I refer to the plaintiff’s first affidavit, sworn on 4 November 2009, wherein she deposes, in part:
· She is fifty-six years old, having been born in October 1964.
· From 20 October 2008, to the time that she swore this affidavit (4 November 2009), she had been in receipt of WorkCover payments in respect of psychiatric conditions consisting of Post-Traumatic Stress Disorder, anxiety and depression as a result of having witnessed an accident during the course of her employment on 13 November 2007.
· At the time of such accident, she was employed as a kitchen manager at the Numurkah Roadhouse and had been so employed since 13 May 2007.
· She describes the circumstances of the first transport accident on 13 November 2007 in the following terms:
“On the 13th of November 2007, I commenced work at approximately 8:00 am in the morning. It was a very hot day, with a maximum temperature of 36 degrees. I was working in the café section of the service station … as I usually did, preparing food. I recollect, that at approximately 11:00 am, I was standing at the counter of the restaurant, talking to a client, whilst I cooked some food which he had ordered. I was facing the customer, and had a clear view of the intersection of the Katamatite Nathalia Road and the Goulburn Valley highway, through the glass at the front of the service station. I saw two trucks collide at the intersection of Katamatite Road and the Goulburn Valley Highway. A semi trailer was travelling south on the Goulburn Valley highway. There was a smaller trip truck, which came out of the Katamatite Road. I can remember seeing at least one of the trucks in the air, which shocked me. There was an enormous noise, as the trucks collided, then an explosion.
The semi trailer cabin exploded in flames, immediately after the impact. The explosion shook the windows of the petrol station. Both trucks tumbled and skidded across the intersection, directly towards the petrol station. I can remember standing transfixed in absolute horror, thinking that the trucks were going to come into the forecourt of the petrol station, and cause an explosion. I thought that I was about to die. I had never been in such imminent danger in my life.”[21]
[21]Plaintiff’s affidavit, dated 4 November 2009, paragraphs [4]-[5] at AJCB 188-199
· Later that day, the plaintiff left her employment and attended her general practitioner, Dr Asad Al-Kafajy, in Numurkah. At that time, he counselled her and explained it was understandable she was upset and distressed, but did not prescribe any medication.
· She continued work until 3 December 2007, when she had to cease because of her inability to concentrate and properly undertake her duties. Furthermore, she was not sleeping properly, could not properly undertake simple tasks, such as gathering the correct ingredients for a meal, and was constantly thinking about the transport accident and fearful of it happening again.
· As at the time of swearing her affidavit, she had not performed any type of paid employment since 3 December 2007. In particular, she described her symptoms to include:
ꟷ being constantly tearful and distressed
ꟷ difficulty concentrating, difficulty sleeping and constantly being woken by nightmares concerning the incident
ꟷ constantly replaying the events of the collision in her mind, particularly when the trucks collided
ꟷ very anxious and distressed, particularly about going to work at the service station.
· She found the symptoms continued and she was unable to settle down or rest when at her premises. She also felt nauseous and unwell, particularly so when she left her home. Most of the shopping was undertaken by her housemate, or her father, who lived opposite her.
· She developed an eating disorder and found that when she ate food she felt nauseous and unwell, causing her to drop in weight from 44 kilograms to 39 kilograms – however her eating has improved due to medication given by her treating psychiatrist and at the time of the swearing of the affidavit she was 54 kilograms in weight.
· Her general practitioner prescribed a course of the antidepressant, Aropax, but she initially declined to take such prescribed medication, wishing to try and deal with her problems without taking drugs.
· Her general practitioner referred her to a counsellor, Ms Alison Harris, who practised at GV Community Health in Numurkah, and she saw Ms Harris once a week, but increased the frequency of visits to twice a week, as she felt her treatment was assisting.
· After a period of some months, she felt that this counselling was no longer of assistance and that her symptoms were not further improving. She continued counselling with Ms Harris until January 2008 and then Ms Harris advised her that she ought to consult a psychologist.
· Ms Harris referred her to Ms Melissa Dylan, a psychologist who practised in the same centre as Ms Harris. She undertook counselling with Ms Dylan for approximately six or seven weeks until approximately August 2008.
· She has attended her general practitioner either fortnightly or monthly since the incident and in August 2008.
· In July 2008, Dr Al-Kafajy referred her to a psychiatrist – Dr Chakrabarti – at GV Mental Health, and he prescribed the antidepressant, Avanza.
· Such medication caused unpleasant side effects, including sleeplessness and a burning sensation, and involuntary movements in her legs. However, she continued to take Avanza.
· Since commencing treatment with Dr Chakrabarti, she has attended monthly or fortnightly to date. Dr Chakrabarti has prescribed Inderal (to reduce anxiety) and Temazepam, this prescribed by her general practitioner, Dr Al‑Kafajy, to help her sleep.
· At the time of swearing her affidavit, she notes that her condition had not improved appreciatively since ceasing work and she still took the following medication:
ꟷ Avanza (an antidepressant), 45 milligrams, one at night
ꟷ Temazepam (a sleeping tablet), 10 milligram, one at night
ꟷ Inderal (to reduce anxiety).
· At the time of swearing the affidavit, she gets irritable and aggressive with members of her family; sometimes she does not answer the phone if she is in a bad mood – since the incident, her housework has suffered a bit and her general household standards are now “lower”, with deterioration around the house, such as less garden maintenance and general tidying around the house.
· As at the date of swearing this affidavit, she asserts that she continues to have the following conditions, none of which she experienced prior to the incident:
ꟷ because of her anxiety, agoraphobia and depression, she is unable to work
ꟷ she continues to suffer panic attacks, during which time she has difficulty breathing, shakes uncontrollably, with her heart beating rapidly
ꟷ she has difficulty adjusting to any or new circumstances
ꟷ she is depressed, constantly feeling unhappy and unable to derive pleasure from things
ꟷ she has great difficulty driving a motor vehicle and becomes even more anxious if she is a passenger.
· She is constantly concerned about being in a motor vehicle accident and has frequent “flashbacks” to the incident. She has nightmares on three or four occasions a week, often in the early hours of the morning, and the nightmares are not always about the accident, but often are.
· She now smokes about forty cigarettes a day, compared to fifteen to twenty prior to the incident.
· Whereas she used to go to bingo every Thursday night at Numurkah with her sisters-in-law, she now finds it difficult to go, becoming anxious and losing concentration. She now only goes occasionally to bingo.
· She attended high school, completing Year 11, and subsequent to leaving school she has undertaken work as a café assistant, waitress and barista, fast-food bistro chef and childcare.
24I now refer to the affidavit of the plaintiff sworn on 18 May 2017.[22] Such affidavit is the first affidavit in which the plaintiff deposes as to the circumstances and consequences of the subject transport accident on 10 May 2013. She deposes, in part:
[22]See Exhibit 1 at JCB 6
· She was married for twenty years, but separated in around 1998. She has a son aged thirty-three and a daughter aged thirty from that marriage, together with four grandchildren, aged between three and ten years.
· At the time of swearing her affidavit (18 May 2017), she was in a relationship with Brett Dolan (“Jack”), who she has been seeing for approximately two years.
· She moved to Numurkah from Melbourne in the early 2000s, having left high school on completing Year 11, and thereafter has performed mainly waitressing and customer service-type jobs.
· She confirms that she was granted a serious injury certificate by the Transport Accident Commission on 13 January 2010 in relation to the psychiatric conditions she suffered as a result of having witnessed a fatal accident on 13 November 2007. (The first transport accident).
· She asserts the following as to what she was like subsequent to the first transport accident leading up to the subject transport accident on 10 May 2013. She states:
“I have never returned to my old self since the 2007 accident but by 2013 I was doing much better. I was starting to enjoy my life again. I had purchased a property in Numurkah with my now ex-partner, Leanne Chapman. We then sold the house and purchased the property in Katunga, which we renovated. We were doing this ourselves with help from my dad and brothers.
I had not returned to work but I was able to do everything around the house, including painting the whole house and helping my brother with the tiling. Leanne was working so I stayed at home and did most of the cooking and cleaning. I would also do the shopping, including groceries but also things needed for the renovation.”[23]
[23]See Exhibit 1 at paragraphs [7]-[10] at JCB 7-8
Prior to 2013, I had started seeing friends and family more often. I used to enjoy going to bingo with my sister-in-law and a friend every Thursday night at the Numurkah Lawn Bowls Club. I also would go clothes shopping with my daughter and grandkids and would quite often drive to Shepparton.
Prior to the accident in 2013, I was down to taking Avanza 30mg daily for my post traumatic stress disorder. In addition to Avanza, I had previously been prescribed Aropax, which I stopped taking after I was hospitalised from a reaction to it. I was put on Xanax instead and then went back onto Avanza. By 10 May 2013, I was still seeing Mr Roger Barnes, psychologist, and continued to see him on a regular basis throughout 2013 and to about the middle of 2014. I also continued to see Dr Chakrabarti on two or three occasions after the accident. I had been seeing him for some time following the 2007 accident.”
(sic)
· Other than some mild neck pain in 2008 and mild back pain in around 2011, the plaintiff had not suffered from any previous neck or back conditions.
· She describes the circumstances of the subject transport accident in the following terms:
“On 10 May 2013, I was driving with my now ex-partner, Leanne, for a surprise visit to my mum for mother’s day … along Wynd[h]am Street, Shepparton at around 3:55pm. Just past the Nixon Street intersection the traffic was banked up and we stopped approximately 10 metres from the intersection. All of a sudden, my car was struck in the rear, forcing it into the car in front of us, which in turn was then forced into the car in front of it ... I recall that police did not attend the scene.
After the accident, I was shaken up pretty badly so Leanne went into a service station and called my sister-in-law while I sat in the gutter outside and waited. My sister-in-law organised a tow truck … and my car was towed away as it was a write off. At this stage, I felt light headed and strange and I had pains in my neck.
… I felt like my head was going to explode so my sister-in-law suggested I go to the hospital.”[24]
[24]See Exhibit 1, paragraphs [12]-[14] at JCB 4
· At the Numurkah Hospital, a brace was put on the plaintiff’s neck and an IV was placed in her arm. She was then transferred by ambulance to the Shepparton Hospital and was in terrible pain, particularly in her head. She was discharged from hospital around midnight on 10 May 2013 and was given a prescription for pain relief, including Endone and Panadol, and Ativan, as she was feeling quite ill.
· On 11 May 2013, she consulted her general practitioner, Dr Al-Kafajy, at the Quinn Street Clinic. At this time, her whole body was aching, especially her head and neck, and the doctor told her to continue taking Panadol and also prescribed some Valium. Later, she saw the doctor on 15 May 2013, and was prescribed Voltaren.
· She again attended Dr Al-Kafajy on 6 June 2013 because her depression and anxiety was getting worse, and at that time she was prescribed Diazepam, 2 milligrams, and there was also prepared a mental health treatment plan, causing her to attend her general practitioner regularly after the transport accident.
· In June 2013, she attended physiotherapy at the Goulburn Valley Physiotherapy Centre, as she was still experiencing pain all over her upper body, including her head, neck, back and arms, as well as down her legs.
· On around 17 May 2013, she attended a psychologist, Mr Roger Barnes, because she was feeling very anxious and her general practitioner suggested she needed more counselling.
· On 31 May 2013, she underwent scans of her cervical spine, thoracic spine, lumbosacral spine, shoulders and hips.
· Because of worsening anxiety and ongoing panic attacks, including an incident of dizziness and collapsing in the kitchen at home, she was referred to Dr Steven Ring, a consultant neurologist, who suggested the tingling was a migraine and her collapsing was caused by emotional distress.
· In June 2015, she consulted the orthopaedic surgeon, Mr Thomas Kossmann, and he recommended that she be referred to a pain management clinic and undergo steroid injections in her hip and left elbow. She was referred to the pain management clinic at the Goulburn Valley Hospital and attended on 20 June 2015.
· On 9 July 2015, she underwent an ultrasound of her left elbow due to pain that she was suffering and also, on 10 November 2015, she underwent an ultrasound of her hips, which showed she was suffering from “bursitis”.
· In late 2015, she underwent a steroid injection in her left elbow, after which she felt very unwell, dizzy and nauseous, with shivering, and had a rapid heart rate. She was admitted to the Numurkah Hospital for observation for three days on 30 November 2015 and after this she was too scared to receive the steroid injection in her hip.
· In around January 2016, she underwent an MRI scan of her back which showed a T3-4 disc protrusion.
· In around mid-2016, her general practitioner, Dr Al-Kafajy, referred her for platelet-rich plasma (“PRP”) injections for her hip instead of steroids. She underwent three injections in her right hip joint and was then to wait for six months before having injections in her left hip. She describes the procedure as “excruciatingly painful” and did not help reduce the pain in her right side, so she decided not to undergo the procedure on her left side.
· On 2 September 2016, she was referred to Mr Michael Knight, orthopaedic surgeon. He did not recommend any surgery, but did suggest that she consult the rehabilitation medicine physician, Dr Nathan Johns, for pain management. In November 2016, she attended Dr Johns, who suggested that she had fibromyalgia and prescribed Lyrica, 25 milligrams, and suggested she should attend a rehabilitation group. However, she stopped taking the Lyrica, as she had bad reactions to serotonin medications in the past.
· On 9 April 2017, she attended the Numurkah Hospital in terrible pain, causing her to scream and having the sensation of not being able to move her feet. She described it as like her back had “caved in badly”. She was given pain relief and anti-inflammatories, and then discharged from hospital on the same day.
Current treatment
· In around March 2017, she changed her general practitioner from Dr Al-Kafajy to Dr Cristina Dumitrescu at the Cobram Medical & Dental Clinic, and attends Dr Dumitrescu every fortnight for her prescriptions.
· Dr Dumitrescu recently organised for her to attend a pain management clinic at Albury-Wodonga, which consisted of a “stay in” treatment that could take up to eight weeks. The plaintiff had a preliminary assessment by four specialists at the clinic on 24 April 2017, at which time she was told they would formulate a treatment plan and forward this to her at a later stage. Dr Dumitrescu also formulated a mental health plan and she was waiting to see a psychiatrist.
· She stopped taking Lyrica, because it was making her feel “weird and aggressive”, and commenced taking Valium twice a day, 3 milligrams morning and night. She also takes Avanza, 30 milligrams once a day at night, for her depression and anxiety, as well as Panadeine and Panadol Rapid every four hours for pain, as well as Voltaren, 50 milligrams three times a day.
· Until recently, she was using a TENS machine she bought for her back and hip area but stopped using it because it was not helping any more. Up to that time, she had previously been using it up to five times a day.
· She has used the following topical treatments for pain relief:
ꟷZen Herbal Gel for the pain all over her lower back and down both of her legs, especially the front of the thighs.
ꟷAmazing Oils Magnesium which helps to relax her back and leg muscles, and she uses this three or four times a day.
ꟷPainaway Optimus for her back and legs for pain relief and this is applied in the morning after her shower and at night whenever she gets really uncomfortable.
ꟷKarma Rub for her back, hips, neck and feet for pain relief, also every morning and every night. However, she stopped using this recently as it was causing a tingling sensation.
· She commenced attending physiotherapy again in December 2016 at Numurka Physiotherapy, and in around February 2017, the Transport Accident Commission organised for her to attend Cobram Physiotherapy Clinic, where she attend twice a week. She also attends a chiropractor, Dr Simon Cassidy at the Tocumwal Chiropractic Centre in Numurkah, when the pain gets really bad.
· When her anxiety gets really bad, she has Bowen Therapy massage with Ms Shirley McLean, who also helps her meditate, which helps with her anxiety.
· She has deep tissue massage and Scenar Therapy with Mr Graham Thomas at Numurkah Soft Tissue Therapies, which helps with the pain and also her anxiety.
· She also attended Alnatural Cobram, where she has tried alternative therapies for her anxiety and pain. She tried Vibrosaun salt therapy for pain relief, but it caused her more pain in her legs, hips and back.
Consequences
· She has pain in her back, hips and legs. After about 20 to 30 minutes sitting down, her back is painful. She has difficulty lifting things around the house – for example the laundry basket – and usually has to wait for Jack to get home from work to help her. Jack usually helps with preparing dinner every night as she has difficulty standing for long periods of time as it causes her back pain. Bending over causes her back pain, as well as pain in her hips and legs.
· Prior to the subject transport accident, she had no physical restrictions. Since the subject transport accident, she cannot twist at her waist because of her hips. She has to roll out of bed because she is so stiff in her back, hips and legs in the mornings. She has difficulty doing the exercises her physiotherapist wants her to do because they cause her back pain. She has trouble lifting things up from the ground because of her back; however, she can manage to pick things up when they are elevated. She gets stuck if she bends over, and then someone has to help her upright. Because of this, she cannot vacuum, clean the bathroom or make the bed by herself. Jack does most of the cooking because her back and legs hurt if she stands still for too long. She can do light house work such as dusting and can manage to use a light swivel mop. Jack helps her take the washing on and off the line outside. She usually handwashes the dishes when Jack is at work. Her chiropractor told her that she needs to lie down, walk and stretch. He told her she should not be doing things around the house.
· Before the subject transport accident, she had no difficulty looking after herself but since the accident, she has some difficulties. She can dress and undress herself, except for her crop top and shoes, which Jack helps her with. When the pain gets really bad, Jack has to help her get dressed and undressed. Some days when the pain in her back is really bad, she does not shower because she finds it difficult to step up into the shower. Jack has just installed a shower steam room at his house for her to use but she finds that sometimes she has difficulty stepping up into it because of her back and hips.
· Before the subject transport accident, she was doing everything around the house, including assisting with the renovations. She was doing the cooking and cleaning. She helped install a new kitchen and the tiling inside the house. She would mow the lawns and do all of the outdoor work. The house she owns is on a 3-acre property and since the subject transport accident, she has found it too hard to manage. The house and surrounding property is too big for her to maintain and she has moved out to live with Jack. Her cousin currently lives in the house. He does not pay her rent as such but instead looks after the property for her and recently started to help her pay the Council and water rates.
· Jack does so much for her now. Some days she cannot even stand up and has to stay in bed all day. Jack is very understanding, but she worries constantly that he will not stick around. The subject transport accident destroyed her previous relationship with Leanne because she did not understand how badly it affected her. Her pain is not getting better, it is getting worse.
· Her current partner, Jack, and her have been having sex less frequently now because of the pain, and it causes her lower back and hip pain. She had a bad episode in around March when they did have sex. The next day, she was in so much pain that she went to see her chiropractor, Dr Simon Cassidy, who manipulated her hips and legs to alleviate the pain.
· Her anxiety and depression have definitely gotten worse since the subject transport accident. She worries that she will not ever get better. When she gets anxious, she finds it hard to breathe and she gets a hot burning feeling throughout her body, her heart races and she feels like her chest is going to cave in. This happens daily. Her anxiety and depression since the subject transport accident is worse than before. Now she also has the pain to deal with.
· Before the subject transport accident, she did have a bit of trouble sleeping. The Avanza used to keep her awake when she first started taking it, but she would meditate and get to sleep. Since the subject transport accident, she has a lot more trouble getting to sleep because of the pain. She takes Valium to help her sleep but she is up and down all night because of the pain, taking pain-relief medication and rubbing treatments into her back, legs and hips. This also affects Jack as she sometimes has to ask him to get her pain relief when the pain is so bad she cannot get up. Every night, she still has to meditate until she falls asleep.
· She does not like being in cars since the subject transport accident. While she drives herself around, her right leg starts to ache after a while because she uses it constantly for the accelerator. She also get back pain when in the car after about 10 minutes. She has had to attend Melbourne to see doctors on a number of occasions and the thought of being in a car for so long makes her feel sick. Since the accident, when they go to Melbourne Jack drives, and the drive takes three to four hours and then they park the car at Fawkner train station near her mother’s house, where they stop for a break. They then get the train into Melbourne so that she can stand up and sit down as she needs to. They do not get the train all the way into Melbourne because it is still a 30 to 60-minute drive to the train at Shepparton and the train runs infrequently, which makes it difficult to work around.
· In late 2014, she attempted to return to work after she broke up with Leanne so that she could support herself and buy Leanne’s share of the house they had bought together. From September 2014 to March 2015, she worked in the factory for MON Natural Foods in Barooga. She stopped work when she contracted shingles and injured her foot and ribs at work.
· Later, in 2015, she went to work at Ambience Café in Cobram, waitressing and making coffee – however, she left this job because it caused her back and hip pain to flare up.
· She tried to work again in around late 2015 and waitressed at Tiffany Bakery in Numurkah but experienced back pain the whole time and decided to change jobs.
· In April 2016, she started working at Sebastian’s Restaurant in Shepparton and only managed to work there for about eight days, experiencing constant pain in her lower back and down her legs.
· She has not worked since 21 April 2016.
· She used to have a good network of friends who she used to go out dancing with in Barooga but does not do this any more because it is hard on her back pain. She sees her friends and family less now than before the subject transport accident. She does not go out to play bingo with her friend and sister-in-law any more because it is hard for her to sit down for long periods of time due to her back pain.
· She occasionally will go shopping with her daughter and grandkids in Shepparton, but not as often because the travelling is hard on her back, legs and hips.
· Not being able to work has affected her depression. When she was trying to work, she felt she was useful.
· However, her back pain has not improved, and now that she cannot work she feels useless and sometimes feels like she does want to live anymore.
25I now refer to the plaintiff’s affidavit sworn on 31 May 2018.[25] In that affidavit, the plaintiff deposes, in part:
· That since the swearing of her affidavit on 18 May 2017, her condition “has basically remained the same”.[26] She experiences pain down her back and legs and some mornings she struggles to get out of bed.
· She continues to see her general practitioner at the Quinn Street Clinic, Dr Esraa AI-Sammak, on a regular basis, and in October 2017, her general practitioner prescribed Norspan patches but she was unable to cope with these. She felt like a zombie and had difficulty concentrating.
· Her general practitioner eventually stopped these and in March 2018, prescribed Naprosyn 500 milligrams and she took these for a while but they were not having much of an affect in reducing the pain so her general practitioner increased the dose to 750 milligrams, which she continues to take.
· Towards the end of 2017, she also started taking Panadol Osteo, and she would take up to six per day. She stopped taking these tablets as she developed pain in her kidneys, but continued to take Diazepam and Avanza, together with many creams and oils to try and alleviate her pain.
· She continues to have massage treatment but has had no further chiropractic treatment after her bad experience some years ago.
· Her sleep has deteriorated even further and she continually wakes at night.
· She continues to live with her partner, Jack Dolan, in his house. The tenants have moved out of her house after causing extensive damage which is being repaired at the moment.
· She feels frustrated that she is unable to help with the repairs, and has been unable to return to work.
[25]JCB 4-5
[26]JCB 4
26I now refer to the further affidavit of the plaintiff sworn on 21 May 2019.[27] In that affidavit, the plaintiff deposes, in part:
[27]JCB 207-240
· That since her last affidavit sworn on 31 May 2018, there “has not been any improvement in my health but rather a decline”.[28]
· On 31 May 2018, she recommenced seeing the psychologist, Mr Roger Barnes – this is approximately every two to three weeks.
· In December 2018, the Transport Accident Commission funded her to see a chiropractor, Dr David Nguyen, but this only lasted for a couple of occasions as she found no relief.
· Recently, she has commenced some remedial massage with Mr Graham Thomas, a remedial massage therapist in Numurkah, at her expense. This has given rise to some slight improvement with pain.
· She applies Rapid Gel at a cost of $30 per tub, and since her last affidavit she has used two tubs. She has also had some pain relief with Pain Away, which is an organic magnesium.
· In late 2018, she trialled a medication called Palexia because she was taking up to eight Panadol Osteo per day for pain relief. She has ceased this medication now due to the side effects she was experiencing.
· She complains of being weak a lot of the time and her weight has dropped to just 40 kilograms.
· Her sleep has not improved at all.
· She notes it has been suggested Ms Leanne Stewart, her former employer at the Numurkah Bakery, and Mr Garry Clancy, the factory manager at MON Foods, have now provided statements to the effect that they were both unaware that prior to her employment with them, she had been involved in a motor vehicle accident.
· Her response to those statements is that she felt as though if she had informed those employers or any prospective employers of her transport accident and subsequent injuries and limitations, she would not have become an employee.
[28]JCB 207
27It is to be noted that the plaintiff also relied on the following affidavits during this period of time:
(a) affidavit of Mr Graham Rowland, who is the father of the plaintiff, such affidavit sworn on 21 November 2018;[29] and
(b) affidavit of Mr Brett Dolan, known as “Jack”, such affidavit sworn on 21 November 2018.[30]
[29]JCB 19-22
[30]JCB 23-26
28In his affidavit, Graham John Rowland, whom I shall refer to as “the plaintiff’s father” deposes, in part:
· He was seventy five years old at the time of making his affidavit and had lived in Numurkah for approximately fifteen years. He has four children and his third child is the plaintiff.
· He recalls that the plaintiff had witnessed the “fatal truck explosion” at Numurkah in 2007 which caused her to have a Post-Traumatic Stress Disorder, as well as Anxiety and Depression.
· At the time of the first transport accident, the plaintiff was living in a house opposite her father in Numurkah and he would check in on her on a daily basis.
· He recalls that the plaintiff virtually had a “nervous breakdown” and it was as though she was reliving the nightmare constantly.
· Over time, she was getting herself “up” and he would get her involved in the home renovations that he was helping her with at her home. Physically she was fine so he would give her tasks to help keep her mind busy. She would cook meals and do general housework.
· By 2012, he noticed that the plaintiff had started showing signs of improvement in her mental health and he did not feel the need to visit her daily any more. The plaintiff had sold her house in Numurkah and purchased a home in Katunga, about 5 minutes away. When that occurred, he saw his daughter roughly once a week.
· Because he was camping up the river, he only became aware of the subject transport accident a few days after it occurred.
· When he did return home, he found the plaintiff was “a mess”.[31]
[31]JCB 20
· Since the subject transport accident, the plaintiff’s physical health has declined dramatically and she is now reliant on medication to help ease her pain and he sees her panic if she runs low on her medication.
· He recalls the plaintiff’s physical pain seemed “almost immediate” and her whingeing and complaining has been “consistent” since the subject transport accident and has not improved over time.
The plaintiff separated from her then partner, Leanne, and at that time he was visiting the plaintiff on a daily basis. He describes how he would offer as much support to her as he could as he found the plaintiff crying from her pain the moment she woke up. He would assist her in taking her to appointments, the hospital or whatever else she needed to undertake. He recalls her having so many appointments, medications and oils and she was also researching for new pain-relief products to help her remove her pain.
· Whenever he sees her, she tends to cringe in pain after a short period and needs to sit down. He would try and encourage her to do as much as she could for herself, but given the pain, he would mow the lawns for her, poke around the garden, vacuum the floor on some occasions and do the dishes for her, et cetera. He notes that the plaintiff mainly complains about her back, dizzy spells and not being able to sleep. He observes her shuffling through the house and the plaintiff says she wants to throw the towel in.
· He states that the plaintiff now has a new partner, Brett Dolan (“Jack”), there to help her when he can and this helps to take the load off the plaintiff. The plaintiff is very reliant on him (the father) for company, and the plaintiff is always messaging or calling him, or waiting for him to arrive for a daily visit.
· He observes that while this injury is of a physical nature opposed to the 2007 accident, the plaintiff is more depressed and frustrated than ever.
· He and the plaintiff’s siblings enjoy fishing and hunting, and (her father) tries to convince her to go out for lunch or fishing for a short while, which is non-strenuous. If she does go out fishing, it is not for long and she sits on a chair with a cushion.
· The plaintiff does not drive far at all and usually he drives her about. He notes that all his children are good hard workers and the plaintiff is always telling him she wants to work and that is why she pushed herself to go back after the accident.
· He describes the various jobs undertaken by the plaintiff:
ꟷThe plaintiff started at MON Natural Foods in Barooga in September 2014 and pushed herself hard to continue this this job, and always complained of aches and pains. Furthermore, she would have to medicate to get through her shifts. He believes that the plaintiff worked on this job for approximately six months.
ꟷIn late 2015, the plaintiff started working at Ambience Café, making coffee and waitressing. He notes that this job required her to stand all day, which proved too much pain for her, and she was also on heavy pain medication and was sensitive to a lot of pain medication.
ꟷThe plaintiff then worked with Tiffany Bakery in Numurkah in late 2015, during which time he (her father) would pop in for a coffee. He notes that he could tell she was in a lot of back pain and suggested her to stop, but the plaintiff was insistent she had to work.
ꟷIn mid-2016, the plaintiff started working at Sebastian’s Restaurant in Shepparton and her duties required her to carry trays and plates to the guests rooms with some rooms being a fair distance to walk. Later she was required to return to the rooms and carry all the empty dishes back to the kitchen. This job did not last long because of the pain.
· On rare occasions he takes the plaintiff to the pokies at the Club, and the times he has taken her, or seen her at the Club, she is just socialising with friends or family and not dancing like she used to like to do.
· Finally, he deposes that the plaintiff is nowhere near the person she used to be and is “very fragile”. He describes her as restricted physically, which gets the plaintiff down and depressed.
29In his affidavit, Brett (Jack) Dolan (who I shall refer to as “Jack”), deposes, in part:
· He is fifty-two years of age and met the plaintiff about three years ago (that is three years prior to the swearing of his affidavit), when they started going out together, and eventually the plaintiff moved in to live with him at his home in Barooga.
· At first he noticed the plaintiff having trouble moving around and appeared to be limited in the amount of time she could spend sitting and remaining on her feet and walking around.
· Earlier in her relationship, the plaintiff told Jack about her involvement in the subject transport accident about five years earlier and also the first transport accident.
· Shortly after the relationship commenced, the plaintiff got a job at MON Natural Foods at Barooga folding boxes. In particular, he remembers that when she came home she was complaining of a sore back and hips and Jack would have to massage her back each night and the plaintiff would also take medication to alleviate the pain.
· In late 2015, Jack recalls the plaintiff had jobs at Ambience Café and Tiffany Bakery as a waitress and barista. Again, both jobs caused her pain in her back and hips and she would also complain of tingling in her legs and swollen feet. Jack notes that the plaintiff could not hold these jobs because of her pain.
· In 2016, the plaintiff was employed at Sebastian’s Restaurant in Shepparton as a kitchenhand and waitress, which was very strenuous for her. She was required to carry heavy trays of food to rooms without trolleys. When she asked to have her role altered because of her accident, she did not get any more shifts, causing the plaintiff to become depressed, and she felt she could not hold a job anymore.
· Jack observes the plaintiff to be limited in the amount of housework she is able to do. They share the cooking, but he ends up cooking dinner quite often through the week after he comes home from work. He also notes there are times when the plaintiff simply is not well enough to stand at the kitchen bench or stove to prepare and cut ingredients to cook dinner.
· Jack notes that the plaintiff takes care of washing clothes, but he takes out the wet basket of clothes to the clotheshorse in the back room, which he established to make it easier for her and avoids her having to bend down. There is an outside clothesline but this is rarely used. He generally ends up hanging up the sheets himself.
· Jack has observed the plaintiff does not sleep very well at all and generally she would go to sleep, but within ten minutes or she would be awake again and start applying sprays to both hips and her back to try and relieve her pain. He notes that she is forever applying rubs and cream and is always looking out for new products to relieve the pain. Every night he rubs her back to try and give her some relief.
· Jack considers that the plaintiff’s condition has worsened and in particular notes that when walking she seems to lean over a little and also seems to be rather stooped. Furthermore, she has difficulty walking more than 100 to 200 metres and when they drive somewhere he makes a point of pulling up as close as he can to the destination to avoid her having to walk too far. On a typical trip to Melbourne he would need to stop on up to three occasions to allow her to get out and stretch to try and get some pain relief. The plaintiff does not drive long distances herself.
· Jack and the plaintiff would enjoy attending the Club with family and friends to socialise; however they rarely attend the Club nowadays, and if they do it is for a birthday or special occasion only.
· Jack enjoys gardening and the plaintiff tries to help by doing some of the weeding but is not very successful. She might get out there and do some watering, but not much else. He notes they have some chickens out the back and she feeds them and collects the eggs. The egg laying boxes are set off the ground and she has no difficulty collecting the eggs.
· Jack asserts that the intimacy between him and the plaintiff has changed dramatically since the accident. although they try to have sex at least once per week, but most times it is a fruitless attempt. He observes the plaintiff getting upset because she cannot be as intimate as she would like to be.
· Jack has observed her at home on occasions where she would simply start crying for no apparent reason and feels depressed over the way she used to be and would like to get back to the way she was, free of pain.
· Jack notes that he likes camping and fishing and although they have been out camping once together they were only able to stay one night. The plaintiff could not sleep on the foam mattress in the tent and they ended up coming home. Whenever they go fishing he makes a point of fishing close to the shore in case she needs to get off the boat and get back on the bank.
· When they go shopping, Jack ends up carrying the groceries, although the plaintiff may carry some of the lighter items.
· About eighteen months ago, the plaintiff was out in the backyard when Jack heard screaming and went out to see her. The plaintiff could not move and she could not walk back inside. Jack had to pick her up and carry her inside and she was in a lot of pain. Prior to that, Jack also recalls an incident in the kitchen where she fell to the ground for no apparent reason and he ended up having to take her to the hospital.
The Transport Accident Commission Claim Form
30I refer to the Transport Accident Commission Claim Form dated 24 May 2013 lodged by the plaintiff in respect to the subject transport accident.[32] In the Claim Form, the plaintiff describes a transport accident occurring about 3.50pm on Friday, 10 May 2013. Furthermore, the plaintiff describes that her vehicle was standing still at traffic lights when she was “rear ended” and forced into the car in front, which then hit the car in front also. At box 17, which requires details of any injuries, there is initially a typed entry of “(Whiplash injury to neck)”. After that, in handwriting, is added the following:
“INJURY TO SHOULDERS, ARMS, HIPS AND LEGS, HEAD, BACK
SHOCK
EMOTIONAL TRAUMA AND UPSETHEAD … .”[33]
[32]See JCB 176-187
[33]See JCB 179
Medical treatment
31After her subject transport accident, the plaintiff was taken to the Numurkah District Health Service, where a provisional diagnosis was made by the triage nurse of “anxiety and pain”.[34] The final diagnosis was a motor vehicle collision at “Low speed” with tenderness at the cervical and thoracic lumbar spine.[35] The plaintiff was then transferred to the Shepparton Hospital, arriving about 8.15pm and being discharged at approximately 11.00pm.[36] The diagnosis was recorded as “whiplash injury”.[37]
[34]See Numurkah District Health Urgent Care Record at JCB 68-71
[35]See Numurkah District Health Urgent Care Record at JCB 71
[36]See Emergency Department Treatment Summary at the Shepparton Hospital, at JCB 59-67
[37]See Emergency Department Treatment Summary at the Shepparton Hospital, at JCB 60
32I refer to the following radiological studies:
(a) On 16 April 2008, the plaintiff underwent a plain x-ray of her cervical spine at the request of her general practitioner Dr Al-Kafajy.[38]
[38]See x-ray report at JCB 48
It was reported that such x-ray revealed the vertical alignment to be normal, with the C5 disc space slightly reduced in height. Furthermore, the spinal canal was of normal dimension and the foramina appeared clear.
(b) On 11 November 2010, the plaintiff underwent a CT scan of her brain at the request of Dr Jawad Albandar;[39]
[39]See CT scan of the brain at JCB 49
(c) On 16 March 2011, the plaintiff underwent an x-ray of her lumbosacral spine at the request of her general practitioner, Dr Al-Kafajy.[40]
[40]See x-ray of the lumbosacral spine, dated 16 March 2011, at JCB 50
It was reported that such x-ray revealed alignment to be satisfactory, with disc heights and bodies being normal. There was no compression fracture of pars defect;
(d) On 10 May 2013, the plaintiff underwent a CT scan of her brain and cervical spine at the request of her general practitioner, Dr Al-Kafajy.[41]
[41]See the brain and cervical CT scan at JCB 52-53
No abnormality was found in the brain.
It was reported that the vertebral body heights in the cervical spine appear to be within normal limits. There was mild loss of normal cervical lordosis at the C5-6 level with minimal cervical spondylitic changes at that level. However, there was no acute fracture or subluxation in the cervical spine and no paravertebral soft-tissue widening;
(e) On 31 May 2013, the plaintiff underwent a CT scan of the cervical, thoracic and lumbosacral spines, right and left shoulders, and right and left hips at the request of Dr Shanaka Kodithuwakku.[42] The clinical notes state:
[42]See CT scan of the cervical, thoracic and lumbosacral spine at JCB 54
“Car accident three weeks ago. CT showed ?whiplash injury coming in with spasm and tenderness along the spine from cervical to lumbar. Stiffness in both shoulder joints and hip joints. In severe pain. No neurological symptoms. ?Persisting spinal injury.”
Cervical spine ꟷ It was reported that:
“Normal lordosis is replaced by a mild kyphosis centred at C4/5. This is suggestive of muscular spasm. C5/6 disc space is narrowed. Posterolateral osteophytes encroach upon both neuroforamina. No fracture or other significant abnormality is detected. No bony cervical ribs observed.”
Thoracic spine ꟷ It was reported that:
“No evidence of fractures or intervertebral malalignment is shown. Mild T8 and T9 marginal osteophytosis is present. Disc spaces are not distinctly narrowed.”
Lumbosacral spine – It was reported that:
“AP and lateral view were acquired.
No evidence of fractures, intervertebral malalignment or distinct disc narrowing is shown. Mild marginal lipping is present at L2. Sacro-iliac joints show no abnormality.”
Both shoulders – it was reported that:
“No evidence of fractures or joint deformity is shown in either shoulder.”
Both hips – it was reported that:
“No evidence of fracture or joint deformity is shown in either hip. 8 x 5mm sclerotic focus in the left femoral head is probably a bone island.”
(f) On 21 February 2014, the plaintiff underwent a CT scan of her brain.[43] It was reported “No significant abnormality identified”;
[43]See CT scan of the brain, dated 21 February 2014, at JCB 55
(g) On 10 November 2015, the plaintiff underwent an ultrasound of the musculoskeletal hips, right and left, which was requested by Dr Sam Abed.[44] The conclusion was:
“Tendinopathy of the gluteal tendons along with trochanteric bursitis bilaterally.
Tendinosis of the iliotibial band on the right.
Iliopsoas bursitis.”
(h) On 6 January 2016, the plaintiff underwent an MRI scan of her lumbar and thoracic spine at the request of her general practitioner Dr Al-Kafajy.[45] It was concluded that:
“Appearances are consistent with a right paracentral disc protrusion at T3-4 that impinges on the anterior thecal sac. No other focal abnormality demonstrated.”
[44]See ultrasound of the hips – right and left – at JCB 57
[45]See report of MRI scan of the lumbosacral-thoracic spine performed on 6 January 2016 at JCB 58
33Seemingly, the plaintiff’s primary source of medical treatment has been the Quinn Street Clinic in Numurkah and initially she generally consulted with Dr Al-Kafajy, but also other general practitioners at that clinic. As time went on, the plaintiff frequently consulted Dr Esraa Al-Sammak. The plaintiff relies on various reports from those doctors.[46] Excerpts of the Quinn Street Clinic records from 3 August 2011 to 31 January 2017 were also tendered.[47]
[46]See report from Dr Asad Al-Kafajy dated 16 May 2016 (at JCB 27-29) and Medical Practitioner Questionnaire of Dr Al-Kafajy dated 6 March 2011 (at JCB 300-303); reports from Dr Esraa Al-Sammak dated 20 June 2016 (at JCB 30), 17 October 2018 (at JCB 31), 11 November 2019 (at JCB 354-356) and 16 June 2020 (at page 372 JCB)
[47]See pages 376-418 JCB
34In his report dated 16 May 2016, Dr Al-Kafajy stated that he had been treating the plaintiff since 29 March 2003. In that report, he set out the various matters for which the plaintiff had sought advice leading up to the first transport accident on 13 November 2007. Over the period from March 2003, when Dr Al-Kafajy first treated the plaintiff, up to the time of the first transport accident, the plaintiff was seen for, among other things, “Anxiety/Depression”, “Dizziness and stress” and “Headaches and dizziness”, for which a CT scan was ordered on 20 May 2004; lower back pain on 24 April 2006 and weakness in the right arm on 9 October 2007, which resulted in a CT scan of the cervical spine and an ultrasound of the right shoulder.
35Dr Al-Kafajy notes that the plaintiff witnessed a fatal transport accident on 13 November 2007, which caused her to suffer from anxiety and depression, for which she received counselling and medication by a psychiatrist, who diagnosed her with post-traumatic stress syndrome. Over the period from the first transport accident to the subject transport accident, Dr Al-Kafajy records that on 15 March 2011 the plaintiff complained of lower back pain causing an x-ray to be ordered by the doctor and a prescription of Voltaren. Indeed, it is probable that the x-ray described at paragraph (c) undertaken on 16 March 2011, is the one following the complaint of lower back pain on 15 March 2011. There was no abnormality detected at that time in the lumbosacral spine.
36Dr Al-Kafajy seemingly saw the plaintiff at the Numurkah Hospital on 11 May 2013 and obtained a history of the subject transport accident, noting that the plaintiff was the driver of a car which was stationary when hit from behind. At the time of the transport accident she was wearing a seatbelt. When seen by Dr Al-Kafajy the plaintiff was complaining of stiffness in the muscles of her back and she underwent a CT scan of that area. Again, I refer to paragraph 32(d) herein, which sets out the details of the CT scan – undertaken in relation to her brain and cervical spine – and in particular, other than a mild loss of normal cervical lordosis at the C5-6 level, with minimal cervical spondylitic changes at that level, there was little or no abnormality detected. Dr Al-Kafajy confirms that she was diagnosed as suffering a “whiplash injury”.
37Dr Al-Kafajy sets out the various dates, running from May 2013 until April 2016, over which the plaintiff attended the Quinn Street Clinic. Not all of these were related to her transport accident – for example on 6 November 2014, the plaintiff attended and was seen by Dr Jawad about a hand injury she suffered at work and later, on 23 January 2015, she was seen by Dr Sami again about hurting her right hand when she slipped at work, resulting in an x-ray of the right thumb being ordered.
38In his report dated 16 May 2016, Dr Al-Kafajy asserts that the plaintiff was suffering from pain predominantly in the thoracic spine; tennis elbow; bilateral hip pain (trochanteric bursitis) and pre-existing Post-Traumatic Stress Syndrome.
39In particular, Dr Al-Kafajy states:
“In regards to the relationship between those injuries and the transport accident, Mrs Rowland has suffered from a pre-existing post traumatic stress syndrome for many years. There may have been an aggravation in this condition which has impacted on her pain prescriptions. Mrs Rowland has been under the care of a Psychiatrist and Psychologist for this reason.
Mrs Rowland’s prognosis is guarded. She has ongoing pain and pre-existing post traumatic stress syndrome. She needs:
- pain management specialist opinion
- spinal specialist opinion
- orthopaedic opinion regarding tennis elbow and bursitis both hips
… .”[48]
[48]See JCB 29
40Dr Al-Kafajy was also requested to give his opinion concerning the “impact the injuries have had and will continue to have” on the plaintiff. He states:
“Mrs Rowland suffers from multiple pain issues affecting her thoracic lumbar spine, her elbow and both hips. She had previously worked in a factory, however suffered from increasing pain and therefore had to undergo further investigations and treatment. Mrs Rowland’s pain issues caused by motor vehicle accident from 10/05/2013 has had negative impact on her capacity for work.”[49]
[49]See JCB 29
41Another doctor at the Quinn Street Clinic, Dr J Albandar, referred the plaintiff to the neurologist, Dr Steven Ring, who saw her in approximately early April 2014. In his report to Dr Albandar dated 7 April 2014, Dr Ring states, in part:
“I note her history of depression/anxiety/post-traumatic stress disorder. Sharron reports quite frequent episodes where she gets extremely hot through her body and becomes panicky. On 15 February she suffered an episode of left homonymous hemianopia followed by tingling on the left arm, face and tongue lasting about 35 minutes. There was headache. On 10 March she felt weird while she was sitting on the toilet, walked into the kitchen but felt dizzy, hot ... and fell to the floor.
The neurologic examination was normal. Her cerebral GT scan was reported as normal and carotid Doppler study showed no significant carotid stenosis. Medications including Avanza and diazepam. She has no history of migraine.
Could I recommend that Sharron undergo a cerebral MRI/A for completeness? However I feel that the episode in February was migraine equivalent and the episode in March consistent with vasovagal syncope.”[50]
[my emphasis.]
[50]See JCB 32
42In a report dated 20 May 2016, Dr Al-Sammak[51] notes that since the transport accident on 10 May 2013, the plaintiff has had pain in her back and hips which interferes with her activities and generally finds it difficult to cope with such pain. At that time, Dr Al-Sammak was recommending regular follow up with pain management, together with a referral to a pain management clinic and a referral to a spinal neurosurgeon for further assessment and management. She further notes that on the basis of the ultrasound taken on 20 November 2015, the plaintiff had tendinitis bursitis and thecal impingement of both hips. In a subsequent report dated 17 October 2018, Dr Al-Sammak[52] noted that the plaintiff complained of chronic generalised body ache and pain due to her “fibromyalgia”. Dr Al-Sammak also notes that the plaintiff has PTSD and anxiety.
[51]See JCB 30
[52]See JCB 31
43Dr Al-Sammak notes that the plaintiff has been seen by a pain management clinic, physiotherapist, psychotherapist and a trial of NSAID and opioid was done, but unfortunately there was no change to her condition.
44At the time of writing the report, the plaintiff was being prescribed 15 milligrams of mirtazapine daily.
45In particular, Dr Al-Sammak states:
“Recently she had a tough family time and stressful events in the family. She complains of bad symptoms of anxiety such as palpitation, shortness of breath and uncomfortable chest tightness. [S]he has been advised to double the dose of Mertizapine (sic). Unfortunately she failed to do so as she was worried about side effects. Frequent counselling about medications offered, but still she had poor acceptance and compliance of medication.
Her current treatment includes:
- Diazepam 3mg at night daily
- Mertizapine (sic) 15mg daily
- Naprozin (sic) 750mg pm
At the present time we advised Ms Rowland to continue home based physiotherapy. Ms Rowland had a transport injury on 10th May 2013 which affects her physically and mentally. she said that her body aches and pains started after that accident and gradually worsening. She complains of poor sleep, fatigue and tiredness. She cannot work at present time as she still in pain with poor response to medication. The severity of pain varies from day to day and hard to be predicted. This affects her self esteem and her confidence in medication. As you know she had PTSD after witnessed accident in 2007. Despite psychological counselling and antidepressant regular use, she still develops poor recovery with exacerbation after any stressful life event as she has at present in her family.
You requested me to comment on impact of accident in May 2013. The first consultation with Ms Rowland was on 11/05/2013. I saw her after the 2nd accident. Ms Rowland said she was not completely recovered from 2007 accident when she had the 2013 accident which aggravate her condition. I think that the 2013 accident affect her recovery and left her physically and mentally unwell. Add to that poor tolerance to medication left her unwell physically and mentally.”[53]
(sic)
[53]See JCB 31
46As footnoted already, Dr Al-Sammak has also provided reports dated 11 November 2019[54] and 16 June 2020.[55] Both these reports obviously postdate the first hearing of this matter. I will set out details of those reports in order to avoid her evidence being given in a disjointed way.
[54]See JCB 354
[55]See JCB 372
47In her report dated 11 November 2019, Dr Al-Sammak confirms that she initially consulted with the plaintiff on 30 November 2015 when she was complaining of “serotonin syndrome”. Dr Al-Sammak sets out the details of that consultation when the plaintiff presented with “shivering, dizziness, nausea”.[56] The plaintiff complained of feeling unwell after “corticosteroids injection in elbow” (sic).
[56]See JCB 354
48Dr Al-Sammak arranged for the plaintiff to be admitted to hospital for assessment and management. She also sets out the large number of doctors that the plaintiff has consulted in relation to her conditions.
49Dr Al-Sammak confirms that the plaintiff suffers from bursitis and tendonitis, together with fibromyalgia. Furthermore, the plaintiff complains of anxiety and depression, which Dr Al-Sammak thought is most likely complicated by the PTSD after witnessing the first transport accident.
50When queried about her prognosis, Dr Al-Sammak stated:
“She has ongoing pain. She has bursitis in different parts of [the] body as well as tendinitis. She has fibromylagia (sic) which is difficult to control pain.
Furthermore she has depression, anxiety … [and] PTSD.She needs hydrotherapy and counselling.
She has (sic) rheumatologist assessment recently, report pending.
She has been advised to try some medication. Unfortunately she failed to do so as she was worried about side effects. Frequent counselling about medications offered, but still she had poor acceptance and compliance of medication. At the present time we advised Ms Rowland to continue home based physiotherapy.Her current treatment includes:
- Diazepam 3mg at night daily
- Mertizapine (sic) 30mg daily- Mobic 15 mg daily.”[57]
[57]See page 354-355 JCB
51In her report dated 16 June 2020, Dr Al-Sammak asserts that the plaintiff still has “the same complaint” and has not shown any new progress in her medical condition. She notes that there was an attempt to use Tapentadol tablets to help with the pain but unfortunately, the plaintiff developed bleeding from her rectum and had to discontinue that treatment. Dr Al-Sammak confirms that the plaintiff has been advised to stay on:
– Avanza tablet, 30 milligram PO once per day
– Diazepam tablets, 1.5 milligram PO once per day
– Mobic capsules, 15 milligram PO PRN.[58]
[58]See JCB 372
52Dr Al-Sammak notes that the plaintiff was encouraged to keep her regular attendances with her psychologist, physiotherapy and massage.
53One of the doctors at the Quinn Street Clinic, Dr Jawad Albandar, referred the plaintiff to the orthopaedic surgeon, Mr Michael Knight, who examined the plaintiff on 2 September 2016.
54In his report of the same date, Mr Knight states, in part:
“Sharron has a complex pain management issue that will not be improved with surgery. There is no surgical pathology seen on any of Sharron’s imaging and she does not demonstrate symptoms that would be consistent with a surgically improvable condition.
Sharron has anatomically nonspecific pain brought on by a severe reaction to a motor vehicle accident and preexisting to this post-traumatic stress disorder which was also brought on by witnessing a horrific incineration of persons in a motor vehicle accident.
The result of these events has left her with a mixture of psychiatric and physical changes in state that predispose her to feeling pain. The only treatment for this is complex intervention using multi practitioners over a long period of time. I do not believe that it would be possible to find the resources to achieve this outcome with Sharron in Shepparton. l think that she will require multiple inpatient admissions to a rehabilitation facility with some outpatient ongoing rehabilitation in between. I have referred her to my colleague Dr Nathan Johns who is an expert in managing this type of pain but I suspect even with his expertise and even with the participation of a funding partner such as the TAC, that Sharron may have an extremely difficult time bringing her pain under control. I think the most important thing for her though is to stay away from any form of interventional therapy.”[59]
[my emphasis.]
[59]See JCB 33
55Mr Knight did refer the plaintiff to Dr Nathan Johns, a rehabilitation physician, who seemingly saw the plaintiff in November 2016. In his report dated 8 November 2016,[60] Dr Johns records the history given by the plaintiff that she was stationary and then hit by another car and “squashed” against four other vehicles.
[60]See JCB 43
56At that time, the plaintiff was complaining of pain in the thoracic spine, low back and hip, and rated the pain on average as 8 out of 10, with little change throughout the day and severe levels of pain interference. Dr Johns went on to say that the plaintiff had other symptoms of “fibromyalgia”, including daily headaches, fatigue and memory loss. She also had pain in her legs and calves at times.
57The plaintiff informed Dr Johns that heat was relieving but otherwise she has no way to help the pain, and exercise and activity exacerbates her pain.
58The plaintiff was taking Valium, 2.5 milligram bd, and Avanza, 30 milligram daily, but later developed a serotonin syndrome when she had her medication changed and developed a chemical sensitivity.
59On examination, Dr Johns found the plaintiff had a normal BMI and normal neck and spinal postures. She had a good active range of motion of her neck and arms with reduced upper limb power bilaterally, brisk reflexes and normal sensation. She had reduced lumbar flexion and extension and reduced passive ranging of both hips, and apart from brisk reflexes, a normal lower limb examination.
60The plaintiff informed Dr Johns that she needs help occasionally with personal activities and cannot vacuum and cannot drive very far.
61The plaintiff had been diagnosed psychologically with PTSD and on a mood screen on the day of examination, Dr Johns considered that she had extremely severe symptoms of stress, anxiety and depression.
62Dr Johns considered that the plaintiff had severe levels of catastrophising thoughts, and very low confidence that she is able to manage despite the pain.
63At that time, she was currently living with her partner and two children.
64Dr Johns stated:
“She has central sensitisation/fibromyalgia, which will not be aided by further investigation, surgery or injections. I have explained this to her today and that she needs to change her way of thinking, moving and feeling to help control her pain and mood and get on with her life with some goal setting, pacing and graduated exercise. She is happy to attend an outpatient program at the Rehabilitation Medicine Group every two weeks or so and I will request TAC to provide some assistance in this regard. ….”[61]
[61]See JCB 44
65Dr Johns commenced the plaintiff on Lyrica, starting at 25 milligrams bd, increasing by 25 milligrams twice daily every two weeks, to reduce the chance of side effects.
66I also refer to a report from Goulburn Valley Physiotherapy Centre dated 22 November 2016 and authored by a musculoskeletal physiotherapist, Mr Brendan Kiel.[62] Mr Kiel reports that the plaintiff first attended the Goulburn Valley Physiotherapy Centre on 4 June 2013 (approximately three-and-a-half weeks after the subject transport accident). Initially, she was seen by another physiotherapist, Mr Aaron Plant, who obtained a history from the plaintiff of suffering widespread symptoms in her forehead, posterior skull, cervical spine, upper thoracic spine, anterior chest, anterior upper arms and ulnar aspect of both forearms, anterior thighs and calves.
It was put to the plaintiff that she had such sensation, to which she agreed, and furthermore it was put to her, “So it’s similar to the fibromyalgia that you think you’re suffering from now, is it?”, to which the plaintiff replied, “I didn’t have pain, I had a burning feeling”. And furthermore, when queried whether that sensation was diagnosed, the plaintiff answered “Serotonin syndrome”;[167]
[167]See generally T51, L15-29
(f) The plaintiff was then referred to page 308 of the Joint Court Book, which is part of the Emergency record from the Goulburn Valley Hospital on 2 October 2010, wherein it is recorded that the plaintiff:
“Presents 2/24 hr of central chest pain slightly worse … [with] deep inspiration. Reports burning feeling in neck + bilateral arms. Same SOB [shortness of breath], feels hot.”
Under cross-examination, the plaintiff accepted that she had a burning feeling in her neck. “When I get really bad anxiety, yes I do,”[168] and that she does get bilateral arm pain sometimes.
[168]T52, L27-28
After explaining the symptoms which occurred in October 2010, the plaintiff responded she did not know what happened to her that night, and she ended up in an ambulance and was taken to the hospital;[169]
[169]T52, L3 – T53, L1
(g) The plaintiff was taken to page 309 of the Joint Court Book, which is an Outpatient treatment record of the Numurkah District Health Service, which reports that the plaintiff presented on 5 January 2006 and has had neck stiffness since Wednesday, 1 December 2005, with slight headache, and visited a chiropractor twice.
When queried about that episode, and, in particular, whether she was getting neck pain in January 2006 which necessitated her being taken to the chiropractor, the plaintiff stated “I guess I might have, yes”;[170]
Observations at that time involve the plaintiff to have neck pain and stiffness for three days, and when queried about this problem, the plaintiff stated “I don’t know. I may have slept funny at that time;”[171]
(h) The plaintiff was also asked some questions in relation to the chiropractor, Dr Cassidy. Under cross-examination, the plaintiff confirmed that:
·She currently sees Dr Cassidy, who has a private practice in Numurkah.
·She confirmed that she had seen Dr Cassidy prior to the first transport accident, but did not know how many times she had attended him.
·When queried whether she consulted Dr Cassidy after the first transport accident, the plaintiff gave evidence she used to go and have an alignment with him.
·When queried as to whether there was a report from Dr Cassidy, the plaintiff stated she did not know whether her solicitors ever obtained a report.
·The plaintiff stated she could not remember how many times she had attended over the years, but she had gone on and off, and also had some massage therapy in between from a woman called “Shirley”, who was a private massage therapist.
[170]T53, L14-15
[171]T53, L19-22
211I refer to pages 456 to page 465 of the Joint Court Book, which sets out, at least until April 2017, the records of the chiropractor, Dr Cassidy:
(a) Seemingly, the plaintiff commenced to attend Dr Cassidy from 2 February 2006 and received treatment on 2, 3 and 6 February 2006 for treatment for what is described as an “acute left torticollis;
(b) On 28 April 2008, the plaintiff consulted Dr Cassidy, complaining she had a sore, stiff neck, but recent x-rays had cleared her of any injury. Furthermore, the day before, she had lifted her grandchild and felt pain in her lower back, and she underwent some adjustment by the chiropractor. At that time, the chiropractor obtained the history of the first transport accident, and noted that the plaintiff suffered from depression and stress;
(c) In September 2010, she had attended, claiming a reaction to the prescription medication that she was taking and had developed body spasm, causing an ambulance to take her to hospital. It was noted she had had anxiety attacks since October 2010. The menopause was also raised as a possible part diagnosis. In early March 2011, it appears that she had some sort of adjustment for her back, and maybe pelvis, and similarly on 21 April and 11 July 2011;
(d) Her neck attendance was seemingly on 16 September 2014, when she was diagnosed again with a left torticollis. At that consultation, it was noted that she had the subject motor vehicle accident in May 2013;
(e) On 20 July 2015, she attended Dr Cassidy, and seemingly obtained treatment for left chronic tennis elbow;
(f) On 26 April 2016, she attended Dr Cassidy, complaining of lower back pain and aching shoulders, for which she had some treatment. It had been noted on 5 January 2016, she underwent an MRI scan for her lumbar and thoracic spines (arranged by her general practitioner);
(g) Since then, the plaintiff has attended on 23 February 2017, 20 March 2017, 27 March 2017, 3 April 2017 and 5 April 2017, having adjustments done to her lower back and complaining of pain in that area.
212To the extent that the plaintiff had suffered any type of neck pain or back pain prior to the subject transport accident, the attendances on her various general practitioners and Dr Cassidy, any such complaints were not that frequent, treated symptomatically and short lived. Indeed, I consider there is no good evidence of any chronic neck or back condition, or indeed any chronic pain condition, either prior to the first transport accident, or, more particularly, the subject transport accident. Indeed, as the plaintiff has said several times in her evidence (per affidavit), prior to the subject transport accident, she had no chronic pains in her body which impacted on her capacity to work or perform normal day-to-day duties.
213The next major issue concerns the nature and extent of any injury suffered by the plaintiff in the subject transport accident. Unfortunately, the evidence is not clear-cut as to the diagnosis and, in particular, there is a marked division between the rheumatologists and pain specialists on one hand and orthopaedic specialists and psychiatrists on the other. Whereas the camp including rheumatologists have consistently diagnosed the plaintiff to be suffering from what is said to be an organic condition – fibromyalgia – which appears to be a diagnosis when such symptoms cannot be explained through neurological deficit or discal issues in the neck or back, the other camp consider the same symptoms to be a manifestation of symptoms which are explained through psychological mechanisms rather than any organic basis.
214However, what is clear, in my view, the plaintiff, following the subject transport accident, almost immediately made complaints of pain in her neck, shoulders, arms, back and generally throughout her body. No doctor has suggested that she is consciously fabricating such symptoms. What is also clear, in my view, is that such symptoms are new symptoms following the subject transport accident and clearly are not symptoms of Post-Traumatic Stress Disorder, although as I have already indicated, consistent with the evidence of the psychologist, Mr Barnes, who saw her on three occasions leading up to the subject transport accident, there may have been some aggravation of her pre-existing Post-Traumatic Stress Disorder.
215Initially, I refer to the evidence of the treating psychologist, whose treatment extended for three consultations after the subject transport accident. I have already recorded his diagnosis as it existed immediately up to the subject transport accident. When queried as to whether the subject transport accident caused an aggravation of any pre-existing psychiatric condition, Dr Chakrabarti stated:
“Prior to 2013, Ms. Rowland had two different psychiatric diagnoses – the diagnosis of PTSD had remitted. On the other hand, she developed an Adjustment Disorder, and this has been aggravated by the accident in 2013. Adjustment Disorders can be prolonged with ongoing stressors as described in DSM-V … .”[172]
[172]JCB 288
216When also queried as to what, if, any organic pain consequences the plaintiff complained of following the subject transport accident, Dr Chakrabarti stated:
“Ms. Rowland complained of various bodily pains, including her hips, knees and feet. These apparently follow the accident in May 2013. I am not able to assess or comment on the nature of, or, intensity of this pain syndrome, and the impairment that it causes. This may better be addressed by her Pain Management Team, and she may benefit from an Occupational Therapy assessment.”[173]
[173]JCB 288
217When queried whether the pain consequences as described by the plaintiff resulted from an organic physical impairment or whether pain consequences are a product of a mental or behavioural disturbance or disorder, Dr Chakrabarti said:
“The pain consequences as described by Ms. Rowland seem to occur from physical symptoms related to the fibromyalgia. The intensity of the pain can fluctuate and can be dependent on her mood and state of anxiety.”[174]
[174]JCB 289
218When queried whether any pre-existing condition or injury is affecting her current presentation, Dr Chakrabarti stated:
“I do feel that the depressive and anxious symptoms that were present before the May 2013 accident, have been ongoing and exacerbated leading to Ms. Rowland’s current presentation.”[175]
[175]JCB 289
219In answer to further queries, the treating psychiatrist is of the opinion that any aggravation caused by the subject transport accident has not resolved to its pre-subject accident state. In particular, when queried whether any consequences have been caused by the psychiatric injury caused in the May 2013 accident, and in particular, in respect to (a), her inability to return to employment; (b), interference with her activities of daily living; and (c), interference with any social and recreational activities, Dr Chakrabarti stated:
“As of my assessment on 17/06/2019, Ms. Rowland is unable to return to employment because of her physical pain. It does interfere with her activities of daily living as elucidated in the report above and it does interfere with some of her social and recreational activities. From a psychiatric perspective, there is no hindrance to considering some form of employment.”
220Clearly enough, Dr Chakrabarti has accepted that symptoms complained of by the plaintiff in her neck, back arms et cetera, are caused by fibromyalgia and, of course, in response to the last query, it is this pain which he considers to be caused physically, that prevents her from returning to employment.
221I also refer again to the evidence of the treating psychologist, Mr Barnes, who, when queried as to the condition of the plaintiff over the period from the subject transport accident to 31July 2014, stated:
“Ms Rowland reported neck, hip and leg pain; and a whiplash injury. She continued to suffer from depression, anxiety, insomnia, Posttraumatic Stress Disorder, and psychosocial stressors.”[176]
[176]JCB 274
222Again, when queried as to her condition over the period from 7 November 2018 to 17 June 2019, Mr Barnes stated:
“Ms Rowland presented with … Posttraumatic Stress Disorder, Depression, Insomnia, and Chronic Pain.”[177]
[177]JCB 274
223When queried as to the cause of those conditions, the psychologist then referred to the initial transport accident and the subject transport accident.
224Bearing in mind Mr Barnes’ opinion as to her psychiatric condition in May 2013, he was queried as to his opinion as to what extent the May 2013 accident caused an aggravation of any pre-existing psychiatric condition. Mr Barnes answered:
“I am of the opinion the May 2013 accident aggravated Ms Rowland’s psychiatric condition and physical condition. Her Posttraumatic Stress Disorder remained unresolved, and she suffered Insomnia (frequent awakenings), due to chronic pain in her neck and body.”[178]
[178]JCB 358
225In particular, when I asked her to describe what if any organic pain consequences the plaintiff complained of following the May 2013 accident, Mr Barnes responded:
“Ms Rowland complained of neck, hip and leg pain, stooped posture and slowed gait.”[179]
[179]JCB 358
226When queried whether such pain consequences have an organic or psychological cause, Mr Barnes stated:
“The pain consequences as described … above result from an organic physical impairment … .”[180]
[180]JCB 358
227Again, similar to the treating psychiatrist, Mr Barnes considers that the pain symptoms reported by the plaintiff after the subject transport accident are of a physical origin rather than a psychological origin.
228I consider that the evidence is very strong that the plaintiff, shortly after the subject transport accident, commenced to experience pain in her back, neck, shoulders, arms, hips and legs. Indeed, these words are set out in the Transport Accident Commission Claim Form dated 24 May 2013.
229Also, of course, because of her complaints, the plaintiff underwent a CT scan of her brain and cervical spine on 10 May 2013 at the request of her general practitioner, Dr Al-Kafajy. No abnormality was found in the brain, and also a mild loss of normal cervical lordosis at the C5-6 level, which revealed there was no acute fracture or subluxation in the cervical spine and no paravertebral soft-tissue widening.
230Furthermore, on 31 May 2013, the plaintiff underwent a CT scan of the cervical, thoracic and lumbosacral spines, right and left shoulders, and right and left hips, at the request of one of her treating doctors. At the time of the request, it was noted that she had a car accident three weeks ago, a whiplash injury along the spine from cervical to lumbar, stiffness in both shoulder joints and hip joints and she was in severe pain, but had no neurological symptoms. Such radiological investigation detected no relevant abnormality.
231On the evidence before the Court, the plaintiff has continually complained of these pains since the subject transport accident, which has resulted in her being examined by a large number of specialists. The general practitioners at her clinic seemingly formed the view that she was suffering from “fibromyalgia”, which would explain her body aches and pain in her neck, back, arms, shoulders and legs.
232I refer to the following examinations:
(a) Dr J Albandar referred the plaintiff to the neurologist, Dr Steven Ring, who saw her in approximately early April 2014. In a report back to Dr Albandar dated 7 April 2014, Dr Ring states that the neurological examination was normal;[181]
[181]JCB 32
(b) The plaintiff was referred by her general practitioner to the orthopaedic surgeon, Mr Michael Knight, who examined the plaintiff on 2 September 2016. After obtaining a history and making an examination, he stated:
“Sharron has a complex pain management issue that will not be improved with surgery. There is no surgical pathology seen on any of Sharron’s imaging and she does not demonstrate symptoms that would be consistent with a surgically improvable condition.
Sharron has anatomically nonspecific pain brought on by a severe reaction to a motor vehicle accident and preexisting to this post-traumatic stress diso1·der which was also brought on by witnessing a horrific incineration of persons in a motor vehicle accident.”;[182]
(c) Mr Knight did refer the plaintiff to Dr Nathan Johns, a rehabilitation physician, who consulted with the plaintiff in November 2016. In his report dated 8 November 2016, Dr Johns recorded the history given by the plaintiff, and at that time was complaining of pain in the thoracic spine, lower back and hip, and rated the pain, on average, as 8 out of 10, with little change throughout the day. Dr Johns was of the opinion that the plaintiff had symptoms of “fibromyalgia”, including daily headaches, fatigue and memory loss. She also had pains in her legs and calves at the time;
(d) The plaintiff was referred to the Goulburn Valley Physiotherapy Centre and a report from that organisation confirms that the plaintiff initially attended that centre on 4 June 2013 (some three-and-a-half weeks after the motor vehicle accident). Initially, she was seen by another physiotherapist, who obtained a history that the plaintiff was suffering widespread symptoms in her forehead, posterior skull, cervical spine, upper thoracic spine, anterior chest, anterior upper arms and the ulnar aspect of both forearms, anterior thighs and calves. She was later seen by the physiotherapist, Mr Kiel, who authored a report dated 22 November 2016, wherein he stated, in part:
“… Ms Rowland has widespread pain and associated disability related to a chronic pain syndrome. The pain syndrome appears to have been triggered at least in part by her car accident mentioned above. I believe that it is unlikely that Ms Rowland makes a full recovery. She is likely to have ongoing pain with tasks such as sitting for more than twenty minutes, walking several hundred meters (sic), lifting and carrying, prolonged standing and squatting.
… Considering Ms Rowland’s functional restrictions listed above I believe that it will be difficult for her to obtain work ”;[183]
[182]JCB 33
[183]JCB 47
(e) I also received a report from a treating chiropractor, Dr David Nguyen, undated, wherein he notes that the plaintiff first consulted him on 11 December 2018, when she gave a history that following the subject transport accident, she had an inability to perform overhead duties, walk for an extended amount of time, and experienced constant pain in the front of her legs, and overall strength. Upon examination, she had a reduced range of motion throughout, which appeared to be limited due to the pain, and also reported intermittent cramping since the transport accident, along with headaches, weakness and generalised muscle aches.
Dr Nguyen noted that the plaintiff’s general practitioner had informed him that she had suffered fibromyalgia, with Dr Nguyen noting that she also appeared to be “affected psychologically” with the accident.[184]
[184]JCB 204
233I also refer to some of the medico-legal examinations:
(a) The neurologist, Professor Stephen Davis, examined the plaintiff on 9 April 2015 and 29 December 2016. At the time of the first examination, the plaintiff complained of generalised pain problems. Professor Davis noted that there were no neurological abnormalities and the brain and cervical spine CT scans at the Numurkah Hospital on the day of the accident were unremarkable.
At the time of the second examination, Professor Davis also noted that the plaintiff had an antalgic gait but, again, appeared to have unrestricted cervical movements. She complained of pain in the back of the hips, but there was no objective neurological abnormality. In particular, Professor Davis noted that the plaintiff had told him that she had been diagnosed as having “fibromyalgia”, after which Professor Davis commented, “but I think that functional factors are extremely prominent”;[185]
[185]JCB 81
(b) The consultant psychiatrist, Dr Lester Walton, examined the plaintiff on 9 April 2015 and 13 December 2015. When first examined, the plaintiff obtained a history that the plaintiff had been improving prior to the subject transport accident and that the subject transport accident has caused a significant aggravation of pre-existing symptoms and there had been newly arising symptoms, anxiety and avoidance behaviour, specifically in relation to cars, as well as nightmares and flashback memories about the latest accident. He diagnosed a Post-Traumatic Stress Disorder and dysthymia. In his second report, Dr Walton confirms his earlier diagnosis of Post-Traumatic Stress Disorder and dysthymia. At that time, the plaintiff confirmed that she suffered widespread pain, particularly affecting her hips and left arm, as well as her legs becoming very weak;
(c) When examined by the consultant physician, Dr Blombery, the plaintiff complained of pain in multiple sites, pain in the left arm, pain in the left thumb and pain in both thighs overlapped to anterior surfaces, radiating up the hips and across both her upper buttocks and into the groin. This was present all the time and she had increased pain in her back between the scapulae, and some pain in the shoulders and neck. Dr Blombery obtained a history that she had no similar symptoms of pain prior to the subject transport accident. She notes that after the subject transport accident, she was left with ongoing and quite diffuse pain affecting the thighs, arms, shoulders, thoracic spine and elsewhere.
Dr Blombery was of the opinion that the subject transport accident triggered a pain sensitisation syndrome or fibromyalgia. He accepted that psychological factors were playing a very significant role in her presentation and tending to enhance her experience of pain;
(d) On 10 July 2018, the orthopaedic surgeon, Mr Michael Dooley, examined the plaintiff and also supplied a further report, dated 10 December 2018. In particular, Mr Dooley was of the opinion that the mechanism of the subject transport accident would be consistent with the plaintiff suffering soft-tissue injuries to the cervical and lumbar spine regions and some musculoligamentous damage, and some aggravation on naturally-occurring and age-related disc degenerative disease. Further, he noted that the accident occurred some five years prior to his examination, and that the plaintiff has described constant ongoing pain and major disability.
In particular, there was found a mild restriction of cervical spine movement and a moderate restriction of lumbar spine motion, together with some inconsistent signs relating to straight leg raising. There was no evidence of objective neurological deficit affecting the limbs. Radiologically, there was no evidence of degeneration at the C5-6, L4-5 and L5-S1 level. There was no evidence of major disc prolapse or specific nerve root entrapment. Accepting the soft-tissue injuries the plaintiff sustained in the motor vehicle accident, it was Mr Dooley’s view that the constancy and intensity of her ongoing pain and described disability are greater than one would expect to see for her organic condition;
(e) He expresses the opinion that the plaintiff had a psychological reaction to her situation that significantly influences her ongoing symptoms.
In particular, Mr Dooley did not believe that the plaintiff suffered from fibromyalgia. Indeed, he was critical with those that, rather than accept the plaintiff’s current presentation in the majority relates to her psychological condition, wished to give her disproportionate pain medicalisation in the form of a diagnosis;
(f) The consultant in rehabilitation and pain medicine, Dr Clayton Thomas, examined the plaintiff on 6 October 2018 and notes that the examination findings were diffuse and non-specific tenderness with no focality. Dr Thomas stressed that there was certainly nothing abnormal on examination findings, with no hard abnormal findings or no hard abnormal signs. In such circumstances, he was of the opinion that the plaintiff met the criteria for a diagnosis of fibromyalgia. In particular, he notes that she was highly vulnerable prior to the subject transport accident and this vulnerability was due to the pre-existing motor vehicle accident and the fatality which ensued. According to him, in the presence of high emotional distress, a subsequent injury, even a minor one, can lead to pain sequelae. He considered that there was no expectation that her condition would abate or resolve to any extent;
(g) Four days earlier, the consultant psychiatrist, Dr Andrew Firestone, obtained a very detailed history from the plaintiff, encompassing the first transport accident and the subject transport accident. After obtaining such a history and making a mental state examination, including apparently notes from the initial treating psychiatrist, Dr Chakrabarti, Dr Firestone was of the opinion that the plaintiff still suffered Post-Traumatic Stress Disorder at the time of the 2013 accident, and when queried whether the subject transport accident aggravated any pre-existing condition, he answered:
“Yes, in my opinion, to a considerable extent. In my opinion, the fibromyalgia described by her LMO which has resulted from the accident can equally be considered a somatization of anxiety, which has been precipitated by the accident.”[186]
[186]JCB 157
Dr Firestone was of the opinion that such aggravation still exists. Furthermore, he clarified that the pain she was suffering may prevent her from working;
(h) The consultant psychiatrist, Dr Nigel Strauss, examined the plaintiff in about November 2018 and obtained a history of the first transport accident.[187] He also had available to hm a report from Dr Al-Khafajy, who detailed the treatment for anxiety and depression in 2003, and a variety of other problems for which he was consulted, including dizziness and headaches and lower back pain, as well as abdominal pain, over the years. In particular, Dr Strauss obtained the history that following the subject transport accident, she had a sore back and found it difficult to walk, developed neck pain, and thereafter also suffered upper back pain, bilateral hip pain, as well as pain and paraesthesia in her left arm, and other parts of her body.
[187]This is recorded as occurring in 2017 rather than 2007. When one reads the context it is clear that this is a typographical error.
Dr Strauss, had available, many of the earlier reports from both treaters and medico-legal specialists. In his report dated 28 November 2018, Dr Strauss states:
“The accident in 2013 has been psychologically and physically damaging for this woman and I note that her preexisting psychiatric problems were worse following that accident.
I note that she has struggled since 2013 to cope with activities of daily living and with work. She has tried several jobs unsuccessfully and currently is unable to work. I note that she is currently applying for a disability support pension.
She lives a very dependent lifestyle and I note that her partner and her family spend a good deal of time caring for her. I note that she is restricted in what she can do and I note that her activities of daily living are limited.
Her quality of life is poor and certainly at interview she presented as a woman with significant anxiety and depression.
I do believe that this woman suffers from pain which is both psychologically and organically based. In other words she has a somatic symptom disorder or a pain disorder in that some of her pain is psychologically based on an unconscious level. There was nothing at interview to suggest that this woman deliberately over exaggerates her problems.
Apart from psychologically based pain she suffers from a chronic adjustment disorder with mixed anxiety and depressed mood and I note that she has been prone to anxiety and depression for a number of years.
She also suffers from a post traumatic stress disorder related to the 2007 incident and the 2013 accident.
…
She has to be considered to be totally and permanently incapacitated when all factors are considered. I cannot see her working again because of her physical and psychiatric difficulties.”;[188]
[188]JCB 172-173
(i) On 16 December 2019, the rheumatologist, Dr Geoffrey Littlejohn, examined the plaintiff, who, at that time, complained of significant pain and muscle tightness in her neck, mid and lower back, as well as the buttock, the hip regions, legs, calves and ankle joint regions. She also had a lot of chest pain. On examination, Dr Littlejohn noted that the plaintiff moved with caution to the examination couch and appeared to have a very stiff lower back. She had a restricted range of motion of the cervical and thoracolumbar spines due to muscle tightness and pain apprehension. There was no evidence of degenerative or inflammatory joint disease and neurological examination was unremarkable, with normal reflexes and sensory findings.
Dr Littlejohn found that the plaintiff had clinical features of fibromyalgia, and could not identify any other cause that could explain her widespread pain and tenderness. He confirmed that the pain consequences contributing to the plaintiff’s fibromyalgia are of an organic nature, describing fibromyalgia to be due to increased sensitivity within the pain-related neural systems of the body. He considered the physical injury – presumably the whiplash-type injuries suffered by the plaintiff in the subject transport accident – precipitated the fibromyalgia. He further was of the view that it was unlikely that the plaintiff’s diagnosed condition would progressively improve, although he did expect perhaps some improvement after medico-legal deliberations are resolved to her satisfaction.
In particular, he accepted that such condition involved her inability to return to employment, interference with activities of daily living and interference with social and recreational activities;
(j) The plaintiff also gave evidence that she was referred by her general practitioner to the rheumatologist, Dr Lim, in October 2019, and he also diagnosed her with fibromyalgia.
234After a consideration of all of the evidence, I tend to the view expressed by Mr Dooley and reinforced by the psychiatrists, that although the plaintiff most probably suffered some form of soft-tissue injury to her neck and back as a result of the subject transport accident, the symptoms which I find she has suffered since then involving her neck, back, arms, shoulders and general body pain, can be best described as being generated by psychological mechanisms rather than being the term “fibromyalgia”. Such symptoms came on very quickly after the subject transport accident in circumstances where, prior to that accident, she had, as already described in this judgment, particular incidents of back and neck pain for which treatment was received and appeared to be short lived. Whereas both the rheumatologists and orthopaedists agree, there does not appear to be any objective organic signs, whether they be discal or neurological, and this is best exemplified by the report of Dr Clayton Thomas, who made clear that he could find nothing objective which caused him to make the diagnosis of fibromyalgia.
235As I have pointed out, she has received all types of treatment and investigations over the years from her general practitioners and has been receiving pain medication over the years. In particular, she gave clear evidence at the time of hearing that she was taking, among other things, six Panadol Osteo per day to control what was considered to be, by her doctors, fibromyalgia.
236The plaintiff herself describes how such condition has impacted on her ability to do housework, her ability to cook, her intimate life with her partner, her general enjoyment of life and her ability to drive. Such complaints and limitations are corroborated both by her father, who has detailed observations of the plaintiff being in significant pain over the years since the second transport accident, and perhaps more particularly by her present partner, Mr Brett Dolan. All these consequences, because of the plaintiff’s perceived pain, were largely unchallenged by the defendant.
237I do accept that the plaintiff was most probably wrong about her commencement of employment in 2014; it does seem more likely to have occurred in late 2013. Again, the plaintiff was unsure as to stop and start dates of such employment, but made plain that she found such employment to be difficult given her ongoing complaints of bodily pain. It must be borne in mind that at no time has the plaintiff sought to diminish the fact that she returned to work, and such return to work must also be seen in the context that, after the break up with her partner, Leanne, it was necessary for her to buy out the property, for which she needed some money. Again, I accept that she did suffer other injuries when working at various jobs, but fundamentally, I do accept that throughout this period of time, she was experiencing the bodily pain which she had experienced ever since the subject transport accident and which impacted on every aspect of her day-to-day life.
238In particular, I refer to the allegation put to her – as recorded in the clinical notes – that at one stage she was working seventy-five hours per week. The plaintiff totally denied that this was ever the case, and, indeed, I tend to the view that such an allegation is inherently unlikely and most probably reflects some misunderstanding by the doctor in his recording of the plaintiff’s history. In particular, the plaintiff asserts that when she was working around that time, it was probably about three days a week. She never worked Mondays or weekends, and she would work no more than six to seven hours per day, performing management work in cafés or some service work.
239Again, it must be stressed that throughout this period of time, the plaintiff has been referred to a vast number of people to ascertain her condition. She has sought out chiropractors, physiotherapists, masseurs, and applied various gels to her body to try and control the pain that she suffers. When giving evidence on the final day of the hearing, she again confirmed the nature of the pain she was suffering and the various impacts that it has on her day-to-day life. Again, during her evidence, she explained that she could do some things, but is extremely limited in many things, and she contrasts this to the situation which existed prior to the subject transport accident when, physically, she was quite capable, and suffered nothing like the chronic experience of pain that she asserts now.
240To this end, I accept the opinions of Mr Dooley, Dr Firestone and, in general terms, Dr Strauss (although there are some minor errors in his report) and, indeed, all the doctors who suggest that in the absence of neurological or indeed discal issues, the plaintiff’s ongoing symptoms can be explained through psychological rather than organic causes.
241Before determining this issue, I do refer to the High Court decision of Transport Accident Commission v Katanas,[189] which involved an appeal by the Transport Accident Commission in respect of the majority decision of the Court of Appeal of the Supreme Court of Victoria (Ashley and Osborn JJA, Kaye JJA dissenting). The Transport Accident Commission submitted that the majority erred in holding that the primary judge misdirected himself as to the application of the so-called “narrative” test based on the Court of Appeal decision of Humphries and Anor v Poljak.[190]
[189] [2017] HCA 32
[190] Op cit
242At first instance, the trial judge effectively set up a spectrum ranging from mild anxiety not requiring treatment to the most extreme symptoms and consequences requiring extensive treatment with medication, and so to conceive the severity of a mental disorder or disturbance solely in terms of the extent of treatment and medication which the disorder or disturbance necessitated. It was submitted by those acting on behalf of the original plaintiff that the primary judge erred in reasoning that to qualify as “severe” a mental disorder must be at the upper echelon of those disorders in that “range”, was to engage in a false and incomplete process of reasoning which caused the assessment to miscarry.
243The majority of the Court accepted the plaintiff’s contention, and stated that although the extent of treatment made necessary by a psychiatric disorder may cast light on whether the disorder should be classed as severe, it was only one among a range of considerations that needed to be taken into account. The correct approach, so it was said by the majority in the Court of Appeal, was to bring into account all relevant circumstances personal to the claimant and apply the narrative test outlined in Humphries and Anor v Poljak.[191] Giving each identified relevant circumstance the weight which appears to be appropriate, the Court of Appeal also added in that task, a judge “‘will be assisted, of course, by personal experience of cases which have fallen on one side of the line or the other’”.[192]
[191] Op cit
[192] See Transport Accident Commission v Katanas (op cit) at paragraph [18]
244The High Court upheld the decision of the majority of the Court of Appeal, and stated:
“… Assuming that the majority were correct in their characterisation of the primary judge’s formulation of the ‘possible range’, it is clear that the range, as so formulated, was incomplete because it had regard to only one criterion of the comparative severity of a mental disorder or disturbance: the extent of treatment made necessary by the disorder or disturbance. That precluded consideration of other relevant criteria of comparative severity – for example, in this case, the severity of the respondent’s symptoms; the severity of their consequences for her; and the extent to which the symptoms or consequences inhibited the respondent’s daily activities, family life, social life and educational pursuits. Because the range as formulated was incomplete, it was prone to skew the assessment of severity and cause the assessment to miscarry.”[193]
[193] Op cit at paragraph [21]
245After a consideration of all the evidence, I am satisfied as a matter of probability, that the plaintiff has suffered a severe long-term mental or long-term behavioural disturbance or disorder, as informed by the Court of Appeal in Humphries and Anor v Poljak[194] and Mobilio v Balliotis.[195] To the extent that she has any soft-tissue organic symptoms following the subject transport accident, I consider that by far the majority of her symptoms are explained by psychological means rather than organic means.
[194]Op cit
[195]Op cit
246Furthermore, I am of the opinion that the plaintiff has suffered both pecuniary disadvantage and pain and suffering consequences which are “severe” when judged by comparison with other cases in the range of possible mental or behaviour disturbances or disorders.
247I find for the plaintiff in relation to the application under paragraph (c) of the definition of “serious injury”.
248I will hear the parties on the question of costs.
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