Sabharwal v Transport Accident Commission
[2021] VCC 1649
•5 November 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-04093
| JASPREET SABHARWAL | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 October 2021 | |
DATE OF RULING: | 5 November 2021 | |
CASE MAY BE CITED AS: | Sabharwal v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1649 | |
JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – transport accident – lower back injury – pain and suffering
Legislation Cited: Transport Accident Act 1986
Cases Cited:Richards v Wylie (2001) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129; State of Victoria v Glover [1998] VSCA 93; Abbas v Transport Accident Commission [2015] VSCA 217; Dwyer v Calco Timbers Pty LtdNo 2 [2008] VSCA 260; Johnson v Transport Accident Commission [2021] VCC 1396; Hooley v Transport Accident Commission [2019] VSCA 263; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
Ruling: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram QC with Ms S Lean | Slater and Gordon Lawyers |
| For the Defendant | Mr R Middleton QC with Ms B Myers | HWL Ebsworth Lawyers |
HER HONOUR:
1The plaintiff, Ms Jaspreet Sabharwal, makes an application pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) for leave to bring proceedings at common law, claiming damages for the injuries she sustained as a result of a motor vehicle accident on 19 May 2017.
2At the hearing of the application Ms Sabharwal relied on paragraph (a) of the definition of “serious injury” in s93(17) of the Act – namely, “serious long-term impairment or loss of a body function”. The body function relied upon is the function of the lumbar spine.
3Ms Sabharwal relied on two affidavits filed 8 October 2019 and 13 September 2021, as well as affidavits from her husband, Vikrant Sabharwal, her sister, Kirandeep Kaur, and a former work colleague Kamal Kaur. She also relied on a number of medical reports and records. Only Ms Sabharwal was required for cross-examination. The defendant relied on three reports of orthopaedic surgeon, Mr Peter Wilde, who examined Ms Sabharwal for medico-legal purposes.
Background
4Ms Sabharwal was born in Bahrain on 20 July 1984 and moved to India aged three. In India, she completed a Bachelor of Commerce at Punjabi University and subsequently a Masters of Commerce at Guru Nanak Dev University.
5In 2008 she migrated to Australia with her husband. She completed a further Masters' degree in Financial Accounting at Ballarat University. She was unable to find work at that time in that field and so obtained her Certificate III in Aged Care. She found work as a personal care attendant in the dementia ward at Greenhill Arcare, an aged care facility, for 30 hours a week.
6On 19 May 2017 she was involved in a motor vehicle accident when a car came through a roundabout and collided with the passenger side of her vehicle. Her vehicle spun before coming to a stop. Her head hit the side of her own vehicle and her steering wheel. Airbags were not deployed. The driver of the other vehicle left the scene. Ms Sabharwal called her husband who attended the scene and took her to the police station to report the incident. Her car was towed.
7She had a period of time off work and ultimately was unable to continue her job as a personal care attendant. In late 2019 she obtained work in administration and accounting at Australian Vinyls. In March 2020, due to the COVID-19 pandemic, she was given the option of continuing that employment from home, which she took. She increased her hours from 25 per week to 30 per week, and more recently took up a full-time position with the company, working 38 hours a week. Her nominal hours are 9.00am to 5.00pm, but as she works from home, she has flexibility about when she works her 38 hours. She is able to sit and stand as required during her working day. She works at a dedicated workstation.
8Initially her neck was sore following the accident. She did not attend hospital, but did go to see her general practitioner, Dr Chaudhary Panwar, at the Danaher Drive Medical Centre. She describes feeling “shocked and stunned”. Her neck was stiff, but this gradually resolved and her lower back gradually became painful, ultimately being the main focus of her concern. She no longer has any problem with her neck.
9On 24 May 2017 she had an MRI scan of her cervical spine which showed no abnormality and some mild degenerative disease and a mild disc protrusion at C6-7. Lumbar x-ray on 30 May 2017 was essentially normal, other than some slight scoliosis. She was initially managed conservatively by Dr Panwar with non-steroidal anti-inflammatory medications, Panadeine Forte, Valium, Voltaren gel, and heat packs. Dr Panwar notes that she developed post-traumatic stress disorder and was referred for psychological counselling, but did not pursue this.
10On 3 October 2017, she was “cleared for normal duties” by Dr Panwar, but returned on 16 October 2017 with “return of pain symptoms when she went back to work”. She was given a certificate for three days’ leave and was advised to seek specialist assessment as to her current work capacity.
11After this, she started seeing a different general practitioner, Dr Cindy Atalan at the Epping Plaza Medical and Dental Clinic. It is unclear from her affidavit material or from her oral evidence when she returned, or attempted to return, to work as a personal care attendant. She agreed in cross-examination that her general practitioner and the Transport Accident Commission (“TAC”) had cleared her to return to work, but her employer resisted her return to work.
12She commenced physiotherapy for her lower back pain with Rodney Lincoln. On 19 December 2017 she attended neurologist Dr Marion Simpson because of her persistent back pain. Nerve conduction studies revealed no abnormality and Dr Simpson concluded that her pain was musculoskeletal in nature.
13Ms Sabharwal continued to have pain which was conservatively managed. She had no further investigations until 25 October 2019 when she had an MRI scan which showed a small annular disc bulge at L3-4 and L-4-5. There was no neural compression noted.
14On 16 March 2020 she began attending a pain specialist, Dr Gavin Weekes, who recommended right sacroiliac joint block for diagnostic purposes. Funding for this procedure was refused and Ms Sabharwal did not proceed with it. Dr Weekes noted in his report that she had decreased ability to perform activities of daily living such as vacuuming.
15In July 2020 she was reviewed by Dr Weekes and had a trial of Baclofen which she found caused drowsiness, daytime somnolence and dizziness. In August 2020 she changed to Norflex but found this caused headaches and had little impact on her back pain.
16On 19 October 2020 she again saw Dr Weekes. At this time she reported onset of numbness extending down her right leg. Dr Weekes referred her for an MRI scan, but that has not been undertaken. Ms Sabharwal said that she had started working full time, her mother was unwell, and with the pressures of the COVID lockdown and home schooling she has found it too overwhelming to arrange for an MRI scan to be performed.
17Shortly before the hearing, on 4 October 2021, she had a further review with Dr Weekes, who again recommended an MRI scan for further investigation. Ms Sabharwal gave evidence that she intended to proceed with this MRI scan at a suitable time.
18Ms Sabharwal is having no ongoing regular treatment. Due to the COVID lockdown she does physiotherapy exercises herself at home. She uses Deep Heat patches approximately every second day. She uses Panadol Osteo and Nurofen occasionally.
19She has been diagnosed with a partially-resolved chronic adjustment disorder with anxious and depressed mood, and partially-resolved post-traumatic stress disorder (“PTSD”) symptoms. She has received no treatment or medication for her psychological condition.
Expert opinions
20Dr Weekes’ reports a single focal point of tenderness over the right sacroiliac joint and recommends a diagnostic injection of local anaesthetic and steroid into the sacroiliac joint. He otherwise notes that she has complained of quite severe chronic lower back pain, which has persisted and has not improved, and that he cannot say her condition has stabilised as she is still undergoing investigation.
21Dr Nathan Serry, psychiatrist, notes that Ms Sabharwal was a clear, thoughtful and articulate historian who presented information without embellishment. She presented at her first assessment in 2018 as rather anxious and described having been particularly traumatised by the accident circumstances. He said “[t]he most appropriate diagnostic consideration is that of an adjustment disorder with anxious and depressed mood and with features of traumatisation consistent with PTSD”. He says the condition is of moderate severity. The wording of his report leaves me in some doubt as to whether he has made that diagnosis, or whether it is simply a diagnosis that could be considered. In any event, in his subsequent report of 8 April 2021, he reports that Ms Sabharwal would be considered to now have a partially-resolved chronic adjustment disorder with anxious and depressed mood and a partially-resolved PTSD, both of mild severity. He notes in his report that her pain levels had diminished since his earlier report and her overall level of functioning has improved. He notes also that the severity of the impact of the accident, both physically and psychologically, has diminished over time. He reports a favourable prognosis and does not consider that she needs any mental health intervention.
22Mr Russell Miller, orthopaedic surgeon, noted that there was no neurological deficit, nerve conduction tests were normal, sacroiliac and hip joints were unremarkable on x-ray, there was no spondylolisthesis, loss of vertebral height or significant degenerative change in the lumbar spine. An MRI scan in May 2017 demonstrated minor disc and degenerative disease in the cervical spine, but her cervical symptoms have subsequently resolved. Mr Miller diagnosed a musculoligamentous strain and aggravation of degenerative disease, with the likely development of a pain syndrome. He considered that she would have difficulty with work requiring repetitive bending and lifting, or lifting weights over five kilograms. He considered her unable to return to her pre-injury employment. He noted in his report that she had stated that she was previously a very social person and is now less social, but “did not otherwise nominate specific leisure or recreational pursuits” that had been impacted. He opined that it was reasonable to conclude that her spinal symptoms would impose some restrictions on physical and recreational activities.
23Professor Richard Bittar, neurosurgeon, noted that while he had not been able to perform a neurological examination due to the COVID restrictions, he thought it extremely unlikely that she had any evidence of radiculopathy, given her presenting symptoms. However he considered that she required further diagnostic workup to confirm whether the sacroiliac joint was generating her pain. He said that the level of pain Ms Sabharwal was experiencing was more accurately described as “somatic pain” and “[h]er presentation fits with somatic pain reasonably well”. I pause here to note that somatic pain refers to a condition where pain receptors are activated to feel pain, even in the absence of an organic cause of the pain.
24Dr Peter Blombery, vascular physician and pain consultant, diagnosed her with an aggravation of a pre-existing degenerative lumbar spine which was complicated by the development of a pain syndrome in the affected area with sensitisation of pain nerve pathways. He considered her condition stable and noted that she had significant limitations in terms of her domestic, social and leisure activities. He considered her pain would fluctuate, but there was unlikely to be a marked change in the overall level.
25Mr Peter Wilde, orthopaedic surgeon, also diagnoses an aggravation of pre-existing spondylosis. He opines that complete resolution of her symptoms is unlikely, but considers those symptoms to be mild. Like all the other experts who expressed a view on her employment, he considers that she is not fit for her pre-injury employment.
26There is not a great deal of dispute between the experts as to the injury Ms Sabharwal suffers.
Consequences for Ms Sabharwal
27In her affidavit dated 8 October 2019, Ms Sabharwal says she has continued to be troubled by spinal pain, particularly affecting her lower back, which extends across the middle part of her back and into her right side. She says the level of the pain varies but on occasions can be up to ten out of ten. The pain increases with physical activities or if she strains her spine. The pain tends to radiate to her right leg. She says bending has become problematic and she is “heavily dependent” on her mother and husband to assist in maintaining the house and looking after her children. She says she has difficulty getting comfortable and her sitting and standing tolerances are reduced. Her pain increases the longer she walks. Her husband does most of the work in the garden. Her social life is not “nearly as active” as it previously was, and this causes her anxiety and depression.
28In her affidavit of 13 September 2021, she says she is never pain free and that her pain can reach a severity of eight out of ten when she over exerts herself. She resisted a suggestion this indicated that her pain had improved from a level of ten out of ten on her worst days, to an eight out of ten upon “over exertion”. She said that she now knows her “boundaries”, so she “never tr[ies] to push those boundaries”.
29She says in addition to the variable lower back pain, she gets aching in her buttocks and lower limb, particularly on the right side, and recently has had some problems with pins and needles extending into her calves and feet. These symptoms can come on numerous times a day, particularly if she sits for too long. She says she can walk for about 15 or 20 minutes, but it is increasingly painful after this time. She avoids bending or lifting as these activities create “significant increases” in her level of symptoms, but says that with young children there is sometimes no way to avoid bending and lifting. She says she continues to “be restricted in [her] social activities, particularly because of [the] sitting and standing” nature of those activities.
30She has found that her sleeping habits are “increasingly disturbed”. She usually wakes in pain during the night and has difficulty getting back to sleep which leaves her tired and lethargic during the day. She has feelings of anxiety and depression and some flashbacks and recollections of the accident itself.
31In cross-examination she said the main thing that she was restricted from doing in terms of her social activities was dancing. She said she loves dancing and before the accident she was doing a lot of dancing “and things like that”, which she stopped afterwards. There was no elaboration on this, and it was the first and only mention made of dancing, other than a reference in the report of Professor Bittar that “[h]er recreational activities are moderately impacted. She previously enjoyed folk dancing.” There is no evidence before the Court as to how frequently she engaged in dancing prior to her accident. She was asked why she had not mentioned dancing in either of her affidavits and she gave no response.
32Aside from assertions that her social activities are restricted and her lifestyle has been adversely affected, there is little evidence about exactly what the consequences of her injury have been on her social and domestic life.
33She agreed that, since her accident, she remains responsible for running the house and does most of the cooking. Her husband does the vacuuming, which she previously did. She does the clothes washing, but if she is having a “hard day” her husband will hang the washing up. She said she does not do much gardening; on some occasions she might water the plants but that was all. There was no evidence as to her involvement in gardening prior to the injury. When asked what prevented her from other social activities, such as going to a restaurant or cinema, (lockdown restrictions permitting) she said that “[w]ith cinemas, I – with the sitting, sometimes it is hard, but otherwise – going out like for longer trips, which now like I have to be conscious how I’m going to plan those things”.
34Her husband said, in his affidavit dated 13 September 2021, that she struggles with her “daily lifestyle as a result of the pain she experiences” and that he and Ms Sabharwal’s mother assisted with most of the domestic tasks. He otherwise endorses Ms Sabharwal’s complaints of pain and expresses what would probably be classified as medical opinions about her prognosis and psychology. He said that her pain had affected the intimate side of their relationship. She gave no evidence about this.
35There was no evidence from Ms Sabharwal’s mother, with whom she lives. Ms Sabharwal gave evidence that her mother has a heart condition and has been unwell over the past year.
36Her former colleague, Kamal Kaur, notes that after Ms Sabharwal’s accident she was unable to perform the heavier aspects of aged care work and that, to his observation, she “continued to suffer from persistent lower back pain which she complains of as extending into her legs as well.
37Ms Sabharwal’s sister, Kirandeep Kaur, notes that before the injury Ms Sabharwal was “socially active within our community”. She says that Ms Sabharwal now avoids activities “which might be thought liable to place such strain on her spine”.
38There is a suggestion in the medical material that she has, or may have, a pain syndrome or be experiencing somatic symptoms. Ms Sabharwal says that a pain syndrome is excluded by the observational findings of Dr Blombery. Ms Sabharwal further says that if she does have a pain syndrome, then that is a consequence of the physical injury and can be taken into consideration in determining the application.
39Nowhere is it suggested that her physical symptoms are entirely or largely a product of a psychiatric injury and indeed any psychiatric injury that she has is not productive of significant restrictions and does not require any treatment. Therefore, in the Richards v Wylie[1] formulation, to the extent that her symptoms may be the result of a pain syndrome, or are somatic in nature, that is a consequence that results from the physical injury, rather than the physical injuries being a product of a psychiatric impairment. To use the words of counsel, I am satisfied that, to the extent that her physical symptoms may have a psychiatric component, this is not a case in which the “tail is wagging the dog”.
[1] (2001) 1 VR 79
Pecuniary disadvantage
40Ms Sabharwal claims that one of the consequences of her injury is pecuniary disadvantage and that this, in combination with her pain and suffering, causes her injury to meet the threshold of “very considerable”.
41As set out above, Ms Sabharwal has three university degrees, a Bachelor and Masters of Commerce, and a Masters of Financial Accounting. In cross-examination she said that she had undertaken the commerce degrees at the behest of her parents. She said accounting was not the career she had wanted, but it was her parents’ wish, and she could not refuse her parents. At the time she was financially dependent on her parents.
42She said she came to Australia as “I know that this country is a country of opportunities” and that her primary concern in selecting her course was to obtain permanent residency. She said “I didn’t think about that one particular career at that time”. She saw financial accounting as “the only option” to obtain permanent residency.
43In cross-examination she agreed that she had not come to Australia in order to work as an aged care attendant. She said that she was more interested in doing nursing, and that was why she “joined aged care”. She saw the financial accounting course as more “compatible” with her existing education, but said that “because of some reasons” she wanted to work as a nurse. This evidence in cross-examination was the first and only mention of a desire to work as, or undertake training to be, a nurse. Her affidavits were silent about her preferred career path.
44The experts all agreed that she would be unable to work in her former occupation as a personal care attendant.
45In the medical report of Dr Serry of 13 November 2018 he records ‘She said that she has always loved her work as a [personal care attendant] but now feels unable to continue with this work and this causes her great apprehension”. In his subsequent report of 8 April 2021, he records that when he previously assessed her she was very anxious about what she might do in the future, but had obtained her current job and was “very determined” to maintain that job. He recorded that “[s]he said that it has been a major career change for her, having to relinquish a job that she very much loved and now having to learn a new set of skills”. There was no mention in this report of any intention or desire to pursue nursing as a career. This is the only mention that she loved her job as a personal care attendant. He notes in that same report that she is “very pleased” about obtaining her current position and is “very focused on her work”.
46Importantly, her affidavits are silent on the issue of her preferred work and her desired career path, as are the affidavits of her husband, sister and former colleague.
The plaintiff’s credit
47The defendant showed video surveillance footage of Ms Sabharwal taken over numerous days – 14-16 November 2019, 3-6 December 2019 and 14 December 2019.. The footage variously showed Ms Sabharwal getting in and out of her car, bending down to help her son tie his shoelaces, lifting her son from his safety seat in the car, walking briskly from the car into her office, standing on the street talking to neighbours and generally moving around in a free and unencumbered manner. Ms Sabharwal agreed that the footage showed her undertaking those activities and agreed that she could walk and drive without restriction for short periods of time. She said that although bending down causes her pain, with a young child she sometimes has to do it “when he is being stubborn”.
48The video footage did not demonstrate evidence of a person in constant pain or walking with restrictions or limitations on mobility. Given the number of different occasions on which she was filmed, and the consistency of her presentation on those occasions, I am satisfied that her back injury does not impact on her ability to get in and out of the car, and to walk to and from her work and her car, or to stand and engage in relatively short social interactions. It tends to demonstrate that she is not in constant or unremitting pain, and that she drives with ease and confidence.
49On the other hand, the footage did not show Ms Sabharwal doing anything that she has said she could not do, and did not tell me anything about her ability to walk for longer than 20 minutes, or drive for extended periods. To that extent it does not damage Ms Sabharwal’s credibility. I accept that there are occasions when Ms Sabharwal would have to undertake activities, such as bending to tie shoelaces and lifting her son from a car seat, even when those activities cause her pain.
50Generally I accepted that Ms Sabharwal gave her evidence in a straightforward and honest way and did not try to exaggerate or embellish her account.
51However the fact that her love of dancing, her desire to train as a nurse and her enjoyment of her work as a personal care attendant were not mentioned in either of her affidavits, or any of the other affidavits filed in support, leads me to treat this evidence with some caution.
52I have no reason to doubt that Ms Sabharwal loved dancing before her injury. However her silence about this in her own affidavits and the supporting affidavit material, suggests that its loss has not been a significant issue for her.
53Similarly, while she may have harboured some interest in pursuing nursing, the fact that she had not taken any steps to study this, did not mention it in either of her affidavits, nor in any of the histories she provided to doctors, and that none of the supporting affidavits mention her interest in a career in nursing, indicates to me that this was not a highly significant or strongly expressed desire. I cannot conclude that the loss of this potential career path was of great significance to her.
54As far as her work as a personal care attendant goes, the sole mention of her enjoyment of this arises in Dr Serry’s report. She did not mention any particular love or pleasure she derived from this occupation in her affidavits, nor in her oral evidence. While she may well have enjoyed this work, her concern expressed to Dr Serry appears to be focused on her apprehension as to whether she would be able to obtain any work in the future. She agreed that she had not had ambitions to work as a personal care attendant when she moved to Australia, and in her affidavit suggested that she entered this line of work after being unable to find work relevant to her area of study in commerce or accounting. She gave no evidence at all as to her feelings about her work as a personal care attendant and it was only in submissions that it was put that this was a significant loss to her. I am not satisfied that her inability to pursue work as a personal care attendant is a loss of significance to her.
Analysis
55The issue in this case is whether the consequences of the injuries Ms Sabharwal has suffered meet the test of serious long-term impairment of a body function that, when compared to a range of possible impairments or losses, can be fairly described as at least “very considerable” and certainly more than “significant” or “marked”.[2]
[2] Humphries & Anor v Poljak [1992] 2 VR 129 at 140
56The plaintiff relies on the fact that she has lost the ability to undertake physically taxing work, such as is required by aged care, to demonstrate a pecuniary disadvantage, by virtue of the loss of flexibility in her work. This pecuniary disadvantage, combined with her pain and suffering which includes her inability to work in this employment which she enjoyed, is said to be a very considerable consequence for Ms Sabharwal.
57In State of Victoria v Glover[3] (“Glover”)the Court accepted that an injury restricting a serving police officer from pursuing overtime or from seeking promotion in other branches of the force, and in acting in higher duties. meant that he was denied the “option of employment flexibility”. The Court found that the lack of flexibility impaired his capacity to do different work in the future. Although he had suffered a present loss of income, that was a relatively minor consequence in determining whether there had been impairment of the relevant kind. The impairment may be “serious”, although it does not at present result in any substantial loss of income.
[3] [1998] VSCA 93 at paragraph [30]
58Although counsel for the defendant submitted that the usefulness of Glover has diminished over time, it was cited with approval in Abbas v Transport Accident Commission[4] (“Abbas”). In that case, Mr Abbas sustained injuries to his dominant hand. At the time of the hearing Mr Abbas was undertaking a post-graduate Masters’ degree and was working part time as a security guard. His income since his accident had increased fairly significantly. However he gave evidence that prior to his injuries he had been:
“… passionate about cooking and catering, but that his ability to cook and cater had now become very restricted. As a result of his injuries, he said that he had to abandon his course in hospitality and commercial cookery. This was a matter which was of significance to him”.[5]
[4] [2015] VSCA 217
[5] Ibid at paragraph [15]
59He was now pursuing a career path which he did not really enjoy. The Court found that there was force in the applicant’s submission that his injuries had caused a loss of flexibility in the workforce, which loss of flexibility relevantly satisfies the description of “pecuniary disadvantage”. The Court went on:
“… The fact that the applicant might always be able to find and hold down employment notwithstanding his injuries does not preclude proper consideration of the issue of pecuniary disadvantage caused by a real limitation that has been imposed upon the applicant in respect of other employments for which [he] has demonstrated suitability.”[6]
[6] Ibid at paragraph [37]
60In Dwyer v Calco Timbers Pty LtdNo 2[7] (“Dwyer”), the Court considered the fact that the plaintiff had had to desist from the work which he enjoyed was one of the factors to be considered in assessing the seriousness of the consequences for the worker. In that case he was able to continue to perform heavy work, but not very heavy work, and had, after his injury, successfully started his own business which accommodated his impairment.
[7] [2008] VSCA 260
61Counsel for Ms Sabharwal submitted that Ms Sabharwal enjoyed her work as a personal care attendant and that, as this was work no longer available to her, she has consequently lost the flexibility she would otherwise have had. That loss of flexibility, it is submitted, necessarily represents a pecuniary disadvantage to her.
62Ms Sabharwal does not submit that she has suffered an actual pecuniary loss, as she is currently earning more than she was prior to the accident. The authorities are clear that this is not the test, and the fact that a plaintiff might have employment options limited because of an injury, or may have lost a career they were passionate about, albeit that they have found work that pays as well or better, can be sufficient to meet the test.[8]
[8] See for example Johnson v Transport Accident Commission [2021] VCC 1396 at paragraph [39] and Hooley v Transport Accident Commission [2019] VSCA 263 at paragraph [50]
63However I do not understand that the authorities stand for the proposition that the restriction of any employment opportunity necessarily represents a pecuniary disadvantage. The question is whether such a loss results in a pecuniary disadvantage for this particular plaintiff.
64In this case I cannot be satisfied on the evidence that Ms Sabharwal had any particular desire to remain as a personal care attendant for the remainder of her career, nor am I satisfied that it was her intention to move into nursing. If she was to lose her current employment, I accept that she would be unable to return to work as a personal care attendant, but I am not satisfied that this represents a real loss to her. There is no reason to think that, if she was to lose her current job, she would be unlikely or unable to find similar employment. This is work for which she is highly qualified. She has not lost the opportunity for more highly remunerative work, nor has she lost a career path about which she was passionate, nor is she now so limited in her work options that, if she lost her current job she would be unlikely to find alternative employment.
65I consider that, rather than assessing the impact on her work as a pecuniary disadvantage in line with Abbas and Glover, Ms Sabharwal’s circumstances are more akin to the worker in Dwyer, that is, that she has had to desist from a line of employment that she previously enjoyed. The loss of that employment, on its own, is insufficient to establish either a pecuniary disadvantage or meet the serious injury threshold on its own.
66The analysis I must undertake is to examine the evidence presented by Ms Sabharwal and the defendant and determine whether she meets the test of having suffered consequences that are “at least very considerable”. This analysis must be informed by what has been lost, as well as by what has been retained,[9] and must be assessed by comparison with other cases in the range of possible impairments or losses.
[9] Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592
67Ms Sabharwal has given evidence that she has variable pain that is sometimes severe, but that she has learned the limit of her boundaries and does not push those boundaries. She said her pain causes her to be restricted in her social and lifestyle activities. Other than restrictions on her ability to go dancing, the need to plan activities more carefully and her inability to vacuum, there was very little evidence before me to give me a sense of what she has lost, compared with what she has retained. Her sister mentioned that she was socially active within the community, but I have no information about what that social activity involved, its importance to Ms Sabharwal, how she is now restricted from that activity and the impact of that restriction on her.
68I have noted above the limitations of the evidence presented by Ms Sabharwal as to the impact of her injury on her life. I accept that she has pain, which is variable and can be severe. I accept that her pain can interfere with her sleep and that this can cause her to be tired the next day, though there was no evidence or suggestion that this interferes with her capacity to work or manage her household responsibilities. The degree of her pain can on occasion be severe, but she is able to generally manage it with Deep Heat patches, physiotherapy exercises and use of non-prescription medication. There is no radiculopathy nor any pathological findings. She has some secondary psychological sequalae, but this has required no treatment or medication. I do not take into account the symptoms of post-traumatic stress disorder, as they are not consequences of her physical injury, but rather consequences of the accident itself. Similarly, to the extent that she continues to feel any apprehension about driving or being a passenger in a car, that is not a consequence that is relevant to my assessment.
69She is able to work full time but I accept that she ought not be treated less favourably because she is getting on with life.[10] She is a relatively-young woman and the consequences of her injury will be suffered for a longer period of time, and are therefore more significant than to a comparable person of more advanced years.[11] She will have to live with her injuries for a long time. I accept that, given the passage of time since the accident her current condition is likely permanent.
[10] Dwyer at paragraph [3]
[11] Stijepic v Once Force Group Aust Pty Ltd & Anor [2009] VSCA 181
70The evidence supports a finding that Ms Sabharwal suffers from some pain on a regular basis, but given that she takes no prescriptive medications, that her treatment is confined to home physiotherapy exercises, that there have been very limited investigations since the accident began and that she has not pursued further diagnostic investigations, I am not satisfied that she suffers from regular severe or debilitating pain.
71An analysis of what she is restricted from doing must necessarily include some analysis of what she is still able to engage in post injury:
“… in assessing whether the impairment consequences of injury are serious, one should consider not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.[12]
[12] Dwyer v Calco Timbers Pty Ltd (No 2) (supra) at paragraph [27]; see also Kelso
72There is simply a dearth of evidence about what it is that she is said to have lost, other than the opportunity to work as a personal care attendant, which I am not satisfied represents, on its own, a serious consequence for her. On the evidence before me I am not satisfied that the severity of her pain and its consequences for her life, including the resultant loss of employment flexibility, meet the test of “at least very considerable”.
73Accordingly the application is dismissed.
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