Saez v Transport Accident Commission
[2020] VCC 686
•28 May 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-04246
| CATHERINE SAEZ | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 and 28 April 2020 | |
DATE OF JUDGMENT: | 28 May 2020 | |
CASE MAY BE CITED AS: | Saez v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 686 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – whether injuries caused by transport accident – relevant principles
Legislation Cited: Transport Accident Act 1986, s93(4)
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Demmler v Transport Accident Commission [2018] VSCA 284; Petkovski v Galletti [1994] 1 VR 436; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1; Principe v Transport Accident Commission [2016] VSCA 205
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Britbart QC with Mr M Clark | Burt & Davies |
| For the Defendant | Mr R Attiwill QC with Ms V Katotas | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s93(4) of the Transport Accident Act 1986 (“the Act”) for injury suffered by the plaintiff in a transport accident which occurred on 18 May 2014 (“the 2014 transport accident”).
Relevant legal principles
2 Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The application is brought pursuant to 5paragraph (a) only of the definition of “serious injury”.
4 The definition of “serious injury” as set out in s93(17) of the Act is, relevantly, as follows:
“‘Serious injury’ means –
(a) serious long-term impairment or loss of a body function;
… .”
5 The plaintiff’s case is that by reason of the transport accident, she has suffered injury to her lumbar spine.
6 In forming a judgment as to whether the consequences of an injury are “serious”, the question to be asked is “can the injury, when judged by 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’”.[1] It has been held that the relevant consequences to a plaintiff will relate to pecuniary disadvantage and/or pain and suffering.[2]
[1]Humphries & Anor v Poljak [1992] 2 VR 129 at 140
[2]Humphries & Anor v Poljak (ibid); see also Demmler v Transport Accident Commission [2018] VSCA 284 at paragraphs [52] and [56]-[57]
7 In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of a “serious injury”, as set out in s93(17), the relevant injury must also be long term.
8 The plaintiff bears the burden of proof on the application. The standard of proof is on the balance of probabilities.
9 The Court must assess whether the injury is “serious” for the purposes of the Act, as at the time the application is heard.[3] In assessing the “consequences” of the injury, the Court is required to consider the consequences to this particular plaintiff, viewed objectively, arising from the transport accident.[4] The task of assessing the pain and suffering consequences of an injury, has been held to be largely a question of impression and value judgment. [5]
[3]See s93(6) of the Act, which states that leave must not be given by a court unless the court “is satisfied that the injury is a serious injury”. I take that expression to mean that the injury is “at the time at which the application is heard,” a serious injury for the purposes of the Act.
[4]Petkovski v Galletti [1994] 436 at 442; Demmler v Transport Accident Commission (ibid) at paragraph [52]
[5]see Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
10 In determining the application, the Court must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[6]
[6]See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1 at paragraphs [23]-[26]
11 It is well understood that a person who is injured is to be compensated only for such injuries as are proven to have resulted from the relevant accident.[7]
[7]Petkovski v Galletti (ibid)
12 Applying the principles set out in Petkovski v Galletti,[8] in an application like this, where it is alleged that the plaintiff may have had a relevant pre-existing condition, it is the consequences of the aggravation of that injury which must be assessed. To undertake this task, the plaintiff must establish what injury was caused by the transport accident. I must then determine the consequences of that injury to the plaintiff, by comparing the plaintiff’s condition before and after that injury.[9] If I am satisfied that the additional impairment is “serious” and long term, then the plaintiff will have demonstrated that she is suffering from a “serious injury” under the Act.[10]
[8](ibid) at 443
[9]Petkovski v Galletti (ibid) at 444
[10]Petkovski v Galletti (ibid)
13 In his opening, counsel for the defendant conceded that the plaintiff was presently suffering from a “serious injury” as that term is defined in the Act. On that basis, the only matter for the Court to consider is whether the plaintiff has proved to the requisite standard, that the 2014 transport accident caused the consequences which she presently experiences. The defendant’s contention was that on the materials before the Court, causation could not be proven by the plaintiff to the requisite standard.
14 The plaintiff relied upon two affidavits, gave viva voce evidence and was cross-examined. The plaintiff also relied upon affidavits from her mother, Perpetua Del Carmen Saez, and her workmate, Dirk Jansen, and a signed statement of her friend, Svetlana Natalie McIntyre. None of the lay witnesses were required to attend for cross-examination.
15 In addition, both parties relied upon medical reports and other materials which were contained within Court Books tendered in evidence.[11] The defendant did not require any of the plaintiff’s treating medical practitioners or medico-legal experts to attend for cross-examination.
[11]The Plaintiff’s Court Book was marked as exhibit (“Ex”) P1; the Defendant’s Court Book was marked as Ex D1
16 I have read all of the tendered material. In this Judgment, I will refer only to the relevant parts of the tendered materials.
The Plaintiff’s background and medical history
17 The plaintiff was born in August 1986.[12] She is presently thirty-three years of age.[13] She currently shares a house with her mother.[14] The plaintiff is single and has no dependents.[15]
[12]Ex P1, p5
[13]Ex P1, p22
[14]Ex P1, p38
[15]Ex P1, p5
18 The plaintiff completed Year 12 in 2004. Following that, she commenced a Diploma of Legal Practice Management at the Footscray Campus of Victoria University. She continued with that course for twelve months, before moving on to temporary work at a call centre.[16]
[16]Ex P1, p5
19 In July 2011, the plaintiff obtained employment with Tenix Solutions. At the time of the 2014 transport accident, she had been working for Tenix Solutions for four years.[17]
[17]Ex P1, p6
20 In July 2012, the plaintiff was made a permanent employee at Tenix Solutions. She was working between 38 and 40 hours per week, earning $35 per hour. She worked from 8.30am to 5.00pm, Monday to Friday. Her job was in the Quality Assurance area. It was mainly seated, but she also had to attend numerous meetings. Her job did not involve heavy physical work, but it did involve a lot of prolonged standing and sitting, with intense focus and concentration.[18]
[18]Ex P1, p6
21 Prior to the 2014 transport accident, the plaintiff enjoyed various leisure activities, including recreational cycling, drawing, sketching and photography. She regularly took walks in the local park. She considered herself to be fit and healthy.[19]
[19]Ex P1, p6
22 The plaintiff has suffered from regular migraine headaches over the years. They commenced when she was about nine years of age. She has been prescribed various medications to treat these migraines. Some of the medications have proven more effective than others. Prior to the accident, she tended to suffer a migraine headache approximately every two to three months. Sometimes the headaches were bad enough to force her to have a day off work, although this was not every time she had a migraine. She had learned to manage the migraines as best she could.[20]
[20]Ex P1, p6
23 Prior to the accident, the plaintiff had suffered, on three separate occasions, from incidences of low back pain. Those incidences occurred on or about 18 July 2007,[21] 20 December 2010[22] and 4 April 2018.[23] The plaintiff had not experienced any low back pain in the three years prior to the transport accident.[24]
[21]Ex P1, p74
[22]Ex P1, p84
[23]Ex P1, p88
[24]Ex P1, pp 90-99
The accident
24 The plaintiff described the accident in the following terms:
“… I was injured in a transport accident that occurred at about 7.15pm on 18 May 2014.
I had been at a friend’s baby shower and I was returning home when the accident occurred.
I got off the train at Footscray Station and got into a taxi … to head home.
I got into the front passenger seat of the taxi … it is a 60 kph zone. I believe that the taxi was probably travelling at around that speed, but I can’t be sure.
I did notice that the taxi driver was somewhat distracted. He seemed to be looking at a screen in his vehicle. I observed another motor vehicle that was stationary a short distance ahead of us. This other motor vehicle was waiting to turn right … It became apparent to me that the taxi driver had not seen this vehicle and I yelled out ‘look out!’. The taxi driver then saw the vehicle and tried to swerve to the left to go around it. He didn’t have enough time and as a consequence the front driver’s side area of the taxi collided with the left hand rear corner of the stationary vehicle.
It was quite a big impact. The taxi sort of sideswiped the stationary vehicle causing the taxi to veer sharply to the left. The taxi then crossed over the left-hand lane, struck the kerb and mounted the footpath, hitting a clearway pole and some sort of Telstra pillar situated nearby. Contact with the pole and pillar brought the taxi to a sudden halt.
It was a shocking experience. On reflection, I am sure that I was in shock at the time …
…
At the scene I wasn’t immediately aware of any specific injury …
Eventually, another taxi turned up … and drove me home.
… After about 10 minutes, I started to fell tightness developing in my shoulders and neck. I had discomfort near my collar bone … About an hour afterwards I thought I had better go to bed and rest.
The following morning I woke up in quite severe pain. The pain was mainly in my neck, shoulders and between my shoulder blades. I felt stiff and sore. I was in quite a lot of pain.
… I had developed the back symptoms within a few days of the accident. Pain was extending from my neck down into my back; it was travelling down my spine. My back was feeling sore and weak. My low back felt as if it was under pressure. Whenever I sat down I felt that I needed to push my body up to take pressure off my low back.
I had two or three visits with the physiotherapist, but I didn’t feel that I was getting any improvement. … .”[25]
[25]Ex P1, pp6-9
25 Things improved to some extent over time for the plaintiff. Within about six months of the transport accident, her neck “seemed to clear up”. She kept having problems with her low back.[26]
[26]Ex P1, p9
26 While the continuous pain that she had been experiencing in her low back started to abate, she continued to have a feeling of “weakness” in her low back. The “weakness” was such that it necessitated her having to sit down to put on her pants and shoes.[27] She had to move cautiously and deliberately. She had “a constant awareness that my back wasn’t right”.[28] She thought that her back “felt susceptible”.[29] In general, the plaintiff was not “getting much in the way of pain,” but on occasions she did experience pain. On some of those occasions, when the pain was particularly bad, she would return to see her general practitioner. She had an awareness that she needed to “change the way I did things in order to avoid back pain”.[30]
[27]Ex P1, pp9-10
[28]Ex P1, p10
[29]Ex P1, p10
[30]Ex P1, p10
27 Throughout the eighteen months following 2016, she continued to have ongoing symptoms in her low back. She describes this as “an ongoing low-level pain”. During this time, she would have regular flare ups of pain which would last for two to three days and sometimes result in her not being able to work. Throughout this time, she also felt that her back remained weak and somewhat unstable.[31]
[31]Ex P1, p10
28 In June 2018, the plaintiff developed a severe exacerbation of the pain in her back. She woke in the morning with particularly bad pain, which worsened on her way to work. She was sent home from work with instructions to see her general practitioner. She had a short period of time off work at this stage. She had experienced frequent exacerbations over an extended period of time since the accident, “but this was without question the worst up to that point in time”.[32]
[32]Ex P1, p10
29 On 2 July 2018, the plaintiff recalls rolling over in bed and experiencing excruciating pain. It was bad enough to stop her from getting out of bed and going to the bathroom. Eventually, she managed to get out of bed and get to the bathroom by holding onto the wall. She was very distressed at the time.[33] She called an ambulance and was eventually taken to Footscray Hospital.
[33]Ex P1, p10
30 The plaintiff remained in hospital for sixteen days, admitted firstly to the Footscray Hospital and later, transferred to the rehabilitation ward, where she remained until her discharge on 17 July 2018. During her time in hospital, she underwent radiological investigations, including x‑rays and MRI scans. She was seen by a neurosurgeon. She underwent inpatient rehabilitation. She was eventually discharged from hospital on pain-killing medication, including Palexia, Lyrica, Tramadol, Celebrex and paracetamol.[34]
[34]Ex P1, pp10-11
31 Following her discharge from hospital, she was referred to see Mr Patrick Lo, neurosurgeon, due to the fact that she was suffering from left-sided sciatic pain and numbness in her left foot. Mr Lo recommended that the plaintiff undergo a laminectomy. She was advised about the risks of the surgery by Mr Lo. Those risks worried her. She was referred to see Mr Patrick Chan, neurosurgeon, for a second opinion as to whether surgery was warranted.[35]
[35]Ex P1, p11
32 On 2 October 2018, on her way to see Mr Chan for a second opinion, she was in a taxi that was involved in a second transport accident. This transport accident aggravated her back condition, but only for a short time.[36]
[36]Ex P1, pp12 and 21
Evidence of the Plaintiff
33 As referred to above, the plaintiff swore two affidavits. The relevant evidence as to the pain and suffering consequences which the plaintiff experiences as a result of the transport accident, is as follows:
Recent treatment
(a) the plaintiff underwent a decompressive laminectomy at the L4-5 and L5‑S1 level, on 21 October 2019;[37]
[37]Ex P1, p23
(b)in late November 2019, she resumed physiotherapy. She has been attending that treatment once or twice a week. She is also presently undertaking group Pilates sessions twice each week. She is trying to attend hydrotherapy, as she finds this very useful, but she is struggling financially to manage it regularly;[38]
[38]Ex P1, p24
(c)she sees her general practitioner, Dr Bence, every four weeks. A post-surgery MRI scan on 3 January 2020 revealed successful decompression of the S1 nerve root, but at L4-5, the disc extrusion remains and it is continuing to compress the L5 nerve root;[39]
[39]Ex P1, p24
(d)while the operation did assist her symptoms somewhat, it has not relieved all of those symptoms nor has it provided a “fix” for her condition;[40]
[40]Ex P1, p24
(e)as a result of the surgery, she has been left with a relatively noticeable mid-line scar along her lumbar spine;[41]
[41]Ex P1, p26
Need for further surgery
(f)she was informed by her surgeon, Mr Lo, that the surgery she underwent was going to be a “Band-Aid” fix. She has always understood that she may require further surgery on her lumbar spine region in the next ten to twenty years;[42]
[42]Ex P1, p27
(g)she has also been led to understand that depending on segmental stability within her spine, she may require further surgery in the future. This may be in the near future as opposed to the distant future. She may be required to have a spinal fusion at one or even two levels. This is very concerning for her;[43]
[43]Ex P1, pp27-28
Medication
(h)she continues to take paracetamol and Celecoxib.[44] She has also been prescribed Palexia to deal with the “flare ups” of pain that she experiences;[45]
[44]Ex P1, p24
[45]Ex P1, p25
Experience of pain
(i)she continues to have ongoing back pain. The pain is less frequent and less intense than before the surgical procedure. The procedure has also assisted to relieve some of the “pressure” that she was feeling in her spine prior to the surgery;[46]
[46]Ex P1, p25
(j)the pain is noticeable first thing in the morning and worsens throughout the day, depending on the activities which she undertakes. The sciatic pain symptoms have improved since the surgical procedure; however, she has been experiencing a shooting-type pain going from her lower back into her hip/buttock area. Her back continues to tire quickly;[47]
[47]Ex P1, p25
(k)she continues to experience “flare ups”. These involve aches, increased pain and neurological type pain in her left glute. When she has these “flare ups,” they interfere with her rehabilitation and continuing therapies.[48] Her general practitioner has been required to prescribe Palexia again to assist with these episodes. The “flare ups” seem to be related to times when she needs to drive longer distances and wait or sit for prolonged periods. It also seems to be connected to stressors in her life, which can include work stress, fluctuating work hours and other events;[49]
[48]Ex P1, p25
[49]Ex P1, p25
(l)her migraine headaches continue to occur more regularly and with greater severity than prior to the accident. This has remained the case since the accident;[50]
[50]Ex P1, p25
Sleep
(m)there are occasions when her sleep is disturbed by low back pain; however, there has been an improvement in her sleep since the surgical procedure. Now, if she wakes up, she does manage to fall back to sleep more easily than before. Nevertheless, she continues constantly to feel exhausted. She goes to bed at around 7.30pm or 8.00pm, sometimes earlier;[51]
[51]Ex P1, p26
Activities of daily living
(n)prolonged sitting, standing or mobilising are still problematic and cause an aggravation of pain;[52]
[52]Ex P1, p25
(o)she remains limited with her walking. She tries to walk regularly in the morning for exercise. Some mornings she can do her walk and other mornings she cannot, because she is too stiff and sore. When she can manage to go walking, she only walks about 100 metres before the pain becomes noticeable. If she walks beyond a couple of hundred metres, the pain becomes limiting in terms of her capacity to continue;[53]
[53]Ex P1, p25
(p)she remains limited with bending, stooping and lifting. She must be careful and cautious and not overdo things. She remains very guarded and cautious with movements. She does manage to mobilise without any walking aids;[54]
[54]Ex P1, p25
(q)prolonged periods of time in a car or on public transport markedly worsen her symptoms.[55] She resumed driving in December 2019, but must be cautious not to drive long distances. She manages to drive to and from work;[56]
[55]Ex P1, p25
[56]Ex P1, p25
(r)her menstrual periods have remained very irregular and almost non-existent. She has had only two menstrual periods since swearing her last affidavit in July 2019;[57]
(s)her mother continues to take care of the bulk of the housework. The plaintiff avoids doing as much of this work as she can, for fear of aggravating her symptoms. She occasionally helps with some laundry, but she avoids cooking. She does not do any other housework or garden maintenance;
(t)she continues to take her mother shopping once or twice a week, but only carries light parcels to assist her mother;[58]
Psychological consequences
(u)she continues to have a range of emotional and psychological symptoms arising from the accident, such as the fact that she remains anxious travelling in the vicinity of the accident and continues to avoid it. While she has had some improvement in her physical symptoms, she nonetheless remains very frustrated by her continuing symptoms and feels disheartened by the fact that her recovery has not been more rapid or complete;[59]
(v)she continues to feel flat most of the time. Her self-confidence and self-esteem remain low. She has difficulty with motivation. She experiences fatigue. She remains less sociable. Boredom, restlessness and frustration continue to plague her. Loneliness and feelings of isolation continue. She remains irritable with her mother, although she recognises that this is not fair. Her concentration and memory remain poor;[60]
(w)she tries to have a degree of optimism but remains very concerned about the future and what it holds for her, particularly because she is so young;[61]
[57]Ex P1, p26
[58]Ex P1, p26
[59]Ex P1, p26
[60]Ex P1, p26
[61]Ex P1, p26
Pecuniary disadvantage
(x)on 9 December 2019, she resumed work. She presently works seven hours a day, three days a week in the office and two days from home. She has been provided with a sit/stand desk at work;[62]
(y)she is still not capable of working full-time hours. She continues to be worried about the potential for her to lose her job if her performance suffers as a result of her symptoms.[63]
[62]Ex P1, p27
[63]Ex P1, p27
34 Under cross-examination, the plaintiff gave the following evidence:
(a)she had experienced incidents of lower back pain on a number of occasions prior to the 2014 motor vehicle accident;[64]
[64]Transcript (“T”) 42, Line (“L”) 20-22
(b)there was no mention of these incidents in her affidavit material;[65]
[65]T42, L23-31
(c)she had never told either Mr Lo, Mr Chan or Mr Moran about those incidents;[66]
[66]T42, L2-7
(d)she recalls, in 2007, experiencing pain in her lower back when she was rushing to get the phone;[67]
[67]T43, L22-28
(e)she would describe that pain as “just straining to reach something out of my reach”;[68]
[68]T43-44
(f)she recalls that if she moved at that time, she experienced pain. She also experienced pain if she took a deep breath;[69]
[69]T44, L2-13
(g)at that time, it was right lumbar pain;[70]
[70]T44, L17-18
(h)in 2010, she had a sudden onset of pain which felt aggravated when she was bending down, but settled at rest, with no radiation into her legs;[71]
[71]T44-45
(i)the pain she experienced in April 2011 was the same sort of pain that she experienced in 2010;[72]
[72]T45, L6-14
(j)she cannot recall whether or not an incident where she reached for a glass of water and felt pain in her lower back was in 2010. She does not think that it took place prior to the 2014 transport accident;[73]
[73]T45-46
(k)she did not agree with the proposition that prior to the 2014 transport accident, she occasionally had an awareness that her back “just wasn’t quite right”;[74]
[74]T47, L2-10
(l)she did not agree with the proposition that prior to the 2014 transport accident, she “occasionally had a feeling of weakness” in her lower back;[75]
[75]T47, L11-13
(m)the reason why she did not give evidence about the prior incidents of pain in her lower back was that she did not feel that they were relevant to her actual injury;[76]
[76]T47, L14-17
(n)she did not agree with the proposition that between the date of the 2014 transport accident and the end of 2015, she experienced pain that was similar to the pain she experienced prior to that transport accident. She said: “Those instances prior to 2014, having now a comparison to a different type of back pain were completely different in the sense that they were just more muscular as in straining … What I experienced after the motor vehicle accident was not only muscular. It was something in my back, actually radiating differently in terms of pain;”[77]
[77]T51, L1-19
(o)she agreed that after the 2014 transport accident, she experienced pain in her lower back with bending down, pain in her lower back with other movements, right-sided lumbar pain and pain with deep breathing. She agreed that she had experienced pain in those areas prior to the 2014 transport accident, but qualified this answer by saying, “not in the same way though”;[78]
[78]T51-52
(p)the pain she experienced after the 2014 transport accident to about late 2015 was intermittent: “I suppose so, yes;”[79]
[79]T52, L23-31
(q)by the end of February 2015, her pain had improved. She did not agree that it had improved “immensely”;[80]
[80]T53, L1-5
(r)she agreed that her back pain improved with taking Tramadol. She did not recall whether or not she had used the word “immensely” in relation to the improvement of her back pain with taking that drug;[81]
[81]T53-55
(s)she did not agree that by 24 February 2015, her back pain was “much better”;[82]
[82]T55, L15-27
(t)following the 2014 transport accident up until the end of 2015, she had not experienced any pain radiating into her arms or legs: “No … just on the … right hand side … in the buttock area;”[83]
[83]T56, L12-16
(u)she denied that this was the same pain that she had experienced prior to the 2014 transport accident;[84]
[84]T56, L17-18
(v)when pressed about why she had not told Mr Lo about her history of back pain, she reiterated: “Because to me that didn’t have anything to do with my actual spine. From my perspective that was more straining a muscle … It wasn’t a conscious decision. I just didn’t … feel it was a relevant thing when he asked me his questions;”[85]
[85]T56, L19-29
(w)in paragraph 33 of her first affidavit where she said: “throughout the following 18 months or so I continued to have ongoing symptoms in my back,” she was referring to the eighteen-month period commencing in 2016;[86]
[86]T56-57
(x)she was shown a document entitled “Physiotherapy: Treatment Notification Plan”. She agreed that her signature was on that document. She agreed that she considered it accurate to describe the injury that was being treated at that time as “aggravation of low back pain”;[87]
[87]T57-59
(y)she tried physiotherapy on two or three occasions but then stopped attending, “because I didn’t feel that I was improving”;[88]
[88]T59-60
(z)she was having quite significant problems with her back at that time. She agreed that she was feeling “pressure” in her back. She felt that her back symptoms were getting worse at that time;[89]
[89]T59-60
(aa)she was shown an entry in the notes of “Back in Motion,” which included a comment that on her last physiotherapy session with that organisation, she had “nil pain”. She did not agree with this proposition;[90]
[90]T61, L1-13
(bb)she specifically said that her recollection of her pain during this period was that straight after the 2014 transport accident, for several months “the pain was constant. It was in varying degrees, but it was still constant.” When pressed under cross-examination about whether the pain was “always present,” she replied: “to some level’;[91]
[91]T61, L14-22
(cc)when asked about the absence of notes in the medical records evidencing her consulting her general practitioner in respect of pain in the period between February 2015 and June 2018, she replied: “Honestly it was always a question that the doctors would ask me about, because whenever you went in, even if it was for other reasons or even if I had a cold or something … they’d go back to my previous notes and they could see that it was an issue so they would ask me that…At the end of the day I recall mentioning it to the doctors, but I'm not in control of what they record from that consult, so I understand that there are only certain examples highlighted where it’s been something of note where they have recorded it, but that doesn’t mean I hadn’t mentioned it in other times, [because] I [particularly] recall having done so”;[92]
[92]T63, L7-29
(dd)she was unable to identify any particular occasion on which she had discussed her back pain with any general practitioner between February 2015 and June 2018;[93]
[93]T63-64
(ee)she was unable to recall any particular doctor to whom she had made a complaint about back pain between October 2015 and June 2018;[94]
[94]T64, L1-28
(ff)she was taken to paragraph 32 of her first affidavit in which she deposed to a consultation with Dr Moore about her back in 2016. It was suggested that, given her evidence that she was unable to recall any particular doctor with whom she had consulted, the content of that paragraph of her affidavit was a lie. She denied this. It was put to her that she had no actual recollection of seeing Dr Moore in 2016 about her back. She replied, “I do, but … being under these circumstances is flustering, so if I don’t immediately recall [it] doesn’t mean that it didn’t occur. If I put it in the affidavit, then I stand by what I wrote in my affidavit.”[95]
[95]T65, L22-29
(gg)when pressed further on this matter, she maintained that she did have a positive recollection of consulting Dr Moore in 2016 about pain in her back. It was put to her that she was lying when she gave this answer. To this proposition she replied, “… it’s making me nervous to be questioned, so I don’t immediately recall dates and specific names that clearly come to mind, but I know for a fact that these are things that have occurred during my time when I was at the clinic when I would speak to my…regular doctor at the time, which was Dr Moore … but there were also periods in which I saw other doctors and I don’t recall their specific names or those specific incidents, but I remember discussing this specifically with Dr Moore, yes;”[96]
[96]T66, L9-25
(hh)she was not aware that there was no clinical note of a consultation between her and Dr Moore in 2016, which recorded any complaint about back pain;[97]
[97]T67, L22-24
(ii)she said that she may be confused about the date on which she saw Dr Moore but maintained that she did recall having a conversation with that doctor about her back pain after the 2014 transport accident and before the second transport accident in 2018;[98]
[98]T69, L1-6
(jj)she agreed that she did not know whether the consultation she was referring to in her affidavit with Dr Moore was in 2016, 2017 or some other date in early 2018: “You just don’t know do you?---No”;[99]
[99]T69, L28-30
(kk)she maintained that she had given Mr Chan a history of back pain in 2016 and 2017, but agreed that he had “not noted [it] as such, but I do recall mentioning it to him”;[100]
[100]T70-71
(ll)she said that Mr Chan did not ask her about her interactions with other doctors year by year: “He simply asked me if I had had any interactions with GPs about my back since the motor vehicle accident.” She said that in response to that question, she told Mr Chan that she had “raised it with the GP several times”;[101]
[101]T71, L20–28
(mm)when pressed, she maintained her evidence that she had reported her ongoing back pain to various doctors who had failed to make a note about her complaints in the years 2016 and 2017;[102]
[102]T72, L3-5
(nn)she agreed once again that she had no specific recollection of seeing any medical practitioner in relation to her back pain in 2016 or 2017;[103]
[103]T72, L6-12
(oo)it was put to her that where Mr Moran had recorded that she no issues with her lower back prior to the 2014 transport accident, that was an incorrect statement. She agreed with this proposition. She agreed that she had told Mr Moran this was “because as I had previously mentioned, I viewed the events [as] completely different. One was just like a muscle strain, and it was significantly different to what I had experienced after the motor vehicle accident in 2014;”[104]
[104]T73, L10-28
(pp)she said that she recalled telling Mr Moran, Mr Chan and Mr Lo that when she had seen her general practitioner for other purposes, she had mentioned her ongoing back complaints to those doctors but that those complaints were not recorded in her general practitioner’s notes. She agreed that she had not included that information in either of her affidavits. It was put to her that this evidence was a lie. She did not agree with that proposition;[105]
[105]T75, L1-14
(qq)she said that she had never been pain-free for a period of two years between the occurrence of the 2014 transport accident and July 2018;[106]
[106]T75, L15-20
(rr)she was shown the Western Health discharge summary which recorded information, including that she had been pain free for a period of two years between the transport accident and July 2018. In response, she stated: “It’s incorrect … what’s stated here … the two year period … that’s not correct;”[107]
(ss)she said that where the hospital had recorded that her back pain episodes had resolved with over-the-counter medications, that was correct;[108]
(tt)she said that she experienced restrictions to her daily living in 2016 and 2017. She also agreed that during that period, she never consulted a doctor specifically in relation to her back pain;[109]
(uu)it was put to her that she did not consult any doctor in relation to her back pain in 2016 and 2017, because she was not experiencing any restrictions in her day-to-day living as a result of back pain at that time. She disagreed with this proposition;[110]
(vv)she said that since the 2014 transport accident, she had travelled outside of Melbourne on one occasion. This was to Toronto, Canada, at the end of 2015. She agreed that she had not deposed to this matter in either of her affidavits;[111]
(ww)when she travelled to Toronto she did that by plane. She said that she went for a week to meet up with a pen pal of hers. She agreed that it was not for a wedding or a funeral;[112]
(xx)she disagreed with the proposition that the reason she decided to travel on a plane for 15 hours at the end of 2015, was because she was experiencing no pain in her back at that time;[113]
(yy)it was put to her that if she had been experiencing intense pain, together with all of the restrictions that she had given evidence about, she would never have travelled to Toronto by plane. To this, she replied: “After I'd had the accident, there was a lot of things that I couldn’t do and I was tired of putting my life on hold. I haven’t travelled overseas since. That’s the only overseas travel that I’ve had … which was five years ago … ;”[114]
(zz)she agreed that between October 2015 and the flare up in July 2018, she had not been prescribed any strong painkilling medication such as Tramadol. She said: “I had always been advised by the GPs … when I’d had … the smaller episodes of flare-ups that the pain wasn’t bad enough to constitute writing out a script and I should rely on over the counter medications such as anti-inflammatory gels … resting up, taking Panadol, things of that nature and then only if it worsened was I to reappear.” She said that it was in that context that she told the Footscray Hospital that she had been taking over-the-counter medications.[115]
[107]T75-76
[108]T76, L29-31
[109]T83, L26-31
[110]T84, L1-4
[111]T84, L5-10
[112]T84, L11-28
[113]T85, L1-4
[114]T85, L5-13
[115]T85, L4-26
35 In re-examination, the plaintiff gave the following further evidence:
(a)where the Western Health discharge summary recorded that she had taken Panadeine Forte to cope with her back pain, that is incorrect. She does not take that medication as it makes her severely nauseated;[116]
(b)she had enjoyed an unrestricted quality of life before the 2014 transport accident;[117]
(c)when asked to describe the pain that she experienced in 2007, 2010 and 2011, compared with the pain that she experienced following the 2014 transport accident, she replied, “The difference for me would be in that when I had those initial consults … they were before the car accident and before I actually knew what back pain was, to put it simply. The pain that I relayed during those consults was not the same type of debilitating pain, it didn’t restrict me in the same way … ongoing, they very quickly resolved, and as I mentioned they would probably be more likened to a muscle sprain as opposed to something actually occurring in my spine that was preventing movement;”[118]
(d)when asked what she meant when she had said that after the 2014 transport accident, “it wasn’t just muscle pain, it was like in your spine,” she replied: “the feeling was much different after the accident and especially after the flare-up in 2018, the severe one, because I have that weakness in my spine, like I just don’t feel supported. I had different pain associated to it, including nerve pain … which … I didn’t have in those previous instances…prior to the motor vehicle accident. I didn’t have…any pain radiating into my other limbs really … beside the right-hand side from that one occasion, but that was a completely different sensation. I don’t really know how to explain it … but the pain was significantly different;”[119]
(e)when asked whether she was deliberately trying to mislead the doctors she had consulted in relation to the pre-2014 incidents of back pain, she replied: “When I was being questioned by the medical professionals and they’d ask me about my history about my back they asked me specifically relating to the type of pain that I was experiencing … former … triggers or circumstances in which it could have been aggravated or created an injury, and … the only thing that came to mind was [the] trauma that I sustained to my back during the motor vehicle accident. It wasn’t a conscious effort of me trying to mislead them in any way, it just simply didn’t occur to me in any of those consults that they were interconnected, because having a muscle sprain didn’t feel like the same as having a compression in my spine affecting the nerves. That’s not what I had been told in previous consults when I had had those instances and the GPs just gave me over-the-counter medication and said you’ll be fine in a couple of days. It wasn’t related to something more severe like the motor vehicle accident injury was;”[120]
(f)she said that when she was talking to the doctors in 2018 about her increasing back pain, what made her think that the 2014 transport accident was relevant was: “Because the pain was in the same location and because the pain was very similar to what I had experienced, although not as severe in 2014 so that weakness in the back which I had experienced in 2014 was what I was experiencing in 2018 with the flare-up, but to a higher degree. So in my mind that seemed linked, because the symptoms were the same but worse;”[121]
(g)the weakness in her back which she experienced following the 2014 transport accident never went away. “It was perhaps not as severe as it initially was … immediately after the accident, but there was always a weakness to my back after the accident;”[122]
(h)she confirmed that what she said to Mr Moran about having an unrestricted quality of life before the 2014 accident was correct. She said that after the 2014 transport accident: “There were a lot of things because of the weakness and the intermittent pain that I was experiencing that I couldn’t do as much – as I said before … they were things like standing for long periods of time and that would affect the socialising that I would do, as I used to go … to lots of concerts and shows. I couldn’t really do that as much unless I was … in a seated area which none of my friends wanted to do, and there was stuff like that. Riding my bike I couldn’t do as often, going for a long walk I couldn’t do as often because my back would get sore or … [fatigued], and then … post-2018 obviously that became more pronounced, those restrictions;”[123]
(i)when asked how long the restrictions that she experienced after the 2014 transport accident lasted, she replied, “I would say that it continued up until today. There’s those things, none of which, especially after 2018, like I haven’t ridden a bike … I haven’t been able to go for long … walks like I used to … I certainly don’t socialise as much without taking into careful consideration … how I'm going to get there, is it a long trip, are there places to sit down, are there places to support myself … so it’s just become more pronounced recently, but they were always there … between 2014 until today basically.”[124]
[116]T78, L1-23
[117]T79, L2-7
[118]T79-80
[119]T80, L7-20
[120]T80-81
[121]T81, L16-24
[122]T82, L5-8
[123]T82, lines 12-25
[124]T82-83
The lay witnesses
Perpetua Del Carmen Saez
36 The plaintiff’s mother, Perpetua Saez, gave the following relevant evidence in an affidavit sworn on 19 March 2020:
(a)the plaintiff is her daughter. The plaintiff and her mother purchased their current home in Churchill Avenue, Maidstone, together in 2012. They have lived together ever since that time;[125]
[125]Ex P1, pp37-38
(b)before the transport accident, the plaintiff did suffer from regular migraines, but she continued to live a full and busy life;[126]
[126]Ex P1, p38
(c)prior to the transport accident, the plaintiff would regularly help her mother with the housework, especially the heavier household chores or those chores that were easier for two people to perform, such as changing bedlinen. She also regularly assisted her mother with shopping and cooking;[127]
[127]Ex P1, p38
(d)the plaintiff was, at that time, a very happy person. She was always joking and had a wonderful sense of humour. She was a very caring person. She was a very good support to her mother. She was her mother’s “right-hand person”;[128]
[128]Ex P1, p38
(e)prior to the accident, the plaintiff was healthy and active. She would regularly ride her bike with friends and routinely walk the dog at the park. She was often out and about. She was a very social person. She enjoyed spending time with her friends;[129]
[129]Ex P1, p38
(f)she recalls the day of the plaintiff’s transport accident in 2014. When the plaintiff arrived home, it was evident that she was in a state of shock and quite shaken. After reporting the accident to the police, the plaintiff then took some Mersyndol, which she had for migraines, and went to bed. The next day when she woke up, the plaintiff complained about soreness in her lower back. She went to see a doctor, who recommended that she take Panadol and take the week off work;[130]
[130]Ex P1, p39
(g)after the 2014 transport accident, the plaintiff remained unwell. She continued to have pain and soreness in her back. She also became increasingly tired. The plaintiff would say most days that her back did not feel right. Her mother noticed that the plaintiff was not helping as much around the home. She was not providing the same assistance with shopping. She was spending a lot of time lying on the couch. She was clearly not the same as before;[131]
[131]Ex P1, pp39-40
(h)the plaintiff attended physiotherapy for several weeks to begin with. It did not seem to do much to assist her pain. It was evident to her mother that, physically, the plaintiff was in pain and had ongoing soreness;[132]
[132]Ex P1, p40
(i)it was clear to her mother that the plaintiff could not do as much as she did prior to the accident. The plaintiff was no longer riding her bicycle with friends. She was not going to the park to walk. She had too much pain. It seemed that the plaintiff had pain all the time. Sometimes it would be a little better and other times worse;[133]
[133]Ex P1, p40
(j)it was evident that the plaintiff was not as happy as she had been previously. She certainly was not going out as much. She was not visiting her friends regularly. Her mother was very worried about her;[134]
(k)in mid-2018, the plaintiff’s condition substantially worsened. The plaintiff was taken to hospital by ambulance, where the plaintiff was seen at the Emergency Department of the Western Hospital. The plaintiff spent between two and three weeks in the hospital on that occasion; [135]
(l)when the plaintiff was discharged from hospital, she remained in a lot of pain. She was taking a lot of medication, which was a concern for her mother; however, the medication was needed because of the severity of the plaintiff’s symptoms;[136]
(m)ever since her involvement in the 2014 transport accident, the plaintiff has had continuing symptoms. From the time of the 2014 transport accident, it has been clear to her mother that the plaintiff’s back is “not right”;[137]
(n)the plaintiff had spinal surgery performed in October 2019. Even after that surgery, the plaintiff still complains of pain in her lower back. She is still required to take medication. She still has limitations with her walking. She becomes very tired. She cannot drive long distances. The plaintiff and her mother went to visit family in Berwick for New Year and the plaintiff drove. As a result of doing so, she ended up with intense pain in her back for several days afterwards. The plaintiff seems to have a limit of about 20 minutes of driving, after which time her symptoms become very problematic;[138]
(o)the plaintiff no longer does any housework at home. Her mother does not ask her to as she knows that the plaintiff would not be able to manage it. On occasions when the plaintiff accompanies her mother shopping, the plaintiff will drive, but her mother is the one who carries all of the bags;[139]
(p)the plaintiff has become a different person since the transport accident. She is not the happy person she once was. She rarely socialises. She does not go to parties or do the usual things that young people do. She does not catch up with her friends as much as she did previously. She prefers to have no one around. She has lost her confidence;[140]
(q)these days, the plaintiff spends a lot of time alone in her bedroom. She tends to isolate herself, even from her mother. The plaintiff and her mother used to watch television or movies together before the transport accident. They enjoyed each other’s company. The plaintiff now seems to prefer to be on her own. She gets irritable and agitated with her mother;[141]
(r)the plaintiff always seems very tired. She always has a degree of soreness or pain in her back. Some nights she cannot sleep as a result. On weekends she spends most of her time lying down;[142]
(s)from the time of the 2014 transport accident, the plaintiff has consistently complained of back pain. The plaintiff always says that her back has never been the same. She often comments that it feels weak. She often says that she knows something is wrong with her back.[143]
[134]Ex P1, p40
[135]Ex P1, p41
[136]Ex P1, pp41-42
[137]Ex P1, p42
[138]Ex P1, p43
[139]Ex P1, p44
[140]Ex P1, p44
[141]Ex P1, p44
[142]Ex P1, p44
[143]Ex P1, p44
Svetlana McIntyre
37 Svetlana McIntyre, the plaintiff’s friend, signed a statement on 27 April 2020. In that statement, Ms McIntyre gave the following relevant evidence:
(a)she first met the plaintiff in secondary school in about 2002. They became good friends and the friendship has continued ever since;[144]
[144]Ex P1, p47
(b)the plaintiff has always been a proud, strong and independent person. She was a happy, free-spirited individual. She was fun to be around, with a great sense of humour and a sharp wit. She was always full of energy and had an adventurous spirit. She would give anything a go;[145]
[145]Ex P1, p47
(c)prior to the transport accident, the plaintiff was very active and had no physical restrictions. She loved to get out and walk. She would both walk and catch public transport to work, in preference to driving. Walking was a significant component of her commute to and from work;[146]
(d)in 2013, when Ms McIntyre was living in Traralgon, the plaintiff and she were having very regular contact. The plaintiff would visit her most weekends and she would often stay the weekend. She would catch the train from Melbourne. She had no difficulties with the two-and-a-half-hour train journey or walking to and from the station. When she stayed with Ms McIntyre, it was clear that the plaintiff was physically well and able. In addition to their weekend catch ups, Ms McIntyre and the plaintiff would also regularly message and call each other;[147]
(e)Ms McIntyre is aware that the plaintiff has a history of migraines. Even when the plaintiff was suffering from a migraine, Ms McIntyre observed that she did her utmost to attend work. The plaintiff was very committed and dedicated to her work. In Ms McIntyre’s view, for the plaintiff to take time off was “a big deal” for her;[148]
(f)Ms McIntyre learned about the 2014 transport accident about a month after it occurred. The plaintiff told Ms McIntyre that she was having difficulty sleeping due to back pain. The plaintiff also told Ms McIntyre that it was hurting her to walk and move. The plaintiff said that she was going to lots of doctors and therapists’ appointments. The plaintiff said that she was in significant pain and having to take painkillers to manage her symptoms. The plaintiff told Ms McIntyre that even though she was taking painkillers, “these were not fully effective and she had ongoing symptoms”;[149]
(g)after the 2014 transport accident, the plaintiff’s weekend visits to see Ms McIntyre effectively stopped. They stayed in touch by text message. Ms McIntyre remained aware of the plaintiff’s ongoing problems;[150]
(h)Ms McIntyre has observed that ever since the 2014 transport accident, the plaintiff gets worn down. She becomes easily fatigued and very tired. She has also been emotionally flat. She has difficulty remaining positive. On the occasions when Ms McIntyre has seen her, the plaintiff tires easily. The plaintiff makes excuses to leave their catch up early. This is very unlike the person that Ms McIntyre knew before the accident;[151]
(i)Ms McIntyre is aware that the plaintiff’s lower back condition prevents her from being able to walk regularly or as much as she had previously. She is also limited in her driving. She is not able to get to places as easily as she did beforehand. She spends a lot of time in bed because of the pain;[152]
(j)Ms McIntyre remembers an incident in August or September 2017 which was the christening of her third child. The plaintiff and her mother made the effort to come down for the christening. Even so, it was clear to Ms McIntyre that the plaintiff was not in a good way at that time. The plaintiff was walking slowly and cautiously. She did not look “bright in the face”. As soon as the christening ceremony was over, the plaintiff and her mother left. This was very unusual for the plaintiff. If the plaintiff had not been experiencing difficulties, the plaintiff would have been more involved with Ms McIntyre’s third child, as she had been with her previous children;[153]
(k)to Ms McIntyre’s observation, the plaintiff is not the sort of person to dwell on aches and pains. The plaintiff’s back condition has definitely impacted on the way she lives her life;[154]
(l)Ms McIntyre is aware that the plaintiff had surgery as a public patient in October 2019. She observes that since having the surgery, the plaintiff has seen some improvement in her condition. She has noted that the plaintiff is making the best of her situation. While there has been some improvement in the plaintiff’s emotional state, the plaintiff is not back to normal. She also experiences ongoing limitations which she is attempting to manage. She remains limited in her walking. There are many things that the plaintiff still cannot do that she did previously.[155]
[146]Ex P1, pp47-48
[147]Ex P1, p48
[148]Ex P1, p48
[149]Ex P1, p48
[150]Ex P1, p48
[151]Ex P1, p49
[152]Ex P1, p49
[153]Ex P1, pp49-50
[154]Ex P1, p50
[155]Ex P1, p51
Dirk Jansen
38 The plaintiff’s workmate, Dirk Jansen, swore an affidavit dated 10 March 2020. In that document, he deposes to the following relevant matters:
(a)he worked with the plaintiff at Tenix Call Centre. He and the plaintiff ended up working together over a period of several years;[156]
(b)when the plaintiff moved to working in quality assurance at Tenix, she came directly under Mr Jansen’s supervision and management. As a result, he came to know the plaintiff much better;[157]
(c)Mr Jansen observed the plaintiff to be a very good worker, with great qualities. She was a quick learner and very competent. She was thorough and particular with her work, with an attention to detail;[158]
(d)prior to the 2014 transport accident, the plaintiff had a good attendance record. While she did suffer from migraines, she generally managed her migraines well. She kept her time off to a minimum;[159]
(e)in Mr Jansen’s opinion, prior to the plaintiff’s involvement in the 2014 transport accident, there was no reason to believe that she would not have continued to move upward within Tenix. In Mr Jansen’s opinion, the plaintiff had all the right qualities and impressive work ethic which would have allowed her to succeed;[160]
(f)Mr Jansen noted very obvious changes to the plaintiff’s presentation after the 2014 transport accident, including a dramatic change in her attendance at work and a change in the plaintiff’s concentration level at work: “She seemed to be more absent than she was present. It was very noticeable;”[161]
(g)it was obvious to Mr Jansen and his workmates that the plaintiff was struggling after the 2014 transport accident, and they did their best to help. It was evident to Mr Jansen and others, that the plaintiff was experiencing significant pain. She had obvious difficulties. Prolonged sitting was very problematic for her. She would regularly get up and down from her chair or workstation to move around. She did this to try to alleviate her pain. When she walked, it was evident that she moved stiffly, awkwardly and more slowly. She was unquestionably in pain. It was visible from her face that she was in pain. She often looked pale. Her facial expressions clearly revealed that her general demeanour had changed;[162]
(h)in addition to her obvious physical difficulties, Mr Jansen observed that there was an emotional impact as a result of the 2014 transport accident. He observed that the plaintiff was feeling overwhelmed. She was struggling to manage her pain and her workload. The quality of her work dropped off. She was not as connected as she had been previously. She often appeared exhausted and tired. She would tell Mr Jansen that she was feeling tired because she did not sleep properly. She told Mr Jansen that her sleep was disturbed by the pain that she was experiencing. Mr Jansen observed that the plaintiff’s absences from work and the fact that she was falling behind with her work caused her to feel under pressure. She informed him that the stress often exacerbated her migraines, also causing her additional difficulties;[163]
(i)following the 2014 transport accident, Mr Jansen observed that promotional opportunities were lost to the plaintiff. In his mind, there is no doubt that the plaintiff’s injuries and condition hindered her performance and ultimately her career, at Tenix. He continued to work for Tenix up to 2015, when he left to commence his new position at Monash University. After Mr Jansen left Tenix, the plaintiff and he remained in touch on Facebook and via social media. They have also emailed each other occasionally and remain in touch up to the present time.[164]
[156]Ex P1, p30
[157]Ex P1, p30
[158]Ex P1, p30
[159]Ex P1, p31
[160]Ex P1, p32
[161]Ex P1, p32
[162]Ex P1, p33
[163]Ex P1, p33
[164]Ex P1, p34
Medical evidence
39 There were numerous medical reports contained in the tendered material. Both sides filed reports from medico‑legal experts. A précis of the relevant medical material is set out below.
The Plaintiff’s medical reports
40 The plaintiff’s present general practitioner is Dr Alexandra Bence. In a report dated 14 August 2018, Dr Bence noted that the plaintiff was a passenger in a taxi that was involved in a transport accident in 2014. She said that the plaintiff has suffered from “chronic fluctuating lower back pain since then”.[165] She also noted that at the start of July 2018, the plaintiff presented to Emergency with severe lower back pain and had an admission to Western Health, followed by rehabilitation. At that time, Dr Bence noted that she had been diagnosed with “L4-5 disc desiccation and is getting lower back pain and left sided pain radiating down the back of her leg into her mid-calf. … [The plaintiff] also has pins and needs and numbness in her foot/lower leg … .”[166]
[165]Ex P1, p139
[166]Ex P1, p139
41 As referred to above, the plaintiff consulted Mr Lo, neurosurgeon, in relation to her ongoing back symptoms following the 2014 transport accident. In a report dated 14 September 2018, Mr Lo noted that the plaintiff had been involved in a transport accident in 2014 and “has had ongoing back discomfort for that period”. He also noted that she had recently experienced an exacerbation of the pain to the point where she was walking with a walking stick. At that time, he believed that surgical decompression was necessary.[167]
[167]Ex P1, p143
42 In a report of the same date directed to the plaintiff’s general practitioner, Dr Bence, Mr Lo again noted the occurrence of the 2014 transport accident and commented that since the accident, the plaintiff has been managed with “physical therapy and analgesia”. He reported that she was “quite bad for the initial six month period and then stabilised”. He observed that since that time, the plaintiff has “remained weak in her back”.[168]
[168]Ex P1, p145
43 In a report dated 2 November 2018 addressed to the plaintiff’s solicitors, Mr Lo stated:
“In my opinion and on balance, … [the plaintiff] sustained a back injury in a motor vehicle accident [in] or around 2014. Over the course of the intervening years, the condition has aggravated, exacerbated and accelerated …
In my opinion, there is a temporal relationship between the initial injury and the subsequent development of her back condition. In my opinion, had it not been for the motor vehicle accident, I do not believe she would be in her current state with significant neural compression and canal stenosis.”[169]
[169]Ex P1, p153
44 The plaintiff consulted with Mr Chan, neurosurgeon and spinal surgeon, for a second opinion in relation to the need for back surgery. In a report dated 1 October 2018, Mr Chan noted that following the 2014 transport accident, the plaintiff’s symptoms continued to progress, and settled around her lower back. He noted that she described feeling pain and weakness in her lower back. He noted that the plaintiff reported that after six months, her lower back improved, “but was still feeling weak”.[170]
[170]Ex P1, p155
45 In a further report dated 19 December 2018 addressed to the plaintiff’s solicitors, Mr Chan noted that an MRI scan of the plaintiff’s lumbar spine performed on 4 July 2018 shows “a large left and central L5-S1 disc extrusion compressing on the thecal sac and compressing on the left S1 nerve root, contacting the right S1 nerve root. There is also a large left and central L4-L5 disc protrusion contacting the right L5 nerve root but not compressing the left L5 nerve root.”[171] In that report, Mr Chan expressed the opinion that at that time, the plaintiff was suffering “significant and refractory left sciatica. This is significantly affecting her ability to walk and weight bear. According to the history given and especially the onset of symptomatology, her injury and the onset of symptoms are related to the transport accident, as described above … .”[172]
[171]Ex P1, p161
[172]Ex P1, p161
46 Upon being admitted to Western Health in July 2018 following a severe flare up of her back pain, the plaintiff was noted to be suffering with “acute back pain due to L5-S1 nerve compression from disc desiccation, on [a background] of chronic back pain”.[173] It was also noted in the discharge summary that the plaintiff had reported to the hospital at that time “intermittent lumbar back pain since MVA 4 years ago”.[174]
[173]Ex P1, p163
[174]Ex P1, p163
47 In the rehabilitation discharge summary dated 1 July 2018,[175] it is noted that the plaintiff said that she was “pain free for two years – then one episode two years ago which resolved with OTC medications”. As referred to above, the plaintiff denied that she had ever told the doctors that she was pain free for any period since the 2014 transport accident. She agreed that she had told them that she was using over-the-counter medication.
[175]Ex P1, p166
48 In a physiotherapy discharge summary relating to the plaintiff’s rehabilitation at Western Health, the physiotherapist noted the plaintiff’s history as follows:
“Had MVA 18/5/14 with back pain post. Has had intermittent episodes of pain since then, never so severe that it affected mobility/function … previous flares managed with ice packs/anti-inflammatories.”[176]
[176]Ex P1, p169
49 A Certificate of Capacity dated 20 July 2018 signed by the plaintiff’s general practitioner, Dr Bence, noted that the plaintiff suffered from low back pain, could not lift and had a reduced range of motion of the lower back. It was noted in that certificate that the plaintiff, at that time, had no capacity for employment. On the certificate, the date of the injury which is said to have caused that incapacity is the date of the 2014 transport accident.[177]
[177]Ex P1, pp178-179
50 The plaintiff was examined for medico‑legal purposes by Mr Peter Moran, orthopaedic surgeon. Mr Moran has provided three reports in respect of the plaintiff. In a report dated 22 January 2020, Mr Moran made the following observations:
“… [The plaintiff] was involved in a significant transport accident on the 18/5/14. Prior to this date, she had no issues with her lower back, and had enjoyed an unrestricted quality of life.
As a consequence of the transport accident, she developed neck, shoulder and ultimately lower back pain, which at no time since injury, despite comments made by Mr Doig, has … resolved or recovered.
It is clear from her investigations that she developed significant discogenic pathology with cauda equina compression, leaving her with the possibility of a severe neurological deficit should this disc lesion progress, eg: to a full blown disc sequestration …
It is clear that the initial transport accident is the prime cause of her pathology and her subsequent functional impairment …
If she develops progressive symptoms of spinal segmental instability as a result of significant discogenic pathology, the possibility of further surgery being undertaken remains, ie: a one or two level spinal fusion … .”[178]
[178]Ex P1, pp224-225
51 In a further report dated 20 April 2020, Mr Moran acknowledged, contrary to his earlier report, that the plaintiff had “indicated she had two or three transient episodes of lower back pain in 2010 but had remained then, asymptomatic until the transport accident on the 18.5.2014.” In this report, Mr Moran expressed the opinion that the transport accident in 2014:
“… provoked significant lower back pain, essentially discogenic back pain that did fluctuate in severity but did not at any stage resolve … It is my view that [the plaintiff] suffered from essentially asymptomatic lumbar disc degenerative change prior to the transport accident, but it was the collision that had essentially aggravated and destabilised this relatively benign process, culminating in 2018 with a spontaneous disruption with resultant radicular pain as a result of S1 nerve root compression. This contrasts with Mr Speck’s impression that her symptoms had recovered and then recurred spontaneously. In summary, I believe that the transport accident has been the destabilising incident in terms of symptomatology, and were it not for this collision [the plaintiff’s] degenerative spinal condition may have remained asymptomatic indefinitely, as is the normal course of events for [ageing] changes in the spine … .”[179]
[179]Ex P1, p226
The Defendant’s medical reports
52 The plaintiff was examined on behalf of the defendant by Dr Graeme Doig, orthopaedic surgeon, on 29 November 2018. Dr Doig acted on a history which indicated that following the motor vehicle accident on 18 May 2014, the plaintiff had lower back pain for approximately six months, after which time, “[it] seemed to settle down”. He noted that “she was prone to have an occasional flare up. …”.[180] Later, in his report dated 6 December 2018, Dr Doig noted that:
[180]Ex D1, p5
“… [the plaintiff’s] current presentation is a result of a flare-up in back pain and sciatica affecting the left leg, which appears unrelated to the initial motor vehicle accident of 2014, whereby her back pain appeared to have completely resolved after six months. The incident of 02.10.2018 caused a temporary flare-up in her back pain for three weeks only.”[181]
(emphasis added)
[181]Ex D1, Pp9
53 The plaintiff was examined for medico‑legal purposes on behalf of the defendant by Mr Gary Speck, orthopaedic surgeon, on 4 February 2020. In his report dated 10 February 2020, Mr Speck stated:
“… [The plaintiff] is a 33 year old single woman involved in a transport accident on 18 May 2014 in which she sustained back pain which was ongoing in the period immediately afterwards [with intermittent] episodes over the next 12 months with no radiation into the lower limbs recorded.
Subsequently there was no significant back pain until a different more severe back pain in late June 2018, becoming increasingly severe over a week requiring hospitalisation and with development of radicular symptoms. This exacerbation of symptoms led to surgical treatment with improvement of the radicular symptoms and ongoing low back pain.
… [The plaintiff] does have a past history of intermittent low back pain, but on a much less frequent basis than that evident after her transport accident in 2014. Within 12 months of the transport accident her pattern of back pain appears to have returned to the previous pattern. This is consistent with an aggravation occurring at the time of the transport accident but with resolution. …
As a result of the transport accident on 18/5/2014 … [the plaintiff] sustained soft tissue injuries to chest and neck which resolved, aggravation of [a] pre‑existing degenerative back condition which resolved. She currently has ongoing back pain from her surgically treated lumbar spine canal narrowing in 2018 …
Her current restrictions relate to the spontaneous occurrence of back pain in mid-2018, unrelated to her transport accident. I believe the soft tissue injury to the degenerative change in her low back occurring at the time of the transport accident [in] 2014 had resolved and therefore is not contributing to the restrictions outlined in the body of the report under ‘work’.”[182]
(emphasis added)
[182]Ex D1, PP24 and 26
The issues
The Plaintiff’s credit
54 The plaintiff’s credit was tested thoroughly during the hearing of this matter. As referred to above, the key issue for decision in this case was causation; namely, whether the injuries sustained in the 2014 transport accident have ultimately resulted in the consequences from which the plaintiff now suffers.
55 Questions were put to the plaintiff during cross-examination that suggested that she had been less than open and honest with the Court in relation to pre-existing problems with her lower back. Similarly, the plaintiff was cross-examined about the fact that she omitted to tell either her treating doctors or the medico-legal experts about her pre-existing back problems.
56 As set out in detail above, the essence of the plaintiff’s response to these questions was that, in her view, the nature of the pain she experienced prior to the 2014 transport accident differed greatly in quality to that which she experienced after that transport accident. In particular, she said that the pain prior to the 2014 transport accident was more like a muscle strain, and resolved quickly. Her evidence was that she had an unrestricted quality of life prior to the 2014 transport accident. By contrast, the pain she experienced after that transport accident was described as being “in [her] spine,” and was always present “to some degree” following that transport accident. She said that her activities of daily living had been impacted ever since the occurrence of the 2014 transport accident, “right up until today,” and worse since the flare up which saw her hospitalised in 2018.
57 Both the plaintiff’s mother and her friend, Ms McIntyre, corroborated the plaintiff’s account of ongoing consequences since the occurrence of the transport accident in 2014.
58 In particular, the plaintiff’s mother deposed to the following matters:
(a) ever since her involvement in the transport accident, the plaintiff has had continuing symptoms. From the time of the transport accident, it has been clear to her mother that the plaintiff’s back is “not right”;
(b) from the time of the transport accident, the plaintiff has consistently complained of back pain. The plaintiff always says that her back has never been the same. She often comments that it feels weak;
(c) the plaintiff has become a different person since the transport accident. She is not the happy person she once was. She rarely socialises. She does not go to parties or do the usual things that young people do. She does not catch up with her friends as much as she did previously. She prefers to have no one around. She has lost her confidence; and
(d) following the transport accident, the plaintiff could not do as much as she did prior. The plaintiff was no longer riding her bicycle with friends. She was not going to the park to walk. She had too much pain. It seemed that the plaintiff had pain all the time. Sometimes it would be a little better and other times worse.
59 Similarly, Ms McIntyre deposed that:
(a) after the transport accident, the plaintiff’s weekend visits to see Ms McIntyre (which had been a feature of their friendship prior to the transport accident), ceased;
(b) ever since the accident, it is evident that the plaintiff gets worn down. She becomes easily fatigued and very tired. She has also been emotionally flat. She has difficulty remaining positive. On the occasions when Ms McIntyre has seen the plaintiff after the accident, the plaintiff tires easily. The plaintiff makes excuses to leave their catch ups early. This is very unlike the plaintiff that Ms McIntyre knew before the accident; and
(c) the plaintiff and her mother made the effort to come down to Traralgon for the christening of Ms McIntyre’s third child in August or September 2017. It was clear to Ms McIntyre that the plaintiff was not in a good way at that time. The plaintiff was walking slowly and cautiously. She did not look “bright in the face”. As soon as the christening ceremony was over, the plaintiff and her mother left. This was very unusual for the plaintiff.
60 I note that in various histories given to medical practitioners at a time when the plaintiff could not have known that causation would be the key issue in this case, she is recorded as reporting matters including:
(a) “chronic fluctuating lower back pain” since the 2014 transport accident;
(b) “ongoing back discomfort” since the 2014 transport accident;
(c) that she has “remained weak in her back” since the 2014 transport accident;
(d) that after six months following the 2014 transport accident, her lower back improved, “but was still feeling weak”;
(e) that the acute back pain from which she was suffering in July 2018, was “on … [a background] of chronic back pain”;
(f) that in July 2018, the plaintiff had experienced “intermittent lumbar back pain since MVA 4 years ago” and that she “[had] MVA 18/5/14 with back pain post. Has had intermittent episodes of pain since then, never so severe that it affected mobility/function … previous flares managed with ice packs/anti-inflammatories;” and
(g) that “[as] a consequence of the transport accident, she developed neck, shoulder and ultimately lower back pain, which at no time since injury … has … resolved or recovered”.
61 During cross-examination, the plaintiff was questioned at length about the nature and quality of her pain at different points in time. In particular, it was suggested to the plaintiff that following the transport accident, by late 2015, her lower back pain had, essentially, resolved.
62 In relation to this issue, she was questioned closely about the lack of medical notes evidencing any consultation that she had with any general practitioner between late 2015 and the flare up in symptoms which led to her hospitalisation in July 2018. As referred to above, she was also questioned about her trip overseas to Canada. These two matters were put by counsel for the defence as constituting evidence not only of the plaintiff’s lack of candour with the Court, but also of the fact that she was not suffering from consequences of lower back pain caused by the 2014 transport accident, between late 2015 and July 2018.
63 As to the overseas travel, I note that in a medical record dated 6 October 2015, it is recorded that far from being pain free in the lead up to her trip to Toronto, she was “nervous about going on flight with lower back pain,” and was seeking a prescription of Tramadol on that occasion to take away with her while she was travelling.[183]
[183]Ex P1, p107
64 It is true that the medical records in this case do not record any consultations where the plaintiff specifically consulted her general practitioner about back pain between the consultation on 6 October 2015 and the flare up which resulted in hospitalisation in July 2018. The plaintiff’s evidence about the lack of medical records was somewhat unsatisfactory; however, this is not the end of the analysis which must be undertaken.
65 As the Victorian Court of Appeal observed in Principe v Transport Accident Commission:[184]
“As has been observed before, in many cases of the present kind, the question of whether a particular accident was a cause of a particular injury often depends upon complaints made by, and observations made of, the injured person over the days, weeks and months following the relevant accident …
In the present case … there were no complaints made by the applicant to medical practitioners that might have been capable of being described as back-related until at least two years after the collision. Absent any complaints by the applicant to other people, and absent any assertions by the applicant that he in fact suffered back-related symptoms, at some earlier point in time than his first complaint to a doctor, one might readily conclude that the necessary causal link between the collision and the applicant’s back condition was not made out.
… However, in this case there was a substantial body of evidence (the applicant’s evidence, the applicant’s wife’s evidence, the applicant’s daughter’s evidence, the applicant’s cousin’s evidence and the applicant’s former work colleague’s evidence) to the effect that the applicant had back-related symptoms within a relatively short time after the collision – and well prior to his first relevant complaint to a medical practitioner. Further, while the judge went into considerable detail dealing with the evidence of histories given to medical practitioners, very little (if any) reference was made by the judge to this substantial body of evidence that was tendered, called and given by the applicant … .”
[184][2016] VSCA 205 at paragraphs [78] and [81]-[82]
66 As set out in detail above, this is also a case where there is a substantial body of evidence that the plaintiff has suffered from ongoing low back pain, and the consequences thereof, since the 2014 transport accident. The plaintiff has on numerous occasions reported that fact to various doctors. In addition, the plaintiff’s mother and close friend have given cogent and persuasive evidence about the ongoing nature of the pain suffered by the plaintiff in her lower back since the 2014 transport accident, together with the consequences of that pain to the plaintiff. In particular, the plaintiff’s mother corroborates the plaintiff’s account of a feeling that her back is “weak” and that her low back is “not right,” since the 2014 transport accident. Similar descriptions have been given to various treating and medico-legal medical practitioners.
67 Having had the benefit of observing the plaintiff while she was giving evidence to the Court, I formed the view that she was a co-operative witness, who did her best to give accurate responses to the questions asked of her. During cross-examination, she gave her evidence openly and made appropriate concession which at times were against her interests.
68 Furthermore, I find that the plaintiff’s account of events has remained fairly constant throughout the period during which she has seen her treating medical practitioners, consulted with the medico‑legal assessors and provided evidence to this Court.
69 I have considered the contrast between the evidence in the plaintiff’s affidavit about her pre‑existing conditions and the evidence as it emerged under cross-examination, including in relation to her pre‑existing back condition. The manner in which the evidence in relation to these issues emerged during the running of the trial, was most unsatisfactory. The plaintiff’s explanation for this omission was that given the type of pain from which she was suffering following the 2014 transport accident, which was different in nature to that which she had experienced before that transport accident, she did not think that those prior instances of back pain were linked to her current pain. This explanation was repeated several times during cross-examination and expanded upon in re-examination. The plaintiff’s evidence, once fully articulated, was persuasive and cogent. I accept her explanation for what otherwise would have been a serious omission from her affidavit material.
70 After a consideration of all of the evidence, in particular the evidence of the plaintiff as corroborated by the affidavits of her mother, her friend, Ms McIntyre, her workmate, Mr Jansen, and the histories that she gave to various medical practitioners, I consider that, overall, she was a credible witness, in the sense of being a truthful person.
Compensable injury – did the 2014 transport accident cause the consequences from which the Plaintiff presently suffers?
71 The details and the occurrence of the transport accident are not in dispute.
72 As set out above, counsel for the defendant argued that there is insufficient evidence to allow the Court to form a view that the consequences of the injuries which the plaintiff suffered to her lumbar spine in the 2014 transport accident, have persisted to this day. It was argued, based on the opinions of the two medico-legal experts relied upon by the defendant, that the consequences from which the plaintiff presently suffers, were caused by a spontaneous flare up of low back pain in 2018, which led to the need for the surgical procedure which the plaintiff underwent in 2019.
73 I reject this submission. The opinions of Dr Doig and Mr Speck that the plaintiff’s present condition is unrelated to the 2014 transport accident, are each based upon a mistaken conclusion that following the 2014 transport accident, the plaintiff’s lumbar spine pain resolved. The evidence satisfies me that this is not the case.
74 For that reason, I prefer the opinions of the plaintiff’s treating neurosurgeons and Mr Moran, orthopaedic surgeon, that the 2014 transport accident caused significant injury to the plaintiff’s lumbar spine, ultimately leading to the development of “significant discogenic pathology,” which in turn, led to the need for her to undergo surgery in 2019.
75 On the basis of all of the evidence, I am satisfied to the requisite standard that as a result of the 2014 transport accident:
(a) the plaintiff suffered an injury to her lumbar spine, the consequences of which have persisted to this day;
(b) that at no time since the 2014 transport accident, have the plaintiff’s lumbar spine symptoms resolved;
(c) that both the flare up of lumbar spine pain which occurred in 2018 and the need for the plaintiff to undergo back surgery in 2019, were a consequence of the injuries which the plaintiff suffered in the 2014 transport accident; and
(d) that each and every consequence related to the plaintiff’s persisting lumbar spine condition, to which the plaintiff, her mother, her friend and workmate each depose, including constant pain, the need for frequent medication, interrupted sleep, a significantly negative impact on the plaintiff’s activities of daily living, significant pecuniary disadvantage and the likely need to undergo further surgery in the future, were caused by the 2014 transport accident.
Is the compensable injury permanent for the purposes of the Act?
76 Having considered the relevant reports, in particular from Mr Lo,[185] Mr Chan[186] and Mr Moran,[187] I find that the plaintiff is likely to continue to suffer from the injuries sustained in the 2014 transport accident as set out above for the foreseeable future. Given this, I find that the injuries to the lumbar spine suffered by the plaintiff as a result of the 2014 transport accident, are permanent for the purposes of the Act.
[185]Ex P1, P153
[186]Ex P1, P161
[187]Ex P1, PP222 and 225
Are the consequences to the Plaintiff of the transport accident “serious”?
77 At the commencement of the case, counsel for the defendant conceded that the consequences from which the plaintiff presently suffers are serious in nature.
78 On the basis of this concession, and taking into account all of the evidence before me, I find that despite the partial success of the 2019 surgery, as a result of the 2014 transport accident, the plaintiff is left with a permanent injury to her lumbar spine, the consequences of which are “very considerable” and certainly more than “significant” or “marked”.
Conclusion
79 The application is granted.
80 I will hear the parties on the question of costs.
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