Saini v Transport Accident Commission
[2020] VCC 982
•8 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-03326
| DARSHINI SAINI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 and 14 May 2020 | |
DATE OF JUDGMENT: | 8 July 2020 | |
CASE MAY BE CITED AS: | Saini v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 982 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – whether injuries caused by transport accident – credit of plaintiff – whether consequences of transport accident “serious” – relevant principles – paragraph (a) case
Legislation Cited: Transport Accident Act 1986, s93(4)
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Petkovski v Galletti [1994] 1 VR 436; Demmler v Transport Accident Commission [2018] VSCA 284; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Hunter v Transport Accident Commission [2005] VSCA 1; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) (2008) 234 CLR 124; Hooley v Transport Accident Commission [2019] VSCA 263
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram QC with Ms S Lean | Slater & Gordon Lawyers |
| For the Defendant | Mr P B Jens QC with Ms J Clark | 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 17 November 2015 (“the transport accident”).
Relevant legal principles
2 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The application is brought pursuant to ss(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 the function of her 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, fairly be 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 is 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] 1 VR 436 at 442; Demmler v Transport Accident Commission (supra) at paragraph [52]
[5]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
10 The Court must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[6]
See generally HuntervTransport Accident Commission [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 any additional injury or aggravation of any pre-existing 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 consequences of any additional impairment are “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](supra) at 444
[10]Supra
13 The plaintiff relied upon three affidavits, gave viva voce evidence and was cross-examined. The plaintiff also relied upon an affidavit from Manikya Mera. Ms Mera was not required to attend for cross-examination.
14 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
15 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
16 The plaintiff was born in Gujarat in Western India in March 1985.[12] She is presently thirty-four years of age.
[12]Ex P1, p8
17 The plaintiff completed her Year 12 studies in India. She then completed a Bachelor’s Degree in Commerce and Accounting. Subsequently, she also completed a Masters in Commerce and Accounting.[13]
[13]Ex P1, p8
18 Once she had completed her studies, the plaintiff entered into an arranged marriage. The plaintiff and her husband migrated to Australia after that marriage. Her eldest daughter, Meshwa, was born in 2008. Her youngest daughter, Rishika, was born in 2009. Her first husband was abusive and she divorced him in 2010.[14]
[14]Ex P1, p8
19 In 2012, the plaintiff married her second husband. He worked as a truck driver. He adopted the plaintiff’s two daughters.[15]
[15]Ex P1, p8
20 In 2013, the plaintiff obtained a childcare certificate; however, shortly afterwards, she began casual work as a machine operator packing nuts with a company called Scazlo. She obtained that work via the Skilled Group, a personnel agency. She was engaged in that employment when the transport accident occurred. Even though she was classed as a casual worker at Scazlo, she sometimes worked more than full-time hours. In the financial year ending 30 June 2015, her gross income from her work was more than $53,000.[16]
[16]Ex P1, pp8-9
21 Prior to the transport accident, the plaintiff and her husband entered into a contract for a house-and-land package. It was the plaintiff’s “dream house”. She had always wanted her own home and she had wanted it to be perfect for her daughters. She was therefore working hard in order to help meet the financial obligations regarding that contract. Her husband and she were looking forward to moving into their new home and continuing their lives together with their daughters.[17]
[17]Ex P1, p9
22 The plaintiff’s medical history is unremarkable. Prior to the transport accident, she considered herself to be quite fit and healthy. She was working in excess of full-time hours in a job that was, at times, quite physically demanding. She enjoyed her work very much and was proud of the fact that she contributed in such a significant way to the financial well-being and security of her family.[18]
[18]Ex P1, p9
23 Prior to the transport accident, the plaintiff and her husband lived a very busy family life. They had many friends and enjoyed socialising. In particular, the plaintiff entertained often and loved cooking. She was a very good cook before the transport accident occurred. In addition, she was very “house proud” and enjoyed maintaining a lovely home for her husband and her daughters.[19]
[19]Ex P1, p9
The accident
24 The plaintiff described the accident in the following terms:[20]
“… On about 17 November 2015 I was a pedestrian sitting at a bus stop waiting for a bus on my way to work. The bus stop was located on the west side of Cheddar Road in Reservoir, close to the intersection of Pratt Street. Suddenly, a motor vehicle…collided with the bus stop and with me. Apparently it was a very violent collision and the force of the impact threw me about 10 metres or so down the roadway.
Given the injuries that I suffered in the collision I have no recollection of it occurring …
The injuries that I suffered in the collision include injuries to my head…a loss of consciousness, together with a traumatic brain injury…I also suffered cuts to my forehead and to my nose. In addition, I suffered injuries to my right upper limb (in particular, to my right shoulder), as well as injuries to my right ankle and lower leg. I also suffered severe injuries to my neck and to my lower back. In addition, I suffered psychiatric injuries as a result of the collision.
Shortly [after] the collision occurred I was taken by ambulance to the Royal Melbourne Hospital where I was admitted for inpatient treatment. I was then observed and treated in the Hospital overnight before being discharged into the care of my local General Practitioner, Dr Desai of Preston, on 18 November 2015.”
[20]Ex P1, pp9-10
25 Because of the plaintiff’s head injury, her learner’s permit which she had obtained prior to the transport accident, was suspended. Prior to the transport accident, she was looking forward to getting her driver’s licence so that she could increase her independence.[21]
[21]Ex P1, p11
26 The plaintiff’s treatment continued throughout 2016. In particular, radiological examinations were undertaken, including ultrasounds of her right ankle and right shoulder, as well as MRI scans of her brain and neck. She also had a steroid injection into her right shoulder which was organised by her general practitioner. In about April 2016, she began treatment with Dr Gangadharan Ganesvaran, a neurologist. At that stage, Dr Ganesvaran prescribed a medication called Amitriptyline for her; however, she had to stop taking it due to its sedative side effects. She started physiotherapy with Mr Christian Bonello of Reservoir in the middle of 2016. She also received treatment from a psychologist, Ms Mandy Bell.[22]
[22]Ex P1, p11
27 The plaintiff was involved in a further transport accident on or about 2 July 2019, when she was driving through a roundabout in Reservoir and the front passenger side of her vehicle was impacted by another vehicle. This transport accident did lead to some temporary increase in her level of symptoms, particularly her spinal symptoms; however, with the passage of time, those symptoms returned to the level of severity that had been present prior to the second transport accident.[23]
[23]Ex P1, p19
Evidence of the Plaintiff
28 As referred to above, the plaintiff swore three 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:
Experience of pain
Spinal pain
(a)she continues to have problems with her spine, more particularly in her neck. Her neck is the source of constant and variable pain and she is never free of that pain. On a scale of ten, when it is at its worst, the level of pain in her neck reaches nine;[24]
[24]Ex P1, p17
(b)the pain in her neck radiates up into her head, causing persistent headaches, which at times can be severe. She suffers from those headaches, about once a fortnight. When they occur, she normally has to take a lot of medication and lie down to rest;[25]
[25]Ex P1, p11
(c)the pain in her neck also radiates down into her right shoulder and arm, as far as her right forearm. She experiences tingling sensations and pins and needles in the fingers of her right hand;[26]
[26]Ex P1, p12
(d)she has lost a lot of strength generally in her right arm since the collision occurred, together with a great deal of grip strength in her right hand. She finds these particular problems hard to deal with, because she is naturally right-hand dominant;[27]
[27]Ex P1, p12
(e)in addition to her neck pain, she has lower back pain which, on a scale of 10, extends up to 7.[28] Her lower back pain radiates down into her buttocks, usually worse on the right side compared to the left side, as well as down into the upper part of her right leg; [29]
[28]Ex P1, p17
[29]Ex P1, p12
(f)the pain in her lower back is most often aggravated by prolonged periods of standing or sitting, as well as when she tries to walk too far. Various movements, such as bending, twisting and lifting, as well as pushing and pulling movements, also tend to increase the pain in her lower back;[30]
[30]Ex P1, p12
(g)both her neck and her lower back pain vary in intensity, depending on how active she has tried to be during the day. The constant nature of the pain is unremitting and unrelenting. At times the pain can be “very difficult to deal with;”[31]
[31]Ex P1, p11
Right ankle pain
(h)she continues to suffer pain and stiffness in her right ankle. The ankle pain at times, can be quite troublesome. The pain in her ankle radiates up into the lower part of her right leg as far as her right knee;[32]
[32]Ex P1, p12
(i)the pain in her right ankle and lower leg is generally aggravated by prolonged periods of standing or by other weight-bearing activities. Various movements, such as bending, squatting and kneeling movements are also difficult to manage. Her right ankle is now relatively weak and unstable because of the injuries which she suffered in the transport accident;[33]
[33]Ex P1, p12
Brain Injury
(j)she continues to suffer problems related to her traumatic brain injury. She still suffers episodes of dizziness and, as a result, has fallen on occasions. She also suffers persistent headaches on an ongoing basis. In addition, she seems to be overly sensitive to bright light and has also lost some of her sense of taste and smell;[34]
[34]Ex P1, p13
(k)she continues to experience problems with her short-term memory. For example she forgets to turn the gas off when she is cooking. She has difficulties maintaining her concentration on any one thing for a prolonged period of time;[35]
[35]Ex P1, p13
Sleep
(l)she finds that her sleep continues to be interrupted by pain and she regularly wakes because of the pain;[36]
[36]Ex P1, p18
(m)it is unusual for her to get a restful night’s sleep as she regularly wakes because of pain;[37]
[37]Ex P1, p13
Emotional effects arising from the pain
(n)she continues to feel generally angry and irritable and still suffers a great deal of fatigue. She was not like this before the transport accident;[38]
[38]Ex P1, p13
Medication and treatment
(o)she continues to regularly consult her general practitioner, Dr Atulkumar Desai, usually two or three times a month. The medications prescribed by that practitioner include Prodeine for pain, and Endep, which she takes to assist with her sleeping at night;[39]
[39]Ex P1, p17
(p)she underwent a pain management program conducted through “Precision” at Heidelberg. While she was attending the pain management program, she ceased attending her physiotherapist;[40]
[40]Ex P1, pp17-18
(q)her psychological treatment is now under the care of Monique Toohey, psychologist, at Nasihah Community Group in Broadmeadows. She finds that her counselling sessions with that practitioner are of some benefit in attempting to control her level of psychological symptoms;[41]
Activities of daily living
(r)numerous aspects of her lifestyle have been interrupted by her injuries. In particular, she lacks the physical mobility and strength which she previously had. This makes her ability to maintain a household more onerous. She usually has to take breaks when undertaking chores around the house because of the pain that she is in;[42]
(s)when she is out shopping she tends to shop more frequently and carries smaller loads because of the physical strain upon her; [43]
(t)she finds that her sitting and standing tolerances are reduced, as is her ability to twist, turn or lift’[44]
(u)she remains restricted in a range of domestic, social and recreational activities. Most significantly, the injuries she sustained in the transport accident have undermined and interfered with her capacity to look after and parent her children. The injuries that she suffered with her spine interfere with many of the physical aspects of looking after her daughters, as well as her ability to play with them and engage in physically demanding activities with them. This is a great disappointment for the plaintiff;[45]
(v)she is now limited in the house and around the garden. She loved gardening before the transport accident. These days she generally has to rely upon a great deal of help in regard to the garden and the heavier chores at home;[46]
[41]Ex P1, p18
[42]Ex P1, p18
[43]Ex P1, pp18-19
[44]Ex P1, pp18-19
[45]Ex P1, p14
[46]Ex P1, pp14-15
Pecuniary disadvantage
(w)she has resumed employment with a disability provider service, Endeavour Foundation (“Endeavour”), and has been working for that entity since August 2017 as a team leader/supervisor, working from premises in Kew. She is responsible for the training of disabled people who come to the premises to undertake food packaging; [47]
(x)her work leaves her with greater symptoms of pain, but financial necessity dictates that she has to work through the pain. By the time she gets home from work at night she is in a lot of pain; [48]
(y)she has suffered a pecuniary loss as a result of her altered employment. Her current package is about $48,000, whereas her package in her former employment was up to a level of approximately $55,000;[49]
(z)she is under financial pressure, because after the transport accident her second husband left her. In addition to meeting her other financial commitments, she now has the sole responsibility for her two daughters who are aged ten and eleven years;[50]
(aa)she has become very worried about her future, in particular her future capacity to work and help financially support her family.[51]
[47]Ex P1, p18
[48]Ex P1, pp18-19
[49]Ex P1, p18
[50]Ex P1, p18
[51]Ex P1, p13
29 Under cross-examination, the plaintiff gave the following evidence:
(a)she still resides at the same unit in which she was living at the time of the transport accident. She has been there approximately nine years;[52]
[52]Transcript (“T”) 13-14
(b)it was in the 2013 calendar year that she started paid employment;[53]
[53]T17, Lines (“L”) 1-18
(c)she had only been working with Scazlo full time for a bit longer than a year before the transport accident;[54]
[54]TT17-18
(d)her husband was driving a truck. He did not have very much work;[55]
[55]T18, L5-7
(e)prior to the transport accident, she was not getting assistance from her family in India to help care for her daughters. Her husband was there to look after the kids at that time;[56]
[56]T18, L10-17
(f)her husband had very restricted rights to work and that was part of the reason why he was not working very much;[57]
[57]T18, L23-29
(g)she was doing part-time work in 2013 and then, in 2014, she started full-time work;[58]
[58]TT18-19
(h)she was employed as a casual worker;[59]
[59]T19, L5-6
(i)she was doing some shift work as well. That was in the afternoon. She would usually finish at 11.00pm, but if she did overtime, she would finish at 2.00am in the morning;[60]
[60]T19, L11-19
(j)she worked those hours on a fairly regular basis. She agreed that it was very hard to maintain those hours with two little children at home;[61]
[61]T19, L27-29
(k)since her husband left her, she has needed support from her parents, who have come out from India to assist her with looking after the children;[62]
[62]T20, L1-11
(l)prior to the transport accident, her tasks at work included operating the machine, packing food in boxes, palletising and lifting;[63]
[63]TT20-21
(m)in the financial year ending 30 June 2015, she received an overpayment from Centrelink in the sum of $18,000. She said that Centrelink had made a mistake even though she had told them she should not be receiving the money. She said that she is in the process of returning that money. She informed Centrelink three or four times that she should not be receiving the money. She started paying the Centrelink debt back last year;[64]
[64]TT21-22
(n)she agreed that the drop in Centrelink payment of $15,000 from the 2015 financial year to the 2016 financial year, was a big financial blow for her;[65]
[65]T22, L16-17
(o)her husband began working in 2014. The reason his income shows up as zero on her tax returns is that he was working through a company;[66]
[66]T23, L8-24
(p)when asked whether or not her tax return reflected the true position in relation to her husband’s income, she said that the accountant always does their tax returns. Her husband was earning approximately $700-$800 a week;[67]
[67]T23-24
(q)she now has her driver’s licence;[68]
[68]T26, L1
(r)she now works with Endeavour five days a week, Monday to Friday. She starts at 8.00am and finishes between 4.20pm or 4.30pm. She does only standard hours and no overtime;[69]
[69]T28-29
(s)she agreed that these hours of work are far more desirable than the hours that she had been working. She agreed that these hours allow her to see the children at normal times, both in the morning before school and after school;[70]
[70]T29, L13-22
(t)she agreed that when she first began at Endeavour, she was on a six-month contract. She agreed that when that contract came to an end, one of the reasons that she stopped work was because she was concerned that her parents’ visas would expire, which would mean that she would have no childcare.[71] She disagreed that she had stayed off work until her parents came back from India. She said that she was offered a full-time position with Endeavour and she took that up. To deal with childcare, she would drive her kids to before-school and after-school care;[72]
[71]T29-30
[72]T31, L5-18
(u)she said that the packing work she was doing with Endeavour was very light compared to the packaging work she was doing at Scazlo. She also explained that in her present role as a trainer, she is not actually working “I have to train the [trainees] for work”;[73]
[73]T32, L3-18
(v)she agreed that while she had been working with Endeavour, she had also completed a Certificate IV in Disability. The classes in that course were conducted in Epping on a Saturday. The course was supposed to take seven months but she took a lot longer to do it, about a year and four months.[74] The course ran from 9.00am until 3.30pm on a Saturday;[75]
[74]T33, L2-19
[75]T34-35
(w)she presently shares her house with another couple because of financial hardship. She got the permission of the owner of the house to take in some extra tenants;[76]
[76]T37, L12-22
(x)she is not interested in doing any more study at the moment;[77]
[77]T39-40
(y)prior to the lockdown which happened because of Coronavirus, she had started work with the Salvation Army as a cleaner;[78]
[78]T48, L20-29
(z)she only did one day with the Salvation Army prior to lockdown. She did one more day the week prior to this hearing. That was at the Salvation Army in Thornbury. It is kind of a church hall. The cleaning tasks involve normal dusting and mopping. The Salvation Army allow her to take her children and her father with her to help her do the job. That is why she accepted the job;[79]
[79]T49, L1-17
(aa)the job at the Salvation Army is paid work and she may do it in the future. It is only on weekends if people hire the hall;[80]
[80]T49-50
(bb)she agreed that apart from her accident, the loss of the payment from Centrelink, plus the fact of her husband leaving her and the substantial credit card debt which she inherited as a result, all contributed to her inability to pay for the house-and-land package that she and her husband had contracted for;[81]
[81]T54, L11-22
(cc)she agreed that the injury to her right ankle causes problems if she walks for a long time. She agreed that the pain from her right ankle goes as far up as her right knee;[82]
[82]T56, L19-24
(dd)the weakness, numbness and tingling that she feels in her right arm all emanates from her neck injury. The injury to her right arm that she suffered in the accident was just scratches and cuts. They have now healed;[83]
[83]T60-61
(ee)she did not recall going to see an orthopaedic surgeon prior to the transport accident in respect of ongoing right-sided hand pain. She conceded that she may have gone to see a doctor if there was pain in that area, but said that she does not remember this;[84]
[84]T63-64
(ff)it was put to her that at that time, which was in about July 2014, she could not lift or hold anything in the hand when it was numb. Again, she said she was unable to remember this. She did not dispute the accuracy of the note of the consultation;[85]
[85]T64, L3-14
(gg)she agreed that the sort of symptoms that were described in that note of consultation, were the same sort of symptoms that she gets in her hand now;[86]
[86]T64, L15-19
(hh)she agreed that she may well have consulted a doctor in respect of right knee pain in July 2014. She was unable to remember with any precision what date that consultation might have been. She did not disagree that she had had pain in her right knee on and off for many years;[87]
[87]T65, L5-30
(ii)she did not recall being fitted with a carpal tunnel brace in August 2014 for the pain in her right wrist;[88]
[88]T66, L9-20
(jj)she recalled having been offered surgery for carpal tunnel syndrome in about 2018. She recalled that she was not keen to have that surgery at that time.[89] She recalled that she was told that the surgery for carpal tunnel syndrome did not have 100 per cent success;[90]
[89]T68-69
[90]T70-71
(kk)she agreed that the numbness and pins and needles that she has in her hand, together with a loss of strength in the hand, is a major problem for her at the moment. She agreed that this affects her ability to lift;[91]
[91]T73, L3-8
(ll)she agreed that in times of stress, her aches and pains get worse and she experiences flare ups of that pain;[92]
[92]T76, L9-15
(mm)she agreed that there had been two burglaries at her house since the transport accident which had caused her stress: “Yes, because I lost everything”;[93]
[93]T76, L19-20
(nn)she agreed that when her husband left her, that caused her stress and caused a flare up of her pain.[94] She agreed that she had fallen off her front steps two or three times since the transport accident. She said that she thought that was because of the dizziness and also that she had missed her step on another occasion;[95]
[94]T76, L21-23
[95]T78-79
(oo)she agreed that she would have started a further course of study in aged care if she had been able to afford it, but it was too expensive;[96]
[96]T86, L14-24
(pp)she agreed that she had recently lost some weight which had had a positive effect on her general wellbeing.[97] She agreed she had suffered increased stress in December 2017 and going into January 2018, as it was the first Christmas her family had been without her husband and her daughters were very upset. She agreed that her pain worsened at this time, despite the fact that she had the help of her mother and she was not going to work at that time;[98]
[97]T90, L18-20
[98]T91-92
(qq)she agreed that she had had a CT scan of her lumbar spine in 2014 because of relapsing right leg pain and some paraesthesia which she had been experiencing for three years. She was unable to say anything more about that issue;[99]
[99]T96, L1-24
(rr)she said that while she does not do any cleaning at home, she does do shopping. She said that she goes with her mum to the shops;[100]
[100]T97-98
(ss)she agreed that sometimes she goes to the supermarket by herself “for the daily living stuff, buying the groceries and stuff yes”;[101]
[101]T98, L19-25
(tt)she was shown some video surveillance. It was put to her that the activities which she was depicted undertaking in the video were not unusual for her. It was suggested that this could be any day of her life and we would see her doing some of the same things. To this, she replied “Under doctor advice, how can I do it, what can I do it, with the painkiller and stuff I manage my duties”;[102]
[102]T99, L1-8
(uu)in relation to an incident depicted in the video where she attempted to get a dress off a high rack, she agreed that she had attempted to jump with her arm outstretched to get it, and she agreed that she had lifted up one of her daughters after she had been unable to reach it. To this, she replied:
“… I didn’t lift up my heavier daughter…I just use my lighter daughter to just grab the dress…as a mother for my daughter’s happiness, I have got it, whatever she needed…It was difficult, but for her smile I did.”
She explained that to do the lift she had used her knees to lift up her daughter. She agreed that it did not look like she was having trouble doing it, but she insisted that she did;[103]
[103]T101-102
(vv)she agreed that in the video surveillance that showed her locking a lock on her front door, the lock was quite high up. She said that the lock was at about shoulder height: “… I can manage the lock”. It was put to her that there was a young man who was standing there who she could have asked to assist her. To this she replied “… he doesn’t have a key. Of course the robbery and stuff happen so I never let anyone know my lock and stuff … I did lock it, I didn’t ask for help from him …”;[104]
[104]T102-103
(ww)it was put to her again that these were just the types of activities she was able to undertake on a daily basis. To this, she replied “I could ask for help, but everyday no one is with me so I do it myself, that day I did it myself as well.” She said that when she really needs help, she does ask someone for help: “If it’s really heavy stuff I ask person to help me out”;[105]
[105]T103-104
(xx)she agreed that in one of the video surveillance clips she had been seen waving her hand by raising her right arm up. She agreed that a similar movement had been undertaken when she was closing the boot on her car. It was put to her that she does these things without thinking. To this she replied “… I’m trying to improve myself, do the stuff myself … I am trying to do the independent. If I have to ask the help for every time, who do I ask always”;[106]
[106]T105-106
(yy)it was put to her that she presently lives very independently. She agreed with this proposition;[107]
[107]T106, L12-31
(zz)it was suggested to her that the Certificate IV course that she had undertaken was effectively like a sixth day of work. She agreed with this proposition;[108]
[108]T107, L20-22
(aaa)it was put to her that one of the burglaries occurred when she was away for the weekend. She agreed with this proposition. She said that a friend took her to Griffith:
“… that’s the recent time my husband was separated from us, so for change and relaxing she took me to the Griffith, to her friend’s house…I don’t want to go, but she said for your change of mind…you can…so she took me for the kids and me … .”[109]
[109]T107-108
(bbb)it was put to her that one of the clips of video surveillance showed her happily attending a council function for hours without any apparent difficulty. To this, she replied:
“…No…I don’t want to go to that council. I want to just pick up the girls, but girls say, ‘Mum stay, please, you didn’t stay for longer time. Can you please…stay for a while’, that’s why I stay with them. I was tired from work, I really want to go home, but I stay for them;”[110]
[110]T109, L1-20
(ccc)she agreed that the video surveillance depicted her engaging in the normal activities of daily living. It was put to her that at no stage in the video did she seem to be having any difficulty with those activities. To this, she replied “… I have to do the activity”; [111]
(ddd)she agreed that she still watches television and films with her girls and enjoys doing that. She agreed that she still travels to India with her family, by plane;[112]
(eee)she said that she needed to take Endep with her to travel to India. She presently takes either Panadol or Nurofen. She took Nurofen in order to allow her to give evidence to the Court hearing;[113]
(fff)she said that if a camera came to her house they would see her cooking. She said this is because her father is unable to cook. When it was put to her that they would also see her cleaning, she denied this and said that her father does all of the cleaning;[114]
(ggg)she said that she does all of these things even though she has pain. She tries to do them by herself;[115]
(hhh)she said that the pain that interrupts her sleep is the pain in her neck. She said that the pain that restricts her social activities is her neck or back pain. She said that she cannot play games with her daughter like “badminton or bowls or stuff like that. Then go for walking much. Cycling before that we go: I can’t go. Yes, lots of my hobbies;”[116]
(iii)she said that if she had to do the cleaning when she got home from work she would need to take lots of tablets and take lots of rest in-between the activities. She said that she had learned this from the pain management course that she did. She said the pain that she is managing is in her neck and lower back. She said the medication that she takes is for pain in her neck and back;[117]
(jjj)she said that she used to play badminton with her daughters in the front yard of her house before the transport accident. She said she used to throw a frisbee with her daughters. She said she cannot do either of those activities now;
(kkk)she said that the medicines she currently takes are Endep, Prodeine, Nurofen and Panadol. She takes two Endep tablets a week, or as required. She takes at least two Nurofen a day. She takes Panadol as a substitute for Nurofen. She takes Prodeine if she needs it.[118]
[111]T110, L12-31
[112]T110, L12-31
[113]T111, L6-20
[114]TT112-113
[115]T114, L1-8
[116]T114, L18-24
[117]T115, L1-21
[118]T124, L 12-24
The lay witness
Manikya Mera
30 The plaintiff’s friend, Manikya Mera, gave the following relevant evidence in an affidavit sworn on 8 May 2020:
(a)she has known the plaintiff for approximately ten years. To the best of her knowledge and belief, prior to the transport accident, the plaintiff was not suffering from any injury to or impairment of the function of her head, neck or spine;[119]
(b)she learned of the occurrence of the transport accident from the plaintiff approximately one month after the accident occurred. The plaintiff told her that she had suffered injuries to her head, neck and back and had been hospitalised following the transport accident. The plaintiff also told her that she was continuing to suffer from persistent spinal pain, particularly in her neck;[120]
(c)she has maintained regular contact with the plaintiff since the transport accident. They usually speak weekly or fortnightly. In addition, the plaintiff has some involvement in the Salvation Army volunteer work that Ms Mera is also involved in and they catch up on these occasions as well;[121]
(d)to the best of her knowledge, the plaintiff’s persisting symptoms of pain are in her neck and extending into her right shoulder, arm, and into her head with consequent headaches, as well as low back pain. These injuries have continued with an ongoing level of fluctuating pain to the present time;[122]
(e)prior to the restrictions imposed under the COVID-19 health crisis, the plaintiff had undertaken some light cleaning and cooking work for the Salvation Army. Ms Mera arranged this work to provide the plaintiff with a little financial and moral support. To Ms Mera’s observation, the plaintiff has continued to struggle with pain;[123]
(f)to the best of Ms Mera’s knowledge, the plaintiff’s present work causes her to suffer increased levels of symptoms. However the plaintiff has two young daughters and rent to pay in addition to other commitments;[124]
(g)Ms Mera is aware that the plaintiff has used a variety of medications, consulted her general practitioner, sought regular physiotherapy and chiropractic treatment and also undertaken pain management. None of these treatments appear to have provided her with any lasting relief from her symptoms;[125]
(h)Ms Mera is aware that the plaintiff was involved in a further transport accident in mid-2019. Ms Mera understands from her discussions with the plaintiff, that following a temporary increase in her symptoms, the the plaintiff’s physical state has gradually returned to the level which existed prior to the second transport accident.[126]
[119]Ex P1, pp24-25
[120]Ex P1, p25
[121]Ex P1, p25
[122]Ex P1, p25
[123]Ex P1, p25
[124]Ex P1, pp25-26
[125]Ex P1, pp25-26
[126]Ex P1, p26
Medical evidence
31 There were numerous medical reports contained in the tendered material. Both sides filed reports from medico-legal experts. A precis of the relevant medical material is set out below.
The Plaintiff’s medical reports
32 The plaintiff’s general practitioner, Dr Atulkumar Desai, provided four reports in the Plaintiff’s Court Book. In the most recent report dated 19 March 2020, Dr Desai noted that a CT scan dated 4 April 2019 reported “Moderate disc space narrowing at C6/7 vertebrae [and] C5/6 disc bulge”.[127] Under the heading “PROGNOSIS”, Dr Desai stated:
[127]Ex P1, p57
“… Almost 4 years post accident, she has regained confidence to work again in full time work…
She still gets relapsing neck/right shoulder and right ankle pain.
Feeling of low moods/frustration and inability to look after her 2 daughters properly still bothers her daily…
She is too young to consider [the nature of her condition degenerative].
Effects of her injuries are already impacting her capacity for work (even though she works full time), she is troubled by relapsing headaches/neckache, shoulder and ankle pain.
Her domestic life is also affected as she can’t perform all her domestic chores herself and can’t participate in social and recreational activities with her daughters whole heartedly.
Because of limitations imposed by her injuries, she has already started putting on weight.
This extra weight in turn is going to aggravate her back and neck pain, needing more physiotherapy and deepening depression … .”[128]
[128]Ex P1 p58
33 Following the transport accident, the plaintiff was treated by Mr Christian Bonello, physiotherapist. He noted that since the transport accident, the plaintiff had reported a history of relapsing neck and right shoulder pain. He said that this included sharp pins and needles and a numbing pain in her right arm. He said that the plaintiff reported a history of low-back pain, right-sided headaches and episodes of vertigo since the transport accident.[129]
[129]Ex P1, p60
34 Upon examination, Mr Bonello noted that the plaintiff was reporting:
“… sharp pain in a C6 dermatomal distribution in the upper limb, coupled with occasional pins and needles and numbness … On myotomal strength testing, a minor weakness was identified in a C7 pattern, and a grade strength reduction in C6 pattern was identified on manual muscle testing … .”[130]
[130]Ex P1, p61
35 Mr Bonello noted that his findings differed from the findings made by the plaintiff’s neurologist. Mr Bonello went on to note that:
“Physiological accessory movements of the right 6th cervical spinal level reproduced shoulder and arm pain and pins and needles. Furthermore, 0/C1 and C2 assessment reproduced her right sided headache symptoms and feeling of vertigo … .”[131]
[131]Ex P1, p61
36 In a report dated 13 February 2018, Mr Bonello noted that during late December 2017 to early January 2018, the plaintiff had reported an exacerbation of her upper-limb symptoms, particularly muscular tension and sharp pain referring from her neck and down her right arm. He said that this pain also referred down her right back and lower limb. In this context he noted that the plaintiff had experienced increased stressors at this time as it was the first Christmas without her husband and her daughters were extremely emotional at this time. He thought that this added burden was likely affecting her physical presentation.[132] He thought that at the time she continued to suffer from occasional exacerbations of cervicogenic headache. He said that she also reported cervical, shoulder and upper limb discomfort that correlates to referred pain of active trigger points on palpation assessment. In relation to this matter he referred back to the observations that he had made in his previous medical report.[133]
[132]Ex P1, pp71-72
[133]Ex P1, p73
37 In his latest report dated 15 October 2019, Mr Bonello repeated his earlier findings and noted the result of the cervical CT scan which had been performed on 4 April 2019, demonstrating moderate disc space narrowing and osteophyte formations at C6-7 level and to a lesser extent at C5-6 level. He also noted the comment from the radiologist that there was minimal disc bulging at these two levels which may contact the thecal sac and are slightly more prominent on the left side.[134] At this time, Mr Bonello commented:
“As evidenced by … [the plaintiff’s] upper extremity functional index and neck disability index outcome measures, it can be interpreted that her condition has recently regressed over the past six months. The aim is to restore her efficacy and functional capacity to maintain outcomes evidenced in February 2019 and June 2018 … Whilst receiving domestic assistance it is anticipated [the plaintiff] can continue full time work, however is likely to require ongoing active management and psychological support to manage her symptoms, particularly in periods of symptom exacerbation.”[135]
[134]Ex P1, p85
[135]Ex P1, 86
38 In a report dated 7 May 2020, physiotherapist, Mr Stephen Lee, was asked to comment on the surveillance footage taken of the plaintiff and to provide an opinion as to whether or not that footage would alter the opinions that had been expressed by Mr Bonello in the past. In that report, Mr Lee stated:
“[The plaintiff] does not have a choice at times with domestic chores especially when her mother is not around to assist her. She has two children and [is] separated … she will be required from time to time to do more physically challenging tasks around the house which is inevitable. The tasks during the surveillance [remain] within her capabilities from the objective findings and injuries and subjective reporting from her outcome measures …
… our opinions of her physical capabilities have not changed.”[136]
[136]Ex P1, pp89-90
39 The plaintiff has been treated by Dr Gianni DiCarlo, chiropractor, since February 2018. There were three reports from Dr DiCarlo in the Plaintiff’s Court Book. In the most recent report dated 22 August 2019, Dr DiCarlo diagnosed the plaintiff as suffering from joint dysfunction involving the right sacroiliac joint, C6-7 and T6-7 motion units. He said that the plaintiff’s chief complaints were neck and lower back pain, which stemmed from the motor vehicle accident. He noted that after several months of chiropractic care, the plaintiff’s condition had been improving quite well. He said that on 9 July 2019, she had been involved in another transport accident which had aggravated her right-sided upper neck as well as mid-thoracic, lower back and right lateral knee pain. He said that as at the date of his report in August 2019, she was “improving again … I believe she will return to the same level of function she had previously improved to.”[137] Dr DiCarlo noted that the plaintiff was currently working and that when she works a full day, she finds that it aggravates her condition. He thought that if treatment were ceased she would relapse and her condition would revert to its original state over several months. In Dr DiCarlo’s opinion, with continued care, the plaintiff would make a “measured recovery”. He thought it was likely that lifting and bending forward for extended periods would continue to reaggravate her condition.[138]
[137]Ex P1, p104
[138]Ex P1, p104
40 The plaintiff was seen for a medico-legal assessment by Mr Russell Miller, orthopaedic surgeon, on 10 November 2016. In a report dated 14 November 2016, Mr Miller noted that at that time, the plaintiff was complaining of the following symptoms:
“° Neck
She has neck pain and discomfort. It radiates into the shoulders and further down the arms, but particularly the right arm with feelings of numbness and tingling and feelings of general weakness. She has … frequent and severe headaches. She reports sleep disturbance.
° Low Back
She has low back pain and discomfort radiating into the buttocks and further down the legs, particularly the right leg with vague feelings of numbness and tingling in the legs … .”[139]
[139]Ex P1, p114
41 Mr Miller was of the view that the plaintiff had suffered a musculoligamentous strain to her cervical spine. He thought that the prognosis in relation to this injury was “only fair”.[140] Mr Miller’s opinion was that the pain in the plaintiff’s right shoulder was predominantly referred pain from her cervical spine. At that time he believed that the prognosis for the right shoulder was “good”.[141]
[140]Ex P1, p117
[141]Ex P1, p117
42 The plaintiff was assessed by Elizabeth Mullaly, clinical neuropsychologist, for medico-legal purposes. Ms Mullaly expressed the view that the plaintiff’s ongoing subjective difficulties in day-to-day life are now likely to be due to anxiety and depressed mood associated with her major losses and also her persisting pain.[142]
[142]Ex P1, p127
43 The plaintiff was assessed by Dr Brendan Hayman, consultant psychiatrist, for medico-legal purposes. He most recently saw the plaintiff on 22 October 2019. In a report of the same date, Dr Hayman expressed the opinion that the plaintiff was then suffering from a chronic adjustment disorder with depressed and anxious mood. He thought that this related largely to the transport accident and its sequelae, however he was also of the opinion that there was a contribution from the burglaries that had been committed on the plaintiff’s house.[143]
[143]Ex P1, p153
44 The plaintiff was assessed for medico-legal purposes by Professor Richard Bittar, consultant neurosurgeon, in about October 2019. In a report dated 4 October 2019, Professor Bittar stated that the plaintiff had reported neck pain and right brachialgia. He said that she had reported constant right-sided neck pain which has an average severity of 6 to 7 out of 10 and a maximum severity of 8 out of 10. This pain radiates into her right shoulder, into her triceps and into her forearm and hand and is associated with tingling in her middle and ring fingers. He said that she reported that her neck pain also radiates to the back of her head and is associated with headaches. Professor Bittar continued:
“Her neck pain is exacerbated by maintaining her neck in a fixed position for prolonged periods, using her arms above shoulder height and any sudden or sustained neck extension, flexion or rotation. She can use a computer for up to 10 minutes and can drive for a maximum of approximately one hour before her pain deteriorates. Pain deteriorates if she lifts more than 5 or 10 kg. It improves with heat packs and medications. Her right arm pain is aching in character whereas her neck pain is sometimes sharp. Her arm pain is of similar severity to her neck pain and has similar exacerbating and relieving factors. The pins and needles in her right hand are intermittent …
Her back pain has improved considerably with time and now occurs only intermittently, typically being present around an hour per day. It is generally sharp and throbbing and is worse on the right side. It has an average severity of 3/10 with a maximum severity of 7/10. It is exacerbated by bending, pushing, pulling, sitting for more than one hour, standing for more than a few hours and walking for more than around 10 minutes. It improves with frequent postural changes, heat packs and medications.
Her main problem has been ongoing neck pain and right arm pain.”[144]
[144]Ex P1, pp159-160
45 Professor Bittar diagnosed the plaintiff as suffering from an aggravation of cervical spondylosis with neck pain, referred arm pain and cervicogenic headaches together with aggravation of lumbar spondylosis.[145] Professor Bittar expressed the opinion that the plaintiff’s condition was “not a degenerative condition”. He thought that at that stage she was incapacitated for her full pre-injury duties and:
“… it is my opinion that she will not be able to return to that type of work. She does have the capacity to undertake light physical work full time and is currently employed in such a role. In my opinion, her partial incapacity [for] work is permanent.”[146]
[145]Ex P1, p162
[146]Ex P1, p163
46 The plaintiff was examined for medico-legal purposes by Professor Mark Cook, neurologist and epileptologist, on 23 November 2019. In a report of the same date, Professor Cook said that on examination of the plaintiff’s cervical spine:
“… there is quite significant spasm and tenderness of the cervical paraspinal muscles, and movements are significantly restricted in all directions but particularly on rotation to the right.
In the upper limbs … Sensory testing demonstrated altered pinprick and light touch in approximately the C7 distribution on the right.
Examining the lumbar spine, there is tenderness and spasm of the paraspinal muscles and movements are moderately restricted in all directions by pain … .”[147]
[147]Ex P1, p167
47 In Professor Cook’s opinion, the plaintiff’s neck and arm pain is radicular in nature and there is a weakness of elbow extension on the right as well as sensory change consistent with this. He noted that while there are no reflex changes or abnormalities on the MRI scan, this is often the case when traumatic injuries have caused acute damage to the nerve but no residual structural abnormality can be seen. He said that the symptoms are “quite persistent and her description has been consistent throughout”.[148] He did not believe that the plaintiff’s previously diagnosed mild carpal tunnel syndrome would explain these symptoms. He noted that electrophysiological features of Carpal Tunnel Syndrome are often found incidentally. He said that taking this altogether “I think she has good evidence of a right C7 radiculopathy”.[149] He thought that the back pain was not associated with radiculopathy but was musculoskeletal in nature.[150]
[148]Ex P1, p168
[149]Ex P1, p168
[150]Ex P1, p168
48 In a report dated 2 May 2020, Professor Cook was asked to comment on the video surveillance clips which had been taken of the plaintiff in October and December 2019. Having reviewed the surveillance, Professor Cook said:
“… These videos show [the plaintiff] going about a number of activities, including shopping, picking up a small child, attending medical appointments, and so on. She appears quite mobile during these activities and doesn’t appear to be visibly restricted in terms of the range of motor activity she can perform.
I don’t think any of this is inconsistent with what she described to me though, in fact the point was made that she has made every effort to get back to her usual life and has even returned to work. I think despite the complaints that she has, it is normal for people to try and participate in normal daily activities, and nothing that I saw on the video suggested anything outside what I would expect. I don’t feel there are any inconsistencies with the descriptions of limitations relating to her complaints that were provided.”[151]
[151]Ex P1, p172
49 The plaintiff was assessed by Dr Peter Blombery, consultant physician, for medico-legal purposes on 21 October 2019. In Dr Blombery’s opinion, the ongoing pain that the plaintiff has in her neck and back are caused by previously asymptomatic degenerative changes which have been rendered symptomatic and that have been complicated by the development of a pain syndrome with pain pathway sensitisation. He thought that her prognosis for recovery is poor.[152]
[152]Ex P1, p176
50 Dr Blombery was also shown the video surveillance clips of the plaintiff and in a report dated 5 May 2020, stated:
“It is my opinion that her limitations on surveillance were less than I assessed during the course of my examination and report. However, [the plaintiff] did tell me that she was working full-time supporting disability patients as a team leader and was coping with that reasonably, which would be consistent with the range of movement that I saw during the surveillance …
… her functional state when I saw her for formal assessment was not markedly impaired but continued to cause her significant discomfort … .”[153]
[153]Ex P1, p177
51 The plaintiff was assessed for medico-legal purposes by Dr Joseph Slesenger, specialist occupational physician, on 15 November 2019. In a report dated 4 December 2019, Dr Slesenger noted that as a result of the transport accident, the plaintiff has residual right-sided neck pain with associated restriction of a range of movements. He said her neck pain had not improved since the injury and in fact had deteriorated. He said that the plaintiff advised that her neck pain “radiates into her right upper limb with tingling in her right hand, weakness and difficulty with fine dexterous tasks”.[154] He said that she reported that she had developed headaches as a result of the transport accident, centred over the posterior lateral aspect of her head with associated dizziness, nausea, visual disturbance (blurred vision), memory loss and concentration difficulties. The plaintiff reported that the headaches vary during the course of the day and are generally severe. She reported that she had residual pain in the right shoulder, which is severe and constant, associated with restriction to her range of movements. She has difficulty lifting on the right side, difficulty forward reaching, difficulty over-shoulder reaching and difficulty lying on her right side. He said that she reported that she is generally more reliant on the left side.
[154]Ex P1, p180
52 Lastly, she reported that she had residual lower back pain, radiating to the right leg. She said that the pain is constant and severe, aggravated by activities. The pain is dull, but occasionally sharp in character. She reported difficulty with squatting and walking on an uneven ground. She said that she can stand and walk for ten to fifteen minutes and can sit for about thirty to forty minutes.[155]
[155]Ex P1, pp180-181
53 Dr Slesenger was of the opinion that at that stage, the plaintiff could not return to unrestricted pre-injury duties, as the job remains outside her capacity limits. He thought that the effect of the injuries sustained in the transport accident upon the plaintiff’s promotional opportunities at work was uncertain. He thought that the effect of the injuries as a whole, had reduced her long-term employment prospects.[156]
[156]Ex P1, p191
54 Dr Slesenger was also shown the video surveillance clips which were taken of the plaintiff in 2019. In a report dated 29 April 2020, he noted that:
“… [the] footage demonstrates a well-preserved range of cervical spine movements, right shoulder movements and lumbar spinal movements...
The footage indicates that her range of movements is greater than that which was demonstrated and described at evaluation, and there is also indication that her overall function is greater than that which was described at evaluation.”[157]
[157]Ex P1, p203
55 Following his review of the video surveillance, Dr Slesenger said that taking the evidence as a whole, he thought that the plaintiff should be subjected to the following restrictions:
“• No push, pull, carry or lift over 5 kg on a regular basis and 10 kg on an occasional basis.
• Avoid sustained over shoulder reaching.
• Driving for up to an hour.”[158]
[158]Ex P1, p203
The Defendant’s medical reports
56 The plaintiff was examined for medico-legal purposes on behalf of the defendant by Dr David Szmulewicz, neurologist and neuro-otologist, on 1 November 2019. In a report of the same date, Dr Szmulewicz noted that there was tenderness over the right cervical paraspinal and upper trapezius muscle regions and that examination of the lumbar region resulted in “significant [discomfort in the] right-sided paraspinal and lateral lumbar regions and so, further palpation was not undertaken”.[159] Dr Szmulewicz commented that the distribution of the right upper-limb impairment would be consistent with a C6 radiculopathy. He thought that the plaintiff was also suffering from right-sided occipital neuralgia and a post-traumatic migraine/post-concussion syndrome.[160] He thought that these conditions arose as a result of the transport accident.[161]
[159]Ex D1, pp7-8
[160]Ex D1, p9
[161]Ex D1, p10
57 The plaintiff was examined for medico-legal purposes on behalf of the defendant by Dr Anthony Menz, consultant orthopaedic surgeon, on 17 December 2019. In a report dated 30 December 2019, Dr Menz noted that the plaintiff did sustain injuries in the transport accident, namely concussion and soft tissue injuries to her cervical spine, lumbar spine and possibly the right shoulder. He said that the concussion has now resolved but that she continues to complain of pain in her neck, back and right shoulder. He thought the prognosis for resolution of these injuries was poor, as it is four years since the transport accident.[162] He said that the plaintiff had had CT scans of both her cervical and lumbar spine which had been reported as normal. I note that Dr Menz was not in possession of the 2019 CT scan which demonstrated abnormalities in the plaintiff’s cervical spine.
[162]Ex D1, p21
58 Based on the material before him, Dr Menz was of the opinion that the plaintiff had sustained a soft-tissue injury of both the cervical and lumbar spine, which should have resolved by the date of his examination. In the absence of the information contained in the 2019 CT scan of the cervical spine, he was unable to give a reason for her ongoing, neck, back and shoulder problems.[163] He commented that to his knowledge there was no pre-existing or unrelated conditions from which the plaintiff suffered prior to the transport accident.[164]
[163]Ex D1, p21
[164]Ex D1, p22
59 Dr Menz was also shown the video surveillance clips. In a report dated 6 May 2020, he noted that in the video surveillance:
“… at no stage did she exhibit any pain. She moved normally and freely with walking, shopping, bending down and getting in and out of her car on multiple occasions. She was also seen reaching up to lock a door with her right arm and that range of movement was far greater than what I saw at my clinical examination.
In summary I think that [the plaintiff’s] lifestyle represents one of a pain free lifestyle in which she can do anything she likes. She said she cannot do the shopping and obviously this is not true as a large timeframe of the surveillance was in shopping centres. She also said her walking distance is about 10 to 15 minutes and she was obviously walking for a longer period of time than that…
… I now believe that this lady has no ongoing pathology with regard to her neck, her back and her shoulders. I believe she has made a full recovery, and this has been shown from the video surveillance.”[165]
[165]Ex D1, pp29-30
60 The plaintiff was examined for medico-legal purposes on behalf of the defendant by Dr Andrew Gibbs, clinical neuropsychologist, on 17 February 2020. Following his examination, Dr Gibbs expressed the view that features of the plaintiff’s Adjustment Disorder with Depressed Mood and Anxiety as well as post-traumatic features, arose from the nature of her transport accident. He thought there was also a significant component relating to the depression arising from her subsequent martial breakdown and the psychological consequences of this.[166]
[166]Ex D1, p47
The issues
The Plaintiff’s credit
61 The plaintiff was challenged on many aspects of what she said were the consequences to her of the injuries that she had sustained in the transport accident. In particular, it was put to the plaintiff, via the playing of several clips of video surveillance, that the activities depicted in that video surveillance showed her doing everyday activities such as shopping, attending social functions, and generally being with her family in an unrestricted manner. In particular, it was pointed out that the video surveillance at times demonstrated her reaching above shoulder height to do tasks, for example locking her front door or closing the boot of her car. On one occasion, the surveillance footage showed her jumping up to reach an item of clothing in a shop which was too high for her, and thereafter lifting her daughter up in order for that item of clothing to be brought down to be inspected.
62 In relation of each of these issues, the plaintiff offered reasonable explanations which were consistent and cogent. She maintained this evidence throughout the cross-examination. The gist of the responses was that while these activities cause her pain, she finds it necessary to do them for various reasons, whether it be to try to remain independent, that there is nobody about to help her or she does not feel comfortable asking for help, or that she was trying to please her children. Lastly, the plaintiff insisted that despite the fact that she did not look like she was in pain when doing these activities, she was experiencing the pain that she had deposed to, but that she still felt it necessary to do the activities anyway.
63 The plaintiff’s friend, Ms Mera, corroborated the plaintiff’s account of ongoing consequences since the occurrence of the transport accident in 2015. Viewing the video surveillance did not cause the majority of the medical experts to revise their opinion as to the level of discomfort caused to the plaintiff by her spinal injuries. The position of the medical experts is best summed up by the comments of Professor Cook, who stated:
“… I don’t think any of this is inconsistent with what she described to me … in fact the point was made that she has made every effort to get back to her usual life and has even returned to work. I think despite the complaints that she has, it is normal for people to try and participate in normal daily activities, and nothing that I saw on the video suggested anything outside what I would expect … .”
64 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 concessions which at times were against her interest.
65 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.
66 After consideration of all of the evidence, in particular the evidence of the plaintiff as corroborated by her friend, Ms Mera, together with the histories she gave to various medical practitioners, I consider that she was a credible witness in the sense of being a truthful person.
Stoic plaintiff
67 I also formed the view that the plaintiff is extremely stoic in relation to her condition. An analysis of the evidence demonstrates that she has suffered constant pain since the transport accident in November 2015.
68 Despite this, I find that she has made a concerted effort to return to work and to engage in additional training, despite these activities causing her significant, daily pain.
69 I find that she has attempted to maintain her independence, even though these attempts cause her pain. I find that she continues to try to engage with her children and to undertake activities for their benefit, even though those activities cause her pain.
Compensable injury
70 The details of the occurrence of the injuries are not in dispute.
71 Similarly, there is no dispute that the plaintiff is suffering from injuries as a result of the transport accident that are organic in nature.
72 On that basis, relevantly to this application, I am satisfied that as a result of the transport accident, the plaintiff suffers from the following injuries:
(a)an aggravation of cervical spondylosis with neck pain, referred arm pain and cervicogenic headaches; and
(b) an aggravation of lumbar spondylosis.
Is the compensable injury “long term” for the purposes of the Act?
73 Having considered the relevant reports, in particular the reports from Dr DiCarlo,[167] Dr Desai,[168] Mr Bonello,[169] Professor Bittar,[170] Dr Blombery[171] and Dr Menz,[172] I find that the plaintiff is likely to continue to suffer from the injuries sustained in the transport accident as set out above for the foreseeable future. Given this, I find that the injuries to the plaintiff’s spine suffered by the plaintiff as a result of the transport accident, are “long term” for the purposes of the Act.
[167]Ex P1, p124
[168]Ex P1, p58
[169]Ex P1, p86
[170]Ex P1, p163
[171]Ex P1, p176
[172]Ex D1, p21
Are the consequences to the Plaintiff of the transport accident “serious”?
74 Having regard to all of the relevant evidence, I find that as a result of the injury to her spine alone, the plaintiff suffers from the following consequences:
(a)constant and variable pain in her neck. On a scale of 10, when it is at its worst, the level of pain in her neck reaches 9;
(b)the pain from her neck radiates up into her head, causing persistent headaches, which at times can be severe. She suffers from those headaches, about once a fortnight. When they occur, she normally has to take a lot of medication and lie down to rest;
(c)the pain in her neck radiates down into her right shoulder and arm as far as her right forearm. She experiences tingling sensations and pins and needles in the fingers of her right hand and a loss of strength in her right arm;
(d)constant and variable pain in her lower back, aggravated by prolonged periods of standing or sitting, walking too far, bending, twisting, lifting, pushing and pulling movements. On a scale of 10, this pain at its worst extends up to 7. Her lower back pain radiates down into her buttocks, usually worse on the right side compared to the left side, as well as down into the upper part of her right leg;
(e)regularly interrupted sleep because of the pain in her neck, causing her to feel generally angry and irritable and to suffer a great deal of fatigue;
(f)the need to take daily medication to control her spinal pain. At least twice per week she takes much stronger pain-relieving medication, in part to assist her to sleep;
(g)the need to consult her general practitioner regularly in respect of pain management and the need to obtain regular counselling to assist her to cope with her pain;
(h)a loss of strength and mobility, causing an interruption to numerous aspects of her lifestyle. This makes her ability to maintain a household more onerous. She is now limited in the house and around the garden. She loved gardening before the transport accident. These days she generally has to rely upon a great deal of help in regard to the garden and the heavier chores at home. She usually has to take breaks when undertaking chores around the house because of the pain that she is in. When she is out shopping she tends to shop more frequently and carries smaller loads because of the physical strain upon her;
(i)her sitting and standing tolerances are reduced, as is her ability to twist, turn or lift;
(j)most significantly, the injuries she sustained in the transport accident have undermined and interfered with her capacity to look after and parent her children. The injuries that she suffered with her spine interfere with many of the physical aspects of looking after her daughters, as well as her ability to play with them and engage in physically-demanding activities with them. This is a great disappointment for the plaintiff;
(k)her work leaves her with greater symptoms of pain, but financial necessity dictates that she has to work through the pain. By the time she gets home from work at night she is in a lot of pain;
(l)she has suffered a pecuniary loss as a result of her altered employment. Her current package is about $48,000, whereas her package in her former employment was up to a level of approximately $55,000. In addition to the immediate loss which she has suffered, her employment prospects have been permanently and adversely affected, since a part of the labour market in which she used to engage, is no longer open to her;
(m)she is under financial pressure, because after the transport accident. She has become very worried about her future, in particular her future capacity to work and help financially support her family.
75 In Haden Engineering Pty Ltd v McKinnon,[173] the Court of Appeal made observations about the task of evaluating the pain and suffering consequences of an injury. In particular, Maxwell P observed that the consequences of pain and suffering encompassed both the plaintiff’s experience of pain, as well as the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.[174] Part of the process is for the Court to assess the intensity of pain which the plaintiff experiences, together with the frequency and duration of pain episodes. As set out above, ultimately, the question of whether an injury satisfies the relevant test under the Act is one of impression or value judgment. The weight to be attached to the plaintiff’s account of the pain experienced will depend upon an assessment of the plaintiff’s credibility.[175] It has been observed by the Court of Appeal that once it is accepted that the appellant is a truthful witness and especially where the plaintiff has been found to be stoic, there is no reason to reject her ongoing descriptions of the pain suffered by her.[176]
[173](2010) 31 VR 1
[174]Haden (ibid) at paragraph [9]
[175]Haden (ibid) at paragraph [12]; see also Halpin v Wilson Transformer Company Pty Ltd [2012] VSCA 235 at paragraph [44]
[176]ibid
76 I have already made observations about the plaintiff’s demeanour and presentation in Court. In particular, I have found that the plaintiff was both a witness of credit and also stoic in her presentation and attitude to managing her injuries.
77 An analysis of the evidence clearly demonstrates that by reason of the consequences of her spine injury alone, many aspects of the plaintiff’s life have been adversely affected.
78 In particular, the plaintiff endures permanent, daily pain in her neck and back, which causes significant discomfort and restrictions in various aspects of her life. She is unable to stand, sit, bend, lift, twist, push or pull without aggravating her spinal pain. Her spinal pain causes her regularly interrupted sleep, which in turn has impacted upon her mood. The level and nature of her spinal pain is such that she is required to engage in pain-relieving activities such as taking frequent medication.
79 Because of her spinal pain, her ability to work has been adversely impacted on a daily and continuing basis. She has had to change her job with a not insignificant decrease in salary. Even in this job, which consists of duties much lighter than that which she was performing prior to the transport accident, she is in a lot of pain at the end of the working day. All of the medical experts agree that the plaintiff can never again perform the heavy manual work which she engaged in prior to the transport accident. Thus, her employment prospects have been permanently and adversely affected, since a part of the labour market in which she used to engage, is no longer open to her. Her activities of daily living, including her ability to interact as she would wish with her children, have been adversely affected.
80 The fact that after the accident, the plaintiff has been prepared to keep working, is not a matter that tells against the granting of his application. To use the words of Nettle J A in Dwyer v Calco Timbers Pty Ltd (No 2):[177]
“… it would be unfortunate, and in … [our] view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[177][2008] VSCA 260
81 As was observed in Hooley v Transport Accident Commission:[178]
“50… The pecuniary disadvantage consequence of having one’s chosen field of employment permanently limited from a very young age is, as we have said, a very significant consequence. It includes but goes well beyond being a pain and suffering or loss of enjoyment of life consequence.
51As we have already said, the age at which the applicant suffered his permanent injury is also a significant matter. As this Court said in Stijepic v One Force Group Australia Pty Ltd, - when judging the consequences for a particular applicant by comparison with other cases, it is relevant to look at the likely period for which those consequences will be experienced. Here, the applicant will endure a restriction on the range of work he can perform for, perhaps, 45 years and this long-term loss of earning capacity must be recognised as a loss in significant dollar terms. All things being equal, impairment consequences which an applicant will have to put up with for decades might well be judged more serious than the same consequences which another applicant may have to put up with for a much shorter period of time.”
[178][2019] VSCA 263
82 Taking into account all of the evidence, I am satisfied that the pain and suffering consequences of the plaintiff’s injury to her spine alone are “very considerable” and certainly more than “significant” or “marked” and therefore satisfy the relevant test for “serious injury” as set out in the Act.
Conclusion
83 For the reasons set out above, I am satisfied that as a consequence of the accident which occurred on 17 November 2015, the plaintiff has suffered a “serious injury” to her spine, as that term is defined in the Act. The application is granted.
84 I will hear the parties on the question of costs.
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