Sandry v Transport Accident Commission
[2015] VCC 740
•9 June 2015
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-05372
| MAUREEN SANDRY | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 21 and 22 May 2015 | |
DATE OF JUDGMENT: | 9 June 2015 | |
CASE MAY BE CITED AS: | Sandry v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 740 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – impairment of cervical spine – whiplash injury – whether or not the consequences are “serious” – psychological impact on the cervical spine injury
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Richards v Wylie (2000) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129; Church v Echuca Regional Health (2008) 20 VR 566
Judgment: Application for serious injury in respect of the cervical spine injury is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell QC with Mr D J N Purcell | Arnold Dallas McPherson |
| For the Defendant | Mr W R Middleton QC with Mr R Kumar | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 This is an application brought by Originating Motion dated 16 October 2014. The plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 14 March, 2010 (“the said date”). I note for completeness that the police report has this accident occurring on 15 March 2010.[1]
[1]Plaintiff’s Court Book (“PCB”) 77
2 Section 93(6) of the Act provides a court must not give leave under s93(4)(d) unless it is satisfied that the injury is a “serious injury”.
3 The definition of “serious injury” relied upon by the plaintiff is under s93(17):
“(a) serious long-term impairment or loss of a body function.”
4 In this application, the plaintiff seeks serious injury certification for the loss of body function of the cervical spine.
5 The enquiry under s93(17) of the Act focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then, by reference to the consequences of that impairment, to determine whether it is serious and long-term.
6 The serious injury defined under s93(17)(a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of an impairment of the body function.[2]
[2]Richards v Wylie (2000) 1 VR 79
7 In forming the judgment as to whether the consequences of the injury to the plaintiff’s spine are “serious”, the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described “at least as ‘very considerable’” and certainly “more than ‘significant’ or ‘marked’”?[3]
[3] Humphries & Anor v Poljak [1992] 2 VR 129
8 The plaintiff swore and relied upon two affidavits dated 5 December 2012 and 11 February 2015. The plaintiff gave further evidence at the hearing and was cross-examined by the defendant. The plaintiff also relied upon an affidavit of Ian Jinks, her partner, sworn on 21 May 2015. Mr Jinks was not cross-examined.
9 In addition to the sworn affidavits and evidence given by the plaintiff and her partner, both parties to this application relied upon medical reports and other material which were tendered during the course of the proceeding. I have read all of the tendered medical material.
10 The tendered evidence in this proceeding was as follows:
· Exhibit P1 – the Plaintiff’s Court Book (“PCB”), pages 6-37 inclusive and pages 54-75 inclusive
· Exhibit D1 – two DVD-surveillance films containing footage of the internal and external parts of the plaintiff’s shop dated 19 February 2015, 27 February 2015 and 5 March 2015
· Exhibit D2 – PCB, pages 76-80 inclusive
· Exhibit D3 – the Defendant’s Court Book (“DCB”), pages 1-26 inclusive, page 41 and pages 46-73 inclusive.
11 At the commencement of the proceeding, Mr Middleton QC, on behalf of the defendant, stated that the issues in this application were:
(a) Whether the injury or consequences for the plaintiff as a result of the injury to her cervical spine are properly described as “in the range of cases considered as a whole to be serious under the Act”;
(b) The level or extent of any mental or psychological response by the plaintiff to the physical impairment to her cervical spine.
12 In the course of the cross-examination of the plaintiff, it was clear that the defendant was also challenging the plaintiff’s credit as to her description as to the extent of the injuries and its consequences to her.
The Plaintiff’s background
13 The plaintiff was born in 1962. She is now aged fifty-two.[4]
[4]Transcript (“T”) 12 and PCB 6
14 The plaintiff has lived in Australia her whole life. The plaintiff has been a married woman but has lived in a de facto relationship since 1985. The plaintiff had two daughters and a son from her marriage. She has subsequently had a son from her de facto relationship.[5] The youngest son, Angus, lives with her and her de facto partner.
[5]T15
15 The plaintiff was educated to Year 9.[6] Subsequent to completing her education, the plaintiff has worked in various shop assistant roles, including video shops, pizza shops and as an employee in a mixed business.[7] The plaintiff also worked as a cleaner in motels and private homes.
[6]PCB 6
[7]PCB 6-7
16 In 2007, the plaintiff commenced her employment, originally as a domestic assistant in the Murrayvale Aged Care facility (“Murrayvale”). In the course of her employment at Murrayvale, the plaintiff became qualified as a cook and worked for 22.5 hours per week.[8] At the time of the transport accident, the plaintiff was working in that capacity as a cook at Murrayvale.
[8]T19-20
17 After the transport accident the subject of this application, the plaintiff continued to work at Murrayvale until October 2010.[9] The plaintiff has subsequently had employment as a shop assistant and milk bar assistant until she and her defacto partner purchased a business of their own.[10]
[9]T46
[10]T31
18 On 22 November 2013, the plaintiff and her defacto partner, Mr Jinks, commenced the proprietorship of a small business known as the “High Street South Corner Store”.[11] The plaintiff continues to work and operate that business at the time of this application.
[11]PCB 17 and T32
19 The business is a mixed business, including the preparation and sale of food, the sale of café-type products, lollies, ice creams, newspapers, cigarettes and small lines of groceries. The plaintiff stated that she did not employ any other people in the business.[12] The shop is open seven days a week. On Monday to Saturday, the shop is open from 6.00am until 7.30pm. On Sundays, the shop is opened at 7.00am and closed at 3.00pm.[13] The plaintiff described the shop as a “big shop”.[14] The plaintiff’s evidence is that she is the main worker in the shop, operating it from approximately 6.30am on weekdays, through until 5.00 to 5.30pm, when she receives some assistance from her de facto partner when he returns from work.
[12]T32
[13]T32
[14]T36
The transport accident involving the Plaintiff
20 The plaintiff described the transport accident in her affidavit dated 5 December 2012 in the following terms:
“Late morning on 14 March 2010, I was involved in a motor vehicle accident on the Calder freeway at some point between Gisborne and Sunbury.
I was driving along and passing a semi-trailer when all of a sudden I felt that my car was being hit. I can remember hearing a ‘bang’ and feeling the impact into the back of my car. The glass from the left hand side was flying into the car. A car had come between myself and the semi-trailer. The maneuver (sic) pushed me to the right side of the road where I skidded and swerved to abrupt stop. I narrowly avoided careering into an embankment. As the Calder is a separated double freeway, I fortunately did not collide into any oncoming vehicle.”[15]
[15]PCB 7-8
21 The plaintiff’s car was written-off as a result of this collision. At the time of the accident, ambulance officers examined the plaintiff and stated that she was “okay”. The plaintiff organised for her daughter to come and pick her up and take her back to Echuca.[16] The plaintiff suffered pain in her neck and felt nausea as a result of the transport accident.
[16]PCB 8
22 The plaintiff did not attend hospital on the day of the accident but attended early the next morning at Echuca.
23 There was no report relied upon by the plaintiff from the Echuca Hospital relating to the plaintiff’s attendance there on 16 March 2010.
The Plaintiff’s impairment or loss of body function
The cervical spine
24 The loss of body function the plaintiff claims resulting from the transport accident is an injury to her neck. The plaintiff also complains of a referral of pain from her neck down the left side of her neck to her left shoulder. The plaintiff is right handed.
25 Immediately after the accident, ambulance officers attended at the scene of the transport accident. The ambulance officers were unable to determine any injury to the plaintiff. The plaintiff was less than pleased with the lack of treatment and attention given to her by the attending ambulance officers.[17]
[17]PCB 8
26 On the morning after the accident, the plaintiff attended the Echuca Hospital. According to the documentation in this application, the plaintiff underwent an x‑ray of her cervical spine, and a CT scan of her brain and cervical spine on 16 March 2010. These investigations were performed at the Echuca Hospital.[18]
[18]T19 and PCB 8
27 The x-ray of the plaintiff’s cervical spine on 16 March 2010 was reported as “normal”. The CT scans of the plaintiff’s brain and cervical spine performed on 16 March 2010 were reported to be normal, apart from minor multi-level cervical spondylosis. As I have previously stated, there is no report from the Echuca Hospital as to the plaintiff’s complaints or treatment at that time.
28 The plaintiff attended upon her general practitioner, Dr James Teh. Dr Teh diagnosed the plaintiff as suffering from a whiplash-type injury, and gave her instructions for exercises for her neck and thoracic spine.[19]
[19]PCB 20
29 On 6 April 2010, the plaintiff attended upon Dr Matthew McLindon, chiropractor, at the Murray River Chiropractic Centre. On that occasion, the plaintiff reported that she was suffering from whiplash and a delayed concussion. Dr McLindon examined the plaintiff and noted that there was no significant decrease in cervical active range of motion and no frank neurological signs in the upper or lower extremities. Dr McLindon noted that there was severe posterior cervical muscle guarding and hypertonicity.[20]
[20]PCB 26
30 Dr McLindon diagnosed the plaintiff with an acute whiplash injury, and commenced chiropractic treatment consisting of spinal adjustments to her cervical spine, heat therapy and soft-tissue therapy.[21]
[21]PCB 26
31 Initially, the plaintiff attended upon Dr McLindon every fortnight. Her current treatment is monthly.[22]
[22]T25-26
32 The plaintiff re-attended upon her general practitioner, Dr Teh, on 10 May 2010. On that occasion, Dr Teh diagnosed the plaintiff as suffering from fibromyalgia, and prescribed Endep tablets for her. Dr Teh has not seen the plaintiff for follow up since that time.[23]
[23]PCB 20
33 Dr Teh noted that the plaintiff had been receiving treatment from the mental health worker for stress and depression which he thought may have been aggravating the symptoms for the plaintiff from the transport accident.[24]
[24]PCB 20
34 The plaintiff subsequently attended upon Dr G Hay, general practitioner, on 26 July 2010, 17 August 2010 and 2 September 2010. At that time, Dr Hay had prescribed Naprosyn and Endep for the plaintiff.
35 The plaintiff has not received any further treatment from her general practitioners, Dr Teh or Dr Hay, since September 2010.[25]
[25]T22
36 The plaintiff has not been referred to, or sought further medical advice from, a specialist such as an orthopaedic surgeon in respect of her neck injury.
37 The plaintiff has attended a physiotherapist, Ms Kay Knight, at the Rich River Physiotherapy & Acupuncture Clinic. The plaintiff first attended the physiotherapist on 9 November 2011.
38 The plaintiff last received treatment from Ms Knight on 13 December 2011.[26]
[26]PCB 34
39 The plaintiff then attended upon the physiotherapist, Ms Lynda Stainton, between 22 May 2013 and 19 June 2013. In total, the plaintiff attended the physiotherapist on this occasion on four separate occasions for treatment.[27]
[27]PCB 36-37
40 The plaintiff has not received any further physiotherapy treatment since June 2013 for her neck and left shoulder symptoms.[28]
[28]T27
41 The plaintiff’s currently receives treatment from the chiropractor, Dr McLindon, on a monthly basis. She continues to take over-the-counter medication of Nurofen Plus and Panadol for pain relief.
42 The plaintiff also receives massage for assistance with her neck and left shoulder pain.[29]
[29]PCB 12
Medical Opinions
Dr James Teh, General Practitioner
43 Dr Teh prepared a report dated 11 September 2011.
44 Dr Teh saw the plaintiff on two occasions: 18 March 2010 and 10 May 2010.[30]
[30]DCB 11
45 Dr Teh diagnosed the plaintiff with a whiplash-type injury.[31]
[31]PCB 20
46 On the second occasion after observing a continuation of the symptoms complained of by the plaintiff, Dr Teh made a diagnosis of fibromyalgia, and prescribed Endep tablets.
47 Dr Teh noted that the plaintiff had received mental health worker assistance between 4 July 2011 and 8 August 2011 for symptoms of stress and depression. These psychological and psychiatric symptoms were not related to the accident.[32]
[32]PCB 20
48 It is some five years since Dr Teh last examined the plaintiff, and his opinion in relation to the plaintiff’s current condition is of little assistance.
Dr G Hay, General Practitioner
49 Dr Hay prepared a report dated 21 August 2013 for this application.
50 Dr Hay saw the plaintiff initially on 26 July 2010, with follow-up visits in respect of the neck pain symptoms on 17 August 2010 and 2 September 2010.
51 In July 2013, the plaintiff complained to Dr Hay about left shoulder pain and symptoms. As a result of that complaint, Dr Hay ordered an ultrasound and x‑ray of the left shoulder and a CT scan of the cervical spine.
52 Dr Hay noted that the plaintiff had had neck pain and pain in the left shoulder for approximately three years in his report dated 21 August 2013.
53 Dr Hay noted that the CT scan of the cervical spine was normal, the x-ray of the left shoulder was normal and the ultrasound of the left shoulder showed signs of subacromial bursitis but no rotator cuff tears.[33]
[33]PCB 23
Dr Matthew McLindon, Chiropractor
54 Dr McLindon prepared three reports dated 24 October 2011, 25 July 2013 and 18 February 2015 for this application.
55 Dr McLindon first saw the plaintiff on 6 April 2010 for bilateral neck pain and bilateral shoulder pain with severe headaches as a result of the transport accident.[34]
[34]PCB 26
56 Dr McLindon noted that the x-rays and CT scans of the plaintiff showed no abnormality.
57 Initially, Dr McLindon was treating the plaintiff every fortnight but now treats the plaintiff on a monthly basis.
58 In his first report dated 24 October 2011, Dr McLindon thought that the plaintiff’s condition had stabilised. He anticipated that during the next six months, her condition would stabilise further to a point where the plaintiff would be relatively fully functional and pain free.[35]
[35]PCB 27
59 In his second report dated 25 July 2013, Dr McLindon stated that toward the end of 2012, the plaintiff started to experience an insidious onset of left shoulder and left upper extremity pain.[36]
[36]PCB 28
60 The plaintiff, in her evidence, was surprised to hear that description of an onset of left shoulder and left upper extremity pain.[37]
[37]T27
61 Dr McLindon noted that after the plaintiff had received some physiotherapy treatment between May 2013 and June 2013, the symptoms in her left upper extremity had improved. He noted that the plaintiff’s headaches had reduced in severity and that she was sleeping better.
62 In his second report dated 25 July 2013, Dr McLindon noted that the plaintiff had some stress at that time in regard to the health of her mother and that seemed to be impacting on her presentation.[38]
[38]PCB 29
63 In his final report dated 18 February 2015, Dr McLindon noted that the plaintiff had had a very busy eighteen months on a few fronts which has led to the aggravation of her presentation on occasion.[39] In particular, Dr McLindon noted the plaintiff’s dealing with her mother being placed in a home and also moving into a local corner store with her de facto partner had created pressures on the plaintiff.[40]
[39]PCB 31
[40]PCB 31
64 Dr McLindon’s opinion was that the plaintiff’s injuries have stabilised and are now in a manageable phase. He noted that, on his observation over the last eighteen months in periods of high stress, the plaintiff’s symptoms are certainly exacerbated and her injuries can become quite debilitating. I note that the periods of high stress are from external factors such as the plaintiff’s role in caring for her mother and her role of working in the corner store business.
Ms Kay Knight, Physiotherapist
65 Ms Knight prepared a report dated 14 March 2012.
66 Ms Knight treated the plaintiff between 9 November 2011 and 13 December 2011.
67 Ms Knight’s treatment was mainly to the thoraco-scapular mechanics of the plaintiff. Ms Knight’s opinion was that the plaintiff’s occasional headaches suggested that her condition was manageable.[41]
[41]PCB 34
Ms Lynda Stainton, Physiotherapist
68 Ms Stainton prepared a report dated 12 August 2013. Ms Stainton treated the plaintiff between May 2013 and June 2013.
69 For those treatments, the plaintiff attended with the condition of left shoulder impingement pain secondary to subacromial bursitis and left-sided neck pain with radiation into the left upper arm.
70 At the end of these treatments, Ms Stainton noted that the effective response to physiotherapy treatment was restoration of both shoulders and neck range, as well as dropping the plaintiff’s chronic pain levels.[42]
[42]PCB 37
Professor Peter Disler, Specialist in Internal Medicine, Rehabilitation Medicine and Geriatrics
71 Professor Disler examined the plaintiff for medico-legal purposes and prepared three reports dated 18 November 2011, 3 July 2012 and 3 February 2015.
72 In his first report dated 18 November 2011,[43] Professor Disler noted that the plaintiff had a slightly decreased range of motion of her cervical spine, particularly in extension. His diagnosis of the plaintiff was that she had suffered from an unresolved soft-tissue injury of the neck.
[43]PCB 54
73 In his second report dated 3 July 2012,[44] Professor Disler noted his diagnosis as follows:
“… soft tissue injury of her cervical spine in the accident, with extension of her symptoms to her left shoulder and arm, but with no evidence of radiculopathy. The CT of the cervical spine on 16 March 2010 showed minor degenerative change and so it is unlikely that she had significant bony or intervertebral disc injury.”[45]
[44]PCB 60
[45]PCB 60
74 Professor Disler noted in that report that, based on the findings of Dr Lewis, rheumatologist, there might be a diagnosis of fibromyalgia for the plaintiff.[46]
[46]PCB 59
75 In his final report dated 3 February 2015, Professor Disler noted that the plaintiff had restriction of rotation and lateral flexion to the right in her cervical spine. He did not find that the plaintiff suffered from the characteristic tender points found in fibromyalgia.[47] He took a history from the plaintiff that she was ingesting eight Nurofen Plus per week and eight Panadol per week for pain relief.
[47]PCB 63
76 Professor Disler thought the plaintiff’s condition had stabilised. He noted that her condition was of mild cervical spine dysfunction and mild left shoulder dysfunction resulting from unresolved soft-tissue injuries of these areas, resulting in chronic pain.[48]
[48]PCB 62-64
Dr Daniel Lewis, Rheumatologist
77 Dr Daniel Lewis prepared a medico-legal report for impairment assessment purposes dated 20 June 2012.
78 On examination of the plaintiff, he noted there was no muscle spasm or guarding detected in the cervical spine area. Dr Lewis’ diagnosis was that the plaintiff had persisting neck symptoms following a soft-tissue injury to the cervical spine in a motor vehicle accident.[49] He said:
“As a consequence of persisting pain she has developed symptoms and widespread tenderness consistent with fibromyalgia syndrome.”[50]
[49]PCB 68
[50]PCB 69
79 Dr Lewis otherwise describes the plaintiff’s injury as a soft-tissue injury to the cervical spine.
80 Dr Lewis noted that the radiological investigations have not identified any structural abnormality in the cervical spine.[51]
[51]PCB 69
Dr David Murphy, Consultant Physician in Rehabilitation Medicine
81 Dr Murphy prepared two reports for medico-legal purposes dated 21 December 2012 and 17 April 2015.
82 In his final report dated 17 April 2015, Dr Murphy diagnosed the plaintiff with cervical soft-tissue pain disorder.
Dr Kevin Fraser, Rheumatologist
83 Dr Fraser examined the plaintiff on behalf of the defendant for medico-legal purposes. He prepared a report dated 10 April 2015.
84 On examination, Dr Fraser noted that the plaintiff had pain on movement of her neck and left shoulder. In Dr Fraser’s opinion, there appeared to be some overreaction by the plaintiff to physical examination.[52]
[52]DCB 18
85 Dr Fraser’s diagnosis was that the plaintiff had sustained soft-tissue strains in the cervical spine as a result of the transport accident. He noted that there did appear to be some overreaction on physical examination, and in his view, the plaintiff’s current presentation may be largely due to non-organic factors.[53]
[53]DCB 18
Mr Michael J Dooley, Orthopaedic Surgeon
86 Mr Dooley examined the plaintiff on behalf of the defendant for medico-legal reporting purposes. He prepared a report dated 20 April 2015.
87 Mr Dooley’s opinion was that the plaintiff had suffered a soft-tissue injury to the cervical spine region.[54] Mr Dooley expanded his opinion to state:
“… Given the mechanism of the motor vehicle accident it is feasible that Ms Sandry could have sustained a soft tissue injury to the cervical spine region. This most likely will have involved musculoligamentous damage and may have involved some aggravation of underlying mild cervical spondylosis. … .”[55]
[54]DCB 23
[55]PCB 23
88 Mr Dooley’s opinion was that the plaintiff has had a psychological reaction to her situation and that this reaction does influence her ongoing symptoms. Mr Dooley noted that the plaintiff was now operating a shop and that he thought this was a good activity for her to continue.[56]
[56]DCB 23
Radiology Reports
89 X-rays of the cervical spine (16 March 2010) were normal.
90 CT scans of the plaintiff’s cervical spine (16 March 2010) were said to be normal apart from minor multilevel cervical spondylosis.
91 A further CT scan of the cervical spine (23 August 2010) was reported to be normal.
92 X-rays of the right shoulder (27 October 2011) were normal, as was an ultrasound, except for mild subacromial bursitis and impingement.
93 A further CT scan of the cervical spine (9 May 2013), performed because of “pain and weakness in the left arm” was normal, with no evidence of canal stenosis or nerve root compression.
94 X-rays of the left shoulder (16 July 2013) were normal. An ultrasound was said to be normal apart from mild subacromial bursitis and impingement.[57]
[57]DCB 18
95 It is clear on the radiological investigations that the plaintiff has not suffered any demonstrable pathology to her cervical spine as a result of the transport accident. The preponderance of the medical evidence is that the plaintiff has suffered a soft-tissue injury to her cervical spine as a result of the transport accident. This is the injury usually described as whiplash.
Consequences of the cervical spine injury to the Plaintiff
96 The plaintiff, in her affidavits dated 5 December 2012 and 11 February 2015, set out the number of consequences that she has suffered as a result of the injury to her cervical spine in the transport accident. In her evidence given on 21 May 2015, the plaintiff expanded on those consequences. In particular, the plaintiff, for the first time, stated that her sleep had been interfered with as a result of the pain she suffers from her neck injury. The plaintiff also stated that she took four to six Nurofen Plus per day and four to six Panadol per day.[58] This amount of medication is an increase on that previously deposed to by the plaintiff.
[58]T15-16
Sleep
97 The plaintiff complains that her sleep has been disturbed as a result of the pain coming from her neck.[59] The plaintiff stated that she was awoken three to four times per night as a result of the pain.
[59] T14
98 In her histories to treating doctors, the plaintiff did not give a history of interruption to her sleep as one of the symptoms that she suffered as a result of pain in her neck. In the medical notes of her general practitioner, the plaintiff complained of poor sleep and depressed mood and low self-esteem relating to her father dying, a work problem conflict with her boss at Murrayvale and the consultation on 19 February 2010, approximately one month prior to the transport accident. The plaintiff was prescribed Cymbalta at that time. I accept that the plaintiff may have some sleeping difficulties but I am not satisfied, on the balance of probabilities, that the disturbed sleep is a result of the neck complaints that she has deposed to.
Pain
99 The plaintiff complained of pain in her neck which radiates down the left side of her neck to her left shoulder and up the back of her head to give her headaches. In her evidence, the plaintiff stated that she would describe the pain has “horrendous”, to the fact that it made her feel sick.[60] The plaintiff’s evidence was that she felt pain to this extent two to three times per week.[61]
[60]T13
[61]T13
100 The plaintiff’s evidence is that she takes Nurofen Plus and Panadol daily to ameliorate the levels of pain. The plaintiff has not sought any medical intervention or treatment for the pain levels that she now describes. Her ongoing treatment is strictly related to a monthly visit to the chiropractor and massage from a massage therapist. The plaintiff has not sought any further specialist advice from an orthopaedic surgeon or pain management practitioners.
101 The plaintiff has, since November 2013, conducted a mixed business. The evidence is that she is in attendance at the store between 6.30am and 4.00 to 5.30pm six days per week.[62] On Sundays, the plaintiff opens the store at 7.00am and remains there until 3.00pm. The plaintiff stated in her evidence that she was able to lie down if she had severe pain.
[62]T32- 33
102 I accept the plaintiff has some pain in her neck and, on occasion, radiating to her left shoulder and up to the rear part of her scalp. I do not accept that the pain is of the level of intensity described by her in her evidence or with the regularity that she has described. The reason I do not accept that part of her evidence is that she continues to operate a business effectively full time, seven days a week, without any paid assistance. In effect, she is full time supervising this mixed business, and one could not do that if the intensity and regularity of pain was of the levels described by the plaintiff.
103 I accept that the plaintiff’s pain could be described as being “significant” but it is not “at least very considerable”.
104 I conclude that the pain levels for the plaintiff are not a very considerable consequence for her.
Medication
105 The plaintiff gave evidence that she ingested four to six Nurofen Plus and four to six Panadol every day.[63]
[63]T15-16
106 In her first affidavit, the plaintiff stated that she took two to three Nurofen Plus per week.[64]
[64]PCB 10 and 12
107 In her second affidavit dated 11 February 2015, the plaintiff stated that she took “over-the-counter” painkillers such as Panadeine Forte.[65] In her evidence, the plaintiff conceded that Panadeine Forte was not an “over-the-counter” medication. There was no evidence of a medical practitioner prescribing Panadeine Forte for the plaintiff in 2015.
[65]PCB 16
108 In his latest report, Professor Disler took a history from the plaintiff (3 February 2015) that her current medication was a dose of Nurofen Plus eight times per week, and a dose of eight Panadol per week.
109 In a history to Dr Daniel Lewis, he records, on 20 June 2012, that the plaintiff was taking four Panadol and three Nurofen per day. In her history to Dr David Murphy, the plaintiff stated that she was taking two to six Nurofen Plus per day and four Panadol per day.[66]
[66]PCB 73
110 The plaintiff’s estimate of the amount of medication she is taking has varied over the course of the time between the time of the transport accident and the current time. There is an inconsistency between the plaintiff’s histories to the doctors I have just referred to and the amount of medication she was taking at the respective times.
111 I am satisfied that the plaintiff ingests Nurofen Plus and Panadol to ameliorate the pain symptoms she is suffering. I am not satisfied that the plaintiff is taking that medication to the level that she stated in her evidence before me.[67] I note, and accept, that the plaintiff’s explanation for not taking any heavier pain-relieving medication as being her experience of addiction by her parents and her former husband.[68]
[67]T15
[68]T49-50
112 Whilst I accept the plaintiff takes over-the-counter medications for pain relief, I do not accept that this is a significant consequence for her.
Ongoing treatment
113 The plaintiff gave evidence that she receives ongoing chiropractic treatment from Dr McLindon on a monthly basis. She also gave evidence that she receives massage on a regular basis. There is no medical opinion to support the proposition that the chiropractic treatment is of any benefit to the plaintiff and her symptoms. The plaintiff however does rely upon the chiropractic treatment for an amelioration of her symptoms. She accepts that the chiropractic treatment is of benefit to her.
114 I do not accept that the ongoing chiropractic treatment and massage is of great significance as a consequence for the plaintiff. The plaintiff has not sought any further or expert medical treatment to ameliorate her symptoms. She has not even consulted her general practitioner about treatment for her neck and shoulder symptoms since the very early days. I do not accept that the ongoing treatment for chiropractic services and massage are a significant consequence for the plaintiff.
Activities of daily living
115 The plaintiff, in her evidence, ultimately stated that she was able to do the washing, vacuuming and other housekeeping activities. It was clear from the evidence that the plaintiff, having been involved in full-time supervision and operation of the small mixed business where she now lives, has a capacity to do many of the activities of daily living. In the shop itself, she is able to cook and serve customers. The plaintiff stated herself that she cooked for her de facto partner and son. A fair assessment of the plaintiff’s activities of daily living was that her main limit related to hanging out the washing. I do not accept that the plaintiff’s activities of daily living amount to a significant consequence for her.
Gardening and camping
116 The plaintiff stated that she was no longer able to garden or go camping because it was too rough.[69]
[69]T15
117 In respect of gardening, the plaintiff has moved into a live-in business. At the rear of this business there are two small areas for gardening. The opportunity to garden for the plaintiff has been reduced as a result of this. The combination of the reduced opportunity and the full-time work that the plaintiff undertakes is a better explanation as to why the plaintiff does not engage in any gardening.
118 In respect of the camping reduction, I note that the plaintiff’s son is now eighteen and that at the time when he was younger, during school holidays, the family went camping once or twice a year. I do not accept the plaintiff’s inability to perform gardening duties or to go camping are a significant consequence for her.
Work
119 The plaintiff gave evidence that she was unable to work in the capacity as a cook at Murrayvale. She stated that this was a great loss to her as it was a job she loved. The evidence in this case was that the plaintiff resumed her employment on 25 March 2010, less than ten days after the transport accident, and then continued such work at normal hours until October 2010.[70] This evidence is to be read in the light of her affidavit dated 11 February 2015, where the plaintiff stated:
“In October 2010, I attempted to return to work with Murray Valley (sic) Aged Care. I tried to do the work but I couldn’t do the lifting which was required in the job such as lifting pots and pans in the kitchen. Since leaving the job at Murray Valley (sic) Aged Care, my former employer contacted me to invite me to return to work there, but due to my injury I could not.”[71]
[70]T46
[71]PCB 17
120 These two statements made on oath cannot be reconciled.
121 The plaintiff continues to operate her own business on a full-time basis and Mr McLindon, the only ongoing treater, sees this as an appropriate and good thing for her to do. I do not accept that the plaintiff has had any reduction in her enjoyment relating to her work.
122 In summary, I do not accept that the transport accident or the injury to the plaintiff has reduced the amount of enjoyment that the plaintiff derives from her employment. She is now a self-employed operator of a mixed business. Previously, she had been working under pressure from employers as to the nature and extent of her work. Whilst she may have enjoyed the contact with old people in aged-care facilities, she now has contact with her customers at her place of business.
The credit of the Plaintiff
123 In these Reasons I have previously referred to discrepancies between what the plaintiff has told certain medical practitioners and what she deposes as her evidence. In particular, this relates to the level of medication she takes for pain relief and her statements about her current employment status. The fact of these discrepancies does not mean that I do not accept the plaintiff as a witness of truth. It is the accuracy of her statements that is of significance, as it goes to the degree of her disabilities and, in effect, the consequences of the injury to her neck.
124 In the course of this proceeding, the plaintiff was shown two DVD-surveillance films filmed over three separate days. The surveillance of the plaintiff was conducted on 19 February, 27 February and 5 March 2015. The films showed the plaintiff at the outside of her premises, and also inside the shop. The plaintiff readily made admissions that she was able to perform all of the tasks set out in that film and she stated in her evidence that there was no obvious signs of restrictions for her movement, either of her neck or her arms in general. The plaintiff also agreed that she had been shown, not in the proceeding, other surveillance films dated 27 April, 28 April and 2 May 2015. She agreed that she had been filmed cleaning up outside the shop and that she was never displaying any symptoms of pain or inability to perform that task. It is clear from that amount of surveillance that the plaintiff has been subjected to an extensive level of surveillance. The issue in relation to credibility is that the plaintiff readily accepts that she can perform all of the tasks displayed on the surveillance that was shown to me in this proceeding.
125 The Court of Appeal has, in the authority of Church v Echuca Regional Health,[72] set out the caution with which surveillance film is to be approached when assessing the credibility of a plaintiff. I take into account the comments and directions set down in that authority when assessing the plaintiff in this case.
[72](2008) 20 VR 566
126 I have observed the plaintiff moving about her shop, both inside and out, in a normal manner. What is displayed on the surveillance film is not directly contradictory to what the plaintiff herself has stated she is able to do. This fact goes not necessarily to her credibility but more directly to her capability to continue to perform many and varied tasks at the present time.
127 I find that any casual observer of those actions portrayed on the surveillance films would not find any restriction of neck movement displayed by the plaintiff. I certainly did not see any such restriction of movement in the plaintiff’s neck. Nevertheless, the plaintiff has stated that she has taken painkilling medication to assist her with her daily activity. The events set out on the surveillance film showing the plaintiff’s movements are not extreme. The filming of the plaintiff shows a middle-aged woman going about the operation of her mixed business in a normal and uninhibited manner.
Conclusion
128 In conclusion, I find the plaintiff has failed to satisfy the test that the symptoms and consequences of the pain and suffering to her as a result of the transport accident are “very considerable” and “more than significant or marked”. I find, based on the evidence, that the plaintiff suffered pain of a mild to moderate level on an intermittent basis to her cervical spine, but such pain does not satisfy the very considerable test required under the Act. I base this conclusion on the reasons set out in respect of the consequences outlined earlier, together with the preponderance of the medical evidence which has been detailed throughout these Reasons.
129 The plaintiff’s application for serious injury certification for physical injury to her cervical spine as a result of the transport accident on 14-15 March 2010 is dismissed.
130 I will hear the parties on costs.
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