Sanvincenti v TAC
[2012] VCC 1718
•13 November 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-05423
| ANNA RITA SANVINCENTI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 and 30 August 2012 | |
DATE OF JUDGMENT: | 13 November 2012 | |
CASE MAY BE CITED AS: | Sanvincenti v TAC | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1718 | |
REASONS FOR JUDGMENT
---
Subject: Application to issue proceedings for damages arising out of a transport accident
Catchwords: part (a) – injury/aggravation injury – lumbar/sacral spine
Legislation Cited: Transport Accident Act 1986
Cases Cited: Humphries v Poljak [1992] 2 VR 129 at 140; Cropp v Transport Accident Commission & Beglehole [1998] 3 VR 357; Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622; State of Victoria v Glover [1998] VSCA 93; Dwyer v Calco Timbers (No 2) [2008] VSCA 260; Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; R J Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386; Thomas v van der Yessel [1976] 14 SASR 107; Elspan v Eurocopter [1999] NSWSR 555; Nichols v Robinson [2001] VSCA 11 and Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292
Judgment: Application dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V A Morfuni SC with Ms F Spencer | Nowicki Carbone |
| For the Defendant | Ms K A Galpin | Hall and Wilcox |
HIS HONOUR:
1 In the matter of Sanvincenti v Transport Accident Commission (“TAC”), Mr Morfuni and Ms Spencer appeared on behalf of the plaintiff and Ms Galpin appeared on behalf of the defendant.
2 Ms Sanvincenti applies for leave pursuant to s93(4) of the Transport Accident Act 1986 (“the Act”) to issue proceedings for damages arising out of a transport accident on 31 July 2007, in particular, a motor vehicle accident.
3 The Originating Motion was issued on 12 December 2008. The plaintiff, at this time, is aged sixty, having been born on 9 September 1952. She is a part-time aged carer/cleaner.
4 Mr Morfuni gave the Court a chronology, which proved to be of much assistance. He indicated in opening that there was one serious injury application pursuant to the definition set out in s93(17) of the Act, and such was under part (a), being an aggravation injury to the lumbar/sacral spine. In particular, he identified both consequences thereof as being applicable.
5 Mr Morfuni submitted that the consequences of the aggravation injury to the lumbar spine were such as to satisfy the narrative test. Ms Galpin, for the defendant, in reply, submitted the injuries did not satisfy the narrative test.
6 The Court is assisted in this determination by the general principles expanded in Humphries v Poljak [1992] 2 VR 129 at 140, Cropp v Transport Accident Commission & Beglehole [1998] 3 VR 357 and Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622. I have also been specifically referred in this case by the plaintiff’s counsel to State of Victoria v Glover [1998] VSCA 93, Dwyer v Calco Timbers (No 2) [2008] VSCA 260, Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592 and Sutton v Laminex Group Pty Ltd [2011] VSCA 52.
7 To the extent applicable, the aggravation principles identified by the President of the Court of Appeal in R J Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386, in particular at paragraph [2], are to be adopted.
8 The plaintiff was called and tendered Exhibits A through to R and, at the request of the defendant, Mr David de la Harpe, orthopaedic surgeon, was called to be cross-examined. The defendant tendered Exhibits 1A to 3C and referred me to Thomas v van der Yessel [1976] 14 SASR 107 and Elspan v Eurocopter [1999] NSWSR 555.
9 I find, upon all of the material tendered and the oral evidence, that the motorcar accident caused injury to the plaintiff, being either:
(i) The aggravation of a pre-existing asymptomatic condition of the lumbar spine, as detailed by Mr de la Harpe in Exhibit O3 (Plaintiff’s Court Book, “PCB”, 100) and in oral evidence at T 168; the rheumatologist, Dr Stevens, in Exhibit H2 (PCB 56), and in the medico-legal reports of Dr Castle, occupational physician, at Exhibit K (PCB 73); by Mr Haw, orthopaedic surgeon, at Exhibit L1 (PCB 85) and Exhibit L2 (PCB 87); by Mr David Brownbill, neurosurgeon, at Exhibit M1 (PCB 92) and by the medico-legal report of Dr Mutton, consultant occupational physician, tendered by the defendant at Exhibit 1C (Defendant’s Court Book (“DCB”) 15);
OR
(ii) A soft-tissue injury of a musculoligamentous nature to the lumbar spine, as well as the above-mentioned aggravation to the existing degenerative condition – see the report of Dr Wright, general practitioner, at Exhibit F1 (PCB 58) and the medico-legal report of Mr Michael Dooley, orthopaedic surgeon, tendered by the defendant at Exhibit 3A (DCB 31), with confirmation of same in Exhibit 3B.
10 Insofar as the injury was an aggravation injury, I have no hesitation in finding that such aggravation of the condition of the lumbar spine satisfies the test that I have detailed and that the evidence demonstrates overwhelmingly that, prior to this motorcar accident, the plaintiff did not suffer any symptoms whatsoever in regard to her lumbar spine. This is most amply demonstrated from the evidence of the general practitioner, Dr Wright, in particular in Exhibit F4 (PCB 63 and 64), whose clinical records demonstrate that from 1998, when he began treating the plaintiff, at no stage has there been any indication of any problems or injuries to the lower back, prior to the accident in 2008.
11 The fundamental issue in the hearing, as put to me in opening by Ms Galpin, was whether the consequences of such injury satisfy the narrative test.
12 Mr Morfuni, in final submission, put to me that such question was simply answered upon the evidence of the plaintiff requiring continuous treatment for her injury, being ongoing conservative treatment of the general practitioner with periodic neurotomies being performed by the pain clinician, Dr David Vivian. Mr Morfuni submitted that such was sufficient to satisfy the narrative test, and referred me to the findings made in Hunter. While in no way reflecting on the finding in Hunter, the circumstances seem to me to be radically different. I would reject Mr Morfuni’s submission that the case is so simply answered, and I certainly would not consider, on the facts of this case, that Ms Sanvincenti has established her case purely on the basis of the treatment regime post-accident. Of course, depending on the circumstances, treatment in itself may be sufficient. However, in this case, that would certainly not be so.
13 This Court must look at the totality of the consequences of the injuries and apply a “value judgment” as explained by Winneke P (as he then was) in Nichols v Robinson [2001] VSCA 11 [14]−[19], such approach being endorsed by the Court of Appeal in Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292.
14 Having perused and considered all of the evidence in this case, in particular the affidavits of the plaintiff (Exhibit B1, B2 and B3), and the supporting affidavits of her husband and son (Exhibits C1, C2 and D), the oral evidence of the plaintiff and all of the relevant medical evidence, it is necessary to apply such “value judgment” to the consequences of such injury as I find them to be.
15 As I have found, the lower back of the plaintiff, in particular the facet joint degeneration, was either aggravated and/or injured in this accident, which has led to the physical consequences of continued lower back pain suffered by the plaintiff, albeit as remarked by the neurosurgeon, Mr Brownbill (Exhibit M1, PCB 92), that the impact of the aggravation has long passed.
16 I find that such consequences by way of physical impairment will be long-term and will limit the plaintiff in her activities, both by way of social and employment activities. In this regard, I accept the general practitioner’s evidence in Exhibit F6 (PCB 68), that the plaintiff is not an exaggerator, and Mr de la Harpe’s view in Exhibit H2 (PCB 56), that she is honest in her history and is well motivated.
17 However, I also find that the plaintiff is obese and, as such, would have always been somewhat limited as to the manual work, albeit her evidence as to her prior work as a hotel keeper. I am sure that such manual work was not carried out by her; however, I accept that, insofar as her now carrying out any physical work, there are limitations. I would not contemplate that the plaintiff was ever going to carry out any heavy physical work. She is also currently being treated for unrelated coronary/cardiac concerns.
18 The plaintiff, as of this date, now receives limited treatment which can be described as conservative. The totality of medical opinion demonstrates the need for her to exercise and reduce her weight, albeit that it is clear that, because of the chronicity of the pain, she may need ongoing pain therapies such as neurotomies, which she last had in August 2012 from Dr Vivian.
19 I have no doubt that the plaintiff is capable of carrying out the job of a bookkeeper, if she could get a job. However, she would definitely have to watch the time that she is seated and indulge in appropriate rest activity. I find that she currently does do her housework, albeit she is required to be careful. She does the vacuuming and cooks for herself and her adult son, and also does all the shopping for the household.
20 As to her working capacity, she says that she is not the type of person to stay at home, and indeed when working has, in the past, done what is necessary (see T 55), albeit, she says, to her peril. Ms Sanvincenti maintains that she can carry out currently the work assisting elderly patients at Ital Care, albeit not at the rate of twenty-four hours per fortnight she did up to March 2012, which involves light cleaning and general assistance to elderly patients, but no heavy lifting or hard physical activity. Currently she is trying to increase her current ten hours a week.
21 All of the above capacities are fully detailed, in particular in the cross-examination of the plaintiff at T 44 through to T 84.
22 As I said, the plaintiff takes no prescribed medication and, provided she is not suffering from any acute exacerbation of her lumbar spine, on her own evidence is capable of working full-time in an applicable position, and part-time with limitations in her current positions, being a carer for aged persons and a school cleaner at Yarra Valley Pre-School, for forty-five minutes per day. The plaintiff also currently receives a disability support pension (Ex P, PCB 118).
23 In considering the plaintiff’s evidence as to her work capacity, I find, that despite the view of the general practitioner as to her honesty in the history given and her motivation, I was not satisfied with her evidence concerning her work as the manager of the Tartufo Cafe in North Melbourne for a period of two years, on a forty-hour per week basis, from March 2008 to June 2010. Necessarily, such dissatisfaction must extend to the affidavit of her son in this regard (PCB 43).
24 The background to this is that Dr Mutton, occupational physician, in his first report of January 2008, Exhibit 1A, had determined that the plaintiff was capable of returning to her pre-accident duties. However, she had a medical certificate from a general practitioner certifying she was, in fact, unfit until February 2008 and suggests that she was thereafter sacked. Apart from this being legally questionable, the correct position is that the return to work plan organised by the TAC (see Exhibit R) was not able to be effected by her employer in terms of the attested medical condition of the plaintiff at that time.
25 Irrespective of the above, at about the time of such incapacity certificate being issued and of her ceasing work with her employer, she must have been contemplating the establishment of the café in North Melbourne with her son, which began operation in the following March.
26 Despite the comments in both her affidavits as to the minimum hours worked and the histories given, for example, to Dr Castle (PCB 69), that she worked one hour a day for three days a week (this statement being made on 28 July 2009), the cross-examination, I find, demonstrated clearly, as did the surveillance put to her, that she worked, over that two years, a forty-hour week, Monday to Friday, during the operation of the business from 7.00 am through to 3.30 pm and regularly travelled to and from work by public transport. Such surveillance demonstrated that she was at the premises throughout the day, loading rubbish, serving persons and doing so on her own. When put to her that this demonstrated her real working capacity, she did not dispute such, but said that she would do what was required whatever the consequences. It should be pointed out that her son did not assist her in the business, being otherwise fully employed, from December 2008.
27 True it is, as she says, that she is not prepared to sit at home and that she has, since the business closed, continued to seek work and currently works in two occupations, albeit that she says currently she is working limited hours because of the chronicity of her condition, and recent neurotomy.
28 The matter comes down to a determination as to whether the plaintiff has satisfied the onus in this instance. Despite my finding of injury and its chronicity, I am, after consideration, not satisfied that the plaintiff has proved to the Court that the consequences caused by this injury to her are such as to satisfy the narrative test. I therefore dismiss the application.
29 For clarity, I should state that, in assessing the evidence of the plaintiff, I disregarded the taxation issues which apparently led to her being placed in bankruptcy in February 2007, or that the plaintiff has apparently filed no taxation returns for the period 2008-2011, during which time the Tartufo Café business was conducted.
- - -
0
8
0