Schaper v Transport Accident Commission
[2016] VCC 1613
•4 November 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-01117
| AMANDA SCHAPER | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 & 6 October 2016 | |
DATE OF JUDGMENT: | 4 November 2016 | |
CASE MAY BE CITED AS: | Schaper v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1613 | |
REASONS FOR JUDGMENT
Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – lumbar spine – cervical spine
Legislation Cited: Transport Accident Act 1986 s93
Cases Cited:Dasreef Pty Ltd v Hawchar [2011] HCA 21; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Richards v Wylie (2000) 1 VR 79
Judgment:Application successful
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J Forbes QC with Mr S Loftus | Henry Carus & Associates |
| For the Defendant/s | Mr D Masel SC with Ms J Frederico | Solicitor to the TAC |
HER HONOUR:
Preliminary
1 This is an application to bring proceedings pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”).
2 The plaintiff alleges she suffered injury in a transport accident which occurred on 2 September 2009. The plaintiff was travelling to Melbourne Airport in the back passenger side seat of a taxi at about 5.45pm. Another vehicle hit the taxi from behind (“the transport accident”). The plaintiff claims the accident caused her to suffer injury to her spine.
3 Ms J Forbes QC appeared with Mr S Loftus of counsel for the plaintiff and Mr D Masel SC appeared with Ms J Frederico of counsel for the defendant.
4 The plaintiff claims she suffered injury to her cervical and lumbar spine in the transport accident. The body function said to be lost or impaired is the functioning of her spine. The plaintiff also claims she suffered an adjustment disorder with depressed mood, which she says constitutes a severe long-term mental or behavioural disturbance or disorder. The application is brought pursuant to sub-sections (a) and (c) of the definition of “serious injury” contained in s93(17) of the Act.
5 Only the plaintiff was called to give evidence and she was cross-examined. In addition, affidavits were tendered from the plaintiff’s mother, her two younger sisters, her husband, and a former work colleague. Numerous medical reports and other documents were also tendered. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this Judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in this Judgment.
Relevant background
6 The plaintiff is 47 years old. She lives in South Australia with her husband, son and mother.
7 The plaintiff was born in Zimbabwe but moved to South Africa at about 15 years of age. In 2004, she migrated to Australia.
8 While in South Africa, the plaintiff completed studies to the equivalent of Year 12. She then gained employment as a secretary/PA, before moving into information technology and software development.
9 In approximately 1999, the plaintiff was diagnosed as suffering hyperthyroidism. She was treated with medication, which she continued to take after migrating to Australia. In 2005, the plaintiff consulted general practitioner, Dr Ceri Goodwin, at the Malvern Medical Centre regarding this condition. Dr C Goodwin referred the plaintiff to endocrinologist, Dr George Tallis. The plaintiff did not recall seeing Dr Tallis, but accepted that a letter from him, dated 15 November 2005, indicated that he had seen the plaintiff at that time.[1] Dr Tallis recommended the plaintiff resume taking Thyroxin medication. However, the plaintiff elected not to as she felt that medication was not doing her any good.[2]
[1]Defendant’s Court Book (“DCB”) 15.20
[2]Transcript (“T”) 58, Line(s) (“L”) 14-17
10 The plaintiff has also suffered from low iron levels “on and off”[3] for many years. She has been treated with iron tablets and, more recently, with iron infusions.[4] Her iron deficiency has worsened in recent years as she has heavy periods, associated with menopause. The plaintiff has also become a vegan in the last three or four years, although she did not consider this to have impacted upon her iron levels.[5] The plaintiff acknowledged that her iron deficiency is associated with tiredness, and that at times she can feel faint and dizzy.[6]
[3]DCB 15.18
[4]T58, L24-29
[5]T59, L6-16
[6]T67, L8-18
11 In the early 2000s, the plaintiff suffered from multiple joint pain for a couple of weeks. She was diagnosed with reactive arthritis and treated with steroids.[7] The plaintiff said the condition resolved.[8]
[7]DCB 15.18
[8]Plaintiff’s Court Book (“PCB”) 6
12 In approximately 2001, the plaintiff fell while doing some squats and felt that she had pulled some muscles in her neck. She never consulted a doctor and the symptoms resolved after a few days.[9]
[9]PCB 14 c
13 In relation to relevant past psychiatric history, the plaintiff said that she was molested at 12 years of age. A further traumatic event for the plaintiff was when her son was hijacked and held at gun point when he was nine years of age. She also had some difficulties in her marriage when her son was young.
14 Soon after moving to Australia in 2004, the plaintiff commenced full-time employment with the Red Cross as a software development project manager. In the financial year prior to the transport accident, her salary package was the equivalent of $81,519 gross per annum. The plaintiff said that she greatly enjoyed this work and that she derived considerable satisfaction from it.
15 Prior to the transport accident, the plaintiff used to enjoy hiking, camping, some clay sculpting, attending motor sports events and playing the guitar and the piano. She also enjoyed going to the beach with her family and they would play cricket and other sports together. The plaintiff did most of the family’s cooking, as well as the majority of household tasks, and enjoyed working in her garden.
The injury and its consequences
16 The transport accident occurred on 2 September 2009. The plaintiff had been in Melbourne for her work with the Red Cross, and was travelling to Melbourne Airport in the back passenger side seat of a taxi at about 5.45pm. The taxi was weaving in and out of traffic, when it braked suddenly and was hit from behind by another vehicle. Following the collision, the plaintiff remained in the vehicle. The taxi then continued to the airport and the plaintiff flew home to Adelaide.
17 The plaintiff said she felt immediate pain in her lower back.[10] Later that evening, she also began to notice pain and stiffness in her neck.
[10]PCB 7
18 The following day, the plaintiff purchased some anti-inflammatory medication and she also tried physiotherapy.
19 As the plaintiff’s pain continued over the next couple of weeks, she attended her general practitioner, Dr C Goodwin.
20 On 23 September 2009, Dr C Goodwin noted the following:
“seatbelted back seat passenger in a taxi struck from behind by another car on 7 (sic) September 2009, since then has had soreness in left upper thoracic region rad to left neck and some left lbp, no ph of spinal problems, has seen Drs at Marion Domain lately - given pan forte and Voltaren without much benefit…
O/e neck- mildly tender on left…tender left upper thoracic region in paraspinal area…l/s- mildly tender l5 ”[11]
[11]DCB 15.22
21 In cross-examination, the plaintiff said she sometimes attended the Marion Domain Clinic for out of hours appointments. She accepted it was likely she had attended there after the accident and had forgotten doing so.[12]
[12]T90, L28-31, T91, L1-5
22 In relation to the reference to soreness in the upper thoracic region, the plaintiff denied such pain, stating the pain had been in her neck and she thought Dr Goodwin must have misunderstood her.[13]
[13]T91, L6-22
23 As the transport accident had occurred during the course of the plaintiff’s employment, the plaintiff lodged a claim for compensation with the South Australian WorkCover insurer (“WorkCover SA”). This claim form, dated 12 October 2009, referred to the plaintiff suffering injury to her neck and back in the transport accident.[14] The claim was accepted, and the plaintiff subsequently received benefits from WorkCover SA.
[14]PCB 39
24 In December 2009 the plaintiff had two months leave from work, during which her neck and lower back pain improved, but never completely resolved.[15]
[15]T91, L31, T92, L1-7
25 On 1 March 2010, a CT scan was performed on the plaintiff’s cervical and lumbar spine. It demonstrated chronic disc degeneration at C5-6 level and a mild broad-based posterior bulge of the L4-5 disc, not associated with neural impingement.[16]
[16]PCB 145
26 The plaintiff returned to work in March 2010. She said that as her neck pain increased, she reduced her working hours to two hours per day, five days per week. The plaintiff was able to complete some of this work from home, working on a computer.[17]
[17]T40, L16-17
27 At about that time the plaintiff suffered an increase in her symptoms following a physiotherapy appointment.[18] She then travelled to Sydney for a work conference and suffered further increased pain.
[18]T40, L13-15
28 The plaintiff then saw a local general practitioner Dr Garry Hickey. He prescribed various medications, including Tramadol, which caused the plaintiff to experience adverse side effects such that she stopped taking it. Dr Hickey also referred the plaintiff for physiotherapy, which she said worsened her lower back pain.[19]
[19]PCB14C
29 In April 2010, Dr Hickey referred the plaintiff to orthopaedic surgeon, Dr Andrew Fagan. Dr Fagan considered the plaintiff had suffered an exacerbation of lumbar arthritis, and recommended physiotherapy, Pilates, stronger analgesia and facet joint injections into the lower two or three lumbar levels.[20]
[20]PCB 43
30 Dr Fagan reviewed the plaintiff in late May 2010, at which time he noted all of her movements were extremely tentative. He again recommended facet steroids to the lumbar spine. In relation to her neck pain, Dr Fagan diagnosed exacerbated cervical arthritis with consequential fear and avoidance of movement. He recommended psychological help to assist with stress management techniques.[21]
[21]PCB 45
31 The plaintiff said she decided not to proceed with the facet joint injections, as Dr Hickey advised her against having them, and her own research made her doubt that the injections would give her a long-term benefit.[22]
[22]PCB 46, T98, L10-16
32 In September 2010, the plaintiff had a further four weeks off work, due to increasing pain.
33 On 6 October 2010, the plaintiff was retrenched, together with other employees of the Red Cross.
34 In 2011, as part of a return to work organised by WorkCover SA, the plaintiff commenced volunteer work with Regional Development Australia (“RDA”). The plaintiff initially volunteered for 12 hours per week, with WorkCover SA paying her top-up weekly payments.
35 From time-to-time in 2011 and 2012, the plaintiff consulted general practitioner, Dr Boris Eskandri-Marandi, at the Littlehampton Medical Centre.[23] There was no medical material tendered in relation to his treatment of the plaintiff.
[23]T161, L4-6
36 In July 2011, the plaintiff obtained physiotherapy treatment from Ruth Hardman. In a report dated 19 September 2011, Ms Hardman stated that, in her opinion, the plaintiff had a pain disorder with significant central sensitisation.[24] She noted widespread mechanical allodynia over the whole of the plaintiff’s upper quadrant and lumbar spine.
[24]PCB 53
37 In November 2011, Ms Hardman noted that the plaintiff was constantly working beyond her capacity. At that time she was working four hours, three days per week, and the plaintiff spent the rest of her time recovering from her work. Ms Hardman suggested the plaintiff consider reducing her work hours, but noted that despite her pain, the plaintiff was keen to increase them.[25]
[25]PCB 54
38 After one year of volunteering with RDA, the plaintiff was given a paid position. She continued to receive top-up weekly payments from WorkCover SA.
39 In May 2012, the plaintiff consulted general practitioner, Dr Richard Goodwin, at the Malvern Medical Clinic, where she had first attended in 2005. Dr R Goodwin noted the plaintiff complained of chronic neck and lower back pain following the transport accident, and that she had seen a psychologist for depression associated with her injuries. He recorded that the plaintiff was struggling with her work and that she had a sitting and standing tolerance of 20 minutes.[26] At that time, the plaintiff took Panadol Osteo daily and Panadeine Forte occasionally, for more severe pain.
[26]PCB 74
40 In September 2012, Dr R Goodwin referred the plaintiff to occupational physician, Dr Graham Wright. In a report dated 12 July 2013, Dr Wright stated that, in his opinion the plaintiff was likely to be suffering:
“…structural causes to account for her persistent pain, in particular left sided C7 radicular irritation to account for pain extending from the base of the neck, across the back of the left shoulder and posterior aspect of the arm. There are annular tears reported that L4/5 and L5/S1, and these represent possible cause of low back pain and leg pain.”[27]
[27]PCB 62
41 Dr Wright noted there were abnormalities of function, with over bracing and signs of mechanical allodynia, which he interpreted as evidence of altered nociception.[28]
[28]PCB 63
42 Dr Wright noted that:
“… the plaintiff was attending work three days, four hours, but with difficulty. She participated in family life with difficulty and she was not participating in recreation or social activities. The impression was that this was an unstable arrangement, and that her work attendance was being achieved at the cost of not participating in domestic, family and social activities.”[29]
[29]PCB 63
43 At about that time, the plaintiff received some psychological counselling from psychologist, Neil Spence. He considered the plaintiff to suffer both depression and anxiety with contributing factors being her current injuries, as well as traumatic experiences in her childhood and her own son’s mental health issues.[30]
[30]PCB 64
44 In March 2013, Dr R Goodwin referred the plaintiff to neurosurgeon, Dr Matthew McDonald. He noted the plaintiff complained of pain on the left side of her neck, which was aggravated by sitting still or by typing. Dr McDonald also noted the plaintiff complained of lower back pain, shooting into her left buttock and hip. He noted that she was only able to work part-time and that her initial injury had slowly worsened.[31]
[31]PCB 80
45 On 23 May 2013, an MRI scan was performed on the plaintiff’s cervical and lumbar spine.[32] It demonstrated disc bulging and osteophytes at C4-5 and C5-6. Dr McDonald considered there was possible irritation of the left C6 nerve root, which he thought was the likely cause of the plaintiff’s left arm radicular symptoms.[33] In relation to this injury, Dr McDonald discussed with the plaintiff the options of conservative management, nerve root block or surgery.[34]
[32]PCB 150-151
[33]PCB 80
[34]PCB 810
46 In relation to the plaintiff’s lumbar spine, the MRI demonstrated degenerative discs at L4-5 and L5-S1, with a small left-sided disc herniation compressing the left S1 nerve root.[35] In relation to treatment of her lumbar spine condition, Dr McDonald also discussed the options of conservative management, nerve root block or surgery.
[35]PCB 81
47 The plaintiff said she elected not to undergo surgery, because of the risks involved and because she did not want to leave her employment with RDA, and the flexibility it offered her.[36]
[36]PCB 8
48 In approximately mid-2013, the plaintiff increased her work with RDA to 20 hours per week; working some days in the office, and some days at home. The plaintiff complained that when working 20 hours per week, she suffered increased pain in her neck, and she felt that she was not coping.[37] On 18 October 2014, she reported difficulties working these hours to a doctor at the Malvern Medical Clinic.[38] The plaintiff said that it was a condition of her receiving top-up weekly payments from WorkCover SA, that she worked 20 hours per week.[39]
[37]PCB 11
[38]PCB 77c
[39]T 94, L12-14
49 Also in mid-2013, the plaintiff was asked by Ms Mocilnik, a work colleague at RDA, to help her in an “eChallenge”[40] assignment which Ms Mocilnik was required to complete as part of her studies at the University of Adelaide. Ms Mocilnik needed a team member to complete this assignment, which involved the design of a business, offering cloud based web solutions to small businesses. The plaintiff said that she agreed to help Ms Mocilnik, on the understanding she would share her software ideas, but that Ms Mocilnik would do the typing and prepare the documents required to present the assignment.[41]
[40]T44, L30-31
[41]T45, L5 -26
50 The plaintiff was not enrolled at the university, and received no academic credit or recognition for the assistance she gave to Ms Mocilnik.[42]
[42]T103, L28-31, T104, L1-2
51 The plaintiff explained that the proposed business, submitted as part of the eChallenge, was called e-Risk Solutions,[43] but that it never got off the ground and was never operational.[44]
[43]Exhibit 1
[44]T48, L8-17
52 In an attempt to retrain herself, the plaintiff had also commenced a Diploma in Life Coaching. She commenced her studies for this in May 2010. However, by 2013, she had only completed two units.[45] While the plaintiff said she attempted to study at home, by reading the course materials and answering questions, she only did this when she felt she could.[46] The plaintiff believes that it has now been too long for her to return to the course.
[45]Exhibit A
[46]T101, L18-26
53 In April 2014, the plaintiff considered returning to software development. She placed an online advertisement on a site called Allibabba.com, seeking expressions of interest in starting a software development business.[47] The plaintiff said she received two responses from entities in India and China. She said she took the matter no further as, although she liked the idea of getting back into software development, she did not think it would work.[48]
[47]DCB 16
[48]T50, L9-22
54 In mid-2015, the plaintiff received a redemption payment from WorkCover SA.[49] At that time, her manager at RDA told her that she could no longer have flexibility in working from home, and told her she should work only 12 hours per week.[50] The plaintiff said this was because her manager had recognised the difficulties she had coping at 20 hours per week.[51] From that time on, she was required to work fixed hours in the office.[52]
[49]T94, L4-11
[50]T94, L17-31, T96, L7-25
[51]Ibid
[52]T96, L24-27
55 In August 2015, the plaintiff was referred to psychologist, Susan Vogel. The plaintiff said she continues to attend Ms Vogel, but that she cannot afford to go as frequently as she would like.[53] Ms Vogel considers the plaintiff suffers major depression and anxiety. She noted the plaintiff had feelings of being helpless and hopeless, and suffered suicidal ideation at times.[54]
[53]PCB 14j
[54]PCB 81m
56 In approximately September 2015, the plaintiff obtained some physiotherapy treatment from physiotherapist, Emily Wong. The plaintiff attended for a few sessions, but said that she felt the treatment did not improve her condition and, if anything, made it worse.[55]
[55]PCB 14b
57 The plaintiff suffers “continuing”[56] pain in her neck and lower back. She describes the neck pain as “more severe”[57] and that it is often associated with headaches, dizziness and nausea. She said this is different to the dizziness she experiences from iron deficiency.[58]
[56]PCB 14 h
[57]PCB 14 h
[58]T67, L6-18
58 The plaintiff said she also suffers pain into her left shoulder, arm and hand, as well as pain in her left hip and into her left leg.[59]
[59]PCB 14h
59 The plaintiff takes two Panadol Osteo every six hours to reduce her pain and dull her headache. She also takes Maxolon on a daily basis, for nausea and dizziness.
60 The plaintiff continues to attend the Malvern Medical Centre. She has obtained two scripts of Panadeine Forte in the last 18 months.[60] The plaintiff said she takes Panadeine Forte once or twice a month when she knows she is going to be doing something more active than usual, or when her pain is “so severe”.[61]
[60]PCB 77b, 77d, 77f
[61]PCB 14i
61 From time-to-time, since the transport accident, the plaintiff has also taken St. John’s Wort to assist her when she is feeling depressed, but she no longer takes this.[62]
[62]PCB 114d
62 The plaintiff now works with RDA four hours per day, on each of Monday, Wednesday and Friday, from 1.00pm to 5.00pm.[63] She said that she has to pace herself at work and frequently changes from a sitting to standing position. She said she struggles to concentrate on her work, and that looking at a computer screen makes her headache and dizziness/nausea worse.[64]
[63]PCB
[64]PCB 14j
63 The plaintiff said that she is employed as an IT Manager, in a contract position that is renewed yearly each June. Her role involves answering questions in a help desk role and managing contractors. The plaintiff said that her role at RDA is not as enjoyable, or as fulfilling as her previous role with the Red Cross. The plaintiff said she misses that position and the satisfaction that it gave her.[65]
[65]PCB 14k
64 In her affidavit of October 2015, the plaintiff said:
“This is a source of sadness to me. I am passionate about software development and I loved my job. … I felt like a lot of self esteem was tied up in being good at my job. I miss the creativity…
If I was over the physical problems I would go back to doing Software Development”[66]
[66]PCB 14d
65 The plaintiff said she is limited in the domestic duties she is able to do, and now only does some cooking. She is only able to use a light, upright, portable vacuum cleaner, and she relies heavily upon her husband and son to help with the majority of the domestic duties.[67]
[67]PCB 14e
66 The plaintiff said that she had previously enjoyed watching bands perform on a regular occasion. She was also a keen supporter of “Cherry Grind”, the band of a friend’s son. The plaintiff said that she has “liked” the band on Facebook and that she clicks “attending” when they have a gig. While she does this to support the band,[68] the plaintiff said that, in reality, she has only gone to some of their gigs because her pain prevents her going as often as she would like.[69] When she does attend a gig, the plaintiff finds that moving gently to the music makes her feel better, as she is not sitting or standing in a static posture.[70] However, she said by the end of the night she suffers increased pain.[71]
[68]DCB 175-176, T73, L15-21
[69]T70, L27-28, PCB 14e
[70]PCB 14e
[71]PCB 14e
67 The plaintiff said that she no longer plays her guitar or piano, as she finds that playing for more than 5 to 10 minutes causes an increase in her neck pain. She finds this upsetting as it is an activity she enjoyed doing in the past.[72]
[72]PCB 14k
68 The plaintiff also enjoyed attending motor racing events with her husband and son, but finds the prolonged sitting and standing now causes her too much pain, so she no longer goes.[73]
[73]PCB 14f
69 The plaintiff has been unable to travel to South Africa to visit her family as she does not believe she could cope with the increased pain that would likely arise from the long flight. For the same reason, the plaintiff said she was unable to attend her school reunion in Zimbabwe.[74]
[74]PCB 14e
70 The plaintiff said that she struggles with sleep. She said she wakes with pain several times each night and that she often cannot get back to sleep. The plaintiff said that sleeping pills enable her to sleep for longer, but the increased time in one position causes her to wake with more severe pain.[75]
[75]PCB 14g
71 In her most recent affidavit sworn 27 September 2016, the plaintiff stated that her relationship with her husband is now almost “non-existent,”[76] and that she feels her husband resents having to do most of the work in the house and garden.
[76]PCB 14j
72 The plaintiff also relied upon affidavits sworn by her mother, husband, two sisters and a former work colleague.
73 The plaintiff’s mother Mrs Mengel, lives with the plaintiff. In her affidavit sworn 6 February 2014, the plaintiff’s mother stated that the plaintiff had suffered ongoing pain since the accident, and that some days the pain was worse than others.[77] Mrs Mengel also stated that the plaintiff’s pain has limited the hours that she can work, and also limited the home duties and gardening that she can perform. Mrs Mengel observed that the plaintiff is slower in what she now does and that the injury has affected every area of her life.[78]
[77]PCB 16
[78]PCB 18
74 The plaintiff’s husband swore an affidavit in support on 5 March 2014. He also described the impact of the plaintiff’s injuries, both on her working life and the activities she can do at home. Mr Schaper stated that the plaintiff is no longer able to attend motor racing events with him and their son. He confirmed that the plaintiff has difficulty sleeping, and that he will sometimes rub her back or give her a heat pack. Mr Schaper observed that “she is always in pain and this never stops. If she over does it she suffers an increase in pain.”[79]
[79]PCB 28
75 The plaintiff’s two younger sisters also swore affidavits in support of her application. Her sister, Tamatha, swore an affidavit on 13 February 2014. She stated that she and the plaintiff do not go out together as much as they used to, and when they do now go, the plaintiff cannot sit or walk for too long.[80]
[80]PCB 20
76 The plaintiff’s other sister, Nicolle, swore an affidavit on 12 March 2014. She, too, makes similar observations as to the restrictions which the plaintiff’s pain has caused her, both in relation to her work and her domestic and social activities.[81]
[81]PCB 31-33
77 The plaintiff also tendered an affidavit from Ms Mocilnik, a former work colleague from RDA. In her affidavit, Ms Mocilnik noted that the plaintiff appeared to have difficulties concentrating and focusing at work, due to pain, and that she would get up and move around regularly.[82]
[82]PCB 24
78 It should be noted that the affidavit made no reference to the eChallenge assignment which Ms Mocilnik undertook with the plaintiff.
Medico-legal evidence
79 The plaintiff’s solicitors arranged for the plaintiff to be examined by orthopaedic surgeon, Mr John O’Brien, on three occasions in June 2014, September 2015 and July 2016.
80 In his report dated 9 July 2014, Mr O’Brien noted that the plaintiff complained of neck pain with headaches and pain radiating into the left shoulder and left hand. He also noted lower back pain with pain into the left thigh. He considered that her physical signs were “entirely subjective”[83] and that they appeared to be “somewhat variable, particularly in relationship to the range of movement present in both the cervical and the lumbar region which are observed to varying relationship to changing posture”.[84]
[83]PCB 118
[84]PCB 118
81 He concluded the plaintiff’s presentation was “chronic non-specific cervical and lumbar pain with evidence of psychosocial factors influencing complex clinical problems”. He considered the overall diagnosis could reasonably be described as a chronic pain syndrome.[85]
[85]PCB 118
82 In his subsequent report dated 30 September 2015, Mr O’Brien noted that he was unable to define specific pathology to explain the plaintiff’s pain and he again concluded that she was suffering from “chronic non-specific cervical and lumbar pain”. He reconfirmed his diagnosis of a chronic pain syndrome.[86]
[86]PCB 121d
83 In his final report dated 12 July 2016, Mr O’Brien again stated there was “no clear definable specific pathology” underlining the plaintiff’s pain and he again concluded that she was suffering a significant chronic pain syndrome. He was of the opinion that her employment was limited to 12 hours a week, and that there was little likelihood that she could increase her hours of employment “without substantial aggravation of her chronic pain”.[87]
[87]PCB 121ed
84 The plaintiff’s solicitors also arranged for the plaintiff to be examined by occupational physician, Dr John Wilson, in October 2015. He interviewed and examined the plaintiff and reviewed numerous medical reports provided to him. Dr Wilson did not provide a diagnosis in his report. He simply commented on the plaintiff’s capacity for work and stated that, in his opinion, the plaintiff was working her maximum capacity, that being four hours per day on alternate days.[88]
[88]PCB 121k
85 He stated that from a physical perspective the plaintiff needed a job that did not involve continuous sitting and looking at a screen, but rather a job that allowed her to be up and walking around constantly.[89]
[89]PCB 121l
86 The plaintiff’s solicitors arranged for the plaintiff to be examined by vascular physician, Dr Peter Blombery, in July 2016. In his report dated 8 August 2016, Dr Blombery detailed his findings upon examination. He noted that the plaintiff was tender on pressure over the neck and that her neck was generally stiff. He noted that her left hand was paler than the right and 1.5 degrees cooler than the right.[90] In relation to her lumbar spine, he noted she was generally tender and had some restriction in her flexion and straight leg raising. He noted no sensory disturbance in the upper or lower limbs.
[90]PCB 121o
87 Dr Blombery reviewed the imaging, including the MRI scan of 23 May 2013. He concluded that the plaintiff had significant degenerative changes and he considered the transport accident resulted in previously asymptomatic degenerative changes being rendered symptomatic.[91]
[91]PCB 121p
88 Dr Blombery then stated that, in addition, he believed there was:
“A component of a pain syndrome present where there is sensitisation of pain nerve pathways, both in the periphery as well as the brain and spinal cord, such that non-painful stimuli become interpreted by the cerebral cortex as being painful. This process is also termed central sensitisation.
I note there were some changes in temperature and colour of the left hand. That may be related to the C7 nerve root compression that she has on the two MRIs of the cervical spine. That would suggest a component of Complex Regional Pain Syndrome Type 2.”[92]
[92]OCB 121p
89 At the commencement of the proceedings, Mr Masel objected to the admission of this aspect of Dr Blombery’s opinion on the basis that it failed to satisfy the test of expert evidence as required by the High Court decision in Dasreef Pty Ltd v Hawchar [2011] HCA 21. I ruled that Dr Blombery’s opinion was admissible. However, I acknowledge the submission by Mr Masel that Dr Blombery did not sufficiently explain this opinion, to enable me to fully understand the basis of his diagnosis of a pain syndrome.
90 Dr Blombery concluded that the plaintiff had a limited capacity to perform her pre-injury work duties as she unable to work at a computer for a long period of time. He stated that her work duties should not involve any heavy or repetitive use of her arms, and should not involve prolonged sitting or standing.[93]
[93]PCB 121q
91 Dr Blombery considered that her prognosis was poor, given that it has been almost seven years since the transport accident and her symptoms have remained essentially stable.
92 The plaintiff’s solicitors arranged for the plaintiff to be examined by psychiatrist, Dr David Weissman, in July 2014, October 2015 and July 2016.
93 In his report dated 26 October 2015, Dr Weissman obtained a history from the plaintiff that the transport accident “pales into comparison” to earlier traumas in her life.[94] However, Dr Weissman noted that the plaintiff said the physical effects of the transport accident have had more of an effect on her than those past traumas. He considered that the plaintiff was suffering mild to moderate reactive depression and anxiety as a consequence of, or secondary to, a number of significant losses and changes to her lifestyle since the transport accident, including physical pain, limitations and restrictions.[95] Dr Weissman considered that the plaintiff had a persistent pain syndrome with some pain focus and elevated health concerns.
[94]PCB 114
[95]PCB 114j
94 In his most recent report dated 12 July 2016, Dr Weissman concluded that the plaintiff was suffering from chronic adjustment disorder with depressed and anxious mood of mild to moderate intensity or severity. He also considered she had some symptoms and features of a chronic pain disorder associated with psychological factors, also known as a somatic symptom disorder.[96]
[96]PCB 114t
95 Dr Weissman recommended the plaintiff resume counselling on a fortnightly basis for 12 months, as well as recommencement of St John’s Wort or a trial of an anti-depressant medication.
96 In relation to her work capacity, Dr Weissman considered that the plaintiff seemed to be limited by a combination of physical factors (which were outside his area of expertise) as well as psychological factors.[97]
[97]PCB 114u
97 The plaintiff’s solicitors also arranged for the plaintiff to be examined by orthopaedic surgeon, Mr Robin Jackson, on four occasions in January 2011, July 2013, October 2015 and August 2016. These medical reports were tendered by the defendant.
98 In his first two reports, Mr Jackson was of the opinion that the plaintiff had suffered aggravation of previously asymptomatic degenerative changes, and that her condition had remained symptomatic at the time of each examination.[98] He considered that the plaintiff’s capacity for employment was limited and that she should return to see Dr McDonald to discuss the possibility of corrective surgery.[99]
[98]PCB 87 & PCB 95
[99]PCB 95
99 However, when Mr Jackson re-examined the plaintiff in October 2015, he formed the opinion that any aggravation from the transport accident had either settled, or that any effects from the accident would have been overtaken by the natural progression of the plaintiff’s pre-existing degenerative condition.[100] At that time, Mr Jackson also noted the plaintiff was suffering from somatic symptom disorder with predominant pain. He considered it the equivalent of what is called “a chronic pain syndrome”.[101]
[100]PCB 95f
[101]PCB 95f
100 Mr Jackson noted that the plaintiff was only working 12 hours a week, and considered her situation was affected by non-organic factors.
101 Mr Jackson re-examined the plaintiff in August 2016 and confirmed that, in his opinion, the aggravation from the transport accident had ceased.[102] He again noted the presentation of the pain disorder, with the influence of psychosocial factors, and he referred to the medical report of Mr O’Brien dated 30 September 2015. He then went on to state that he believed the plaintiff has the ability to undertake her pre-injury work duties, and stated there was no definite evidence that she could not return to such work.[103]
[102]PCB 95l
[103]PCB 95m
102 The defendant arranged for the plaintiff to be examined by orthopaedic surgeon, Dr Andrew Sutherland, in June 2014. The defendant did not seek to rely upon his report, but the plaintiff tendered it as part of its case.
103 In his report dated 12 June 2014, Dr Sutherland diagnosed the plaintiff as suffering a pre-existing degenerative process in her cervical spine, and considered her ongoing neck pain to be in part explained by an aggravation of that condition in the transport accident.[104] In relation to her lumbar spine, he noted a pre-existing spondylolisthesis. Dr Sutherland considered “to a certain extent the worker’s symptoms in her lumbar spine can be explained by an aggravation of this pre-existing mechanical issue”.[105]
[104]PCB 160
[105]PCB 160
104 Dr Sutherland stated that headaches can be associated with ongoing neck problems. He considered that there is no indication the plaintiff has any neurological problem as a result of the neck or lumbar spine injury.
105 Dr Sutherland accepted that the plaintiff suffered ongoing pain and that there was a medical basis for such pain. He commented that, in his opinion, the lack of resolution of pain since the transport accident was indicative of a probable overlying pain disorder. He commented that, at that time, her condition restricted her to work 20 hours per week and she was also restricted in her domestic duties. He considered such restriction reasonable, in light of her ongoing symptoms, which he believed to be genuine.[106]
[106]PCB 160
106 The defendant arranged for the plaintiff to be examined by two medico-legal psychiatrists. In May 2014, Dr James Hundertmark examined the plaintiff. In his report dated 14 August 2014, Dr Hundertmark detailed the plaintiff’s history and the psychological treatment she had received. He concluded that she suffers a somatic symptom disorder, with predominant pain. He explained that such a condition involves somatic symptoms:
“..that are distressing or result in significant disruption of daily life. Excessive thoughts, feelings or behaviours are related to the somatic symptoms. Her condition includes disproportionate and persistent thoughts about the seriousness of one’s symptoms.”[107]
[107]DCB 12
107 He was of the opinion that the transport accident was not the substantial cause of the pain behaviour, but rather, had served “as a trigger to allow other factors to work together to produce and continue to motivate the symptom picture”.[108]
[108]DCB 13
108 In September 2016, Associate Professor Peter Doherty examined the plaintiff. In his report dated 28 September 2016, Associate Professor Doherty concluded that the plaintiff presented with very few psychiatric symptoms, but considered that there were some symptoms consistent with a somatic symptom disorder. He noted that the plaintiff had emphasised the presence of her pain and reported that it caused her to stress and that it interfered with her social and occupational functioning. However, having viewed the video surveillance of the plaintiff, he ultimately concluded that there was a discrepancy in the consistency between her freedom of movement in that DVD and her presentation at the examination. He concluded there were some features of an adjustment disorder with secondary mood symptoms. However, he ultimately concluded there was no diagnosable psychiatric condition of a somatic symptom disorder or an adjustment disorder.[109]
[109]PCB 15.9
109 In this report, Associate Professor Doherty recorded that the plaintiff said her marriage was “okay”. When asked about this in cross-examination, the plaintiff said she could not recall expressly stating that. She then indicated she may have said it was okay on the basis that they are not getting divorced.[110]
[110]T 76, L 28-30
The plaintiff’s credit
110 I am satisfied the plaintiff was an honest, and mostly reliable witness. I am satisfied that she attempted to give an honest account, as best she could, when asked questions covering an extensive period. If at times, she could not recall seeing a doctor, she said so. When she was unsure about dates, she said so. Save for an exception detailed below, I do not consider the plaintiff overstated the consequences arising from her impairment.
111 Mr Masel submitted that I should find that the plaintiff was less than candid in the evidence that she gave, both in her affidavits and her viva voce evidence in court. In particular, Mr Masel highlighted the following matters, which he submitted were shortcomings which collectively impacted upon the plaintiff’s reliability.
(i) The plaintiff stated in her first affidavit, that she was made redundant from the Red Cross in October 2010. In cross-examination, she said that she was made redundant with other people. In re-examination, she said that prior to the transport accident she had understood that she was not to be made redundant.
I consider there to be a lack of evidence in relation to the redundancy. Without evidence from anyone at the Red Cross as to how many people were involved in the redundancy, or whether plans had changed in relation to the plaintiff’s position after the transport accident, I can make no finding one way or the other. In any event, I make no criticism of the plaintiff in relation to this, and do not consider this impacts upon the plaintiff’s reliability.
(ii) The omission of the plaintiff’s involvement in the eChallenge assignment. I consider the plaintiff’s involvement in this assignment was minimal, and note she was not a student at the university, but was simply assisting a friend. I accept the plaintiff’s evidence that she gave her friend, Ms Mocilnik, ideas about software development and that she was, beyond that, not readily involved. I do not consider this an indication of the plaintiff’s capacity to undertake her own software business.
(iii) The plaintiff’s failure to mention difficulties with her iron deficiency over a prolonged period of time, resulting in tiredness. In circumstances where the plaintiff worked full-time prior to the transport accident, I do not consider this was such a troubling matter for her and therefore do not criticise her for her failure to mention this as part of her past medical history.
(iv) The plaintiff’s failure to mention prior traumatic events in her past life, including abuse committed against her at the age of 12 and the involvement of her son in an armed robbery at the age of nine. Although such matters are relevant to her psychiatric history, and ought to have been disclosed to the medico-legal psychiatrists, as well as in her affidavit material, the sensitivity of these matters is such that I make no adverse credit finding against the plaintiff for failing to disclose these prior to her cross-examination.
(v) The plaintiff’s lack of candour regarding the deterioration of her marriage. I consider that such matters are extremely personal to the plaintiff. They are, however, relevant to this application, as the plaintiff had previously claimed that the injuries suffered in the transport accident, had, due to a combination of pain and loss of libido, impacted upon her marital relations. I consider the plaintiff’s history to Associate Professor Doherty in September 2016 was disingenuous and incomplete. For this reason, I am not satisfied that the plaintiff’s injuries have resulted in a deterioration of her marriage. However, her lack of candour regarding her marriage, is not sufficient to cause me to reject the balance of the plaintiff’s evidence, when I otherwise accepted her as being creditworthy.
112 I note that none of the doctors stated that the plaintiff was not genuine. Mr O’Brien and Mr Jackson referred to psychosocial factors influencing her condition, and Dr Hundertmark considered there may be a number of factors motivating her pain behavior. However, I consider such comments consistent with the plaintiff suffering symptoms and features of a pain syndrome, as a consequence of her spinal injury, such that she is focused on her pain and disability.
113 The video surveillance of the plaintiff does not show anything inconsistent with what she had previously said in her affidavits. She was seen squatting for approximately three minutes whilst waiting for a prescription in a chemist. I accept her evidence that this position can assist her to alleviate lower back pain caused through standing or walking.[111]
[111]PCB 14i
114 The video surveillance also showed the plaintiff attending the dock in Port Adelaide, with the intention of visiting the animal welfare protest boat, the Sea Shepherd. The drive to Port Adelaide was over an hour from her home. The plaintiff said she had taken Panadeine Forte that morning, to enable her to make this trip.[112] I accept her evidence in relation to this.
[112]PCB 14i
115 I accept the plaintiff as a genuine witness, and do not consider that footage to impact upon her credibility.
116 The plaintiff’s complaints of ongoing pain are corroborated by the affidavits from her husband, mother, sisters and workmate. Although these affidavits are all over two years old, and four of them are from family members, I consider it appropriate to give some weight to the corroboration these affidavits provide.
Is the plaintiff suffering an organic injury?
117 The plaintiff claims that she suffers an organic injury to her spine, that being aggravation of a previously asymptomatic degenerative condition. In this regard, reliance was placed on the reports of treating surgeons, Dr Fagan and Dr McDonald, and medico-legal doctors, orthopaedic surgeon, Dr Sutherland and vascular physician Dr Blombery.
118 The defendant contended that any injury arising from the transport accident had since ceased. In this regard, reliance was placed on the medico-legal opinion of orthopaedic surgeon, Mr Jackson.
119 The plaintiff has been consistent in her complaints of neck and lower back pain since the transport accident. Although in early 2010 she initially had some improvement in her symptoms, I accept her evidence that the pain has never entirely resolved. I accept that the pain increased following her return to work in March 2010 and after receiving physiotherapy treatment.
120 I note that in his reports of October 2015 and August 2016, Mr Jackson expressed an opinion that the plaintiff’s condition was no longer related to the transport accident. However in circumstances where he does not explain when and how the aggravation ceased, nor the basis upon which he considers the underlying degenerative condition would have become symptomatic, I am unable to understand the basis for his change of opinion. Further, in circumstances where I accept the plaintiff has suffered consistent pain since the transport accident, with no period of sustained recovery, I accept that the transport accident remains the cause of the plaintiff’s physical condition.
121 Dr Blombery, Mr O’Brien, Dr Sutherland and Dr Wright discuss the plaintiff suffering a pain disorder or chronic pain, in the context of a physical injury. Mr Jackson initially accepted that the plaintiff suffered a physical injury from the transport accident, but he is now of the opinion the transport accident is no longer the cause, and that it is due to the plaintiff’s underlying degenerative condition.
122 The psychiatrists refer to chronic pain in the context of a psychiatric injury. Dr Weissman considered the plaintiff has symptoms and features of a chronic pain disorder. Dr Hundertmark considered she suffers a somatic symptom disorder. Associate Professor Doherty is of the opinion the plaintiff is not suffering any diagnosable psychiatric condition.
123 In considering the plaintiff’s application under sub-section (a), I should disregard the non-organic overlay or psychological contributions in assessing the consequences of her physical condition.
124 In the Court of Appeal decision in Meadows v Lichmore Pty Ltd,[113] Maxwell ACJ identified a two-step process for cases where a physical injury was present, as well as a pain syndrome.
“The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative - and, of course, if the pain and suffering consequences satisfy the statutory criterion - then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.”[114]
[113][2013] VSCA 201
[114]Ibid at [21]
125 This is not a case in which the plaintiff’s pain is unexplained physically. I consider there to be a substantial body of medical material to support a finding that the plaintiff suffers aggravation to degenerative changes in her cervical and lumbar spine, which causes the plaintiff physical restrictions in prolonged sitting, standing and working on a computer.
126 It is apparent from the numerous medical reports tendered in this case that the physical injury has had a significant impact upon the plaintiff’s mental state. However in circumstances where I am satisfied that there is a substantial organic basis to the plaintiff’s spinal injury and the consequences relied upon, I do not consider it necessary for me to engage in a disentangling process.
Long-term
127 In order to satisfy the definition of serious injury, the plaintiff must prove the injury and its consequences are both serious and long-term.
128 I am satisfied the plaintiff’s injury and the consequences which flow from it are long-term. The pain has persisted for over seven years. It had been recommended that the plaintiff undergo surgery, but she elected not to proceed with that. There is no recommendation that she undergo any other type of treatment which may lead to an improvement in her pain.
Are the consequences of the plaintiff’s spinal impairment “very considerable”?
129 The plaintiff must satisfy me, on the balance of probabilities, that the organically based consequences satisfy the statutory criterion of at least very considerable.
130 I accept that the plaintiff suffers a reduced capacity for employment because of the impairment to her spine. Prior to the transport accident, the plaintiff had a sound work record, and obtained considerable satisfaction from her job as a software developer. This finding is supported by the opinions of Dr McDonald, Dr Wright, Dr Sutherland and Dr Blombery, and was also previously supported in the first two reports of Mr Jackson. It is difficult for me to understand the change in his opinion regarding the plaintiff’s work capacity, and for that reason I give little weight to it.
131 I accept the plaintiff’s evidence that working at a computer causes increased neck pain. I accept that her neck and lower back pain make it painful for her to sit or stand for prolonged periods. I accept that whilst she is at work, the plaintiff frequently needs to move around, and that at the end of a four hour shift, no change of position can help her pain.
132 I accept that the plaintiff struggled working 20 hours per week, and that she was only able to manage that with flexible work conditions, that allowed her to work from home. When she was able to work from home, she would work at different times of the day, depending upon her pain levels. The plaintiff is no longer able to enjoy such flexibility in her current contract.
133 I do not accept that the plaintiff was unmotivated to work, such that at the time she received her redemption payout, she elected to reduce her working hours. The plaintiff is the main breadwinner in her family. Whether the reduction in her working hours was instigated by her, or done at the request of her boss, I accept that it was too hard for her to continue working 20 hours per week. The contemporaneous medical records[115] and reports[116] support that she was having difficulty coping with such work.
[115]PCB 77c
[116]PCB 100, 117
134 At the time the plaintiff was injured she earned in excess of $80,000 gross per annum. Notwithstanding her retrenchment from the Red Cross, this demonstrated the plaintiff’s without injury earning capacity.
135 In her current position with RDA, the plaintiff earns approximately $19,000 gross per annum. Even if she was able to increase to 20 hours per week, I consider that the plaintiff would still suffer significant pecuniary disadvantage because of the impairment to her spine.
136 I accept that the plaintiff is limited in the number of hours she can work, in any ongoing or future employment, and will also require flexibility in sitting and standing positions.
137 In addition to the pecuniary disadvantage she has suffered, I also accept the plaintiff has been denied the enjoyment and satisfaction that she previously obtained from her role as a software developer.
138 In addition to those very considerable consequences associated with the adverse impact on her career, I accept that the plaintiff suffers the following consequences:
· She usually takes Panadol Osteo on a daily basis.
· Her sleep is interfered with on a regular basis.
· She is limited in domestic tasks, and relies heavily upon her husband and son.
· She no longer attends motor sport events
· She is limited in her ability to see bands perform. When she does attend, she suffers increased pain afterwards.
· She no longer plays her guitar or piano as she finds it is painful to play after five or ten minutes.
139 The plaintiff claimed the deterioration of her marriage as a consequence of the transport accident. However, I make no finding in relation to this alleged consequence, given my reservations as to the plaintiff’s evidence on this.
140 The plaintiff also claimed that she had initially suffered weight gain after the transport accident due to lack of activity. She claimed that she had gained 10 kg in weight. However, the plaintiff has since lost that weight, which has resulted in some improvement in her lower back pain.[117] In such circumstances I do not consider this a consequence of any significance.
[117]T 90, L 10-13
141 I can also have regard to the impact her physical injury has had upon her psychological condition, as this can be an indication of the seriousness of the physical impairment, as permitted by Richards v Wylie.[118]
[118](2000) 1 VR 79
142 It is apparent from the medical reports, together with the plaintiff’s own affidavit, that she has suffered significant anxiety and depression as a consequence of her ongoing pain and the restrictions it is caused her both in her professional life, and her home and recreational activities.
143 When looking at the plaintiff’s impairment to the spine, when judged by comparison with other cases in the range of possible impairments or losses, I am satisfied that the consequences for the plaintiff are at least very considerable.
Plaintiff’s psychiatric condition
144 In the alternative to the plaintiff’s claim under sub-section (a), she also makes a claim under subsection (c), for a severe psychiatric condition arising from the transport accident. This alternate application was made by the plaintiff, because some of the doctors referred to a psychological basis for her suffering chronic pain or a pain syndrome.
145 There are different diagnoses offered by the psychiatrists who have examined the plaintiff. Dr Weissman diagnosed the plaintiff as suffering from chronic adjustment disorder with depressed and anxious mood of mild to moderate intensity or severity. He also considered she had some symptoms and features of a chronic pain disorder associated with psychological factors, also known as a somatic symptom disorder. Dr Hundertmark diagnosed the plaintiff as suffering a somatic symptom disorder with predominant pain. Associate Professor Doherty did not diagnose the plaintiff as suffering a diagnosable psychiatric condition. The plaintiff’s treating psychologist Ms Vogel diagnosed the plaintiff as suffering major depression and anxiety.
146 I am satisfied that the plaintiff’s spinal impairment has caused her anxiety and depression, as acknowledged in paragraph 142 above. However I do not consider that such anxiety and depression, constitutes a severe psychiatric condition.
147 I note in the plaintiff’s most recent affidavit, sworn in September 2016, that she makes reference to her treatment with Ms Vogel and the advantage it has given her, particularly in coming to terms with the loss of her career. Beyond this reference, the plaintiff makes no further reference to her psychological symptoms.
148 I note that the plaintiff does not take antidepressant medication and no longer takes St John’s Wort. I note that Dr Weissman recommended that she undertake a therapeutic trial of anti-depressant medication or resume taking St. John’s Wort, but that the plaintiff has elected not to do so. Although the taking of such medication is not determinative of the severity of her condition, it does give some indication as to the seriousness of the plaintiff’s psychological condition.
149 In considering all of the evidence, I am not satisfied the plaintiff suffers a severe psychiatric condition.
Orders
150 The plaintiff’s application for leave to commence a claim for common law damages for the injury to her spine suffered in the transport accident, succeeds. I shall make consequent orders.
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