Schmitz v Transport Accident Commission
[2013] VCC 325
•27 March 2013
| 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-11-06106
| URSULA SCHMITZ | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7, 8, 12 and 13 March 2013 | |
DATE OF JUDGMENT: | 27 March 2013 | |
CASE MAY BE CITED AS: | Schmitz v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 325 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – injury to the lumbar spine
Legislation Cited: Transport Accident Act 1986
Cases Cited: Richards v Wylie (2000) 1 VR 79
Judgment: Leave to commence a proceeding claiming damages in respect of injuries sustained by reason of the transport accident which occurred on 7 October 2008.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P A Jewell SC with Mr J Valiotis | Arnold Thomas & Becker |
| For the Defendant | Mr P J Hayes with Ms R J Boyce | Wisewould Mahony |
HIS HONOUR:
1 In this application, the plaintiff seeks leave to commence a proceeding claiming damages for injuries suffered by her as a result of a transport accident which occurred on 6 October 2008. The injury relied upon by the plaintiff in the proceeding is one to her lumbar spine, and the relevant impairment is that of the spine.
2 In the application, the parties rely upon two affidavits sworn by the plaintiff on 23 May 2012 and 4 March 2013 respectively, together with the plaintiff’s viva voce evidence. In addition, the parties have tendered a number of medical reports and other documents. Further, Mr Stanley Schofield, an orthopaedic surgeon, who undertook a medico-legal examination of the plaintiff on 19 June 2012, gave viva voce evidence in the application.
3 The issues which arise for my consideration involve the primary issue as to whether or not the consequences to the plaintiff of the organic injuries suffered by her to her lumbar spine are appropriately described as giving rise to an impairment which is “serious” within the meaning of the Transport Accident Act 1986 (“the Act”).
4 Given the body of evidence which supports the proposition that the plaintiff presents with an emotional condition which impacts upon her presentation, it is accepted by the parties that the approach which I am required to take in assessing the relevant consequences to the plaintiff in this case is that set out by the Court of Appeal in Richards v Wylie, namely:[1]
(i)firstly, to identify the organic injury responsible for the plaintiff’s symptoms and incapacity;
(ii)secondly, insofar as I am satisfied that the organic injury so identified is directly responsible for sponsoring emotional sequelae, those emotional sequelae may also be taken into account in assessing whether the consequences to the plaintiff of her organic injury (in this case, the injury to her lumbar spine) are such that they are appropriately described as being more than significant or marked and as being at least very considerable.
[1](2000) 1 VR 79
The plaintiff’s affidavit evidence
5 The affidavit evidence relied upon by the plaintiff is set out in her affidavits at Court Book (“CB”) 74-77 and 80-83. Little purpose is served by reciting the content of those affidavits verbatim. Essentially, the plaintiff has deposed to the fact that:
· prior to the accident, she did not suffer from any condition which caused her to experience pain or restriction in the movement in her lower back; and
· by reason of the accident, she has suffered, and continues to suffer, from symptoms in her low back which are such that:
(i) they cause her to experience very significant pain;
(ii) they impact significantly and adversely upon any activity which requires her to stand, walk and bend; and
(iii) significantly impact upon her ability to sleep.
The plaintiff’s viva voce evidence
6 In the course of cross-examination, the plaintiff:
·agreed that prior to the transport accident, she had been an invalid pensioner for many years by reason of the presence of arthritis in her neck, upper back, shoulders, arms, feet and toes;
·that her son, Michael, suffered from schizophrenia, and that this had been for her a difficult emotional problem;
·that she had completed an application for payment form which had been submitted to the Transport Accident Commission fifteen months after the accident, which she had prepared with the help of her son, Michael. That the relevant entries had been inserted by Michael. She said that she had checked the form to ensure that the content of the form was correct but agreed that her answer to Question 23 was incorrect, in that it failed to disclose that she had been suffering from arthritis in various parts of her body prior to the transport accident;
·did not accept that she failed to co-operate deliberately with the medical practitioners who had examined her or that she had exaggerated the level of pain which she was experiencing in her back. Described her pain over the previous two to three years in the following terms: “My pain was worse”. But accepted however, that she had described her level of pain as being 7 out 10 to Dr Littlejohn “a couple of months ago” but at 10 upon the occasion of Dr Littlejohn’s earlier examination of her;
·that she initially consulted Dr Rezk after the accident. That Dr Rezk referred her to physiotherapy at the Manningham Centre. That she consulted Dr Rezk because her symptoms were not improving. She sent her to see a surgeon and that her delay in submitting a claim form to the Transport Accident Commission was “because I was hoping I got better. I didn’t want to go through the whole procedure, you know”;
·accepted that her ability to undertake housework was restricted to some extent by her arthritis, but said that prior to the accident, although her husband was a good man and assisted her generally, she had been able to clean, including undertaking vacuuming cleaning, which she could no longer do; go shopping by herself; share with her husband in caring for Michael; and that her symptoms of arthritis were managed with taking tablets and fish oil, but that nothing helped control the pain she experienced in her lower back. That before the accident, although she often went shopping with her husband, she was able to push the trolley and go by herself, “but after the accident, I couldn’t do that any more”. She described her ability to walk after the accident, when compared with ability before the accident, as “but much shorter now” and said that prior to the accident, she had loved bicycle riding, that she would ride with her grandchildren or by herself, but that she had to give up that activity;
·she was taken to her affidavit evidence in which she deposed to the fact that her back pain had precluded her from flying and that she enjoyed catching up with her family every few years. The plaintiff accepted that her passport had expired in 1999 and I am satisfied that the statement made by the plaintiff in her affidavit as to the effect of her back symptoms upon her ability to travel is exaggerated;
·that she suffered from disturbed sleep by reason of increasing back pain, but that she had not sought any prescription from Dr Rezk to assist her to sleep, commenting that she had complained to Dr Rezk regularly about her lower back pain but did not ask for any sleeping medication;
·described the fact that her husband slept upstairs but she slept downstairs, “because of my lower back, I don’t want to climb the stairs all the time”.
The medical evidence
7 Dr Lillian Rezk is the plaintiff’s general practitioner. The plaintiff consulted Dr Rezk following the accident with symptoms of low-back pain on 7 October 2008 and with persisting neck pain on 15 October 2008. On 22 October 2008, Dr Rezk noted that the plaintiff presented with persisting back pain and referred the plaintiff for physiotherapy at the Manningham Community Health Service.
8 In a report dated 16 November 2012, Dr Rezk commented:
(i)that the plaintiff was employing “Indocid and painkillers and is hoping for surgery”;
(ii)that the plaintiff’s condition was stabilised and that she continued to suffer from significant back pain and pain on movement;
(iii)that the plaintiff presented with depression, which was another factor in reducing her motivation and energy levels.
9 There is no record of Dr Rezk seeing the plaintiff for neck or back symptoms between October 2008 and November 2009.
10 The defendant relies upon the absence of any note by Dr Rezk of such a presentation in support of the proposition that the plaintiff’s symptoms must not have been significant during this period.
11 Having regard to:
(i) The plaintiff’s evidence that he delayed submitting the claim with respect to the accident until 2010 as she was expecting her condition to improve, which I accept;
(ii)The fact the plaintiff presented to Dr Rezk in November 2009 complaining of low-back pain which was getting worse, notwithstanding that the plaintiff had “tried swimming, physiotherapy and painkillers to no avail”;[2]
[2]Defendant’s Court Book (“DCB”) 97
(iii)The fact that on 4 December 2009 and 17 December 2009, the plaintiff was presenting to Dr Rezk with symptoms of back pain which was described as “worse” in respect of which the plaintiff was prescribed Panadol Osteo and referred to a neurosurgeon at the Austin and Repatriation Medical Centre;
(iv)That in her reports of 9 December 2010 and 30 April 2012, Dr Rezk raises no issue with the fact that the plaintiff had suffered a low-back injury in the accident which was such as at 30 April 2012:
“That she will continue to be in the same pain and restrictions unless she agrees to have the fusion surgery of her lumbar spine. The latter may improve her symptoms as per Mr Yi Yuen Wang’s advice … Ursula is 64 years old. She suffers from significant back pain and aggravation of depression.”[3]
(v)That no issue is raised by the medical practitioners who have been retained by both parties as to the relationship between the subject accident and the cause of the plaintiff’s symptoms;
I do not find the position taken by the defendant in this regard to be in any way persuasive, and am satisfied that it has little relevance to the task required of me, namely to determine the level of the plaintiff’s symptoms and resultant incapacity at the present time.
[3]PCB 32
12 The plaintiff was examined by Mr Patrick Chong, an orthopaedic surgeon, on 7 October 2008. At that time, Mr Chong expressed the opinion that the plaintiff presented with an aggravation of an underlying condition of degenerative change in her spine and opined that her prognosis was fairly good in that her condition should improve with treatment and with the passage of time.[4]
[4]PCB 7
13 In a report dated 9 February 2012, Mr Chong reported that the plaintiff presented to him on five further occasions following her presentation on 6 October 2011; namely, 10 October 2011, 17 October 2011, 31 October 2011, 14 October 2011, and 12 December 2011; and said that:
(i) On each occasion, the plaintiff complained of ongoing pain in her lower back, especially when active and reported that she had difficulty with prolonged sitting or walking.
(ii) He had advised the plaintiff to consult a neurosurgeon as to whether it was feasible for her to have decompressive surgery at the L5 level of her lumbar spine;
(iii) The plaintiff was currently being treated with Norgesic, having been unable to tolerate medication in the form of Tramal or Norspan patches;
(iv) The plaintiff’s “Long term prognosis is not good. She may or may not be able to have decompression surgery in her lumbar spine. If surgery is contraindicated conservative treatment including physiotherapy will be prolonged.”[5]
[5]In his report Mr Chong makes not comment as to the plaintiff presenting with symptoms which were embellished or inconsistent with the nature and degree of her organic injury.
14 Mr Yi Yuen Wang, a neurosurgeon, examined the plaintiff on 25 November 2011 at the referral of her treating general practitioner. In a report dated May 2012, Mr Wang diagnosed the plaintiff as presenting with lumbar spondylitic changes in her spine manifested by degenerative disc disease, “worse at the left L2-3 disc level followed by the L4-5 level. There is also moderate arthropathy of the left L2-L3 joint”. He also described the plaintiff as presenting with “a significant degree of functional over ride that is not addressed at this stage”.
15 Mr Wang opined that the plaintiff was severely debilitated by her symptoms, and expressed the opinion that her long-term prognosis was guarded, commenting, “There is a significant psychological over ride having been in pain for four years now and this will have a negative impact upon long term prognosis.”[6]
[6]Transcript (“T”) 36
16 As at 17 February 2012, Mr Wang recommended that the plaintiff undergo surgery at the L2-3 level of the lumbar spine, opining that she presented with “a very significant hot spot at L2-3 level which correlates with her degenerative changes and collapse on MRI scan.” As to the prospects associated with surgery, Mr Wang commented: “Whilst there are more than one options to treat this, my preference in this case would be to perform a lateral interbody discectomy and fusion via minimally invasive approach. I would suggest that surgery of this manner would have a 65 to 70 per cent chance of significantly improving her symptoms of back pain.”
17 Mr Stanley Schofield, a consulting orthopaedic surgeon, examined the plaintiff on 19 June 2012. On that occasion, he expressed the opinion that the plaintiff presented with gross degenerative changes affecting the L2-3 level of her spine and chronic changes at all levels of the spine from L2 to S1. He described the presence of a small central prolapse at L4-5, a mild bulge at L3‑4 and stenosis centrally, extending from L2 to L4.
18 Mr Schofield opined that the impact of the accident was likely to have caused some aggravation of the plaintiff’s severe pre-existing degenerative changes. He noted a marked over reaction of the plaintiff to his examination, observing that Dr Weissman, a psychiatrist, had assessed the plaintiff’s psychiatric condition as involving fairly mild residual primary or direct post traumatic stress and anxiety symptoms and features of traumatisation and commented as to the comprehensive nature of Dr Weissman’s assessment.
19 In the course of his examination of the plaintiff, Mr Schofield had arranged for the plaintiff to have further x-rays, including erect views of her lumbar spine, which he examined, and opined that they revealed the presence of a formal slip between the vertebrae at the plaintiff’s L3-4 level, indicating the presence of instability at that level. Mr Schofield opined that the plaintiff was not a candidate for surgery, given the widespread nature of her symptoms.
20 In a further report dated 26 June 2012, Mr Schofield revisited that opinion, commenting that the plaintiff was a candidate for surgery to stabilise the L3-4 joint, given the instability which was present at that joint.
The viva voce evidence of Mr Schofield
21 Mr Schofield gave evidence that he examined the plaintiff on one occasion, at which time he had referred her for x‑rays, which included an erect view of the plaintiff’s spine. He said that he interpreted the view as revealing an instability at the L3-4 level, when the plaintiff was bending forward. It was his opinion that this instability was most probably traumatic in nature and that, subject to confirmation of that instability via MRI scan, the plaintiff was an appropriate candidate for surgery.
22 When it was put to Mr Schofield that the plaintiff’s presentation on one occasion to her general practitioner eight years prior to the transport accident with back pain was in some way relevant to the symptoms associated with the car accident, Mr Schofield commented: “I can’t make any deduction from just one attack of back pain eight years previously.”
23 As to the relevance of the instability at the L3-4 level of the plaintiff’s spine, Mr Schofield described this as being “an additional factor that’s causing her back pain”.
24 Mr Jeffery Littlejohn, an Associate Professor of Medicine, whose speciality is rheumatology, has examined the plaintiff on a number of occasions at the referral of the defendant.
· As at 5 April 2011, Mr Littlejohn opined that the motor accident had rendered symptomatic an asymptomatic degenerative disease process in the plaintiff’s lumbar spine, that the plaintiff’s situation at that time was stable, and that “although there is some regional pain amplification, I believe the main generator of her pain is organic change in the low lumbar spine which has been aggravated by the motor vehicle accident”.
· As at 22 January 2013, Mr Littlejohn opined that the plaintiff’s current problem was generated from degenerative disease of her lumbar spine but that she also presented with “some features of localised Chronic Pain Syndrome which implies there is a local amplification of pain from the degenerative lumbar spine disease and this amplification process”. Mr Littlejohn obtained a history from the plaintiff at that time that her sleep was poor, she suffered from severe fatigue levels and poor concentration and memory change and commented that the plaintiff presented with regional pain problems and that “had she not had the pain amplification factor that I have mentioned … I believe she would have far less pain and discomfort and improved functioning in regards to her back condition. It is impossible to say what level the background pain would be, but without the pain amplification factor, I would think the residual pain might be at a level of 3 to 4 out of 10, rather than the pain which she states she has at the present time of 7 to 8 out of 10.”[7]
He further explained his position in the following terms: “She does have a significant pain problem. And I believe her complaints are genuine in that regard. It is more the mechanism of the pain that is in debate and the management of that mechanism. I don’t think surgery is appropriate management for the key mechanism of her pain … it is possible she might be somewhat prone to easy pain sensitisation if a joint or area becomes symptomatic or the focus of ongoing problems.”[8]
[7]I interpret Mr Littlejohn by this statement not to be taking issue with the fact that the plaintiff perceives her pain to be at the higher level of 7-8 but to be expressing the opinion that the organic component of her pain would be 3-4.
[8]DCB 22-23
25 I interpret Mr Littlejohn, by these statements, to be opining that the plaintiff suffers from organic pain, the effect of which is magnified in her perception by the presence of sensitivity on her part, but that:
· The main generator of the plaintiff’s pain comes from the presence of an organic process involving the aggravation of pre-existing asymptomatic degenerative condition; and
· Any magnification of the plaintiff’s pain is secondary to the organic condition.
26 Mr Roy Carey examined the plaintiff on 29 March 2012. He described the plaintiff as presenting with a Chronic Pain Syndrome, and commented that her pre-existing and foot arthritis was having no impact on her presentation. He opined that if the plaintiff had not had an idiosyncratic psychological response to injury and developed a Chronic Pain Syndrome, she may well be complaining of anything from being completely asymptomatic to being still disabled with pain, the physical nature of which is probably an aggravation of lumbar spondylosis.[9]
[9]PCB 51
27 In a report dated 10 April 2012, Mr Carey further explained the position taken by him in his earlier report in the following terms:
“None of what I have written above in this report or that provided in my previous report 29 March 2012 should be taken to indicate that I believe Ms Schmitz does not have a significant low back problem as a result of the motor vehicle accident 10 October 2012.
My opinion is that she now has a chronic pain syndrome consequent upon her accident of 6/10/2008 and as an idiosyncratic psychological response to it.
This should not be taken to mean that Ms Schmitz did not sustain a back injury at the time of the motor accident of 6/10/2008.”
28 Mr Carey re-examined the plaintiff on 11 December 2012. On that occasion, he found the plaintiff to present with “no non-organic symptoms of abnormal illness behaviour whatsoever” and opined that the plaintiff presented with chronic low-back pain but that she did not present with features suggesting a Chronic Pain Syndrome or an idiosyncratic psychological response, whist he commented that in the absence of specific pathology such as fracture dislocation, there would be an expectation that the level of symptoms which a person complains of some four years post the motor car accident, would resolve largely or completely. “Failure to resolve does not necessarily indicate a non-organic response to pain but may indeed be associated with aggravation of pre-existing (asymptomatic) lumbar spondylosis.”
29 Whilst Mr Carey opined that the plaintiff was not a candidate for surgery, he concluded his reporting in this matter by opining: “On both occasions I saw the lady she had signs of pain amplification or a psychological response to injury” commenting that whilst the non-organic signs he had detected in the plaintiff’s presentation at the time of his initial examination of the plaintiff had resolved, “Her pain amplification psychological reaction obviously continues.”
30 Relevantly, I interpret Mr Carey, by these statements, to be expressing a similar opinion to that expressed by Mr Littlejohn, to which I have referred above, as to the relationship between the plaintiff’s organic condition and her chronic pain syndrome.
Findings as to the issues raised by the defendant
The plaintiff’s reliability as a witness
31 In the course of viva voce evidence, it was apparent that the plaintiff presented as being histrionic, quite emotional and as having difficulty in dealing with the process involved in giving evidence, both evidence-in-chief and cross-examination.
32 It was put by Mr Hayes, on behalf of the defendant, that the plaintiff presented as an unreliable witness who was prone both in her affidavit evidence and in her viva voce evidence, to exaggerate her symptoms of pain and the impact upon her life of those symptoms, and further that on occasion the plaintiff did deliberately choose not to tell the truth.
33 It was put by Mr Jewell, Senior Counsel, on behalf of the plaintiff, that as a witness, the plaintiff presented as someone lacking in sophistication and “compromised in her capacity to receive, digest and synthesise information”, but that she was someone who was not deliberately untruthful and was doing the best that she could in dealing with the foreign process involved in giving evidence. My impression of the plaintiff as she gave evidence largely accords with this description of her.
34 An analysis of the plaintiff’s evidence generally bears this out. A simple illustration of the issue can be found at the plaintiff’s evidence at Transcript 207, Line 29 to Transcript 208, Line 5, in which she provides totally non-responsive answers to questions which were simple and easily recognised as providing an opportunity to provide crucial evidence to anyone who had an understanding of the issues involved in the application.
35 The plaintiff’s native language is German. A large part of her evidence was given in the absence of the assistance of an interpreter. My impression of the plaintiff at that time was that she had difficulty expressing herself and was inclined to make concessions borne of that difficulty rather than by reason of the fact that she accepted those concessions as being appropriate. For that reason, I directed that the parties engage an interpreter to assist the plaintiff, having regard to her response to a question directed to the plaintiff by me that she would find it easier to explain herself if she could have recourse to her native German language.
36 As is often the case however with witnesses who have spent a long period of time in Australia and have developed a process of speaking English with occasional resort to their native tongue, the provision of an interpreter for the plaintiff was only marginally successful, the plaintiff repeatedly responding to questions half in English and half in German. This made the process of adducing the plaintiff’s evidence, both in evidence-in-chief and cross-examination, difficult and frustrating for counsel, and equally difficult for the German interpreters who were employed to assist the plaintiff in the course of the trial.
37 It was put on behalf of the defendant that the plaintiff’s credit was impugned by the statements made by her in her general claim for compensation under the Transport Accident Act form completed 20 January 2010.
38 When account is taken however:
· Firstly, of the plaintiff’s evidence that the form was effectively completed for her by her son and that the plaintiff’s adoption of the contents of the form involved her reading the form over when completing the attestation clause;
· Secondly, that the form in its structure may be confusing to a person with the plaintiff’s ability to manage the English language in that it comprises some ten pages and 44 questions, many of which contain multiple parts;
· Thirdly, that in completing the form, the plaintiff made it clear that the injury in respect of which an application was being made involved “sacral back pain”;
· Fourthly, that in providing inaccurate information as to the numerous conditions inquired of in Question 23, no aspect of the information which was inaccurate would, in my opinion, be understood by a lay person completing the form as having any relevance to the claimed injury;
I am not satisfied that the plaintiff’s inaccuracy in completing the form is a significant factor which has the effect of undermining her credit.
39 Nor do I accept that the plaintiff’s evidence (in which she accepted that she took care to ensure that the content of the form was accurate when aspects of it were clearly inaccurate), undermines her credit generally, having regard to the comments previously made by me as to the difficulty encountered by the plaintiff in dealing with the process of giving evidence, particularly given the fact that the plaintiff was providing answers with respect to a form which had been completed by another person on her behalf some three years ago.
40 Given that the plaintiff presents as a poorly educated German migrant[10] who was assessed:
[10]See the history from Dr Walton at DCB 27
· By Dr Walton as presenting with difficulties with concentration and forgetfulness, amounting to a slight impairment of thinking;
· By Dr Weissman as suffering from a moderate depressive and anxiety syndrome which was having a mild impact upon her thinking, perception, judgment and behaviour;
I consider it likely that the plaintiff’s emotional state so described impacted upon her ability to cope with the foreign and confronting experience of having to give evidence and to deal with cross-examination in a language which was not her native language, notwithstanding the fact that she possessed considerable familiarity with that language.
41 Finally, I am of the opinion that the plaintiff’s delay in lodging a claim form with the no fault division of the Transport Accident Commission when that delay is considered in the context of the fact that the plaintiff:
(i) incurred some expense in consulting her general practitioner and a physiotherapist for symptoms which were clearly accident-related but did not seek immediate reimbursement with respect to those expenses by reason of the fact that she did not wish to submit a claim in the expectation that her symptoms would improve;[11]
[11]I accept her evidence as to this issue
(ii) initially experienced symptoms both in her low back and in her neck (the plaintiff referred to her neck symptoms in the subject form as being “much worse since the accident”), but only submitted a claim in respect to her low back pain because her neck symptoms as distinct from her low back pain had resolved with the passage of time;
speak more in favour of her credit than against it, her actions involving as they do:
· A willingness to meet her own medical expenses until it became likely that her condition would not resolve quickly;
· The abandonment by her of any claim with respect of the injury to her neck because that condition had resolved.
42 For each of the reasons listed above I am satisfied that whilst the plaintiff’s reliability as a witness on some issues was questionable, generally her attitude involved one in which she did her best to provide an accurate account of the pain associated with her injury and the way she was affected by her injury.
43 In making the above statement, that is not to say that I accept all of the evidence given by the plaintiff, and I am satisfied that the statement made by the plaintiff in her affidavit that the impact of her symptoms had been such as to interfere with her ability to travel overseas, which she asserted had been a not irregular practice (the evidence establishing otherwise given that the plaintiff’s passport had expired in 1999) involves clear exaggeration by her as to this issue.
44 It is appropriate at this stage that I comment upon the position taken by the defendant that the plaintiff presented with a pre-existing back condition which was relevant to the issues which arose in this proceeding. I am satisfied that:
(i) To accuse the plaintiff of lying as to the presence of prior symptoms of low-back pain, which accusation was based upon one isolated presentation by the plaintiff to her general practitioner with back pain in 2004, which required no treatment or follow up, in the circumstances which could easily have been forgotten by the plaintiff because it involved a presentation of no significance; and
(ii) To assert that this presentation grounded the need to disentangle the plaintiff’s pre and post accident symptoms of back pain in the presence of:
· the dismissal of such a suggestion by Mr Schofield;
· the unchallenged opinion by Dr Rezek that the plaintiff presented with “no pre existing condition”; and
· the absence of any other medical opinion to support such an assertion
represent positions taken by the defendant of no merit whatsoever and that the taking of these positions borders on the mischievous.
45 In my opinion, whatever the thought process behind the taking of such unmeritorious points, which must by their pursuit have an intimidating effect upon the litigant towards whom they are directed in any instance, but more so in a case such as the present where, for the plaintiff who was relatively uneducated the giving of her evidence was a task complicated by reason of the fact that English was not her native language, represents the antithesis of the approach which should be adopted by a model litigant.
The cause of the Plaintiff’s pain
46 In the presence of:
· The referral of the plaintiff by Mr Chong to Mr Wang for surgery;[12]
[12]Both this referral and the recommendation that surgery be undertaken clearly point to Dr Chong and Dr Wang holding the opinion that the plaintiff’s condition is primarily organic and that her symptoms are sufficiently serious as to warrant to surgery
· The recommendation by Mr Wang that the plaintiff undergo lumbar surgery;[13]
[13]See footnote 10
· My finding as to the opinions expressed by Mr Littlejohn and Mr Carey that the plaintiff presents with significant organic symptoms and that the plaintiff’s pain amplification is secondary to that process;
· The absence by Dr Rezek, in her reports, of any suggestion that the plaintiff is presenting with anything other that an organic accident related condition;
I am satisfied the plaintiff presents with an organic condition which is responsible for sponsoring her pain through the accident-related aggravation of a pre-existing asymptomatic degenerative condition in her lumbar spine, and that the presence of any augmentation of the plaintiff’s pain by reason of emotional factors is secondary to that process.
The severity of the Plaintiff’s pain
47 In assessing whether the plaintiff should be accepted as to her level of pain, I take into account the following factors.
(i)Firstly, that pain is subjective and that the ability of a person to cope with pain varies markedly within members of the community; [14]
[14]See in this regard the evidence by Mr Schofield at T31-32 which I accept.
(ii)Secondly, that notwithstanding a range of views expressed in the case as to whether the plaintiff’s pain was organically-based or the result of a “functional” condition, it was not suggested by any of the well-experienced medical examiners who have assessed the plaintiff that she was deliberately exaggerating her symptoms of pain and in that sense was malingering;
(iii)Thirdly, the plaintiff’s behaviour as she gave her evidence was, in my opinion, consistent with someone who is experiencing back pain in that:
· she gave her evidence standing;
· for much of the time as she gave her evidence her hand was positioned on her back such that it was supporting her upper torso; and
· when the plaintiff completed her evidence and was given the opportunity to sit in Court, she declined that invitation indicating that it was difficult for her to do so;
(iv)Fourthly, the fact that the plaintiff reported to some medical examiners who have recently examined her, a reduction in her symptoms, is inconsistent with the presentation of someone who is trying to deliberately exaggerate the severity of their symptoms. (In this respect, I do not consider the plaintiff to present as a sophisticated person who was capable of embarking upon a deliberate strategy of deception in which she employed a process overstating her symptoms and then moderating her complaints for the purpose of providing herself with greater credibility);
(v) Fifthly, and most significantly in my opinion, it is not in issue that the plaintiff has agreed to undergo the surgery suggested by Mr Wang or that Mr Wang has made an approach to the Transport Accident Commission to gain authorisation for the performance of the surgery.
Having regard to the rather conservative approach taken by Mr Wang in opining as to the likelihood of the surgery significantly improving her symptoms of back pain (even with successful surgery, Mr Wang did not suggest that the plaintiff’s back pain would completely resolve), I am of the opinion that the plaintiff’s willingness to undergo the surgery speaks definitively as to:
· the plaintiff’s motivation;
· the genuine nature of the plaintiff’s pain; and
· the severity of the plaintiff’s pain and its impact upon her life.
and provides the ultimate corroboration of the plaintiff’s evidence as to these issues.
48 It follows that I am satisfied that the influence of the plaintiff’s back pain in further restricting her ability to engage in the activities involved in day-to-day life is likely to be significant.
49 Taking account of all of these matters notwithstanding that I am satisfied that the plaintiff has exaggerated the consequences of her back pain in interfering with her ability to travel regularly, I am satisfied that the plaintiff has established that the effect of the transport accident upon her has been to aggravate a pre-existing asymptomatic degenerative condition in her lumbar spine which has generated for her symptoms:
· which she has serious difficulty coping with; and
· which impact adversely upon her life in a vey significant way in that they restrict her ability to engage in the most basic of everyday activities such as:
(i) sitting;
(ii) walking;
(iii) sleeping;[15]
[15]In this regard I am satisfied that I should accept the plaintiff’s evidence on this issue notwithstanding her failure to seek medical assistance with respect to this problem given my findings as to her level of pain which in my opinion would be likely to interfere with her sleep.
(iv) maintaining her house and garden; and
(v) undertaking activities involved in normal day to day life on an independent basis, such as shopping; visiting her grandchildren or caring for her son, who suffers from schizophrenia.
50 I make these findings:
· Firstly, on the basis of my finding as to the significance of back pain which the plaintiff experiences; and
· Secondly, accepting the plaintiff’s evidence that, whilst her pre-existing arthritic condition placed some restriction upon her ability to engage in day-to-day activity, the influence of that condition was controlled well by medication.
Conclusion
51 I am satisfied that the combined effect of the level of pain which the plaintiff experiences and the restrictions which that pain places upon her day-to-day life is such that they are appropriately described as involving an impairment of the function of her spine which is more than significant or marked and is at least very considerable, and that in these circumstances the plaintiff is entitled to the leave sought by her in this application. Accordingly, I propose to make an order granting the plaintiff leave to commence a proceeding claiming damages for the injuries suffered by her by reason of the transport accident in which she was involved on 6 October 2008.
52 I will make an order that the plaintiff have leave to commence a proceeding claiming damages in respect of injuries sustained by reason of the transport accident which occurred on 7 October 2008 and will hear the parties as to the issue of costs.
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