Sellings v Transport Accident Commission
[2020] VCC 425
•18 February 2020
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-02573
| LOUISE FAYE SELLINGS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 6 February 2020 | |
DATE OF JUDGMENT: | 18 February 2020 | |
CASE MAY BE CITED AS: | Sellings v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 425 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – impairment to the right leg – aggravation
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Richards & Anor v Wylie (2000) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Petkovski v Galletti [1994] 1 VR 436; Kelso v Tatiara Meat Company Pty Ltd [2007] VSCA 267
Judgment: Leave granted to being proceedings for damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell QC with Mr M Fogarty | Arnold Dallas McPherson |
| For the Defendant | Mr A J McG Moulds QC with Mr R Kumar | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident (“the accident”) which occurred on 30 June 2016 (“the said date”).
2 Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
3
The definition of “serious injury” relied upon by the plaintiff is under
s93(17)(a) – “a serious long term impairment or loss of a body function”. The body function pursuant to sub-paragraph (a) is the right leg.
4 The enquiry under sub-paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
5 The “serious injury” defined by sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function.[1]
[1]See Richards & Anor v Wylie (2000) 1 VR 79
6 The plaintiff swore two affidavits and was cross-examined. Her daughter, Sam Russell, swore an affidavit on 29 January 2020. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
7 The main issue in this case was the plaintiff’s mobility and health immediately prior to the accident.[2]
[2]Transcript (“T”) 1
The Plaintiff’s evidence
8 The plaintiff is presently aged seventy-one, having been born in November 1948. She lives in Echuca. As at the said date, she was in receipt of an aged pension.
9 The plaintiff had diabetes pre accident, but it was under control. She still has two insulin injections a day.[3]
[3]T3
10 The plaintiff was diagnosed with osteoarthritis before the accident. She had both knees replaced, with one being done in 2003 and the other about four years later.[4]
[4]T4
11 As at July 2018,[5] the plaintiff continued to suffer from arthritis in her back and feet in particular. She had a little bit in her hands but it was not too bad.
[5]First affidavit
12 The plaintiff has a bit of arthritis in her hands and left foot.[6] The doctor told her it is probably age related.[7] Arthritis in her feet and hands was not bothering her a lot before the accident. She still gets a little bit of back pain - “not a lot”. Her left foot is “fine” but she has had pain her right foot ever since the accident.[8] She was “fine” until she had the accident.[9]
[6]Her left foot
[7]T3
[8]T4
[9]T5
13 The plaintiff has a bit of arthritis in her back, but it is not “real severe,” she can cope with it and she never takes any painkillers for it. Her doctor put her on patches for her arthritis in her knees “while it was getting better and stuff, he just left her on it”.[10]
[10]T25
14 The plaintiff agreed she told Mr Grossbard her bilateral knee replacements were reasonably good. She also told him she had arthritis in her feet, back and hands.[11]
[11]T16
15 When it was suggested to her she was pretty restricted before the accident because of her back, hands and feet, the plaintiff said “… well, I got out a lot more then. I could go to Shepparton if I needed to.” She used to go to quite a few church things but did not go now. She does not have the confidence to go. The accident just “rattled” her and “[her] knees – [her] leg is painful all the time at the back of [her] leg. So [she] just … [doesn’t tend] to go.”[12]
[12]T14
16 The plaintiff did not recall a proposed community care package written by Dr Hay in 2015 in which he recommended assistance with meals, housework, shopping, transport and also financial organisation and medication.[13] The plaintiff agreed, as her podiatrist in Moama reported a couple of weeks before the accident, that she could not get down to her feet to cut her toenails.[14]
[13]T23
[14]T26
17 At the time of the accident, the plaintiff was seeing Dr Hay, general practitioner, who prescribed Norspan patches for her arthritis pain. She took Mogadon to help her sleep, as she went through periods when she found it hard to sleep. She may have been taking other medication, but found it difficult to remember what, because it would just come to her in a Webster-pak from the chemist.
18 The plaintiff had been prescribed Mogadon for sleeping for many years and had had problems in that regard on and off, but she does not take it anymore, having stopped taking it four months ago.[15] She thought she was on Mogadon for about four years before the accident. She did not know what was causing her pre-accident sleep problems, but sometimes a diabetic does not have a very good sleep. It was not because of pain coming from her feet, back and hands; it was not arthritic pain causing her not to sleep. Once she had her knees done she was fine and her doctor just left her on the Norspan patches.[16]
[15]T5
[16]T6
19 The only time the plaintiff used a walking stick before the accident was when she had her knees done and she had a stick to start off with. She never needed it otherwise. She was okay to walk before the accident; she was fine. She had no problem getting up and down steps, “none at all”.[17]
[17]T7
20 Once her knees had healed, the plaintiff never needed a stick.[18] She agreed it had never been really easy getting in and out of chairs, but she found it very hard now.[19]
[18]T20
[19]T21
21 If an ENT who saw the plaintiff in 2009 and 2010 about her balance noted the plaintiff was using a walking stick at that time, then that must have been the truth.[20]
[20]T22
22 The plaintiff agreed she had some balance problems, about six years before the accident.[21] She did not remember ever using a walking stick because of that. She honestly could not remember, but she used to have to hang on to things.[22]
[21]T21
[22]T22
23 If Mr Grossbard noted that the plaintiff told him that she tended to use the walking stick because of back pain and poor balance, she agreed she had had some balance problems, but did not remember using a walking stick for them.[23] She must have said this to him “because [she does not] lie”. She did have poor balance.[24]
[23]T24
[24]T25
24 In early 2016, the Ministry of Housing visited the plaintiff’s unit, put two steps at the front of the house and two at the back. They also installed some rails. This was because of her arthritis.[25]
[25]First affidavit
25 The plaintiff explained that she had tripped over one day because the step had a lip on the side. She phoned the Ministry and asked them if they would come and fix the step because it was dangerous. A physiotherapist came out and told her that she needed a step there, and a cemented step was put in the back and the front. The Ministry put a rail on it, although she did not ask for it.[26]
[26]T8, T20
26 In the February 2016 occupational therapist report about the steps, it was noted the plaintiff reported to them difficulty and pain when walking down the steps to the front and back access of the house. The plaintiff “… did have – yes. At the time. If [she] said that, it must be the truth.”[27]
[27]T25
27 It was also noted on that report: “w/s when tired.” The plaintiff could not recall using a walking stick when tired.[28] She has had a walking stick in the cupboard from when she had her knees done. She must have pulled it out from time to time.[29]
[28]T21
[29]T22
28 Despite her health issues, particularly the osteoarthritis, before the accident the plaintiff lived a much fuller life with greater independence and was able to go out and do the shopping on her own. She was able to do more around the home. Although she had home help, that person did not do as much as they did since the accident. Her help would just come and do the bathroom before the accident, whereas she now did all domestic chores including mopping and vacuuming.
29 The plaintiff’s three daughters lived near her and they took it in turns to help her, starting after the transport accident. She was heavily reliant on their assistance.
30 Before the accident, the plaintiff was able to hang out the washing and bring it in, but her daughters now did that. One of her daughters now took her shopping. Her daughters did things like the heavy lifting of groceries, because lifting aggravated the plaintiff’s right leg pain.
The accident and subsequent treatment
31 On the said date, the plaintiff was involved in a transport accident whilst her vehicle was stationary. It was rear ended by a car being chased by the police and her car was pushed into a churchyard and a sign. The other car then spun around and hit her car again (the accident”).
32 The plaintiff was unable to get out from the driver’s side because it had been hit. An ambulance attended and she was helped out of the car through the passenger side.
33 The plaintiff was taken to Echuca Hospital where she was given morphine. She had pain in her neck, low back, right ankle and right hand. She had particular pain in her right leg, and both legs developed bruising.
34 The next day, the plaintiff saw Dr Hay, who gave her an injection of an anticoagulant because of a haematoma in her right leg and also one in her right hand. She had x-rays and, in July 2016, had an ultrasound of her right calf.
35 About two months after the accident, the plaintiff’s haematomas were surgically drained and it took about three months for the wounds to heal.
36 Neck and low back pain gradually settled and returned to pre-accident levels. The plaintiff’s other injuries, including her right ankle and hand, had also resolved.
37 As of mid-2018, the plaintiff’s ongoing problem was in respect of her right leg. She continued to suffer from constant pain in the right calf in the haematoma location. By the end of the day, her right foot could become puffy. She noticed it before she went to bed. Her pain was a lot worse at night and she wore a stocking on her right leg at night and used a heat pack each night on her leg in bed. About once a fortnight, she experienced severe pain. On those nights, she barely slept and cried when she thought about these nights and not being able to sleep.
38 The plaintiff was prescribed Endone for her leg pain, which she then took about three times a week. She had to be careful about what medication she took because of her kidney problems. She would rather not take Endone, but it was the only thing that worked for leg pain and she had no choice.
39 The plaintiff had a scar on her right calf at the site of the haematoma. The look of it did not worry her, but it was sensitive to touch.
Mobility post-accident
40 The plaintiff had particular difficulties walking and, for two weeks after the accident, was in a wheelchair. She found it very hard when she tried to start walking again, and Dr Hay recommended she use a stick, which she had used since that time. She also used a four-wheel trolley around the house and when she went out.
41 If the plaintiff had a daughter with her, the plaintiff would sometimes just use the stick if she knew she did not need to go too far. She was not able to walk any real distance without either a trolley or stick and was now slow on her feet. She found it difficult to keep up with people. If she was crossing the road, sometimes her daughters would stop cars so that the plaintiff could make it across. She found that very embarrassing. She was not like that before the accident and did not use a stick or walker, and had now been left with a permanent limp, and her right leg gave way on occasions.
42 It had been very hard for the plaintiff because she had lost a lot of confidence. Prior to the accident, she considered herself to be a strong and independent woman and it had been hard for her to now rely on other people.
43 Since the injury, the plaintiff had great difficulty standing and was limited to about five minutes with the use of a stick or frame. She had not tried to walk without either because she was not confident.
44 The plaintiff had continued to attend mass about twice a week and was no longer able to stand and sit throughout, as she was once able to do before the accident. That was a source of embarrassment for her and she felt she was not doing the right thing by the priest and she cried when she thought about it.
Babysitting
45 At the time of the accident, the plaintiff enjoyed babysitting her grandchildren at least twice a week; however, since the accident, she had been limited in her ability to return to this. The old ones could stay with her, but she had not babysat the little one since the accident. That was partly because the plaintiff had lost her confidence and also because she had difficulty lifting and playing with them as it aggravated her right leg pain. It made it tearful when she thought about it. She could have the little one sit on her left knee, but she avoided lifting them because it increased her pain, and she made sure they did not bump or touch her right leg because it aggravated the pain.
Mood
46 The plaintiff’s mood had changed since the accident and she had lost interest in some of her hobbies. Before the accident, she had enjoyed reading, but did not read as often now. She often felt sad.
47 When the plaintiff’s right leg pain was particularly bad, her mind went back to the accident. When she looked at her frame or stick, she also remembered the accident and that made her feel tearful and frustrated.
48 The plaintiff would like to be able to do more, but she was physically limited, mainly because of her right leg. She was more isolated. She did not like to call upon her daughters. Doing so made her feel guilty because they were busy with their families.
49 The plaintiff’s daughters have helped her moreso since the accident. Before that, she would pretty much well manage on her own.[30]
[30]T3
Driving
50 The plaintiff was independent in her driving before the accident and did not hesitate as to where she would go. She now limited herself to either driving to her daughters or to church in Moama, which was no more than 8 kilometres away. She also drove to Dr Hay. She was still nervous in the car and felt terrible at roundabouts.
51 The plaintiff remained nervous crossing the road, in part because of what happened during the accident, but also because she was no longer as quick or confident on her feet. She got “beeped at” when at intersections or crossing the road because she hesitated, and that upset her greatly and impacted her confidence.
52 The symptoms, consequences and effects of her right leg injury previously deposed to have basically continued.[31]
[31]Second affidavit sworn 9 January 2020
53 The plaintiff continues to suffer constant fluctuating pain in her right calf, which is generally a dull ache and made worse with activity. At times, the pain is severe. She then experiences a burning, stinging pain, and that pain can get very sharp. At times, it feels like someone is strangling her right calf. The pain is generally worse at night and, at times, it radiates into her right foot, which occasionally swells up.
54 The plaintiff has constant calf pain. She knows it is there and it is a lot worse at night. She could not recall telling Mr Grossbard her pain was intermittent but if she had, the pain has got worse now.[32]
[32]T24
55 As a consequence of right leg pain, the plaintiff wears compression stockings on her right lower leg at night, and sometimes also during the day. They get uncomfortable if she wears them for too long. She struggles to wear a stocking for the whole night without taking it off. She tries to keep her right leg elevated as much as she can during the day and regularly uses heat packs on her leg in bed. The area of the haematoma remains sensitive to touch.
56 At times, the plaintiff really struggles to cope mentally with the constant right leg pain.
Current treatment
57 The plaintiff continues to see Dr Hay every fortnight because of her diabetes. He prescribes painkillers for her leg and has told her that there is little that can be done for it, apart from pain relief. She continues to take Endone for right leg pain three to four times a week. If she is having a bad week, she takes it every night.
58 The plaintiff takes medication for her diabetes and arthritis, and she also has problems with her kidneys. She has just got to be careful not to take too much medication.[33]
[33]T14
59 The plaintiff’s medication was changed to Endone for the pain in the back of her leg. When it was suggested to her she was taking Endone as opposed to other medication because of problems with her kidneys, she said the reason she took Endone – the only time she ever took it – was if her leg was so painful, if the stocking did not help or the heat pack did not help, she had to take two Endone. “… Endone is a painkiller and I’ve only just got it for my back and my leg, I’ve only been having it since the accident because nothing else worked.”[34]
[34]T17
60 The plaintiff was told the first prescription of Endone in the clinical notes was March 2018, about eighteen months after the accident. She was on other painkillers, but nothing did any good and her doctor had nothing else to give her, so he said they would try it, plus he had to give her something that was not going to be too bad on her kidneys. He just said “’We’ve got to be careful what we give you so we’ll try Endone for the pain’”.[35] She tries not to take it, but sometimes just has to.[36]
[35]T17
[36]T18
61 The plaintiff usually sees Dr Hay, but will see others if he is not available. She did not remember telling Dr Ashwini in February 2018 that arthritis of the knee was affecting her daily activities.[37] When it was suggested to the plaintiff she had pain in other parts of her body besides her calf, she said sometimes she did, the pain from the arthritis, but it is not severe enough to take Endone. She agreed that it was fair enough to say a combination of that pain, plus her calf pain, is enough to take Endone.[38]
[37]T18
[38]T19
62 The plaintiff could remember having a fall on her knee in 2018, but it was fine after a couple of weeks. It “bruised it quite bad”. It might have been a couple of months before June 2018.[39]
[39]T19
63 The plaintiff could not remember if Dr Ashwini prescribed Endone. If she asked her for it , the doctor would have done so, but she did not remember. She only saw that doctor twice.[40]
[40]T19
64 Whilst Dr Hay had noted in May 2018 he prescribed Endone and the reason for the visit was arthritis, the plaintiff confirmed her calf was the only reason she ever asked for Endone painkiller to help the calf pain she was suffering at night when she went to bed.[41]
[41]T20
65 The plaintiff continues to have broken sleep every night due to right leg pain which wakes her every two to three hours each night. She will then either use a heat pack, take off her stocking or take Endone before trying to get back to sleep. She usually feels tired during the day because of disrupted sleep.
Mobility
66 As a consequence of her accident injury, the plaintiff feels unstable on her feet and worries that she will fall. If she is out and about, she needs the stick or walking frame. She is unable to walk very far now and cannot walk around shopping for a long time like before. She avoids stairs because of her right leg, and tries to find a lift or a ramp.
67 In re-examination, the plaintiff confirmed that she now uses a four-wheel walker and had not used one before the accident. Back pain is not constant and she gets an occasional bit of back pain. She uses the stick because it helps her balance and walk with her calf. She has not got the confidence to walk without it.[42]
[42]T27
68 The plaintiff remains unable to stand and kneel during Mass which is very hard for her as she has been a practising Catholic all her life. The reason she does not kneel now is because every time she kneels down it pulls at the back of her leg and it is most uncomfortable. She agreed it was a bit hard to kneel before the accident because of her knees.[43]
[43]T14
69 As a consequence of her accident injury, the plaintiff is unable to interact with her grandchildren as she would like. She is unable to take them to the pictures as she did before, because that involves a lot of walking. She also has trouble sitting for periods as this causes her increased right calf pain.
70 The plaintiff has twenty-two grandchildren. She still sees them and loves them, but she cannot “sort of nurse” the baby because of her leg. Her grandchildren give her great joy.[44]
[44]T27
71 Since her earlier affidavit, the plaintiff has continued to rely on others to perform the household tasks that she cannot do on her own but could do before the accident. She receives help with vacuuming, mopping and dusting. She has home help, in addition to assistance from her daughters.
72 Before the accident, someone from the Council used to vacuum once a fortnight. Now that person does a lot more because she washes the floors and scrubs the shower. The plaintiff had had home help for quite a few years before the accident, but could not remember for how long exactly. The one lady comes, and if she cannot come, the Council sends a replacement.
73 Both before and after the accident, the plaintiff has had home help once a fortnight. Pre accident, she was getting help for about half-an-hour or three-quarters of an hour, but now she gets an hour or more, with the help taking whatever time she needs to do what has to be done.[45]
[45]T10
74 The plaintiff explained, again, that when the home help first started, she used to vacuum through the house, but since the accident, the plaintiff had to put in for more time and the help vacuums, washes the floor, hangs out the washing or gets the washing in, and will clean the shower and bath, and any other little things that need doing. Before the accident, the home help only vacuumed. The plaintiff could do the bathroom. The plaintiff then said the help did the bathroom as well as the vacuuming.[46] Since the accident, the home help lady does the bathroom and the vacuuming, washes the floors and anything else that needs to be done. She will dust, or do whatever needs to be done on the day she comes.[47]
[46]T10
[47]T11
75 The plaintiff cooks occasionally, but she does not do a lot, as she lives by herself. She was confused when she told the psychiatrist she did all home duties except for vacuuming because, since the accident, she had not been able to do any of them. She must have misunderstood what he said, because she would not have lied to him.[48]
[48]T12
76 The plaintiff does not go shopping now without one of her daughters with her, because it is a bit hard for her if she has to push the trolley. They usually come with her or she will give one of them a list. She goes occasionally if she can. Before the accident, she did the main shopping.[49]
[49]T11
77 While her daughters were close by and would see her to give her hand before the accident, the plaintiff could do her own shopping, but she cannot do the big shops now, she just does not have the confidence to do it.[50]
[50]T23
78 The plaintiff remains cautious and anxious when driving and has lost confidence. She avoids driving unless she has to. She no longer drives out of town.
79 The plaintiff no longer gets the same level of enjoyment out of life as she did pre accident. She is not as motivated to read as she used to be. She gets teary a lot more than she did before the accident.
80 The accident just sort of seemed to unnerve the plaintiff and she does not read as much as she did. She watches a bit of television, “not much”, and sometimes she will just sit in a chair and not do anything or she will go outside and sit in the sun.[51]
[51]T13
81 The plaintiff has not been able to hang the washing out since the accident. She cannot get up and down. She just cannot do it. Stretching up to the clothesline, it pulls in the back of her leg, and it is very uncomfortable, so the girls do it or she will hang out the clothes in the house. Before the accident, she did not need any help from her daughters doing this, she would go out and do it herself.[52]
[52]T8
82 Whilst it was noted in the February 2016 OT report that the plaintiff’s daughter helps with hanging out the washing, the plaintiff explained - “I guess I mean if I need help but I didn’t, I could do it myself. If the girls called in I would say ‘there’s a bit of washing to hang out’ and they would hang it out for me whereas now I can’t hang it out at all. They have to do it all for me now.”[53]
[53]T9
83 The plaintiff agreed her calf problem had led to requiring a bit more help from her daughters than before, has required her to have help with the big shop and has caused her to use walking aids more than she did before.[54]
[54]T26
Lay evidence
84 The plaintiff’s forty-six year old daughter, Sam Russell, swore an affidavit on 29 January 2020. She is currently employed as a hospitality manager in Echuca.
85 They are a close family and she lives only around ten kilometres from the plaintiff. The plaintiff raised Sam and her siblings by herself as a single mother from when they were very young. She was a proud, dependable lady who rarely complained. She had a stiff upper lip and did not want to be seen to be a bother. She could be proud and reluctant to ask for help.
86 Prior to the accident, the plaintiff was very independent, and she would usually look after herself for the most part, save for some home help that had been organised about ten years before the accident when she had undergone knee replacements.
87 The plaintiff did have a bit of trouble looking after herself after the knee operations and Sam and her sisters helped out a bit more at that time, but after recovering from the immediate period after each operation, the plaintiff was able to look after herself better than before. She had an excellent result from both operations.
88 Sam recalled the plaintiff using a walking stick from time to time prior to the accident, but that would not have been frequent and the plaintiff certainly did not rely on it. She could recall the plaintiff walking to the shops without any fuss prior to the accident, and she could certainly get around the supermarket unaided and on her own. She could get about herself prior to the accident, both by driving and walking.
89 Home help continued for the plaintiff between her knee surgeries and the accident. It involved the heavier duties at home such as cleaning the bathroom and some of the laundry. The plaintiff otherwise had no problem with all other home duties, and as a houseproud woman, kept a very neat and tidy home.
90 The plaintiff loves family, including her extended family. Pre accident, almost every weekend she came over to Sam’s house for dinner. On those nights, Sam cooked for the family of fourteen. They were otherwise often having larger family get-togethers where the plaintiff would often be the centre of attention.
91 The plaintiff had changed significantly since the accident, from proud and confident, to somewhat meek. She still did not want to bother anyone, but that seemed to be far more due to resignation and pride.
92 Since the accident, Sam had regularly observed the plaintiff in pain due to her right leg injury. She had nowhere near the walking tolerance that she used to have and now relies on a walking stick as well as a walker, depending on what she is doing. The plaintiff will often have to stop after walking for a time and sit on her walker to rest when they go shopping. The plaintiff complains of right calf and leg pain when this happens.
93 From time to time, Sam has seen swelling in the plaintiff’s right leg. That is mostly when she has been on her feet for a day such as when she is taken to appointments or to the shops. The plaintiff is frequently tired and has told Sam she has difficulty sleeping due to right leg pain. She will miss family events like the Friday dinners because she is too tired or in too much discomfort. That is particularly the case if she needs to take some medication like Endone. The plaintiff does not talk about this much, but Sam can tell she hates missing these occasions given her family orientation, particularly as she has brought the children up on her own.
94 These issues mean the plaintiff does not attend church as often. She is a devout Catholic and a member of the congregation at St Aloysius in Moama, which is about fifteen minutes’ drive from her home. The plaintiff often misses church for the same reasons she does family gatherings. This is very disappointing for her given her deep faith and the social aspects of the church community. The plaintiff also asked the priest whether it was okay for her not to kneel as her right leg injury made that too uncomfortable, although it is no longer required during Mass. She preferred to kneel still as was traditional. She had similar issues genuflecting and had no such trouble after recovering from her knee surgery.
95 Sam and her sister now frequently help the plaintiff at home, not only with home duties but also with treatment.
96 The plaintiff now has a lot of difficulty maintaining the house. When it comes to cleaning, Sam and her sister usually are at the house once every two days, helping with cleaning, washing up and food preparation, and also things like ironing. Prior to the accident, they really did not need to help the plaintiff much at all, as any assistance she needed with heavier jobs was provided by the Council. Now, most of the work is done by them. With the plaintiff being houseproud and not to mention stubborn with asking for help, Sam knows this is difficult for her to accept.
97 Sam has tried a range of things to assist with the plaintiff’s pain. From time to time, she and her sister have helped out with putting on the plaintiff’s compression stockings and applied various creams and treatments to her leg to try to help alleviate her pain. The plaintiff struggles with these things on her own; however, not much has really helped and she understands the plaintiff uses medication to manage her pain levels.
98 Sam felt the accident had aged the plaintiff prematurely. She was in the United Kingdom for a holiday at the time of the accident and it was like the plaintiff’s injuries made her twenty years older when she returned. The plaintiff had gone from being a tough, confident, elderly woman to one who is now frail and lacking in confidence. It has been devastating for Sam to see this in the plaintiff. They will continue to support her throughout this as they owe her everything, but Sam wishes the plaintiff could have had the chance to age without this injury.
The Plaintiff’s medical evidence - treaters
99 Dr Hay reported that the plaintiff suffered a large haematoma in her right leg and also had a haematoma of her right hand. The right calf haematoma required surgical drainage and took five months to heal, requiring twice weekly dressing.
100 As of 4 January 2018, Dr Hay noted that the plaintiff had longstanding pain in her right calf.
Medico-legal evidence
101 Mr Garry Grossbard, orthopaedic surgeon, examined the plaintiff on behalf of both parties in May 2018 for the purposes of an AMA assessment.
102 The plaintiff told Mr Grossbard that she suffered with arthritis and had bilateral knee replacements more than ten years ago, which were reasonably good. She also told him about arthritis in her feet, back and hands.
103 Mr Grossbard noted that the plaintiff told him she tended to use a walking stick because of back pain and poor balance. The only medication she was using for pain was Endone.
104 The plaintiff described pain at the back of the right calf, which was intermittent but severe, particularly at night or when she drove. She thought the heat packs helped. Her right foot was a little puffy at the end of the day. She did not think she had lost much movement in the ankle.
105 Following examination, Mr Grossbard concluded that the plaintiff had suffered soft tissue injuries to her lower limbs in particular. She had a right calf haematoma which required drainage, and she was left with considerable scarring on the calf and a feeling of tightness.
106 Mr Grossbard noted the injuries were on a background of significant other pathology, particularly with respect to obesity and balance, together with diabetes and renal problems.
107 Dr McCallum, pain physician and specialist anaesthetist, saw the plaintiff on behalf of her solicitors in August 2019.
108 The plaintiff told Dr McCallum that her right calf was terrible and she felt as though that pain turned her life upside down. It was worse at night and very painful and burns sometimes. It was normally a dull ache that was constant. She tried not to walk too much during the day, as when she did the pain got worse at night. Her skin felt sensitive. When she sat with her calf against a chair, it would annoy her and that made driving painful. She had no problems with her right foot or right knee. Before the accident, she could walk normally but now used a stick. He noted her past surgical history included a right total knee replacement.
109 The plaintiff told Dr McCallum she took Endone (5 milligrams). She used a heat pack and then put her leg up and, if it was still hurting, she took two Endone tablets. She did that about twice a week.
110 In Dr McCallum’s view, the plaintiff was depressed and anxious with signs of trauma.
111 Dr McCallum thought that as a result of the accident, the plaintiff was left with a Chronic Pain Syndrome due to the injury to the tissues of the right calf. There was a neuropathic component to it, and there may also be a muscular component as well.
112 In Dr McCallum’s view, the injury had significantly decreased the plaintiff’s level of function and she had been decommissioned. The decrease in function and psychological consequence may be in part responsible for her increased weight.
113 Dr McCallum thought that the plaintiff would benefit from seeing a chronic pain specialist to help review her medication, and she was possibly a candidate for the Versatis Lignocaine patch. She needed to be helped to have an alternative to Endone.
114 Dr McCallum thought that due to her comorbidities and weight, the plaintiff may have obstructive sleep apnoea and the opioids may contribute to a poor quality of sleep. He thought that she would benefit from active physiotherapy and possibly be a candidate for hydrotherapy and also to be assessed for her suitability for multidisciplinary pain rehabilitation program. He also thought she may also benefit from seeing a dietician.
115 In Dr McCallum’s view, the prognosis was poor.
116 Mr Charles Flanc, general and vascular surgeon, examined the plaintiff on behalf of her solicitors in November 2019.
117 Following drainage of the haematoma, the plaintiff told Mr Flanc she was left with residual pain in the right calf which had persisted and was now even worse than before.
118 The plaintiff reported that she continued to suffer pain in the middle section of the right calf in the area of the scarring. There was mild constant discomfort even whilst sitting, but the area was extremely sensitive to palpation including light touch. Therefore, she avoided putting her calf on the bed, preferring to lie on her left side. Walking for more than ten minutes also aggravated her pain. She emphasised that these severe symptoms had persisted.
119 The plaintiff advised Mr Flanc that her back pain had resolved. Her lower back pain had been aggravated by the accident, but had improved, and she was currently at the same mild level as before.
120 The plaintiff took Endone (one to two tablets, three times a week) and occasionally took Nurofen.
121 Mr Flanc noted that the plaintiff had had bilateral knee replacements in 2003 and 2006 and stated there were no symptoms relating to her knee replacements.
122 The plaintiff told Mr Flanc that although she occasionally shopped alone, usually her daughter took her shopping. She drove locally, but had become very anxious since the accident and was particularly anxious at roundabouts.
123 On examination, the plaintiff walked slowly with a walking stick. She indicated that that eased the pain in her right calf.
124 Mr Flanc noted the large oval area of slightly brownish pigmentation at the back of the mid calf which started about eight centimetres below the knee. The pigmented area measured twelve centimetres transversely and eight centimetres longitudinally. There was visible pale scarring over the posteromedial aspect of the pigmented area. The scars measured about two centimetres and were probably the site of the incisions used to drain the haematoma. There was marked hypersensitivity on palpating the pigmented area. Palpation of both calves did not reveal any specific induration when the plaintiff was relaxed. Circulation of the right leg was satisfactory. There was no wasting. Dorsi and plantar flexion against resistance resulted in calf pain.
125 Mr Flanc thought it likely the plaintiff sustained soft tissue injuries and probable aggravation of pre-existing degenerative changes in the cervical and lumbar spine. Her neck injuries had resolved and the lower back pain improved significantly to pre-accident levels.
126 Mr Flanc thought the plaintiff sustained a severe soft tissue injury to the right calf, with local haemorrhage causing a haematoma locally, deep to the skin and in the calf muscle. This was subsequently drained, but the residual wound took months to heal.
127 The current residual features were marked sensitivity to touch over the whole area of discolouration, and tenderness of the calf on palpation.
128 Mr Flanc thought the diagnosis was a little difficult because this was an unusual presentation. The most likely diagnosis was that the scouring of the subcutaneous tissue adjacent to the skin and muscles damaged the sensory nerves to the skin, resulting in a very marked tenderness to even light touch. The fact that the extreme sensitivity to touch was restricted to the area of pigmentation strongly suggested that this was a physical injury, although it was a little unusual. He noted Dr McCallum’s diagnosis of a Chronic Pain Syndrome in which there is a sensitisation of pain pathways causing pain, which was greater in severity and distribution than that expected from the physical injury alone. He thought it indeed possible the plaintiff’s symptoms were being amplified to some extent, but, in his view, a significant component of the current symptoms were related to the physical injury to the calf delineated by the oval area of pigmentation and scarring. He noted that forced dorsi and plantar flexion against resistance increased the pain in the calf, which was consistent with sensitivity of the nerves to any movement in the calf area. The actual range of ankle movement was not significantly diminished.
129 Mr Flanc considered the plaintiff’s domestic activities had been significantly influenced by the accident because the pain in her right calf was aggravated by walking or when anything touched her calf. He thought the condition would be permanent.
130 Dr D’Ortenzio, psychiatrist, examined the plaintiff on behalf of both parties in April 2018.
131 In addition to her calf injury, the plaintiff said she had been affected mentally since the accident, in that she was now very anxious when she drove. She was not too bad as a passenger, although she would still be very vigilant and constantly watching the traffic. She now drove only locally and could not bear to be in the car for too long. He got the impression she was having true re-living experiences, but she struggled with the vocabulary to explain her experiences.
132 The plaintiff also told Dr D’Ortenzio that soon after the accident, she started having distressing dreams, initially most nights of the week, in which she was involved in an accident but not necessarily the specific one she experienced. Those dreams had slowly decreased in frequency. She also told him that she woke up several times through the night, mostly because of pain in her right leg.
133 The plaintiff told Dr D’Ortenzio she did housework except for vacuuming. She did her own shopping and cooking. She said she enjoyed reading and read a novel each week. She reported her energy was generally low; however, her motivation and interest was strong, and she would really like to do a lot more. She reported that the worst thing for her then was the struggle to get through each day because of her pain and that her right leg was not working as well as it did.
134 In Dr D’Ortenzio’s view, the plaintiff was suffering from a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood with some features of traumatisation arising from the accident, in part as a consequence of her physical injuries.
The Defendant’s medico-legal evidence
135 Dr Clayton Thomas, consultant in rehabilitation and pain medicine, examined the plaintiff in November 2019.
136 In terms of general medical history, the plaintiff told him she was Type 2 diabetic insulin requiring. Pre accident, she was able to walk without too much difficulty. She told him she had had bilateral knee joint replacements performed many years ago. She indicated she was on a disability support pension, but not able to elaborate why.
137 The plaintiff told Dr Thomas that prior to the accident, she was able to walk without difficulty and she was able to climb up and down stairs. She indicated she took Endone twice a week, 5 milligrams, and Norspan, generally twice per day. She was also on medication for diabetes.
138 On examination, the plaintiff complained of pain in the right calf where the wound was. The pain travelled down to the foot to involve the foot. There was no numbness or pins and needles. The pain was in the back of the leg and went to the foot. Anything that knocked the back of her leg would aggravate the pain, even a chair. Normally the pain levels were 5 out of 10, constantly present, and she was aware of it, but the pain could be aggravated. Having driven from Echuca to Richmond, her pain was now 7 out of 10. Pain at night-time was also quite problematic and she often used heat packs or a support stocking, but was not able to tolerate the stocking for any prolonged period.
139 The plaintiff now walked with a single point stick. She avoided stairs, but when she could do them, found that aggravated her pain. She went shopping either by herself or with her daughter. The family cook for her and they frequently have her over for a meal. Her sleep is poor.
140 On examination to the back of the right calf, the plaintiff had an indurated calf. It was markedly tender and had hyperalgesia over an area measuring approximately 20 centimetres by 15 centimetres. Dorsiflexion aggravated the pain, as did straight leg raising. Power seemed to be slightly limited in the right leg, not the left. There was no wasting. Straight leg raising caused a pulling sensation in the back of the right calf. The plaintiff’s balance was poor unaided and back movements were only mildly limited. Both knees had evidence of previous knee joint replacements that appeared to be well preserved in strength and range of movement, and both appeared to be stable.
141 Looking at the notes that had been provided, Dr Thomas commented it would appear the plaintiff had had some form of pain for a prolonged period of time, having been on Norspan patches for a prolonged period of time and was so at the time of the accident. Norspan had been present for many years, and prior to that, Panadeine Forte, but it was not at all clear what the medications were used for.
142 Nonetheless, Dr Thomas thought the plaintiff had what appeared to be central sensitisation involving the back of her right calf. It may be neuropathic, but because the pain spreads beyond one particular nerve, it is more likely to be central sensitisation.
143 It appeared that this was quite disabling for the plaintiff and Dr Thomas would accept her level of disability had worsened as a result of the accident, primarily because it affected her mobility.
144 The plaintiff had been left with what appeared ostensibly to be primarily central sensitisation with neuropathic type signs, but no obvious neuropathic pain. For it to be neuropathic, Dr Thomas would have to be able to identify a nerve that is likely to be implicated, but because the sensitivity extends beyond just one nerve, it is more likely to be central sensitisation in which neuropathic type examination findings can be found.
145 Dr Thomas did not think any pre-existing unrelated condition had been aggravated by the pain. He noted the general practitioner’s notes were unfortunately very poor, with no history, only a list of medications.
146 The plaintiff did not feel that any other medical problems, such as her knees, had been aggravated by the accident.
147 Dr Thomas noted the plaintiff seemed to lead a fairly simple and straightforward life, well supported by family. He did not think there was any significant psycho-social issues which were impacting on her presentation, noting she presented herself in an appropriate, articulate manner. He thought the prognosis was ongoing right calf pain sensitivity and associated disability. He would accept the nature of the calf injury had increased the plaintiff’s disability and that she would have difficulty climbing up and down the stairs. She would also have difficulty with anything that touched the back of the right calf and irritated it. He noted the plaintiff was nonetheless independent in her personal care and did basic domestic and personal duties, cooking and the like.
148 Given the intrusive nature of the plaintiff’s pain, Dr Thomas thought it certainly possible that simple measures could be taken to afford some improvement in her overall pain and quality of life, such as a simple application of a five percent lidocaine patch over the affected area.
149 Dr Gregory Schutz, psychiatrist, examined the plaintiff in November 2019.
150 On examination, the plaintiff presented as a mildly overweight female for her stated age. She mobilised with a walking stick. Dr Schutz noted she had a warm and engaging manner and appeared to be a genuine and reliable historian.
151 In Dr Schutz’s view, the plaintiff had a psychiatric disorder in the nature of a Mild Adjustment Disorder with Anxiety. In particular, secondary to the circumstances of her accident, she had developed some anxiety symptoms, in particular in driving situations. She reported she could have flashbacks and also there was a degree of avoidance.
152 Dr Schutz noted there were numerous positive prognostic factors, including a supportive family and an absence of personality pathology or substance abuse, and thought it would be unlikely the plaintiff would improve with psychological treatment. He thought she was likely to have mild symptoms with a relatively minor impact on functioning and quality of life for the foreseeable future.
Other documentation
153 A report from Echuca Regional Health set out details of an OT visit at the plaintiff’s home on 25 February 2016. It was noted her current problems were arthritis in hands, feet, knees and back, and having had two knee replacements and that the plaintiff’s daughter helped with hanging out washing.
154 It was recommended a bannister rail and platform step be installed at the front access and the lip on the front step be filled in so the plaintiff could not trip on it. It was also recommended a bannister rail, platform step and magnetic doorstep be installed at the back access of the home.
155 By letter dated 3 June 2016, Echuca Regional Health advised that a housing assessment had been carried out. The plaintiff’s medical history was again noted. She was observed to have difficulty getting in and out of the house safely through the front and back accesses. Current modifications were unsuitable for her needs. Handrails were recommended to increase her safety.
Clinical notes
156 A very lengthy print-out detailed the plaintiff’s medication history from July 2001 until July 2019.
157 Mr Stephen Smith, ENT, wrote to the plaintiff’s general practitioner in Echuca in August 2009, advising that the plaintiff had had three months of imbalance. He thought it possible she had atypical vestibular neuronitis, but normally someone would have compensated for this after four to six weeks, and she was obviously so incapacitated she was using a walking stick. At that stage, he thought the diagnosis was not entirely clear, with the MRI scan obviously excluding any serious neurological problems, such as multiple sclerosis. He suggested to the plaintiff they urgently needed to insert grommets.
158 Mr Smith wrote to the general practitioner on 3 June 2010, having reviewed the plaintiff that day. He noted the plaintiff’s balance was still affected and she used a stick. He advised that not all patients with vestibular neuronitis recover their balance completely and about 10 per cent have mild ongoing dysfunction. He would see the plaintiff in twelve months to monitor grommet extrusion.
159 Podiatrist, April Picone wrote to the plaintiff’s general practitioner in Echuca on 14 June 2016, when she presented for her final visit under the EPC program. The plaintiff attended regular podiatry appointments because she could not get down to her feet to perform her own foot care. If left for too long, she developed painful ingrowing toenails.
160 There was a management plan with team care arrangements carried out by Dr Hay in December 2015. In terms of previous history, it was noted osteoarthritis and osteoporosis in 2001, and that there had not been any previous home medication review or health assessment, or a general practitioner management plan over the past twelve months. The plaintiff consented to a management plan and team care arrangements.
161 The plaintiff’s medication at that time was aspirin, Endep, Mogadon, Norspan patch, Panadeine Forte, two to three times a day in February 2010; Panamax being prescribed on 18 December 2014.
162 An occupational therapist home visit and Community Care Package for assistance with meals, housework, shopping, transport, financial organisation and medication supervision was noted.
163 When seen by an OT on 25 February 2016, the plaintiff reported difficulty and pain when walking down steps down the front and back access. On 26 September 2016, it was noted the back railing and step had been completed, but the entrance had not been done. On 25 October 2016, that the modifications had been completed and the plaintiff was very happy with the outcome.
Notes from Dr Hay’s clinic
164 Dr Ashwini recorded on 19 February 2018 that the plaintiff had a number of issues: asthma, heart, hypertension, arthritis of knee affecting daily activities and BMI.
165 On 9 March that year, Endone, inter alia, was prescribed by Dr Hay. This appears to be the first prescription of Endone. The reason for contact was “bronchitis”.
166 On 29 March 2018, the plaintiff saw Dr Hay. The reason for contact was arthritis. Prescriptions for Endone and Mogadon continued.
167 On 8 May 2018, the plaintiff attended Dr Hay, the reason for contact being arthritis. Endone, Mogadon and Norspan patches continued.
168 Dr Ashwini saw the plaintiff on 8 June 2018. It was noted “there was a fall a few months ago landing on concrete, sore knee. Last three days increasing pain ++, unable to sleep or go to bed, no locking of the knee, systemically well.” There was full extension, but tenderness and limited flexion. An x-ray of the left knee was organised and Endone and Mogadon continued. The plaintiff was given a handout for anterior knee pain. It was noted she did not meet the Victorian Department of Health and Human Services’ definition of “drug dependent” and was being prescribed Endone.
Submissions
169 Counsel for the defendant submitted the Court has to deal with the consequences to the plaintiff in the context of her life, looking at how it is affecting her and then applying an objective test to the spectrum of consequences that can happen.[55]
[55]T28
170 It was conceded this was an injury which had certain impacts on the plaintiff, and no one was denying that, but there were some holes in the case so far as demonstrating the change, particularly in her functionality and daily activities, reaching the barrier of “at least very considerable”.[56]
[56]T28
171 The lack of a detailed report from the treating practitioner, Dr Hay, was pointed out. What was available was very brief and it was suggested that was a completely unsatisfactory state of the treater’s evidence. This is a case where the plaintiff has had obvious pre-existing issues, as the drug chart clearly sets out. Endone is first prescribed by a different doctor, not Dr Hay, and the notes do not support that is for calf pain. The evidence, at that stage, was about her knee and it is clear the plaintiff has been in receipt of Norspan patches for many years before the accident.[57] It was submitted it had not been demonstrated the use of Endone was independent of the other conditions for which the plaintiff had been requiring many years of Norspan patches.[58]
[57]T29
[58]T31
172 “Drilled down”, it was submitted there were serious problems establishing what the pre-existing situation was compared to now. The plaintiff’s daughters were helping out on a regular basis beforehand.[59]
[59]T31
173 In response, counsel for the plaintiff submitted that the plaintiff should be accepted as an honest witness who suffers from constant pain in her right leg that restricts her mobility and requires Endone. As far as there is a comparison before and after, there is the unchallenged evidence from the plaintiff’s daughter, Sam, who has provided an extensive affidavit.[60]
[60]T31-32
174 It was submitted there are significant consequences in terms of mobility and medication. The plaintiff also has to wear a compression stocking which is uncomfortable after a period of time. She has restrictions playing with her grandchildren. She has added reliance on home help and her daughters. She is restricted in attending church functions. She cannot drive or walk the same distances and with the same frequency. There is a restriction on babysitting. She can only stand for limited periods of time and has problems sitting. Around the house she uses a walking frame and tries not to use it when she is outdoors. She has constant pain in her calf, leg and foot. Once a fortnight, she has such severe pain she can hardly sleep. She cries when thinking about the pain and takes Endone three or four times a week for her right calf and foot.[61]
[61]T33
Overview
175 There is no dispute as to the nature of the plaintiff’s injury which has been diagnosed by a number of practitioners as central sensitisation following the haematoma to the right calf.
176 The issue is whether the consequences of that right calf injury are “serious” in circumstances where the plaintiff was suffering longstanding arthritis and had had two knee replacements in the early 2000s.
Credit
177 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[62]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[62](2010) 31 VR 1 at paragraph [12]
178 I found the plaintiff to be a genuine, unsophisticated witness who was generally credible, whose already limited life has been affected in a range of ways by her accident injury. While there may have been instances where she used a walking stick at times before the accident, I accept that situation has changed dramatically since the accident injury and, in my view, there was no attempt by the plaintiff to mislead the Court in this regard.
179 In this case, where there is a pre-existing right leg condition/arthritis, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from the accident is serious and permanent.
180 In Petkovski v Galletti,[63] the Full Court of the Victorian Supreme Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. …”
[63][1994] 1 VR 436
181 Clearly, the plaintiff had some problems with her mobility pre accident due to both her widespread arthritis and also her operated knees; however, her use of any walking aid was very limited.
182 As Dr Thomas noted, both knees had evidence of previous knee joint replacements that appeared to be well preserved in strength and range of movement, and both appeared to be stable.
183 I also accept that the plaintiff had some pain in her back, legs and feet due to arthritis but it was not affecting her enjoyment of daily life to any significant extent although Dr Hay continued to prescribe the Norspan patches that the plaintiff had been using since her knee surgery.
184 I accept the plaintiff led a relatively independent life pre accident as her daughter Sam confirmed. The plaintiff had the confidence and ability to enjoy a range of activities. She was able to drive where she wanted, attend frequent Church functions and interact freely with her many grandchildren. She also enjoyed reading.
185 Whilst she had home help since her knee operations, that help was limited to the heavier household tasks such as vacuuming, and the plaintiff was largely able to undertake the remaining tasks on her own. Pre accident, her daughters may have assisted if they were visiting the plaintiff’s home but she did not require their help.
186 Pre accident, the plaintiff had some difficulty sleeping and took Mogadon on and off.
Pain
187 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[64]
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
… .”
[64](supra) at paragraph [11]
188 I am satisfied that since the accident, the plaintiff has suffered a new constant pain in her right calf, which is sometimes severe. There is always a dull ache. I do not accept the pain is intermittent, as Mr Grossbard recorded. In any event, the plaintiff told him her pain is severe. There is also very marked tenderness in the area of the haematoma and the plaintiff has to be careful to avoid rubbing it against anything or lying on that leg in bed. Further, the plaintiff experiences pain on any movement of her calf due to the nerve sensitivity described by Mr Flanc.
189 In addition to this new pain, another major consequence is the effect on the plaintiff’s mobility, now being totally dependent on a stick or a four-wheel walker whereas, in the past, there were times of isolated use of a stick for balance problems and post knee surgery.
190 While the modifications were carried out at the back of the house, they were to deal with a tripping hazard relating to only one step. As the plaintiff explained, the railing was put there by the Council and not at her request.
191 Since the accident, the plaintiff has required heat packs and a support stocking, the latter which is particularly uncomfortable if she has to wear it for long periods.
192 In terms of future treatment, both Dr Thomas and Dr McCallum thought the plaintiff may benefit from a lidocaine patch over the affected area
193 Although the plaintiff was obviously on significant medication in the form of Norspan patches for arthritis at the time of the accident, Endone has only been prescribed thereafter. While it was submitted on the defendant’s behalf this was for arthritis, I accept the plaintiff’s very specific explanation that Endone was prescribed as a last resort for her calf pain when other medication was not working.
194 Although there is no detailed report from Dr Hay, the notes indicate he first prescribed Endone on 9 March 2018 when the reason for contact was “bronchitis”. Whilst there is no mention in the notes of right calf at that time, I accept the plaintiff’s evidence in this regard.
195 As Dodds- Streeton JA noted in Kelso v Tatiara Meat Company Pty Ltd,[65] where chronic pain was a prominent feature of the appellant’s case, the endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a “very considerable” consequence.
[65][2007] VSCA 267 at paragraph [199]
196 I also accept that while the plaintiff had some sleeping problems in the past, there is a new dimension to those, with her being woken by calf pain during the night.
197 I accept the plaintiff is restricted in her ability to play with and nurse her grandchildren, who clearly mean a lot to her.
198 The plaintiff’s driving is now restricted to the local area.
199 The plaintiff’s ability to stand for long periods, whether at Mass or other activities, is further restricted by her calf pain.
200 The calf injury has resulted in a loss of confidence generally which impacts on a range of activities, including church, going out, crossing the road and even reading a book.
201 I am also entitled to take into account the expected mental consequences of the plaintiff’s physical injury which have been diagnosed as an Adjustment Disorder as a result of her frustration and upset due to her injury restrictions.[66]
[66]Richards & Anor v Wylie [2000] VSCA 50
202 Taking into account all of the evidence, I am satisfied that the plaintiff has a “serious injury”, the effects of which are long term.
203 Accordingly, I grant leave to the plaintiff to bring proceedings for damages.
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