Simonovijk v Transport Accident Commission
[2022] VCC 2097
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY List |
Case No. CI-22-00008
and CI-22-00071
| VIOLETA SIMONOVIKJ | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24, 25 and 30 August 2022 | |
DATE OF JUDGMENT: | 6 December 2022 | |
CASE MAY BE CITED AS: | Simonovijk v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2097 | |
REASONS FOR JUDGMENT
---
Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – two transport accidents – paragraphs (a) and (c) of the definition of “serious injury” – issues of aggravation – nature and extent of injury – disentanglement – consequences – credit
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Transport Accident Commission v Zepic [2013] VSCA 232; Ramsay v Watson (1961) 108 CLR 642; Petkovski v Galletti [1994] 1 VR 436; Jones v Dunkel (1959) 101 CLR 298; Humphries and Anor v Poljak [1992] VR 129; Mobilio v Balliotis & Ors [1998] 3 VR 833; Peak Engineering & Anor v McKenzie [2014] VSCA 67; R J Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386; Dressing v Porter [2006] VSCA 215; Richards & Anor v Wylie (2000) 1 VR 79; Transport Accident Commission v Kamel [2011] VSCA 110; Johns v Oaktech Pty Ltd [2020] VSCA 10; Poholke v Goldacres Trading Pty Ltd [2016] VSCA 232; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Aravena v Victorian WorkCover Authority [2021] VCC 2010
Judgment: Leave granted to commence proceedings for common law damages.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell KC with Mr C S O’Sullivan | Drakulic Lawyers |
| For the Defendant | Mr J L Batten with Ms J Ryan | HWL Ebsworth Lawyers |
HIS HONOUR:
1The plaintiff, Violetta Simonovikj, now aged forty-seven years, was born in Macedonia, migrating to Australia in 2012. Before coming to Australia, she completed Year 12 and a further two years of post-secondary education, before working as a border guard for the Macedonian police force for eight years. She then ran a boutique clothing store for about four years, before coming to Australia, where she met her husband, Zlate Petrusevski.
2Life has not always been easy for the plaintiff in Australia. Her conversational and written English skills are only very basic, and she has not been able to retrain or otherwise find work in her previous fields of employment. The plaintiff and her husband have also encountered insurmountable difficulties in conceiving, and although her husband has children from a previous relationship who are a part of her life, that she does not have children of her own is a source of great sadness for her.
3The plaintiff’s lot was not improved on 15 January 2015 when a vehicle driven by her husband, in which she was a front-seat passenger, was rear-ended at traffic lights in High Street, Lalor (“first transport accident”). The impact was considerable, and she immediately experienced difficulty breathing, with pain in her neck, lower back and left shoulder, and she was frightened and shocked. When she got out of the car, she fainted and was transported by ambulance to the Northern Hospital.
4The plaintiff’s claim is that she has been left with serious consequences from this accident, in particular an injury to her left shoulder.
5Whilst some of her symptoms improved and she eventually returned to driving, on 1 April 2018, the plaintiff was involved in another transport accident. On this occasion, whilst stationary at a set of traffic lights at the corner of Edgars and Barry Roads in Lalor, the car she was driving was struck from behind by another vehicle (“second transport accident”). Again, she was transported by ambulance to hospital where she was admitted as an inpatient. As a result of the second transport accident, the plaintiff alleges she has suffered serious neck and low back injuries, and a severe psychiatric injury.
6The plaintiff seeks leave, pursuant to s93 of the Transport Accident Act 1986 (“the Act”), to commence proceedings for common law damages in relation to:
(a) the first transport accident on 15 January 2015 (by Originating Motion No. CI‑22-00008). The injury relied upon is to the plaintiff’s left shoulder under sub-paragraph (a) of the relevant definition of “serious injury”; and
(b) the second transport accident on 1 April 2018 (by Originating Motion No. CI‑22‑00071). The injury relied upon is to the spine, including injury to the lumbar spine and aggravation of injury to the cervical spine, under sub-paragraph (a); and/or a psychiatric injury under sub-paragraph (c) of the definition.
7In order to succeed, the plaintiff must satisfy the Court that she has sustained a serious long-term impairment or loss of a body function of the left shoulder within the meaning of sub-paragraph (a) of s93(17) of the Act; and in relation to the second transport accident, a serious long-term impairment or loss of body function of the spine. As to her psychiatric injury, pursuant to sub-paragraph (c), the plaintiff must satisfy the Court that she has sustained a severe long-term mental or severe long-term behavioural disturbance or disorder.
8It is not in dispute that the plaintiff:
(a) sustained an injury to her left shoulder in the first transport accident. Nor is there any medical controversy as to the fact that she was, and remains, totally incapacitated for employment as a result of this injury;
(b) may aggregate, for the purpose of assessing whether the spinal injury is serious, the consequences of any impairment to the neck and lumbar spine related to injuries sustained in the second transport accident.[1]
[1] Transport Accident Commission v Zepic [2013] VSCA 232
9Every other aspect of the applications is in issue. In particular, the Transport Accident Commission (“TAC”) submits that the credit of the plaintiff is critical in determining these proceedings.
The Issues
Credit
10In the TAC’s submission,[2] the plaintiff has repeatedly portrayed a post-accident account of the circumstances which is inaccurate and deliberately misleading, and that she is an unreliable witness, lacking veracity.
[2]Both parties filed written submissions dated 29 August 2022, supplemented by oral submissions on 30 August 2022. The plaintiff also filed a chronology on 24 August 2022, on an agreed basis
11Much was sought to be made of the plaintiff’s domestic and overseas travel in cross-examination, which were said not to have been disclosed to various doctors, and to have been inconsistent with her claimed level of incapacity.
12While the authorities reflect the proposition that expert opinion is only of value when the history and information provided is accurate and truthful,[3] I do not accept the TAC’s submission that the plaintiff’s histories given to doctors about the level of her travel activities and capacity were knowingly untrue or inaccurate. To the contrary, the plaintiff gave broadly consistent and open histories to many doctors as to her overseas and interstate trips. Some of her doctors were specifically encouraging her to take these trips. These histories were available to the medico-legal doctors examining the plaintiff on behalf of the TAC.
[3]See, for example, Ramsay v Watson (1961) 108 CLR 642
13For example the plaintiff’s treating psychiatrist, Dr Tipirneni, in a report to the TAC dated 2 September 2015, noted his advice that the plaintiff should take some time out to visit her family in Macedonia as she is missing them, despite her fear of being confined in the airplane.[4]
[4]Plaintiff’s Court Book (“PCB”) 66
Left shoulder
14The TAC submits that the injury to the left shoulder sustained by the plaintiff in the first transport accident has been effectively treated, such that there is no ongoing pathology relevant in the left shoulder that would enable the consequences to satisfy the “very considerable” threshold.
Spine
15The TAC submits that the plaintiff’s complaints of pain are effectively subjective, and “arguably” reflect the progression of her pre-existing spinal disease. Further, that the plaintiff’s complaints of ongoing symptoms in her cervical spine after the first transport accident demonstrate that she was clearly symptomatic prior to the second transport accident.
16It was not in dispute ultimately that any injury suffered to the spine in the second transport accident was in the nature of an aggravation or exacerbation of her pre-existing underlying degenerative disc disease, or that the injury to the cervical spine was an aggravation of an injury sustained in the first transport accident.
Psychiatric injury
17In the TAC’s submission, it is not open to the Court to find that the plaintiff has sufficiently identified, disentangled or delineated the consequences of the second transport accident sufficiently for any injury to meet the “very considerable” test. Further, that the plaintiff’s failure to disclose the full and frank nature of her activities of daily living, social and family life and travel activities, means that the opinions of psychiatrists in the application should be rejected. Finally, that the plaintiff’s mental state does not meet the “severe behavioural disorder or disturbance of the mind” test required by the legislation.[5]
[5]Defendant’s written submissions at paragraph 44
Disentanglement and comorbidities
18In addition to the matters above, the TAC submits that the plaintiff has failed adequately to identify and delineate the consequences arising from her physical and psychiatric injury in the second transport accident and therefore not discharged the onus imposed by the legislation. This is so, because the plaintiff had pre-existing pathology in the spine that has not been accelerated by the second transport accident; alternatively, that she has failed to discharge the Petkovski v Galletti[6] obligation of analysing any additional impairment arising from the latter accident.
[6] [1994] 1 VR 436
Other
19The plaintiff relies solely on her own affidavits and sworn evidence in seeking to establish that she has suffered one or more serious injuries within the meaning of the Act. The TAC submitted that in the absence of corroborative evidence of her level of incapacity which might have been indicated, I should infer that such evidence – for example from her husband – would not have assisted her case. While it may or may not have assisted the plaintiff’s claim to have additional lay affidavit material in support of her case, in the circumstances of the evidence as a whole in this case, where the plaintiff bears the burden of proof, I do not find that determinative. I do not accept, at this stage of the plaintiff’s claim, being a gateway application to access common law benefits, that any inference under Jones v Dunkel[7] ought apply insofar as she seeks to establish her experience of pain and its consequences. There is no contradictory or competing evidence that the plaintiff is manufacturing her evidence as to incapacity. A body of other evidence, much of which is objective and provided by independent medical practitioners, exists upon which I may rely.
[7](1959) 101 CLR 298
20In contrast, the TAC made a very significant attack on the plaintiff’s credit in terms of her current level of capacity, yet did not show her any of the 30 minutes of film taken during 67.25 hours of surveillance. I infer that the video surveillance would not assist the TAC's case, and that I am entitled more readily to accept the plaintiff’s evidence about her level of incapacity. I place limited weight on this consideration.
Principles
21In order to be granted leave to commence common law proceedings for damages in relation to her physical injuries, the plaintiff must satisfy the Court that the nature of any accident-related injury and its consequences for the plaintiff are capable of being fairly described as “at least ‘very considerable’ and certainly more than ‘significant’ or ‘marked’”, and that the injury is “serious” when assessed objectively in comparison with other cases in the range of possible impairments or losses.[8] In order to be granted leave on the basis of a psychiatric impairment under sub-paragraph (c), satisfaction that the behavioural disturbance is “severe” requires the plaintiff to satisfy a definition which is “stronger in terms of significance or gravity than serious”.[9]
[8]Humphries and Anor v Poljak [1992] VR 129 at 140
[9]Mobilio v Balliotis & Ors [1998] 3 VR 833 at 854
22The plaintiff bears the onus of establishing the consequences of the impairment of function from injuries sustained in each respective transport accident.
23Noting the prohibition on aggregation of consequences of separate injuries, other issues in the case involved a consideration of whether any aggravation of a pre-existing impairment is of itself serious.[10] In this circumstance, a comparison must be made as to the condition of the plaintiff before and after the aggravating event to determine the extent of consequences of the claimed additional impairment.
[10]Petkovski v Galletti (supra)
24In Peak Engineering & Anor v McKenzie,[11] Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury. In such circumstances:
“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ... at least very considerable’. For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[12]
[11] [2014] VSCA 67 (“Peak Engineering”)
[12] Peak Engineering (ibid) at paragraph [2]
25It is possible to suffer serious injury to the same body function on more than one occasion.[13] If the consequences of compensable injury meet the serious injury test, it is beside the point that some other condition might also have satisfied the test by reason of its pain and suffering consequences.[14]
[13] R J Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386 at paragraph [27]
[14] Dressing v Porter [2006] VSCA 215 at paragraph [47]
26The focus must always be on the consequences of the impairment of the body function relied upon. As the Court of Appeal said in Poholke v Goldacres Trading Pty Ltd:[15]
“… the fact that the applicant experienced significant pain and discomfort arising from the [earlier] injury to his neck did not diminish, or in any way devalue, the degree of pain suffered by him as a result of his [later] back injury. That is, the pain, that the applicant suffered as a result of his neck injury, did not, for the purposes of the evaluation required to be carried out by the court, in any way detract from the significance of the level of pain and discomfort experienced by the applicant as a result of his back injury.”
[15] [2016] VSCA 232 at paragraph [110]
27The onus is also on the plaintiff to disentangle any mental consequences from physical consequences of her injury. Where the impairment of body function is the product of both organic and mental conditions, it will not fall within sub-paragraph (a) unless it is predominantly the product of the organic condition.[16]
[16]Richards & Anor v Wylie (2000) 1 VR 79; Transport Accident Commission v Kamel [2011] VSCA 110
Credit
28Credit of the plaintiff is a relevant issue in determining the seriousness of the injuries relied upon by the plaintiff.[17]
[17]Johns v Oaktech Pty Ltd [2020] VSCA 10
29In Haden Engineering Pty Ltd v McKinnon,[18] the Court reviewed a number of decisions concerning the pain and suffering consequence of particular injuries and, in particular, the consideration of the plaintiff’s experience of pain. The Court stated:[19]
[18](2010) 31 VR 1 (“Haden Engineering”)
[19]Haden Engineering (ibid) at paragraphs [10]-[12]
“10As to the experience of pain as such, the Court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale ‘mild/moderate/severe’. Unless the pain is constant, the Court will need also to assess the frequency and duration of the pain episodes.
11The 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);
(b)what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c)what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d)what the objective evidence shows about the disabling effect of the pain.
12As to (a), 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. The Court will make its own assessment of the plaintiff’s credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.”
30I accept the plaintiff’s evidence for the following reasons:
(a) her evidence in the witness box was generally given in a frank manner without prevarication. To the extent that she was criticised for having a “selective memory” or other inadequacies, I take into account the fact that the plaintiff is suffering from a Post-Traumatic Stress Disorder (“PTSD”) and an Adjustment Disorder with Depression, and no doubt it was a stressful experience for her. Upon being reminded of details, she routinely made concessions, including as to her level of activity disclosed in her travel history and in her Facebook account. As the plaintiff said, “I have nothing to hide” and, consistent with this position, had open security settings on her Facebook account which allowed the defendant access to the various photographs and other material the subject of cross-examination;
(b) whilst I had some reservations about the plaintiff’s evidence at times, upon reflection and in light of the evidence as a whole, I do not consider that any particular history provided to doctors was incorrect or fabricated. Without further explanation, some histories taken in isolation may have exaggerated her circumstances; however, the true position was recorded overall in the various histories to examining doctors;
(c) no part of the plaintiff’s evidence in her affidavits was shown to be incorrect, fabricated or embellished;
(d) no medical practitioner finds that the plaintiff was attempting to consciously exaggerate or embellish her presentation in a clinical setting. In particular, doctors retained by the defendant recorded for example:
·Associate Professor Bruce Love, orthopaedic surgeon –
“I have not determined that there are any inconsistencies between my findings on examination and the client’s report of disability in the material provided.”[20]
[20] PCB 283
·Dr Clayton Thomas, consultant in rehabilitation and pain medicine –
“… I am not in a position to indicate there is over-embellishment present, ... .”[21]
[21] PCB 361
·Dr David Elder, consultant in occupation and environmental medicine –
“Her presentation appears to be appropriate and reasonable. It is proportional to the motor vehicle accidents.”[22]
[22] PCB 375
·Dr Nigel Strauss, psychiatrist –
“I should state that there is no evidence to suggest that she is deliberately over exaggerating her problems. … .”[23]
[23] PCB 326
(e) whilst the defendant had the plaintiff under surveillance for a total of 67.25 hours and obtained video of the plaintiff for approximately 30 minutes, none of that material has been relied upon by the TAC;
(f) whilst the plaintiff’s Facebook pages were, on one interpretation, perhaps inconsistent with the histories given that she “did not feel like going out”, they do not in fact disclose the plaintiff performing any particularly vigorous activity or exercise and are not inconsistent with the plaintiff’s sworn evidence;
(g) the plaintiff had routinely reported to treating doctors and other practitioners the fact that she had travelled overseas and interstate:
·Dr Surya Tipirneni, psychiatrist –
“… I have given her supportive psychotherapy and I advised her to increase her fitness through activities and advised her to expose herself to places where the accident happened and she is advised to take some time out to visit her family back in Macedonia as she is missing them and she is avoiding to travel due to fear of being confined in the airplane.”[24]
[24] Report dated 2 September 2015, PCB 56 at 57
“I reviewed Mrs Violeta today with her husband who presented with panic attack this morning at the airport while she was about to leave to Auckland with her sister in law. She reported that she saw a big crowd at the airport and she had palpitations and breathlessness and panic attack and started crying and called her husband back and he picked her up. … .”[25]
[25] Report dated 16 November 2017, PCB 66
[my emphasis]
·Dr Sami Ahmad, pain clinician –
“Violeta today told me that she is going to North Queensland for the next five weeks to escape the cold weather. Her nerve root blocks have been approved by TAC, but she would like to try them once she comes back from Queensland.”[26]
[26] Report dated 6 July 2018, PCB 122
[my emphasis]
·Dr Richard Sullivan, interventional pain specialist and specialist anaesthetist –
“Violeta wants to go up north during the colder months (from mid-June for 6-7 weeks).
It is recommended that she is reviewed following the outcome of her further investigations and surgical opinion and following her holiday.”[27]
[27] Network Pain Management Assessment Request Form dated 8 May 2019, PCB 157 at 159
[my emphasis]
·Dr Diane Neil, psychiatrist –
In her medico-legal report, Dr Neil reviewed the clinical records from High Street Medical and Dental and notes that “following MVA 1”:
“… She regularly travelled overseas and interstate, for holidays and IVF treatments. … .”[28]
Dr Neil then reviewed Dr Sullivan’s clinical records, and notes:
“… Multidisciplinary assessment was completed 03 06 19 and program commencement deferred for 2 months due to her FNQ holiday. … .”[29]
[28] Report dated 12 July 2022, PCB 330 at 333
[29] Ibid at PCB 336
(h) no medical practitioner was invited to consider Facebook material and provide an opinion or have the opportunity to reconsider any opinions previously expressed.
31The plaintiff started seeing Dr Tipirneni in February 2015,[30] and he remains her treating psychiatrist. Dr Tipirneni prescribed Lexapro, and made a formal diagnosis of PTSD with depression and acute Adjustment Disorder (depressive type) with Chronic Pain Syndrome. In this context, Dr Tipirneni encouraged the plaintiff to travel to Macedonia and also advised her to return to her participation in the Macedonian Women’s Group.
[30]PCB 53
32I infer that travel to Macedonia in 2015 and 2016, and (possibly) again in 2017, was supported by her treating doctors because, at least in part, it was to see family who lived overseas for support with her condition.
33In my view, this level of capacity to travel before the second transport accident is not inconsistent with the observations made by her treating psychiatrist in 2015 as to the plaintiff’s difficulties with sleep, flashbacks and nightmares, emotional and social withdrawal, avoiding friends, depressive cognitions and weight gain; or the plaintiff expressing some depressive, pessimistic ideas including that she did not want to live anymore.[31] Self-evidently, Dr Tipirneni did not think so.
[31]PCB 57
34As her Honour Judge Clayton observed in Aravena v Victorian WorkCover Authority:[32]
“I do not consider the test requires that an applicant for a serious injury certificate lead a miserable, joyless life. … .”
[32][2021] VCC 2010 at paragraph [96]
35Consistent with her condition, the plaintiff had a panic attack at the airport in November 2017 and was unable to go on a planned holiday to New Zealand.
36With the exception of travel to Fiji by plane in February 2019 and to Brisbane in the winter of 2019 to stay with her husband’s cousin, all of the travel activity occurred in the period prior to the second transport accident.
37The plaintiff has not travelled since 2019.
38I accept counsel for the plaintiff’s submission that the evidence of her travelling is not inconsistent with her sworn evidence, and is of marginal relevance.
39I reject the submission by the TAC that the plaintiff has repeatedly portrayed a post-accident account of her circumstances which is inaccurate and deliberately misleading, and that the plaintiff is an unreliable witness, lacking veracity.
40In all her consultations with medical professionals and also when giving oral evidence, the plaintiff was aided by an interpreter. Insofar as medical consultations, that interpreter was her husband. I accept that in Court she answered questions put to her as openly and candidly as she could. I suspect that it is likely that the way she reported to doctors and answered questions in the witness box was influenced by an ethnic or cultural element.
41In substance, the attack on the plaintiff in relation to her travel and other activities depicted on her Facebook page relates to the question of whether the plaintiff has suffered a severe psychiatric or behavioural disturbance,[33] a subject to which I will return later. None of the material, including any of the travel, is relevant to the consideration of the consequences of the plaintiff’s left shoulder injury, save and except for any Richards & Anor v Wylie[34] type component of her psychological reaction to her injury. I find that any such reaction is not sufficiently identified by reference to the left shoulder pain, and I place no weight on this.
[33]Defendant’s submissions at paragraph [49]
[34]Supra
First transport accident – is the left shoulder injury a “serious injury”?
42The TAC concede that the plaintiff suffered an injury to the left shoulder in the first transport accident. The plaintiff reports ongoing pain and restriction, including interruption to sleep in the context of a history of the following accident-related treatment and medical opinion:
(a) left shoulder ultrasound on 11 February 2015,[35] disclosing subacromial bursal thickening, indicating bursitis, and shoulder range of movement reduced with abduction due to bursal impingement. Rotator cuff tendons were intact;
[35]PCB 199
(b) a later MRI scan on 25 March 2015[36] showed tendinosis involving both the supraspinatus and infraspinatus, with a small tear at the musculotendinous junction of the supraspinatus tendon, with associated background subacromial bursitis;
[36] PCB 200
(c) injections into the shoulder performed by Dr Victor Karlov, consultant physician, and Dr Milan Pavlovic, orthopaedic surgeon. The injections into the left shoulder produced no longstanding long-term benefit, and the plaintiff was advised to undergo surgery;
(d) left subacromial decompression surgery with rotator cuff repair and biceps tenodesis with Mr Pavlovic on 17 March 2016;[37]
(e) the reports of Mr Pavlovich, both before and after the surgery, show a continual and ongoing complaint of symptoms in the left shoulder;
(f) the plaintiff developed increasing pain and loss of range of motion in her left shoulder, which persists. This was treated conservatively and with two injections to relieve symptoms.[38] At the time of orthopaedic surgeon, Mr John O’Brien’s examination of the plaintiff in October 2016, the signs suggested a complex pathology with marked restriction of rotation of the shoulder, indicating the presence of adhesive capsulitis which was complicating recovery.[39] I accept Mr O’Brien’s opinion that the injuries are accident related. His opinion in October 2016, before the second transport accident, was that: “Physically there is no possibility this patient could return to her pre-injury occupation. In fact I would regard this patient now as totally incapacitated. Indeed, I can see no possibility of this patient returning to gainful employment in the foreseeable future” as a result of her “quite significant disability predominantly related to her left shoulder pathology”;
(g) Mr O’Brien examined the plaintiff again on 20 March 2017, and notes that the left shoulder surgery has not been reported as resulting in any substantial improvement;[40]
(h) as an indicator of the extent of her left shoulder injury, the plaintiff started favouring it, which resulted in strain on her right shoulder, which received treatment and various investigations in 2017.[41] This was not the subject of detailed medical evidence, and I place no weight on this;
(i) on 5 December 2017, the plaintiff had multiple cortisone injections to her trapezial muscles to relieve her symptoms; however, upon review by her treating surgeon in February 2018, she had not gained much improvement. At that time, Mr Pavlovich recommended twice-weekly osteopathic treatment;[42]
(j) whilst no further surgical treatment is indicated,[43] in January 2022, in the context of persisting subacromial bursitis and mild positive impingement on the left, treating orthopaedic surgeon, Mr Benny Zhang, prescribed the plaintiff Celecoxib for this pain, and recommended she continue cortisone/local anaesthetic injections as necessary. Her shoulder symptoms were otherwise stable, including ongoing left shoulder pain. Clinically, Mr Zhang reported that the plaintiff had difficulty elevating her arm above 90 degrees, without loss to external rotation or rotator cuff power;
(k) treating doctors and examining specialists, including most recently, Dr David Elder, in July 2022,[44] have noted muscle wasting on the left side, being an objective indicator of the consequences of the injury to the left shoulder;
(l) Dr Robyn Horsley, occupational physician, is of the opinion that the plaintiff could not return to her previous role as a cleaner or kitchenhand on the basis of her left shoulder injury alone;[45]
(m) Dr Horsley, Mr O’Brien and the other treating and examining medico-legal experts are overwhelmingly in agreement that the plaintiff is totally incapacitated for employment as a result of her left shoulder injury.[46] I accept that the plaintiff has not worked since the first transport accident as a consequence of her left shoulder injury. Prior to this accident, she was working part time as a cleaner and kitchenhand for Manor on High Trust, the Macedonian Orthodox Church and Unbelievable Cleaning Services.
[37]PCB 83
[38]PCB 19-20
[39]Report dated 10 October 2016, PCB 228 at 231
[40] Report dated 20 March 2017, PCB 237
[41] See report of Mr Pavlovic dated 15 March 2017
[42] PCB 94
[43]See report of consultant orthopaedic surgeon, Mr Zhang, at PCB 192
[44] Report dated 19 July 2022, PCB 369 at 372
[45] Report dated 24 March 2022, PCB 316 at 319
[46]See Dr O’Brien’s reports dated 10 October 2016, 20 March 2017 and 29 September 2022, PCB 228 at 231, PCB 234 at 237 and PCB 239; Associate Professor Bruce Love’s report dated 25 March 2021, PCB 277 at 283; Dr Horsley’s report dated 9 March 2022, PCB 299 at 312; Dr Clayton Thomas’ report dated 18 July 2022, PCB 357 at 362, and Dr Elder’s report dated 19 July 2022, PCB 369
43Whilst initially there was some improvement in the severity of left shoulder pain and range of movement in the left shoulder as a result of this surgery, I accept the plaintiff’s evidence that the surgery to the left shoulder resulted in little improvement in severity of her pain.
44Her evidence in relation to the pain and suffering consequences of the left shoulder injury are set out at paragraphs 31 and 32 of her first affidavit:
“31.I continue to suffer from ongoing fluctuating pain and restrictions in my left shoulder and referred pain into the left arm to the wrist and the shoulder blade. My left shoulder pain is aggravated by activities that involve reaching forward, pushing, lifting, carrying anything in my left arm or lifting my arm above the level of my shoulders. In addition, the pain is aggravated when lying on my left-side. I often notice an altered sensation in my left hand and as a result, I frequently drop objects.
32.The normal activities of daily living are significantly compromised by my inability to use the left arm freely and without pain. I try to do as much as I can with the right hand. I have difficulty dressing and require the assistance of my husband. I am unable to manage the domestic duties that I was once able to. I require the assistance of my husband and his daughter, who now undertake almost all of the domestic tasks around the home.”
45Whilst plaintiff’s affidavits sworn 14 December 2020 and 20 July 2022 do not specify particular medication prescribed in relation to her left shoulder, the most recent report of Mr Zhang in January 2022 identifies the need for strong analgesics to control her left shoulder symptoms, and an ongoing need for injections under anaesthetic by way of ongoing treatment. In her second affidavit, the plaintiff deposes that she saw her orthopaedic surgeon, Mr Zhang, about her left shoulder in June 2022. Mr Zhang told her that he did not think she needed further surgery. At the time, she confirmed that her left shoulder pain had not changed.
46Against the grant of leave in relation to the left shoulder injury, the TAC submits that:
(a) an MRI scan performed in October 2017 found no evidence of adhesive capsulitis or recurrent tendon tear.[47] I pause to note that at the time, her treating surgeon, Mr Pavlovic, recorded that she had subacromial pain, only a reasonable range of movement, and increased tonus of her trapezial and rhomboid muscles, which were painful on palpation. She also had a focal signal hyperintensity in the supraspinatus and infraspinatus due to tendinosis;
(b) further, by 6 May 2020, Mr Pavlovic expressed a view that, from a “functional point of view”, the plaintiff was functioning well with regards to her left shoulder.[48] This view in isolation, having regard to his overall treatment and findings, is not determinative of the extent of the impairment consequences identified by the plaintiff.
[47]PCB 208
[48]PCB 104
47I find that the consequences to the plaintiff of her left shoulder injury identified above satisfy the narrative test for serious injury and, accordingly, grant leave for her to commence proceedings for common law damages pursuant to s93(17) of the Act.
The injury to the spine in the second transport accident
48The plaintiff accepts that she suffered injury to her cervical spine in the first transport accident. Mr O’Brien, in 2016, diagnosed aggravation of extensive cervical spondylosis.
49As a consequence of the second transport accident, the plaintiff claims that she suffered an aggravation of her neck injury and a severe aggravation of her back condition, with development of left-sided sciatica.
50Following discharge from the Royal Melbourne Hospital on 6 April 2018, she attended her general practitioner, Dr Skodric, who referred her to Precision for investigations and treatment of her back and neck symptoms.[49]
[49] Referral dated 19 April 2018, PCB 51
51In June 2018, the plaintiff completed an intensive pain management program at Brunswick Private Hospital.[50]
[50] Rehabilitation discharge summary dated 22 June 2018, PCB 154
52She continues to see the specialists from Precision, who treat her to the present time.
53Prior to the second transport accident, the plaintiff underwent a number of radiological investigations of her spine:
· 10 November 2014 – x-ray of the lumbar spine. Findings included no visible spondylolysis or spondylolisthesis; disc space heights preserved; mild lower lumbar facet joint arthropathy.[51]
[51] PCB 197
· 25 March 2015 – an MRI scan of the cervical spine recorded advanced degenerative changes across the cervical spine:
“Degenerative changes seen through the cervical spine with multilevel degenerative disc disease seen. No significant spinal stenosis and no evidence of underlying compressive spinal cord myelopathy. The diffuse posterior disc bulges at the C3/C4, C4/C5 and C6/C7 levels have somewhat focal components into the right subarticular space where there is potential impingement on the traversing right C4, right C6 and right C7 nerve roots within the subarticular spaces at these levels as well as the minimally narrowed neural exit foramina.”[52]
Multilevel degenerative disc disease was also seen across the thoracic spine.
· 1 July 2016 – CT scan of the cervical spine, investigating possible facet joint disease, again upon referral by Dr Victor Karlov. Radiologist, Dr Paul Tauro, concluded that there was “minimal marginal osteophyte formation narrowing the C5/6 intervertebral canals, no significant facet joint arthropathy seen”.[53]
· 21 November 2016 – an MRI scan of the cervical spine found right paracentral and foraminal disc protrusion at C3-4, with potential impingement on the right C4 nerve. Bilateral foraminal disc encroachment at C5-6, more on the left, with potential impingement on the left C6 nerve.[54]
· 28 November 2017 – CT scan of the cervical spine and lumbar spine. Radiologist, Dr Ajay Kapoor, concluded that the scan showed:
“Mild osteoarthritis in right L4/5 and L5/S1 facet joints. Mild multilevel disc degenerative changes. Mild diffuse bulge of L4/5 disc and a small central protrusion of L5/S1 disc without neural compromise.”[55]
[52]PCB 200, report of Dr David Burrows
[53]PCB 204
[54] PCB 205
[55] PCB 209
There was no significant facet joint osteoarthritis seen in the cervical spine. There was moderate disc degeneration at C5-6 and C6-7, with mild foraminal stenosis at C3-4, C5-6 and C6-7 in the right side, and at C5-6 in the left side from posterior osteophyte. Changes are maximum at C5-6 and C6-7, with disc space narrowing and posterior osteophytes, mildly indenting the thecal sac.
· 7 December 2017 – Whole body bone scan with SPECT to investigate back, neck and left shoulder pain. Nuclear medical physician, Dr A Hannah, concluded that there was no evidence of active bone or joint pathology seen to explain the symptoms described.[56]
[56] PCB 211
54Prior to the second transport accident, there is some evidence of low-back problems. The plaintiff had the x-ray of her lumbar spine in November 2014, but she continued to work after that, and there was no evidence of other treatment before the first transport accident. She reported suffering some low-back pain immediately in the first transport accident, but her evidence is that during the period between the transport accidents, the main difficulties were with her neck and left shoulder. She did not receive treatment for her low-back problems in the three years between the two accidents, save for the referral for a further CT scan of her cervical and lumbar spine which was performed on 28 November 2017.
55I accept the plaintiff’s submission her low-back condition prior to the second transport accident was of minimal significance.
56In addition to the injury to the lumbar spine, the plaintiff initially suffered some pain in her cervical spine following the first transport accident, which was significantly aggravated following the second transport accident.
57Prior to the second transport accident, the plaintiff had some modest neck/left shoulder symptoms. She was having very little by way of active treatment directed to the cervical spine. She was referred to a spinal surgeon, Mr John Cunningham, in March 2017, who stated he was unwilling to convince himself that the plaintiff’s arm symptoms were coming from the cervical spine.[57] I accept that opinion.
[57] PCB 176-177
58I accept the plaintiff’s sworn evidence that at the time of the second transport accident, she was suffering from ongoing neck pain, with some pain in her low back. She had some physiotherapy for her neck issues. There was no referred pain into her legs. No surgery was indicated.
59During admission at the Royal Melbourne Hospital in April 2018 in the immediate aftermath of the second transport accident, the plaintiff was investigated for possible transverse process fractures at T1-4 demonstrated on initial CT trauma series, but this injury was excluded upon further MRI imaging.[58]
[58]PCB 111
60On 20 April 2018, the plaintiff attended the Emergency Department again at the Royal Melbourne Hospital with lower back pain and sensory changes in her left leg.[59] At the time, she had lumbar tenderness and left sacroiliac joint tenderness, with left-sided paraspinal tenderness.
[59]PCB 173
61In May 2018, she consulted Dr Sami Ahmad, pain clinician at Precision.[60] At the time, she described pain mainly in the left side of her lower back, which was a constant dull ache, with intermittent severe sharp pains, made worse by any activity and improved by either being stationary or with massage. The pain intermittently radiated towards the left buttock with occasional tingling in the back of the thigh. There was no constant numbness. She was managing the pain by going to the physiotherapist twice a week, using Panadeine Forte, four to eight tablets a day, and Ibuprofen, one tablet three times a day.
[60] Report dated 18 May 2018, PCB 117
62Dr Ahmad noted that the plaintiff was demonstrating pain behaviour throughout the consultation, in that she was walking with a stick and unable to stay still for long periods, and could not put enough weight on her left side, tilting her body to the right. She was unable to stand on her heels and toes because of her pain. At the time, she demonstrated significant maladaptive pain cognitions, including fear avoidance, catastrophic thinking and low self-efficacy in the context of comorbidities of previous Major Depression and possible PTSD, for which she was receiving treatment from a psychiatrist and a psychologist.[61]
[61]PCB 118-119
63Upon review on 28 June 2018, following two weeks of an inpatient rehabilitation program at Brunswick Private Hospital, Dr Ahmad noted the improvement in her pain, but recommended nerve root injections to improve the pain radiating into her left thigh. He also recommended an increase in the dosage of pain medication, Lyrica.[62] Nerve root blocks were approved by the TAC at the lumbar spine L4-S1 on the left side.
[62]PCB 120
64Dr Sullivan, in his report of 10 September 2018, recorded a history of severe aggravation of the plaintiff’s back pain and development of left-sided sciatica following the second transport accident. Dr Sullivan suggested reducing Lyrica medication, as it was not providing much benefit, with a view to ceasing it.[63]
[63]PCB 125
65In October 2018, the plaintiff consulted Professor Bittar, who is a neurosurgeon and spinal surgeon at Precision. Professor Bittar did not recommend spinal surgery, rather that she consider the nerve blocks recommended by Dr Sullivan and Dr Ahmad.[64]
[64] Report dated 23 October 2018, PCB 163 at 164
66The plaintiff had the following surgical interventions to treat her pain:
· 28 November 2018 – left L4-S1 transforaminal epidural injection
· 24 April 2019 – left C6-7 nerve root injection
· 13 May 2020 – cervical medial nerve blocks and C4 nerve root injection
· 19 May 2020 – radiofrequency treatment to the cervical spine
· 13 April 2021 – radiofrequency procedure to the lumbar spine
· 6 May 2021 – radiofrequency procedure to cervical spine and transforaminal epidural injection
· 13 July 2022 – radiofrequency procedure to cervical spine.
67The current recommendation from Professor Bittar is for a C5-C6 and C6-C7 anterior cervical decompression and fusion.[65]
[65]PCB 171
68Radiological and other investigations conducted after the second transport accident include:
· CT scan and MRI scan at the Royal Melbourne Hospital in April 2018.[66]
· Weight-bearing MRI scan of the lumbar spine, which found disc pathology at multiple levels. No evidence of high-grade canal or foraminal stenosis. No nerve root compression seen. The pathology included broad-based disc bulge at L4-5, resulting in mild bilateral foraminal stenosis, but no significant nerve root compression, and a central disc protrusion at L5-S1.[67]
· 25 January 2019 – MRI scan of the cervical spine, with the radiologist commenting that there were moderate degenerative changes of the cervical spine with neural compression at C3-4, C5-6 and C6-7, and mild indentation of the cord at C5-6. No definite myelomalacia seen.[68]
· 9 October 2019 – nerve conduction studies concluded there was bilateral moderate carpal tunnel syndrome and left C7 root irritation.[69]
· 13 December 2019 – MRI scan of the cervical spine showed multilevel chronic degenerative disease with disc bulges in contact with cord surfaces at C5-6 and C6-7, more marked at C5-6. Findings included osteophytes producing marked bilateral foraminal stenosis at C5-6, marked right foraminal stenosis and moderate to marked left foraminal stenosis at C6-7, and a right posterolateral disc protrusion and osteophytes producing a marked right foraminal stenosis at C3-4.[70]
· 29 September 2020 – MRI scan of the lumbar spine recorded findings of disc bulges at L4-5, small posterior disc protrusion at L5-S1 without significant neural impingement; mild facet joint degeneration bilaterally at those levels. No potential cause of radicular symptoms in the leg were identified.[71]
· 7 December 2020 – nerve conduction studies of the lower limbs and needle EMG of the lower limbs was normal, with no evidence of lumbar radiculopathy.[72]
· 3 March 2022 – MRI scan of the cervical spine noted the presence of cervical spondylosis with notable disc degeneration at C5-6 and C6-7; severe discal osteophytic narrowing of bilateral neural foramina at C5-6 and C6-7, and right neural foramen at C3-4, with impingement on the corresponding exiting nerve roots. There was minor cord indentation at C5-6 and C6-7, but no high-grade cord compression or signal changes.[73]
[66] Discharge summary dated 6 April 2018, PCB 111 at 112-114
[67]PCB 212-213
[68]PCB 214
[69]PCB 218
[70]PCB 220
[71]PCB 222-223
[72]PCB 224
[73]PCB 226-227
69The plaintiff’s treating neurosurgeon, Professor Bittar, in his report to the plaintiff’s solicitors dated 29 September 2020,[74] opined that the plaintiff presented with aggravation of lumbar spondylosis, for which the second transport accident was a significant contributing factor. In his updated diagnosis, he found that there was:
(a) aggravation of lumbar spondylosis with lower back pain and left leg pain;
(b) aggravation of cervical spondylosis, with neck pain and left arm pain.
[74] PCB 172
70On the basis of the review of her treatment, and the various investigations referred to above, and her complaints of pain since the second transport accident, his opinion as to causation was as follows:
“In my opinion, her cervical and lumbar spine conditions are significantly related to the subject transport accident of April 2018.
In my opinion, her cervical spine condition was also significantly contributed to by her previous transport accident in 2015.
In my opinion, all of her lumbar spine related pain and disability is related to the transport accident of April 2018, and the vast majority of her cervical spine related pain and disability is also related to that transport accident.”[75]
[75]PCB 175
71He noted her prognosis was poor, and that she was likely to continue to suffer from significant pain and disability into the foreseeable future. He did not believe that the plaintiff sustained an injury to her back as a result of the first transport accident, but that she did sustain injury to her neck and left shoulder. The nature of that injury was aggravation of cervical spondylosis. He went on to opine:
“The nature of the injury sustained by Mrs Simonovikj to her back and neck as a result of the second accident occurring on April 1, 2018, excluding completely any consequences / impairments arising from her first accident is aggravation of lumbar spondylosis and aggravation of cervical spondylosis. Please note, I was seeing her for treatment purposes only following the second transport accident and did not take a detailed history from her in relation to her ongoing symptoms from the first transport accident. My comments regarding her injury following the first transport accident and its consequences are therefore offered with a relatively low degree of confidence.”[76]
[76]PCB 176
72Professor Bittar relied, in part, on correspondence from spinal surgeon, Dr John Cunningham, dated 6 March 2017 and his opinion that, in relation to her bilateral arm symptoms, Dr Cunningham was “unwilling to convince myself that those symptoms are coming from her cervical spine”.[77]
[77]PCB 177
73In Professor Bittar’s opinion, noting that she was not working at the time of the second transport accident in April 2018, that transport accident would have rendered her totally incapacitated for work due to her spinal injuries.[78]
[78] PCB 176
74In his report to the plaintiff’s solicitors dated 26 July 2022, Dr Sullivan, interventional pain specialist and specialist anaesthetist, recorded investigations in clinical management, including the surgical procedures performed by him referred to above. He diagnosed post-traumatic chronic pain following the second transport accident; cervical spondylosis; thoracic spondylosis and lumbar spondylosis, caused and/or aggravated by the second transport accident. Noting she had responded favourably, though not durably to percutaneous interventions, and structural spinal surgery had been recommended, he believed her condition could be considered completely stable. In his opinion, the second transport accident is a significant contributing factor to her presentation.[79]
[79]PCB 152
75He found that the plaintiff was totally and permanently incapacitated for all reasonable, stable and settled employment.[80]
[80] PCB 152
76The plaintiff was examined on 12 July 2022 by Dr Clayton Thomas, consultant in rehabilitation and pain medicine, at the request of the TAC. In his report,[81] having recorded involvement in the two transport accidents, and a careful review of imaging reports, Dr Thomas accepted that the plaintiff developed neck pain and left shoulder girdle pain after the first transport accident and, importantly, that the lower back condition occurred after the second transport accident. He also accepted that the neck condition was aggravated by the second transport accident, but was not able to determine whether the neck condition has remained aggravated after the second transport accident, or whether it has returned to the state she was in prior to the second transport accident.
[81]Dated 18 July 2022, PCB 357
77Dr Thomas diagnosed symptoms relating to her neck with probable disc derangement, and in relation to her lower back, an aggravation of pre-existing asymptomatic lower back condition which developed symptomatic spondylosis relating to the second transport accident. Despite presence of a non-organic component, he was “not in a position to indicate there is over-embellishment present”. He noted that her “response to the accident is not out of keeping with the nature of both accidents”.
78Following examination, his evidence is that the second transport accident was predominantly responsible for the current condition of lower back pain with referred pain into her left leg. The prognosis was for ongoing pain relating to both transport accidents.
79Dr Thomas opined that the plaintiff is unable to return to work due to the sequalae of the first transport accident, and this has remained after the second transport accident.
80Dr David Elder, consultant in the specialty of occupational and environmental medicine, also examined the plaintiff on 19 July 2022 at the request of the TAC in relation to her injuries to the neck, left shoulder and low back.[82] Upon review of over 1,400 pages of material in relation to the first and second transport accidents, Dr Elder diagnosed mechanical neck pain, and left shoulder pain treated surgically arising out of the first transport accident, and lumbar spine pain with referred pain to the left lower extremity, but no clinical evidence of radiculopathy arising out of the second transport accident. In his opinion, the plaintiff’s presentation was appropriate and reasonable, and proportional to the transport accidents. Further, that the low-back pain referred to the left leg was caused by the second transport accident.[83]
[82] PCB 369
[83]PCB 374
81The plaintiff’s treating neurosurgeon, Professor Bittar, noted that whilst the first transport accident was a significant contributing factor, the “vast majority of her cervical spine related pain and disability is also related to the [second] transport accident”.[84]
[84]PCB 175
82Dr Sullivan, in his report of 26 July 2022, opined that the second transport accident was a significant contributing factor to her presentation of injury to the spine, including the cervical spine. He also noted that “her functional capacity and ability to self-care and self-manage her persisting chronic pain condition has deteriorated significantly following her road traffic accident of 2018”.[85]
[85]PCB 152
83I regard it as significant that the plaintiff’s current treating neurosurgeon, Professor Bittar, has advised her that she is a reasonable candidate to undergo anterior cervical decompression and fusion surgery on her neck in relation to her transport accident-related cervical spine condition.[86] The plaintiff, however, is quite reluctant to go down the surgical path.
[86] PCB 171, 178-179
84The comparison between the consequence of any cervical spine condition pre-existing the second transport accident compared to her condition subsequent to it, is marked, as indicated by the amount and the type of treatment that has been performed and recommended on her cervical spine.
85The consequences of the lumbar spine injury suffered by the plaintiff in the second transport accident include:
(a) constant low-back pain which increases when she bends, twists, walks or stands for long periods of time;
(b) referred sharp pains down the left leg and loss of sensation of the left leg;
(c) increased pain with housework; and
(d) treatment which has included medication, physiotherapy and surgical interventions by Dr Sullivan including transforaminal epidural injection on 28 November 2018 and radiofrequency procedure on 13 April 2021.
86The consequences of the aggravation of the cervical spine injury in the second transport accident include:
(a) constant, fluctuating neck pain that never goes away, even after injections and medication;
(b) difficulty lifting her arms and turning her head;
(c) difficulty sleeping due to discomfort in bed;
(d) the pathology identified in the most recent MRI of the cervical spine showing multilevel disc bulges with radiculopathy, with the cause of symptoms identified as foraminal narrowing with impingement;[87]
(e) the recommendations in 2020 and 2022 of C5-6 and C6-7 anterior cervical decompression and fusion surgery from Professor Bittar;
(f) interventionist treatment from Dr Sullivan on 24 April 2019 (left C6-C7 nerve root injection); 13 May 2020 (cervical medial branch nerve blocks and C4 nerve root injection); 19 May 2020 (radiofrequency treatment); 6 May 2021 (radiofrequency procedure and transforaminal epidural injection) and 13 July 2022 (radiofrequency procedure).
[87] PCB 226-227
87The plaintiff was not working as at the date of the second transport accident. Her spinal injuries, independent of her left shoulder injury, rendered her totally incapable for employment.
88The TAC rely upon the report of radiologist, Dr Anthony Kam, dated 28 July 2022. Dr Kam reviewed the available radiological material from November 2014, those taken after the first transport accident, and again after the second transport accident. His findings included that:
(a) the radiological reports do not show any radiological aggravation of the pre-existing degenerative condition in the spine predating the first transport accident as a consequence of it;
(b) it is possible that the post-first transport accident left shoulder radiological findings to have been present and asymptomatic prior to it;
(c) he did not detect any radiological aggravation of the pre-existing degenerative condition in the lumbar spine or cervical spine predating the first transport accident, as a consequence of the second transport accident.
89Dr Kam qualified his opinions, however, on the basis that comparison of radiological reports rather than the actual images is suboptimal, and that actual images should be compared to allow an objective determination of radiological change.
90In any event, Dr Kam’s opinions form only part of the overall evidence in relation to the consequences which follow from the second transport accident in relation to impairment of the spine. Dr Kam has not examined the plaintiff. He did not take a history from the plaintiff, including her report of symptoms. The identification of degenerative changes is not in issue, but whether they are productive of symptoms or not depends upon the history. I prefer the evidence of her treating doctors who have the benefit of not only the radiological reports, but detailed histories over time, and clinical examination.
91The plaintiff has established that the consequences referred to above arise discretely as a consequence of the second transport accident – they are new symptoms, and the treatment referred to has been sufficiently delineated as a consequence arising from her physical injuries.
92I find that the injury to the plaintiff’s cervical and lumbar spine sustained in the second transport accident is a serious long-term impairment of the spine within the meaning of the Act and, accordingly, grant her leave to commence proceedings for common law damages in respect of that injury.
Psychiatric injury
93Despite some conflicting medical evidence about whether the plaintiff’s current psychiatric condition relates to the first or the second transport accident, to which I refer below, I find that she has suffered a psychiatric injury as a result of the second transport accident, and that the consequences of that injury are severe.
94Following the first transport accident, the plaintiff received treatment from her treating consultant psychiatrist, Dr Tipirneni, and treating psychologist, Dr Berberovic, for her ongoing anxiety. Upon review in September 2016, the plaintiff described to Dr Tipirneni that she felt agitated, was sleeping poorly and felt scared to go in her car, which she had not driven since the accident twelve months ago. She had been advised to see a clinical psychologist to help with her anxiety management, and that exposure therapy for her PTSD symptoms would be helpful.[88]
[88]PCB 61
95By the time of the second transport accident, however, she had resumed driving locally with the encouragement of her treating doctors.
96On 10 November 2020, Associate Professor Nick Paoletti, psychiatrist, recorded the following history:[89]
“… She saw a psychologist, Dr Nadja Berberovic. The psychologist helped her get back to driving, as did the psychiatrist Dr Tipirneni. The sleep, nightmares and flashbacks improved. The flashbacks were mainly in the context of being in that area. She was driving more in side streets than main roads. She started to socialise a bit more. She started to believe more in herself and her life.”
[89]PCB 261
97The most recent report from a medico-legal consultant psychiatrist, Dr Diane Neill, concluded that by March 2018, the plaintiff’s psychiatric condition was improving, and that further recovery was likely to have ensued had the second transport accident not occurred.[90]
[90]Report to the defendant’s solicitors dated 12 July 2022, PCB 330, 355
98In Dr Neill’s opinion:
“… recovery from the MVA 2018 has been slowed by the improved but not resolved psychiatric condition arising from the MVA 2015 and by psychological factors. The plaintiff has an emotive impressionistic somewhat labile communication / cognitive style and those factors along with dependency and lack of adaptability in my opinion contribute to entrenched illness behaviour and pain augmentation.”[91]
[91]PCB 355
99Further, Dr Neill expressed the view that all of the current treatment and condition was related to the transport accidents. Her opinion was that the plaintiff suffered aggravation of a Major Depressive Disorder with anxious distress, materially contributed to by the second transport accident. She may also have suffered PTSD as a result of the second transport accident, and otherwise suffered traumatic stress symptoms. Dr Neill stated that 20 per cent of the plaintiff’s current condition and incapacity is related to the first transport accident, while 80 per cent is related to the second transport accident.[92]
[92]PCB 354, 356
100I note the TAC’s submission that the oral history given to Dr Neill by the plaintiff that “her only entertainment is television” should be rejected. I note that Dr Neill’s report also records a detailed history of other activities such as attending church, spending time in Queensland over winter, and regular walks around the neighbourhood. Dr Neill is a very experienced medico-legal psychiatrist, and had available to her at the time of expressing her opinion, a very significant body of other evidence including the plaintiff’s serious injury affidavit and clinical records, together with treating doctors’ reports, all of which provide an overall picture of the plaintiff’s level of capacity over time, including various holidays. I do not consider this qualified history in relation to “entertainment” affects the weight I attribute overall to Dr Neill’s opinion as to the level of the plaintiff’s incapacity.
101I accept Dr Tipirneni’s opinion that since the second transport accident, the plaintiff’s psychiatric state has deteriorated. He diagnoses her with severe anxiety, panic attacks and PTSD, with a poor prognosis.[93] As the plaintiff’s treating psychiatrist both before and after the second transport accident, Dr Tipirneni’s opinion is most helpful in determining this part of the application.
[93]PCB 76
102I regard the evidence of a trip to Fiji in February 2019, and travelling to spend time with her husband’s cousin in Brisbane during the winter of the same year, as largely irrelevant in determining the question of the plaintiff’s incapacity as at the date of the application, and reject the submission that the totality of the evidence on Facebook is inconsistent with a severe psychiatric or behavioural disturbance.
103The consequences of the psychiatric injury include:
(a) Pristiq and Avanza on a daily basis;
(b) ongoing treatment with both a psychiatrist and psychologist;
(c) feeling miserable, worthless, useless, irritable and avoiding seeing people as much as possible;
(d) deterioration in memory;
(e) suicidal thoughts; and
(f) an inability to drive.
104I find that the consequences to the plaintiff of her psychiatric injury in the second transport accident satisfy the narrative test for serious injury, and grant her leave to commence proceedings for common law damages pursuant to the Act.
Conclusion
105I grant the plaintiff’s applications for leave to commence proceedings for common law damages in respect of:
(a) her left shoulder injury sustained in the first transport accident on 15 January 2015;
(b) her injury to the spine and the psychiatric injury sustained in the second transport accident on 1 April 2018.
106I will hear the parties as to the form of orders and costs.
- - -
0
15
0