Skocajic v Transport Accident Commission
[2013] VCC 632
•6 June 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-03790
| MILIJANA SKOCAJIC | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 and 14 May 2013 | |
DATE OF JUDGMENT: | 6 June 2013 | |
CASE MAY BE CITED AS: | Skocajic v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 632 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Damages – serious injury – injury to the spine, principally the neck – range case
Legislation: Transport Accident Act 1986, s93(4)(d), s93(6), s93(17)(a)
Cases cited: Humphries & Anor v Poljak [1992] 2 VR 129; Richards v Wylie (2000) 1 VR 79; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702; Petkovski v Galletti [1994] 1 VR 436; Barlow v Hollis (2000) 30 MVR 441; Guppy v Victorian WorkCover Authority [2010] VSCA 164; De Agostino v Leatch & Anor [2011] VSCA 249; Bezzina v Phi & Anor [2012] VSCA 161
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Gorton SC with Ms A Ryan | Zaparas Lawyers |
| For the Defendant | Mr R Stanley QC with Ms R Kaye | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by the plaintiff 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 which occurred on 3 July 2008 (“the transport accident”).
2 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The plaintiff brings this application pursuant to paragraph (a) of the definition of “serious injury” to be found in s93(17) of the Act. There –
“serious injury means−
(a)serious long-term impairment or loss of a body function.”
4 The loss of body function relied upon in this application is the cervical spine.
5 The plaintiff seeks leave to issue proceedings at common law.
6 The plaintiff relied upon three affidavits sworn by her on 1 November 2010, 28 June 2012 and 8 May 2013. The plaintiff was cross-examined. I have not summarised the plaintiff’s affidavits or her evidence. However, I will refer to the plaintiff’s relevant evidence in my reasoning. In addition, both parties relied on medical and vocational reports and other material which was tendered in evidence. I have read all the tendered material.
The Issues
7 Counsel for the defendant said this was a “range” case. The consequences do not satisfy the test of “serious injury”; that is, the consequences to this plaintiff, when judged by comparison with other cases in the range of possible impairments or losses, cannot be fairly described at least as “very considerable” and certainly not more than “significant” or “marked”.
Relevant Legal Principles
8 The Court must not give leave unless it is satisfied, on the balance of probabilities:
(a) that the injury suffered by the plaintiff was as a result of the transport accident;
(b) that the injury is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.
9 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. The requirements of the test are set out in the decision of Humphries & Anor v Poljak,[1] where the majority of the Court of Appeal said:
“We think that the task of a judge confronted with the requirement to determine an application made pursuant to sub-s.(4)(d) when reliance is placed upon sub-s(17)(a) may be stated in the following terms: he is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.”[2]
[1][1992] 2 VR 129
[2]Humphries & Anor v Poljak (supra) at [140]
10 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.[3]
[3]Richards v Wylie (2000) 1 VR 79
11 In determining the application, the Court must make the assessment of “serious injury” at the time the application is heard.[4]
[4]supra
12 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[5]
“…many disturbances are considerable, in the sense that they are important or substantial, without being very considerable … .”
[5][1998] 1 VR 702
13 The term “serious” requires the impairment and its consequences to be viewed objectively, and also judged on an external comparative basis against possible impairments not necessarily in the same category.[6]
[6](supra) at 170 and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441. In particular, Chernov JA at paragraph [29]
14 The wrongdoer must take the victim as he finds him or her; he must compensate only for the damage he has caused. Based on Petkovski v Galletti,[7] an analysis has to be made of the extent of impairment of the body function before and after the relevant injury and the additional impairment has to involve serious long-term impairment of body function.
[7](supra) and affirmed in Guppy v Victorian WorkCover Authority [2010] VSCA 164
15 Where there is an aggravation of a pre-existing impairment, the claimant must not only show that the aggravation injury is, in its consequences, a serious injury, but also that the aggravation injury is the result of the relevant accident.[8]
[8]De Agostino v Leatch & Anor [2011] VSCA 249 at paragraph [60]. See also Bezzina v Phi & Anor [2012] VSCA 161 at paragraph [23]
Investigations
16 On 3 July 2008, radiology of the cervical and thoracic spine revealed:
“Moderate degenerative disc disease at C5-C6 and C6-C7 levels. Body height and intervertebral alignment are preserved. No paravertebral soft tissue swelling. Posterior elements are unremarkable. Normal atlantoaxial alignment. Foramina stenosis at C6-C7 level left side from uncovertebral osteophytes.”
17 On 24 February 2009, an x-ray of the lumbosacral spine showed:
“Mild disc space narrowing has occurred at L1/2, L4/5 and L5/S1. As well there are some degenerative changes in the lower lumbar facet joints, particularly at the L5/S1 level. The vertebral bodies are of normal height throughout.”
18 On 26 May 2009, an x-ray of the cervical spine showed:
“Lateral views of the cervical spine in extension and flexion show normal range of movement and no malalignment. There is degenerative disc space narrowing with end plate osteophytes between C5 and C7. No acute bony injury is seen.”
19 A CT scan of the cervical spine showed:
“Bone alignment is normal and no acute bony injury is present. No abnormality is seen at C2/3, C3/4 or C4/5 levels.
At C5/6 and C6/7 levels there is posterior osteophytic lipping. There is no compromise to the spinal cord. No soft disc herniation is seen.
At C6/7 there is mild left bony foraminal narrowing, without nerve root compression.
At C7/T1 there is mild disc space narrowing and minimal osteophytic lipping. The central canal and foramina are adequate.
Paraspinal soft tissues are normal.”
20 On 11 June 2010, an MRI scan of the cervical spine concluded:
“Small postocentral disc osteophyte complexes with disc prolapses at C3/4 and C4/5 causing mild cervical canal stenosis.
Moderate sized narrow based posterocentral C5/6 disc prolapse indenting the theca, slightly flattening the cord and causing mild to moderate cervical canal stenosis. Mild right C5/6 foraminal encroachment.
Moderate acquired cervical canal stenosis at C6/7 and associated moderate left C6/7 foraminal encroachment and C7 nerve root compromise.”
21 On 9 March 2012, an MRI scan of the lumbar spine showed:
“Mild multilevel degenerative disc disease. A disc bulge at L1/2 produces mild indentation of the anterior aspect of the theca. AT L5/S1, a disc bulge/osteophyte complex contacts the traversing S1 nerve roots in the lateral recesses without evidence of significant posterior displacement of the nerve roots. End plate osteophytes and facet joint hypertrophy produce mild intrusion into the neuroforamina bilaterally at this interspace without evidence of compression of the exiting L5 nerve roots.”
The Plaintiff’s medical evidence
Dr John Russo
22 Dr Russo, general practitioner, treated the plaintiff for injuries she suffered as a result of a transport accident, from 10 July 2008 until 5 November 2009. He confirmed that the plaintiff suffered soft-tissue neck pain. He diagnosed anxiety and pain, ongoing chronic pain around the neck, shoulders and thoracic chest areas. He attempted to get the plaintiff to return to work. By mid 2009, after initial part-time work, the plaintiff attempted to work four shifts per week with medication for pain, counselling and assistance with sleep. By September 2009, the plaintiff was not managing the ongoing pain so shifts were reduced. The plaintiff was referred to a pain management specialist in October 2009. The plaintiff was complaining of deterioration in pain, anxiety and insomnia. Shifts were changed to eight hours per day, two days per week.
Professor Peter Teddy
23 Professor Teddy, neurosurgeon, treated the plaintiff in May and September 2009. He obtained a history that from July 2008, the plaintiff complained of variable neck and bilateral shoulder pain, more on the right than the left. In May 2009, he was aware that the plaintiff was working four days per week, eight hours per day, but was struggling. He diagnosed neck pain relating to disc degeneration and facet arthropathy. He said the plaintiff had marked degenerative changes in the cervical spine and it is likely that she will be subjected to periodic neck pain for the foreseeable future. He said the plaintiff gave no history of previous neck injury or neck related symptoms and it was his view that longstanding degenerative changes were rendered symptomatic at the time of the accident. He thought the plaintiff was incapacitated for employment. He thought her injury had stabilised. He said her degree of disability is a reflection of the relative immobility of her neck. He said she would have difficulty working, for instance, with her neck extended and arms raised above her head for any length of time or from spending long hours at a computer in an ergonomically disadvantaged position.
Dr Peter Andrianakis
24 On 31 July 2012, Dr Andrianakis, general practitioner, confirmed that he had treated the plaintiff since October 2009 for the management of injuries she sustained in a transport accident in July 2008. He referred her to Dr Clayton Thomas, pain management specialist, and to Mr Brian Barrett. He said the plaintiff suffered a significant whiplash injury as a result of the transport accident, which aggravated previously stable degenerative changes in the neck and lower back. As a consequence, the plaintiff now suffers recurrent neck pain and stiffness, with headaches and pain into her shoulders. He said she also suffers from lower back pain and stiffness and that both injuries have compromised her work ability. He said she is unable to work more than four hours on light modified duties.
Dr Clayton Thomas
25 Dr Thomas, pain management physician, saw the plaintiff on referral from her general practitioner in November 2009. The plaintiff described the neck pain as “a deep aching and extreme cold, a cramping, numbness and persistent”. She also reported some pain in her elbows, interscapular region and lower back. The pain, at worst, was eight out of ten and, at best, was four out of ten. At the time of the accident, she was working full-time. She was back at work, working two days per week. She reported the work involved being on her feet and, after four to five hours, her pain generally worsened, but she was managing a full day. On examination, the cervical spine was tender and she had neck movements which were mildly limited only.
26 It was Dr Thomas’s view that the plaintiff was suffering from symptomatic spondylosis to her cervical spine, which was consistent with the stated cause. He said the prognosis was for persistent pain and associated disability. He accepted that her partial inability to work was caused by the transport accident. He recommended she undergo a pain management program.
Mr Brian Barrett
27 Mr Barrett, orthopaedic surgeon, treated the plaintiff at the request of her general practitioner. Mr Barrett said that pre-existing lower cervical degenerative changes and similar changes at the L5-S1 lumbar level were made symptomatic by the transport accident. Her prognosis was poor. Further, the onset of symptoms, their now rather chronic condition and the limited capability of returning to work and housework is consistent with the transport accident on 3 July 2008. He considered the plaintiff was incapacitated for her usual employment as a result of the transport accident. He described her disability as “quite profound”. He thought her condition had stabilised and expected that the incapacity she suffers will continue into the future as disc injuries have no capacity to heal or repair.
Mr George Tsironis
28 Mr Tsironis, psychologist, saw the plaintiff at the request of her general practitioner and provided two reports dated 11 April 2011 and 30 March 2013. Mr Tsironis diagnosed Depression, Adjustment Disorder/Panic and Anxiety and Post-Traumatic Stress Disorder. He said the plaintiff’s psychological condition had stabilised, but it does not take much for her to regress as she remains mentally fragile. He said the transport accident was a significant contributing factor for her employment incapacity, which would continue.
Dr Bruce Mitchell
29 Dr Mitchell, pain management specialist, saw the plaintiff on referral from her general practitioner in July 2012. He said her worst area of pain was the neck pain, which he described as a mixed somatic and neuropathic pain. He said there was some weakness of her C7-8 nerve roots but no reflex changes, and there was no evidence of hyperalgesia. He said her pain areas were consistent with having been injured in the transport accident. He diagnosed a mixture of neuropathic and somatic pain in the plaintiff’s neck and low back. He recommended the plaintiff undergo diagnostic blocks and appropriate treatment, which the plaintiff was reluctant to do.
Dr Paul Kornan
30 Dr Kornan, psychiatrist, saw the plaintiff at the request of her solicitors in March 2010, January 2012 and March 2013. In March 2013, he diagnosed:
· A Post-Traumatic Stress Disorder of mild severity.
· An Adjustment Disorder with Anxiety and Depression.
· Specific phobia; fear of a further car accident.
31 It was Dr Kornan’s view that it was primarily the plaintiff’s pain which prevented her from working, but that her psychiatric state added to her physical incapacity. He said her prognosis was not favourable and he expected that she would remain incapacitated into the foreseeable future. He said her disability was related to the transport accident and that her psychiatric ill health condition had stabilised.
Mr Charles Flanc
32 Mr Flanc, vascular and general surgeon, saw the plaintiff at the request of her solicitors in April 2010, March 2012 and January 2013. Mr Flanc said the transport accident had resulted in a significant aggravation of a pre-existing disc degeneration of the cervical spine which became and remains symptomatic. He believed her condition had stabilised and thought it likely that the pain in her neck and lower back would persist, although the severity of her pain may fluctuate. He doubted whether the plaintiff had any realistic work capacity in the open market considering her physical condition alone.
Professor Richard Bittar
33 Professor Bittar, neurosurgeon, examined the plaintiff at the request of her solicitors in July 2010, May 2012 and April 2013. He diagnosed an aggravation of cervical spondylosis with resulting neck pain, which he said was directly related to the transport accident. In respect to work capacity, he said the plaintiff had the physical capacity to work three or four hours per day, three or four days per week on sedentary duties. However, taking into account the nature and severity of her cervical and lumbar spine conditions, he did not think she would be able to work in such roles in a reasonable, reliable and consistent fashion. Furthermore, taking into account her age, education, training and skills, as well as her limited English, he thought her ability to procure and maintain suitable employment would be extremely limited. He thought it unlikely that any further treatment such as review by a pain specialist and posterior column injection in the form of medial branch blocks, would have a material effect on her long-term work capacity. He said her long-term prognosis was poor and that she is likely to suffer from ongoing pain and disability into the foreseeable future.
Other Documents
Correspondence from the Royal Children’s Hospital
34 In November 2010, the Manager, Support Services, of the Royal Children’s Hospital, wrote to the plaintiff informing her that, despite receiving a medical certificate dated 26 October 2010 from her general practitioner, who requested she be provided with four hours of work twice a week with light duties, the Hospital was unable to accommodate the doctor’s recommendations regarding modifications to her work.
35 In March 2011, the Acting Executive Director, People and Culture, of the Hospital, informed the plaintiff that, as a result of her attending an independent medical assessment for the purpose of determining her medical fitness to perform her job requirements, the subsequent report advised that the injuries she suffered in the transport accident had resulted in an inability to perform her role as required. She was advised that the Hospital did not have an alternative position for her, and terminated her employment.
The Royal Melbourne Hospital
36 Following the transport accident, the plaintiff was taken to The Royal Melbourne Hospital, where she remained overnight. She complained of neck tenderness. The drug summary confirmed that the plaintiff was prescribed morphine and Panadeine Forte.
The Defendant’s Medical Evidence
Dr Bruce Hocking
37 Dr Hocking, specialist in occupational medicine, examined the plaintiff in May 2010 at the request of the defendant. He diagnosed a soft-tissue injury of the neck with associated degenerative osteoarthritis of the cervical spine. He said her injuries were consistent with the transport accident. He suggested that the plaintiff’s general practitioner should monitor her progress and, as she improves, increase her work to three days per week. He thought the plaintiff was not yet fit to return to full-time work due to ongoing neck and back pain.
Mr Michael Shannon
38 Mr Shannon, orthopaedic surgeon, examined the plaintiff at the request of the defendant in April 2012. He provided supplementary reports in July 2012 and February 2013.
39 In April 2012, the plaintiff reported that she could walk up to 15 minutes but that it produced increased back pain. Mr Shannon said, on examination, the plaintiff had significant restriction of all cervical movements to formal examination. However, on observation and in conversation, she demonstrated full free rotation to the right and full free lateral flexion to the left.
40 Mr Shannon diagnosed a soft-tissue injury to the cervical spine with aggravation of pre-existing cervical disc degeneration. He said the plaintiff had subsequent development of low-back pain associated with lumbosacral disc degeneration. He noted that she had a normal range of apparently pain-free movement of her neck in virtually all directions. He said that the physical injury sustained in the accident was a soft-tissue injury in the region of her shoulder girdles and possibly her neck, but he doubted that there was a significant physical injury to the back. He said her injuries would appear to have settled to a satisfactory level but nevertheless her work may well have been moderately physical and the underlying degenerative change would certainly make it difficult for her to continue working in physical work.
41 In a supplementary report dated 5 July 2012, he was asked to comment on the plaintiff’s work capacity. He accepted that she had some ongoing symptoms in her neck and back and did not think she was ideally suited to work as a personal services assistant. He thought she was capable of work which does not require prolonged or repetitive bending or heavy lifting and she should avoid involving strenuous, repetitive use of her arms or overhead activity. He said the first restriction related to her underlying back condition and the second restriction related to her neck condition.
42 He thought she was capable of light process work or office type work but said a vocational assessment should be obtained to establish her specific skills. In his final report, Mr Shannon said he did not believe the plaintiff had sustained a specific physical injury to the low back in the accident.
Mr Michael J Dooley
43 In February 2013, Mr Dooley, orthopaedic surgeon, examined the plaintiff at the request of the defendant. He diagnosed a soft-tissue injury to the cervical spine region and a possible soft-tissue injury to the lumbar spine region. He said the mechanism of the transport accident would be consistent with the plaintiff sustaining a soft-tissue injury to the cervical spine. He said the injury would have involved some musculoligamentous damage and some aggravation of naturally occurring degenerative disc disease. He thought the plaintiff’s ongoing pain and her described disability were greater than one would expect to see for her condition. He thought much of her ongoing symptomatology related to her psychological condition. He accepted that she would note difficulty with carrying out her regular heavy physical work and with work that involved activity at and above shoulder level. He thought, from an orthopaedic viewpoint, the plaintiff had the physical capacity to carry out a range of light physical work and clerical duties, such as customer service officer, enquiry clerk and sandwich hand. He accepted that her soft-tissue spinal injury would mean that she had difficulty with heavy household chores.
Credit
44 The plaintiff gave her evidence through an interpreter. She was keen for the Court to understand the nature and extent of her injuries. On occasions she volunteered information rather than answering questions. She became agitated at times and clearly found the process of giving evidence difficult. The plaintiff was co-operative with all doctors whom she saw. She made concessions.
45 I accept that the plaintiff was a witness of truth.
Surveillance
46 The plaintiff had been under surveillance for extensive periods. I was shown three videos. The first video was taken on 5 June 2012. The plaintiff had been under surveillance on 2 June 2012 for six hours, 4 June 2012 for seven hours and 5 June 2012 for seven hours. The plaintiff was not sighted on 2 and 4 June 2012.
47 On 5 June 2012, the plaintiff was shown walking, driving a motor vehicle and shopping. There were some aspects of the video consistent with pain. At 11.15.30, the plaintiff had her hand on her back as she left the store. At 11.34.11, she sat on a bench outside the supermarket to rest. At 11.35.15, she put her hand to her neck. The plaintiff had given evidence that the coldness often relieves the neck. At 11.43.28, her face looked tired and exhausted. The plaintiff said that she could not lift a 10-kilogram bag of flour and it was observed that a staff member helped her with the bag of flour and placed it in the trolley. She was asked how she got the bag of flour from the trolley into the car. She said she turned the trolley towards the boot and pushed it in. I concluded that there was nothing on the first video that was inconsistent with the plaintiff’s evidence. I accept the explanation she gave to the Court.
48 The second video was of the plaintiff on 17 July 2012. The plaintiff had been under surveillance on 9 July 2012 for three hours, 12 July 2012 for six-and-a-half hours, and on 16 July 2012, for five-and-a-half hours, when she was not sighted. On 17 July 2012, the plaintiff was under surveillance for four hours and forty minutes and the video showed was of 18 minutes and 42 seconds. The second video showed the plaintiff walking around her local neighbourhood in a slow and deliberate manner. The plaintiff was observed to move her head from side to side and swing her arms.
49 The final video shown was of 18 minutes and 24 seconds on 28 February 2013 when the plaintiff attended an appointment with Mr Dooley. The plaintiff had been under surveillance on 28 February 2013 for eight hours, on 1 March for six hours and 45 minutes, 2 March 2013 for six hours and 5 March 2013 for four hours and five minutes. The plaintiff was only sighted on 28 February 2013. The plaintiff was shown getting out of a car at Mr Dooley’s East Melbourne rooms and then upon completion of her appointment, the plaintiff was shown walking along Victoria Parade to Elizabeth Street, Melbourne, where she was observed to board a tram bound for Airport West. The video at 9.35.22 showed the plaintiff put her hands to her neck briefly. The video did not show that the plaintiff had a 15-minute break when she entered a café and sat down. At 10.10.59, the plaintiff was shown stopped at the lights stretching her neck. At 10.14.33, she was shown with her hand on her back. Counsel for the plaintiff said there are explained gaps in the video. Counsel’s submission was that it was difficult for me to find that the plaintiff’s credit was undermined when all periods were not included. Counsel accepted that the plaintiff presented with a decent range of movement.
50 I accept that the video did show the plaintiff engaged in moderately light activities. However, the video did not show her performing any activity that was inconsistent with her evidence. Accordingly, I accept that the video did not assist the defendant’s case.
Analysis of the evidence
51 It was not in issue that the plaintiff suffered injury to her cervical spine as a result of the transport accident. What was in issue was whether the impairment or loss of body function to the neck was “serious”.
52 Counsel for the defendant submitted that the consequences which relate to pain and suffering and loss of earning capacity do not meet the test of “serious” because, when judged by comparison with other cases in the range of possible impairments or losses, the plaintiff’s consequences could not be fairly described as “at least very considerable” and certainly not more than “significant” or “marked”.
53 The plaintiff’s diagnosis was not in dispute. It was variously described as an aggravation of a pre-existing degenerative cervical spine which became and remains symptomatic as a result of the transport accident. It was accepted that the plaintiff had degenerative changes in the neck but there is no evidence or suggestion of any pre-accident problems. The evidence is that the plaintiff was engaged in full-time physical work as a nurses’ aide and had worked in manual jobs since arriving in Australia in 1993. Her work at the Royal Children’s Hospital involved preparing food, cleaning rooms, transporting patients and running messages. There was no evidence of the plaintiff having problems with her neck prior to the transport accident.
54 Counsel for the defendant said it was necessary for me to look at the nature of the injury from the very beginning when considering the consequences. I do not accept that submission. In assessing the consequences, I must consider the plaintiff’s consequences at the time of the application.[9]
[9] Richards v Wylie (supra)
55 At the time of the accident, the plaintiff was taken to The Royal Melbourne Hospital, where she was kept overnight. Six days later, she attended her general practitioner complaining of neck pain and upper thoracic pain, associated anxiety and soft-tissue injury to the head and right shoulder. On 13 July 2008, the plaintiff completed a Transport Accident Commission Claim Form listing her injuries as head injury, shoulder injury, neck injury, chest pain, mental trauma.
56 The plaintiff’s evidence was that following the transport accident, she was off work for approximately six weeks. On 18 August 2008, she returned to work on light duties, eight hours per day, two days per week, which increased to four days per week in January 2009. On 30 September 2008, she reduced her hours to eight hours per day, two days per week for two weeks, then reduced her hours further to four hours per day, three days per week. In late 2009, the plaintiff was told she had to work eight-hour shifts, performing normal duties. The plaintiff was only able to do this two days per week; she was in pain and having difficulties coping. In June 2010, she was told that there was no further work for her. In March 2011, the plaintiff was informed that the Hospital had no alternative position for her and her employment was terminated.
57 All doctors expressed a view as to the plaintiff’s capacity for employment. The plaintiff’s treaters, Dr Russo, Professor Teddy and Mr Barrett, were of the view that the plaintiff was incapacitated from employment. Professor Teddy said it would be difficult for the plaintiff to work with her neck extended and arms raised above her head for any length of time or from spending long hours at a computer. The more up-to-date view was expressed by Mr Flanc, Professor Bittar and Dr Andrianakis. Dr Andrianakis, general practitioner, said the plaintiff was unable to work more than four hours on light modified duties. Mr Flanc said the plaintiff had no realistic work capacity in the open market when one considers her physical condition alone. Professor Bittar said the plaintiff had a physical capacity of three to four hours a day, three to four days a week. However, it was unlikely she could work in a reasonably reliable and consistent fashion. Furthermore, given her age, education, training and skills, her limited English, he thought her ability to procure and maintain suitable employment would be extremely limited.
58 In March 2011, Dr Andrea Jane, occupational physician, engaged by the Royal Children’s Hospital, thought the plaintiff had a capacity for part-time work of 20 hours a week if she were able to do shorter shifts of four to six hours. This was on the basis of restrictions which she imposed. In June 2012, IPAR, a vocational provider, reported that the plaintiff would be unlikely to return to work. Mr Shannon said the plaintiff’s restriction on examination was greater that that observed during the consultation; however, he agreed she could not work as a personal services assistant. He said she did have capacity for work which does not involve strenuous repetitive use of her arms or overhead activity. Mr Dooley said the plaintiff’s pain and disability was greater than would be expected for her injury. He said she could perform light physical work and clerical duties. He suggested positions such as customer service officer, enquiry clerk and sandwich hand. Given the plaintiff’s limited English, I think it unlikely she would obtain employment as a customer service officer and enquiry clerk.
59 The plaintiff is aged fifty-two. Since arriving in Australia in 1993, she has been in employment mainly of a manual nature, as a process worker and packer. The plaintiff’s evidence was that she loved her job at the Royal Children’s Hospital, she found it rewarding and she would very much like to return to her employment. I gained the impression that the plaintiff was genuine in the view she expressed of her employment. I accept that the limitations imposed upon her are such that realistically, given her age, previous work experience and poor English skills, it is unlikely that she would obtain employment. I accept that this is as a result of the neck injury she suffered in the transport accident.
60 In addition, the plaintiff reported to doctors whom she saw that she has constant neck pain which varies in character. Her neck pain is exacerbated by neck movements. It improves with rest and analgesia. She was prescribed medication by her general practitioner for the neck pain but developed stomach upset. Subsequently, she took Panamax for six months but found that this did not control her neck pain. She now takes Tramal and had increased her dosage to 100 milligrams, slow release. She takes Tramal when her neck pain is worse. Otherwise, she takes two to four Panamax a day. She takes Cipramil for her nerves and Nexium for her stomach. She said that she has attempted to find work but without success. Her general practitioner provided her with a certificate stating she could work four hours two days a week.
61 Her social life remains diminished. She restricts herself to Serbian functions and usually takes medication before attending those functions. She rarely dances for more than fifteen minutes at the functions. Prior to the transport accident, her social life was more active and she would dance all night. She used to garden. She had several flowerbeds with annuals, roses and shrubs. She would dig the beds, plant, weed and prune the roses and shrubs. Her husband does all the heavy work in the garden now and she is limited to watering and lighter gardening activities. Her sleep is affected, which she has reported to the medical witnesses she has seen.
62 Counsel for the defendant submitted that the plaintiff is still able to travel and has a normal lifestyle for a housewife and mother. I accept that she has travelled overseas and had a holiday at the Gold Coast. Her evidence was that she found the overseas flight difficult, but she felt it was her last opportunity to see her elderly father. The photographs taken of the plaintiff on her holidays do not show her doing anything inconsistent with her injury and restrictions.
63 I accept that the plaintiff has suffered the abovementioned consequences. Those consequences are in large part supported by the medical evidence. I accept that to lose one’s ability to work is a very significant consequence, particularly given the plaintiff’s work history and the enjoyment she derived from her work.
64 In addition, the plaintiff described consequences of anxiety, depression, and difficulty with sleeping. She requires treatment and medication. Most of the doctors accepted that her psychiatric consequences were stable and unlikely to improve. I accept that those are consequences that I can take into consideration in accordance with Richards v Wylie.[10]
[10]Supra
65 I am satisfied that the plaintiff was involved in a transport accident which, to this plaintiff, resulted in her experiencing symptoms of a physical nature. The consequences of her neck injury to her are dramatic and impact upon her life as she knew before the accident. She has suffered for five years and the medical evidence is guarded as to the future. I accept that the plaintiff’s neck injury is long term.
66 I accept that the neck injury has consequences to the plaintiff, when judged by comparison with the other cases in the range of possible impairments, that may be fairly described at the date of hearing as being “at least very considerable” and more than “significant” or “marked”.
67 For the foregoing reasons, I am satisfied that the plaintiff has established that the consequences to her of her impairment can be reasonably be described as being “serious”. In my experience, the consequences to the plaintiff measure up well against other serious injury applications where plaintiffs have been successful.
68 Accordingly, I propose to grant leave to the plaintiff to bring proceedings to recover damages for the injuries suffered in the transport accident on 3 July 2013.
69 I will hear the parties on costs.
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