Smith v Transport Accident Commission
[2023] VCC 1531
•31 August 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-22-02471
| WENDY ANN SMITH | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 and 7 June 2023 | |
DATE OF JUDGMENT: | 31 August 2023 | |
CASE MAY BE CITED AS: | Smith v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1531 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – whether injury is caused by transport accident – previous transport accident – previous injuries – subsequent injury – credit of plaintiff – whether consequences of transport accident “serious” – relevant principles
Legislation Cited: Transport Accident Act 1986, s93(4)
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Demmler v Transport Accident Commission [2018] VSCA 284; Abbas v Transport Accident Commission [2015] VSCA 217; State of Victoria v Glover [1998] VSCA 93; Petkovski v Galletti [1994] 1 VR 436; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Saunders with Ms G Angelowitsch | Arnold Dallas McPherson |
| For the Defendant | Mr C W R Harrison KC with Ms A Bannon | Russell Kennedy |
HER HONOUR:
1This is an application for leave to bring proceedings for damages pursuant to s93(4) of the Transport Accident Act 1986 (“the Act”) for injury suffered by the plaintiff in a transport accident which occurred on 16 July 2018 (“the transport accident”).
Relevant legal principles
2Section 93(6) of the Act provides that a court must not give leave under ss(4)(d) unless it is satisfied that the injury is a “serious injury”.
3The definition of “serious injury” as set out in s93(17) of the Act is, relevantly to this case, as follows:
“Serious injury means—
(a) serious long-term impairment or loss of a body function … .”
4The plaintiff’s case is that, by reason of the transport accident, she suffered injury to her cervical spine.
5In forming a judgment as to whether the consequences of an injury are “serious”, the question to be asked is: “can the 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’?”.[1] It has been held that the relevant consequences to a plaintiff will relate to pecuniary disadvantage and/or pain and suffering.[2]
[1] Humphries and Anor v Poljak [1992] 2 VR 129 at 140
[2]Humphries and Anor v Poljak (ibid); see also Demmler v Transport Accident Commission [2018] VSCA 284 at paragraphs [52] and [56]-[57]; Abbas v Transport Accident Commission [2015] VSCA 217 at paragraphs [36]-[39]; State of Victoria v Glover [1998] VSCA 93 at paragraph [30]
6In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of a “serious injury”, as set out in s93(17), the relevant injury must also be long term.
7The plaintiff bears the burden of proof on the application. The standard of proof is on the balance of probabilities.
8The Court must assess whether the injury is “serious” for the purposes of the Act, as at the time the application is heard.[3] In assessing the “consequences” of the injury, the Court is required to consider the consequences to this particular plaintiff, viewed objectively, arising from the transport accident.[4] It has been held that the task of assessing the pain and suffering consequences of an injury is largely a question of impression and value judgement.[5]
[3]See s93(6) of the Act, which states that leave must not be given by a court unless the court “is satisfied that the injury is a serious injury”. I take that expression to mean that the injury is “at the time at which the application is heard,” a serious injury for the purposes of the Act
[4]Petkovski v Galletti [1994] 436 (“Petkovski”) at 442; Demmler v Transport Accident Commission (supra) at paragraph [52]
[5]Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
9In determining the application, the Court must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[6]
[6]See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1 at paragraphs [23]-[26]
10It is well understood that a person who is injured is to be compensated only for such injuries as are proven to have resulted from the relevant accident.[7]
[7] Petkovski (supra)
11Applying the principles set out in Petkovski v Galletti,[8] in an application like this, where it is alleged that the plaintiff may have had a relevant pre-existing condition, it is the consequences of the aggravation of that injury or the consequences of the additional injury, which must be assessed. To undertake this task, the plaintiff must establish what injury was caused by the accident. I must then determine the consequences of that injury to the plaintiff, by comparing the plaintiff’s condition before and after that injury.[9] If I am satisfied that the additional impairment is “serious” and long term, then the plaintiff will have demonstrated that she is suffering from a “serious injury” under the Act.[10]
[8] at 443
[9] Petkovski at 444
[10] Petkovski
12The plaintiff relied upon three affidavits, gave viva voce evidence and was cross-examined. She also relied upon an affidavit of her husband, Mr Andrew Smith, sworn on 9 May 2023. Mr Smith was not required to attend for cross-examination.
13In addition, both parties relied upon medical reports and other materials which were contained within Court Books filed before the hearing.[11]
[11]The Further Amended Plaintiff’s Court Book was marked as exhibit (“Ex”) P1. The Defendant’s Court Book was marked as Ex D1.
14I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered materials.
Background
15The plaintiff is presently sixty-eight years old.[12]
[12]Ex P1, page 5
16She is married and lives with her husband, who is retired.[13]
[13]Ex P1, page 5
17She completed Year 10 and went into secretarial work. After this, she commenced performing administrative-type work, except for about six months that she had off when she gave birth to her daughter in 1981.[14] She and her husband ran a carpet cleaning business together, which they sold in 2010. She then returned to administrative-type jobs.[15] She had a short time working at a nursery propagating seeds.[16] In 2018, a friend told her about a job that was opening up at her workplace. The plaintiff applied and was successful in obtaining this position.[17] She continued to work in this capacity until December 2022, when she stopped work as a result of the effects of the injuries she suffered in the transport accident.[18] Prior to ceasing work, she worked about thirty hours per week.[19]
[14]Ex P1, page 5
[15] Ex P1, page 84
[16] Ex P1, page 84
[17] Ex P1, page 84
[18]Ex P1, page 13
[19]Ex P1, page 5
The accident
18The plaintiff described the transport accident in the following way:
“On 16 July 2018 I was injured in a car accident. I was struck from behind in Canterbury Road, Ringwood. The ambulance attended but I decided to go home rather than go to hospital. I had pain in my neck, right shoulder and right knee.
I went to my GP the next day and had two days off work. I had some physiotherapy but this made my symptoms worse. I continued suffering neck pain, radiating into my right shoulder. I also developed numbness in both hands and had ongoing right knee pain. In February 2019 I was referred to a Neurosurgeon who advised against surgery, but rather suggested that I attend pain management. I had an MRI scan of my cervical spine on 22 February, 2019. I understand that Mr Bittar, Neurosurgeon, has reviewed this scan and his comments are as follows:-
‘These demonstrated bilateral facet joint arthropathy at C3/4, C4/5, C5/6 and C6/7. There was left-sided foraminal narrowing at C3/4. There was a disc/osteophyte seen at C6/7 with moderate left-sided foraminal narrowing. No right sided neural compression was seen.’
I saw a pain specialist, Dr Ong, on 26 April 2019 and she referred me to the Victorian Rehabilitation Centre. My initial assessment at the Rehabilitation Centre was on 27 May and I completed an 8 week pain program in August and September. In the meantime, I had been referred to an orthopaedic surgeon, Mr Ma, for my right knee pain. That surgeon did not believe that surgery was necessary and agreed that pain management was the better approach. After completing my pain management program I was monitored by my GP.”[20]
[20]Ex P1, page 6-7
19The plaintiff deposed to the fact that, prior to transport accident, she had suffered no other relevant injuries or illnesses.[21]
[21]Ex P1, page 5
Post accident injury
20In early 2021, the plaintiff woke up with significant pain in her right hip. She had an ultrasound which revealed bursitis. She had a cortisone injection and some infrared acupuncture, to help manage the condition.[22] By March 2021, she felt a significant improvement in her right hip. Once every month or two, she experiences hip pain when she first wakes up in the morning. She usually applies Rapigel and sometimes takes Nurofen. Once or twice she has taken Panadeine Forte for the pain. Usually after some heat and movement, the hip pain eases and does not interfere with the rest of her day. Aside from one occasion where she experienced hip pain while walking, the pain in her hip does not affect her ability to walk.[23]
[22] Ex P1, page 84
[23] Ex P1, page 85
Consequences of injuries suffered in the transport accident
Experience of pain
21The plaintiff deposed to the fact that her main problem is with her neck. She has constant neck pain, which radiates into her right shoulder. She also has numbness in both hands and fingers. She never had these symptoms prior to the transport accident.[24]
[24]Ex P1, page 7
22The plaintiff experiences neck pain which is “there all the time”.[25] Prior to ceasing work, she had found her job difficult to cope with. She regularly moved her position from sitting to standing, just to get through the day while working. Her colleagues knew about the injury and accommodated her. At her work, there were regular deliveries, but she did not move anything heavy.[26]
[25]Ex P1, page 6
[26]Ex P1, page 6
23On occasion, she had to go home from work with neck pain and headaches. She had days off work due to neck pain.[27]
[27]Ex P1, page 6
24Her drive to and from work was about forty minutes each way. She found that she was sore after work and did little when she was home. That frustrated her, as she was not as active at the end of the day and needed her husband’s help to “get by”.[28]
[28]Ex P1, page 6
25Activities which exacerbate her pain include turning her neck from side to side and up and down. Furthermore, if her neck is in a fixed position for an extended period of time, the pain increases.[29]
[29]Ex P1, page 7
26Her neck pain can be exacerbated depending on what activities she is doing. She gets pain in her right shoulder, which she believes emanates from her neck. She has headaches three or four times a week. Her hand numbness is worse at night.[30]
[30]Ex P1, page 7
27Her pain varies from day to day, some days are worse than others. While her pain can be mild at rest, she suffers attacks of substantially worse pain at least three to four times per week.[31]
[31]Ex P1, page 12
28Her condition is easily aggravated if she is not careful in what she does. She tries to avoid activities which she knows will exacerbate her pain.[32]
[32]Ex P1, page 12
29She continues to suffer from some knee pain, although that condition has improved somewhat.[33]
[33]Ex P1, page 13
Sleep
30She is a poor sleeper. She wakes in pain every night. This is despite the fact that she and her husband purchased a bed that lowers and raises, to make it more comfortable for her.[34] Once awake, she then finds it difficult to get back to sleep. When she wakes, she has numbness in her fingers. As a result of her poor sleep she tends to be tired the next day.[35]
[34]Ex P1, page 7
[35]Ex p1, page 8
Medication and treatment
31Currently she is not undergoing any active treatment. She does home exercises daily.[36]
[36]Ex P1, page 7
32She recently started seeing Dr Zainab Ashraf, General Practitioner at Mount Evelyn Medical Surgery. She gave that doctor Professor Richard Bittar’s report. Professor Bittar is a Consultant Neurosurgeon. Dr Ashraf has prescribed her Panadeine Forte and sent her for an x-ray. She recently received the x-ray results and it was suggested that she undergo an MRI scan and seek treatment from an osteopath/physiotherapist. It was also suggested that she consider having a cortisone injection.[37]
[37]Ex P1, page 11
33By way of medication, she now takes Panadol Osteo (approximately four tablets per day), Panadeine Forte (most days – for breakthrough pain), Nurofen (instead of Panadeine Forte – which makes her drowsy), together with Meloxicam (an anti-inflammatory). She has previously taken three glucosamine tablets per day, two turmeric tablets a day and one celery tablet per day. She also regularly applies a heat gel to her neck and right shoulder. She uses heat packs and a heat lamp several times per week, to help with managing her pain. She previously took heavier painkillers such as Tramadol.[38]
[38]Ex P1, pages 7 and 85
Activities of daily living
34Prior to the transport accident she used to do the cooking. Now that her husband is retired, they share the cooking, in part because she finds that working in the kitchen involves a lot of neck movements which exacerbate her neck pain. Her husband does the cooking four to five days per week.[39]
[39]Ex P1, page 7
35Before the transport accident she used to do all the house cleaning. Her husband now does that because she finds that bending and twisting her head while doing the house cleaning duties exacerbates her neck symptoms. Since the transport accident, her husband now does the clothes washing as she finds that bending over to fill or empty the washing machine increases her neck pain, as does carrying a load of washing to the clothesline to be pegged out. The pegging also involves her lifting her head up, which increases her neck pain.[40]
[40]Ex P1, page 7
36She used to share the lawn mowing with her husband, but since the transport accident her husband does the lawn mowing on his own. She found that pulling the cord and leaning forward to start the mower increased her neck pain.[41]
[41]Ex P1, page 8
37She finds that watching television increases her neck pain and as a result, she has to regularly change her neck posture while undertaking this activity.[42]
[42]Ex P1, page 8
38Prior to the transport accident she used to do the shopping. Now she mostly does that with her husband. Her husband pushes the trolley and carries the heavier bags. She finds that pushing a trolley, looking from side to side and carrying the shopping, all increase her neck pain and shoulder pain.[43]
[43]Ex P1, page 8
39She tries to avoid any heavy lifting, along with sitting for extended periods of time. Walking on uneven ground is also a problem because of the need to look down. When she is undertaking this activity, she often needs to take breaks. She also finds that reading is a problem.[44]
[44]Ex P1, page 12
Loss of enjoyment of life
40She used to love gardening and looked after their garden at home. Since the transport accident she has found that the bending involved in working in the garden resulted in a lot of head movements, which in turn increases her neck pain.[45]
[45]Ex P1, page 8
41She used to enjoy horse riding. Her friends have horses and she used to go riding with them on occasion. [46] She used to ride nearly weekly.[47] She has not tried getting on a horse since the transport accident, because she knows the neck movements will increase her neck and shoulder pain.[48]
[46]Ex P1, page 8
[47] Ex P1, page 12
[48]Ex P1, page 8
42Prior to the transport accident she used to enjoy walking most weekends. She used to enjoy bushwalking, in particular walking on the Warburton Trail. She has tried walking since the transport accident, but finds that after about fifteen minutes her neck pain has increased.[49] She still walks shorter distances, for example, around the local lake. However she needs to take breaks if she is walking on uneven ground and needs to watch where she is putting her feet. That is because of the need to keep looking down.[50]
[49]Ex P1, page 8
[50]Ex P1, page 12
43She and her husband had planned in their retirement to do a lot of travelling around Australia. They have a caravan. They have tried to go on local Victorian trips on occasion but find that long drives are unenjoyable, since they need to stop regularly.[51] As a result she and her husband have not been able to realise their retirement dream of caravanning around Australia. They had planned to do the “full grey nomad”, including regularly visiting their daughter and granddaughter in Western Australia.[52] Now her neck pain means that she doesn’t enjoy the caravanning trips as much as she used to. She also doesn’t look forward to their caravanning trips any more because she knows that it will cause an increase in her neck pain.[53]
[51]Ex P1, page 8
[52]Ex P1, pages 12-13 and 85
[53] Ex P1, page 85
44She struggles to be in a car for long periods. She needs to take a break every hour or so because if she does not she “pay[s] for it later”.[54]
[54]Ex P1, page 12
45She also used to enjoy cycling with her husband from time to time before the transport accident. She has not been able to return to this activity.[55]
[55]Ex P1, page 12
Pecuniary disadvantage
46Following the transport accident she continued working and “soldiered on as best [she] could”. In the end it was too much for her, due to the difficulties she experienced with her neck pain.[56]
[56]Ex P1, pages 6 and 13
47In late 2022, she asked her employer if she could cut back her hours to three days per week. She had previously been working approximately thirty hours per week. Unfortunately this was not possible. She therefore decided to quit her job.[57]
[57]Ex P1, page 13
48But for the injuries which she suffered in the transport accident, she had intended to keep working for longer, possibly until the age of seventy years.[58]
[58]Ex P1, page 14
The Plaintiff’s evidence
49The plaintiff gave the following viva voce evidence during the hearing:
(a) Dr Ashraf has not actually offered her a cortisone injection. That was mentioned only in “passing”. The doctor just “made a reference to me maybe looking at a cortisone injection in my neck”. There has been no further discussion about that;[59]
[59]Transcript (“T”) 20-21
(b) she would not agree to have a cortisone injection “Because it’s your spine and if anything goes wrong I’m just worried – will I walk again or whatever. So it’s too invasive on you”;[60]
[60]T21, Lines (“L”) 1-5
(c) she would not agree to have any other form of invasive treatment such as an operation. That is for the same reason, “It’s your cervical spine … It’s your spine. Things can go wrong in operations or anything”;[61]
[61]T21, L2-26
(d) she recalls being able to get out of the car by herself following the transport accident;[62]
[62]T24, L25-29
(e) while she is not an expert in estimating speeds, she thought the car that hit her was travelling much faster than 30 kilometres per hour;[63]
[63]T25, L15-27
(f) she agreed that immediately following the transport accident, her right knee was a significant concern. She also agreed she was not immediately sent off for any radiology about her neck at that time;[64]
[64]T26, L3-9
(g) she agreed with the accuracy of a note made on 7 September 2018, which recorded that she had neck and right shoulder pain and that the neck pain was constant but did not radiate anywhere;[65]
[65]T26, L12-30
(h) she was taken to a note on page 32 of the Defendant’s Court Book,[66] which recorded “shoulder and knee pain settled a little bit”. It was suggested to her that given there was no note of any issue with her neck on that date, perhaps her neck had settled down at this time. She replied, “I thought I did have treatment on my neck back then too”;[67]
[66]Ex D1, page 32
[67]T29, L5-15
(i) she was taken to a note dated 23 September 2018 which did make reference to further investigations of her cervical spine. She agreed that she had seen her physiotherapist in the context of neck problems. She denied that the physiotherapist was predominantly seeing her about her knee at that time;[68]
[68]TT29-30
(j) she agreed that she did have knee problems and knee pain at this time;[69]
[69]T30, L17-24
(k) she denied that anyone had told her she may have degenerative disc disease in her neck;[70]
[70]T31, L7-18
(l) she was taken to two pages of the Plaintiff’s Court Book,[71] which clearly recorded ongoing issues with her neck pain radiating into her hand and finger numbness. It was noted that at this time, she had taken a flight to Perth to see her daughter and prematurely-born granddaughter. She agreed that she had been able to “get through” this flight;[72]
[71]Ex P1, pages 74 and 108
[72]TT 31-32
(m) she was taken to a report from Mr Rondhir Jithoo, consultant neurosurgeon, at page 20 of the Plaintiff’s Court Book.[73] Mr Jithoo recorded the fact of the motor vehicle accident and the plaintiff’s ongoing neck pain which she felt was “worse off after massage and she stopped physiotherapy”. She agreed this was correct. Mr Jithoo also recorded the fact that the plaintiff experienced soreness in the neck and a painful right shoulder. She said that her hands were numb every morning, her fingers feel fat and her legs go numb. The plaintiff said she remembered all of those symptoms. Mr Jithoo recorded that the plaintiff had a full range of movement in her cervical spine, except for rotation to the left, which was limited to 10 degrees. He said his clinical impression was that of “cervical spondylosis which has been aggravated by the accident”. The plaintiff said that no-one had explained to her that spondylosis meant age-related degeneration;[74]
[73]Ex P1, page 20
[74]TT33-34
(n) she recalled that Mr Jithoo told her that she should not have surgery to her neck as it was not warranted;[75]
[75]TT35-36
(o) she agreed that the content of Dr Olivia Ong’s report dated 27 April 2019 was accurate in relation to the symptoms from which she was then suffering;[76]
[76]TT37-38; Ex P1, page 21ff
(p) it was suggested to her that it was not until April 2019 that she had complained of headaches. She said she had started suffering from headaches “probably after the accident I started getting headaches … at the back of my head”. In respect of whether she told her treating doctors about the headaches, she said “… I probably didn’t complain to them”;[77]
[77]T38, L7-13
(q) it was put to her under cross-examination that she did not take much time off work due to her injuries. She said that she did take time off, but did not always supply certificates, as her boss was “very understanding with me”;[78]
[78]TT38-39
(r) she agreed that in July 2019, she may well have still been having trouble with her right knee;[79]
[79]TT39-40
(s) it was suggested to her that at that time, there was no mention in her medical notes of her neck problem. It was suggested to her that this is because the major source of pain at that time, was her right knee. In response to this proposition, she said “I don’t remember”;[80]
[80]T40, L10-29
(t) it was suggested to her that in November 2019, Dr Ong was only treating her for her knee pain. In response to this, the plaintiff replied “And she did see me for my neck too”;[81]
[81]T41, L10-19
(u) she was unable to remember whether as at February 2020, she was having ongoing problems with her right knee;[82]
[82]TT41-42
(v) she was unable to recall whether or not headaches were a problem for her as at March 2020;[83]
[83]TT42-43
(w) she agreed that it was possible her neck had improved in terms of range of movement, by March 2020;[84]
[84]TT43-44
(x) she could not recall what, if anything, she had told Dr Kenneth Shum in July 2020 about her neck pain;[85]
[85]TT45-46
(y) she did not take any issue with what was written in the various reports that were put to her, about the symptoms she reported at this time;[86]
[86]TT46-47
(z) she said that a reference to shoulder pain was to her neck pain, because the shoulder pain came from the neck;[87]
[87]T49, L13-17
(aa) she was taken to a report of Professor Bittar, dated 6 January 2021.[88] She agreed that Professor Bittar’s report contained an accurate account of her symptoms at that time;[89]
[88]Ex P1, page 62
[89]TT48-49
(bb) she could not recall whether or not she had significant right knee pain at the end of 2021;[90]
[90]T50, L12-14
(cc) she said that she has no knee pain now. She said it has got better each year and that the improvement was “gradual”. She said that the knee is not troubling her now;[91]
[91]T50, L25-31
(dd) she agreed it is unlikely that doctors were making up matters that they put in their medical reports;[92]
[92]T51, L10-15
(ee) she again emphasised that when she talks about pain in her shoulder, she is referring to her neck pain. She indicated, by demonstrating, that the pain in her shoulder was up toward her neck, more than down on the tip of her shoulder;[93]
[93]TT51-52
(ff) she thought that she saw Professor Bittar for her neck pain. She thought she was going to see Professor Bittar to receive treatment from him;[94]
[94]T52, L15-22
(gg) she was taken to the various recommendations made by Professor Bittar for further investigation and treatment of her. In most cases she did not know what the recommendations involved; [95]
[95]TT53-55
(hh) it was put to her that one of the things that had been recommended was medial branch blocks and that this involved an injection into the nerves relating to her paraspinal muscles. It was suggested to her that if she was told that this was a “pretty safe” procedure, she would have it. She replied “No. Not anything to do with the spine. I have got issues about things like that”. When it was put to her that she was prepared to have an injection which would cure the bursitis in her hip, she replied “I think your spine is a lot different to your hip. Your spine … no, I couldn’t do it”;[96]
[96]TT53-55
(ii) it was suggested to her that nothing was ever done about Professor Bittar’s recommendations. She said that was because she could not find a doctor who would work with the Transport Accident Commission (“TAC”). It was suggested to her that the reason she has not followed up on Professor Bittar’s recommendations, is that her neck is not much of a problem and she did not think Professor Bittar’s recommendations warranted attention. In response to this she said “No. It was because I couldn’t find a doctor to recommend me;”[97]
[97]T55, L22-28
(jj) she acknowledged that in January 2021, she was suffering from bursitis in her hip. Her hip was swollen and sore at that time and she “couldn’t walk properly”. She said that this condition came on suddenly;[98]
[98]TT56-57
(kk) she agreed that she had an ultrasound-guided injection to deal with that condition in January 2021. She said that it took a couple of months to recover from the condition;[99]
[99]T57, L7-20
(ll) she agreed that in March 2021, it was possible she may have told Dr Lum, General Practitioner, that she had “intermittent neck episodes. Occasional flare-up.” She agreed that at that time, she did have episodes of her neck pain flaring up;[100]
[100]TT59-60
(mm)she was pressed about whether or not she had told the doctor that her neck pain was only intermittent. While she acknowledged that that is what he had written, she maintained that she told him that she had “neck problems”. She added “I told him I had neck problems and it flares up a lot”. She was pressed on this point and it was again suggested to her that at this stage, she only had intermittent neck pain and that is why the doctor wrote that down. To this proposition she replied “I know what I said to him … I said to him that I have neck problems and they … do flare-up … I don’t remember ever saying I had intermittent neck problems to him.” When it was put to her that she might have said the neck pain was “not constant”, she replied “No, I don’t think so”. When it was put to her that she might have said to the doctor that the neck pain was “occasional” she replied, “I don’t think so”. When she was asked whether or not she remembered what she had said to the doctor, she replied, “Not 100 per cent but I know I wouldn’t have said ‘occasional’ or ‘intermittent’”;[101]
[101]TT60-61
(nn) she could not remember whether her right knee was still giving her trouble into May 2021;[102]
[102]T61, L30-31
(oo) she denied that as at December 2021, when she swore her first affidavit, she was still having ongoing right hip problems;[103]
[103]TT63-64
(pp) she denied that in October 2022, she had a further “flare-up” of her hip bursitis;[104]
[104]TT65-66
(qq) it was put to her that in May 2023, she had been out gardening. She agreed that she had been preparing to go out into the garden and had been “just squirting weed killer” and got it “all over” her;[105]
[105]T66, L15-23
(rr) it was suggested to her that there had been lengthy periods in the medical notes where there was no mention of her neck pain. It was suggested to her that this was because her neck had become significantly better until just a couple of months before this hearing. In response to this she replied, “I say it hasn’t been better at all”. It was put to her that if she had the pain she had recounted to Professor Bittar, being daily pain in a range of 5-8/10, she would be at her GP constantly about it, trying to get something to help. In response to this, she replied “I had the medication at home. I had the Panadeine Forte that was given to me;”[106]
[106]T67, L16-28
(ss) it was suggested to the plaintiff that in the clinical notes between October 2018 and March 2021, there was no mention of neck pain. In response to this proposition the plaintiff replied, “There was because I did speak to the doctors about it and whether they wrote it down or not I’m not sure”. It is noteworthy that Senior Counsel for the defendant did acknowledge that the plaintiff was seeing Dr Ong for her neck problems during this period;[107]
[107]T14-23
(tt) she denied that her problems with work stemmed from the long commute;[108]
[108]TT68-69
(uu) it was suggested to her that she had deliberately omitted any reference to the hip bursitis in her affidavits. In response to this she replied, “I didn’t think having bursitis was relevant”;[109]
[109]T69, L24-26
(vv) it was suggested to her that she had told a doctor, Dr Dickinson, in March 2023, that she was able to do the vacuum cleaning and the mopping. In response to this she replied, “I don’t do the vacuuming or mopping. I do a bit of dusting … I can’t do it. I have tried and I can’t do it;”[110]
[110]TT71-72
(ww) she agreed that if she now had hip problems at the same level as when she says she experienced them, then that would interfere with her ability to go shopping, horse ride, walking and gardening. When asked whether or not she currently suffers from hip pain that would impede those activities, she replied “No, I don’t”;[111]
[111]TT73-74
(xx) she agreed she told Dr Dickinson that she currently takes Panadeine Forte if the pain is very bad, but that she does not take it very often now;[112]
[112]T74, L3-7
(yy) she said that the plans for her husband and herself to travel around Australia as “grey nomads” is “on hold at the moment because if we go it would only be probably just Victoria or something”;[113]
[113]T74, L21-25
(zz)it was suggested to her that that she and her husband could still go caravanning as they had planned, but could just do it in small bites, a couple of hours driving a day. To this she replied “That's about all I could do, yes”;[114]
[114]T75, L2-9
(aaa)it was suggested to the plaintiff that this activity would still be pleasurable, in terms of doing a lap around Australia in the caravan. In response to this she replied “Yes, but if you are going around Australia, what we had planned, it wouldn’t be pleasurable. We wouldn’t stick to the main roads”. She was asked if she and her husband had planned to go “bush bashing”. To this she replied “Yes, and now we are not … It could cause a flare-up”;[115]
[115]T75, L10-21
(bbb)under re-examination, the plaintiff confirmed that when she saw the physiotherapist, she was being treated for her neck;[116]
(ccc)she said that sometimes because of her neck pain, she left work early and sometimes she was told to go home. She said that she left work early once or twice a month. This was separate to the occasions on which she was told to go home, because her boss could see she was in pain with her neck. She said that this happened a couple of times;[117]
(ddd)she once went home early because of her hip, just after she had the injection. She said that in terms of her hip pain, she thought she went back to work “a little bit early”;[118]
(eee)she was never sent home because of the pain in her knee;[119]
(fff)as part of the pain management course to which she was referred by Dr Ong, she was taught to do exercises for her neck and for her knee;[120]
(ggg)she confirmed that in her mind, the shoulder pain was to do with her neck;[121]
(hhh)she was asked again about her willingness to undergo a type of injection known as “medial branch blocks”. She confirmed that she would not be open to having that type of treatment, “Because it’s your spine … if anything goes wrong and you lose walking or whatever, I don’t want to be an invalid”;[122]
(iii)when asked under re-examination what she had told Dr Lum about her neck pain she replied, “I believe I told him that I had it regularly … Well, I do have it daily”;[123]
(jjj)under re-examination she clarified matters in relation to the speed of the car that hit her. She once again doubted that that car was only travelling at 30 kilometres per hour. She explained “My car was written off. It was like a banana”;[124]
(kkk)under re-examination she was asked to explain more about why she had said that going caravanning with her husband now, would not be as pleasurable as what they had planned. She said that this was because of “the jolting and everything when you are driving around, like I said … we weren’t planning to do main roads so that’s off the cards at the moment”. When asked what the problem would be with the jolting, she said, “Pain in the neck”.[125]
[116]TT75-76
[117]T76, L10-30
[118]T77, L8-16
[119]T77, L21
[120]T78, L8-12
[121]T78, L25-30
[122]T79, L16-25
[123]T80, L14-23
[124]T80, L26-27
[125]T81, L5-13
Evidence of other witnesses
50As referred to above, the plaintiff also relied upon an affidavit affirmed by her husband, Mr Andrew Smith, on 8 May 2023. The relevant parts of that affidavit are as follows:
(a) before the transport accident, the plaintiff enjoyed very good health and lived an active life. She especially enjoyed horse riding, which is something she has done since she was a child. She rode with friends at least monthly. She would leave early in the morning and not return until later in the day. When she returned, she would almost invariably tell him what a great day she’d had riding;[126]
(b) for as long as Mr Smith has known her, his wife has also been an avid walker. At least five days in seven, she would walk locally and on weekends, she would go bushwalking along the Warburton Trail. It was an activity that they both enjoyed very much;[127]
(c) the plaintiff otherwise had no difficulty with day-to-day activities such as cooking, which she almost always did, and cleaning which, again, she was responsible for much of. She also had no difficulty driving;[128]
(d) the plaintiff suffered an injury to her neck and her knee in the transport accident. It is obvious to Mr Smith that his wife’s neck remains a “real problem” for her. He often observes her to be in pain. She is not one to complain, however she complains to him about neck pain most days. She often asks him to massage her neck for her;[129]
(e) as a result of the pain, his wife struggles to get a good night’s sleep. Even though he is a deep sleeper, his wife wakes him from time to time. She often tells him that she has not slept well. He often observes her to be tired during the day;[130]
(f) the plaintiff suffers from some persisting right knee pain. She only complains about this infrequently;[131]
(g) as a result of her neck condition, the plaintiff has had to give up a number of things that were very important to her. She also has difficulty with various day-to-day activities. The plaintiff is now much less active than she was. She no longer goes horse riding and they have stopped going bushwalking together, although the plaintiff still tries to go for walks locally. She also does much less work in the garden;[132]
(h) the plaintiff has real difficulty cooking and cleaning. They now share those responsibilities and Mr Smith does the heavier chores as a result. They also do the shopping together;[133]
(i) the plaintiff struggled to stay at work after her injury. In the end, she told her husband that it had got too much for her. She quit her job recently;[134]
(j) the plaintiff now struggles to be in a car for long periods because of her neck. As a result, they have not been able to realise their retirement dream of caravanning around Australia, especially to Western Australia where their daughter lives. They still use their caravan, but limit themselves to shorter trips, breaking up the driving as much as possible.[135]
[126]Ex P1, page 17
[127]Ex P1, page 17
[128]Ex P1, page 17
[129]Ex P1, page 18
[130]Ex P1, page 18
[131]Ex P1, page 18
[132]Ex P1, page 18
[133]Ex P1, page 18
[134]Ex P1, page 18
[135]Ex P1, pages 18-19
The medical evidence
51It was not seriously disputed that the plaintiff suffered an injury to her cervical spine in the transport accident. The plaintiff relied on, amongst other experts, reports from Mr Rondhir Jithoo, Dr Olivia Ong, Specialist Pain Physician, Professor Richard Bittar, and Dr David Kennedy, Sports and Industrial Physician.
52The plaintiff’s medical experts each accepted that as a result of the transport accident, the plaintiff presently suffers from persisting cervical neck pain. Two of the plaintiff’s medical experts thought that this condition was probably of myofascial origin,[136] and two medical experts described this as an “aggravation of a pre-existing cervical spondylosis”.[137] I note that one of the reports provided by Associate Professor Bittar (who accepted that the transport accident had caused an aggravation of the plaintiff’s pre-existing cervical spondylosis), was a joint medical report, provided on behalf of both the plaintiff and defendant.[138]
[136]See reports from Dr Olivia Ong, specialist pain physician, dated 27 April 2019 (Ex P1, page 22) and Dr David Kennedy, sports and industrial physician, dated 20 March 2020 (Ex P1, page 60)
[137]See reports from Mr Rondhir Jithoo, consultant neurosurgeon (Ex P1, page 20), and Professor Richard Bittar, consultant neurosurgeon, dated 6 January 2021 and 2 August 2022 (Ex P1, pages 29 and 65)
[138] See report dated 6 January 2021, Ex P1, page 65
53The defendant relied on a report from Dr Ian Dickinson, Orthopaedic Surgeon dated 16 March 2023.[139]
[139] Ex D1, pages 6-21
54Dr Dickinson doubted the history given by the plaintiff of being hit from behind “at speed”, saying that the ambulance record suggested “a low speed accident.”[140] He acknowledged that there was evidence that the plaintiff had longstanding degenerative cervical spondylosis[141] and accepted that the plaintiff suffered from no relevant pre-existing symptoms.[142] Despite this, he did not accept the plaintiff’s account of her current level of pain and other symptoms,[143] concluding that there was no evidence of any physical abnormality which would cause restriction of physical function in the plaintiff.[144] He did not accept that there was any “aggravation” of cervical spondylosis in this case.[145]
[140] Ex D1, page 16
[141] Ex D1, page 18
[142] Ex D1, page 16
[143] Ex D1, page 19
[144] Ex D1, page 17
[145] Ex D1, page 19
55I note that in providing this opinion, Mr Dickinson’s opinion differs substantially from the opinions of the other medical experts in this case. In his report, he did not provide any reason for rejecting the plaintiff’s account of her current level of pain and other symptoms. While he undertook a review of the other medical opinions which had been filed in the case, including those provided by Professor Bittar, Mr Jithoo, Dr Ong and Dr Kennedy, he did not provide any explanation for rejecting the opinion of each, that the transport accident had caused an injury to the plaintiff’s cervical spine. In the absence of this analysis or path of reasoning, I am unable to accept Mr Dickinson’s opinion. For these reasons, I prefer the weight of the evidence provided by the plaintiff’s medical experts as to what injury was sustained by the plaintiff as a result of the transport accident, one of which (as set out above) was an opinion which was also provided on behalf of the defendant.
Assessment of the Plaintiff as a witness
56Although the plaintiff was cross-examined about many of the aspects of the matters contained in her affidavit material, no serious attempt was made to discredit her.
57Having had the benefit of observing the plaintiff while she was giving evidence to the Court, I formed the view that she was an honest and cooperative witness who appeared to be doing her best to give accurate responses to the questions asked of her. During cross-examination, she gave her evidence openly and without embellishment. In addition, she made concessions where necessary, many of which were adverse to her own interests.
58Furthermore, I find that the plaintiff’s account of events has remained consistent throughout the period in which she has seen her treating medical practitioners, consulted with medico-legal experts and provided evidence to this Court. In addition, the plaintiff’s evidence is wholly supported by the evidence given on oath by her husband.
59After a consideration of all of the evidence, particularly the evidence of the plaintiff as corroborated by the affidavit evidence of her husband and the matters set out in the medical reports, I consider that she was a credible witness, in the sense of being a truthful person. At no time did I gain the impression that she was attempting to mislead the Court or exaggerate her symptoms in any way.
Stoic Plaintiff
60Having observed the plaintiff and considered all of the relevant evidence, I have formed the view that the plaintiff is quite stoic in relation to her condition.
61I find that, despite the consequences of her injuries from which she has suffered daily since the transport accident, she continued to work for a number of years as an administrative assistant, only ceasing that occupation when she was unable to reduce her hours to accommodate the difficulties being caused by her experience of pain arising from the injury suffered in the transport accident. I find that she continues to try to do the lighter domestic chores of which she is capable and continues to try to share the burden of other domestic duties, including shopping with her husband, although he takes on the majority of those activities, in order to help his wife. I find that despite the difficulties she encounters when she walks on uneven ground, the plaintiff has persistently attempted to keep exercising in the form of walking. I also find that the plaintiff and her husband have tried to modify the way in which they engage in their caravan and camping activities, despite the pain which the plaintiff suffers from driving long distances or over rough ground.
Compensable injury
62The details of the occurrence of the transport accident and the fact it has caused an organic injury in the plaintiff, in the form of an aggravation of cervical spondylosis, was not in dispute.
63Having regard to all of the relevant evidence as set out above, I find that prior to the transport accident, the plaintiff suffered from degeneration of her cervical spine, but that this condition was asymptomatic. I find that, following the transport accident, the degenerative process present in her cervical spine became symptomatic, causing her daily pain in her neck and shoulder, and down into her right arm. I find that the aggravation of her cervical spondylosis was solely caused by the transport accident.
Is the compensable injury “long term” for the purposes of the Act?
64Having considered the relevant reports,[146] I find that the plaintiff is likely to suffer from the conditions set out above, which developed as a result of the transport accident, for the foreseeable future. Given this, I find this injury is “long term” for the purposes of the Act.
[146]See especially the reports of Associate Professor Bittar (Ex P1, page 29) and Dr David Kennedy (Ex P1, pages 60-61)
Are the consequences to the Plaintiff of the transport accident “serious”?
65Having considered all of the evidence, I find that, by reason of the injury to her cervical spine alone, which she suffered in the transport accident, the plaintiff suffers from the following consequences:
(a) constant pain in her neck, which includes “attacks of substantially worse pain” three to four times per week;
(b) headaches;
(c) numbness in her hands, especially at night;
(d) interrupted sleep;
(e) the need to take medication on a frequent basis;
(f) the need to engage in a daily home exercise program;
(g) numerous impacts upon her ability to engage in the activities of daily living;
(h) a loss of enjoyment of life in relation to activities which she used to enjoy, especially gardening, bushwalking, horse riding and off-road caravanning;
(i) pecuniary disadvantage.
66In Haden Engineering Pty Ltd v McKinnon,[147] the Court of Appeal made observations about the task of evaluating the pain and suffering consequences of any injury. In particular, Maxwell P observed that the consequences of pain and suffering encompassed both the plaintiff’s experience of those consequences, as well as the disabling effect of the consequences on plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.[148] Part of the process is for the Court to assess the nature and extent of the consequences which the plaintiff experiences. As set out above, ultimately, the question of whether an injury satisfies the relevant test under the Act is one of impression or value judgement. The weight to be attached to the plaintiff’s account of the consequences experienced, will depend upon an assessment of the plaintiff’s credibility.[149]
[147](2010) 31 VR 1
[148](Supra) at paragraph [9]
[149](Supra) at paragraph [12]
67I have already made observations about the plaintiff’s demeanour and presentation in Court. In particular, I have found that the plaintiff was a truthful and credible witness.
68An analysis of the evidence clearly demonstrates that by reason of the consequences of her organic injury in the form of an aggravation of her pre-existing cervical spondylosis, many aspects of the plaintiff’s life have been adversely affected, including her experience of constant pain, the need to take medication frequently, the impact upon her sleep, her ability to undertake her activities of daily living, including travelling in a car and undertaking domestic chores, her ability to engage in many previous hobbies and recreational activities that she enjoyed including gardening, bushwalking and horse riding, the ability of her and her husband to pursue their retirement plans of off-road caravanning around Australia and her ability to enjoy her work and to work efficiently in her chosen employment.
69The fact that the plaintiff was prepared to keep working after the transport accident, is not a matter that tells against the granting of her application. To use the words of Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2):[150]
“… it would be unfortunate, and in my view wrongheaded, if … such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[150][2008] VSCA 260 at paragraph [3]
70In Kelso v Tatiara Meat Co Pty Ltd,[151] the Court observed that:
“… chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain, requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[151](Supra) at paragraph [199]
71I have set out above the consequences which the plaintiff’s injury has had on her day-to-day life. The evidence indicates, and I accept, that those consequences will continue into the future. I am satisfied to the requisite standard that, taken together, these matters constitute consequences which are “very considerable and certainly more than ‘significant’ or ‘marked’”.
Conclusion and findings
72As set out above, I am satisfied that as a consequence of the transport accident which occurred on 16 July 2018, the plaintiff has suffered a “serious injury” as defined in the Act, in the form of an aggravation of pre-existing cervical spondylosis. The application is granted.
73I will hear the parties in relation to the question of costs.
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