Smith v Transport Accident Commission
[2021] VCC 1176
•24 August 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-06089
| LAURA ANNE SMITH | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 and 14 July 2021 | |
DATE OF JUDGMENT: | 24 August 2021 | |
CASE MAY BE CITED AS: | Smith v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1176 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – impairment to the spine – aggravation ꟷ causation
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Richards & Anor v Wylie (2000) 1 VR 79; Petkovski v Galletti [1994] 1 VR 436; De Agostino v Leatch & Transport Accident Commission [2011] VSC 249; Dordev v Cowan & Ors [2006] VSCA 254; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Altona Bus Lines v Lococo [2002] VSCA 159
Judgment: Application dismissed.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Valiotis with Ms S Fernando | Slater and Gordon Lawyers |
| For the Defendant | Mr J Ruskin QC with Ms A Bannon | Wisewould Mahoney |
HER HONOUR:
Introduction
1This is an application brought by an Originating Motion for leave pursuant to s93(4)(b) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by the plaintiff arising out of a transport accident which occurred on 12 May 2018 (“the 2018 accident”).
2The application is brought pursuant to s93(4)(d) of the Act. Sub-section (6) provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
3The definition of “serious injury” relied upon by the plaintiff is under s93(17)(a):
“Serious long-term impairment or loss of body function.”
4The relevant body function is the spine.
5The enquiry under ss(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.
6The “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 itself constitute or be the producer of the impairment of a body function.[1]
[1] Richards & Anor v Wylie (2000) 1 VR 79
7In 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, be fairly described as at least “very considerable” and “more than significant or marked”.
8The plaintiff was involved in an earlier transport accident on 21 November 2013 (“the 2013 accident”) in which she also suffered spinal injuries.
9In this case, where there is a pre-existing spinal condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from the 2018 accident is serious and long term.
10In Petkovski v Galletti,[2] the Full Court of the Victorian Supreme Court accepted the proposition that:
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. …”
[2] [1994] 1 VR 436 at 443
11The plaintiff relied on three affidavits and gave viva voce evidence. Her first affidavit was sworn in support of her serious injury application relating to the 2013 accident. Her more recent affidavits were in support of the present application. She was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence[3]
[3]First affidavit sworn 6 September 2019
12The plaintiff is presently aged forty-two, having been born in April 1979 in New Guinea. She migrated to Australia when aged eight months. She lives with her partner and stepchildren.
13The plaintiff completed Year 12 and then did a TAFE course in music and a Certificate IV in Entertainment. She has qualified and worked as a security guard. From about 2001, she worked as a pharmacy technician at Port Phillip Prison with St Vincent’s Hospital (“the prison”)
14The plaintiff deposed that the work at the prison was physically demanding. She had to go out to the accommodation units carrying a container with medicines and was on her feet for long periods.
15The plaintiff had had some lower back pain for which she had seen a physiotherapist and had time off work. She also suffered from plantar fasciitis.
16The plaintiff had a WorkCover claim against the prison for neck and shoulder pain. She attended a general practitioner, had physiotherapy, and had some time off work.
17The plaintiff has a heart condition, for which she sees a cardiologist. She also has diabetes.
18The plaintiff sustained injuries in the 2013 transport accident when she was the driver of a stationary vehicle which was hit from behind. The police and ambulance did not attend. She was sore in her neck and lower back and had some shoulder pain.
19The plaintiff attended a general practitioner at the You Yangs Medical Centre and had some time off work. She then attended her regular practitioner at Tarneit Medical Centre (“Tarneit”) on or around 4 December 2013 with neck and shoulder, and right hip and thigh pain. She had Panadol after the accident.
20The plaintiff struggled with work and in around February 2014, went off work. She then saw her general practitioner due to increasing lower back and bilateral leg pain, and she was referred for scans and prescribed Celebrex. She had neck and lower back x-rays around that time and also attended an osteopath.
21Later that month, her general practitioner prescribed Endep, which she struggled to take as it made her too groggy. Her mental health was deteriorating and she was referred to a psychologist, Mr Loh. She also attended Newtown Physiotherapy.
22The plaintiff returned to work in or about May 2014, six hours a day, three days a week.
23She was referred to pain management in late May 2014 due to chronic neck and back pain. She saw Dr Sullivan at Precision Ascend on 21 May 2014, and he recommended a pain management program, which the plaintiff attended from 17 June to 29 July 2014. During that program, she was seen by a physiotherapist, psychologist and occupational therapist.
24The plaintiff learned how to self-manage, and found the program helped in that regard. She had some good days and bad days, but her pain never went away, and her back and neck were easily aggravated. She was reviewed at the pain management clinic.
25The plaintiff had a further transport accident in August 2014 that did not cause any injury.
26In August 2014, the plaintiff had a cervical spine MRI scan. That month, she was still only working six-hour shifts and was considering changing roles. She resumed twelve-hour shifts in about September that year.
27The plaintiff was seeing an osteopath and she commenced a gym swim program in around February 2015. In about March 2016, she commenced Pilates.
28The plaintiff then enrolled in a Bachelor of Design, but had to stop study after one semester due to pain. She had ongoing lower back, neck and shoulder pain, and at times was quite down.
29In around May 2016, she started casual work at a pharmacy.
30The plaintiff attended her general practitioner in October 2016 with ongoing lower back and intrascapular pain. She remained at work at the prison, but was finding it difficult to manage due to pain because the job was too physically demanding.
31The plaintiff attended a new psychologist, Sarah Tiong, from about October 2016. She was referred back to Precision and saw Dr Symon McCallum in November 2016. He prescribed anti-inflammatory medication and recommended hydrotherapy and that the plaintiff see an occupational therapist. The plaintiff continued to see her general practitioner and osteopath.
32The plaintiff was transferred from permanent part-time to casual work at the prison. She was not coping with neck and lower back pain.
33In about April and June 2017, she attended her general practitioner with a flare up of pain.
34The plaintiff went to Queensland for a couple of weeks, and upon her return, commenced a job as a pharmacy technician. She then returned to work at the prison but working increased her pain, particularly being on her feet for long periods.
35By February 2018, the plaintiff was working at the prison on a casual basis and also in a retail pharmacy. She had ongoing pain in her neck, lower back and shoulder.
36The plaintiff sustained an aggravation to her neck and lower back in the 2018 accident when her vehicle was struck from behind.
37She attended her general practitioner on 12 May 2018 with neck pain and was referred for a spine x-ray, which was undertaken two days later.
38She continued to attend her general practitioner. She had pain in her neck and lower back, and she was struggling psychologically. She also had some left knee pain.
39Following the 2018 accident, the plaintiff had some difficulty with work and had a reduction in her work. She also had issues with her ability to undertake daily tasks, and treatment increased.
40This aggravation settled after a period of time. She resumed her daily tasks with the same restrictions she was previously suffering and she returned to similar levels of pain.
41The residual issues from the 2018 accident were more flare ups of pain, for which at times she took pain relief, and also some ongoing issues with walking longer distances.
42In about September 2018, the plaintiff resigned from the retail pharmacy to focus on work at the prison. She continued to see her general practitioner, osteopath and psychologist. She returned to Precision and in November 2018, repeated her earlier pain management course. She was seeing the osteopath to manage her symptoms, as well as taking Panadol Osteo and Advil.
43The plaintiff obtained a casual retail pharmacy job at UFS that she did alongside her prison work.
44As at September 2019, she was studying graphic design full time and was coping with her studies. She was continuing to see her general practitioner and the osteopath. She took medication, including Panadol Osteo and Naprosyn. She had a gym swim program.
45The plaintiff described the pain and suffering consequences of the 2013 accident in her first affidavit. She continued to suffer constant pain and restriction in her neck and lower back, which she had had since the 2013 accident.
46The pain was 3 to 4 out of 10 on the pain scale on a daily basis. Her lower back pain was worsening with time, but she felt her neck had improved and she had some shoulder pain.
47She had difficulty bending, lifting, twisting and stooping with lower back pain, and she struggled to push and pull. Her ability to sit and stand freely was impaired with pain and she struggled to walk longer distances. She had issues with sleep due to back pain. Her ability to do housework and household chores was impeded with pain. Her mental health had suffered and she was less social.
48Under “economic loss consequences”, the plaintiff deposed that her ability to undertake her pre-injury role at the prison was impeded due to pain. She moved to various pharmacy roles to try and maintain employment and then worked one day a week at UFS.
49On or about February 2019, she resigned from the prison, and as of September that year, was studying to try and reskill to obtain employment that suited the limitations that she suffered in the transport accident.[4]
[4]The 2013 accident
Cross-examination
50The plaintiff was cross-examined about the contents of this affidavit in support of her 2013 accident serious injury application, sworn about seventeen months after the 2018 accident.[5]
[5]Transcript (“T”) 42
51She confirmed the physically demanding nature of her work at the prison and that she found it difficult to manage due to pain. She did not get assistance from management for alternatives, so she was looking for alternatives to help manage as well at work.[6] She had made a WorkCover claim relating to her use of trolleys at the prison.[7]
[6]T46
[7]T44
52She had had back pain intermittently, but agreed there were multiple visits to the osteopath and doctor leading up to the 2018 accident.[8] She had been to pain management, the physiotherapist, the psychologist and the occupational therapist about coping with work – all before the 2018 accident.[9]
[8]T43
[9]T45
53She agreed the pain never went away and her back and neck were easily aggravated. While the pain did not go away, it reached a more manageable state where she could function more times than others and had treatment where she could.[10]
[10]T45
54She confirmed an aggravation in the 2018 accident.[11] That aggravation settled after a period of time. She agreed she clearly said that her pain after the 2018 accident returned to similar levels to the pain she had after the 2013 accident.[12] She had suffered this pain since the 2013 accident. The pain rating and restrictions were the problems that she had with the 2013 accident.[13]
[11]T47
[12]T48
[13]T49
55The plaintiff confirmed she swore “clearly” in her first affidavit that as at September 2019, her pain levels had moved to those that she had after the 2013 accident.[14]
[14]T48
56When it was suggested she resigned from the prison because it became a bit hard for her or because she wanted to do the course, or a combination of both, it was a combination of both. “I couldn’t accommodate my shorter hours, though, at the prison so (indistinct) … work.”[15]
[15]T50
57She confirmed the problems she had with the Bachelor of Design course in 2015.[16]
[16]T49
58When she deposed that her mental health was deteriorating, the only thing she could remember about it was she did not understand what was happening to her and she just wanted to work it out. She agreed her injuries and pains were taking a mental toll on her.[17]
[17]T44
Treatment prior to the 2018 accident
59Cross-examination also focused on the plaintiff’s attendances at her general practitioner, the osteopath and physiotherapist before the 2013 accident and then after that, leading up to May 2018.
60The plaintiff agreed, as was set out in the You Yangs Medical Centre records from as early as 2003, that she attended for neck and shoulder problems from using a heavy trolley at work. At times, the trolleys were hard to push. In June 2004, she had back pain pushing a trolley at work. From time to time she had back or neck problems pushing the trolleys.[18]
[18]T13
61Again, on 4 April 2007, she reported left neck pain to her general practitioner. On 17 May 2007, she had a painful left neck, which was described in the notes as “a longstanding problem”. She did not fully agree with that, but it was an intermittent problem that did not linger.[19] On 28 May that year, again, there was a left neck complaint and a prescription of Valium.[20]
[19]T14
[20]T15
62The plaintiff agreed that by November 2013, she had had intermittent neck and back pain for about ten years.[21]
[21]T15
Treatment post 2013 accident
63The plaintiff attended Tarneit on 4 December 2013 when it was noted she “had a car accident two weeks ago, rear ended while stationary, pain in the neck and shoulder since, shooting pains in right arm (had these prior to MCA) and pains in both hips and lateral thighs”.
64On 8 December 2013, she was still sore in the neck and shoulders, went back to work a couple of times, but the pain increased when she did. She was then working at the prison, where she had been working since 2001 in the medication room, administering medication to the prisoners.[22]
[22]T17
65On 18 December 2013, it was noted the plaintiff was tearful easily – “there were too many issues on top of the other”. She was sent to psychologist, Alex Leoh, whom she saw three or four times.[23]
[23]T18
66The plaintiff agreed that she started physiotherapy at Newtown Physiotherapy in March 2014. She probably went there at least fifteen or more times after the November 2013 accident. She agreed by then she had had intermittent neck and back pain for ten years.[24]
[24]T15
67The plaintiff was taken through her osteo attendances from March 2016. On 2 October 2016, she agreed she related her stress and anxiety to the 2013 accident. Back and neck pain, although infrequent, felt like it was not getting any better. Her problems were still going three years after the 2013 accident.[25] At the end of 2016, she asked for a referral for pain management as she was not really satisfied with the osteotherapy.[26]
[25]T28
[26]T30
68Her attendance with Dr McCallum, the pain specialist, in November 2016, related back to the 2013 accident. The plaintiff told him that she was working part time with Correctional Health and struggled to be on her feet all day, had occasional days off and broken sleep.[27] She agreed, as Dr McCallum reported, that she was tearful, tired and anxious, probably due to the pain and “probably emotions”.[28]
[27]T31
[28]T35
69In April 2017, the plaintiff’s general practitioner mentioned a flare up in back pain, seeing the osteopath, and noted a motor vehicle accident several years ago. That month, Mr Todd was working on the plaintiff’s back and advised her to use caution. She attended him in July with neck pain and associated headaches[29] and then, on 19 and 25 September 2017, she had neck pain and was having some treatment.[30]
[29]T37
[30]T38
70There were further osteopathy attendances in early 2018 – on 5 February, 19 March and then 3 May, one week before the 2018 accident. The plaintiff guessed she had osteopathy treatment at that time, from memory, like a maintenance thing; if she had a little bit of pain she would just see him to help her through it. She did not have a regular program.[31]
[31]T40
71It did not feel like there were a lot of attendances at the osteopath in the six months leading up to the 2018 accident, maybe every six months or so. She agreed, in the six months before, there were three attendances. She could not recall, or knew off the top of her head, how many times she had gone to her general practitioner in the year before the 2018 accident, but she did not feel like it was “as often post physically”. As the records set out, between the July 2017 and the May 2018 accident, there were no complaints to her general practitioner.[32]
[32]T68 – re-examination
Work between accidents
72By the end of September 2014, the plaintiff was back at the prison working twelve-hour days, but she was still having some problems pushing the trolley.[33]
[33]T23
73This was part-time work, which meant six shifts of ten to twelve hours over a fortnight.[34] She was also working part time at Quality Pharmacy (“Quality”) in 2016, whenever she was available, for a couple of days a week. It was easier work, because she was sitting down more.[35]
[34]T32
[35]T33
74While working at Quality and the prison, she made sure to have days off in-between so she was not working long runs of days. She was doing that so she was not pushing her body so much - “It was mostly about work/life balance”. On average, she would take two or three days off between these jobs.[36]
[36]T34
75The plaintiff “went casual” at the prison in about October 2017:
“I was looking at changing my life pretty much, so I was hoping to get a job in Queensland but I ended up getting a job in Geelong for a month, then I went to Canberra … for 2 months.”[37]
[37]T51
76The plaintiff got a permanent job one day a week at Epworth in Geelong. She worked there for a month. She then worked full time in Canberra for two months. She stayed employed at the prison as a casual.[38]
[38]T52
77The plaintiff thought that she went to Canberra at the end of 2017 and worked at a dispensary. She “wanted something different, give a job a go, and was just ready to move on”. She felt good, she felt like she could try something. She agreed the prison work was getting hard, but there were also not as many shifts available. She came back from Canberra at the start of February 2018.[39] Canberra did not work because she did not set herself up properly when she moved there, as she was not managing so well.[40]
[39]T55
[40]T58
78After Canberra, going back to casual work at the prison, she had increased pain on her feet for long periods when she was working. She was applying for a permanent position at the prison in March. The increased pain was mostly because more units were locked down, so she was on her feet longer for each of the rounds. She asked for assistance, but really did not get it from the prison.[41]
[41]T56
79In the couple of months leading up to the 2018 accident, she was working probably two, up to four, shifts a fortnight of twelve hours at the prison. She was still working at Quality, two to three eight-hour shifts a week, probably more than what she was doing at the prison.[42]
[42]T66
80In the period leading up to the 2018 accident, she was coping with casual shift work, “pretty good from memory”. It was the same with Quality, having less treatment. She felt like she was probably better, but she did not know.[43]
[43]T67
Post 2018 accident work
81After the 2018 accident, the plaintiff worked four-hour shifts at the prison in accordance with her doctor’s certificate.[44] These four-hour shifts never increased until she resigned. She also worked at Quality for about four weeks, three days a week, three eight-hour shifts, but she could not manage these shifts and requested reduced hours and they only just could accommodate her, but not long term.[45]
[44]T52
[45]T63
82As of July/August 2018, the job at Quality was finished, and she was working four-hour shifts at the prison.[46] She did not think it was a lot of shifts a fortnight because “they couldn’t accommodate, it was so much for the four hour shift because they do require 12 hour shifts to be covered”. She was working maybe two shifts a fortnight at most.[47]
[46]T63
[47]T63-64
Post 2019 resignation
83The plaintiff resigned from the prison because she wanted to do the graphics course and “[she] couldn’t accommodate [her] shorter hours”.[48]
[48]T50
84The plaintiff notified the prison of her resignation by letter dated 15 March 2019, thanking her employer for its support while she worked as a casual pharmacy technician and also on the floor. She advised:
“I really enjoy my job at Port Phillip Prison, but being on restricted working hours at the moment doesn’t really benefit SVCHS and so I have decided to step away from now.”
85She worked as a permanent casual one day a week with USF pharmacy while she was studying. She thought she worked there from June to December 2019, usually one day a week, and occasional additional shifts.[49]
[49]T62
86The plaintiff completed the course that year, qualifying as a graphic designer. She did not seek employment in that field then because she went on to commence the Advanced Diploma to improve her skills. She was on par to finish that course and then her father passed away. She was a bit behind and it was hard to catch up and focus. She had difficulties learning remotely.[50]
[50]T62
87She tried to go back to the course for two weeks in 2020 but she was quite far behind and she “could not catch up to sort of finish in time”.[51]
[51]T59
88The plaintiff started work in Bourke, New South Wales, in January 2020. She needed a place to live because her unit had been sold and she had to move, and she was looking for a job and somewhere to live close together and happened to come across this job. Before that, she was living in Lovely Banks, a Geelong suburb. She selected Bourke because it was advertised as a locum position and she wanted to try a job with accommodation, with less hours than a normal pharmacy. Her main job was in Webster packing again, and she had the option to sit down at work.[52]
[52]T60
89The plaintiff lived in a flat above some shops in town and it was extremely convenient. She could walk to work and did not have many expenses. She did not want to stay on further, even with flare ups and taking a bit of time off, because it was hard to access treatment there. Her physiotherapist was in Sydney and there were problems with COVID, making it harder to access the health services she needed. She agreed that if she was in Melbourne she could well be continuing to work but have osteopathy all the time like before.[53]
[53]T61
Treatment since the 2018 accident
90The plaintiff had more osteopathy treatment after the 2018 accident.[54] Without looking at the records, she agreed she attended about fifteen times from May 2017 to May 2018.[55]
[54]There were sixteen osteopathy attendances from 12 May 2018 to January 2019
[55]T40
91That treatment has been over the same parts of her body over the last couple of years – the neck and back. She now takes medication daily. She still takes Panadol Osteo at least twice to three times a day, and also Advil. She had taken Naprosyn, but had a lot of fluid retention, so she stopped taking it.[56]
[56]T41
92Having seen the psychologist, Ms Tiong, for about a year after the 2013 accident, the plaintiff went back to her for monthly counselling after the 2018 accident as she got worse.[57]
[57]T47
Current level of functioning
93As of today, the plaintiff has not recovered from an aggravation from the 2018 accident. She has not returned to her level of functioning at work as of May 2018:
“I feel like there’s other things that have shown up since I’ve been here in terms of my physical health and I feel are related to the aggravations of the 2018 accident.”[58]
[58]T67-68
Future plans
94The plaintiff is coming back to Victoria in August. She does not have a job lined up. She is looking for part-time work because she does not feel full time is manageable for her. She is quite exhausted every day after work and she did not think she could go back to full-time work again from her injuries. The pain makes her feel tired. She puts all her energy into work. She gets home and has nothing at home, and cannot do her chores – “it snowballs, and [she] thinks that is an effect of full time work.” As at May 2018, she was working full time in the same job, so this was not the situation then.[59]
[59]T69
Later affidavits
95The plaintiff swore a detailed affidavit in support of this serious injury application in April 2020.
96Since her earlier affidavit, she had split up with Robert and she was living alone. They had grown apart, one of the reasons being that she became less able to be intimate due to pain, headaches and low energy associated with her neck and lower back condition.
97The plaintiff had counselling with Ms Tiong from about October 2016 to June 2017 which she found helpful and her mood improved.
98At the time of the 2018 accident, the plaintiff worked hours ranging between about mid-thirties to mid-forties. These hours generally included three or four shifts of eight hours at Quality, where she was doing packing and dispensing. She was also doing about three twelve-hour shifts per fortnight at the prison.
99Although she was continuing to experience pain in her neck and lower back, she was managing her workload and had no intention of reducing her volume of work. She had been able to increase her earnings following the 2013 accident to more than prior thereto. In the 2013 financial year, she earned $65,358 gross, which she increased to $66,601 and $68,403 in the 2016 and 2017 financial years respectively.[60]
[60] these figures were corrected in her third affidavit
100At the time of the 2018 accident, she was having occasional osteopathic treatment for soreness in her lower back and neck and was continuing to see doctors at Tarneit, but had not seen them for her neck or back for close to twelve months.
101The force of impact in the 2018 accident pushed her car into the car in front of her. Her car was written off.
102After the 2018 accident, the plaintiff suffered an immediate increase in neck pain and any movement hurt. The pain extended into her shoulders and she was experiencing spasm of greater intensity and frequency than prior to that accident. She began, over time, to notice an increase in lower back pain and the return of restless legs.
103She went back to Dr Todd on about 2 June 2018 and resumed osteopathic treatment with him more frequently than prior to the 2018 accident. She also recommenced counselling, because after the 2018 accident, she struggled to manage her increased pain and experienced major deterioration in her anxiety. She had nightmares and her sleep was poor. She was again having difficulty coping with any stress and was finding herself to be irritable and lacking in energy. She felt she was back to where she started following the 2013 accident.
104Following the 2018 accident, the plaintiff continued working without change to her workload for about a month, but during that time found it increasingly difficult to maintain this workload, particularly at Quality.
105In that job, her neck was becoming increasingly uncomfortable when she was packing blister packs. After doing that task, she experienced pain in her neck, extending into her shoulders, and she was not able to sit doing the work dispensing. Her neck, shoulders and lower back were also increasing in pain when she did this task.
106Because of those problems at Quality, she reduced the length of her shifts from eight hours to four, and then had a few weeks off entirely from about the end of June 2018.
107With some rest, as well as osteopathic treatment and counselling, her symptoms improved. However, on her return to work in about mid July 2018, she continued to struggle with her work at Quality and, to a lesser extent, the prison. Over the next few months, she persisted with four-hour shifts at Quality. The shifts at the prison were longer, but because the duties were more varied, involving different postures, she found them easier on her neck and lower back.
108In about September 2018, she resigned from Quality because the employer was not able to accommodate her limited tolerances and she was struggling to get through her shifts, with increased pain in her neck and lower back. She had planned to do more work at the prison to maintain her income.
109The plaintiff had obtained the job at UFS because she was not being offered enough work by the prison. Because of her worsened neck and lower back condition, she found she was not able to increase the frequency of her twelve-hours shifts and work those shifts on a consistent basis. In particular, she was having problems pushing the medication trolley and carrying the medication buckets, so she was only seeking to do four-hour shifts, but not having much success. By contrast, UFS were able to offer her four-hour long shifts and could accommodate her postural requirements.
110The plaintiff resigned from the prison and commenced her graphic design course because it became clear to her after the 2018 accident, with her neck and back symptoms and limitations, she was not going to be able to work enough hours in pharmacy to support herself, and she was going to need to seek employment opportunities that were less physically demanding.
111As of April 2020, the plaintiff was doing an Advanced Diploma in Graphic Design and also a course in multidisciplinary design. Studying was less physically demanding than the UFS work, but still took a toll on her spine, as most of the work was on a computer with prolonged sitting, and some drawing classes were conducted while standing, causing an increase in lower back pain and headaches.
112She continued to experience pain in her neck and lower back, which was there most of the time and usually of moderate intensity. It significantly increased when she sat, stood or walked for long periods. When the neck pain increased, it often caused her to develop a migraine and she had to stay in a dark room until it passed. She tried to control this with painkillers. When her lower back pain increased, she also began to experience restless legs.
113The plaintiff’s neck and back conditions made moving house recently far more difficult than it should have been.
114Her difficulty with prolonged sitting affected her ability to drive and she tried to drive only locally. She no longer was able to enjoy driving interstate for holidays.
115Because of her walking difficulties, she tended to go on fewer outings than previously. She had been attending art galleries and exhibitions less. In 2019, she went to an exhibition at the National Gallery but was not able to enjoy it because of pain while standing.
116The plaintiff found, if she had gone to a shopping centre or spent a long time walking around on a hard surface, she would often crash when she went home and develop a migraine, and then was usually exhausted and had to sleep for a long time.
117She had difficulty doing the dishes because of problems with prolonged standing and bending. Her housework was limited.
118Her mental health continued to suffer and she was still seeing the counsellor about every four to six weeks.
119She was then working one shift per week at UFS of four or five hours in length, but struggled after about four hours. That was the only source of income other than TAC payments.
120The plaintiff was then worried about finding work once she had finished her studies and was concerned she might not be an attractive candidate to employers because of her age and lack of experience and skill. She worried how she was going to support herself if she could not make the transition into paid graphic design work and she could not do pharmacy work due to her neck and lower back.
121The plaintiff swore a third affidavit on 9 June 2021.
122The plaintiff deposed, when she swore her first affidavit, she was still working, she was studying and she had not come to appreciate the full ramifications of the impact of the 2018 accident.
123To compare and contrast her income before and after the 2018 accident, and with reference to an earlier error, she relied on these wage figures:
Year
Amount
Salary Sacrifice
2010
$51,380
-
2011
$70,362
$17,000
2012
$57,332
$8,916
2013
$82,439 ($65,358)
$17,000
2014
$72,615
$16,315
2015
$73,048
$16,999
2016
$84,350 ($66,601)
$17,666
2017
$86,243 ($68,403)
$17,666
2018
$67,868
$12,449
2019
$59,822
-
2020
$26,249
-
2021
$22,320
-
124The plaintiff was still having osteopathy up to the 2018 accident, but was still able to earn more than she had ever before. Her income was reduced in the financial year ending 2018, partly because of the accident that year. She wanted to move interstate to Brisbane to find a job there, however, she obtained a job at Epworth in Geelong.
125After working there for a month, she found a job in Canberra and moved there for two months from December 2017 and worked full time.
126On returning to Melbourne in 2018, she continued working at the prison and at Quality as a casual. She believed that this was an accurate reflection of her situation just prior to the 2018 accident. She was not in any way physically restricted from any form of employment at that time.
127She continued her course until September 2020 and then stopped studying. She had done about 60 per cent of the course. She was struggling with having to sit down and despite the fact she was motivated to keep plugging away, she gave it up.
128The plaintiff’s father died in late August 2020. Her grief contributed to her already fragile state of mind. She was already behind with her studies and it made it difficult to catch up, and she quit the course a month after his death. She had managed to complete the Diploma; however, she was doing the Advanced Diploma at the time she stopped studying.
129The plaintiff was still travelling from Lovely Banks to Gisborne doing her shifts, and after the course tried to pick up a few more shifts, but the one-hour drive to and from work was really painful.
130At the end of 2020, the plaintiff was in receipt of Jobseeker and looking around for suitable jobs, but knew that while she could still work in a dispensary, it needed to be nearby and not be heavy work.
131The plaintiff registered through the Disability Employment Service (“DES”) via Centrelink and found work in Bourke in New South Wales. The job included accommodation and her employer was aware of her restrictions. The DES continued to assist with her with a weekly catchup via phone and offered her assistance for equipment to help her do her job.
132The plaintiff started work at the Towers Drug Company in January 2021 working seven-hour days, five days a week, initially on a six-month contract.
133She did four hours’ work, had an hour break, and then three hours’ work, similar to the dispensary work she had done previously. Despite her having a supportive employer, as time had worn on, she struggled with the work and continued to have daily neck and back pain, which made it tough to get through the day.
134Her contract was supposed to expire in July 2021, however, due to her pain, she had given notice, despite being offered an extension for the rest of the year. She had agreed to stay around until August to help them out because they had been very good to her, but she was having difficulty being on her feet, and repetitive movements, reaching upwards, and having to stand for prolonged periods, caused increased back and neck pain.
135She is presently not having any treatment and is trying to find a physiotherapist. She takes four to six Panadol Osteo a day, Advil, two to six a day, and occasional codeine, but has a poor reaction to it and it makes her sleepy so has to limit her intake.
136Sleep has been impacted by pain and she has trouble going to sleep and staying asleep is disturbed due to position changes, and she is fatigued during the day and over the weekend she catches up on sleep.
137The plaintiff does housework in her own time and gets by with the bare minimum.
138She has increased pain when hunched over a desk for long periods and when doing drawings.
139Her back became very painful during the driving to and from Gisborne in mid to late 2020, and that pain continues and feels as though it has got worse. She was referred for a CT scan due to numbness in her thigh and the doctor told her to take things easy and to have some physiotherapy, which she was trying to organise.
140The plaintiff continues to suffer from neck pain that goes into her left shoulder and it upsets her the pain is continuing, and she feels as though it is increasing as a result of the 2018 accident, and most recently, she has really struggled over the last couple of years, and all the efforts she has made to get better – continue working, take up study and progress between 2016 and 2018 – seem to have been for nothing, because she will be out of a job again in August.
141Her state of mind has been impacted, and despite the fact she tried really hard to get on with her life, she had now gone backwards since the 2018 accident. It has been hard to cope with the hardship she has been through and at one stage in 2018, she was working two jobs and living a normal life, albeit committed to her work, and none of that exists three years later.
142The changes in her life over the past three years have been enormous and she speaks to the counsellor about coping and getting through, but her moods fluctuated and she has become quite upset and emotional in counselling discussing her problems.
143The plaintiff’s focus and ability to concentrate has been negatively impacted, but she tries to remain positive. She feels upset about the fact that she has had two accidents in five years that have impacted upon her, however, if she could compare where she was in May 2018 – where she had some osteopathy and was still doing two jobs, had hoped to complete further study and had some positive outlook with where she now is – there is no comparison and she would like to return to 2018, but cannot and is stuck with it.
The Plaintiff’s medical evidence
Tarneit Family Medical and Dental Centre (“Tarneit”)
144Dr Davis from Tarneit reported in December 2014, noting the plaintiff’s post-2013 accident attendances revolving around neck and back pain. There were numerous attendances in 2014, and in February, Dr Davis organised x-rays and a lumbar CT scan.
145As at 3 December 2014, she thought the plaintiff had fully recovered and could now work at full capacity.
146Dr Hassan, from Tarneit, reported in July 2021 that the plaintiff had been attending that clinic since 31 October 2012. He was asked to provide a report in relation to both accidents.
147Following the 2013 accident, a clinical diagnosis of whiplash injury and Chronic Pain Syndrome was established. As per clinical records, the plaintiff was thought to have Chronic Pain Syndrome following a whiplash injury to her neck and back, and Mixed Anxiety and Depression with PTSD after the 2018 accident,
148It was difficult to make any definitive comment about direct association of those accidents with causation of the plaintiff’s symptoms, as there were no obvious injuries, and radiological investigation did not correspond to her clinical symptoms. However, x-rays and scans are not often conclusive in this type of clinical presentation.
149Dr Hassan thought there was significant contribution of the accidents in the plaintiff’s physical and psychological symptoms, resulting in significant emotional and functional impairment, which led to her having significant time off work. It was evident from the medical records that she did not have any consultations with ongoing back and neck pain prior to the 2013 accident.
150Dr Hassan only saw the plaintiff once, on 4 April 2021, when she told him she had taken up a full-time job as a pharmacy dispensing assistant in New South Wales. She was still troubled with back pain, which seemingly got worse with long hours of standing. She reported that her symptoms were affecting her activities of daily living to some extent. He was unable to make any comment about her functional ability for suitable jobs, more precisely, as that was not the focus of his consultation nor was it his remit.
151Given the chronicity of her symptoms, it was likely this could impact on the plaintiff’s social, domestic and recreational activities for the foreseeable future. It was difficult to determine the extent of it. Considering the nature and chronicity of her symptoms, she may need only input from allied health physiotherapists, pain specialists and psychologists. He thought there was a guarded prognosis for Chronic Pain Syndrome and that it was difficult to give a definitive prognosis.
Dr Todd – osteopath
152Dr Todd first saw the plaintiff after the 2018 accident on 5 June 2018. From that date, until 2 May 2019, he saw her twenty-one times.
153In his 3 May 2019 report, while referring to the earlier radiology, he did not make any mention of his treatment of the plaintiff before the 2018 accident. He diagnosed acute chronic non-specific restriction with associated paraspinal spasm/strain post MVA.
154He noted the plaintiff had consistently presented with a chronic level of mild to medium pain that was then affected by a multitude of factors such as work exercise, daily stress, financial commitments and future life goals. He thought it was very difficult to identify what specifically triggered an acute exacerbation of her symptoms over the past eighteen months.
155He considered the plaintiff had the ability to work comfortably at a part-time capacity, and that she showed a positive motivation to find work for further education through study. He noted her employment at the prison presented significant limitations due to the heavy loading and poor wheel mechanisms of the medication trolleys. That had been identified as an issue that had resulted in continuous symptomatic aggravation, pain, stiffness and restriction of the lumbar, thoracic and cervical spine.
156In his 2 July 2019 report, he noted it was highly likely that the radiological findings present prior to the 2018 accident contributed to and may potentiate the recurring acute symptoms the plaintiff currently presents with.
157He thought the 2018 accident trauma had had a significant impact on the plaintiff’s present condition, affecting her neck and lower back. Her current symptoms were consistent with a recurrent aggravation of her pre-existing condition and the associated symptomatic presentation of cervical torticollis injury. The most recent MVA would likely result in a resurfacing of her previous trauma both physically and psychologically.
158He noted the physically demanding nature of the plaintiff’s duties at the prison had aggravated her injuries. Due to ongoing musculoskeletal complaints, she had also changed her employment roles on a number of occasions in an attempt to find more suitable roles or career pathways – including further study that may provide a more acceptable level of physical and psychological stress. Without continued treatment, he thought there was every likelihood she would continue to be precluded or significantly restricted in the noted activities for the foreseeable future.
159In his July 2021 report, he noted he had most recently seen the plaintiff in November 2020. He summarised his notes of her attendances in the six months prior to the 2018 accident.
160On 14 August 2017, the notes highlighted that the plaintiff had been suffering from chronic sinusitis and nasal infections associated with mild headaches. She was suffering from neck and shoulder pain and hip stiffness, and had some mild numbness in her hands.
161On the next visit on 19 September 2017, shoulders and neck were the main concern, and the plaintiff was using Advil and Panadol Osteo daily. No headaches were reported but more neck and shoulder pain and stiffness.
162On 25 September 2017, there was a week follow-up to alleviate acute symptoms of neck and shoulder pain and stiffness, noting it was better due to the prior treatment.
163Dr Todd reported that there was significant spacing in treatment until February 2018. There was no reason for that break, and he could only assume her symptoms were being self-managed, and there was no significant worsening of the symptoms before or after this time.
164On 5 February 2018, the plaintiff attended complaining of usual soreness through the whole spine, tight hips and shoulders. There was whole body treatment due to break from treatment.
165On 19 March 2018, the plaintiff had not been too bad. She noted cramping in legs which she felt was maybe related to lower back and possibly shoes she had been wearing. Calf stretches and magnesium were prescribed for cramping, to see how her symptoms responded.
166On 3 May 2018, the plaintiff had been tight in the neck and shoulders but generally alright. She was sore for a month or so through the usual areas of spine, shoulders and hips. There were no notes of upper extremity numbness, pins and needles or complaints of continuing leg cramping.[61]
[61]He also noted spasms
167Based on the above, Dr Todd believed that the plaintiff was managing her spinal, shoulder and hip pain stiffness at a typical frequency, suggesting she was maintaining her condition to enable her to continue working full time, and only attending as symptoms developed or if an acute aggravation of her pre-existing condition occurred, noting the timeframe between treatments.
168After the 2018 accident, there was an immediate increase in the frequency of treatment from fortnightly to weekly required until November 2018. The plaintiff then undertook a chronic pain management program before attending for treatment again in January 2019.
169He noted that the clinical notes reflected a significant reported increase in pain and disability, which also includes severe discomfort and restless legs. There was consistent acute aggravation of her symptoms due to multiple factors that ultimately required her to reduce her normal full-time working load to part time, and also take extended leave from work due to her accident pain to allow for settling of her symptoms and to recover from the aggravation of her work related duties.
170In addition to activities of daily living like housework, driving and shopping, there was a clear increase in her treatment requirements and frequency, to indicate a significant worsening of her condition subsequent to the 2018 accident.
171He thought it possible her shoulder pain may be the result of cervical spinal referred pain, noting the September 2020 cervical CT scan.
Dr Richard Sullivan – pain specialist
172The plaintiff first saw Dr Sullivan for pain management in May 2014. She then reported variable pain, rating it from 5 to 8 out of 10.
173Neurological examination was normal. There was a good range of shoulder movement. There was some limited neck flexion due to pain. There was little in the way of tenderness. She reported an electric shock type symptom in the arms.
174Dr Sullivan diagnosed a chronic pain condition with an organic basis following the 2013 accident. He thought the plaintiff was a good candidate to undertake a comprehensive pain management program. She did so in July 2014, and obtained favourable results in terms of her distress and functional capacity. She had been able to return to work, had improvements in her mood and sleep.
175He organised a cervical spine MRI scan in August 2014. As at February 2015, he thought the plaintiff’s condition had stabilised and she had managed to rehabilitate herself adequately to return to the workforce.
Dr McCallum – pain specialist
176The plaintiff saw Dr Symon McCallum in November 2016.
177The plaintiff then complained of pain in her neck, shoulders and lower back and had occasional headaches which could be migrainous. She was very aware of her mood affecting her pain a lot. She had pain in the shoulder blades bilaterally, and occasionally had some lower back pain, and a pain that rarely shoots down her legs. She had some numbness down her right lateral thigh and was woken occasionally with her hands being a bit numb.
178The plaintiff was then working part time with Corrections at St Vincent’s. She struggled to be on her feet all day. She had days off occasionally, her sleep was broken and she was independent in selfcare.
179Dr McCallum thought the plaintiff had intermittent neuralgia paraesthetica of her thigh and that the neck pain and other pains were muscular in origin. He asked her to commence Norflex, and thought that she would benefit from regular hydrotherapy and referred her to an occupational physician.
180He did not see her after the 2018 accident.
Dr Sabetghadam – occupational physician
181Dr Sabetghadam at Precision saw the plaintiff on referral from Dr Ng from Tarneit in April 2017.
182The plaintiff reported that she suffered from neck and lower back pain and pain in both shoulders after a motor vehicle accident three years earlier. She reported that her pain fluctuated over the period of time and migrates between different parts of her shoulders, neck and lower back pain.
183The plaintiff was then working at the prison. She was sometimes struggling with occupational duties, but she worked full duties. She worked twelve hours sometimes a day, six to eight days per fortnight, but not more than three days in a row. She said she had a second job in a retail pharmacy in her spare time. She was currently concerned about the management of her pain at work. She said she was doing her ADLs independently with a slow pace.
184He explained the benefits of exercise and good posture, and that he would support her in regard to her pain and occupational duties, if she is willing to modify to accommodate. He thought she would benefit to participate in pre injury duties and hours and manage her pain with exercises.
Brad Saunders – physiotherapist
185The plaintiff saw Brad Saunders at Newton Physiotherapy in March 2014 for cervical and thoracic pain following the 2013 accident. She was last seen in June 2014.
186He noted she was finding work extremely difficult. After four hours, her pain significantly increased. He doubted, when he last saw her, that she had reached her full function or her pain had settled. He doubted she would ever be 100 per cent pain free.
Sarah Tiong – clinical psychologist
187In August 2017, Sarah Tiong provided a report, noting the plaintiff had been attending sessions regularly since October 2016. She had engaged well in the sessions and was clear about the changes she needed to make in managing stress and involving her health and wellbeing.
188In her 2019 report, Ms Tiong noted that after the 2013 accident, the plaintiff experienced depression and anxiety. She attended regularly until mid-June 2017, and made good improvement in her overall mental state.
189The plaintiff re-engaged in therapy in July 2018. She had been involved in the 2018 accident and thereafter, had experienced a Major Depressive Disorder with anxiety symptoms. The symptoms did not preclude her from working in the foreseeable future, but they had limited her ability to work. The plaintiff was limited by her depression and negative impact the accident has had on her cognitive functioning; that is, memory, concentration and poor sleep.
190At that stage, Ms Tiong noted that the plaintiff was experiencing psychological issues, and activities remained limited in their timeframes, and were limited in the constancy in which she performed effectively. Further psychological therapy was required.
Post 2018 accident
Case conference
191There was a general practitioner case conference with the plaintiff and Dr Withanage on 17 May 2019.[62] This seems to have been attended by Evelyn Campbell, a senior rehabilitation occupational therapy consultant.
[62]Dr Withanage organised a cervical spine x-ray on 14 May 2018
192The general practitioner confirmed the current diagnosis was of chronic pain of the cervical spine, bilateral shoulders and low back with occasional sciatic nerve pain in the arms.
193Current capacity remained unchanged – four hours for four days – noting that the plaintiff had not worked in the past two weeks due to shifts not being available.
194The plaintiff advised that her symptoms remained fairly constant with no significant improvement through treatment.
195Ms Campbell recommended that the plaintiff have a five-minute rest break every hour that she worked, and also do stretches.
196The plaintiff had a CT scan of her cervical and thoracic spine at Barwon Health in September 2020. Tarneit organised a lumbar CT scan in May 2021.
Back in Motion
197The plaintiff was referred to Back in Motion physiotherapy by Tarneit in November 2020, at which time she complained of constant upper mid back and neck pain, 7 out of 10. A diagnosis was made of chronic neck pain secondary to facet dysfunction.
Medico-legal examiners
Mr John O’Brien – orthopaedic surgeon
198Mr O’Brien examined the plaintiff in January 2015 in relation to the 2013 accident.
199The plaintiff then described fluctuating neck pain, which could reach 6 to 8 out of 10. She also told him in 2009 that she experienced an acute episode of low back pain which was thought to relate to a bulging disc. The plaintiff reported that she had had several acute episodes of low back pain which had generally responded to osteopathic treatment.
200Mr O’Brien noted the August 2014 cervical spine MRI scan.
201He remained reasonably optimistic in relation to the long-term prognosis. He thought it possible that despite resolution, residual symptoms may occur.
202He noted that the plaintiff reported very mild disability associated with her ongoing fluctuating pain. She reported being reasonably active and continuing to pursue her normal employment which, at that time, was twelve-hour shifts, three days a week. He thought she was now very mildly limited in her general, social, domestic and recreational pursuits.
Dr Wendy Triggs – consultant psychiatrist
203Dr Triggs examined the plaintiff on 12 February 2015.
204At that time, the plaintiff had ongoing pain in her neck, shoulders and headaches. She said recently there had been quite an improvement after the pain management program.
205Dr Triggs noted the plaintiff sustained injuries, including an exacerbation of neck and back pain. She had had a number of months off work as her pain gradually became more tolerable, then she had a gradual reintroduction to work and had now returned to normal working hours.
206The diagnosis was an Adjustment Disorder with mild symptoms of traumatisation and persistent Pain Syndrome.
Mr Gary Grossbard – orthopaedic surgeon
207Mr Grossbard examined the plaintiff on behalf of both parties on 12 March 2019.
208The plaintiff told him about the 2013 car accident and that she was still having osteopathic treatment for her neck, and back pain right up until the time of the 2018 accident.
209The plaintiff was attending her osteopath about every three to four weeks as at 2018, and thereafter, the attendances were increased to weekly.
210Mr Grossbard thought the plaintiff had suffered soft tissue injuries to her neck and lumbar spine in the presence of pre-existing degenerative disease, particularly in the mid cervical area and lumbosacral area. He considered the lumbar spine symptoms were longstanding. He noted that she remained in treatment for intermittent back pain up until the 2018 accident. At that time, her treatment intensified.
211He noted Dr Todd’s records, in particular, on 3 May 2018 – nine days before the 2018 accident, suggesting the presence of spasm. Therefore, he attributed 5 per cent to that, relating to the 2013 accident. He also found spasm when he saw the plaintiff on 12 March 2019.
212He noted that the plaintiff was then working four hours each day. She had attempted to increase the hours but recently had to drop them back again. At some stage, perhaps over the next six weeks, she should once again try and increase. He thought at that point, it was unlikely she would achieve twelve-hour shifts daily. The major difficulty was her job involving standing and pushing a trolley for many hours on end. Unless a more sedentary job could be available to her, returning to her previous employment may present some difficulties. He thought the advice of a vocational rehabilitation expert may be of existence.
213He made no allowance in relation to the neck under the AMA Guides as there was a full range of movement on examination.
Dr David Weissman – psychiatrist
214Dr Weissman examined the plaintiff in March 2019 in relation to both accidents.
215The plaintiff told him that the 2018 accident led to a flare-up of her pre-existing pain from the 2013 accident. There was a flare-up of neck pain all the way down to her lower back and a new pain to the right hip and right knee.
216When the plaintiff had the 2018 accident she was still seeing an osteopath regarding her 2013 pain. She was still taking Panadol Osteo and Advil, and still experiencing pain from her neck down to her lower back, as well as pain in the hips and legs. She was working roughly three to four days per week in two jobs.
217At the time of this examination, the plaintiff was certified fit to work a maximum of four hours, four days a week.
218The plaintiff was then taking four to six Panadol Osteo a day and no longer took Advil, replaced by Naprosyn. Dr Weissman thought that in the 2013 accident, she had probably had mild residual pre-existing sadness, depression and grief from that accident in the order of 2 per cent. She then had the 2018 accident, in which she seemed to sustain an aggravation of some of her pre-existing injuries and perhaps some new injuries.
219He thought the plaintiff was suffering from mild residual traumatisation features only and not a full blow chronic PTSD. She was also suffering from a mild mixed reactive depression and anxiety syndrome as a consequence or secondary to her accident-related pain injuries, disabilities, limitations and restrictions. She therefore had a transport accident-related mild Chronic Adjustment Disorder with Depressed and Anxious Mood. Technically, this represented a mild aggravation of her pre-existing but residual Chronic Adjustment Disorder with Depressed and Anxious Mood.
Dr Slesenger – occupational physician
220Dr Joseph Slesenger examined the plaintiff in June 2021 on Telehealth.
221The plaintiff told him of the 2013 accident, where she developed neck and lower back pain. She told him of her treatment, which was managed with intermittent osteopathy and medication, as well as a self-managed exercise program. She had been discharged from her pain specialist at the time of the 2018 accident. She was not seeing a general practitioner, and whilst there had been changes to her work duties, this was primarily due to a desire to change her work location and to make life changes.
222The plaintiff advised that as a result of the 2018 accident, she had sustained an aggravation of her pre-existing neck and lower back pain. The aggravation had persisted.
223The plaintiff described dull neck pain with occasional stabbing features, pain in the neck radiating to both shoulders with associated stiffness and restricted movement. Her sleep was disturbed by the residual symptoms. She had residual low back pain centred in the lower back, radiating into both hips. She had restless legs, which were diagnosed after the 2013 accident.
224Dr Slesenger concluded that the plaintiff presented with a history of axial spinal pain affecting her neck and lower back developing as a result of the 2013 accident for which she had treatment. She advised that her symptoms persisted and she continued to manage them with osteopathy and medication, as well as self-managed exercises. She advised of a neck injury at work in 2016 and then the 2018 accident.
225She told him that the 2018 accident aggravated her pre-existing neck and lower back pain, and that she had subsequently been managed under pain management at Precision Health in 2018 and discharged from their care. She described limited improvement in her symptoms, although advised of residual neck pain above her pre-injury level of symptoms.
226More recently, she developed tingling and numbness in the index finger and thumb of both hands, and was waiting assessment to exclude carpal tunnel.
227She described residual lower back pain as “achy” as well as “dull”, and had been moderate with occasional severe exacerbation. She also complained of numbness over the outside of the right leg. She continued to have difficulty with personal activities of daily living and some aspects of domestic care.
228Dr Slesenger was satisfied that the 2013 accident had contributed to the plaintiff’s overall impairment. However, he was also of the opinion that it was a minor contributing factor with regard to her residual disability, and thought that the 2018 accident was a significant contributing factor to her overall presentation. He was satisfied that the earlier accident contributed 25 per cent, and 75 per cent related to the 2018 accident.
229He imposed a number of work restrictions on which the plaintiff could work full time. He recommended that she remain at work eight hours a day, five days a week, with five-minute rests every hour.[63]
[63]He seems unaware of the hours the plaintiff was working at the time of the 2018 accident
The Defendant’s medical evidence
230The defendant tendered extracts from the clinical records of the You Yangs Medical Centre, Tarneit, Newtown Physiotherapy, osteopath, Dr Todd, and also the report of the August 2014 cervical MRI scan.
Medico-legal evidence
Dr Menz – orthopaedic surgeon
231Dr Menz saw the plaintiff in May 2021.
232He noted that as a result of the 2018 accident, the plaintiff reaggravated her cervical and lumbar back areas, which had been chronically painful since the 2013 accident. She advised that the increased degree of symptoms in her neck and lumbar spine following the 2018 accident had not resolved.
233The plaintiff was now back to working 32 hours a week as pre-accident. She was taking Panadol Osteo and Advil.
234The plaintiff then rated her neck pain at 8 to 9 out of 10 with no radiation into the upper limbs and no altered sensation. She rated her lumbar pain as 8 to 9 out of 10 with no radiation or altered sensation.
235On examination, there was some mild lower cervical spine tenderness, and tenderness in both right and left paraspinal muscles. There was some degree of restricted movement, as there was in the lumbar spine. Bilateral straight leg raising was to 60 degrees. Neurological examination was normal.
236Dr Menz noted the plaintiff aggravated her pre-existing cervical and lumbar pains she had been complaining of as a result of the 2013 accident, and she continued to complain of pain in these areas which really had not improved much at all since May 2018.
237In the 2018 accident, she sustained a further soft tissue injury to those areas and appeared to have sustained a minor soft tissue injury to her left knee which had almost resolved. The soft tissue injuries to the neck and lumbar spine were consistent with the 2018 accident.
238In his view, there were significant pre-existing conditions. Following the 2013 accident, the plaintiff sustained cervical and lumbar injuries and had a lengthy course of physiotherapy, and had osteopathic treatment extending until the 2018 accident. She had also had pain management and psychiatric treatment. The neck and lumbar pain had not resolved at the time of the 2018 accident.
239Investigations in 2014 showed very little other than age-related pathology.
240His examination findings were consistent with a minor to moderate soft tissue injury of which the plaintiff had complained since the 2013 accident. There were no significant inconsistencies between the radiology and examination findings. However, the rating of pain at 8 to 9 out of 10 at the extreme end of the pain range was not consistent with the examination and history to date of that level of pain.
241He did not think any further treatment would be of benefit. He thought the prognosis was poor, noting it had been eight years since the 2013 accident and three since the 2018 one, and there had been no improvement in her symptoms.
242Dr Menz was asked to estimate, as best he could, what the course of the pre-existing soft tissue injuries from the 2013 accident would have been in the absence of the 2018 accident. Had she not had the 2018 accident, would there have been any difference in her presentation and complaints?
243Dr Menz responded that since the 2013 accident, the plaintiff was complaining of severe cervical and lumbar pain. She started seeing an osteopath and saw him on many occasions, noting the appointments in 2016 and 2017. Of significance, she was seeing him on 3 May, 19 March and 5 February 2018, just prior to the 12 May 2018 accident, which certainly implied she still had significant ongoing neck and lumbar symptoms.
244Following the 2013 accident, she had some physiotherapy, undertook a pain-management program, and had some psychiatric treatment. At Dr Sullivan’s IME examination on 18 February 2015, she described neck and lumbar pain anywhere between 5 to 8 out of 10. Her general practitioner’s note of 19 October 2016 said the lumbar pain was on and off but the cervical pain was persistent.
245Further, Dr McCallum advised, on 21 November 2016, that the plaintiff was still complaining of chronic cervical and lumbar pain and also indicated she was having difficulty doing her normal duties, and he recommended a course of hydrotherapy and put her on Norflex. A further consultation with Dr Sabet Ghadem, occupational physician, on 3 April 2017, indicated the plaintiff was still having chronic neck and lumbar pain.
246The plaintiff was still having this pain as of April 2017, three years after the 2013 accident, and she continued to have osteopathic treatment right up until, and including, a week or so before the 2018 accident. That would imply her symptoms were not resolving, and had not resolved of any great significance, some four to five years after the 2013 accident.
247He would predict there would be no further improvement going into the future, whether the plaintiff had a further motor vehicle accident or not. The 2018 accident did exacerbate her pre-existing and significant cervical and lumbar issues.
Overview
248There is no dispute the plaintiff suffered a spinal injury in the 2018 accident. The consensus of medical opinion is that she suffered soft tissue injuries to her neck and lumbar spine, aggravating pre-existing degenerative disease in those areas.
249Counsel for the defendant conceded, if it was accepted that the plaintiff had lost the capacity for full-time work because of spinal pain, “it would be hard to argue against the proposition that globally it would be ‘serious’”.[64]
[64]T77
250However, at the time of the 2018 accident, the plaintiff was still experiencing spinal pain and having treatment in relation thereto as a result of the 2013 accident.
251The defendant’s primary submission was that the plaintiff’s current spinal condition is attributable to the 2013 accident as she deposed in her September 2019 affidavit. Alternatively, it was submitted that her present condition is caused by an accumulation of both accidents, “without the requisite differentiation and attribution causally for the 2018 accident”.[65]
[65]T77
252Counsel for the plaintiff submitted that the plaintiff was functioning well at work before the 2018 accident and needed little treatment in the leadup thereto. She had only three osteopathy treatments in the six months beforehand and “could not possibly have had anything other than some residual pain”.[66]
[66]T97
253It was submitted it was “plain” that the 2018 accident is the cause of the plaintiff’s present spinal condition.[67] As at the date of hearing, the consequences thereof are serious.[68]
[67]T124
[68]T99
254In this case, where there is a pre-existing spinal condition relating to the 2013 accident, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether any additional impairment resulting from the 2018 accident is serious and long term.
255In Petkovski v Galletti,[69] the Full Court of the Victorian Supreme Court accepted the proposition that:
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. … .”
[69] Supra. See also D’Agostino v Leatch [2011] VSC 249 and Altona Bus lines v Lococo [2002] VSCA 159
256The Court therefore must not grant leave unless it is satisfied that the compensable injury is a “serious injury”.[70]
[70]AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60
257Relevant to my consideration of the plaintiff’s pre 2018 accident spinal condition are a number of relevant matters including her level of activity at that time – at work, socially and domestically, any pain or limitations she was then experiencing and any treatment undertaken in relation thereto. Medical evidence of her spinal condition immediately prior to the 2018 accident is also relevant.
258In this application, there was the somewhat unusual situation where the plaintiff had sworn an affidavit on 6 September 2019 (“the first affidavit”), about seventeen months after the subject 2018 accident, in support of her serious injury application relating to her 2013 accident injuries.
259In short, in the first affidavit, she deposed that there was only a short period where her symptoms were aggravated as a result of the 2018 accident, and her symptoms and restrictions had then returned to their pre 2018 accident level – attributable to her 2013 accident injuries.
260In particular, she deposed the aggravation settled after a period of time:
“I resumed my daily tasks with the same restrictions as I was previously suffering and I returned to similar levels of pain. The residual issues from the 2018 accident are more flare-ups of pain for which at times I take pain relief and some ongoing issues with walking longer distances.”
261The plaintiff also deposed to ongoing problems at work following the 2013 accident due to low back and neck pain. She was finding the work too physically demanding and she transferred from permanent part time to casual at the prison, as at August 2017, as she was not coping with neck and low back pain – before the 2018 accident.
262While she deposed to some difficulty with her work and a reduction in her work after the 2018 accident, and interference with daily tasks and an increase in treatment, she also deposed that that aggravation “settled after a period of time”.
263Further, she deposed she continued to suffer constant pain and restriction in her neck and low back which she had suffered since the 2013 accident. She described difficulties with various movements and problems with sleep, housework, her mental health and reduced socialisation as a result of her 2013 accident injuries.
264On or about February 2019, she resigned from the prison, and as at September 2019, she was trying to reskill to obtain employment that suited limitations she suffered in the 2013 accident.
265Counsel for the defendant submitted, that, “in a nutshell”, the first affidavit was “fatal” to the plaintiff’s claim with respect to the 2018 accident, and there had been “a failure to differentiate, as a matter of causal attribution, what the 2018 accident did, which is required to back up now what is said to be the worsening condition”.[71]
[71]T82
266The crucial point was paragraph 58 of that affidavit, “that the aggravation had settled … and then [she] resigned”.[72]
[72]T81
267Further, the plaintiff confirmed that what she was saying was that her pain after the 2018 accident returned to similar levels to that she had had after the 2013 accident: “That’s what I say clearly, yes.”[73]
[73]T82
268The defendant’s primary submission was that it is the 2013 accident that is the cause of the plaintiff’s current spinal condition and if this was not accepted, the Court would have to find that the first affidavit was not true in circumstances where it was not said this plaintiff had told lies about it.[74]
[74]T87
269In response to my comment that I thought the plaintiff was very open in her evidence, counsel responded, it “would be therefore paradoxically an injustice to try and reinterpret the first affidavit as if it wasn’t written. It’s there as clear as day.”[75]
[75]T87
270Counsel for the plaintiff submitted the plaintiff’s first affidavit cannot be looked at in isolation.[76] It has to be looked at in the prism of where the plaintiff was in September 2019 and how she is now “because they are distinct”.[77]
[76]T99
[77]T98
271While counsel acknowledged that the plaintiff had agreed that there was an aggravation that had settled, her third affidavit, which effectively was not challenged, was relied upon.[78]
[78]T103
272Counsel did not like calling the first affidavit a “fiction”, “but it is a fiction that is created for the purpose of an application for a serious injury certificate”.[79]
[79]T107
273At the time the plaintiff swore her first affidavit, she “got it wrong”, and that is why she has “fixed it up” in her third affidavit. Clearly, the first affidavit was made for the 2013 accident application “and clearly there were consequences that were then taken into account that were only referable to 2018 accident, with the ongoing aggravation and the situation she finds herself in”.[80]
[80]T109
274It was submitted when she swore her first affidavit, the plaintiff “did not have a full appreciation of where she sits”.[81]
[81]T114
275However, seventeen months had elapsed after the 2018 accident when this affidavit was sworn.[82] By that time, in my view, the plaintiff had a clear understanding of what was causing her problems. She knew what was happening in her life. She deposed she resigned from the prison due to her 2013 accident injuries. She is a truthful witness and was clear that this was the situation in September 2019. There has been nothing pointed to that had changed since that time to explain a greater role now played by the 2018 accident in her current presentation.
[82]T107
276She has not explained why, at that time, she had not come to appreciate the full ramifications of the impact of the 2018 accident as she deposed in her third affidavit.
277Anyone reading the first affidavit would see mention of the 2018 accident after which there was an increase in symptoms and treatment for a period of time which settled and that any problems as of September 2019 when that affidavit was sworn, were referrable to the 2013 accident. The plaintiff quite openly agreed in cross-examination that this was the situation.[83]
[83]T81
278This was not a case where the plaintiff was silent about the effects of the 2018 accident at that time. She dealt with this issue directly and stated that the 2018 accident was not playing any role in her condition at that time.
279There was an attempt to remedy this problem by providing two detailed affidavits in relation to the present application. In particular, in her third affidavit sworn on 9 June 2021, the plaintiff deposed that when she swore her first affidavit, she was still working and studying and had not come to appreciate the full ramifications of the impact of the 2018 accident.
280Counsel for the plaintiff submitted that the extra material provided a frank and clear picture of the before and after picture.
“What is the complication for this plaintiff, this beguiling charming plaintiff, is that she’s sworn an affidavit where she attributes a situation to a first transport accident 16 months after the happening of the second transport accident. She got it wrong. She tries to correct that in the third affidavit.
Reading appropriately through all three affidavits makes it plain that the second transport accident is attributable to the present situation where she finds herself.”[84]
[84]T124
281Counsel was critical of the failure to cross-examine the plaintiff in relation to the detail in her later affidavits. I reject this criticism, given my acceptance of the plaintiff’s evidence of her condition leading up to September 2019 as deposed to. There was no need therefore to cross-examine her about those matters in her later affidavits.[85]
[85] See paragraphs [98]-[109] and paragraphs [122]-[125] of my Judgment
282For the reasons outlined above, I do not accept that the first affidavit was wrong and the later affidavits reflect the true situation. I found the plaintiff to be an honest witness who clearly agreed in cross-examination that any aggravation from the 2018 accident had settled, as she deposed.
283In those circumstances, it is difficult to accept on the plaintiff’s evidence that any aggravation of her spinal condition by the 2018 accident is serious as at the date of the hearing.
Medical evidence
284In the eighteen months or so before the 2018 accident, some four years after the 2013 accident, in addition to osteopathy treatment, the plaintiff was undergoing pain management in relation to her earlier accident injuries.
285Dr McCallum at Precision noted in November 2016 that the plaintiff was still complaining of chronic cervical and lumbar pain, and also indicated she was having difficulty doing her normal duties, and he recommended a course of hydrotherapy and put her on Norflex. Dr Sabet Ghadem, also at Precision, reported in April 2017, indicating the plaintiff was still having chronic neck and lumbar pain.
Treatment
286In addition to relying on the plaintiff’s more recent affidavits as to the seriousness of her 2018 accident injuries, counsel for the plaintiff submitted there was an increase in spinal treatment following the 2018 accident.
287The plaintiff had not had any general practitioner consultations for at least ten months with respect to any spinal pain. She had not had any psychological treatment for the better of ten or eleven months, with Ms Tiong discharging her from her care in 2017, when she was functioning well.
288The plaintiff had had osteopathy seven or eight days before the 2018 accident and even those entries talk about her progressing well and doing fine. It was submitted, the plaintiff was attending for “management”.
289Between September 2017 and March 2018, the plaintiff saw nobody – “No doctor, no physiotherapist, no psychiatrist, no osteopath, nothing.”[86]
[86]T107
290The plaintiff was getting better, as Mr Todd said in May 2018.[87] There was then more regular osteopathy after the accident.[88] Dr Menz was wrong when he said the plaintiff was not having treatment leading up to the accident.[89]
[87]T116
[88]T117
[89]T118
291It was submitted Mr Todd was the “bloke who brings it home when one looks at his report and the level of treatment before and afterwards”.[90]
[90]T122
292Counsel for the defendant submitted the plaintiff was having ongoing spinal problems as at May 2018. In cross-examination, she accepted the accuracy of her treaters’ clinical notes, although she could not remember the specific examinations.[91]
[91]T78
293It was conceded the 2018 accident gave rise to increased treatment, at least in the beginning, “and of course it had some aggravating effect that would not be denied”.[92]
[92]T79
294However, when one compared the post 2018 accident osteopath visits, between November 2018 and November 2020, the plaintiff attended twenty-three times over twenty-three months – a situation which could be described as “monthly-ish” – a similar situation to the fifteen osteopath visits over the fifteen months from January 2017 to the 2018 accident in May that year.[93]
[93]T79
295While the plaintiff may have seen her general practitioner more frequently after the 2018 accident, it was submitted he did little more than examine her. The real treatment was with the osteopath.[94]
[94]T80
296As counsel for the defendant submitted, the initial increase in osteopathy treatment had to be read in light of the plaintiff’s first affidavit. Indeed, everything that happened after that had to be read that way, because the plaintiff is “the one who best knows contemporaneously and tells the story”.[95]
[95]T83
297In my view, there has not been a significant increase in treatment as a result of the 2018 accident, save for a more intense period of osteopathic treatment in the months thereafter. While Mr Todd described a significant worsening in the plaintiff’s spinal condition after the 2018 accident, he did not explain this “significant worsening,” save for an initial increase in treatment.[96]
[96]T90
298Dr Todd also reported there was consistent acute aggravation due to multiple factors. While he did not explain what these were, counsel for the defendant submitted the multiple factors were the plaintiff’s psychological issues relating to the 2013 accident, her difficult at work with the trolleys, the death of her father, not being able to get on with the course, and the lack of treatment for the whole of 2021.[97]
[97]T90
Other treatment
299In her first affidavit, the plaintiff described taking Panadol Osteo and Naprosyn for her 2013 accident injuries. This regime continues, with no stronger painkilling medication prescribed after the 2018 accident.
300The plaintiff had the same management program at Ascend in November 2018 as she had undertaken prior to the 2018 accident.
301The plaintiff recommenced counselling in July 2018 with Ms Tiong, whom she saw for a year from August 2016 in relation to her 2013 accident issues.
302There has been no specialist orthopaedic referral following the 2018 accident.
303Taking these factors into account, there has not been a significant increase in treatment as a result of any 2018 accident injury.
Work
304Counsel for the plaintiff submitted there is “absolutely no evidence” that the plaintiff had any incapacity for employment at the time of the 2018 accident, there being no medical certification to this effect.[98]
[98]T98
305In the months leading up to the 2018 accident, the plaintiff worked at the prison on 18 March, 1 April, 15 April, 29 April and on 13 May 2018, a day after the accident.[99] She was also working shifts at Quality at that stage. From February 2018 to the date of the accident, she worked four shifts totalling 27.75 hours, two shifts totalling 5.5 hours, and another shift of 6.5 hours.
[99]T101
306While prior to the 2018 accident there was a diminution in the number of shifts worked, there was no diminution in hours worked. The plaintiff’s earnings were significant in the period prior thereto.[100]
[100]T104
307It was submitted the plaintiff could only work four-hour shifts after the 2018 accident because of her injuries. Those shifts could not be accommodated by the prison, so she then resigned.[101]
[101]T100
308While the defendant accepted that the four-hour shifts at the prison started after the 2018 accident in line with medical certification, it was submitted “this was not a significant matter given the defendant’s hypothesis”.[102]
[102]T86
309It was not questioned there was now a diminution in capacity for full-time work, or that there was a diminution because of pain, but it was not to do with the compensable injury, or, if it is, “it is a combination that cannot be separated”.[103]
[103]T87
310As I indicated during the hearing, it was not the plaintiff’s evidence that she resigned because of any increase in her symptoms following the 2018 accident. She had deposed to problems with work prior to the 2018 accident and in her first affidavit, attributed her resignation from the prison to her 2013 accident injuries.[104]
[104]T98
311In those circumstances, I reject the submission that any significant incapacity relates to the 2018 accident. The plaintiff deposed that she was having neck and lower back pain doing her job prior thereto. She moved to casual work at the prison in August 2017 but her problems at work continued. This is how she described that situation seventeen months later, attributing work problems to the 2013 accident.
312As I commented during the hearing, I was very impressed by the plaintiff. If she said she had problems with pain at work before the 2018 accident, I accept her evidence in this regard. I do not require certification from a doctor that this was the case.[105]
[105]T106
313I am not satisfied that there has been any significant interference with the plaintiff’s earning capacity as a result of the 2018 accident, as her ability to do heavier pharmacy work, standing for pronged periods on her feet and wheeling trolleys, was already compromised before the 2018 accident.
314Before the 2018 accident, the plaintiff wanted to change her life, her “work/life balance”, and that led to her leaving the prison and going to Canberra in late 2017. She wanted to just have a different life, wanted to change things. After Canberra, she returned to the prison but experienced increased pain with her duties – before the 2018 accident.[106]
[106]T84
315I do accept that the plaintiff has had increasing problems doing her pharmacy work at Bourke but this seems to relate to the absence of supportive osteopathic treatment, which she previously enjoyed for many years. There is no medical evidence, however, that her condition is getting worse.
316Further, in purely financial terms, she has still been able to earn a wage comparable to pre 2018 accident earnings when the costs of her accommodation at Bourke and other benefits are taken into account.[107]
[107]T88
Medical opinion as to the current role played by the 2013 and 2018 accidents
317I am mindful of what was said by the Court of Appeal in Dordev v Cowan[108] in relation to the plaintiff’s credit in this type of case. As Chernov JA said, at paragraph 14 of his judgment, a plaintiff’s credibility is relevant not only to whether his evidence should be accepted, but it is also relevant to the reliability of the medical evidence, because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.
[108][2006] VSCA 254
318Accordingly, in this case, what appear on their face to be medico-legal opinions supportive of the plaintiff’s application, must be looked at in the light of my views as to her and the accuracy of the histories given by her.
319As the plaintiff deposed in September 2019, any aggravation from the 2018 accident had settled by that time. This was not the history relied upon by occupational physician, Dr Slesenger, who attributed 25 per cent of the plaintiff’s current spinal condition to the 2013 accident and the remaining 75 per cent to the 2018 accident.
320Accordingly, I do not accept his view that there was a minor contributing factor with regard to a residual disability from the 2013 accident, and that the 2018 accident was a significant contributing factor to the plaintiff’s current overall presentation.[109]
[109]T121
321Orthopaedic surgeon, Dr Menz, thought there was a pre-existing condition. On examination, he found minor moderate soft tissue injury, of which the plaintiff continued to complain since the 2013 accident.
322On any view, he could not differentiate and attribute to the 2018 accident a serious injury consequence devoid of the 2013 accident, whether solely due to the 2013 accident “with some accumulation from the 2018 accident”.[110]
[110]T97
323Orthopaedic surgeon, Mr Grossbard, considered both accidents when he examined the plaintiff in 2019. He thought the spinal symptoms were longstanding, the lumbar in particular being made worse by the 2013 accident, noting the plaintiff remained in treatment for her intermittent back pain until the 2018 accident, when treatment was intensified.[111]
[111]T93
324In particular, Mr Grossbard noted Dr Todd’s notes prior to the 2018 accident confirmed lumbar spasm on 3 May, nine days prior to the relevant accident. He attributed the spasm to the 2013 accident only.
325In all the circumstances, I prefer the opinion of orthopaedic surgeon, Dr Menz, who was unable to do the disentanglement required for the plaintiff to succeed in this application given her ongoing spinal problems at the time of the 2018 accident. Fellow orthopaedic surgeon, Mr Grossbard, although focussing on an impairment assessment, made an allowance for the lumbar spine in relation to the 2013 accident only.
326Further, in his recent report, the plaintiff’s new general practitioner, Dr Hassan, did not really assist the present application, as he had difficulty about making definitive comments about direct association between the accidents with causation. He noted there were no obvious injuries, the x-rays were not conclusive, and there were was significant contribution of the motor vehicle accident(s).[112]
[112]T92
327While the plaintiff’s spinal condition was aggravated for a short time by the 2018 accident, I am not satisfied any aggravation as a result of the 2018 accident is serious as at the date of hearing.
328I accept her evidence of the role played by her 2013 accident injuries in her presentation as at September 2019. There were no issues that had arisen thereafter that caused her view at that time to be premature or ill informed.
329Having accepted that affidavit evidence confirmed by her in cross-examination, any later more detailed affidavits do not change this evidence.
330Any aggravation by the 2018 accident only added to an already compromised employment capacity as a result of the 2013 accident and problems with her work prior thereto, and resulted in increased treatment for a short time but then a return to pre-2018 levels of about monthly osteopathic treatment and the need for very little painkilling medication. Any additional impairment as a result of the 2018 accident is not “serious”.
331Further, while counsel for the defendant conceded there was a Richards & Anor v Wylie[113] component that could be considered in terms of Dr Weissman’s examination, he only diagnosed a mild Adjustment Disorder.[114]
[113]Supra
[114]T94-5
332Taking into account all the evidence, I am not satisfied any aggravation of the plaintiff’s spinal condition as a result of the 2018 accident is “serious”.
333Accordingly, this application is dismissed.
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