Sobko v Transport Accident Commission
[2019] VCC 81
•8 February 2019
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-03163
| JULIE LORRAINE SOBKO | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 31 January 2019, 4 and 6 February 2019 | |
DATE OF JUDGMENT: | 8 February 2019 | |
CASE MAY BE CITED AS: | Sobko v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 81 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – transport accident – soft tissue injury to plaintiff’s left leg resulting in pain syndrome – whether injury organically based and falls under subparagraph (a) of the definition of “serious injury” – whether narrative test is satisfied – whether injury permanent
Legislation Cited: Transport Accident Act 1986
Cases Cited:Richards v Wylie (2000) 1 VR 79; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Humphries & Anor v Poljak [1992] 2 VR 129; Hunter v Transport Accident Commission [2005] VSCA 1
Judgment:Leave granted to the plaintiff to bring common law proceedings to recover pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab with Ms R Dal Pra | Slater and Gordon |
| For the Defendant | Mr A Moulds QC with Ms K Manning | Solicitor to the Transport Accident Commission |
HER HONOUR:
Background
1 On 2 April 2016, the plaintiff, Julie Sobko, was driving her car along Melbourne Road in North Geelong in the left-hand lane. Suddenly, and without warning, another car changed lanes into her lane, causing an inevitable collision between the two cars (“the accident”). The plaintiff suffered a soft-tissue injury to her left leg in the accident. After the accident, the plaintiff’s left leg “would not stop jumping. It was going into spasms.”[1]
[1]Exhibit A, plaintiff’s first affidavit, sworn 22 February 2018
2 Over the following days, the plaintiff began to experience pain and numbness in her left leg. The pain was so bad that it interfered with her sleep. Not long after the accident, when the plaintiff consulted her general practitioner, Dr Greg Lindquist, she was prescribed various medications in an attempt to alleviate the pain in her left leg. She developed a limp. Ever since the accident, the plaintiff claims to have been incapacitated to a large degree by her left leg pain. Dr Lindquist has been the plaintiff’s general practitioner for approximately fifteen years. He has continued to treat the plaintiff for various medical conditions, but in particular, so far as these proceedings are concerned, he has been involved in the ongoing treatment and care of the plaintiff’s left leg condition.
3 Shortly after the accident, on 18 April 2016, the plaintiff first attended Dr Lindquist in relation to the injuries sustained in the accident. Prior to that, she had attended the Corio Medical Clinic and received a prescription of Nurofen and then Endone for her left leg symptoms. X‑rays of her pelvis, hips and left leg, including her knee and ankle, were all subsequently reported as normal apart from mild degenerative changes.
4 Because of persistent left leg pain and paraesthesia, Dr Lindquist ordered CT scans and other diagnostic tests to be conducted of the plaintiff’s lumbosacral spine. There were degenerative changes but no associated nerve impingement. Dr Lindquist also referred the plaintiff for physiotherapy, and continued to prescribe various medications for pain. Due to her lack of improvement and resistance to any form of treatment, further tests were ordered, including a Duplex ultrasound of the deep veins of the plaintiff’s left leg. The results confirmed that there was no evidence of deep vein thrombosis.
5 By December 2016 Dr Lindquist felt that the plaintiff required specialist care, specifically a neurological opinion, and he referred the plaintiff to a pain-management clinic. Subsequent nerve-conduction studies of the plaintiff’s left leg were reported as normal, and a Doppler ultrasound of her leg arteries revealed a patent arterial system with no evidence of focal stenosis. A diagnosis of Complex Regional Pain Syndrome was confirmed at the Geelong Pain Management Clinic, and weekly physical therapy and hydrotherapy treatments recommenced.
6 Throughout the period of Dr Lindquist’s care of the plaintiff, her symptoms have remained essentially unchanged.
7 At the time of the accident, the plaintiff was aged fifty-four.
The Application
8 The plaintiff now seeks leave under s93(4)(d) of the Transport Accident Act 1986 to bring common law proceedings to recover pain and suffering damages for the injury loss and damage suffered in the accident. The plaintiff relies on subparagraph (a) of the definition of “serious injury” contained in s93(17) of the Act, that provides:
“serious injury means–
(a) serious long-term impairment or loss of a body function; ...”
9 The body function upon which the plaintiff relies is the left lower limb.
The Hearing
10 The hearing commenced before me on 31 January 2019 and continued on 4 and 6 February 2019. Mr Macnab appeared with Ms Dal Pra on behalf of the plaintiff. Mr Moulds QC appeared with Ms Manning on behalf of the defendant.
The Issues
11 The plaintiff has been diagnosed with Complex Regional Pain Syndrome Type 1 (“CRPS 1”) resulting from a soft tissue injury to her left leg sustained in the accident. The defendant concedes that, if correctly diagnosed, this condition relates to an organic injury, but takes issue with the correctness of the diagnosis. The defendant submits that any current problems that the plaintiff has are predominantly referable to a mental or behavioural disturbance or disorder, and not to any relevant organic injury.
12 The defendant contends that if the plaintiff has suffered CRPS 1 the consequences of the plaintiff’s injury are not as bad as the plaintiff would have the court believe, and in any event they are not so serious as to satisfy the narrative test. That is to say, the defendant contends that when judged in comparison with other cases in the range of possible impairments, the consequences cannot be fairly described as at least very considerable and more than significant or marked. The defendant also submits that there are signs that the plaintiff’s condition is improving and that it will likely continue to do so.
13 The defendant submits that the plaintiff’s credit is severely undermined because she was caught out telling significant lies about the level of her disability, namely her claims that she was unable to drive a car and that her social life was virtually non-existent. Accordingly, the defendant submits that I should reject the plaintiff’s evidence unless it is corroborated.
14 The issues for determination are:
(i) Is the plaintiff a credible witness?
(ii) What is the plaintiff’s injury?
(iii) Is the plaintiff’s injury a physical one?
(iv) Do the consequences of the injury satisfy the narrative test?
(v) Is the element of permanency established?
Summary of findings
15 For the reasons explained in this judgment, I answer the above questions as follows:
(i) Is the Plaintiff a credible witness?
16 There are sound reasons to scrutinise the plaintiff’s evidence with care; however, although the plaintiff has lied about some matters, that does not mean that everything else she has said should be rejected. On significant matters relating to the consequences of her injury there is independent objective evidence supporting some of the plaintiff’s claims.
(ii) What is the Plaintiff’s injury?
17 In the accident the plaintiff suffered soft tissue damage to her left lower limb. She developed CRPS 1 as a consequence.
(iii) Is the Plaintiff’s injury a physical one?
18 CRPS 1 is organically based. There is an element of functional overlay in response to this organic injury, but the predominant cause is physically based.
(iv) Do the consequences of the injury satisfy the narrative test?
19 Although I am not satisfied of the truth of the plaintiff’s evidence about some of the alleged consequences, the consequences about which I am satisfied are sufficient to meet the narrative test.
(v) Is the element of permanency established?
20 Despite signs of limited improvement, it is more probable than not that the plaintiff’s condition is long-term and likely to persist well into the foreseeable future.
21 I shall now elaborate on my findings.
(i)Is the Plaintiff a credible witness?
22 I am satisfied that the plaintiff was caught out telling two significant lies:
(a)She told a number of medical practitioners, who were assessing her for the purposes of reporting to the court, that she was unable to drive a car and that she had not driven since the accident because of her injury and because of her fear of getting back into the driver’s seat;[2] and
(b)She claimed that her social life is “non-existent”.[3]
[2]Mr David Brownbill, consultant neurosurgeon, exhibit P, page 2; Dr Andrew Firestone, consultant psychiatrist, exhibit 7, pages 2-3
[3]Dr Lester Walton, consultant psychiatrist, exhibit T, page 2
23 The plaintiff conceded that these representations were inaccurate. After the accident, the plaintiff stopped driving; however, in September 2018 the plaintiff acquired a car and started driving it. She used it to collect her friend and to drive to bingo. Covert surveillance taken of the plaintiff on 4 and 6 October 2018 and 13 and 15 December 2018[4] depicted the plaintiff driving to various locations, including to bingo. She was also seen driving her friend in the car. When cross-examined, the plaintiff conceded that she plays bingo up to three times per week[5] and that she drives her car to get there.
[4]Exhibits 1-4 inclusive
[5]Transcript (“T”) 38
24 In light of this evidence, I find that the plaintiff has not satisfied me on the balance of probabilities that as a consequence of her injury she is unable to drive a car or that she is unable to socialise. The real question is, however, whether, despite telling these lies, the rest of the plaintiff’s evidence about the consequences of her injury should be discarded.
25 The video surveillance, although adverse to the plaintiff on the question of driving and socialising, was highly supportive of impairment of her left leg. As counsel agreed, the videos depicted the plaintiff walking with a pronounced limp. She moved slowly and at times gingerly. It is inconceivable that the plaintiff was acting for the purposes of the camera, because she was unaware that she was being filmed. As is obvious, if she knew that she was being filmed she would not have driven the car. So much was conceded by Mr Moulds. There is other objective evidence to be found in the contemporaneous records of Dr Lindquist that the plaintiff developed this limp as a result of leg pain following the accident. Before the accident there is no record of the plaintiff experiencing any problems with her left leg. Nor is there any record of her limping prior to the accident. As mentioned earlier, over the years since the accident Dr Lindquist has prescribed various medications in an effort to alleviate the plaintiff’s left leg pain.
26 Dr Clayton Thomas, consultant in rehabilitation and pain medicine, has watched the surveillance footage. He came to the conclusion that the plaintiff’s gait was symmetrical, “not at all antalgic”.[6] With respect, I disagree. Dr Thomas thought “[n]one of the DVDs showed any mobility disability”.[7] The video speaks for itself. I do not consider that an expert’s eyes are required to see what a layperson can see, namely whether a person is walking with a limp. Although the cause of the limp is a matter upon which expert evidence may be required, the fact of the limp is not. I note that Dr Lindquist’s contemporaneous records document his observation of the plaintiff limping and at almost every consultation complaining of left leg pain.
[6]Dr Clayton Thomas, exhibit 6, page 1
[7]Exhibit 6, page 1
27 I am satisfied on the balance of probabilities that the plaintiff suffers from left leg pain of such severity that it causes her to limp. There is no other credible evidence before the court to explain the limp.
28 It is too simplistic to say that because the plaintiff lied about driving and socialising she must therefore be lying about everything else. For example it was the plaintiff who reported to Associate Professor Pirpiris on 5 October 2018 that her symptoms had improved slightly. Such a statement is inconsistent with a desire to exaggerate the consequences of her injury. In assessing credibility, I consider the better approach is to scrutinise the plaintiff’s evidence with great care. Although there is no legal requirement that the plaintiff’s evidence be corroborated, I am satisfied that material parts of her evidence are supported by independent evidence and objective facts. Rather than make a bald statement that the plaintiff either is or is not a credible witness, I shall assess the totality of the evidence and determine issue by issue whether the plaintiff has satisfied me on the balance of probabilities that the relevant assertions of fact are established.
(ii)What is the Plaintiff’s injury?
29 The plaintiff relies upon the evidence of her treating healthcare professionals, namely Dr Lindquist,[8] general practitioner; Dr Sujith Ayyappan,[9] consultant neurologist; Dr Malcolm Ong,[10] occupational and environmental medicine consultant, and Mr Ashley Cannon,[11] physiotherapist; and the medico-legal reports of Dr Peter Blombery,[12] consultant physician (vascular disease), and Associate Professor Pirpiris,[13] orthopaedic surgeon, to prove that in the accident, the plaintiff sustained soft tissue injury to her left lower leg which developed into CRPS 1. It is submitted on behalf of the plaintiff that she also suffers from neuropathic pain, supporting the diagnosis of organic injury.
[8]Exhibit O, page 4
[9]Exhibit K, page 2
[10]Exhibit M
[11]Exhibit N, page 1
[12]Exhibit R, page 4, and exhibit U, page 2
[13]Exhibit S, page 5
30 I have mentioned earlier the history of the plaintiff’s treatment and progress.
31 In May 2017, a multidisciplinary pain management assessment was conducted of the plaintiff. The plaintiff was found to have features indicative of CRPS 1 according to the Budapest criteria:
“1. Continuing pain which was disproportionate to any inciting event
2. Symptoms (at least 1 symptom in 3 of the following categories required to make a clinical diagnosis)
·Sensory – Nil
·Vasomotor – temperature asymmetry/colour change/colour asymmetry
·Sudomotor or oedema – oedema
·Motor or trophic – decreased range of motion/motor dysfunction (weakness, tremor, dystonia)
3. Signs (at least 1 sign in 2 of the following categories required to make a clinical diagnosis)
·Sensory – Nil
·Vasomotor – temperature asymmetry/colour change/colour asymmetry
·Sudomotor or oedema – oedema
·Motor or trophic – decreased range of motion/motor dysfunction (weakness, tremor, dystonia)
4. No other diagnosis better explains the signs and symptoms.”[14]
[14]Exhibit H, page 4
32 On 1 February 2018, Dr Blombery conducted a thorough examination of the plaintiff that included taking the temperature of both of her lower limbs. He noted the left foot was 3.5 degrees cooler than the right, and that the left calf was 3 degreescooler than the right. He also observed that the plaintiff’s left leg was a little duskier than the right. He noted that the plaintiff moved slowly, with quite an antalgic gait.[15]
[15]Exhibit R, page 3
33 Dr Blombery diagnosed the plaintiff as suffering soft tissue injury to the left leg, accompanied by CRPS 1.[16]
[16]Exhibit R, page 5
34 In his second report, Dr Blombery recorded his observations on examination of the plaintiff on 5 December 2018. At that time he found her left foot and calf to be 3o cooler than the right foot. The left foot was darker in appearance than the right foot.[17]
[17]Exhibit U, page 2
35 There is other evidence consistent with a diagnosis of CRPS 1 to which I shall soon refer.
36 On the other hand, the defendant submits that the plaintiff has developed a form of “functional overlay” in response to the soft tissue injury to her leg, and that the physical injury has passed. Essentially, so the defendant contends, the plaintiff has been left with a Chronic Pain Syndrome that is not substantially organically based. The defendant relies on the evidence of Dr Thomas, who saw the plaintiff on only one occasion on 3 May 2018.[18] Dr Thomas was asked to provide a further report following receipt of the video surveillance of the plaintiff. He was also provided with a copy of Dr Blombery’s report. Having seen the surveillance evidence, Dr Thomas stated:
[18]Exhibit 5
“Dr Blombery’s report is the only one which categorically meets the criteria for CRPS.
The video evidence would support that her disability is not that marked. At the time that I saw her, she told me that she did not travel in a car anymore. She reported that she caught public transport.
There is certainly a marked discordance in the evidence that has been sent to me by way of the surveillance material and her history that I have seen from her.
Notwithstanding Dr Blombery’s expertise, at the time that I saw her, she certainly did not meet the diagnosis of CRPS. In particular, there is certainly no wasting of her calf. She had no hyperalgesia, no dynamic allodynia, no mechanical allodynia. The left foot and ankle were not tender. Range of motion on that side of the foot and ankle were the same as the other side and this is also noted in the report from Associate Professor Pirpiris.
Her work capacity has not been changed as a result of this injury. Her ability to function at home domestically, socially or leisurely, has not been affected by this injury.”[19]
[19]Exhibit 6, page 3
37 I should note here that at the time of his examination in May 2018 the plaintiff was not in fact driving. She did not acquire a car or start driving until September 2018.
38 Dr Thomas did not re‑examine the plaintiff for the purposes of preparing his second report. Dr Thomas did not explain how he arrived at his conclusion that the “temperature [of the plaintiff’s lower limbs] was exactly the same on both sides” in his first report.[20] In any event, Dr Blombery’s evidence of finding that the plaintiff’s left lower limb was cooler than her right on both occasions that he examined the plaintiff remains unchallenged.
[20]Exhibit 5, page 3
39 In his second report, Dr Thomas set out the diagnostic criteria for CRPS 1 and his explanation of why the plaintiff failed to satisfy them:
“According to the CRPS clinical diagnostic criteria, she must:
1. Have continuing pain which is disproportionate to any inciting event. She meets this criteria.
2. Must report at least one symptom in three of the four categories:
Sensory. Reports of hyperaesthesia and/or allodynia.
Vasomotor. Reports of temperature asymmetry and/or skin colour changes and/or skin colour asymmetry.
Pseudomotor/oedema. Reports of oedema and/or sweating change and/or sweating asymmetry.
Motor/trophic. Reports of decreased range of motion and/or motor dysfunction (weakness, tremor, dystonia) and/or trophic changes (hair, nail, skin).
At the time that I saw her, she met the sensory definition but not the vasomotor. The vasomotor was recorded by Dr Blombery.
3. Must display at least one sign at the time of evaluation in two or more of the following categories:
Sensory. Evidence of hyperalgesia and/or allodynia. She did not display this at the time that I saw her.
Vasomotor. Evidence of temperature asymmetry and/or skin colour change and asymmetry. She did not have this at the time that I saw her.
Pseudomotor/oedema. Evidence of oedema and/or sweating change and/or sweating symmetry. She did not have this at the time that I saw her.
Motor/trophic. Evidence of decreased range of motion and/or motor dysfunction and/or trophic changes (nail, hair, skin). She did not have this at the time that I saw her.
Dr Blombery reported the temperature asymmetry, which was marked.
4. There is no other diagnosis that then explains the signs and symptoms.
Dr Blombery’s report is the only one which categorically meets the criteria for CRPS.
The video evidence would support that her disability is not that marked. At the time that I saw her, she told me that she did not travel in a car anymore. She reported that she caught public transport.
There is certainly a marked discordance in the evidence that has been sent to me by way of the surveillance material and her history that I have seen from her.
Notwithstanding Dr Blombery’s expertise, at the time that I saw her, she certainly did not meet the diagnosis of CRPS. In particular, there is certainly no wasting of her calf. She had no hyperalgesia, no dynamic allodynia, no mechanical allodynia. The left foot and ankle were not tender. Range of motion on that side of the foot and ankle were the same as the other side and this is also noted in the report from Associate Professor Pirpiris.
Her work capacity has not been changed as a result of this injury. Her ability to function at home domestically, socially or leisurely, has not been affected by this injury.”[21]
[21]Exhibit 6, pages 2-3
40 The defendant also relies upon the report of Dr Andrew Firestone.[22] Dr Firestone accepted and adopted the diagnosis of Dr Thomas that the plaintiff had no signs of Complex Regional Pain Syndrome.[23] He noted that Dr Thomas’ diagnosis was “of chronic pain syndrome. [Dr Thomas] found that the diagnosis of complex regional pain syndrome was not supported.”[24] Dr Firestone considered that apart from the presence of pain “there is no psychiatric diagnosis”.[25] He stated:
“I accept Dr Clayton Thomas’ diagnosis of chronic pain syndrome consequent upon the accident. In DSM V, this is somatic symptom disorder with predominant pain, 300.82.
This appears to be a direct result of the accident itself.”[26]
[22]Exhibit 7
[23]Exhibit 7, page 5
[24]Exhibit 7, page 6
[25]Exhibit 7, page 6
[26]Exhibit 7, page 6
41 Because Dr Firestone relied upon Dr Thomas’ diagnosis for the purposes of his report, if Dr Thomas’ diagnosis falls, so does Dr Firestone’s.
42 In arriving at my conclusion that the plaintiff suffers from CRPS 1 resulting from soft tissue injury to the left leg, for the following reasons I have preferred the evidence contained in the plaintiff’s experts’ reports to the evidence of Dr Thomas:
(i) Dr Lindquist, who it will be remembered has been the plaintiff’s general practitioner for approximately fifteen years, has made contemporaneous notes of regular and frequent consultations with the plaintiff. He has consistently recorded his observations that the plaintiff suffers from lower left leg pain, that she limps, that she complains of her left leg feeling heavy and cold, that her left leg feels numb, that there is swelling in the left leg, and that the plaintiff has neuropathic pain.[27]
[27]Exhibit V. See for example entries of 18 and 27 April 2016; 4, 9, 16 and 23 May 2016; 6 and 20 June 2016; 4, 11, 18 and 25 July 2016; 10, 15 and 22 August 2016; 5 and 19 September 2016; 3 October 2016; 18 November 2016; 2 and 23 December 2016; 20 and 27 January 2017; 10 and 24 February 2017; 10 and 24 March 2017; 7 and 21 April 2017; 5 and 12 May 2017; 2 and 30 June 2017; 28 July 2017; 11 August 2017; 6 October 2017; 3 November 2017; 1 December 2017; 29 January 2018; 26 February 2018; 26 March 2018; 23 April 2018; 21 May 2018; 18 June 2018; 18 July 2018; 15 August 2018; 12 September 2018; 10 October 2018; 7 November 2018, and 5 December 2018
(ii) The multi-disciplinary pain management assessment conducted at Advance Healthcare together with the non-completion report[28] support the diagnosis of CRPS 1. The plaintiff was referred to Dr Ong for ongoing management of treatment and medications, and she was referred to the Pain Matrix to review procedural options for her CRPS 1.
[28]Exhibit J
(iii) Dr Blombery examined the plaintiff on two occasions. The first such examination and assessment was commissioned jointly by the parties and took place on 1 February 2018. As mentioned earlier, Dr Blombery made a careful examination of the plaintiff in which he recorded the difference in the temperature of her legs. His record that the left foot was 3.5 degrees cooler than the right, and that the left calf was 3 degrees cooler than the right, demonstrates his scientific approach and his attention to detail and accuracy.[29] In his second report, following a review of the plaintiff on 25 October 2018, Dr Blombery again conducted a thorough examination of the plaintiff and recorded that her left foot and calf were 3 degrees cooler than her right foot. He also noted that the left foot was darker in appearance than the right foot.[30]
[29]Exhibit R, page 3
[30]Exhibit U, page 2
I consider that Dr Blombery’s examination was conducted with an open mind and that he recorded his findings in a scientific and unbiased manner. His report contained observations and expressed conclusions both in favour of the plaintiff and against her. For example, in his first report, when he asked the plaintiff to move her ankle, there was no movement of the ankle or hind foot at all, although he was able to move the areas passively.[31] In his second report he observed features of “exaggerated pain behaviour”.[32]
[31]Exhibit R, page 3
[32]Exhibit U, page 2
It is true that Dr Blombery has not been provided with the surveillance evidence and has therefore not been asked to comment on it; however, it has not been explained how viewing the films would have altered his findings on examination about the different temperatures and colour of the plaintiff’s legs. Nor has it been explained how viewing the films would have altered what they depict, namely that the plaintiff limps.
(iv) Dr Ayyappan reviewed the plaintiff on 18 July 2017 for neurological evaluation and lower limb electrodiagnostic studies. On examination, Dr Ayyappan observed the plaintiff to walk unaided with a limping gait due to left leg pain. He too recorded that the plaintiff’s left lower limb was colder below the knees, along with mild erythematous discolouration and oedema. Dr Ayyappan reported:
“Miss Sobko’s clinical presentation with persistent localised left leg pain, along with associated findings of reduced skin temperature and trophic changes would be in keeping with the diagnosis of complex regional pain syndrome made by the pain management specialists. In the absence of evidence of peripheral nerve injury, it is likely type I CRPS. Miss Sobko was receiving multidisciplinary management and follow up by the pain management team. Given the absence of evidence of nerve injury, a further neurology review was not considered necessary.”[33]
[33]Exhibit K, page 2
(v) I note that Mr David Brownbill, consultant neurosurgeon, examined the plaintiff on 5 December 2017. On that occasion, examination of the plaintiff’s lower limbs did not show any abnormality of colour, texture or sweating; however, “the left foot was slightly colder than the right.”[34] Mr Brownbill reviewed material provided to him and observed that the plaintiff’s “colour changes of the left foot and the slight coldness of the left foot could be part of a complex regional pain syndrome; however, the examination of 5 December 2017 did not suggest that diagnosis”. Mr Brownbill’s assessment must be seen in light of the fact that on the day in question the colour of both of the plaintiff’s legs was the same. It has not been suggested that the observations of other experts who noted a difference between the colour of the plaintiff’s legs on other occasions were inaccurate. I accept the possibility that the colour of the plaintiff’s left leg varies from time to time, as the plaintiff explained in her first affidavit.[35] This answers the apparent inconsistency between Mr Brownbill’s observations on 5 December 2017 and the observations of others, including Dr Thomas, on different dates.
[34]Exhibit P, page 3
[35]Exhibit A, paragraph [11]
(vi) Associate Professor Pirpiris, orthopaedic surgeon, assessed the plaintiff on 5 October 2018.[36] On examination, he observed “[t]here was a decrease in temperature in the left foot and the left calf from approximately 7.5 centimetres below the tibial tuberosity. There was an alteration of sensation with prickles or paraesthesia from 7.5 centimetres below the tibial tuberosity in a nonanatomical distribution.” Associate Professor Pirpiris had access to and reviewed:
[36]Exhibit S
“1.Lake Imaging radiology reports and CD ROM.
2. Advanced Health Care medical report dated 9 January 2018.
3. Barwon Neurology medical report dated 25 August 2017.
4. Kariah Bay Health Group medical report dated 31 October 2017.
5. Lester Walton medical report dated 14 November 2017.
6. David Brownbill medical report dated 5 December 2017.
7. Dr Peter Blombery medical report dated 5 February 2018.
8. Kariah Village Medical Practice clinical notes dated 4 July 2016.”[37]
[37]Exhibit S, page 1
Associate Professor Pirpiris opined:
“The injuries sustained by Ms Sobko were a posttraumatic, type 1 complex regional pain syndrome of her left lower limb.”[38]
[38]Exhibit S, page 5
(vii) Most of the experts who were asked to report on the plaintiff commented on the plaintiff’s limp. There was no suggestion in any of these reports that the plaintiff was faking when she limped, although, as I have already mentioned, Dr Blombery recorded exaggerated pain behaviour. Even so, Dr Blombery did not say that the plaintiff’s limp was an element of exaggerated pain behaviour.
(viii) In his sole examination of the plaintiff, Dr Thomas did not make observations like those made by the experts referred to above. First, Dr Thomas did not comment about any limp. His report of the clinical examination that he conducted of the plaintiff was brief:
“6. CLINICAL EXAMINATION
She was 167.6 cm tall. Her weight was 110 kg. Body mass index of 39.2. She was obese.
She was able to walk unaided.
She reported that the left foot was numb to palpation to above ankle. There was no mechanical allodynia. There was no dynamic allodynia. There was no hyperalgesia. Just a generalised numbness to above ankle level. Temperature was exactly the same on both sides. Skin, nail and hair patterns were symmetrical.
She had present ankle reflexes and knee jerks. Power in her lower limbs presented as being intact.
Straight leg raising unremarkable.
Thoracolumbar movements were limited to 60% of normal.”[39]
[39]Exhibit 5, page 3
As can be seen, Dr Thomas made no mention of a limp. He simply reported, “She was able to walk unaided.”[40]
[40]Exhibit 5, page 3
Second, Dr Thomas reported that “[t]emperature was exactly the same on both sides.”[41] He did not explain how he came to that conclusion or at what points on the plaintiff’s body he made an assessment of her temperature.
It was Dr Thomas’ assessment that the temperature in both legs was the same, and his likely finding that the colour in both legs was the same,[42] which contributed to his opinion that the criteria for CRPS 1 were not satisfied.
[41]Exhibit 5, page 3
[42]Exhibit 5, page 3
43 Although it is possible that on the day Dr Thomas assessed the plaintiff both her legs were the same temperature and colour, I am satisfied on the balance of probabilities that usually the plaintiff’s left leg is darker in colour than her right, and that usually the temperature of her lower left leg is cooler than that of her right. These findings of fact support the conclusion that the plaintiff suffers from CRPS 1, the condition diagnosed by the experts referred to above.
(iii)Is the Plaintiff’s injury a physical one?
44 The defendant concedes that if the plaintiff suffers from CRPS 1, it is a physical injury. The defendant’s position is, however, that there is a functional component to the plaintiff’s presentation, a matter raised by Dr Lindquist in his report of 15 January 2019. In that report, Dr Lindquist stated:
“In October 2016 Julie also complained of paresthesia in her left hand mainly involving her fingertips but there was nothing to find [on] examination.
At this stage I was certainly concerned regarding a large functional overlay in regard to her symptoms and her limited cognitive ability to understand the concept of reflex sympathetic dystrophy and neuropathic pain.”[43]
[43]Exhibit O, pages 2-3. I note that “reflex sympathetic dystrophy” is now known as CRPS 1
45 It is unclear whether the functional overlay to which Dr Lindquist was referring was confined to the plaintiff’s report of paraesthesia in her left hand or whether the reference was broader in context.
46 A little later in his report, Dr Lindquist stated:
“During this period of time [post December 2016] I noted that Julie remained anxious and obsessively focussed on her left leg symptoms. She was still unable to sit for any prolonged period of time and walked with a considerable limp. Her left leg below the knee was mildly swollen and she continued to complain of her leg feeling heavy, cold and numb.”[44]
[44]Exhibit O, page 3
47 The plaintiff’s counsel concede that there is a functional component to the plaintiff’s current presentation; however, they submit that it does not detract from the predominant cause of the plaintiff’s problems as being organically based.
48 Both parties rely on Richards v Wylie.[45] In that case, Winneke P observed:
“[16] ... s.93(17) intends to maintain a division between injuries with physical consequences and those with mental consequences, as Crockett and Southwell, JJ. pointed out in Humphries v. Poljak. Their Honours’ comments, with which I agree, were intended to underline the distinction between the inquiry which is to be made under sub-paragraph (a) and that which is to be made under sub- paragraph (c). The inquiry which the judge must make under sub-paragraph (a) focuses his attention first upon whether the injury has produced an organic impairment (or loss) of a body function and then, by reference to the consequences of that impairment, to determine whether it is ‘serious’ and ‘long term’ (see Humphries v. Poljak, supra at 138 and 140, per Crockett and Southwell, JJ.).
...
Thus, the judge, in making the inquiry, must be careful – particularly in cases where mental disturbances or disorders have supervened – not to lose sight of the focus which the definition in sub-paragraph (a) calls for lest he falls into the erroneous reasoning process of allowing the consequences of a mental disturbance or disorder to govern, or even intrude into, a finding of ‘impairment or loss of a body function’. If, for example, a person loses the use of his or her limbs as a consequence of injury to the spinal column and cord, that loss is a consequence of the long-term impairment of the function of the spinal process. If, on the other hand, a loss of use of the limbs occurs as an hysterical response to minor trauma, it is the ‘mental or … behavioural disturbance or disorder’ which is producing the impairment of body function and it is, accordingly, the severity of the mental disorder itself which must fall to be considered under sub-paragraph (c). Between the two extremes to which I have referred will, no doubt, be a range of differing circumstances; but if the body of evidence before the judge demonstrates that the consequences of a mental disturbance or disorder are themselves producing the impairment of body function complained of, it would be, as Crockett and Southwell, JJ. pointed out, ‘anomalous’ to regard those consequences as falling to be considered under sub-paragraph (a) of the definition when clearly it is the severity of the disorder or disturbance itself which falls to be judged under sub-paragraph (c). Although the textual distinction between sub-paragraphs (a) and (c ) has been touched upon in other decisions since Humphries v. Poljak (see, for example, Turner v. Love and The Transport Accident Commission) their Honours’ statement of principle remains as a seminal statement of principle governing the interpretation of the sub-section and ought, in my view, to be followed.”
[45](2000) 1 VR 79
49 Buchanan JA observed:
“[24] That is not to say that mental or behavioural disorders have no part to play in considering whether the requirements of paragraph (a) have been met or that physical incapacity is irrelevant in considering the applicability of paragraph (c). Just as the physical consequences of a mental or behavioural disorder may have a bearing on the severity of the disorder, a mental or behavioural component can affect the question whether a physical injury is serious and long-term. However, there must be existing organic or physical injury if the injury is to be judged according to the criteria found in paragraph (a) of the definition. If physical incapacity is due to a mental or behavioural state, it is not a serious injury within the meaning of paragraph (a).”
50 Chernov JA put it this way:
“[27] ... a distinction must be maintained between the physical consequences of the injury and those which have resulted in mental or behavioural disturbances, is a reflection of the wording of s.93(17) of the Transport Accident Act 1986. Thus, so far as is relevant, the consequences of the injury are to be determined by reference to the definition of ‘serious injury’ in either para.(a) or (c). Although the textual distinction between those paragraphs may be simply stated, it will often be a difficult task for the trial judge to determine which of para.(a) or (c) applies for the purpose of establishing whether an injury and its manifestations amount to a ‘serious injury’.
[28] It is likely that in many cases the injuries caused by a transport accident will have physical as well as mental consequences for the plaintiff, with the result that it may appear that either definition could be appropriately applied in determining whether the relevant injury is a ‘serious’ one. In such circumstances, which test is appropriate will fall to be determined by the consideration of what is the dominant cause of the plaintiff’s condition. Is it predominantly the result of the physical injuries arising from the accident, or is the dominant cause of the condition the mental and psychological factors flowing from the accident? But whichever test is to be applied, in determining if its requirements have been satisfied, all the relevant consequences for the plaintiff arising from the accident are to be considered. Thus, if it is decided that, in a given case, the test in para.(a) is appropriate because the plaintiff’s relevant condition has been brought about predominantly by the relevant physical injuries, in deciding whether the relevant impairment is serious and long term, regard is to be had not only to the physical cause of the impairment, but also to any mental or behavioural disturbances flowing from the physical injury, such as “functional overlay” to which the President refers in his judgment. The same applies where the dominant cause of the plaintiff’s condition consists of mental or psychological factors. In such a case, any accompanying physical incapacity may be taken into account in determining whether the plaintiff’s mental or behavioural disabilities are serious and long term. But the first task is to decide whether the dominant cause of the plaintiff’s condition falls to be determined by reference to the criteria in para.(a) or (c). Such an approach is likely to prevent the tail wagging the dog or creating the ‘anomaly’ to which their Honours referred in Humphries v. Poljak ... .”
51 Although the plaintiff has developed a psychological reaction to her physical injuries, the objective evidence establishes ongoing physical signs associated with it, such as the pain causing the limp, the lower temperature in the left leg than in the right, and the darker colour of the lower left leg when compared to the right. It is not suggested that these last two physical signs are the product of any psychological reaction.
52 I am satisfied on the balance of probabilities that the predominant cause of the plaintiff’s condition is the result of the physical injuries arising from the accident. I am not persuaded that the plaintiff’s psychological response has supervened so as to govern the consequences of her physical injury.
(iv)Do the consequences of the injury satisfy the narrative test?
53 To be a “serious injury”, the injury must be one that has serious consequences for the plaintiff judged on an objective basis and, when judged by a comparison with other cases in the range of possible impairments, it must be capable of being fairly described at least as “very considerable” and certainly more than “significant” or “marked”.[46]
[46]Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511 at paragraph [15]; Humphries & Anor v Poljak [1992] 2 VR 129 at 140-1; s134AB(38)(c)
54 Assessment of consequences requires a comparison of the plaintiff’s before and after position.[47]
[47]Humphries & Anor v Poljak (supra) at 136; Hunter v Transport Accident Commission [2005] VSCA 1 at paragraph [34]
55 I now turn to the consequences of the injury.
56 As mentioned earlier, before the accident the plaintiff did not have problems with her left lower leg. She did not limp. There is no medical record of a difference in the temperature or the colour of her legs before the accident. She did not need medication for the relief of leg pain.
57 The plaintiff described the consequences of her injury in her two affidavits tendered as exhibits A and B respectively in these proceedings. In her first affidavit,[48] the plaintiff deposed:
[48]Exhibit A, sworn 22 February 2018
“10. I continue to suffer from serious problems with my left leg and lower back. I have constant pain and numbness in my left leg. The pain and numbness are so bad that I struggle to walk. The pain varies and at times the pain is severe. The pain goes right down my left leg, but the numbness is in my left foot.
11. My left foot feels swollen. I continue to have colour and temperature changes in my left foot. My foot temperature changes from cold to very hot. The colour changes from a normal skin colour to a red colour. I have lost strength and movement in my left leg. My leg feels heavy. I have been told that I am suffering from a condition known as complex regional pain syndrome.
...
13. Due to my left leg symptoms I struggle with walking and standing for any length of time. This severely restricts my activities. I struggle with using stairs and with walking across uneven surfaces. I now avoid driving a car because I don’t have proper feeling in my left leg. The pain and numbness wake me up through the night.
14. I continue to have physiotherapy and hydrotherapy treatment on a weekly basis. I take prescribed Osteomol Paracetamol and Endep medications for the pain and to help me sleep. I otherwise take medications for my conditions of diabetes and high blood pressure.
15. My leg and back pain restrict my ability to do everyday things. I am now more limited as to what I can do around the home and garden. I have to avoid the heavier jobs which involve too much bending or kneeling. Before the car accident I loved my gardening, going shopping and visiting family. All of these activities are now more restricted because I have to take things much slower and pace myself and I am now relying on public transport rather than driving.
16. My injuries have also affected me from the mental side. I am very frustrated by my ongoing symptoms. I can’t do what I want to do. On bad days with the pain and numbness I don’t leave home and all I can do is stay home and lie down. I have become more withdrawn from people.”
58 In her further affidavit, sworn on 18 December 2018, the plaintiff deposed:
“5. I now take Celebrex and Ostemol Paracetamol, which I take for my left lower leg pain. I also use it for back pain at times but not as often. I am on Amitriptyline to help me sleep and I take a blood pressure medication. I have come off Targin and Lyrica. I was putting on a lot of weight with the Lyrica, which was not assisting.
6. I continue to go hydrotherapy and I attend the gym at the centre where I saw Dr Ong.
7. I continue to suffer significant pain and other symptoms in my left lower leg.
8. The pain in my left lower leg starts in my foot and can go up my leg. I have altered sensation in my leg, with associated numbness. The pain in my left lower leg can be up to 7/10 on a pain scale on a daily basis but it varies.
9. I continue to suffer from a swollen left foot. I struggle to put a shoe on that foot when it’s too swollen.
10. I continue to have colour and temperature changes in the foot, as discussed in paragraph 11 of my previous Affidavit. My leg gets very cold and numb.
11. I am now restricted in the type of shoes I wear. I tend to wear a bigger size shoe on my left foot where possible and I wear a sock even when it’s irritating to my foot.
12. If I have a shower that is too hot. I can get this weird funny tingling feeling in my foot.
13. Some days the foot is very hot and then it will just become freezing cold and feel numb. My left foot sweats and my foot gets quite smelly. It is completely different to my right foot. I get embarrassed if I have to go to appointments and I have to take my socks and shoes off and my foot is smelly. I used to try and cover it with a foot spray, but it didn’t work.
...
15. My left lower leg injury causes pain with walking longer distances, walking on rough and uneven ground, standing for lengthy periods and stairs. If there are stairs I now have to hold on to the handrail to help me get up and down.
16. I struggle to both get to sleep and stay asleep I have pain in my leg when I get into bed and I find it difficult to nod off and then I will often wake with pain in my left lower leg. When I wake, I will get up and walk around or take pain relief medication and try and reduce the pain before returning to bed. This leaves me with disrupted sleep and I am often tired and irritable the following day.
17. I continue to remain restricted in my ability to do housework and gardening, arising mainly from my left lower leg injury. The back injury does impede some activities where I have to bend but not to the same degree. I previously did smaller shops, as I couldn’t do a large shop. This had its own issues, as I had to go out, get on public transport. I have now bought myself a shopping buggy, so I can shop less frequently. I struggle to carry weights in my hands and walk any distance with my left lower limb problems.
18. I have undertaken some activities such as gardening, but I will have to stop frequently, and I really pay for it at the end of the day. I am restricted in my ability to cook and clean due to my left lower limb injury.
19. I have not returned to driving longer distances. I now try and catch the bus. I don’t like to drive as I have issues with numbness in my foot which means that I struggle with the pedals. This impedes my ability to get out and around. I do use public transport, but if I have to take public transport to Melbourne and then walk anywhere, I really struggle afterwards. I will get worse pain in the left lower limb. My foot will be swollen, and I will have to put it up when I get home.
20. My left lower limb injury interferes with my ability to play and interact with my grandson Toby. This upsets me a lot.
21. I remain frustrated and down, due to the chronic nature of my injury. I continue to remain quite withdrawn and I stay at home, as I am in too much pain to leave. I have struggled with some mental health issues in the past, for which I have attended my general practitioner, had medication and seen a psychologist.
22. I suffer from diabetes. I take medication for this and it is under control.”[49]
[49]Exhibit B
59 The defendant has pointed out that despite the plaintiff’s claims of ever-present debilitating pain, the plaintiff is in receipt of a carer’s pension which must mean that she is capable of providing care for her daughter for up to five hours per day.[50] Also, contrary to the picture painted in her affidavit that she mainly stays at home because she is “in too much pain to leave”,[51] the plaintiff conceded that she plays bingo three times per week.[52] The defendant also submits that the plaintiff has little difficulty in sleeping.
[50]T13
[51]Exhibit B, paragraph 21
[52]T38
60 Turning first to the question of pain. As I mentioned earlier, the extensive records of Dr Lindquist[53] show that ever since the accident he has prescribed a variety of medications to alleviate the plaintiff’s leg pain. Among the list of medications prescribed for the plaintiff over the years are Palexia, Lyrica, Targin, Nortriptyline, Tramal, Duloxetine, Paracetamol, Endep, Celebrex, Amitriptyline, Nurofen and Endone. The plaintiff has been on pain-alleviating painkilling medication of one sort or another consistently since the accident. She takes painkillers daily.
[53]Exhibit V
61 I am satisfied on the balance of probabilities that it is the pain in her left leg that causes the plaintiff to limp. I am also satisfied that the plaintiff suffers the physical changes in her left leg as described, including change in colour and temperature, sweating causing a malodorous foot, embarrassment, and restriction in physical activity such as walking, gardening, and standing for prolonged periods. I am satisfied that when her foot swells the plaintiff tends to wear a bigger size shoe on her left foot where possible.
62 I am also satisfied that the plaintiff suffers from numbness in the foot from time to time, a symptom that is well documented in Dr Lindquist’s records.
63 Regarding interference with sleep, the defendant notes that the plaintiff told Dr Lindquist in June 2018 that she “was sleeping eight hours per night with only one wake for micturition”.[54] The defendant submits that the plaintiff was caught out lying in cross-examination about the difficulties she has with sleep:
“31. The plaintiff initially agreed in cross examination that her sleep problems had remained the same all along. Upon being confronted with Dr Lindquist’s report she said ‘sometimes it varies’. The defendant submits that this is a further example of unsatisfactory evidence from the plaintiff. ... .”[55]
[54]Exhibit O
[55]Exhibit 9
64 On closer examination of Dr Lindquist’s records, it would appear that the plaintiff has had difficulty with sleeping for some time since the accident. It has only been the prescription of medication that has assisted the plaintiff to get to sleep and stay asleep. For example on 12 May 2017, the plaintiff complained of difficulty in sleeping. Dr Lindquist increased the dose of Duloxetine to 90milligram/n.[56] On 26 February 2018, the plaintiff complained that she was not sleeping. Dr Lindquist increased the dose of Amitriptyline to 75 milligram/n.[57] On 26 March 2018, the plaintiff reported to Dr Lindquist that she was sleeping “a bit better” on Amitriptyline 75 milligram/n.[58] In this context, the entry of 18 June 2018, which states “sleeps 8 hours/n cx1 wake, dry mouth from Amitrypt[yline] but otherwise OK”, leads me to infer that the plaintiff was sleeping eight hours because the medication prescribed enabled her to do so. I am satisfied that but for the medication, the plaintiff would not be able to get a full night’s uninterrupted sleep.
[56]Exhibit V, page 12
[57]Exhibit V, page 7
[58]Exhibit V, page 6
65 Regarding interference with her domestic life, I am satisfied that the plaintiff is well enough to justify keeping her carer’s pension. She is able to assist her daughter for up to five hours per day. There is no evidence to contradict her testimony that the assistance she provides for her daughter is mainly of an administrative kind, such as doing her banking. There is no cogent evidence that she does housework or shopping for her daughter.
66 The plaintiff has retained a capacity to perform domestic tasks, but at a reduced level. I am satisfied that because of the plaintiff’s leg pain, her household tasks are somewhat limited. I accept her evidence that her capacity to garden has been reduced as a result of left leg pain.
67 The plaintiff used to attend bingo up to six times per week.[59] This appears to be her main form of social activity, which she enjoys with a friend. She now attends three times per week.[60] The fact is, however, that the plaintiff is capable of getting to bingo by car and spending approximately two-and-a-half to three hours there with her friends.
[59]T38
[60]T38
68 I accept that the plaintiff’s capacity to play with and interact with her grandson, Toby, has been compromised by left leg pain.
69 Although the plaintiff lied to Dr Blombery on 25 October 2018, and also to Dr Firestone on 5 November 2018, about her ability to drive a car, she had disclosed to Associate Professor Pirpiris on 19 October 2018, only six days before speaking to Dr Blombery, that “she had started driving, although she was very anxious about her driving”.[61] In her second affidavit, the plaintiff did not directly state that she had resumed driving, although it is implicit that she had done so. She deposed: “I have not returned to driving longer distances. ... I don’t like to drive as I have issues with numbness in my foot which means that I struggle with the pedals. This impedes my ability to get out and around.”[62] It can be inferred that the plaintiff had resumed driving shorter distances; however, it does not excuse the plaintiff’s lie to Dr Firestone and Dr Blombery. The plaintiff has failed to provide any adequate explanation for the lie. That said, and with the greatest of respect to her, the plaintiff is not a particularly sophisticated woman.
[61]Exhibit S, page 5
[62]Exhibit B, paragraph 19
70 The plaintiff has regained her ability to drive a car, although I accept she does not drive as far as Melbourne from her home which is in Corio. The ability to drive a car would make shopping easier for the plaintiff, as she does not need to struggle with carrying bags or parcels onto public transport.
71 In all the circumstances, taking into account the severity of the consequences of the plaintiff’s injury that I accept as established, I am satisfied on the balance of probabilities that the plaintiff’s injury is one that has serious consequences for her, judged on an objective basis, and when judged in comparison with other cases in the range of possible impairments it can be fairly described as at least “very considerable” and certainly more than “significant” or “marked”.
(v)Is the element of permanency established?
72 As I mentioned earlier, there is a suggestion that the plaintiff’s symptoms have recently shown signs of improvement. The defendant relies upon Associate Professor Pirpiris’ report that the plaintiff “described that her symptoms had improved”.[63] In fact, what Associate Professor Pirpiris stated was:
[63]Exhibit S, page 5
“2. As a consequence of the injury and impairment of my client’s a) left lower limb on its own and b) spine on its own.
In terms of the left lower limb, the left lower limb was causing significant discomfort due to the tingling of the left lower limb. She said that she was only able to stand for an hour or two at the most, walk for 30 minutes at most. She was unable to kneel, unable to squat, unable to crouch. She had difficulties walking on an incline but she could manage including her right leg first. She could manage walking downhill. She could not do steps. She was unable to pivot and unable to push. In terms of lifting, she could only lift weights up to approximately 2 kg. She felt that the foot was very tight within the shoe. She described that her symptoms had improved.
In terms of the spine pain, she stated that her spine started hurting approximately one week after the accident. It was over the left iliac crest. Walking gave her lower back pain. Sleeping meant that she was unable to sleep on the left side due to lower back pain. During the night, she would have to take painkillers every night. She was a smoker off and on for 30 years. She would smoke 20 cigarettes per day. She had started driving, although she was very anxious about her driving. She would have pain and pain going down the back of her leg.
In terms of her duties at home, she tried to her best to perform her duties, as she was helping look after her daughter as well. She was able to vacuum with difficulty. She was able to wash with difficulty. She used the washing machine. She used a laundry basket and she had modified the methodology for sweeping and cleaning and did this despite the fact that she would have significant pain.
As a consequence of the injury, she had significant ongoing pain in her spine and she also had significant ongoing discomfort and stiffness and weakness in her left lower limb.
In terms of her restrictions, she was unable to bend, lift, twist or stoop, push, pull or lift anything greater than 2 kg and unable to use repetitive prolonged use of the spine. She was unable to do prolonged sitting. She could walk for an hour or two at most. She was unable to walk up inclines comfortably. She would have to lead with her right foot. She could walk on rough surfaces but not uneven surfaces. She was unable to do high impact activities. I would suggest that these limitations may remain in situ for the short-medium term, i.e., the foreseeable future.
...
7. A prognosis of my client’s condition.
There had been an improvement in the hyperalgesia in the left lower limb and as such, if she continued to have ongoing treatment for her symptoms, it may with time improve. It is difficult to say what the improvement will be or what the timeline for improvement will be; however, ongoing physiotherapy and hydrotherapy would be an appropriate modality to support her through the recovery period.
...
10. Whether my client requires assessment by another specialist and if so the area of medical expertise.
A neurologist, a pain specialist, her general practitioner and her physiotherapist have assessed your client. At this point in time, as she has started improving the only further person that may be required is a rehabilitation physician for the ongoing management of her rehabilitation needs. With the improvement in the hypersensitivity of her left lower limb, it would be appropriate to embark upon a more aggressive physiotherapy program which includes strengthening and functional elements.”[64]
[64]Exhibit S, pages 5-6
73 I consider that Associate Professor Pirpiris’ opinion is no more than the expression of a possibility that the plaintiff’s condition may continue to improve. In this regard, Associate Professor Pirpiris’ opinion is at odds with the opinion of the plaintiff’s treating healthcare professionals. For example Dr Lindquist was of the view that the plaintiff’s condition is permanent “due to the prolonged period of time that her symptoms have already persisted without any improvement whatsoever despite a wide range of medication groups and maximal physical and psychological treatment”.[65]
[65]Exhibit O, page 5
74 Dr Ong, the plaintiff’s treating pain specialist, was of the view that the plaintiff’s “prognosis remains guarded, but it is likely she will suffer persistent pain symptoms and limited capacity for the foreseeable future”.[66]
[66]Exhibit M, page 9
75 In his report commissioned by both parties, Dr Blombery stated “It is my opinion that [the plaintiff’s] condition has a very poor prognosis”.[67] In his subsequent report, Dr Blombery considered the plaintiff’s “prognosis for recovery at this stage is poor”.[68]
[67]Exhibit R, page 6
[68]Exhibit U, page 4
76 In all the circumstances, I consider it more probable than not that the plaintiff’s condition is long-term and will persist well into the foreseeable future. In these circumstances, I am satisfied on the balance of probabilities that the plaintiff’s injury and its consequences are permanent.
Conclusion and orders
(i) I am satisfied that although the plaintiff has told lies about her capacity to drive and to socialise, she is to be accepted about the material consequences of her injury as described in this judgment.
(ii) As a result of the accident the plaintiff suffered a soft tissue injury to her left leg which has developed into CRPS 1.
(iii) Although the plaintiff has developed a functional component to her injury, the predominant cause of her condition is a physical one.
(iv) I am satisfied on the balance of probabilities that the consequences of the injury meet the narrative test.
(v) I am satisfied on the balance of probabilities that the element of permanency has been established.
77 Accordingly, I grant leave to the plaintiff to bring common law proceedings to recover pain and suffering damages arising from the transport accident that occurred on 2 April 2016.
78 I shall now hear the parties on the question of costs.
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